BYZ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 6
Federal Circuit and Family Court of Australia
(DIVISION 2)
BYZ22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 6
File number: MLG 1259 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 12 January 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority misconceived or failed to give proper consideration to evidence – whether Authority reasoning was based on unwarranted assumptions – whether Authority decision was based on an irrational finding – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 46A, 473CA, 476, 477 Cases cited: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517; [2020] FCAFC 72
Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; [2009] FCA 1470
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 3 June 2022 Place: Perth Counsel for the Applicants: Dr A McBeth Solicitor for the Applicants: Kerdo Legal Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1259 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYZ22
First Applicant
BZA22, BY HIS LITIGATION GUARDIAN, BYZ22
Second Applicant
BZB22, BY HIS LITIGATION GUARDIAN, BYZ22 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
12 January 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
The application before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicants seek judicial review of a decision made by the Immigration Assessment Authority (Authority) on 2 June 2017 to affirm a decision made by a delegate of the Minister not to grant the applicants protection visas.
For the reasons explained below, I find that the applicants have not established jurisdictional error and the application to this Court is therefore dismissed.
Background
The applicants are citizens of Iran. The first applicant is the husband of the fourth applicant and the second and third applicants are their children.
The first, second and fourth applicants entered Australia by sea at Christmas Island in August 2012 without a visa. The third applicant was born in Australia.
On 5 September 2016, after the Minister exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1), the applicants applied for protection visas. The first and fourth applicants advanced separate claims for protection which were set out in statements that accompanied their protection visa applications. The second and third applicants were included in the application as members of the same family unit.
The first and fourth applicants claimed to fear harm from the authorities in Iran because of their previous conversion from Shi’a Islam to the Sunni Islam religion. They also claimed to fear harm from the authorities if they returned to Iran because they no longer have a religion.
On 17 October 2016 the first and fourth applicants attended an interview with an officer of the Minister’s Department to discuss their claims for protection.
On 25 November 2016 a delegate of the Minister refused to grant the applicants protection visas. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 2 June 2017 the Authority affirmed the decision not to grant the applicants protection visas. Those parts of the Authority decision that are most relevant to the determination of this judicial review application are set out below in the discussion of the applicants’ grounds.
Proceedings before the COURT
The applicants commenced proceedings in this Court by way of an application filed on 30 June 2017. This is within 35 days of the Authority decision as required by s 477(1) of the Migration Act.
The applicants now rely on an amended application filed on 13 May 2022, which raises the following two grounds of review:
1.The IAA misconceived or failed to give proper consideration to the first applicant’s evidence regarding his conversion to Sunnism, or alternatively, its reasoning was based on unwarranted assumptions regarding his conversion and was unreasonable.
Particulars
(a) The applicants’ evidence was that the first applicant had engaged in a gradual and considered process of converting from observing Shia Islam to observing Sunni Islam.
(b)The applicants’ evidence did not include any formal or definitive act of conversion.
(c) The IAA’s dispositive reasoning proceeded from the false premise that there must have been a single point in time that constituted the moment of the first applicant’s conversion.
2.The decision of the IAA was based on an irrational finding, namely the finding that the Basij would have formally arrested and imprisoned the first applicant rather than pursuing and harassing him.
Particulars
(a) The country information relied on by the IAA for the proposition that the Basij would have formally arrested and imprisoned the first applicant rather than pursuing and harassing him was not rationally capable of supporting that finding.
(b) Further and alternatively, the IAA’s findings relied on unwarranted assumptions about the operations of the Basij that were unsupported by the country information on which the IAA relied.
The evidence before the Court comprises the court book and an affidavit of Paghona Peggy Sophia Irini Kerdo affirmed on 19 May 2022, which annexes a transcript of an interview between the first and fourth applicants and the Minister’s delegate, and country information that was before the Authority in making its decision. Ms Kerdo’s affidavit was filed on behalf of the applicants.
Both parties filed written submissions ahead of the hearing in accordance with orders made by the Court.
Consideration of Ground 1
Issues and relevant case law
By ground 1, the applicants allege two alternative jurisdictional errors.
The first alleged error is that the Authority made a finding of fact based on an unwarranted assumption, namely that the first applicant converted to the Sunni religion at a single point in time, and made the type of jurisdictional error described in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [45].
