BJA17 v Minister for Immigration

[2017] FCCA 3074

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJA17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3074

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority was acting as an arbiter of faith – the adverse findings were open to the Authority – the adverse finding whether the applicant was a genuine convert to Christianity cannot be said to be irrational, illogical, arbitrary or unreasonable – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 473DE, 476

Applicant: BJA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 974 of 2017

Judgment of: Judge Street

Hearing date: 8 December 2017

Date of Last Submission: 8 December 2017

Delivered at: Sydney

Delivered on: 8 December 2017

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie
Dobbie And Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. Leave to the applicant to rely upon the amended application filed on 29 November 2017.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 974 of 2017

BJA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 27 February 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

2. The applicant is a citizen of Iran and his claims were assessed against that country. The applicant arrived in Australia at Christmas Island on 18 July 2013 as an irregular maritime arrival. The applicant participated in an irregular maritime arrival interview on 4 August 2013. The applicant applied for the visa on 23 August 2016.

The delegate’s decision

1. Before the delegate, the applicant raised that he was born in Tehran Province and is an Iranian citizen of Farsi descent. The applicant identified that he was residing in Malaysia as a student from 2007 to 2010. The applicant alleged that while studying as a student in Malaysia in 2009 the applicant was involved in a demonstration in front of the United Nations and the Iranian embassy. The applicant claimed to have been questioned by the Basij in 2011. The applicant claimed to fear the Islamic Republic Agency.

2. At the protection visa interview, the delegate identified that the applicant claimed he is exploring Christianity and the applicant claimed to fear harm returning to Iran as a failed asylum seeker. The delegate noted that the applicant indicated he had never been questioned by the Iranian authorities on leaving or entering Iran to study in Malaysia, or that he or his family members had ever been involved in any political anti-government activities aside from his participation in the two protests in Malaysia in 2009. The delegate found the applicant did not personally experience any harm in Iran and that he was not targeted in any way by the Basij or any authorities as claimed.

3. The delegate referred to the applicant exploring Christianity. The applicant stated during the interview he spent a lot of time talking about the demonstration in Malaysia and his political opinion but had not talked about his religion. When the applicant asked to explain what he meant by saying that he was exploring Christianity, the applicant said his neighbour had been talking about Christianity with him and had given him a King James Bible to read. The applicant was asked about his protection visa interview when he was asked what his religion was and he stated he was a Shia Muslim. The applicant indicated his family were not strict practicing Muslims. The applicant was asked whether he believed himself to be a Christian and said he does not believe in Islam and is in the process of learning about Christianity and as he learns more about the Christian faith, he may decide to convert to Christianity in the future. The applicant indicated that he had attended some church services in Australia and some English classes run by the church but is not currently attending any church.

4. The delegate found it plausible that the applicant had been learning about Christianity by speaking with his neighbour and asking questions about Christianity. However, on the applicant’s own admission, the delegate did not accept that the applicant had converted to the Christian faith. The delegate found the applicant failed to meet the criteria for the grant of the visa under the Act.

The Authority’s decision

1. By letter dated 11 November 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions and explained the limited circumstances in which the Authority could consider new information.

Consideration of the information before the Authority

1. Submissions were provided on behalf of the applicant to the Authority on 14 November 2016, 15 November 2016, 16 November 2016, 21 November 2016, 24 November 2016 and 5 December 2016. The Authority noted those submissions contained arguments addressing the delegate’s findings and repeated some of the evidence that the applicant had given to the delegate. The Authority did not consider those aspects of the submissions to be new information and had regard to the same. The Authority made reference to the applicant submitting in the submissions that he has a sincere desire to convert to Christianity and that he decided he would be keen to get baptised.

2. A copy of the applicant’s certificate of baptism dated 4 December 2016 and a video of the applicant’s baptism by full immersion was attached to the submissions. The Authority made reference to the applicant’s evidence before the delegate that he was learning about Christianity in Australia and if he accepts Christianity he will convert. The Authority noted the applicant had not claimed before the delegate that he desired to or had decided to convert or get baptised. It was in these circumstances the Authority identified this as new information.

3. The Authority noted the baptism certificate postdates the delegate’s decision. The Authority identified the new information to be directly relevant to the assessment of whether the applicant has genuinely converted to Christianity and the assessment of whether Australia has protection obligations. The Authority was therefore satisfied there were exceptional circumstances to justify considering this new information and had regard to it.

