Bja17 v Minister for Immigration and Border Protection
[2018] FCA 1355
•6 September 2018
FEDERAL COURT OF AUSTRALIA
BJA17 v Minister for Immigration and Border Protection [2018] FCA 1355
Appeal from: BJA17 v Minister for Immigration & Anor [2017] FCCA 3074 File number: NSD 2216 of 2017 Judge: GLEESON J Date of judgment: 6 September 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia decision to dismiss application for review of decision of Immigration Assessment Authority to deny appellant visa – no appellable error identified – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5J(6), 473DE Cases cited: BJA17 v Minister for Immigration & Anor [2017] FCCA 3074 Date of hearing: 1 June 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: MinterEllison ORDERS
NSD 2216 of 2017 BETWEEN: BJA17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
6 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
This is an appeal from a decision of the Federal Circuit Court of Australia (“FCCA”) made on 8 December 2017, which dismissed an application for judicial review of a decision of the second respondent (“IAA”) dated 27 February 2017: BJA17 v Minister for Immigration & Anor [2017] FCCA 3074. The IAA had affirmed a decision of a delegate of the first respondent (“Minister”) refusing to grant the appellant a Safe Haven Enterprise (subclass 790) visa (“SHEV”).
The notice of appeal repeats as grounds of appeal the matters raised as grounds of review in the FCCA. The four grounds are:
(1)The decision of the IAA is irrational and or arbitrary and or illogical and or unreasonable.
(2)The IAA took into account an irrelevant consideration.
(3)The IAA failed to comply with s 473DE of the Migration Act 1958 (Cth) (“Act”).
(4)There is an apprehension of bias or actual bias (on the part of the IAA).
In effect, the notice of appeal contends that the FCCA judge erred by failing to accept the four grounds of review in the FCCA.
The appellant did not file written submissions in support of his appeal. At the hearing of the appeal, he made oral submissions with the assistance of a Persian interpreter, described below.
BACKGROUND
The Minister’s submissions identified the following background to the appeal.
The appellant is a citizen of Iran who arrived at Christmas Island on 18 July 2013 as an unauthorised maritime arrival. On 4 August 2013, he participated in an irregular maritime arrival and induction interview. In the interview the appellant claimed that he had studied in Malaysia, but when he returned to Iran he could not continue with his studies because the Iranian Ministry of Higher Education would not approve the transfer of his degree from the relevant Malaysian institution. The appellant denied in the interview that he or any members of his family had been associated or involved with any political group or organisation. However the appellant confirmed he had been involved in a protest in 2009 in front of a United Nations building and the Iranian embassy in Malaysia (“Malaysian protests”).
On 2 August 2016, the appellant was invited to make an application for a SHEV. On 25 August 2016, the appellant applied for a SHEV. The appellant stated in the SHEV application that the reason he sought protection was because he could not continue with his studies in Iran, and because of his involvement in the Malaysian protests.
On 7 October 2016, the appellant was invited to attend an interview with a delegate of the Minister. At this interview, the appellant developed his claims that he studied in Malaysia from 2007-2010, and that he participated in the Malaysian protests. The appellant raised additional claims that, approximately six to eight months after returning home to Tehran after completing his studies in Malaysia, he was intercepted by a man on a motorcycle, whom he understood worked for the Basij (an Iranian militia organisation), and that he followed the man to a mosque where he was led downstairs to a room and questioned and threatened by two men. The appellant also for the first time made claims that he was exploring and in the process of learning about Christianity.
On 8 November 2016, the delegate refused to grant the appellant a SHEV.
IAA’S DECISION
On 27 February 2017, the IAA affirmed the delegate’s decision not to grant the appellant a protection visa.
The IAA summarised the appellant’s claims as follows:
ŸIn 2009, following the Iranian presidential election, the applicant attended demonstrations in Malaysia in front of the office of the United Nations and the Iranian Embassy while he was studying for a bachelor degree in Malaysia. This is because after the election, they found out that there was fraud in the election. He was not arrested or detained because of this.