In DAO16 the Full Court confirmed that it can amount to jurisdictional error for a decision-maker to make a finding of fact on the basis of unexpressed and unwarranted assumptions not based in any evidence. The Full Court said at [45]:
Thirdly, as the appellant submits, a consideration of the AAT’s reasons discloses that many of its findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. An example is the disbelief expressed by the AAT member as to, among other things, the polygamous nature of some of the sexual relationships between the appellant and a number of the witnesses at [62]-[63] of its reasons. As a further example, in finding at [73] that “the witnesses who have provided statutory declarations and oral evidence to support the applicant’s applications for Protection visas have been willing to provide false evidence to support the applicant’s claims”, the AAT took into account among other things “the lack of independent witnesses until recently, despite the fact that the applicant lives in a city which has a sizeable and visible homosexual population”. Among other objections that might be made to this line of reasoning, it is underpinned by an unwarranted assumption that if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men. Furthermore, the finding shows no appreciation of the fact that a visa applicant is entitled to call evidence afresh before the AAT, including to address issues considered dispositive by the delegate bearing in mind that the issues before the Tribunal are usually the issues raised by the decision under review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)). Bearing in mind that the further evidence was not relied upon here to raise a new claim, the mere fact that the appellant relied upon evidence from additional witnesses in support of his claim to be homosexual in circumstances where the delegate did not believe that claim, does not logically suggest that the additional witnesses were giving false evidence.
The alternative alleged error is that the Authority misapprehended the first applicant’s evidence about the nature of his conversion to the Sunni religion and made the type of jurisdictional error described in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; [2009] FCA 1470 (SZLGP) at [38], [41]-[43].
In SZLGP the Federal Court found that the Tribunal had made findings on the basis of a blatant misapprehension of a critical document capable of supporting the applicant’s claims. The Court described the error in the following way at [41] and [43]:
41.… The Tribunal has asked itself the right question in the broad sense of asking whether it should be satisfied that Australia owed protection obligations to the appellants on the basis of the assistance that the male appellant claimed that he had offered to particular relatives but done so on the basis of a blatant misapprehension with respect to a critical document capable of offering corroboration of why the male appellant had a well founded fear of persecution.
…
43.I do not accept that the basis for this type of jurisdictional error is as confined as the Minister has propounded or that regard to the cases cited bears this out. Rather, each of these cases offers but another example of a procedural fairness error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant. That this is so is, in my opinion, starkly evident in the following passage from the joint judgment of Lee and Moore JJ in WAIJ [v Minister for Immigration and Multicultural Affairs (2004)]80 ALD 568 at 580, [53] – [54]:
[53]It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.
[54]It follows that the tribunal did not accord to the appellant practical fairness and justice in the tribunal’s conduct of the review. Accordingly, the decision of the tribunal involved jurisdictional error and was not a decision authorised by the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs [(2003) 73 ALD 321; [2003] HCA 26] ... at [24], [32] per Gummow and Callinan JJ.
Here, the Tribunal has discounted the letter of 6 March 2007 on the basis of credibility findings concerning the male appellant but these findings, in turn, are tainted by responses to questions put to the male appellant at the hearing and subsequent reasoning, which questions and reasoning were each grounded in a false premise concerning that letter.
Relevant claims and reasons of the Authority
To determine whether the Authority made the jurisdictional errors alleged, it is necessary to consider in some detail the manner in which the first applicant articulated his claims, and the manner in which they were interpreted and addressed by the Authority.
In his arrival interview the first applicant said that he left Iran because he changed his religion in 2010. When asked what problems this caused, the first applicant said the problem started with the company where he used to work, and the first sign of it was when the company noticed that the postures the first applicant used when praying had changed. A week after that they sent him a notification to introduce himself to the Basij. The first applicant’s evidence was that he presented himself to the Basij office within his company, they asked him if he had changed his belief and he said yes, and a week later he was suspended from his work for three months until further notice.
In his statutory declaration made on 13 October 2015, the first applicant claimed that around 2010 he ‘converted from Shi’a to Sunni Islam’. He explained that some friends introduced him to Sunni Islam and he started to compare the two branches of religion and began reading more and more about Sunni Islam. The first applicant gave evidence that when he still identified with the Shi’a faith he prayed with his colleagues in the prayer room at the company he worked for, but ‘when [he] converted to the Sunni faith’ he stopped going with his colleagues to the prayer room and rather stayed in his office to pray. The first applicant claimed that he was seen praying in the Sunni way and this brought him to the attention of the Basij in his company.
At his protection visa interview:
(a)when ask what converting to Sunni Islam involved, the first applicant said:
I did not have to do anything in particular. It was a personal belief of my heart and also I had to do my prayers differently. Worshipping differently.
…
And I was not, I could not believe in the 12 Imams after Mohamad anymore
(b)when discussing how he came to the attention of the Basij for praying in the Sunni way, the first applicant explained:
Each Department has got a prayer room and around 12-12.30, which is the lunch time your office door must be closed, and you are expected to be in the prayer room.
…
For a long period of time, I actually went to the prayer room and did my Shia prayers but during the time that I had been converted to the Sunni religion, I was abstaining from going to the prayer room and I would sticking to my own office.
