BWV17 v Minister for Immigration - [2020] FCCA 1690

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWV17 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1690

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority’s decision was legally unreasonable – whether the Authority did not take into account relevant considerations – whether the Authority took into account irrelevant considerations – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 5L, 36, 473CB, 473DC, 473DD, 476

Applicant:

BWV17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

PEG 239 of 2017

Judgment of:

Judge Street

Hearing date:

24 June 2020

Date of Last Submission:

24 June 2020

Delivered at:

Sydney

Delivered on:

15 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms F Stanton via Microsoft Teams

Solicitors for the Applicant:

Hall & Wilcox

Solicitors for the First Respondent:

Ms A Ladhams via Microsoft Teams
AGS

ORDERS

The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $8,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 239 of 2017

BWV17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Act made on 10 April 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a protection visa.
The applicant was found to be a citizen of Iran and her claims were assessed against that country. In February 2013, the applicant arrived in Australia as an unauthorised maritime arrival. In April 2016, the applicant applied for a protection visa.
The applicant claimed to fear harm, in summary, by reason of her unwillingness to adhere to a religion, political views, membership of the particular social group of women with anti-government political views and non-conformist religious views, being an unmarried woman who lived with a man outside of the family home and to fear harm from the Etelaat and the government.
On 14 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a protection visa.
The Delegate expressly referred to the applicant’s profile as a single woman who is agnostic and disagrees with the Iranian authorities. The Delegate referred to sixteen to seventeen per cent of Iranians practising Islam, that most others are secular or even agnostic and that many young Iranians object to the limitations placed on their freedom by political Islam. The Delegate was satisfied that the applicant is agnostic and holds opposing political beliefs to the current Iranian regime.
The Delegate did not find the applicant’s account of the reasons why she fled Iran in 2013 to be credible. The Delegate referred to the conflicting and inconsistent information in relation to the applicant’s various accounts regarding the circumstances of the Iranian secret police raid on her home in November 2012 and was of the view that the applicant had contrived this particular claim in an attempt to enhance her claims for a protection visa.
The Delegate referred to the applicant’s fear of consequence of membership of a particular social group of unmarried women who live with a man outside of the family home. The Delegate did not accept that the applicant forms part of this group as she is no longer in a relationship with her fiancé.
The Delegate found that the applicant would not be persecuted as a female failed asylum seeker returning from Australia.
The Delegate referred to the applicant’s political opinion and religion. The Delegate found that there is no evidence that the applicant is a political activist or is likely to express her anti-Islamic religious views in public upon her return to Iran. The Delegate did not accept that the applicant had a profile that is likely to identify her as an apostate or a perceived political opponent of the Iranian authorities. The Delegate found that there is no real chance the applicant would incur serious harm in Iran as a result of her religion or her political opinion.
On 17 October 2016, the Authority wrote to the applicant explaining that her application for a protection visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction, providing the applicant an opportunity to put on new information and submissions.
The Authority’s reasons identify the background to the applicant’s protection visa application. The Authority had regard to the material referred by the Secretary under s 473CB of the Act.
The Authority referred to the submissions that were received from the applicant’s representative. The Authority identified the new information in concluding submissions in respect of the argument about the temporary protection visa interview being compromised by the lack of an interpreter. It is apparent from the Authority’s reasons that the Authority listened to the recording and accepted that there may have been some discussion about an interpreter prior to the commencement of the recording. The Authority did not accept that the language difficulties during the interview were as submitted by the applicant’s representative. The Authority found that the applicant was evidently able to communicate and make herself understood, but took into account those concerns. The Authority was satisfied that there were exceptional circumstances to justify considering the new information under s 473DD of the Act.
The Authority also referred to considering whether it would be appropriate to exercise the Authority’s powers under s 473DC of the Act. The Authority referred to the applicant now having had an opportunity to respond to the Delegate’s concerns and address the matters that she believes she was not able to adequately express. That is an evident intelligible justification for the Authority declining to exercise its powers under s 473DC of the Act.
The Authority summarised the applicant’s claims.
The Authority, in the first dot point, made express reference to the applicant’s membership of the particular social group of women with anti-government political views and non-conformist religious views.
The Authority referred to a raid on the applicant’s home by the Etelaat in around November 2012. The Authority accepted that the men identified themselves as being from the Etelaat.