ŸIn July 2010, after his graduation in Malaysia, he returned to Iran and lived for three years. He could not continue on with his study because the Ministry of Higher Education would not approve to transfer his degree that he obtained in Malaysia.
ŸAround six to eight months after he returned to Iran, in around January to March 2011, he received a threat from the militia. He was driving; a motorcyclist came and told him to go towards a mosque. They went to the basement of the mosque, he was questioned, and was told that they have a record of his involvement in the protests in Malaysia and were controlling his internet communications and his comings and goings.
ŸHe was not physically harmed.
ŸOn 27 June 2013, he left Iran.
ŸHe has been attending church in Australia and has converted to Christianity.
ŸOn 4 December 2016, he was baptised.
ŸHe fears that if he returns to Iran, the Islamic Republic agency will confront him and treat him badly. He fears harm from the militias, the Sepah and the Basij on the bases of his involvement in the demonstrations in Malaysia, his political opinion, and his conversion to Christianity.
The IAA did not accept the appellant’s claim that he required protection because of his education. At para 14 of the IAA’s decision record, the IAA recorded that the appellant had given evidence at his SHEV interview there was a change in Iran such that his degree from Malaysia was recognised in May 2013. Accordingly, the IAA found (at para 15 of the IAA’s decision record) that the applicant was no longer prevented from his study in Iran for the reason that the Iranian Ministry of Higher Education would not approve the transfer of his degree from Malaysia.
At para 16 of its decision record, the IAA accepted that the appellant had participated in demonstrations in 2009 in Malaysia. However, at para 17 it did not accept that in 2011 the appellant was threatened in Iran or was of interest to the militias or the authorities, including the Basij, because of his involvement in these demonstrations. As explained at paras 20-25 of its decision record, the reason the IAA did not accept this claim was that he had failed to mention it in his arrival interview or in his SHEV application. Further, at para 26 of its decision record, the IAA found it implausible that the appellant would have followed instructions from an unknown motorcyclist, driven to a mosque, stopped his car and followed two strangers into the basement of the mosque. At para 27 of its decision record, the IAA also found it highly implausible that the militias or authorities would have waited until the beginning of 2011 to approach the appellant.
At paras 29-31 of its decision record, the IAA found the appellant’s evidence at the SHEV interview that he was in hiding and locked up in his room to be inconsistent with other evidence that he worked at Mehr Saz Gostar as a commercial manager in Tehran from mid-2010 to 2013, and that he had travelled to Malaysia for a holiday in 2011.
At paras 45 and 46 of its decision record, the IAA rejected the appellant’s account of the 2011 incident and did not accept that it had occurred. Further, the IAA was not satisfied that the appellant was of adverse 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.
At paras 56 and following of its decision record, the IAA considered the appellant’s claims in relation to religious beliefs. The IAA noted that the appellant had stated, at his SHEV interview, that there was a high chance that he would convert to Christianity, and that he was studying aspects of Christianity at that time. The IAA noted that this was the first time that the appellant had mentioned an interest or involvement in Christianity, having not mentioned it at his arrival interview or in his SHEV application. The IAA recorded statements made at the SHEV interview by the appellant concerning Christianity, including that he did not want to claim that he knew everything about Christ and that he was just studying and asking questions, and doing his research and that, if he accepted that, he would try to convert. The IAA recorded the appellant’s answer to a question regarding his view on how Christianity differed from Islam. The IAA then recorded:
64.In the IAA submissions dated 15th and 16th November 2016, the applicant stated that he has a ‘profound willingness to accept Christianity faith’; he is interested in reading about it; he has accepted this religion with his personal desire, and he was not under pressure. He repeated his claims that his parents never forced him to practise the Islamic faith, at 15 years old, he left the Muslim practice as he [sic] their views made no sense to him, and he watched Christian movies as a teenager, he attended St. Ignatius church in Toowong, Brisbane, a few times, acquired and read bible. The applicant also stated that ‘while I have not yet committed to a Church community (as my future is still quite unsettled) I have decided and would be keen to get baptised (even though this act is not agreed on in all churches) if possible as well...’, and that ‘I have a sincere desire to make this conversion as soon as possible with friends at a church after proper discussion and as my English improves.’