The delegate did not accept that the first applicant had converted to Sunni Islam. The delegate expressed concerns about the timing of the events that the first applicant had claimed occurred, saying:
The applicant’s timeline was inconsistent. He claimed in his signed statement that he converted his religion in 2010 and was stood down from his job in February 2011. However, at interview he claimed that he followed Sunni Islam for 10 to 12 months before departing Iran (in July 2012).
After the matter was referred to the Authority, the first applicant provided to the Authority a statutory declaration made on 3 January 2017. In this statutory declaration the first applicant said:
2.In my Statutory Declaration dated 13 October 2015, I stated that I converted from Shi’a to Sunni around 2010.
3. This was not a correct interpretation of what happened.
4.What I meant was that this is when I seriously started investigating the Sunni religion.
5.Around this time, I started reading and studying texts and commentaries about Sunni Islam. I also talked about what I was studying with other people that I trusted who were also investigating Sunni Islam.
6.But it was not until around 10 to 12 months before leaving Iran, that I made up my mind, after a lot of studying and discussing – and also after searching my own heart and questioning my ideas about God – that I actually identified as a Sunni.
The applicants also provided a submission to the Authority, prepared by their lawyer. In that submission, the lawyer addressed the delegate’s concern regarding the timeline of the first applicant’s claims and the further evidence in his statutory declaration made on 3 January 2017 in the following way (emphasis added):
The Delegate stated that the Applicant had claimed in his signed statement that he converted his religion in 2010, whereas in the interview, he stated that he started practicing Sunni Islam for 10 to 12 months before leaving Iran. It is submitted that the discrepancy is caused by an inaccurate translation of the Applicant’s instructions in his Statutory Declaration dated 13 October 2015. We have sought clarification of this matter with the Applicant, and he has instructed that in 2010, he started seriously investigating Sunni Islam by reading about the religion and talking about Sunni Islam in groups. Then, approximately one year before leaving Iran, his conversion took place, that is, he formally identified as a Sunni.
The Authority at [7] of its reasons described this submission in the following way:
The submission refers to the delegate’s finding that the first applicant’s timeline was inconsistent in regards to when he converted to Sunni Islam. In response to this, the submission claims that the discrepancy was caused by an inaccurate translation of the first applicant’s instructions in his statutory declaration dated 13 October 2015 and he has now clarified that he started seriously investigating Sunni Islam in 2010 and then, approximately one year before leaving Iran, he converted and formally identified as a Sunni. This is repeated in the first applicant’s new statutory declaration attached to the submission.
The Authority addressed the first applicant’s claims to face harm on account of his change of religion at [16] to [27]. The alleged jurisdictional error the subject of ground 1 is said to be evident in [23] of the Authority’s reasons. That paragraph needs to be read in the context of some of the surrounding paragraphs in the Authority decision. This is particularly so given the submissions made at the hearing by Counsel for the applicants about the manner in which the applicants allege that the Authority misinterpreted the first applicant’s evidence. The parts of the Authority’s reasons most relevant to ground 1 read:
16.I accept the first and [fourth] applicants’ claims that they were Shia but eventually converted to Sunni Islam prior to their departure from Iran.
17.I accept the first applicant’s claim that, in 2010, he began to investigate the Sunni religion and converted and identified as a Sunni approximately 10 to 12 months before leaving Iran which, according to his evidence, would have been in 2011. I found that the first applicant’s explanation and the reasons he provided as to why he decided to convert to the Sunni faith to be plausible and convincing. …
…
19.In his application for protection, the first applicant claimed that, after converting to the Sunni faith, he stopped praying with his colleagues in the prayer room at his workplace and would stay in his office to pray. In the submission to the IAA he clarified that during this period he was merely investigating the Sunni faith but had not yet converted and formally identified as a Sunni which occurred in 2011. Nonetheless, he claims that one day, in 2010, he was called to a meeting at the Basij office who demanded to know why he had not attended prayer and that someone had seen him praying in a Sunni way. He claims to have admitted to praying that way. He claims that the Basij told him that this would lead to his termination and that if he did not come back to the Shia way that he and his family would be subject to harassment and killed. He claims that, following that meeting, in approximately August 2010, he was advised that he had been suspended for three months. He then returned to work in December 2010 but was terminated in February 2011. …
…
22.Although I have accepted that the first applicant became interested in the Sunni faith in 2010 and converted in 2011 and that the [fourth] applicant also converted to the Sunni faith prior to their departure from Iran, I have concerns about the credibility of the remainder of their claims for reasons outlined below.
23.In his new statement to the IAA the first applicant claims that he had only started to investigate the Sunni faith in 2010 by reading about the religion and talking about it in groups but it was not until 2011 that he converted and formally identified as a Sunni. If that were the case, I find his claim to have been caught praying in the Sunni way at his workplace in 2010, prior to his conversion, to be inconsistent and he has provided no further explanation for why he would be praying in the Sunni way at a time when he was merely exploring the Sunni faith and had not yet converted.
