BKY17 v Minister for Immigration

[2018] FCCA 1601

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1601

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s decision irrational, illogical or unreasonable.

Legislation:

Migration Act 1958 (Cth), s.473CA

Applicant: BKY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 297 of 2017

Judgment of: Judge Jarrett

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Brisbane

Delivered on: 19 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Burrow

Solicitors for the Applicant: Fisher Dore Lawyers

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 4 April, 2017 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 297 of 2017

BKY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a national of Iran.  He arrived in Australia by boat on 6 July, 2013.  For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.  On 24 November, 2016 the applicant applied for a Safe Haven Enterprise (subclass 790) visa.  3 January, 2017 a delegate of the first respondent the visa application.

2. Because the delegate’s decision was a fast track decision it was referred to the second respondent in accordance with s.473CA of the Act.

3. On 10 March 2017, the second respondent affirmed the delegate’s decision not to grant the applicant a safe haven enterprise visa.

4. By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application remitted to the second respondent to be determined according to law.  He argues that the second respondent’s decision was illogical, irrational and unreasonable.  The first respondent opposes the application.  The second respondent entered a submitting appearance.

5. For the purposes of his visa application, the applicant claims, as articulated in his initial application, his visa interview, his subsequent statements and the submissions made on his behalf, appear to be that:

   a)he thought that his life was being threatened due to his conversion to Christianity and the government would execute him for denouncing the Muslim religion;

   b)in 2009 he participated in protests against the result of the 2009 Iran elections (the 2009 protests/demonstrations) — the consequence of which was that he was imprisoned for 25 days and, during such time, was tortured;

   c)while in detention:

   i)he refused to pray; and

   ii)he was charged with and convicted of a capital offence namely being an enemy of the State by a Revolutionary Court.  He was either sentenced to death or the subject of the death penalty (as to which one, this was unclear on the evidence);

   d)after his conviction, his father who was a Colonel in the Sepah with a high level of influence was able to cause him to be released on bail with the requirement to report monthly to the local police.  He claimed that his father was able to procure his release on the understanding that the applicant would attend further demonstrations and provide details as to who the leaders of the demonstrations were;

   e)however, the    applicant    refused    to    provide the intelligence requested by the Court and refused to accede to his father’s wishes to practise the Islamic faith.

   f)Because he refused to practices Islam, his relationship with his father broke down.  This culminated in his father reporting to the authorities that the applicant had not obtained the requested intelligence which, in turn, saw the applicant returned to detention in late 2009;

   g)the applicant was tortured for a six week period and required hospitalisation for injuries that he had received;

   h)his father again arranged for him to be released from detention following his hospitalisation, in January, 2010;

   i)after his release in January, 2010 the applicant lived at home or with friends subject to reporting conditions;

   j)in 2011 the applicant attended on a Christian church to seek more information about Christianity. As a consequence of this, he was again detained but then released without charge;

   k)in 2012 he was charged with an offence relating to his atheism and in particular in connection with his refusal to pray while he was in detention in 2009.  The applicant did not attend Court because his father told him that he did not need to and that he would “sort things out”;

   l)in 2013 the applicant received a letter requiring him to attend Court.  This letter related to his 2009 conviction.  Upon receiving this letter, the applicant realised that if he went to Court he would not be released alive.

   m)after receiving that letter, the applicant, with his father’s assistance, fled Iran; and

   n)in 2014, after the applicant had fled Iran, he received a document that requested that he attend Court “regarding a complaint against you and not attending Court”;

   o)the applicant claimed that if he returned to Iran he would be subjected to persecution or harm by the authorities in connection with either his apostasy (either on the basis of his atheism or his imputed Christianity for attending Church once) or his political activity (that is, his involvement in the 2009 demonstrations and subsequent conviction by the Revolutionary Court).

