BYS17 v Minister for Immigration

[2020] FCCA 1745

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYS17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1745

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether material interpretation errors in previous interviews – whether applicant able to meaningfully participate in visa interview – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: BYS17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 248 of 2017

Judgment of: Judge Street

Hearing date: 25 June 2020

Date of Last Submission: 25 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams

Solicitors for the Respondents: Mr A Chan, Sparke Helmore, via Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent's costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 248 of 2017

BYS17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. 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 Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 13 April 2017. 

4. The applicant was found to be of Hazari ethnicity and was born a Shia Muslim and alleged that he has become a Bahá'í. 

5. The applicant claimed to fear harm at the hands of the Sepah and the Basij on account of his Bahá'í religion. 

6. The applicant was born in a particular province and his wife and two children reside in Iran and his other family members reside in Iran, although the applicant informed the Court that his father has very recently passed away.

7. On 14 November 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa (“Protection visa”). On 17 November 2016, the Authority wrote to the applicant explaining that his application for the Protection visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, providing the applicant an opportunity to put on submissions and new information. 

8. The Authority wrote to the applicant on 6 March 2017, inviting the applicant to comment on the information identified by the Authority and, on 20 March 2017, a further invitation to comment letter was sent to the applicant in relation to information received from the Bahá'í of Stirling. The applicant provided information in response, which was referred to in the Authority's reasons. 

9. The Authority identified the background to the Protection visa application and had regard to the material referred by the Secretary under s 473CB of the Act. 

10. The Authority referred to the invitations to comment sent to the applicant and engaged with the response provided by the applicant. The Authority was not, however, satisfied that the medical report and the letter of the doctor provided by the applicant were responsive to the invitation to comment and found that they were new information and was not satisfied that there were exceptional circumstances to justify considering the new information in the nature of the medical report and letter from the doctor. The Authority's reasons reflect its consideration of the whole of the limits of s 473DD of the Act.

11. The Authority otherwise summarised the applicant's claims, including the attendance at a particular place of worship of Bahá'í members early in the Iranian New Year in 2013. The applicant alleged that there was a police raid and the applicant managed to hide and went straight home and alleged that he then made arrangements to depart Iran using his own passport on 1 April 2013. 

12. The applicant also alleged that he has engaged in posts relating to Bahá'í faith in the Iranian regime and has continued to practice the Bahá'í faith since his arrival in Australia.

13. The Authority referred to the applicant's claims at his entry interview that he left Iran because he had changed his religion and referred to the alleged incident, which caused the applicant to allegedly go into hiding and to leave Iran on 1 April 2013. 

14. The applicant identified that he grew up in a Muslim household and that his wife and children are Muslims. 

15. The Authority was not satisfied that the applicant was of interest to the authorities in Iran because of his claimed participation at the Bahá'í gathering or that he was almost arrested at the gathering on 24 March 2013. The Authority provided for reasons in support of the same: first, relating to the inconsistency in relation to the times advanced by the applicant relating to the call to advise him of the raids, and the applicant was not consistent in the number of people he claimed his brother told him were arrested. Second, the inconsistency in relation to what the applicant said at the entry interview and what the Authority found was the applicant attempting to embellish his claims, and the Authority did not accept the applicant's explanation; and, third, because of implausibilities in relation to the applicant's claims at the Protection visa interview. Finally, taking into account creditability concerns and the applicant's claimed association with the Bahá'í since his arrival in Australia, by reason of which the Authority was not satisfied as to the applicant's credibility. 

16. The Authority identified that the applicant used his genuine passport to fly out of Iran on 1 April 2013 that had been issued in 2012. 

17. The Authority was satisfied that the applicant departed Iran using his genuine passport. The Authority was not satisfied that the applicant departed Iranian because his name had been given to the authorities or that he was on a list for being involved with Bahá'í gatherings.

18. The Authority found that the applicant had not been consistent in relation to his claims concerning going into hiding prior to his departure. 

19. The Authority referred to the applicant's claims in relation to the authorities coming to his house.

20. The Authority did not accept that the applicant is of interest to the authorities in Iran because of his claimed participation at a Bahá'í gathering or that he was almost arrested on 24 March 2013. The Authority was also not satisfied that the applicant's family was harassed following his departure from Iran. 

21. The Authority was not satisfied as to the applicant's credibility in general and was not satisfied that the applicant had any involvement with the Bahá'í faith in Iran, apart from social contact with business acquaintances. The Authority was not satisfied that this type of interaction would put him in a vulnerable position or expose him to any level of scrutiny that would bring him to the attention of the Iranian authorities. 

22. The Authority referred to the applicant's activities in Australia and that the applicant had provided no documentary evidence in support of his participation in Bahá'í activities.

23. The Authority also referred to the invitation to comment letter that was sent to the applicant and the applicant's response. 

24. The Authority was not satisfied that the applicant was a convert to the Bahá'í faith or has a genuine interest in converting in the future or in pursuing an interest in Bahá'í on return to Iran. The Authority referred to the applicant only being able to explain a limited level of knowledge of religion despite claiming to have been involved in the religion for over three years since his arrival in Australia. The Authority was not satisfied that the applicant is a credible witness. 

25. The Authority was not satisfied that the applicant has posted things on Facebook relating to the Bahá'í faith or critical of the regime in Iran. The Authority took into account in that regard the adverse finding in relation to the applicant's credibility and the want of documentary evidence. 