Whether the Authority relied on an unwarranted assumption or misapprehended the first applicant’s evidence
The main way in which the applicants submitted that the Authority had made an unwarranted assumption or misapprehended the first applicant’s evidence was by proceeding on the basis that there was a single point in time at which the first applicant converted to the Sunni faith.
On a fair reading of the Authority’s reasons, I do not accept that the Authority misunderstood the first applicant’s evidence about the nature of his conversion to the Sunni faith. It is clear from the Authority’s reasons that when the Authority refers to the first applicant having ‘converted’ to the Sunni faith, it is speaking of a time at which the first applicant had come to ‘identify’ as a Sunni, and that this was preceded by a period during which the first applicant was investigating and learning about the Sunni faith. Examples of where this can be seen include the Authority’s:
(a)reference at [16] to the first and fourth applicants ‘eventually’ converting to Sunni Islam;
(b)acceptance at [17] that the first applicant began to investigate the Sunni religion in 2010 and ‘converted and identified as a Sunni’ approximately 10 to 12 months before leaving Iran which would have been in 2011;
(c)reference at [19] to a period where the first applicant was ‘merely investigating’ the Sunni faith but had not yet ‘converted and formally identified’ as a Sunni;
(d)finding at [22] that the first applicant ‘became interested in the Sunni faith’ in 2010 and ‘converted in 2011’; and
(e)expression at [23] that the first applicant ‘only started to investigate the Sunni faith in 2010 by reading about the religion and talking about it in groups’ and that it was not until 2011 that he ‘converted and formally identified’ as a Sunni.
I accept the Minister’s submission that the Authority treated the first applicant’s identification as a Sunni as being the crystallisation of his conversion to that religion, without assuming that the conversion was instantaneous or officially marked by some definitive act. In response to this submission, Counsel for the applicants submitted that the submission proceeds from the same erroneous assumption that led the Authority to error, namely, that there must be a date of conversion, and all of the first applicant’s conduct before that date was entirely consistent with Shi’a practices, and all the conduct after the date was inconsistent with Shi’a practices. I do not consider this to be a fair characterisation of the Authority’s reasons. There is nothing in the Authority’s reasons to suggest that it proceeded on the assumption that everything the first applicant did until the point that he identified as a Sunni, including during the period when he was exploring and investigating the Sunni religion, was entirely consistent with Shi’a practice.
When the Authority reasons are read fairly and as a whole it is clear that the Authority understood the first applicant’s evidence was that for him, conversion was a gradual process. By proceeding on the understanding that at some point that gradual process of conversion was complete and that the point in which the process of conversion was complete was the time at which the applicant identified as Sunni, the Authority did not misapprehend the first applicant’s evidence. Indeed, as Counsel for the Minister pointed out in his oral submissions, understanding the first applicant’s evidence in this way is entirely consistent with how the first applicant’s claims were presented to the Authority in the submission, extracted at [25] above, that accompanied his statutory declaration made on 3 January 2017. This can particularly be seen in the use of the words by the applicants’ lawyer that around a year before the first applicant left Iran his ‘conversion took place, that is, he formally identified as a Sunni’.
Accordingly, the Authority’s acceptance that the first applicant’s conversion to the Sunni faith was complete in 2011 at the time he identified as a Sunni is entirely consistent with the first applicant’s evidence as clarified in his statutory declaration provided to the Authority.
Counsel for the applicants advanced submissions in relation to misunderstandings of the applicant’s evidence that were said to be evident from [19] of the Authority’s reasons and which informed the Authority’s findings at [23]. In particular, Counsel for the applicants submitted that the Authority misapprehended the first applicant’s evidence in his October 2015 statutory declaration by summarising that ‘after converting to the Sunni faith’ the first applicant stopped praying with colleagues in the prayer room at his workplace. The use of the word ‘after’ was said to be inconsistent with the evidence given by the first applicant. The words used by the first applicant in his statutory declaration that accompanied his protection visa application were ‘when I converted to the Sunni faith’. Counsel for the applicants submitted that amounted to evidence that the first applicant stopped attending the communal Shi’a prayers at his workplace during the time that he was undergoing the conversion and not after.
The phrase ‘when I converted’ used by the first applicant is ambiguous. While it may have been intended to mean ‘during the time I was converting’ or ‘during the time I was undergoing conversion’ it could equally have been intended to mean ‘after I converted’ as suggested by the Authority. It is impossible to make any finding on the evidence available to me about what the first applicant actually meant by the ambiguous phrase that he used. However, in my view it is not necessary for me to do so. This is because the following sentence of the Authority’s reasons at [19], referring to the applicants’ submission clarifying that during this period the first applicant was merely investigating the Sunni faith but had not yet converted and formally identified as Sunni, shows that the Authority properly understood that the first applicant’s claims to have been praying in his own office rather than at the communal Shi’a prayers occurred at a time before he formally identified as Sunni. For the same reason, it is unnecessary to make any finding about whether the words ‘during the time that I had been converted to the Sunni religion’ used in the interpretation of the applicant’s evidence given at the protection visa interview (see [22(b)] above) were intended to convey a meaning of ‘after I had converted’ or ‘during the time I was converting’ to the Sunni religion.