4. The Authority noted the submissions claimed that when the applicant was in Malaysia as a student he attended a Catholic church with his friend. That claim was not raised before the delegate. The Authority referred to the applicant’s claimed interest in Christianity being first raised in the Safe Haven Enterprise Visa interview and there was no mention of any church attendance in Malaysia. The Authority identified this to be new information. The Authority identified that the applicant’s interest and involvement in Christianity was explored at the Safe Haven Enterprise Visa interview. The Authority was not satisfied there were exceptional circumstances to justify considering this information.

5. The Authority referred to an article dated 10 March 2016 in relation to whether Iran would accept back its citizens. The Authority noted this information was not before the delegate and considered it to be new information. The Authority noted the information predated the delegate’s decision and no reason had been provided as to why the information could not have been provided to the delegate or why it may be credible personal information. The Authority was not satisfied there were exceptional circumstances to justify considering the information. The Authority found the applicant had not satisfied the Authority of the requirements of s 473DD(b) of the Act.

6. On a fair reading of the Authority’s reasons in relation to the submissions and information, the Authority did not adopt an erroneously narrow meaning of exceptional circumstances and took into account the whole of the provisions in s 473DD of the Act.

Assessment of Refugee Convention criteria

1. The Authority identified that it accepted the applicant’s claims and relevantly identified accepting that the applicant studied in Malaysia between 2007 and 2010, that he studied English at the British Council for about six months and obtained a Bachelor of Business degree in International Business on 24 July 2010. The Authority identified that the applicant had provided a copy of the certificate for the bachelor degree and an overseas qualification assessment advice issued by the Queensland Department of Education and Training on 3 March 2016.

2. The Authority identified accepting that the applicant’s bachelor’s degree is now recognised in Iran and found the applicant is not prevented from his study in Iran for that reason. The Authority concluded that the applicant faces no real chance of harm on this basis now or in the reasonably foreseeable future.

3. The Authority had regard to the incidents alleged by the applicant in 2011 and considered that if it occurred as claimed, it would have been a frightening and memorable experience for the applicant. The Authority did not consider that the applicant would have stated on the Safe Haven Enterprise Visa form that he had not experienced harm or torture in Iran:

   “but I can imagine to be arrested upon arrival in Iran. I emphasise that I can imagine!”

   The Authority found that if the 2011 incident had occurred, the applicant would have at least briefly mentioned this fact in addition to what he could imagine in the Safe Haven Enterprise Visa interview.

4. The Authority identified having difficulty accepting as plausible that the applicant would have followed the instructions of an unknown motorcyclist and driven to a mosque, stopped his car and followed two strangers into the basement of a mosque. The Authority found it highly implausible that the militia or the authorities would have waited until the beginning of 2011, over half a year after the applicant’s return from Malaysia and one and a half years since he voted in the 2009 election and took part in the protest, to approach the applicant only to question him and to inform him that they had a record of his involvement in the demonstrations in Malaysia.

5. The Authority found the applicant’s evidence that he did not go to any journey or travel is at odds with his evidence in the Safe Haven Enterprise Visa application that between 5 March 2011 and 23 April 2011 he travelled to Malaysia for a holiday. The Authority did not accept the applicant was in hiding in Iran at any time during the three year period between July 2010 and June 2013. The Authority was not satisfied the applicant had been truthful in his claims.

6. The Authority found that it was now over seven years since the applicant voted and participated in demonstrations in 2009 and the Authority rejected the 2011 incident in its entirety. The Authority found that there is no specific incident of past harm to the applicant. The Authority found there is no credible evidence to suggest that the applicant is, or that there is a real chance that he will be of interest to the authorities, the regime, the militias or anyone now on the bases of the 2009 demonstrations; his vote; his social media activities, including radio and internet communications, comments or posts in Malaysia or Iran; or his actual or imputed views or political opinion.

7. The Authority considered the chance of the applicant coming to the adverse attention of the police, the Sepah, the Basij, the regime, the militias or anyone else on these bases to be remote. The Authority was not satisfied that the applicant faced a real chance of being arrested, interrogated, detained or otherwise harmed for these reasons if he returns to Iran now, over three years since he left Iran, or in the reasonably foreseeable future.