6. The second respondent accepted that the applicant was involved in the 2009 demonstrations and that he was detained as a consequence of his participation.  The second respondent was also willing to accept the possibility of the applicant being tortured during this period of detention.  However, the second respondent did not accept any other material aspect of the applicant’s claim that he had been politically active and it was not satisfied that the Iranian authorities had an ongoing interest in the applicant on account of his political profile.  The second respondent reached this conclusion because:

   a)at the entry interviews the applicant undertook around a month after his arrival in Australia, the applicant, while mentioning his involvement in the 2009 demonstrations:

   i)did not suggest that there were any adverse consequences for him that followed on from him attending the 2009 demonstrations and did not mention any of the events outlined in paragraphs 14(c) to 14(i) above); and

   ii)did not suggest that he feared harm on account of any political activity—instead saying that his fear arose because he converted to Christianity;

   b)the applicant’s account of the events which he claimed followed his 2009 detention was highly implausible and not credible.  The second respondent considered that:

   i)if the applicant’s father had the power or influence to intervene in the way that he allegedly did, it was highly implausible that he would wait until the applicant was found guilty of a capital offence before he intervened.  Further, it was highly implausible that the applicant’s father would subsequently cause the applicant to be re-detained for refusing to provide the requested intelligence knowing that a death sentence was possibility;

   ii)it was not plausible that the applicant’s father whose relationship with the applicant had broken down in 2010 to the point that he exposed the applicant to detention, torture and execution would subsequently relent and, over the next three years, somehow “t[ake] care of” outstanding legal proceedings;

   iii)it was implausible that, on his second detention, the applicant would be severely tortured having regard to the alleged power or influence of his father;

   iv)it was implausible that, following the applicant’s second release in January, 2010 the applicant and his father would maintain a relationship of the nature the applicant professed existed given:

   1.   the fact that the applicant’s father caused his re-detention; and

   2.   the alleged torture that occurred during that time;

   c)it was implausible that the Court documents (those that were given to the delegate) the applicant had provided to the delegate in connection with the atheism charge which were dated in 2012—and included documents seeking the applicant’s arrest would be issued more than two years after the relevant events the subject of the charge with no apparent reason given by the applicant why this was so;

   d)it was implausible that there would be Court documents requiring the applicant’s detention in circumstances where the applicant was reporting to the police monthly and could have been detained at any time;

   e)the applicant had not explained how the Arrest Notice (which was addressed to a police officer and not the applicant) had come into his possession;

   f)it was difficult to understand why the letter he received in 2013 (which pertained to his 2009 conviction and was said to bring about his fear of harm), caused the applicant particular concern or why the issue pertaining to the applicant’s conviction would re-emerge at that time having regard to the fact that his father was continuing to take care of outstanding legal matters and the applicant had continued to report monthly to the police without incident;

   g)it was concerned that the applicant was not able to produce this letter critical to his claims despite being able to produce numerous other Court related documents;

   h)it was anomalous that the warning notice given to the applicant in 2014 relating to his non-attendance at Court in 2013 was issued by a criminal court and not the Revolutionary Court given that the matter related to his Revolutionary Court conviction; and

   i)it was odd that such a notice was vague in that it referred to an unspecified complaint against the applicant in circumstances where the letter received in 2013 was comprehensive in it particularity;

   j)it was implausible that the applicant’s father who he claimed was a powerful and influential member of the sepah, would risk his position and reputation to assist his son to escape from Iran if he had been convicted of a national security offence (potentially facing the death penalty) and other outstanding charges particularly having regard to the troubled relationship between the applicant and his father.

7. The second respondent accepted that the applicant was an atheist, however, it did not accept that this would result in any persecution or harm on his return to Iran.  Nor did the second respondent accept that the applicant had ever attended church or been arrested or detained as a result.

8. The second respondent also dealt with other claims and rejected them, however, they are not the subject of any ground of review in this application and so, I will not discuss them further.

Grounds of review

1. The applicant’s ground of review is in the following terms:

   The Respondent erred, such error being jurisdictional error, in that the decision was illogical, irrational and unreasonable.

   The Particular aspects of the decision which demonstrate the unreasonableness include:

   · The religious /atheist beliefs of the applicant;

   · Penalty for apostasy;

   · The treatment of the applicants conduct by the authorities;

   · The mischaracterisation of the applicants method of departure and the resultant error in characterising the applicants need for protection; and

   · The IIA’s treatment of the evidence including uncontested evidence.

2. The applicant’s submissions seek to impugn the way in which the second respondent dealt with the reliability of the applicant’s claims.  He argues that the second respondent made the findings that it did about the applicant’s credibility “Primarily because he didn’t address things in the way and in the time that he was expected to do so by the authority.”