Counsel for the applicants also alleged error in the Authority’s use at [19] of the phrase ‘but had not yet converted and formally identified as a Sunni which occurred in 2011’. Counsel for the applicants submitted that the words ‘not yet converted’ were added by the Authority and were not a reflection of the first applicant’s evidence because the first applicant in his statutory declaration to the Authority had avoided the use of the word ‘converted’ as he considered it to be misleading. I do not find any jurisdictional error on the basis of the Authority’s inclusion in [19] of the words ‘not yet converted’. There are two reasons for this. First, as discussed above, the Authority treated the point at which the first applicant identified as Sunni as the point at which his conversion was completed and I have already found that this was a fair reading of the first applicant’s evidence. Second, the submission summarised at [19] clearly reflected an understanding that the first applicant had converted to Sunni Islam when he formally identified as a Sunni.
I now turn to the applicants’ specific complaints about [23]. The applicants complain that the words at the end of the first sentence, namely that it was ‘not until 2011 that he converted and formally identified as a Sunni’ are not an accurate reflection of the first applicant’s evidence. I have addressed this in relation to [19] of the Authority’s reasons and I accept that statement is an accurate understanding of the first applicant’s evidence for the reasons I have already articulated. The second complaint the applicants make about [23] is that the inconsistency that the Authority identified, namely, that it was inconsistent for the first applicant to be praying in the Sunni way in his workplace in 2010, before he had converted or formally identified as Sunni, would fall away if the Authority had properly understood the first applicant’s evidence.
Counsel for the applicants stressed in his oral submissions that the first applicant had not anywhere in his evidence said that he did not start observing Sunni practices, especially abstaining from the collective Shi’a prayers at work, until after he formally identified as a Sunni.
I have indicated above that I do not understand the Authority to have proceeded on the assumption that everything the first applicant did up until his conversion was complete, namely when he formally identified as a Sunni, was consistent with Shi’a practice, and everything after he formally identified as a Sunni was not consistent with Shi’a practice. The inconsistency identified by the Authority at [23] was that the first applicant would pray in his office in a Sunni way in 2010 when, in his new evidence provided in response to the delegate’s concerns about the timing of the events that the first applicant alleged took place in Iran, he only referred to starting to seriously investigate the Sunni religion by reading and studying texts and commentaries and talking about what he was studying with other people he trusted who were also investigating Sunni Islam. It was open to the Authority to consider this to be an inconsistency, particularly in circumstances where the Authority had regard to country information that many Ahwazi Arabs were arrested and charged on suspicion of converting to Sunni Islam, which would mean it was risky for the first applicant to pray in his office in the Sunni way. The Authority’s findings at [23] do not reflect any misapprehension of the first applicant’s evidence or any unwarranted assumption about his process of conversion.
Further, it was accurate for the Authority to observe that the first applicant had provided no further explanation to why he would be praying in the Sunni way at a time when he was merely exploring the Sunni faith.
Counsel for the applicants made submissions at the hearing about the difficulty in converting dates from the Persian calendar to the Gregorian calendar. This was said to be part of the context in which the Authority made its decision and something that the Authority ought to have been mindful of when making findings based on inconsistencies in dates. Having regard to the evidence as a whole, I do not consider that any confusion with dates would lead to misunderstandings in the first applicant’s evidence. The first applicant repeated on a number of occasions between 2012 and 2017 that his interest in the Sunni religion started in 2010. The first applicant also indicated on a number of occasions that the time at which he came to the interest of the Basij for praying in the Sunni way in his office was an incident that happened in 2010. There have therefore been several opportunities for the first applicant and those assisting him to clarify the relevant year. No confusion based on conversion of dates can arise in relation to the first applicant’s evidence about when he formally identified as a Sunni, as this was said to have taken place 10 to 12 months before he left Iran. In other words, the reference event for working out the year the first applicant identified as a Sunni was an event that had been recorded in the materials based on the Gregorian calendar and did not need to be converted from the Persian calendar.
I do not accept that the Authority has misapprehended the first applicant’s evidence and made the type of jurisdictional error identified in SZLGP or proceeded on any unwarranted assumption and made the type of jurisdictional error identified in DAO16. Therefore, ground 1 is not established.
Consideration of Ground 2
The alleged error
By ground 2 the applicants allege that the Authority’s decision was based on an irrational finding, namely that the Basij would have formally arrested and imprisoned the first applicant rather than pursuing and harassing him.