The Authority did not accept that items such as posters or magazines featuring the former Iranian royal family or anti-religious books were taken from the flat. The Authority provided logical and rational reasons in support of that finding, referring to the applicant having made no mention of this at the arrival interview. The Authority referred to the applicant’s explanation for the omission and did not accept that these factors or the applicant’s state of mind at the time accounts for the omission in response to being asked questions about the reasons she left Iran. The Authority accepted that the applicant was instructed by the interpreter to be brief but referred to the applicant having given an extremely detailed description of the raid. The Authority accepted that the raid occurred but not that the claimed material was discovered or confiscated.
The Authority referred to the applicant saying she did not know the reason for the raid, but believed it was because the neighbours complained about her voicing her views. The Authority found that the applicant’s evidence about what occurred during the raid did not support that it was triggered by anything the applicant had done or that the officers had any particular interest in the applicant. In that regard, the Authority referred to the applicant’s fiancé being the person who was taken to a room where his computer and work things were located and that he was beaten.
The Authority also took into account that the applicant was not questioned about her beliefs and that it was not apparent from the questioning that the applicant was treated any differently to her friend who was present, despite revealing that she and her fiancé both lived at the home.
The Authority also referred to the applicant being told, in relation to what happened, that “It doesn’t concern you, don’t intervene,” and that this suggests that the reason for the raid was not focused upon the applicant, even after her living arrangements were revealed.
The Authority found that there is not a real chance of the applicant suffering serious harm in connection with the events concerning the raid, which occurred prior to her departure from Iran.
The Authority referred to the applicant’s claim to have suffered harm from family members in the past and to fear harm from them in the future. The Authority referred to significant inconsistencies and omissions in relation to the applicant’s evidence regarding her contact with her family. The Authority referred to the applicant having provided evidence as to having been living with her mother in a particular location. The Authority did not accept the applicant’s explanation that the inconsistencies could be due to a lack of memory.
The Authority found that there are significant differences between the arrival interview and the protection visa application as to the applicant’s level of reliance and connection with her family. The Authority found that it was not the fact of contact with the applicant’s family that undermines her claims, but the obvious shift in her evidence. The Authority found that the applicant had exaggerated the extent of the conflict with her family.
The Authority was not satisfied that there is a real chance of the applicant suffering harm from her family in the reasonably foreseeable future, including if she lived outside the family home or with a partner while unmarried. The Authority was also not satisfied that there was a real chance of the applicant being unable to obtain any support from her family if she requires it, given her own evidence that she had been able to return to her mother’s home when experiencing difficulty in the past.
The Authority was not satisfied that the applicant is of any ongoing interest to the Iranian authorities following the raid on her home, whether because of her relationship or for any other reason. The Authority was not satisfied that there is a real chance of the applicant suffering serious harm because she previously lived with her fiancé. The Authority was prepared to accept that the applicant may again live with a partner while unmarried, but was not satisfied that there is a real chance of her suffering serious harm for this reason.
The Authority referred to country information and was not satisfied that, on the applicant’s past experiences or on the country information, there is a real chance of the applicant suffering harm amounting to serious harm on the basis of cohabitation or on the basis of any future premarital relationships.
The Authority was not satisfied that there is a real chance of the applicant suffering serious harm as a member of a particular social group of unmarried women who live with a man outside the family home or who live alone outside the family home.
The Authority referred to the applicant having run a hair salon and having to close the same. The Authority was not satisfied that there is a real chance of the applicant being harmed in connection with her past operation of a hair salon.
The Authority referred to the applicant’s dog that was taken from her because they are considered unclean in Islam. The Authority was not satisfied that there is a real chance of the applicant suffering serious harm in the reasonably foreseeable future in relation to this incident or if such an event was to occur again.
The Authority referred to the applicant’s political and religious views. The Authority accepted that the applicant does not believe in or practise Islam and that she holds anti-government political views which she has discussed with others in Iran.
The Authority referred to a protest that the applicant had taken part in. The Authority identified that the applicant did not claim that she faced any repercussions as a result of her involvement and was not satisfied that there is a real chance of this occurring in the reasonably foreseeable future.
The Authority referred to the applicant’s claim that she is not afraid to speak her opinion and had expressed her views in Iran. The Authority identified that the applicant had suffered no harm as a result, noting that it was not satisfied that the raid related to the applicant voicing her views.
The Authority found the applicant expressing her views as being in the context of discussions with people she socialised with. The Authority found that there is no evidence that the applicant has engaged in any political activity in Australia or expressed opinions more publicly than she did in Iran.
In these circumstances, the Authority found that the applicant would continue to express her views in conversations as she has in the past but did not accept that the applicant has any interest or any commitment to doing so more broadly or publicly.