3. One particular example focussed upon by the applicant was the way in which the second respondent approached the applicant’s failure to mention his claims about the events which followed his arrest in 2009 or the consequences of his participation in those demonstrations in his entry interviews.  The applicant argues that: 

   Similarly in attending a brief entry interview after fleeing from a repressive regime with intrusive security apparati that he did not immediately open up and banish all fear despite being told it was ‘confidential’ and essentially that the government could be trusted. Such a naïve attitude is irrational and illogical considering the regime that the Applicant has left and the absence of any evidence that could show the Applicant that the Australian government was not similar to that which he was fleeing. It was accordingly irrational and illogical to form a credibility finding based upon hesitance of an asylum seeker who is attending a short, official interview with an unknown government – to place undue weight on the absence of complete detail was unreasonable.

4. As to this matter, the second respondent said at [30] of its reasons:

   While this has become the main focus of his claims in his SHEV application, at the entry interviews he did not mention the consequences which he now claims flowed from his participation in the 2009 demonstrations as a reason for his departure from Iran. When questioned at the SHEV interview about his failure to mention at the entry interview the information which subsequently formed the basis for his claims to protection – that he feared persecution because of his political activity, that he had been repeatedly detained and tortured, that he was subject to ongoing court proceedings, and that his father was involved in all of this – he pointed out that he had indicated at the entry interview that there were things he was scared to talk about because of his father’s and brother’s roles in state security, in case he was deported. However, given that he claims that his father is completely involved in and aware of the circumstances which led to his departure, and especially given the claim that his father assisted him to leave and knows he is in Australia, I do not consider that this constitutes a satisfactory explanation. It is difficult to understand, in these circumstances, how the applicant would be prejudiced even if the information he provided was reported back to his father; and as it appears that his father’s claimed involvement in assisting the applicant was not done secretly, I cannot accept that would cause problems for the father, if that is the basis of the applicant’s claimed concern, even if that were revealed. Moreover, the applicant was informed and reassured about the confidentiality of the information he provided to the Department, and about the possible adverse consequences of not providing all information at the earliest opportunity. I consider that his failure to mention these key claims at the earliest opportunity seriously undermines their credibility.

5. I accept that there is nothing illogical or irrational about the second respondent taking an adverse view of what the applicant now contends to be one of the more significant claims he makes when the applicant did not mention those claims or critical aspects of them at his entry interviews.  Minds will differ about the weight to be given to such omissions, but in the present case, to have given that matter the weight described in the second respondent’s reasons does not make its reasoning or approach illogical or irrational.

6. I accept the first respondent’s argument that this is particularly so in this case where:

   a)the very purpose of the entry interviews was to establish any reason why the applicant should not be returned to Iran;

   b)details as to the reasons the applicant feared harm on return to Iran was apparently extensively discussed at the entry interview;

   c)the reasons the applicant proffered for not providing such information at the entry interviews was difficult to understand and, in part, implausible; and

   d)the applicant was informed and reassured by the entry interview officer about the confidentiality of the information he provided to the Minister’s department and about the possible adverse consequences of not providing all information at the earliest opportunity.

7. Additionally, I also accept the first respondent’s argument that even if the way in which the second respondent approached this issue was illogical or irrational jurisdictional error would not follow because:

   a)the finding as to the weight to be attributed to the applicant’s failure to mention the relevant matters was only a small aspect of the second respondent’s determination to reject the political activity claim; and

   b)there were many other matters identified by the second respondent that the second respondent thought negatively impacted upon the applicant’s creditworthiness when it came to his political activity claims. The second respondent identified the numerous and significant inconsistencies, implausibilities and anomalies associated with the applicant’s claims.  The applicant’s omissions in connection with his political activity claims at the entry interviews was but one of many issues the second respondent identified that it had with the applicant’s political opinion claims.