This finding was made at [24] of its reasons and that paragraph should be read in its entirety. The paragraph reads (footnotes omitted):
The first applicant claims that there are “many abductions” by the Basij and Sepah of anyone who follows, or is perceived to follow, another religion. He claimed that in Iran it is not the fact that you are charged or sentenced to imprisonment but you are hit by a car or get attacked by acid. There is no country information before me to corroborate this claim in respect of the treatment of Sunni converts by the Iranian authorities in Iran. Country information that was before the delegate confirms that the Basij maintains a formal presence in all government offices and that the Basij acts as ‘moral police’ and monitors the activities of citizens, but also indicates that traditionalist schools of Sunni Islam are sanctioned by the Iranian Constitution and many Ahwazi Arabs have, in fact, been arrested on suspicion of, or for converting, to Sunni Islam and have been charged with adhering to Wahhabism and other charges and sentenced to imprisonment for their conversion. Given that the Iranian authorities regularly arrest and charge suspected Sunni converts, I do not consider it plausible that the Iranian authorities would threaten and harass known Sunni converts for a long period and even abduct their family members in order to pressure them to recant their new Sunni faith.
This reasoning at [24] then informed the Authority’s conclusion at [25], where it said (emphasis added):
For the above reasons I do not accept, as plausible that, had the first applicant admitted to the Basij that he had been praying in the Sunni way and by implication they had accused him of converting, that they would continue to harass him and his family after terminating his employment for over a year and then kidnap his son in order to pressure him to return to the Shia faith. As the first applicant claims “becoming Sunni from Shia is like a war against God”. I am satisfied that, had the first applicant admitted his Sunni conversion to the Basij or other Iranian authority, that he would have been arrested and charged not merely terminated from his job and harassed and threatened for such a long period of time. I am also not satisfied, on the evidence before me, that the first and [fourth] applicants were harassed and threatened or that the third applicant was kidnapped by any other group or person on the basis of their Sunni conversion.
Interpretation of [24] of the Authority’s reasons
The applicants and the Minister have advanced their submissions based on different interpretations of the Authority’s reasoning at [24].
The applicants interpret [24] as addressing a single issue, namely whether the applicants faced ongoing harassment and intimidation, or informal reprisals, from the Basij. The applicants summarise the Authority’s finding as a rejection of their narrative of harassment and intimidation by the Basij, on the basis that the country information did not support the claim that Iranian authorities would threaten and harass Sunni converts and abduct family members in order to pressure them to recant their Sunni faith, as opposed to formally arresting and charging the first applicant. In oral submissions, Counsel for the applicants submitted that, when the Authority said at [24] that ‘[t]here is no country information before me to corroborate this claim’, the Authority was referring to the first applicant’s claim to fear informal extra-judicial harassment and violence.
The Minister interprets [24] as representing two separate findings:
(a)a finding that ‘there is no country information before [the Authority] to corroborate’ a claim that people are hit by a car or get attacked by acid; and
(b)a finding that it is not plausible (having regard to country information concerning the arrest of many Ahwazi Arabs on suspicion of converting to Sunni Islam) that Iranian authorities would threaten and harass known Sunni converts for a long period and even abduct their family members.
On balance, I consider that the Minister’s submission that the claim referred to by the Authority was that in Iran a person would get hit by a car or attacked by acid rather than charged or sentenced to imprisonment more accurately reflects the claim that the Authority was referring to in the third sentence of [24]. This is based largely on the paragraph structure of [24]. In the second sentence of [24], the Authority identified a very specific claim, namely, that in Iran people are hit by a car or they get attacked by acid, which was what the first applicant said when he was asked to identify the sort of harm he feared if returned to Iran. In the immediately following sentence, the Authority referred to ‘this claim’. It seems to me more logical that by the phrase ‘this claim’, the Authority was referring to the specific claim that it had just identified, rather than a much broader, more general assertion that the Iranian authorities engage in information extra-judicial harassment and violence.
Did the Authority make an irrational finding?
In the pleaded ground, the finding of the Authority that was said to be irrational was a finding that the Basij would have formally arrested and imprisoned the first applicant rather than pursuing and harassing him. The wording used in the pleaded ground does not quite accurately reflect the Authority’s reasons, but I will proceed on the basis that the impugned finding is that reflected in the final sentence of [24] and in [25], which, when read in combination, amounts to a finding that if the first applicant had admitted his Sunni conversion to the Basij or other Iranian authority, he would have been arrested and charged, rather than being terminated from his job, harassed and threatened for a long period of time and having his son kidnapped.
