CCK16 v Minister for Immigration
[2018] FCCA 1724
•29 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1724 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 424A. |
| Cases cited: Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 |
| Applicant: | CCK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1640 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 7 February 2018 |
| Date of Last Submission: | 7 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Isobel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr L Brown |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1640 of 2016
| CCK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia on 18 July 2012. He is a citizen of Iran.
The applicant lodged an application for a protection visa on 7 November 2012. A delegate of the Minister refused the application on 27 August 2013. The decision of the delegate was affirmed by the Refugee Review Tribunal (“RTT”) (as it was then) on 3 February 2015. The applicant then successfully sought judicial review of the RRT’s decision and the matter was remitted to the Administrative Appeals Tribunal (“the Tribunal”) by consent on 4 September 2015. The Tribunal conducted a hearing on 21 June 2016, and on 8 July 2016 again affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant seeks judicial review of the decision of the Tribunal.
The Applicant’s Claims
The applicant is a 33 year old Iranian. The applicant travelled to Australia with his wife by boat arriving as unauthorised maritime arrivals. The applicant’s brother and his brother’s wife were on the same boat. Remarkably, as the Tribunal recounts “the applicant has maintained for the last four years that they did not plan any part of the journey together and he was not aware of his brother's departure from Iran until they bumped into each other at Christmas Island as they got off the
boat”: see [31] of the Tribunal’s decision.
The applicant’s claims are identified in the reasons at [33] and following, which can be summarised as:
a)“…that he feared harm from a man who was pursuing - and wanted to marry - the applicant's wife.” The other man “was very influential and a member of the Iranian Intelligence Services, known in Persian as Etelaat.” The applicant claimed to have been detained and harmed at the instigation of this other man.
b)At the RRT hearing the applicant raised claims based upon having a tattoo and having long hair.
c)The applicant “claimed that he and his wife cannot prove their marriage because of the loss of their marriage certificate…. As a result of this the applicant will be subjected to sharia law and stoned to death for having a relationship outside of marriage.” It appears that the applicant and his wife are not in a close relationship (and may be estranged), having pursued two separate claims rather than a claim as a family.
d)In 2016 the applicant raised a claim based upon religion as he had decided to follow the Bahá’í.
The Tribunal rejected the applicant’s evidence, concluding that he had “fabricated the claims about problems he had in Iran in the past, and that he is not a genuine convert to the Bahá’í faith”: see [105]. The Tribunal set out detailed reasons for rejecting the applicant’s version of events identifying various inconsistencies in his evidence and noting the implausibility of him not knowing that his only brother was on the same boat from Indonesia. As a result of rejecting his evidence and relying upon country information the Tribunal rejected his claims.
The applicant’s case in this Court focuses upon how the Tribunal dealt with his claim to have converted to the Bahá’í religion and the operation of s.91R of the Migration Act 1958.
The Tribunal’s decision
The Tribunal member considers the issue of the applicant’s faith at great length. It appears in a number of different passages in the reasons:
57. In the 2016 statutory declaration the applicant raised a significant new claim: he had decided to follow the Bahá’í faith and he had been studying it for about a year and a half. He was still in the study phase which precedes the stage when one is formally accepted. He signed the document that testifies that he has accepted Bahá’í as his faith. The document has been sent to Israel where faith members will look at the document and at his faith before he is formally accepted.
58. The applicant came to the hearing on 21 June 2016 with two letters attesting to his conversion to the Bahá’í faith. Ms [S], in a letter of 18 June 2016, stated that the applicant has been involved with the Bahá’í faith for about 18 months and that his connection to the faith is "both genuine and sincere."
59. [SB], in an undated letter, is supportive and states that the applicant is engaged in Bahá’í related activities. According to that letter, the applicant and his wife are wonderful and have a lot of integrity. But the letter does not say anything specific about the genuineness of the applicant's conversion or attempted conversion.
…
83. The Tribunal asked the applicant about his faith. He said he was Bahá’í. He said he was still waiting for a card and he was studying with some friends who can testify that he is Bahá’í. When asked if he had sent some paperwork to Israel, he said not necessarily. He said he was attending a gathering with nine people. There is local, national and central level of the Bahá’í faith. At each level there are nine people. His request to join the faith was approved locally and has been passed on to the national level.
84. The Tribunal asked the applicant how often he goes to gatherings. He said once every 19 days, but they (converts who have not been approved) are not allowed into the administrative meetings, because they are not members as yet. He has also attended religious education classes.
