BRN19 v Minister for Immigration

[2020] FCCA 311

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRN19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 311

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) of decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal denied applicant fair hearing – no jurisdictional error found.

Legislation:

1951 Convention Relating to the Status of Refugees, Art.1A(2)

1967 Protocol Relating to the Status of Refugees

Migration Act 1958 (Cth), ss.36(2)(aa), 45AA, 476

Migration Regulations 1994 (Cth), reg.2.08F

Applicant: BRN19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 994 of 2019

Judgment of: Judge Manousaridis

Hearing date: 11 February 2020

Date of Last Submission: 11 February 2020

Delivered at: Sydney

Delivered on: 19 February 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Counsel for the First Respondent: Ms N Laing

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 994 of 2019

BRN19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Iran, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Class XD) visa (Protection visa).[1]

   [1] The applicant in fact applied for a Protection (Class XA) visa on 12 September 2013. Because of s.45AA of the Migration Act 1958 (Cth) and reg.2.08F of the Migration Regulations 1994 (Cth), that application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa, and never to have been, a valid application for a Protection (Class XA) visa.

Claims for protection

1. The applicant stated his claims for protection in a statutory declaration made on 26 August 2013 that accompanied his application for a Protection visa. The claims he there made were as follows: [2]

   [2] CB81-84

   a)The applicant was born a Shia Muslim, but he does not believe in Islam.

   b)While the applicant was “in NIDC”, some of the applicant’s friends were attending a Protestant church, and converted to Christianity. The applicant started to attend church with his friends because they seemed very happy with their new religion. After a few visits, “Father” gave the applicant a Bible in Farsi. The applicant really liked Christianity, and he began to seriously consider changing his religion.

   c)The applicant was arrested in Basij for drinking alcohol a few times. On each occasion he was bailed by relatives who are public servants.

   d)Approximately three years before he made his statutory declaration the applicant got a tattoo of an angel on his back. The applicant knew that it was illegal to obtain a tattoo, but he obtained one anyway because he did not think having a tattoo should be an offence.

   e)Approximately two years before he made his statutory declaration, the applicant was in a relationship with a girl. It is illegal in Iran to form a relationship with a girl before marriage. One day, while sitting together at a park, the Basij took the applicant and his girlfriend to the police station when they became aware they were not siblings. The Basij beat the applicant when he resisted, and required the families of the applicant and his girlfriend to come to the police station. The applicant and his girlfriend were forced to sign an undertaking that they would not repeat their behaviour. The applicant and his girlfriend continued to see each other, but they had to be extremely careful, and were under a lot of stress not to be caught again.

   f)The applicant first fled Iran in October 2013 because he was being arrested for things he believed should not be offences; and because he was frustrated with the Iranian government. He did not express these opinions because there is no freedom of expression in Iran.

   g)The applicant went to Thailand and his people smuggler sent him to the United Kingdom. The applicant entered Serbia on a false Romanian passport, but “they realised” the applicant’s passport was not genuine. The applicant was deported to Turkey, then to Malaysia, and, finally, to Iran. When he arrived at the Imam Khomeini Airport “they confiscated” the applicant’s passport, and said the applicant could not leave Iran for a year. After being interrogated the applicant was forced to sign an undertaking that he would not leave Iran again “like this”.

   h)About three months before he came to Australia, the applicant and his brother were at the applicant’s friend’s house watching a movie when the police raided the house. The police were after a Mr A, who was another friend of the applicant, and who was also at the house, because he was “involved in fighting”. About 15 police entered the apartment. They had guns and shot once at the ceiling. The police “beat us”, and tied their hands with their shoelaces. The police took the applicant, his brother, and his two friends to the Etalat office and beat them again. The applicant, his brother, and the applicant’s friends were detained for nine days, during which they were transferred back and forth from places.

   i)On the day “the new penal code was proposed”, the applicant, his brother, and the applicant’s two friends were taken, in handcuffs, to a street in public. They were there made to walk in front of a number of people, like criminals. “They” took the applicant’s shirt and showed the public his tattoo. “They” announced the applicant was “Arazelobash”, and “they” took the applicant and the others to a suburb where they were made to walk in front of the public again. There was a large crowd and a group of journalists who videotaped and photographed the applicant and the others.