The two particulars of the ground both refer to country information relied on by the Authority. The first particular asserts that the country information relied on by the Authority for the proposition that the Basij would have formally arrested and imprisoned the first applicant rather than pursuing and harassing him was not rationally capable of supporting that finding. The second particular asserts that the Authority relied on unwarranted assumptions about the operations of the Basij that were unsupported by the country information on which it relied.
In both written and oral submissions, the applicants have identified various sources of country information which they say attests to the ‘brutal, arbitrary and unaccountable methods of many Basij members, as well as the fact of harassment of Sunni converts by the Basij’.
One such report referred to by the applicants is the UK Home Office ‘Country of Origin Information Report’ on Iran, dated 28 June 2011, which said at [19.13]:
Amnesty International’s Annual Report 2011 – Iran …, published 12 May 2011 and covering events in 2010, stated that “Members of religious minorities, including Christian converts, Sunni Muslims, dissident Shi’a clerics, and the Ahl-e Haq and Dervish communities, continued to suffer discrimination, harassment, arbitrary detention, and attacks on community property…
Counsel for the applicants submitted that this report supported the claim of harassment and arbitrary attacks outside and beyond formal arrest and imprisonment.
Another report relied on by the applicants is the United States Department of State ‘Iran 2012 Human Rights Report’. Counsel for the applicants referred to the following description of the Basij at page 11 of the report:
The Basij, a volunteer paramilitary group with local organizations in cities and towns across the country, sometimes acted as an auxiliary law enforcement unit subordinate to the IRGC ground forces. Basij units often engaged in crackdowns on political opposition elements without formal guidance or supervision from superiors.
…
Regular and paramilitary security forces, such as the Basij, committed numerous human rights abuses, including acts of violence against protesters and public demonstrations. There was no transparent mechanism to investigate or punish security force abuses and no reports of government actions to discipline abuses.
Counsel for the applicants submitted that this report plainly suggested that the Basij are a law unto themselves and that they can act arbitrarily.
Counsel for the applicants also referred to page 21 of the United States Department of State report, which said:
There were several reports during the year of authorities seizing the property of members of the Sunni, Baha’i, and Sufi religious minority communities.
…
Security forces monitored the social activities of citizens, entered homes and offices, monitored telephone conversations and Internet communications, and opened mail without court authorization. There were widespread reports that government agents entered, searched, and ransacked the homes and offices of reformist or opposition leaders, activists, political prisoners, journalists, and their families to intimidate them.
The applicants also referred to the report by the Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report – Iran’ dated 21 April 2016, which said at [5.10]:
The Basij can patrol the streets and conduct checkpoints, particularly when there is a heightened security atmosphere or after large events. However, credible sources have told DFAT that the Basij is presently less visible on the streets than was previously the case -for example in 2009. Sources also report that the Basij is less assertive and generally more respectful in its interactions with Iranians. However, Basij members often receive little formal training and can operate without orders or objectives, resulting in unpredictable interactions with civilians…
Counsel for the applicants submitted that the country information is replete with examples of violence and intimidation as a tactic of the Basij in parallel with the formal avenues of arrest and imprisonment.
The approach of the applicants has been to identify country information which was before the Authority and which, in their submission, supports a conclusion that the Basij adopt brutal and arbitrary methods.
The difficulty with the approach taken by the applicants, who bear the onus of establishing jurisdictional error, is that it cherry-picks certain information before the Authority that assists their case without addressing the actual evidence relied on by the Authority for its findings at [24].
The Authority reasons at [24] contain two footnotes which refer to country information. In support of the proposition that the Basij maintains a formal presence in all government offices and that the Basij acts as moral police and monitors the activities of the citizens, the Authority referred to the UK Home Office report. The applicants do not appear to impugn this finding. In support of the proposition that traditionalist schools of Sunni Islam are sanctioned by the Iranian Constitution and many Ahwazi Arabs have been arrested on suspicion of, or for, converting to Sunni Islam and have been charged with, amongst other things, adhering to Wahhabism and sentenced to imprisonment for their conversion, the Authority cited the following country information reports:
(a)Iran Human Rights Documentation Centre 2014, ‘A Framework of Violence: Repression of the Arab Ethnic Minority in the Islamic Republic of Iran’, 25 September;
(b)Amnesty International, ‘AMNESTY INTERNATIONAL – URGENT ACTION: UA 280/13: Iran: Ahwazi Arab men at risk of imminent execution’, 4 October 2013;
(c)Human Rights Activists News Agency, ‘19 Iranian Arabs Detained in Khuzestan Province’, 8 August 2012;
(d)International Campaign for Sunni Prisoners in Iran, ‘Iran: Nine Ahwazi Arab men arrested after converting to Sunni Islam’, 3 February 2014;
(e)International Campaign for Sunni Prisoners in Iran, ‘More than 20 Sunni converts arrested at Qur’an study meeting, Ahwaz’, 27 February 2014;
(f)International Campaign for Sunni Prisoners in Iran, ‘Another Sunni convert arrested in Iran amid growing crackdown’, 11 March 2014;
(g)International Campaign for Sunni Prisoners in Iran, ‘Another Sunni convert arrested in Ahwaz, southwestern Iran’, 13 March 2014; and
(h)United Nations General Assembly, ‘Situation of human rights in the Islamic Republic of Iran: Note by the Secretary-General’, 27 August 2014.
