BTP16 v Minister for Immigration
[2017] FCCA 1681
•8 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTP16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1681 |
| Catchwords: MIGRATION – Protection visa – whether Tribunal failed to ask itself the correct question when considering religion based claim – whether Tribunal failed to ask itself the correct question when considering claim based on actual or imputed political opinion – no error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 414 & 476 |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | BTP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 218 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 8 February 2017 |
| Date of Last Submission: | 8 February 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 8 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Ower SC |
| Solicitors for the Applicant: | MSM Legal |
| Counsel for the Respondents: | Mr R Prince |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application dated 12 July 2016 is dismissed.
The applicant is to pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6000.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 218 of 2016
| BTP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) for the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’).
On 14 June 2016, the Tribunal affirmed an earlier decision of a delegate of the Minister, dated 15 October 2004, which refused to grant the applicant a protection visa under s.65 of the Act. By application dated 12 July 2016, the applicant has raised four grounds of review. Counsel for the applicant indicated at the hearing of this matter that ground one was not pursued. Accordingly, the matter proceeded on the following grounds:
“2.The Second Respondent fell into the jurisdictional error in failing to ask itself the correct question when considering the applicant’s claim of past harm or well-founded fear of future harm on the basis of his religion.
Particulars
2.1The Second Respondent did not consider the applicant’s fear of future harm in Iran on the basis that he was not religious, would not pray, would not attend mosque, would not fast, would not make any statements with being a Muslim, would object to living in a sexist society, would support the religious and social rights of non-Muslims and would support justice in Iran.
2.2To the extent that the Second Respondent decided on the basis of past lack of persecution that there was nothing in the Applicant’s claims fear of future persecution in Iran because of his lack of religious beliefs, the Second Respondent failed to take into account the extent to which the Applicant’s views have crystalized whilst in the West, the Applicant’s resolution to speak out against Islam on behalf of Muslims and non-Muslims.
3.The Second Respondent fell into jurisdictional error in that it asked itself the wrong question in determining that the feared future persecution on religious grounds were determined by the past conduct of the Iranian authorities.
4.The Second Respondent fell into jurisdictional error in failing to ask itself the question whether the Applicant had a well-founded fear of persecution based on his actual or imputed political beliefs in Iran.
Particulars
4.1The Second Respondent simply found at paragraph 158 of the Decision Record that in countries like Iran religion and politics are often inter-related and made a finding that the Applicant has not evidenced a well-founded fear of persecution based on his imputed political opinion.
4.2The Applicant was not asked by the Second Respondent whether his lack of religious belief constituted an actual or imputed political opinion.
4.3The Second Respondent should have concluded, given the existence of Country information in relation to Iran, that Iran is an Islamic state and that a lack of religious views would be treated as a political or imputed political opinion in Iran.”
Background
The essential background and chronology of this matter is not the subject of dispute and I have paraphrased the summary provided by the first respondent in its outline of submissions.
At the time of hearing, the applicant was a 30 year old Iranian citizen of Persian ethnicity. He arrived in Australia on 1 April 2013 as an irregular maritime arrival. His initial entry interview was conducted over two separate days on 28 May 2013 and 1 June 2013. He had the assistance of a Persian interpreter. The applicant applied for a protection visa on 29 July 2013. That application was refused on 15 October 2014, and the applicant promptly applied to the Tribunal for review. He appeared before the Tribunal to give evidence and present arguments on 22 December 2015. He had the assistance of a migration agent and a Farsi interpreter on that occasion. The Tribunal affirmed the decision of the delegate on 14 June 2016 and the applicant commenced these proceedings on 15 July 2016.
Before the Tribunal, the applicant once again advanced a claim based on his fear of harm by Iranian security and intelligence officers should he return to that country because of an adulterous affair he had conducted with the wife of an Etalleat official.[1] He claimed that the affair had been discovered, that the woman had become pregnant and been severely beaten by her husband and that in the wake of this discovery, he had fled Iran at short notice. This claim was ultimately rejected by the Tribunal which made significant findings of credit against the applicant. The applicant does not now seek to review that finding. The remaining grounds relate to his claim to fear harm from the Iranian authorities on the basis that he is an apostate and accordingly is at risk from the authorities because of his desertion of the true faith.
[1] Etalleat is one of the main security and intelligence services in Iran.
