BRD17 v Minister for Immigration

[2018] FCCA 2525

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2525

Catchwords:
MIGRATION – Application for review of decision of Immigration Assessment Authority – where IAA had no obligation to assess other claims not made by the Applicant – where IAA expressly considered claims on a cumulative basis –no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J(a) – (c), 362(a), 476

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

Applicant: BRD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 345 of 2017

Judgment of: Judge Egan

Hearing date: 3 September 2018

Date of Last Submission: 3 September 2018

Delivered at: Brisbane

Delivered on: 3 September 2018

REPRESENTATION

Counsel for the Applicant: Mr L Burrow

Solicitors for the Applicant: Arc Migration

Counsel for the First Respondent: Ms S Forder

Solicitors for the First Respondent:	MinterEllison Lawyers
Second Respondent:	Submitting appearance

THE COURT ORDERS ON A FINAL BASIS:

1. That the Amended Application filed on 15 December 2017 for review be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of seven thousand, three hundred and twenty-eight dollars ($7,328.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 345 of 2017

BRD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who travelled to Australia by boat from Indonesia.  The applicant filed an application on 19 April 2017 for review of a decision of the Immigration Assessment Authority (“IAA”) handed down on 24 March 2017.  That decision refused an application by the applicant for a temporary protection visa.

2. The applicant filed an amended application for review on 14 December 2017 pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”). The applicant’s case as succinctly put by his counsel, Mr Burrow, was that the IAA had not given appropriate consideration to the cumulative impact of issues raised by the applicant as set out in paragraph 7 of the applicant’s submissions.

3. It is conceded by the applicant’s counsel that there is no issue relating to any refusal on the part of the IAA to receive any new information in the matter.  Essentially, what the applicant alleges is that though the IAA considered singly issues which might on the applicant’s case have constituted a basis for the applicant’s being subjected to serious harm or suffering serious harm if he was returned to Iran (allegations which were rejected by the IAA) the IAA nevertheless had an obligation to cumulatively address all such issues with a view to assessing whether, when all considered together, they ought to have given rise to a fear that the applicant would suffer serious harm if so returned. 

4. It is clear that the IAA considered the applicant’s claim that he had once been harassed as a result of wearing bright coloured clothing, the IAA at page 306, [16] of the Court Book finding that such was an isolated incident.  The IAA also, at page 306 [17] of the Court Book, found that should the applicant return to Iran and continue to wear brightly coloured clothing, he may be subjected to low level harassment or minor isolated incidents as a result of his doing so, but it also found that such incidents would not amount to serious harm.

5. The IAA was not satisfied that the applicant would wear non-conformist clothing out of a fear of being harmed. In any event, the IAA found that even if he did, such behaviour modification would not conflict with his identity or conscience, or require him to conceal an innate or immutable characteristic, or otherwise be a modification specified under paragraphs 5J(a) – (c) of the Act. The IAA was satisfied that any such behaviour modification would be reasonable.

6. The IAA considered the issue raised by the applicant about him having offended a customer in a retail food shop by vocally expressing dissatisfaction with a television program.  The IAA was prepared to find that the incident did take place, but did not accept that the customer was the same man who had threatened him about his wearing a brightly coloured shirt, or that the incident came to the attention of the Sepah (the policing authority), finding as it did that such claims were implausible.

7. At page 307, [21] of the Court Book, the IAA found that the appellant had embellished his story and did not accept that he was being sought by the Sepah at [22] of the reasons. 

8. The IAA considered the applicant’s claim that his father was interrogated because of the Sepah’s interest in the applicant, but it did not accept that the applicant was wanted by the Sepah, or that the father had been interrogated on that basis (see page [24], page 308 of the Court Book).

9. The IAA did not accept that the applicant’s father was involved in any altercations or was interrogated by the Sepah.  However, even if the IAA intended to convey in its reasons that it accepted that the applicant’s father had been interrogated by someone other than the Sepah, then the applicant’s contention should also fail because the allegation concerning the father’s interrogation was only relevant to the applicant’s protection claims to the extent that the applicant claimed to have been of adverse interest to the Sepah as a result of the incident at the shop concerning the transcript program (see [11] and [19] – [22] inclusive of the reasons).