26. The Authority did accept that it was plausible that the applicant may have turned away from Islam and that the applicant may be a non-practicing Muslim.

27. The Authority identified the relevant law, including an annexure of applicable law incorporated by pagination into the Authority's reasons. 

28. The Authority referred to country information in relation to apostasy and that it was highly unlikely the government would monitor religious observance by Iranians and whether or not they readily attended the mosque or participated in religious occasions. The Authority referred to country information that it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. The Authority referred to other country information and was not satisfied that, on the applicant's return to Iran, there is a real risk that the applicant would suffer harm because he is a non-practising Muslim or that he might be perceived as an apostate. 

29. The Authority referred to the applicant's return as a failed asylum-seeker and was not satisfied that the applicant was of any interest to the authorities before he left Iran. 

30. The Authority accepted that the applicant may be questioned on return to Iran but was not satisfied that this treatment amounted to serious harm.  

31. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found that the applicant did not meet the criteria in s 36(2)(a) of the Act.

32. The Authority referred to complementary protection and took into account that the Authority had made a finding that it did not accept that the applicant converted to the Bahá'í faith or that he has a genuine interest in converting to the Bahá'í faith or that he would pursue any interest in the Bahá'í faith on his return to Iran. The Authority also referred to having not accepted that the applicant has been active on Facebook in relation to the Bahá'í faith and was not satisfied that there is a real risk that the applicant would suffer significant harm on these bases. 

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

Before the Court

1. These proceedings were commenced on 5 May 2017. On 19 July 2017, a Registrar of the Court made orders providing the applicant an opportunity to put on an amended application, affidavit evidence and submissions.

The grounds

1. The grounds in the application are as follows:

   Interview 1 – interpreter not good; interviewer wanted to finish interview – yes/no answers; she became angry

   Interview 2 – Yongah Hill – good interviewer and interpreter. Interviewer listened to me after interview when I told her about my depression and stress. She listened

   Interview 3 – Immigration – Interviewer said it was safe for me to go back to Iran. I asked her to guarantee this. She wouldn’t

   Grounds of Application

   Interviews 1 & 3 not good and I was sick. Before Interview 3 I had been in Graylands Hospital.

   Interpreters not good. Changed what I said.   

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation of the hearing given by the Court. 

3. The applicant submitted orally why it was that he developed an interest in the Bahá'í faith and his exploration of his Bahá'í faith and maintained that the decision was unfair and that he had told the Authority the truth. 

4. The applicant also referred to the recent loss of his father and requested to be allowed to remain in Australia, where he had freedom of religion and freedom of speech.

5. The solicitor for the first respondent, Mr Chan, correctly identified the applicant's submissions as inviting impermissible merits review. This Court has no power to determine the matter on compassionate or discretionary grounds. 

6. Nothing said by the applicant identified any jurisdictional error. 

7. In relation to the grounds in the application, no evidence has been adduced in support of the applicant's claims of any interpretation error, let alone a material interpretation error. On that ground alone, the application must fail.

8. There is no evidence to support the assertions made in relation to the interviewer being angry and, insofar as the applicant referred to being sick, in his application, the applicant acknowledged in his oral submissions that he was able to physically and mentally participate in any event. No evidence has been adduced to support any inability by the applicant to meaningfully participate in the Protection visa interview. In fact, as the first respondent has pointed out, there is medical evidence from a particular doctor that the applicant's speech was normal and his cognition was intact with fair judgment and insight.

9. There was no material before the Court to suggest that the applicant was unable to meaningfully participate in the interview for the Protection visa and there is no material before the Authority by reason of which the Authority should have expressly considered exercising its powers under s 473DC of the Act. In this regard, the absence of any express consideration cannot be said to lack an evident and intelligible justification given the opportunity provided by the letter from the Authority to put on new information and submissions and the invitation to comment letter and the Authority’s reasons considering the same.

10. The Authority's adverse reasons reflect a genuine and active intellectual engagement with the applicant's claims and evidence and the making of dispositive findings that were open for the reasons given by the Authority as summarised above.

11. Further, it is apparent from the entry interview at page 14 that the applicant did not merely give yes or no answers and that the applicant gave detailed answers on his protection claims, the location of his identity documents and the manner in which he arrived in Australia.  That interview also spanned two and a half hours and the applicant confirmed at the conclusion of the interview, in response to whether there was anything he wished to say by responding, "No." 

12. The Court also notes the applicant was discharged from hospital some four months prior to the interview with the Delegate for the Protection visa. 

13. The Court also finds the applicant indicated at the entry interview that he understood the interpreter. Further the Delegate expressly recorded that, notwithstanding the applicant's health issues, he did not appear to have any difficulties answering questions. There is no evidence to satisfy the Court that the standard of the interpretation was so inadequate that the applicant was prevented from giving evidence, nor is the Court satisfied that there were errors made in the interpretation that were material to a conclusion of the Authority adverse to the applicant.

14. Further, in circumstances where the Authority wrote to the applicant, providing the applicant an opportunity to put on new information and submissions, the Court is not satisfied that in the Delegate interview there was any material interpretation error or a departure from the ordinary standard of interpretation whereby the applicant was prevented from giving evidence.

15. Accordingly, no interpretation error as alleged in the applicant's grounds is made and out. Nor has the applicant established that the applicant was unable to meaningfully participate in the interview with the delegate. No jurisdictional error as alleged in the applicant’s grounds is made out.

16. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate: 

Date: 15 July 2020