8. The Authority referred to the problematic evidence of the applicant and did not accept that the claimed 2011 incident occurred, did not accept that the applicant was approached by motorcyclists and went to a mosque with them, or that he was questioned or threatened. The Authority did not accept the applicant is or was of interest to the militias, the authorities, the regime or anyone for reasons of his involvement in demonstrations, his vote, his real or imputed views or political opinion or social media activities or communications before he came to Australia. The Authority did not accept that when the applicant was on board the flight en route to Australia a person next to him was a security or intelligence officer of the flight and asked him numerous questions about the regime or political things.

9. The Authority was not satisfied that the applicant shared posts regarding the Iranian regime while in Australia. The Authority did not accept the Iranian authorities or militias or anyone had any interest in the applicant because of his alleged activities in Malaysia or posts on social media. The Authority did not accept the applicant did not take part in any political activities in Australia due to fear of harm. The Authority found that if the applicant had a desire, interest or commitment to express his political or religious views or opinion and that he came to Australia for his beliefs, he would have done so in the three years since he arrived.

10. Having considered all the evidence, including the applicant’s accepted profile, the Authority found that the applicant would not express his views or opinion or participate in political activities upon return to Iran not due to fear of harm or behavioural modification, but because he lacked the interest or commitment in doing so. The Authority was not satisfied the applicant will face a real chance of being confronted or otherwise harmed by the Islamic Republic Agency, the regime, militia or anyone on the basis of his real or imputed political opinion now or in the reasonably foreseeable future.

11. The Authority referred to the applicant’s religious beliefs and the first time the applicant mentioned that he was interested or involved in Christianity. The Authority referred to the applicant’s submissions and was not satisfied the applicant has a genuine interest or commitment in Christianity on a personal level. The Authority made reference to the applicant’s parents not being very religious and that they never forced the applicant to practice the Islamic faith. The Authority made reference to the applicant’s evidence that he came to realise that Islam was not his religion and stopped practicing Islam completely when he was 15 years of age and that he was interested in watching Christian movies as a teenager but studied a bit in Iran. The Authority noted that the applicant has not claimed to have participated in Christian-related activities in Iran and that he was about 38 years of age at the time of the Safe Haven Enterprise Visa interview.

12. The Authority noted that the applicant made no mention about his claimed interest in Christianity until the Safe Haven Enterprise Visa interview in 2016, some three years after his arrival in Australia. The Authority found there was no credible evidence to suggest that the applicant attended or participated in church activities in Australia prior to this where he has had freedom to do so. It was in these circumstances the Authority took into account that at the Safe Haven Enterprise Visa in late October 2016, the applicant gave evidence that he had only attended church three times in Brisbane and was still learning and if he accepts Christianity he will try to convert.

13. The Authority noted that about a week after the delegate’s decision of 8 November 2016 to refuse the applicant’s Safe Haven Enterprise Visa, the applicant claimed in his submissions of 16 November 2016 that despite not having committed to a Church community he had already accepted the religion, decided to convert and had a profound willingness to accept the Christian faith. The Authority noted that on 4 December 2016, within three weeks, the applicant was baptised in New South Wales shortly after he moved from Brisbane to New South Wales. The reference to 2006 in the Authority’s reasons is patently a reference to 2016.

14. The Authority identified accepting that it is possible for someone to genuinely convert to Christianity in a short period of time. The Authority identified however the timing in which the applicant raised this claim and the timing and speed of the applicant’s decision to convert when viewed in the context of the applicant’s background and particular circumstances brings into question the motivation of the applicant’s decision to convert and obtain baptism. It was in these circumstances that the Authority referred to considering the applicant’s evidence, age, family background, accepted profile, the timing and speed of his claimed conversion and baptism, and was not satisfied that the applicant became a genuine Christian convert or that he has a genuine interest or commitment to the Christian faith at an emotional level.

15. The Authority did not accept the applicant has a genuine interest in or commitment to Christianity. The Authority was prepared to accept that the applicant’s neighbour in Brisbane were church members and that the applicant came from a family that was not strictly Muslim and that he attended English classes run by the church and that the applicant through his neighbours may have had some curiosity about Christianity. However, the Authority found that the applicant was baptised for the sole purpose of strengthening his refugee claim.

16. The Authority was not satisfied that the applicant engaged in the conduct of baptism otherwise than for the purpose of strengthening his refugee claim. It was in those circumstances that the Authority correctly identified it was required to disregard that conduct pursuant to s 5J(6) of the Act.