The Authority referred to country information and was not satisfied that there is a real chance of the applicant coming to the adverse attention of the Iranian authorities or other persons and suffering harm for reasons of her political views.
The Authority referred to the applicant having been born into a Muslim family but considering herself an atheist. The Authority referred to country information in relation to those who leave the Muslim faith or convert to atheism potentially being charged with apostasy. The Authority noted that country information supported prosecutions as being rare, that it is unlikely that individuals would be prosecuted on such charges and that the Department of Foreign Affairs and Trade (“DFAT”) was unaware of any recent charges of individuals for being atheists.
The Authority also took into account country information that it was highly unlikely that the authorities would monitor religious observance, such as mosque attendance or participation in religious occasions, and that it is unlikely that it would become known that a person was no longer faithful to Shia Islam unless they publicly manifest it or identified practising a new faith or sought to publicise their views.
The Authority also referred to country information that atheists do not usually express their views in public and are able to lead normal lives in Iran, although some have been arrested for comments posted on the internet.
The Authority referred to the applicant’s claims about what she had said concerning Islam and the Prophet to others. The Authority, however, was not satisfied that the raid was connected to the applicant’s expression of her views. The Authority accepted that the applicant expressed her views to others but that this was in the context of discussions with persons she knew. The Authority was not satisfied that this led to any harm in the past.
In these circumstances, the Authority took into account that, on the applicant’s own evidence, she was not afraid to voice her opinion and did so in Iran. The Authority was not satisfied that the applicant has publicised her views in Australia more publicly than she did in Iran or that she has any intention or desire to publicise her beliefs more broadly than she did in the past.
In these circumstances, the Authority found that, if the applicant continues to express her views as she previously has in both Iran and Australia, the prospect of those views coming to the attention of authorities or other persons who may harm the applicant and the applicant being seriously harmed is remote.
The Authority turned to the applicant’s claimed fear of harm as a woman with anti-government political views and non-conformist religious views. The Authority noted that it accepted that the applicant did not practise Islam and holds anti-government political views and that it accepted that the applicant living with a partner prior to marriage could be perceived as “Westernised” and not conforming with religious, social or government-sanctioned norms.
The Authority referred to country information and accepted the applicant’s own experience in relation to verbal warnings or being required to remain at a police station until a family member can bring an appropriate hijab. The Authority found that the applicant may suffer harassment and warnings in relation to her dress and appearance but was not satisfied that there is a real chance of her suffering more serious harm for those reasons.
The Authority referred to country information in relation to the patriarchal society in Iran and employment difficulties. The Authority accepted that the applicant does not identify Islam as her religion and that, because of that, she may be refused government employment or discriminated against by some employers. The Authority was not, however, satisfied that there is a real chance this would result in discrimination from all employers or that the applicant would be unable to find employment free from sexual harassment.
The Authority found that there is not a real chance the applicant will have such difficulty finding or retaining safe work that she would suffer economic hardship or denial of capacity to earn likelihood to such an extent as to threaten her capacity to subsist or otherwise suffer serious harm.
The Authority referred to the applicant’s experience of harassment and warnings in relation to her dress or behaviour and was not satisfied that this amounts to the level of serious harm amounting to persecution.
The Authority found that there is not a real chance of the applicant suffering serious harm for reasons of her political or religious views, as a single woman outside her family home or as one who lives with a partner prior to marriage. The Authority was not satisfied that the applicant’s gender or views that may be attributed to her as a result of her lifestyle, appearance or behaviour increases the chance to that of a real one.
The Authority referred to considering the factors in combination and was not satisfied that there is a real chance of the applicant suffering serious harm amounting to persecution for reasons of her gender, real or perceived political and religious views, Westernisation, perceived anti-Islamic appearance and behaviour and/or refusal to conform to government gender-specific laws and social norms.
The Authority was not satisfied that there is a real chance of the applicant suffering serious harm as a member of a particular social group of women with anti-government political views and non-conformist religious views or of Iranian women who refuse to conform to the government gender-specific laws and social norms.
The Authority referred to the applicant being a failed asylum seeker and was not satisfied that there is a real chance of the applicant being harmed by the Iranian authorities on her return to Iran or subsequently in the reasonably foreseeable future because they may be aware she sought asylum in Australia, because she is a female failed asylum seeker, because of her lengthy stay in Australia or any imputed political opinion arising from those matters.
The Authority found that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found that the applicant did not meet the definition of “refugee” in s 5H(1) of the Act. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision under review.