   j)The next day the applicant was transferred to a prison; and, on the following day, the applicant was granted bail when his friend “brought his business registration to the court”. The applicant was charged with “Hoodlums (un-Islamic behaviour)”. The applicant left Iran soon after he had been released. The applicant used his brother’s passport because his passport had been confiscated.

   k)The applicant fears returning to Iran because he will definitely be imprisoned because he left the country illegally using his brother’s passport, and he did not keep his undertaking not to leave Iran. The applicant also fears he would be targeted by Iranian authorities because of his “un-Islamic behaviour”, claiming that the authorities “view young boys like me to be Arazelobash, and assume that we are criminals even if I have never done anything bad”.

Tribunal’s reasons

1. The Tribunal did not find the applicant to be “a reliable, credible or truthful witness”, and that he “fabricated his entire claim in order to be granted a protection visa”.[3] The Tribunal did not accept the applicant was ever arrested, together with his brother and two friends. The Tribunal relied on the following matters:

   a)Before the Tribunal the applicant said that Mr A had stabbed someone, which is the reason the police were after him.[4] The applicant told the Tribunal he knew the police were after Mr A because of the stabbing, that during the time Mr A was on the run the applicant and his brother caught up with Mr A three times, twice before at the applicant’s family’s house.[5] The Tribunal was not satisfied the applicant’s family would twice house a fugitive wanted over a stabbing.[6]

   b)Before the Tribunal the applicant said that when the police raided the house they found a knife, alcohol, and marijuana.[7] The Tribunal found it “even more implausible” that “the applicant, his brother and another friend would be with the fugitive in a house in which was contained a knife, hashish/marijuana and alcohol given the risks associated with possessing any, let alone all of these items”.[8]

   c)Before the Tribunal the applicant said that the police were able to find out about the location of Mr A by using a girl they had found during their investigations to lure the applicant’s fugitive friend into revealing his location; but the applicant made no such claim in his statutory declaration.[9]

   d)The applicant gave inconsistent evidence about his court case for which he claimed to have been bailed. In his statutory declaration the applicant claimed he was charged with “Hoodlums (un-Islamic behaviour)”, but before the Tribunal the applicant said he was not sure about any charges, but if there were they would have been based on the knife, alcohol, and hashish.[10]

   e)The Tribunal found the applicant’s evidence that he did not know whether he had been tried in absentia lacked credibility because country information indicates that trials in absentia are common in Iran.[11]

   [3] CB185, [52]

   [4] CB180, [16]

   [5] CB180, [17]

   [6] CB185, [53]

   [7] CB181, [22]

   [8] CB185, [54]

   [9] CB185, [54], [55]

   [10] CB185, [56]

   [11] CB185-186, [57]

2. The Tribunal also did not accept the applicant travelled to Thailand, and then variously to Malaysia, Turkey, and Serbia with a Romanian passport on his way to the United Kingdom using a people smuggler, and that he was detained, sent back, and eventually deported to Iran where his passport was taken away from him.[12] The Tribunal relied on this part of the applicant’s claims being based entirely on his oral testimony which the Tribunal found to be lacking in credibility. The Tribunal also relied on the applicant’s not having attempted to cross the border into Turkey or Armenia through an easy land route and apply there for asylum; nor did the applicant apply for asylum while travelling through or detained in Turkey or Serbia.[13] The Tribunal found that the applicant’s aims of reaching the United Kingdom or Australia without applying for protection in countries along the way where it was open to him to do so appeared to be consistent with someone who is looking for economic advancement rather than the first place of safety open to that person.[14]

   [12] CB186, [60]

   [13] CB186, [61]

   [14] CB186, [61]