Summary of the applicant’s religious based claim
The applicant’s claim based on religious grounds was first raised in his entry interview.[2] At that time, he explained that people born in Iran were “condemned to be Muslim” having no freedom to explore other religions. He wanted to leave Iran in order to have freedom of religious choice. He claimed to have been detained once by police for no apparent reason, beaten and accused of breaking Shia law. The detail of the religion based claim was expanded in a statutory declaration that accompanied his visa application.[3] He said that he had no option but to follow Islam as he came from a strict Muslim family. He was forced to attend Mosque at school every day, say prayers and fast. This continued after he started working at Mazda. From the age of 20 he claimed to have begun distancing himself from Islam. He formed a negative view that Islam enslaved people. This view extended to the government which he described as an oppressive regime and he made the link between government and religion. He claimed conflict with his family because of his non-observance of Islam and threats and monitoring of his activities by the security branch of the company for which he worked. He summarised his status in Iran as follows:
“In my country all the rules and laws are based on Islamic laws. According to the law of the country, if I do not follow the faith, I am considered an infidel. Such people who do not accept or believe in Islam are executed in Iran. My problems arose because of the Iranian society’s attitude towards religion and my family’s attitudes.”
[2] Court Book (‘CB’) pages 18-19.
[3] CB pp 91-94.
He said that he feared death if he were to return to Iran, that his activities would be perceived to have defied the regime and that he feared harm should he return because the government was not tolerant of persons perceived to be anti-regime.[4]
[4] CB p 93.
In support of his application for a review of the delegate’s decision, his migration agent sent a written submission to the Tribunal dated 12 December 2014. That submission dealt with the religion based claim and asserted that the applicant had deserted the true faith and was at risk of being accused of a form of apostasy known as murtad fitri which applies to persons born Muslim and who later reject the faith. As such, he could be murdered with impunity by a neighbour or relative.[5] The submission emphasised that forsaking Islam amounts to the crime of apostasy under Iranian law. It was asserted that his lack of religious observance, for example failing to attend Mosque or observe daily prayers, would be sufficient for him to be at risk of being reported.
[5] CB pp 138-139.
At the Tribunal hearing, he claimed not to affiliate himself with any religion and not to follow any religion.[6] His religious claim was specifically linked to the adulterous affair he claimed to have had and he feared that he might be subjected to the death penalty were he to return to Iran.[7] In considering his evidence, the Tribunal noted that the applicant appeared not to rely on or emphasise his religion based claims before it but that he did not “resile from them completely”.[8] It characterised his approach to this question as having made limited claims on the basis of religion. Nonetheless, the Tribunal stated that it had considered whether he had a well-founded fear of persecution based on his religion and/or imputed political opinion noting that in Iran religion and politics are often inter-related.[9] The Tribunal noted that the applicant claimed to have been raised as a Muslim but was not observant and that he did not claim to have converted to any other religion. It accepted that a lack of religion or non-observance or absence of belief was capable of forming the basis of a convention claim.
[6] CB p 245.
[7] CB p 247.
[8] CB p 255.
[9] CB p 255.
Tribunal findings as to religion based claim
As I have already noted, the Tribunal found that the religion based claim was not relied on or emphasised by the applicant. It accepted that there had been a minor conflict between the applicant and his family as a result of his non-adherence to religious observances.[10] It did not accept that he had experienced difficulties at work because of his lack of religious observance.[11] The Tribunal noted that the applicant claimed that because he did not follow his faith he would be considered an infidel and could be executed. It found that he had not made any clear claims that he had been questioned or persecuted for his non-belief or non-adherence.[12] The Tribunal relied on country information from the Department of Foreign Affairs and Trade which suggested that non-believers are unlikely to come to the attention of the authorities unless they were vocal or outspoken with their sentiments. It was noted that the applicant had not claimed any past harm based on non-observance and that he had not indicated any intention to politically espouse his absence of beliefs in the future. For those reasons, the Tribunal formed the view that the applicant did not demonstrate a well-founded fear of persecution based on his actual or imputed religious beliefs or lack of religious belief. Noting the link between religion and politics in Iran, it also found that he had not demonstrated a well-founded fear of persecution based on his actual or imputed political opinion.[13]
[10] CB p 255 at [153].
[11] CB p 255 at [154]-[155].
[12] CB p 255 at [155].
[13] CB pp 255-256 at [158].