85. The Tribunal advised the applicant that it had spoken with [Mr D], at the National Bahá’í Office in Sydnay (on [telephone number]) on Friday 17 June 2016 and that he advised the Tribunal the process of conversion is as follows:
When a person wants to convert, the local assembly follows them for "an extended period of time" (the expression is not defined, it may be months or years). After that the person signs a declaration card declaring that they believe and the local assembly signs the back of it.
86. The applicant said that there was a declaration card which was with “the lady”, one of the authors of the two letters that he provided to the Tribunal on the day of the hearing, [S], and she forwarded the documents to the National Assembly.
87. When asked if he had asked for an official confirmation letter from the local assembly, he said that they had rejected his request. That was why he had to get a letter from [S]. He said that he could show the Tribunal that he made several phone calls in the last two days. He became frustrated when they told him that they knew he was a convert, but could not give him a letter. When asked to specify exactly when his request was declined, he said some 7-8 months ago and then he tried again 2-3 months ago for this hearing.
88. The applicant said that he did not have a problem with the Tribunal contacting the Local Assembly or the National Assembly. He said that they would confirm that he has been attending gatherings for the last 18 months. But, he said, he could not force them to believe him.
89. The Tribunal raised s.91R(3) of the Act. The Tribunal explained that it must disregard conduct in Australia in relation to the Bahá’í faith unless satisfied that the applicant had engaged in the conduct otherwise than for the sole purpose of strengthening his claim to be a refugee The applicant reiterated that he has turned away from Islam, his life is important to him and even talking to a Bahá’í person in Iran is a crime. If he goes back to Iran, they believe that Bahá’í's are Israeli spies.
90. On 22 June 2016 the Tribunal contacted Mr [D] again. He confirmed that in April 2016 the National Assembly had received a declaration from the applicant endorsed by a local Victorian assembly. It has not officially been approved by the National Assembly yet.
91. The Tribunal discussed with the applicant his claims that he may be at risk of harm as a "returnee" from Australia or as a person who is a failed asylum seeker. The applicant confirmed that he left Iran on a genuine passport in his name.
…
123. In relation to the applicant's claimed conversion, the Tribunal observes that had the applicant been officially accepted into the faith by the National Assembly the Tribunal might well have reached a different view in relation to the genuineness of the applicant's conversion. However, a formal decision that the applicant is a genuine convert has not been made by the National Assembly in the applicant's case. The Tribunal finds that the applicant's decision to become involved with the faith was solely motivated by a desire to strengthen his claims to be a refugee.
124. The Tribunal observes that the applicant made no mention of his interest in the Bahá’í faith when he had a hearing with the RRT in January 2015, nor at any time up until the RRT made its purported decision in February 2015. The Tribunal considers that the applicant was still hopeful at the time that he would be granted a protection on the basis of the claims he had made at the time he first came to Australia, in particular the claims relating to [R] and the applicant's wife.
125. The Tribunal does not accept in the circumstances of this case that if the applicant was not genuine, he would have become involved with the Bahá’í faith earlier. The applicant told the Tribunal that he has been studying and otherwise been involved in the faith for about 18 months. The letter from Ms [SB] confirms that, although she says in the letter that she has personally known the applicant for "more than 12 months" rather than 18 months or more. The other letter is silent as to the when the applicant first developed an active interest in the religion.
126. The Tribunal finds that the applicant has fabricated his claims and rejects them in their entirety. The Tribunal finds that the applicant married his wife Ms [E] without any difficulty and there was no cousin called [R] who object to it. The applicant was never physically harmed in any way (including having his throat cut), harassed, detained, threatened, accused of anti-government activities, or asked to sign any documents to that effect. He has never been of any adverse interest to the authorities.
…
141. The Tribunal finds that the sole reason why the applicant has engaged with the Bahá’í faith is in order to strengthen his claims to be a refugee. Accordingly, the Tribunal must disregard the applicant's conduct in Australia. In reaching this conclusion the Tribunal has taken into account the letters of support provided at the hearing. The Tribunal finds that the applicant's involvement with the Bahai faith, his conduct related to the Bahai faith, has been for the sole purpose of strengthening his claim to be a refugee. The Tribunal must therefore disregard it under s.91R(3).
142. In any event, if the authorities do find out that the applicant has been associating with people from the Bahá’í faith and they ask him questions about his religious views, he would be telling the truth if he tells the authorities that he has never engaged in an exploration of the Bahá’í faith for any reason other than to try to remain in Australia. The Tribunal does not accept that the applicant has turned away from Islam and he will be perceived as a Bahá’í follower, an apostate, or a “spy” (for Israel or Australia or any other country).
143. The Tribunal considers, based on the country information set out below and discussed with the applicant at the hearing, that unless a person has a profile before they leave Iran or they engage in perceived or actual anti-government or anti-Islamic activities while abroad, they are not at risk of harm on return.