17. The Authority was not satisfied that the applicant’s religious conduct in Australia have or may have come to the attention of the authorities, the militia or anyone in Iran. The Authority noted the applicant had not claimed and the Authority was not satisfied on the evidence that the applicant has any desire to or that he will inform anyone in Iran about his religious conduct in Australia. The Authority noted country information indicates the mere fact of conversion would not be sufficient to attract official attention in Iran.

18. The Authority found that the applicant will not attend church or participate in church activities upon return not due to a fear of harm or behavioural modification but because of a lack of sincere religious conviction or commitment to Christianity.  The Authority was not satisfied on the evidence that the applicant faces a real chance of harm by the Basi, the Sepah, the police, the regime, the militia or anyone on the basis of the applicant’s religious conduct or perceived religious conduct or beliefs now or in the reasonably foreseeable future. The Authority found the applicant would not be perceived as an apostate for not being a practicing Muslim. The Authority found the applicant will not face a real chance of harm for this reason now or in the reasonably foreseeable future.

19. The Authority was not satisfied that the applicant would face harm as a failed asylum seeker returnee who lived in Australia for some three years and has not practiced Islam would give rise to a real chance of harm or would increase the risk of harm to the applicant upon arrival at the airport or after returning home. The Authority was not satisfied that this would make the applicant’s situation far worse than three years ago. The Authority was not satisfied there is a real chance the applicant would face harm for being a returnee who sought asylum and lived in a western country now or in the reasonably foreseeable future.

1. The Authority made reference to the restrictions imposed but was not satisfied that this situation gives rise to a real chance of harm to the applicant now or in the reasonably foreseeable future. Having considered the applicant’s claims singularly and cumulatively, the Authority was not satisfied the applicant has a well-founded fear of persecution. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

Assessment of complementary protection criteria

1. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Iran there is a real risk the applicant would suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The decision of the Immigration Assessment Authority is irrational and or arbitrary and or illogical and or unreasonable

   Particulars:

   A. The decision of the Immigration Assessment Authority is infected with jurisdictional error because it is irrational and or arbitrary and or illogical and or unreasonable:

   (i) In finding that the Applicant was not a genuine convert to Christianity, the Authority stated at [71] of its reasons:

   Considering the applicant's evidence, his age, family background, his accepted profile, the timing and speed of his claimed conversion and baptism, I am not satisfied that the applicant became a genuine Christian convert, or that he has a genuine interest or commitment to the Christian faith at an emotional level.

   (ii) The Authority acted as an arbiter of faith, by conditioning one's faith by its standard or an unstated standard of the age of a genuine convert, namely, the Applicant. By so doing, the Authority's decision, which was based in part upon that finding, was arbitrary and or irrational and or unreasonable.

   (iii) The Authority had regard to the Applicant's 'accepted profile' when determining whether the Applicant was a genuine convert to Christianity. On the assumption that the Authority means the 'accepted profile' is a political profile of the Applicant, to have regard to that 'accepted profile' when determining whether the Applicant was a genuine convert to Christianity was illogical and or irrational and or unreasonable. If it was the Authority's profiling or some other unexplained profile, it was also irrational or illogical to rely on it when determining whether the Applicant was a genuine convert to Christianity.

   2. The Immigration Assessment Authority took into account an irrelevant consideration

   Particulars:

   A. The Authority took into account an irrelevant consideration, thereby committing jurisdictional error:

   (i) In finding that the Applicant was not a genuine convert to Christianity, the Authority took into account the following irrelevant considerations:

   (a) Its own or unexplained standard of the age of a genuine convert; and or

   (b) The Applicant's 'accepted profile'.

   3. The Immigration Assessment Authority failed to comply with s473DE of the Migration Act 1958

   Particulars:

   A. The Authority failed to comply with s473DE of the Act, thereby committing jurisdictional error:

   (i) In finding that the Applicant was not a genuine convert to Christianity, the Authority took into account the following:

   b) The Applicant's 'accepted profile'.

   (iii) The Authority failed to put the Applicant on notice, and failed to give him the opportunity to respond, as to what it considered to be his 'accepted profile', and then failed to notify the Applicant that it considered that that 'accepted profile' was to be a determinant of whether or not he was a genuine convert to Christianity.