Grounds in the amended application

The grounds in the amended application are as follows:
1 The decision of the Second Respondent was affected by jurisdictional error in that the Second Respondent failed to exercise its powers under s 473CC of the Migration Act 1958 (Act) within the bounds of reasonableness.
2 The decision of the Second Respondent was legally unreasonable as it failed to take into account mandatorily relevant considerations that the applicant’s atheism put her at risk of significant harm for the purposes of s36(2)(aa) of the Act.
Particulars
(a) It was an established fact that the Applicant considered herself an atheist.
(b) It was an established fact that the Applicant had imparted atheist and anti-religious beliefs to her neighbours who may have acted as informants.
(c) The Applicant feared significant harm on the basis that she was a member of a particular social group (PSG) as she was an atheist or had anti-religious views which she had expressed to others.
(d) The Second Respondent failed to make a finding as to whether the Applicant was to be treated as a member of a PSG.
(e) Further, the Second Respondent did not consider whether an Iranian citizen who was an atheist and expressed an atheist view to others was a member of a PSG for the purposes of s5L of the Act.
3 The decision of the Second Respondent was legally unreasonable because it based on a finding that was illogical or irrational having regard to the evidentiary foundation relied on by the Second Respondent.
Particulars
(a) The Second Respondent relied upon ‘country information’ which indicated both the absence and the presence of a risk of arrest of imprisonment of atheist Iranians such that the reviewer’s process of reasoning was illogical or irrational.
4 The decision of the Second Respondent was legally unreasonable in that no reasonable reviewer could have arrived at the determination that there was an absence of a risk of the applicant being arrested or imprisoned
Particulars
(a) The reviewer found an absence of risk of arrest and imprisonment notwithstanding that the reviewer accepted country information that such a risk did exist.
5 The decision of the Second Respondent was legally unreasonable as it took into account an irrelevant consideration.
Particulars
(a) The Second Respondent observed that it was unlikely it would become known that a person was no longer faithful to Islam unless they publicly practised a new faith or publicised their views, but the Applicant did not claim that she was targeted because of a lack of religious observance.
6 The decision of the Second Respondent was legally unreasonable because it did not accept that anti-religious books were confiscated.
Particulars
(a) The Second Respondent accepted that the Applicant had difficulties during her entry interview conveying her account of why she left Iran and was told by the interpreter to be brief.
(b) There was evidence given during the entry interview that the Etelaat had an interest in documentary evidence found at the time of their visit to the Applicant and her fiancé.
7 The applicant seeks an order that the IAA decision be set aside.

Ground 1

In relation to ground 1, Ms Stanton of counsel on behalf of the applicant submitted that the outcome of the Authority’s review under pt 7AA of the Act was legally unreasonable. The Authority provided detailed reasons, as summarised above, that reflect an active intellectual engagement with the applicant’s claims and submissions and the making of dispositive findings that were open to the Authority for the reasons given by the Authority. Those reasons provide an evident and intelligible justification for the adverse outcome. The Court is not persuaded that the outcome is one to which no reasonable decision-maker could come and the Authority’s comprehensive analysis of the applicant’s claims, evidence and country information provide a logical and rational basis for the adverse outcome. No jurisdictional error is made out by ground 1.

Ground 2

In relation to ground 2, the kernel of the argument advanced by Ms Stanton is that the applicant was a member of a particular social group to be described as “an atheist or had anti-religious views which she had expressed to others”. Ms Stanton accepted that the reference to “atheist” was a matter subsumed within the Authority’s identification of the particular social group of women with non-conformist religious views, as identified by the Authority in paragraph 11 of its reasons, and the subject of dispositive findings made by the Authority.
The Court does not accept that there was a particular social group advanced as “an atheist or had anti-religious views which she had expressed to others” insofar as concerns the characterisation “which she had expressed to others”. The Court does not accept that any such particular social group which included the words “which she had expressed to others” fairly arose on the material before the Authority.
Further, it is apparent that the Authority made adverse factual findings in relation to the consequence of the applicant having expressed her views to others and expressly found that the raid identified by the applicant was not due to the views expressed by the applicant.
Moreover, the Authority had found that it was not satisfied that the applicant has published her views more widely in Australia than she did in Iran or that she has any intention or desire to publicise her views more broadly than she did in the past.
In those circumstances, there was no particular social group of the kind advanced by the applicant that the Authority was required to deliberate upon. There was no failure by the Authority to deal with the whole of the integers of the applicant’s claims.
The Court has taken into account the provisions of ss 5L and 5J of the Act and does not accept that there was a particular social group of the kind advanced characterised by reference to “which she had expressed to others”. Further, the Court has found that on a factual basis and the Authority’s finding that the applicant will continue to express her views in conversations as she had in the past but rejected that the applicant has an interest or commitment to doing so more broadly or publicly.
There was no requirement for the Authority to consider or identify any such particular social group as advanced in ground 2. No such claim as characterised fairly arose on the material.
Accordingly, no jurisdictional error is made out by ground 2.