144. A person may be perceived to belong to a certain religion even if they formally do not. In the present case, taking into account the totality of the evidence, the Tribunal finds that the applicant will not be of any adverse interest to the authorities if he returns to Iran now or in the reasonably foreseeable future. The applicant himself acknowledged that he did not have the official, formal card indicating that he has abandoned Islam and has become a follower of the Bahá’í faith. Therefore, the applicant will not be perceived to be a follower of the Bahá’í faith.
Ground 1
Ground one of the application is in the following terms:
1. The Administrative Appeals Tribunal erred in failing to give information to the applicant that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, in breach of s424A of the Migration Act (“the Act”).
Particulars
a. In assessing the genuineness of the applicant's conversion to the Bahá’í faith, the Tribunal Member contacted the National Bahá’í Office on 17 June 2016 to obtain information about the applicant.
b. The information obtained from the National Bahá’í Office on 17 June 2016 (“the information”) undermined the applicant's claim that he was a genuine convert to the Bahá’í faith and in doing so, undermined the applicant's claim to be refugee.
c. The information was obtained under s424 of the Act and the Tribunal was bound by s424(1) of the Act to have regard to that information in making the decision on the review.
d. The information was the reason, or part of the reason, for affirming the decision under review.
e. The Tribunal did not give the information, or clear particulars of the information, to the applicant as required by s 424A of the Act.
The applicant points to a file note of a conversation between the Tribunal member and Mr D that appears at CB p.374. The terms of this information are brief, but important to the issue. That file note sets out:
ID. [xxxxxx78] 17/06/2016 03:22:00 PM Case Note
[Mr D], National Bahá’í Office, [Telephone number].
[Applicant]
When the local assembly has followed them for an extended period of time (the expression is not defined, it may be months or years), the person signs a declaration card declaring that they believe and the local assembly signs the back of it. They are advised of various matters, including that if they return to Iran they are at risk of persecution.
The card is then forwarded to the National Bahá’í Office who make the final decision. There is currently a queue of people, whom the National Assembly has not approved yet. They are concerned that Iranians are converting for an ulterior motive. Mr [D] said that nobody had been approved for the last couple of years.
When the person is approved by the National Assembly, they get a card which shows that they are Bahá’í.
I advised Mr [D] that for privacy reasons I did not want to disclose the identity of the person who claims to have converted. I told him that this applicant claims that they have written to the Israel HQ of the organization. He said that if anyone tried to contact the -office in Haifa, they would be referred back to the Office in Australia.
This information cannot have been about the applicant as his identity was not revealed during the enquiry. Counsel argued that, as was identified in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380, the test is not simply whether the information was about the applicant, but also whether it was about a ‘class of people’. In Baig’s case the court found that the Tribunal had made a clear error of fact with respect to a central issue of whether or not a by-election was held as alleged by the applicant, by relying upon an incorrect reading of press materials (although today that that error would likely be a ground for review on the basis discussed in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317). Gray J concluded that s.424A(3)(a) requires the information to be about a ‘class of persons’, therefore the information about the by-election was information that required a s.424A letter. The interpretation in Baig’s case of s.424A(3)(a) as a contextual rather than objective test (that is, having regard to the use to which the information is to be put, not simply the objective nature of the information) has been accepted by two full courts: see NARV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 262 and VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Whilst the information was used in the Baig sense, in this case the information was not used as a reason for refusing the application, rather it confirmed the process that was to be adopted and provided an explanation for why formal acceptance of the applicant may not have occurred by the time of the hearing.
There is no file note of the second conversation with the National Assembly, but a summary appears in [90] of the Tribunal’s reasons (set out above). This information was clearly about the applicant and therefore not covered by the exception in s.424A(3)(a) relating to general information. However, as was submitted by counsel for the Minister at [9]:
…information (that the National Assembly had not approved the applicant's membership of the faith) was consistent with the applicant's evidence in his statutory declaration made 16 June 2016 at [67]-[70] (CB 364). … the applicant’s status as a member of the Bahá’í faith was discussed with him at the Tribunal's hearing and he accepted that he had not been approved at the national level: [83], [86] (CB 394-395).’
As a result, the relevant information was also given to the Tribunal by the applicant and for this reason the information falls within the exception in s.424A(3): see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [91], [172] and [264]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; and SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3.
I therefore find that this ground cannot succeed.
Ground 2
Ground two of the application is in the following terms:
2. The Administrative Appeals Tribunal erred in failing to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, in breach of s425 of the Act.