65.On 5 December 2016, the applicant provided a video clip and his baptism certificate issued by the Liberty Baptist Church in NSW to the IAA. I accept on the basis of a copy of the applicant’s baptism certificate dated 4 December 2016 and the video showing his baptism that the applicant was baptised by full immersion in Australia.
At para 66, the IAA concluded that it was not satisfied that the appellant had a genuine interest or commitment in Christianity on a personal level. At paras 67-72 of its decision record the IAA gave the following reasons for this conclusion:
67.The applicant’s parents were not very religious, and had never forced the applicant to practise the Islamic faith. On the applicant’s evidence, he came to realise that Islam was not his religion and stopped practising Islam completely when he was 15, he was interested in watching Christian movies as a teenager and studied a bit in Iran. He has not claimed to have participated in Christian related activities in Iran, and he was about 38 at the SHEV interview.
68.The applicant made no mention about his claimed interest in Christianity until at the SHEV interview in 2016, some three years since his arrival in Australia. There is no credible evidence to suggest that he has attended or participated in church activities in Australia prior to this, where he has the freedom to do so.
69. The applicant’s evidence at the SHEV interview in late October 2016 was that he had only attended church three times in Brisbane and was still learning and if he accepts Christianity, he will try to convert. However, about a week after the delegate’s decision of 8 November 2016 to refuse to grant the applicant a SHEV visa, the applicant claimed in his IAA 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. And then on 4 December 2006, within three weeks’, the applicant was baptised in NSW, shortly after he moved from Brisbane to NSW.
70.I accept that it is possible for someone to genuinely convert to Christianity in a short period of time. However, the timing in which the applicant raised this claim; and the timing and speed of the applicant’s decision to convert, when views in the context of the applicant’s background and particular circumstances, brings into question of the motivation of the applicant’s decision to convert and obtain baptism.
71.Considering the applicant’s evidence, his age, family background, his accepted profile, the timing and the 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.
72.While I do not accept that the applicant has a genuine interest or commitment to Christianity, I am prepared to accept that the applicant’s neighbours in Brisbane were church members, the applicant came from a family that was not strictly Muslim, he attended English classes ran by the church and that the applicant, through his neighbours, may have had some curiosity about Christianity.
At para 73 of its decision record, the IAA concluded that the appellant had been baptised for the sole purpose of strengthening his refugee claim and, consequently, that the IAA was required to disregard this conduct pursuant to s 5J(6) of the Act.
At para 74, the IAA stated:
The evidence before me does not suggest, and I am not satisfied, that the applicant’s religious conduct in Australia, have, or may have come to the attention of the authorities, the militias or anyone in Iran. The applicant has not claimed and I am 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. Moreover, country information indicates that generally, the mere fact of conversion would be insufficient to attract official attention in Iran.
At para 75 of its decision record, the IAA found that it was not satisfied that the appellant faced a real chance of harm by the Basij, the Sepah, the police, the regime, the militias, or anyone, on the bases of his religious conduct or perceived religious conduct or beliefs, now or in the reasonably foreseeable future.
FCCA’S DECISION
As noted above, the appellant relied on four grounds of review in the FCCA, namely:
(1)The decision of the IAA is irrational and or arbitrary and or illogical and or unreasonable.
(2)The IAA took into account an irrelevant consideration.
(3)The IAA failed to comply with s 473DE of the Act.
(4)There is an apprehension of bias or actual bias (on the part of the IAA).
As appears from the particulars of the grounds of review, set out in the amended application to the FCCA at [35] of the FCCA judge’s reasons, all of the grounds relate to the IAA’s finding that the appellant was not a genuine convert to Christianity.
The lawyer who appeared for the appellant in the FCCA noted that grounds 1, 2 and 4 were interrelated. As recorded by the FCCA judge at [36] of his Honour’s reasons, the substance of the appellant’s argument was that the IAA had adopted the position of being an “arbiter of faith” in determining whether the appellant’s conversion to Christianity was genuine and whether to take into account his baptism.