These country information reports are not in evidence before the Court. In the absence of this evidence, the applicants are unable to discharge their onus of establishing the ground as it is pleaded. Without access to the country information that the Authority relied on, I cannot conclude that the propositions asserted in the particulars to the ground are correct, namely, that the country information relied on by the Authority is not rationally capable of supporting the finding that the Basij would have formally arrested and charged the first applicant, rather than threatening and harassing him, or that the country information does not support any assumptions that the Authority made about the operations of the Basij.
The applicants appeared to accept that the Authority had regard to the reports that the applicants have specifically relied on in support of this ground, noting that the Authority has elsewhere referred to those reports in its footnotes throughout its reasons. The applicants submitted that it would have been open to the Authority to reject any of those descriptions of Basij behaviour but did not do so. However, as submitted by the Minister, the Authority is not obliged to give a line by line refutation of the evidence of an applicant generally or in respect of where there is evidence that is contrary to the findings of material fact made by the Authority: Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48].
Further, the choice of and weight to be given to country information is generally a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. Accordingly, it was open to the Authority to choose to rely on the evidence that it cited in its footnotes to [24] than on than the evidence that the applicants have referred to in support of this ground.
In advancing this ground, the applicants relied on DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517; [2020] FCAFC 72 (DNQ18). The applicants submitted that in this case, like in DNQ18, the Authority purported to rely on what was (supposedly) not stated in the country information to support a finding that something does not happen to persons in the applicants’ situation. The applicants submitted that, for the same reasons that the Full Court found in DNQ18, the country information relied on by the Authority in the present case was not rationally capable of supporting the findings it made.
In my view, this case is very different to DNQ18 and the Full Court’s reasoning in DNQ18 does not establish jurisdictional error in the present case. In DNQ18, the Full Court considered a submission that the Authority made a finding implicitly that children who left Sri Lanka unlawfully would not be prosecuted under the Immigrants and Emigrants Act. The Authority expressed this finding by stating that ‘Country information does not indicate that children are prosecuted’. In the context of the reasons as a whole the Full Court considered that this was a finding about what will not happen to returned asylum seekers who are children. In DNQ18, the only evidence before the Authority that could have supported its finding was a DFAT country information report which contained the sentence ‘Children are never subject to bail or fines’. The Full Court considered that, in its proper context, the sentence in the DFAT report said nothing about matters such as whether children may be charged under the Immigrants and Emigrants Act irrespective of whether they are liable for certain punishments if found guilty, the age of criminal responsibility, whether children may also be detained at the airport, whether children may be transported with their parents to be brought before a magistrate or whether children may also be taken to prison whilst their parents are waiting to appear before a magistrate. In those circumstances, the Full Court found that the DFAT report was not capable of supporting the Authority’s finding. The Full Court concluded that the Authority’s finding reached well beyond the material before it and the Authority had made a finding for which there was no evidence.
By contrast, in the present case:
(a)I accept the Minister’s submission that, in rejecting the applicants’ claims to have faced harm in the past, the Authority did not rely on the absence of country information about threats, harassment and abduction, but rather relied on the existence of country information about the treatment of Ahwazi Arabs who have converted to Sunni Islam to draw an inference about the plausibility of the applicants’ claims.
(b)The present case is not one where only one or even a few sources of country information were relied on to support the impugned finding. Multiple sources of country information were cited by the Authority to support the impugned finding and, as discussed above, I cannot find that those country information reports were not capable of supporting the impugned finding because they are not in evidence before the Court.
I note for completeness that the Minister submitted that the country information relied on by the applicants does not necessarily support the propositions advanced by the applicants. Given my other conclusions, it is not necessary to resolve this question. Even if the country information cited by the applicants was capable of indirectly or directly supporting the first applicant’s claims that, in the past, he and his family had been threatened and harassed and his son briefly kidnapped or that, in the future, he may be hit by a car or attacked by acid, I could not conclude that the Authority’s finding that, if the Iranian authorities knew of the first applicant’s conversion to Sunnism they would have arrested and charged him, rather than harassing and threatening him, was irrational without considering the evidence cited by the Authority in support of that finding.
Ground 2 is not established.
Conclusion
As I have found that the applicants have not established jurisdictional error in the Authority decision, the application for judicial review is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 January 2023
SCHEDULE OF PARTIES
MLG 1259 of 2022 Applicants
Fourth Applicant:
BZC22
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11
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