Particulars
a. The question of whether the applicant's conversion to the Bahá’í faith was genuine was an issue arising in relation to the decision under review under s425 of the Act.
b. The information obtained from the National Bahá’í Office on 17 June 2016 undermined the applicant's claim that he was a genuine convert to the Bahá’í faith and in doing so, undermined the applicant's claim to be refugee.
c. The Tribunal failed to inform the applicant of the nature and content of the information, and did not give the applicant a sufficient opportunity to give evidence, or make submissions, about this information.
This ground was developed on the basis that the Tribunal failed to provide the applicant with the information from the National Assembly that they had concerns about a number of Iranian applications, in circumstances where he was Iranian.
There is no transcript before the court to show what actual discussions the member had with the applicant. The concern of the National Assembly with respect to false claims, particularly by an ethnic group, does nothing to answer the claims of this individual applicant. Converting the information into a racial stereotype and using it against an applicant would be improper. There is no evidence that the Tribunal member did this and no reason to suspect that a Tribunal member would do this. The decision does not mention this information, presumably because it is not a fact that would be relevant, and therefore it is not something that one would expect to see in the reasons.
I am not persuaded that the applicant has established either: first, that this was not discussed at the hearing (as there is no transcript); and secondly, that it was a fact or circumstance that was probative or in some way influenced the member’s decision.
Ground 3
Ground three of the application is in the following terms:
3. The Administrative Appeals Tribunal acted in a way that was legally unreasonable, or alternatively, illogical or irrational, in determining that the applicant's conversion to the Bahá’í faith was not genuine.
Particulars
a. The Tribunal put a high and/or determinative level of reliance on the fact that the National Assembly had not officially accepted the applicant into the Bahá’í faith. The Tribunal stated that if the National Assembly had accepted the applicant the Tribunal “might well have” found that the applicant's conversion was genuine.
b. The information obtained from the National Bahá’í Office on 17 June 2016 included information that nobody had been approved for “the last couple of years”.
c. It was legally unreasonable, or alternatively, illogical or irrational, for the Tribunal to rely on the lack of approval from the National Assembly in its decision about whether the applicant's conversion was genuine, when the Tribunal was aware that nobody had been approved for “the last couple of years”.
d. The Tribunal failed to properly consider and weigh evidence from the National Assembly and from the applicant that the applicant:
i. had been engaged with the faith for an extended period of time;
ii. had signed a declaration of his belief in the faith;
iii. that declaration had been endorsed by a local Victorian assembly; and
iv. that declaration had been sent to and received by the National Assembly for consideration.
e. The Tribunal failed to discharge its statutory duty and to properly evaluate or reach the required state of satisfaction in relation to the genuineness of the applicant's conversion to the Bahá’í faith.
An extensive analysis of the applicant’s credibility is set out in the reasons. The parts of the reasons set out above, dealing with the Bahá’í issue shows that the Tribunal seriously and carefully analysed the evidence before it.
It was clearly open to the Tribunal to reject the applicant’s evidence in light of the inconsistencies identified, and the implausible nature of some of his evidence (such as not knowing his brother was on the same boat from Indonesia).
As discussed above, the Tribunal member does not appear to have used the fact that the National Assembly had not yet accepted the applicant as evidence against him. That the Tribunal indicated, that had there been acceptance this would be relevant and perhaps significant evidence merely shows that the views of the National Assembly would be given serious weight if they had expressed a view supporting the applicant.
I am not satisfied that the applicant has made out a case in respect of this ground.
Ground 4
A fourth ground was raised in the written submissions of the applicant:
The Tribunal acted legally unreasonably, or alternatively, illogical or irrational, in determining that the applicant would not be perceived as being of Bahá’í faith
The applicant argued that it was not open to the Tribunal to make the finding in [144] that:
144. …The applicant himself acknowledged that he did not have the official, formal card indicating that he has abandoned Islam and has become a follower of the Bahá’í faith. Therefore, the applicant will not be perceived to be a follower of the Bahá’í faith.
The finding was supported by reasoning in the two paragraphs before the conclusion that the applicant “would be telling the truth if he tells the authorities that he has never engaged in an exploration of the Bahá’í faith for any reason other than to try to remain in Australia.” As a result the Tribunal did “not accept that the applicant has turned away from Islam and he will be perceived as a Bahá’í follower, an apostate, or a “spy” (for Israel or Australia or any other country)”: see [142].
The Tribunal also considered country information and concluded that “unless a person has a profile before they leave Iran or they engage in perceived or actual anti-government or anti-Islamic activities while abroad, they are not at risk of harm on return”: see [143].
I am note persuaded that the applicant has shown a ground of review in this regard.
Conclusion
In the circumstances of this case I am not persuaded that the Tribunal committed a judicially reviewable error.
I therefore dismiss the application.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 29 June 2018
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