Applicant’s submissions
Counsel for the applicant submitted that the Tribunal failed to identify the nature of the applicant’s religion based claim had changed from uncertainty about Islam to apostasy or rejection of the faith. In his submission, the applicant’s claim was a stronger claim than that advanced at the time of his entry interview. The Tribunal only asked the applicant about this claim in a very general way and did not follow up with any questions about the nature of the fear he claimed to hold. The question of religion was subsumed in the mind of the Tribunal by the claim as to the adulterous affair. There was no proper basis for the finding as to the applicant not having a well-founded fear of future harm. Counsel submitted that whilst it was for the applicant to advance his claim, it was in practical terms, a matter for the Tribunal to guide the interview as it saw fit. The effect of his submission was the Tribunal made no significant effort to explore the religion based claim with the applicant. As a result, the Tribunal mischaracterised the nature of the religion based claim at paragraph 150 of its reasons. This was because it did not properly grapple with what had been put to it in the applicant’s written submission on the topic of apostasy. It was submitted that this caused the Tribunal to characterise his religious status as non-observant. The failure to appreciate this distinction caused the Tribunal to focus on the applicant’s past conduct and not to ask itself about his future in Iran. Whilst the Tribunal did use the term ‘infidel’, there was nothing in its reasons to demonstrate that it had addressed the implications of apostasy as described in the applicant’s written submissions. The applicant’s claim was not simply that he did not follow his faith or was non-observant, but rather that he had rejected Islam. This had been clearly articulated in the written submission provided to the Tribunal prior to the hearing and should have been specifically dealt with. It was submitted that the Tribunal had made an error of the type identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[14] In other words, the Tribunal did not ask itself what might happen to the applicant if he were to return to Iran. Rather, it simply asked itself how the applicant could avoid persecution.
[14] (2003) 216 CLR 473.
First respondent’s submissions
The first respondent submits that the Tribunal expressly considered the risk of harm on religious grounds both in terms of what had occurred in the past and what was likely to occur in the future. Counsel for the first respondent submitted that the Tribunal made a reasonable general finding that the applicant did not have a well-founded fear of persecution based on his religious beliefs and that the comprehensive discussion of the evidence before the Tribunal allowed for an inference to be drawn that a proper consideration of the risk of future harm had been undertaken. This was apparent, it submitted, from the consideration of the evidence, the country information, and the general findings it made. Counsel relied on the decision in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[15] to the effect that an inference should not readily be drawn that there has been failure to consider an issue where the reasons are otherwise comprehensive and the relevant issue has been identified at some point. The first respondent submits that the question of apostasy was subsumed by findings of greater generality to the effect that mere non-observance without more would not place the applicant at risk of future harm.
[15] (2003) 75 ALD 630 at [47].
The first respondent also submitted that to the extent that ground two raised issues such as a desire not to live in a sexist country, to lend support for social justice, and the intention to support religious and social rights for non-Muslims, they were not issues that were raised by the applicant at any stage and should be rejected.
The first respondent invited the Court to reject ground three because in its submission, it was based on an incorrect premise. It submits that the Tribunal did not simply deal with the claim relating to future harm based on religious grounds by reference to the past conduct of the Iranian authorities, but by reference to the evidence before it which included the applicant’s past experiences and recent country information. That information included what was described as “the most recent report by the Department of Foreign Affairs and Trade (DFAT)”, which indicated that “non-believers are unlikely to come to the attention of the authorities unless they were vocal or outspoken in their sentiments”.[16] It also relied on country information that suggested “extremely low” attendance of Teharanis at mosques and concerns expressed by the clergy about the population’s failure to practice Islam.
[16] CB p 255 at [150].
Similarly, with respect to ground four, the first respondent submits that the applicant did not explicitly rely on or emphasise a claim based on his actual or imputed political beliefs before the Tribunal. The Tribunal itself noted this fact. It submits that the Tribunal accepted the fact that politics and religion are intermingled in Iran and that it did give appropriate consideration to this issue. It points to a specific finding made by the Tribunal in this regard.[17] The first respondent invites the Court to reject that aspect of the particulars to this ground which complains about the consideration of country information because it is clearly for the Tribunal to decide what country information it will rely on.
[17] CB p 256 at [159].
Consideration
It is well established that a failure to consider the actual claims made amounts to failure to properly exercise the jurisdiction under s.414.[18]
[18] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136.