3. The Tribunal accepted the applicant has a tattoo, but it was not satisfied there is a real chance the applicant would suffer persecution for having a tattoo.[15] The Tribunal relied on the tattoo not being visible to the Tribunal when looking at the applicant via the audio visual link, and country information that indicates Iranian authorities are unlikely to target someone for having a tattoo, although country information showed that those with visible tattoos may experience low-level harassment.[16]

   [15] CB187, [66]

   [16] CB187, [65]

4. The Tribunal was not satisfied the applicant would be persecuted because he could not wear short sleeves, or short pants, or use hair gel because these were considered Western behaviour, that he would be punished by the death penalty if he changed his religion, and harmed because of his lack of religion and because of his imputed political opinion. [17] The Tribunal relied on the following matters:

   a)The applicant did not raise any of those issues at the hearing before the Tribunal.[18]

   b)Country information indicates it is highly unlikely that people would come to the attention of Iranian authorities for having Western hairstyles or using gel.[19]

   c)The applicant provided no country information to support the claim he would be unable to wear short sleeves in Iran; and the claim was inconsistent with the Tribunal member’s experiences in Iran.[20]

   d)The applicant made no claim he had converted to another faith; and the Tribunal did not accept he would be perceived to have done so. Further, although the applicant mentioned in his statutory declaration that he was somewhat attracted to Christianity and planned on attending church in Sydney, the applicant did not claim he had any interest in another faith, or that he has attended church.[21]

   [17] CB187, [67]

   [18] CB187, [68]

   [19] CB187, [68]

   [20] CB187, [68]

   [21] CB187, [69]

5. The Tribunal accepted the applicant is a non-observant Muslim, but it did not accept there is a real chance he will face serious harm in the reasonably foreseeable future because of it. The Tribunal relied on country information that indicates Iranian authorities do not normally interfere in the private religious lives of its citizens, and that there are low levels of mosque attendance amongst the general Iranian population.[22]

   [22] CB187, [70]

6. The Tribunal also did not accept the applicant would be harmed because of any actual or imputed political opinion. The Tribunal noted that although the applicant made such claim in his application for a protection visa, the applicant provided no evidence to support such claim. The Tribunal also noted that in a post-hearing submission the applicant’s adviser attempted to link the applicant’s claimed “un-Islamic behaviour” as the basis of imputed political opinion. The Tribunal, however, was not satisfied such link could be made, given the findings it had made.[23]

   [23] CB187, [71], [72]

7. The Tribunal did not accept the applicant would be arrested and imprisoned because he had applied for asylum in Australia because country information indicates Iranian authorities have little interest in prosecuting failed asylum seekers, and the “IOM” (that is, the International Organisation for Migration) has a program it runs with Iranian authorities to assist voluntary returnees to Iran.[24]

   [24] CB188, [73]

8. The Tribunal also did not accept the applicant had been detained and beaten for drinking alcohol. The Tribunal relied on this part of the applicant’s claim being based entirely on the applicant’s testimony which the Tribunal found not to be credible, the absence of country information that would support such claim, and country information that indicates that alcohol is widely available in Iran, although illegally, but the authorities do not actively seek to investigate or entrap people consuming alcohol.[25] Nor did the Tribunal accept the applicant was detained for sitting with his girlfriend in a park, resisted and beaten because this claim was based on the applicant’s testimony which the Tribunal did not find credible.[26]

   [25] CB188, [74]

   [26] CB188, [75]

9. Having made these findings, the Tribunal found the applicant did not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.[27]

   [27] CB188, [77]. “Convention reason” is a reference to the reasons identified in the definition of “refugee” contained in Art.1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

10. The Tribunal then considered the applicant’s claims under the complementary protection criterion provided for by s.36(2)(aa) of the Act. Here the Tribunal considered the applicant’s claim that he had left Iran illegally. The Tribunal did not accept that the applicant left Iran illegally on his brother’s passport. Relying on this finding, and the findings it made when considering the applicant’s claims based on his having a well-founded fear of persecution, the Tribunal concluded it did not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of the claims he made.[28]

    [28] CB188-189, [80]

Grounds of application

1. The application contains the following three grounds:

   1.The Administrative Appeals Tribunal failed to properly consider all of my claims.