8. A fair reading of the second respondent’s reasons demonstrates that the second respondent’s concern about the timing of the political activity claims was not critical to the second respondent’s ultimate conclusion.  Whilst that matter was one concern held by the second respondent, it is apparent from [31] – [35] of the second respondent’s reasons that there were many other concerns that it held about the applicant’s claims concerning the events following the 2009 demonstrations.  By way of example, in [33] of the second respondent’s reasons, it said:

   I consider that the applicant’s account of these parallel processes not credible. I do not accept that on the one hand, his relationship with his father had broken down in 2010 such that his father had exposed him to detention, torture and execution; or that he then apparently relented and over the next three years somehow “took care of” outstanding legal proceedings against the applicant who was nonetheless regularly issued with court documents even though he was reporting monthly to the police and could have been detained at any time. I do not accept that in 2013, for reasons which are not clear, the applicant and his father formed the view that the applicant would now be imprisoned or executed if he did attend court, and that his father organised his departure. I further do not accept that a powerful and influential member of the sepah would risk his position and reputation to assist his son to escape from Iran if he had been convicted of a national security offence, apparently faced other outstanding charges, and potentially the death penalty. This is even more unlikely, in my view, given the applicant’s claims about his troubled relationship with his father.

9. The applicant contends that the second respondent was in error not to take any account of the arrest warrant for ‘acting against national security’ that the applicant gave to the first respondent.  It is clear from [17] and [32] of its reasons that the second respondent considered the documents provided by the applicant in the course of his application, including the arrest warrant.  However, the second respondent explained in [34] of its reasons why it did not give that document any weight:

   I have considered the documents submitted by the applicant in support of his claims, but there appear to be a number of anomalies which suggest that they are not genuine. As noted above, the first two documents were issued in 2012, more than two years after the events to which they purportedly relate. The December 2012 arrest notice is addressed to the chief of police at a particular police station and the applicant has not satisfactorily explained how this came into his possession. I consider that if it were a genuine document, it would have been given to the addressee, not the applicant or anyone on his behalf. Moreover, as noted at the interview, given that the applicant states that he was reporting regularly to the police at the, it would appear that he could have been taken into custody at any time without a warrant being issued authorising his arrest at his home. Overall, I have serious doubts as to the authenticity of the documents, and I do not consider that they overcome the deficiencies in the applicant’s own evidence or provide independent corroboration of his claims.

1. The applicant argues that “There is not a scintilla of a basis to reject the likelihood that this offence would have harsh penalties. That is above and beyond the known maximum penalty for apostasy of death. There is no basis upon which the authority could [not] have formed a view that the applicant’s life was at risk.  It may well be the case that he did not ultimately, or may not ultimately have received that penalty whether through leniency or through the actions of his father but there is no basis to reject the existence of the charges and the potential severity of the penalty. To reject that contention was irrational and illogical.”

2. The difficulty with this argument, however, is that the second respondent did not accept that the applicant had ever been charged with any offence arising from his religious beliefs.  It is clear from the second respondent’s reasons that it was aware that the applicant claimed that he had either been sentenced to death for his religious views or that he was liable to the death penalty, but the second respondent rejected that the applicant had ever been charged or convicted of an offence or had been made the subject of the death penalty.

3. The applicant’s final argument does not bear paraphrasing.  He argues that “In considering his father’s desire that his son not be dead it appears that it was because of that sentiment that it rejected the possibility that his father may have complied with the law though attempted to use his influence to temper any penalty for his son.  Such a contention was not apparently even considered as realistic – a matter that no rational minds would doubt as a possibility.  To do so would be to reject the proposition that his father was religious and that he had disagreements with his son and that he tried to uphold the law – unsurprising given his position in the sepah. The approach of the authority was to reject a consideration of complex human relationships – it would be no different to the existence of the dilemma of a legal representative, a judge or a police officer who’s child has committed a criminal offence. The authority did not give any consideration to that, being the most likely explanation, for the situation and one that was entirely consistent with all the evidence regarding what his father did to ameliorate the punishment and then, of necessity to help his son leave the country.  There was no evidence upon which to base a different finding regarding the father’s conduct unless the authority ignored and decided it was easier not to consider the complex relationship between the Applicant and his father.”

4. However, the second respondent’s reasons explain why it thought that the applicant’s claims were inconsistent with what he claimed were the actions of his father.  I have set out the paragraph in which the second respondent summarises those findings ([33]) above.  Whilst others might have come to a different conclusion for the reasons advanced by the applicant, that does not demonstrate illogicality or irrationality of the part of the second respondent’s reasons.

Conclusion

1. The ground of review relied upon by the applicant does not establish that eh second respondent’s decision is affected by jurisdictional error.  The application must be dismissed with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  19 June 2018