I am satisfied that the Tribunal considered the evolution of the applicant’s relationship with Islam as demonstrated in the materials before it. The Tribunal noted the entry interview in which the applicant “indicated that he had no religion”, later clarifying, “I only believe in God at the moment”.[19] It noted that his statutory declaration indicated that he did “not follow any religion”.[20] The Tribunal expressly described the applicant’s position as having a “lack of religious beliefs” and that “he does not affiliate himself with any religion and does not follow any religion”.[21] Further, the Tribunal invited the applicant’s representative to make a submission on the matter:
“Towards the end of the hearing, I asked the applicant’s representative to identify the convention grounds on which the applicant sought protection. He stated that the grounds were religious based on the applicant’s feelings towards Islam and religion in general. I asked what relevance the alleged affair had in relation to the convention ground of religion. The representative indicated that the punishment that would be imposed by the State, which would include the possibility of the death penalty, was punishment imposed by sharia law.”[22]
[19] CB p 239 at [31].
[20] CB p 240 at [41].
[21] CB p 245 at [65].
[22] CB p 247 at [91].
It was at this point in proceedings that the Tribunal records the concession made by the applicant’s representative that if the claim as to the affair and the role of the women’s husband failed, that the applicant’s lack of religious beliefs would be unlikely on their own to found a claim for protection on the convention ground of religion.[23] It was, inter alia, the evidence given by the applicant before the Tribunal in combination with the concession I have just referred to which caused the Tribunal to conclude:
“In doing so, the Tribunal notes that the applicant, while not relying on or emphasising those claims before the Tribunal, also did not resile from them completely.”[24]
[23] CB p 247 at [92].
[24] CB p 255 at [150].
It made that observation when turning to examine his general claims about religion. Whilst the applicant is correct to point out that the Tribunal proceeded to describe the applicant in the next paragraph as “non-observant” rather than using the term “apostate”, it also used the term “infidel” at paragraph 155. I am satisfied that the Tribunal was alive to the history of his relationship with Islam its implications and the state of his views at the time of the hearing.
The Tribunal clearly noted the claims in the entry interview, the statutory declarations and the evidence before it. The reasons it gave were comprehensive and I am not prepared to infer that it did not have regard to the religion based claim as articulated in the written submissions provided to it prior to the hearing. I am not persuaded by the applicant’s submission that the Tribunal failed to consider and make findings about his actual claim to be a person who had left the faith (an apostate) as opposed to a person who was merely non-observant. When noting that the applicant had a lack of religious beliefs, did not affiliate himself with any religion, and did not follow any religion, the Tribunal appeared to accept a position on his past that was considerably more than one of non-observance.
The Tribunal accepted country information that stated that non-believers were unlikely to come to the attention of the authorities unless they were vocal or outspoken in their sentiments. That general finding would cover non-believers, non-observers and those who are fully apostates having positively rejected all the tenets of Islam. It found that the applicant had not demonstrated an intent to publically espouse his views in the future.[25]
[25] CB p 255 at [157].
The Tribunal gave consideration to the applicant’s claims of past and future harm based on religious grounds and made a finding that he did not have a well-founded fear of persecution based on his actual or imputed religious beliefs. It did so on the basis of country information which it applied to the applicant’s position with respect to religion. The finding was not unreasonable in the relevant legal sense. It was not irrational or illogical and the applicant was not denied natural justice by a failure to consider his actual claims. I dismiss ground two.
Grounds three and four were dealt with compendiously in the submissions of counsel for the applicant, in essence arguing that the Tribunal fell into error of the kind identified in Appellant S395/2002 (supra). The Tribunal did not simply focus on how the applicant could avoid persecution. It made a positive finding that the applicant did not have a well-founded fear of persecution based on his actual or imputed political beliefs and it did so by relying on its findings as to his past behaviour and the country information I have referred to above. It determined, by reason of its findings as to how he had lived in the past and his lack of avowed intention to live differently in the future, that he would on his return to Iran, live as he had done previously.
Specifically, with respect to ground four, I reject the contention that the Tribunal failed to ask itself whether, “the Applicant had a well-founded fear of persecution based on his actual or imputed political beliefs in Iran.” If the applicant regarded his lack of religious belief as an actual political opinion, it was for him to bring this to the attention of the Tribunal. The question of whether his lack of belief was an imputed political opinion and to the extent that it might be, the implications of that were considered by the Tribunal and it based its finding on country information. It was a matter for the Tribunal what country information it relied on.
I dismiss grounds three and four and make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 8 August 2017
2
2
2