10. The IAA did not accept that the applicant was of adverse interest to the Sepah as a result of the interest at the retail food shop, and therefore, did not accept that the Sepah interrogated the applicant’s father, because it did not accept that the applicant had ever been of adverse interest to the Sepah.  The IAA had therefore considered, but rejected, the applicant’s claims as made, doing so based on reasons which were reasonably open to it.  Having done so, the IAA was under no obligation to consider other claims not made by the applicant (see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89).

11. The IAA considered the applicant’s claims concerning his social media usage in Australia, and had regard to posts made by him and which were provided to the delegate (see page 308, [25] of the Court Book).  The IAA noted that the applicant had claimed that he had made a post about the Iranian Intelligence Agency but that he had not provided a copy of any such alleged post.  The IAA found it implausible that the applicant would post such a politically charged article in the light of his other social media usage, and found it illogical that, if that was true, he would not have provided any such screenshots or other posts of a similar character to the delegate.

12. The IAA found that the applicant had provided such information to strengthen his protection claims (see pages 309 – 310, [28] of the Court Book). The IAA was not satisfied that the applicant would continue to post anything other than general comments on social media due to a lack of commitment to being anti-Islamic or anti-regime, as it so found at its reasons in [29]. It did not accept that the applicant had a profile of being a political activist or dissident, or that he was of any adverse interest on the basis of his Facebook posts. The IAA did not accept that the applicant would face a real chance of harm on the basis of his Facebook posts or activities if returned to Iran at the present time or in the reasonably foreseeable future (see reasons at [30]).

13. The IAA considered the applicant’s claim that his cousin had been arrested for listening to pop music, but was not satisfied that such had occurred.  The IAA was also satisfied that if the applicant was to engage in listening to western music or drinking alcohol in Iran, he would face a low risk of being targeted, but was not satisfied that he would face serious harm as a result of doing so (see [32]-[34] inclusive).

14. The IAA considered the applicant’s claims to fear harm as an apostate but was not satisfied that the applicant would be vocal about his rejection of Islam in Iran.  It did so on the basis, not of the applicant fearing harm if he did so, but rather due to the applicant lacking a commitment or genuine interest in doing so.  The IAA was, therefore, not satisfied that there was a real chance that the applicant would face any harm upon return on the basis of his religion or anti-Islam beliefs (see reasons at [38]).

15. Further, the IAA, whilst accepting that the applicant had departed Iran legally, using a genuine passport, was not satisfied that the applicant had a profile of any real interest to the Iranian authorities, or that he had been placed on a blacklist.  It was not satisfied, therefore, that he would face any harm in Iran because he had sought asylum in Australia (see reasons at [41]).  When assessing the contention that the IAA had not addressed its attention to the cumulative impact of each of the issues raised separately by the applicant, but which were subsequently rejected by the IAA, it can be seen, however, that the IAA did expressly consider the cumulative claim as made. 

16. At page 312 of the Court Book, the IAA began its consideration in that regard under the heading “Returning Asylum Seeker”.  Paragraph [41] of the reasons specifically dealt with the cumulative impact upon the applicant of each of his claims as follows:

    The applicant has claimed that as a result of his actions and his departure from Iran, he has come to the attention of the Iranian authorities and placed on their ‘blacklist’. Considering the applicant’s claims both individually and cumulatively, I have found the applicant does not have a profile that is of interest to the Basij/Etelaat/Iranian authorities or been placed on a ‘blacklist’. On the country information cited, I am not satisfied the applicant will face any harm upon return to Iran on the basis of seeking asylum in Australia, or for his extended stay in a western country. I am not satisfied there is a real chance of serious harm on this basis now or in the reasonably foreseeable future.

17. The IAA has expressly considered the claims on a cumulative basis and has rejected them. It is not for this Court to conduct a merits review of why the IAA rejected them but, rather, to assess whether there has been any jurisdictional error committed by the IAA in its consideration of the respective claims. The IAA considered that the applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act, nor that the applicant met the requirements of section 36(2)(a) of the Act.

18. In all of the circumstances, therefore, the contention advanced on behalf of the applicant that the IAA fell into jurisdictional error by failing to consider the cumulative effect of each of the applicant’s claims is without substance.  The application for review is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 25 September 2018