   2.The Administrative Appeals Tribunal denied me procedural fairness because they did not give me a fair hearing.

   3.The Administrative Appeals Tribunal did not give me an opportunity to comment on an issue in dispute.

2. At the hearing before me the applicant appeared without legal representation, although he was assisted by an interpreter. After I explained to the applicant the purpose of the hearing, and the procedure that would be followed, I invited the applicant to tell me why the Court should set aside the Tribunal’s decision. The applicant said he had said everything he wanted to say, by which I understood the applicant to say he had nothing further to add to the material he had filed with the Court. The applicant, however, referred to his lawyer having advised him that the Tribunal had refused his application and that he had 32 days to appeal. After questioning the applicant about what he intended to mean by that, I satisfied myself the applicant intended to refer to advice he received from his representative after the Tribunal made its decision affirming the delegate’s decision. I informed the applicant that he had filed an application with this Court in relation to the Tribunal’s decision.

3. I then asked the interpreter to interpret the grounds of application, and I asked the applicant whether he wished to say anything in relation to each of those grounds.

Ground 1

1. After ground 1 was interpreted, the applicant said his lawyer had completed the application and he could not explain them. The applicant, therefore, was unable to say which of his claims the Tribunal failed to consider or consider properly, or the reasons on which the applicant relied for so claiming. Given that ground 1 does not identify these matters, it discloses no jurisdictional error and, for that reason, fails.

Ground 2

1. After ground 2 was interpreted, the applicant said he did not have a hearing before the Tribunal. I understood the applicant to say he could not remember whether he appeared before the Tribunal.

2. I drew the applicant’s attention to the document headed “MRD Hearing Record” which indicates there was a hearing before the Tribunal on 27 February 2019.[29] The document records a commencement time of 1:48 pm, but it does not record the time the hearing concluded. There is handwriting which suggests the hearing was conducted by video. I also drew the applicant’s attention to paragraphs 15 to 43 of the Tribunal’s reasons for decision, and informed the applicant this part of the Tribunal’s reasons referred to questions the Tribunal asked of the applicant, and evidence the applicant had given. Further, while counsel for the Minister was making her submissions, I was referred to communications from the applicant’s representative to the Tribunal which suggested the applicant did have a hearing before the Tribunal.[30]

   [29] CB155-159

   [30] CB159, CB162

3. I am satisfied on the evidence before me, and which I drew to the applicant’s attention at the hearing, that the applicant did attend a hearing before the Tribunal on 27 February 2019. That is so even though the Tribunal in its reasons states that the hearing occurred on 27 March 2019.[31] That is an error. In two communications to the Tribunal, the applicant’s representative referred to “the hearing” “on the” or “held on the” 27 February 2019.

   [31] CB179, [4]

4. Ground 2, as stated, identifies no facts or matters on the basis of which the applicant relies for claiming he was denied procedural fairness, and was denied a fair hearing. Given the applicant did appear before the Tribunal, and the applicant has not identified any fact or matter in support of his claim that the Tribunal denied the applicant procedural fairness, or that the Tribunal did not give the applicant a fair hearing, ground 2 must fail.

Ground 3

1. After ground 3 was interpreted, the applicant said he could not say anything about this ground because he did not attend the hearing before the Tribunal. I have already found the applicant attended a hearing before the Tribunal on 27 February 2019. Ground 3 otherwise does not identify the facts and matters on which it relies for claiming the Tribunal did not give the applicant an opportunity to comment on an issue in dispute. In particular, it does not identify the issue or issues on which the applicant claims the Tribunal failed to give the applicant an opportunity to comment. For that reason alone, ground 3 fails. In any event, the evidence shows the applicant was given an opportunity to comment on issues; and the applicant took advantage of this opportunity by his representative providing to the Tribunal a post hearing submission.[32]

   [32] CB162

Conclusion

1. None of the grounds or contentions on which the applicant relies discloses any jurisdictional error. I propose, therefore, to order that the application be dismissed.

2. I will consider the question of costs when I pronounce my order dismissing the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  19 February 2020