Ground 3

In relation to ground 3, the reference by the Authority to country information in relation to atheists does not identify any inconsistency in the reasoning of the Authority or any illogicality or irrationality. It was a proper, logical and rational matter for the Authority to take into account the country information concerning atheists, as summarised above. There was no illogical or irrational finding of fact in the determination of the real chance or real risk of serious harm or significant harm by reason of the applicant being an atheist. It was a matter for the Authority what country information the Authority accepted. The applicant’s disagreement with that country information does not identify any jurisdictional error. No jurisdictional error is made out by ground 3.

Ground 4

In relation to ground 4, the Authority provided logical and rational reasons in support of the adverse findings under the 1951 Refugee Convention-criteria and in relation to complementary protection, which have been summarised above. The reference to the risk of arrest or imprisonment and the country information is, in substance, an invitation to engage in merits review. The adverse findings cannot be said to lack an evident and intelligible justification as the Authority took into account its adverse finding as to the applicant not having suffered harm in the past. The adverse finding was not one to which no reasonable decision maker could come in terms of outcome. No jurisdictional error is made out by ground 4.

Ground 5

In relation to ground 5, this is, in substance, an invitation to engage in merits review. It was a matter for the Authority to determine whether the applicant made out a real chance or real risk of serious harm or significant harm by reference to the applicant’s claims, evidence and material before the Authority. There was no inconsistency in the Authority’s reasoning or any illogicality or irrationality in the Authority finding to be remote the chance of the applicant, as an involuntary returnee, being the subject of a period of possible detention.
The Authority provided reasons in support of why the applicant was not of adverse interest to the Iranian authorities at the time of departure from Iran and was not satisfied that her activities in Australia might attract such interest. The Authority found that the applicant would not be subject to adverse attention beyond routine questioning, which the Authority found would not amount to serious harm.
It is apparent that the Authority took into account that the applicant was born in a Muslim family, took into account country information in relation to conversion to atheism from Islam, took into account DFAT country information and also Canadian country information and the applicant’s past experiences and was not satisfied that the applicant had suffered harm in the past, that the applicant was not afraid to voice her opinions in Iran and that the applicant had no desire or intention to publicise her beliefs more broadly than she did in the past. The Authority found that, if the applicant continued to express her views as she had done in Iran and Australia, the chance of those views coming to the attention of the authorities and giving rise to harm to the applicant is remote.
It is apparent that the Authority took into account findings as to the applicant’s past and likely future conduct consistent with the country information and provided clear and logical reasons for the its conclusions. Ground 5 otherwise invites merits review. No jurisdictional error is made out by ground 5.

Ground 6

In relation to ground 6, the applicant’s atheism becoming known by the authorities and the unlikelihood of the same was a logical and rational matter for the Authority to take into account. The Authority’s reference to what the applicant had done in the past in expressing her view was also a logical and rational matter for the Authority to take into account. There was no irrelevant consideration taken into account. No jurisdictional error is made out by ground 6.

Ground 7

In relation to ground 7, the Authority made an adverse finding in relation to the applicant’s claims in respect of the raid and whether anti-religious books were confiscated. That finding was open for the reasons given by the Authority, which relevantly included the applicant being told what was occurring was of no concern to the applicant as well as the omission from the applicant’s entry interview as summarised above. In those circumstances, there was an evident and intelligible justification for the Authority’s adverse finding. No jurisdictional error is made out by ground 7.
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

Costs

The Court notes that the Court has allowed an amount in excess of the scale costs in the circumstances of the present case, where there was a very belated application for a proposed amendment in circumstances where there had been earlier communications to which the representatives of the applicant did not respond in a timely manner and because of this conduct the first respondent incurred additional costs by having to put on submissions relating to grounds in the originating application that were not pursued. The Court is satisfied that this is an appropriate matter in which to depart from the scale by reason of the increased costs to which the first respondent has been subject because of the way in which the proceedings were conducted by the applicant.

I certify that the preceding seventy three (73) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 15 July 2020