The particulars to ground 1 referred to para 71 of the IAA’s decision record which stated:
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.
At [37]-[39] of his Honour’s reasons, the FCCA judge rejected ground 1, finding that the IAA’s references to the appellant’s “accepted profile” and age were not demonstrative of the IAA applying a standard by which it adjudged the appellant to be a genuine Christian. The FCCA judge found that IAA’s adverse findings were open to it for the reasons given by the IAA and could not be said to lack an evident and intelligible justification; they did give rise to an apprehension of bias on the part of the IAA and the adverse finding to the effect that the appellant was not a genuine convert to Christianity could not be said to be irrational, illogical, arbitrary or unreasonable.
In the second review ground, the appellant asserted that the Authority took into account an irrelevant consideration, in particular in its reference to “[i]ts own or unexplained standard of the age of a genuine convert” and the appellant’s “accepted profile”. At [40] of his Honour’s reasons, the FCCA judge rejected the second review ground, finding:
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.
The fourth review ground alleged that the IAA’s decision was affected by actual or apprehended bias. The FCCA judge rejected this ground, saying (at [41] of his Honour’s reasons):
[F]or 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 reflected a real and genuine consideration of the submissions advanced by the appellant.
Finally, the FCCA judge considered the third review ground. By this ground, the appellant alleged that the IAA breached its obligations under s 473DE of the Act in failing to put the appellant on notice and give him an opportunity to respond as to what it considered to be his “accepted profile”.
Section 473DE(1) required the IAA to give the appellant particulars of “new information” in certain circumstances. “New information” is defined by s 473DC(1) to mean any documents or information that (a) were not before the Minister when the Minister made the decision under s 65; and (b) the IAA considers may be relevant.
At [43] of his Honour’s reasons, the FCCA judge concluded that there was no new information that the IAA took into account by reason of referring to the applicant’s educational background by the words “accepted profile”, and there was no basis to suggest that the IAA was taking into account some other matter not the subject of evidence before the IAA in referring to the “accepted profile”. Accordingly, the FCCA judge concluded that the third review ground was not made out.
APPELLANT’S SUBMISSIONS TO THIS COURT
At the hearing of the appeal, the appellant did not address the individual grounds of appeal set out in the notice of appeal. Nor did he refer to the reasons of the FCCA judge or seek to argue that the FCCA judge had made any appellable error. Nor did the appellant refer to the decision record of the IAA or seek to identify any error by the IAA.
Rather, the appellant raised a multiplicity of issues, some of which are relevant to his claims for protection and others which concerned his experiences in Australia. The appellant’s submissions were not entirely coherent. As I understood them, they were:
(1)When he was in the military service in Iran, he had signed some documents which require him to present himself at times of war. However, the appellant is against the politics of, and any war waged by, the current regime in Iran.
(2)At the interview the appellant attended in Brisbane, he never said that he was seeking asylum or wanted to stay in Australia for ever; he is a proud citizen of Iran and he would never consider becoming a citizen of Australia.
(3)The appellant cooperated with Australian immigration authorities but had tolerated insulting behaviour from one of their officers.
(4)The appellant fears that, if he enters Iranian territory, the authorities there will “bring up” classified documents relating to his military service in Iran, which would cause him severe problems. I understood the appellant to be saying that these documents had been provided to Australian immigration authorities and might have been the subject of a data breach by the Australian immigration authorities, however this point was not clearly put.
(5)The appellant has accepted Christianity because of his interest and love and not due to his fears. He is not saying that he is a genuine Christian but he has accepted this religion because of his interest and affinity. The appellant’s baptism coincided with the time that he was rejected.
(6)In Brisbane, after his visa application was rejected, the appellant was given an envelope of documents by an immigration service in “an offensive and humiliating way”. The interview that was conducted was not an interview; it was a trap. The week before the interview, the company who conducted the interview caused him problems. When he was rejected, the law said that his allowance would be stopped. The appellant has tolerated a very tortuous life in Australia. He was fined over $1,000 after losing 15 points while working as an Uber driver, which was coordinated by the company who conducted the interview.