   4. There is an apprehension of bias or actual bias

   Particulars:

   A. There is an apprehension of bias or actual bias:

   (i) The Authority relied on its own or an unstated standard of the age of a genuine convert as a determinant of whether or not the Applicant was a genuine convert to Christianity.

   (ii) The Authority relied on its own profiling or an unexplained 'accepted profile' as a determinant of whether or not the Applicant was a genuine convert to Christianity.

   (iii) By relying on its own or an unstated standard of the age of genuine convert to Christianity, and or by relying on its own profiling or an unexplained 'accepted profile', there is an apprehension of bias or actual bias.

Consideration

1. Mr Dobbie, the solicitor on behalf of the applicant, identified that grounds 1, 2 and 4 were interrelated. The substance of Mr Dobbie’s argument was that the Authority had adopted the position of being an arbiter of faith in determining whether the applicant’s conversion to Christianity was genuine and whether to take into account his baptism. Specifically, Mr Dobbie focused on the reference by the Authority in its considerations to what the Authority said was an accepted profile and also to the applicant’s age. Mr Dobbie submitted that these were standards that the Authority was applying and in substance by so doing was acting as an arbiter of faith by taking into account the applicant’s age and the applicant’s accepted profile.

Ground 1

1. The Authority twice in its reasons referred to the accepted profile. The accepted profile clearly is a reference to the findings accepted by the Authority in relation to the applicant’s education. The Authority’s reasons are to be read as a whole and without a keen eye for error. The reference to the applicant’s background in terms of his education described as accepted profile is not conduct by reason of which the Authority was becoming an arbiter of faith or applying an arbitrary standard in assessing and making findings of fact in respect of the applicant’s claims. Further, the reference to the applicant’s age was in the context of a combination of factors identified by the Authority, including the applicant’s educational background which were relevant to the circumstances of the applicant in the Authority determining as a finding of fact the applicant’s claim in relation to Christianity.

2. The Authority was not acting as an arbiter of faith taking into account the applicant’s age and the Authority was not applying an arbitrary standard by referring to age in determining the applicant’s claims. The adverse findings were open to the Authority for the reasons given by the Authority as identified above and cannot be said to lack an evident and intelligible justification.

3. Further, the adverse finding by the Authority is not conduct by reason of which a fair-minded lay observer might reasonably apprehend the Authority might not bring an independent and impartial mind to the determination of the matter on its merits. In these circumstances, the adverse finding by the Authority in relation to whether the applicant was a genuine convert to Christianity cannot be said to be irrational, illogical, arbitrary or unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. It was open to the Authority to take into account the applicant’s education and the applicant’s age as part of the factors in determining whether the applicant was a genuine convert to Christianity. On a fair reading of the Authority’s reasons, the critical factor in determining the applicant’s claim was the timing and pace of timing in the applicant’s steps that were taken to assert a conversion to Christianity in the context of the adverse decision by the delegate. That was a relevant and permissible consideration for the Authority to take into account and cannot be said to be irrational, illogical, irrelevant or unreasonable. No jurisdictional error as alleged in ground 2 is made out.

Ground 4

1. In relation to ground 4, for the reasons already given, no allegation of bias is proved, actual or apprehended. On the face of the material before the Court, the Authority approached the review under Part 7AA with an open mind reasonably capable of persuasion on the merits. The Authority’s reasons reflect a real and genuine consideration of the submissions advanced by the applicant. No jurisdictional error as alleged in ground 4 is made out.

Ground 3

1. In relation to ground 3, Mr Dobbie skilfully submitted that the reference to accepted profile must be new information and that therefore the Authority had failed to comply with s 473DE of the Act. The Authority twice referred to accepted profile and the Authority’s reasons refer to accepting the background education of the applicant. The Authority did not take into account new information by referring to the making of a finding referable to the applicant’s background.

2. The Authority’s reasons are to be read as a whole without a keen eye for error. There was no failure by the Authority to comply with s 473DE of the Act as there was no new information that the Authority took into account by reason of referring to the applicant’s educational background by the words accepted profile. There is no basis to suggest that the Authority was taking into account some other matter not the subject of evidence before the Authority in referring to the accepted profile. The other reference to accepted profile in paragraph 53 makes clear that the Authority was not referring to some unidentified standard but was rather referring to findings that the Authority had made in relation to considering the applicant’s claims and evidence. No jurisdictional error as alleged in ground 3 is made out.

3. For these reasons, the amended application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  29 January 2018