(7)Someone tried to show that the appellant had not complied with a code of conduct he had signed.
(8)In Sydney, the appellant was told offensively that he should sign a piece of paper to do with psychology. A man who said that he was Pakistani said “you Iranians are all the same” after the appellant refused to sign the paper. After this, the appellant had numerous problems with people of Pakistani origin, including while he was driving on Parramatta Road.
(9)The appellant cannot return to Iran.
After counsel for the Minister made oral submissions, the appellant made the following additional submissions:
(1)The appellant was threatened and his face was bloodied, but when he went to the Military Road police station, the officer said “What can I do for you?”.
(2)The appellant is studying Christianity and it has nothing to do with his residency in Australia.
(3)The company who is working under contract for the Department is a fundamentalist group and an extremist group. They treat Iranians so offensively that they are better off returning to the detention centre than living in the community. They fabricate false information to damage “our citizenship”.
(4)Towards the end of 2013, the appellant was threatened and he trembled until the last moments that he left Iran. When he arrived at the airport in Malaysia, he did until it was time to take a flight to Indonesia.
(5)The way in which the appellant has been treated by Australia was not much better than the treatment that the Iranian regime has shown the Iranian people. Scott Morrison will stay in his thoughts forever.
(6)That the appellant is not stateless, not a refugee and not an asylum seeker; one day he will return to Iran, once the regime has changed.
CONSIDERATION AND CONCLUSION
From the manner in which he put his submissions to this Court, I am satisfied that the appellant did not maintain the grounds of appeal expressed in the notice of appeal. I have previously noted that those grounds of appeal were a repetition of the grounds of review before the FCCA. In any event, having considered the reasons of the FCCA judge, I am satisfied that the IAA did not make any jurisdictional error of the kind addressed by the FCCA judge.
In particular, reading the IAA’s decision record, the appellant’s “accepted profile” comprises the matters claimed by the appellant which were accepted by the IAA, it was open to the IAA to refer to that “accepted profile” in considering the appellant’s claims and the IAA’s references to his “accepted profile” do not reveal any error on the part of the IAA.
Further, while I accept that the appellant’s age taken alone was unlikely to be a matter of significance in assessing the genuineness of his conversion, in my view, it was open to the IAA to take that matter into account as one of several matters that led it to the conclusion that it was not satisfied that the appellant became a genuine Christian convert, or that he had a genuine interest or commitment to the Christian faith at an emotional level.
The appellant claims to be unable to return to Iran, although he would prefer to do that than to remain in Australia.
The appellant’s military service in Iran has not previously been identified as a reason why the appellant claims protection. The appellant’s military service history was identified in the record of his irregular maritime arrival and induction interview, and in the appellant’s SHEV application, but was not identified as part of the appellant’s reasons for claiming protection in either of those documents. Nor is it identified as a reason why the appellant claims protection in the delegate’s decision. Nor is it identified as a reason why the appellant claims protection in the IAA’s decision record. Nor did the appellant suggest that he had raised this matter on any prior occasion. In those circumstances, the matters raised by the appellant concerning his military service do not indicate any jurisdictional error by the IAA or appellable error by the FCCA judge.
Putting aside the question of the appellant’s Christianity, none of the other matters raised by the appellant before this Court was suggested to have been raised on any prior occasion and none of them indicate any jurisdictional error by the IAA or appellable error by the FCCA judge.
As to the appellant’s Christianity, the oral submissions may have implied that the IAA was wrong in failing to be satisfied that the appellant had a genuine interest in Christianity and in concluding that the appellant had been baptised for the sole purpose of strengthening his refugee claim. However, these are findings of fact that were founded on the matters set out by the IAA, quoted above. In those circumstances, the appellant’s submissions said nothing to indicate any jurisdictional error by the IAA or appellable error by the FCCA judge.
The appellant provided the Court with a bundle of documents which he asked the Court to review. These included character references, a residential tenancy agreement and several payment slips. These documents are not relevant to the appeal to this Court.
Accordingly, the appeal must be dismissed. Costs should follow the event.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 6 September 2018
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