CJZ17 v Minister for Immigration
[2019] FCCA 495
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJZ17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 495 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant claiming a fear of harm in Iran due to conversion to Christianity – Tribunal finding that the conversion occurred but was not genuine – whether the Tribunal erred by not considering the risk of harm due to the fact of conversion – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 91R |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 CCK16 v Minister for Immigration [2018] FCA 1963 |
| First Applicant: | CJZ17 |
| Second Applicant: | CKA17 |
| Third Applicant: | CKB17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1732 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Barriston Lawyers |
| Solicitors for the Respondents: | Mr J Hutton of Australian Government Solicitor |
ORDERS
The application as amended by leave granted on 1 March 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1732 of 2017
| CJZ17 |
First Applicant
| CKA17 |
Second Applicant
| CKB17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the Minister filed on 21 February 2019.
The applicants are citizens of Iran. The applicants arrived in Australia on 6 September 2014 as transit passengers.[1] On 17 September 2014, the applicants applied for the protection visas.[2]
[1] bundle of relevant documents (RD) 200
[2] RD 1-48
Prior to the delegate’s decision, the applicants’ agent provided the Minister’s Department a large amount of material in support of the application, including the details of previous applications made in Germany and Norway.
On 10 September 2015,[3] the delegate refused to grant the applicants protection visas.[4] On 15 September 2015, the applicants applied to the Tribunal for review of the delegate’s decision.[5] The applicants were invited to attend, and attended Tribunal hearings on 24 and 28 March 2017 and 4 April 2017.[6]
[3] incorrectly dated 18 September 2015
[4] RD 193-223
[5] RD 224-225
[6] RD 255, 266, 286
On 11 April 2017, the first applicant requested a postponement of the decision for three months. On 13 April 2017, the Tribunal advised the first applicant that this request had been refused.[7] On 12 May 2017, the Tribunal affirmed the decision of the delegate not to grant the applicants protection visas.[8]
[7] RD 297-299
[8] RD 301-333
Protection claims
In summary, the first applicant claimed that:[9]
a)in 2004, while living in Germany, he converted from Islam to Christianity;
b)when he returned to Iran in January 2013, he was arrested and detained for two days and then required to appear in the Family Court;
c)his ex-wife told the authorities about his conversion to Christianity and he was required to pay her “Mehriyeh”, a spousal settlement payment, of 1000 gold pieces;
d)on two occasions, he was sent to prison and tortured on the basis of his conversion to Christianity. He told the authorities that the baptism certificate was fake and denied everything;
e)after he was released, he fled Iran with the assistance of his brother and a people smuggler; and
f)he feared to return as the authorities would find out that his baptism certificate was not a fake and he would be killed because of his conversion.
[9] RD 108-111
The second and third applicants did not make claims in their own right, and claimed to be members of the same family unit as the first named applicant.
Tribunal decision
The Tribunal set out the history and background to the application.[10] The Tribunal accepted that:
a)the first applicant moved to Germany and sought asylum on grounds of actual or imputed political opinion in and outside Iran, and this application was refused;[11]
b)in January 2004, there was a conflict between the first applicant and his first wife, and in April 2004, the first applicant was baptised in Germany, and shortly thereafter sought the assistance of the church to relocate to Canada;[12] and
c)in June 2004, the first applicant married the second applicant, and in April 2005, the first and second applicants moved to Norway. The applicants applied for, and were refused protection in Norway.[13]
[10] RD 309-315 at [17]-[45]
[11] RD 315 at [47]-[48]
[12] RD 315 at [49]
[13] RD 315-316 at [49]-[51]
The Tribunal made a number of credibility findings about the evidence given by the first applicant. The Tribunal found his evidence to be “evasive, implausible, vague, contradictory and unconvincing” and it found that “[t]here were significant inconsistencies within his evidence and between his evidence and the second named applicant’s evidence”.[14] Specifically, it found that:
a)the first applicant gave varying evidence about documents his first wife purportedly gave to the Iranian Government/Islamic Revolutionary Court and the manner in which she purportedly gave these documents;[15]
b)there were plausibility issues about his wife having a copy of his baptism certificate, because he claimed to be baptised after they separated;[16]
c)the first applicant gave varying evidence about when he attended the Family Court in Iran, including whether it had jurisdiction to deal with his conversion to Christianity,[17] as well as varying evidence about what happened when he appeared before the Islamic Revolutionary Court;[18]
d)the first applicant made new claims about being charged, but not convicted of converting to Christianity;[19]
e)the first applicant’s claims about his detention in Iran were implausible and inconsistent with other evidence about his work and travel;[20] and
f)when it asked the first applicant about his Christianity and found that his knowledge of the Bible is not consistent with his claims that he had been practicing Christianity since 2004.[21]
[14] RD 313 at [37]
[15] RD 317 at [58]-[60]
[16] RD 317 at [57]
[17] RD 318 at [61]
[18] RD 318 at [64] to [66]
[19] RD 318 at [63]
[20] RD 319-322 at [67]-[82]
[21] RD 326 at [108]
The Tribunal therefore did not accept that the first applicant’s first wife or her lawyer informed the Iranian authorities that he had converted to Christianity or that he was involved in any political activities. The Tribunal was of the view that the first applicant fabricated these claims for the purpose of strengthening his protection visa application.[22]
[22] RD 324-325 at [97]-[99]
The Tribunal considered the first applicant’s claims in relation to his conversion to Christianity, including the evidence provided by his supporting witnesses.[23] The Tribunal made its ultimate findings on the first applicant’s claims about his conversion to Christianity under the refugee criterion at [119]-[121] of the decision record. It found that:
a)the first applicant was baptised on 1 April 2004;
b)it was not satisfied that the first applicant was or is a genuine convert to Christianity;
c)the first applicant did not practise Christianity after he returned to Iran in 2004;
d)the first applicant may have attended Bible classes in Norway for the purposes of obtaining asylum in Norway, but he did not practise Christianity when he returned to Iran in 2013;
e)it was not satisfied that the Iranian authorities were aware of the first applicant’s baptism in Germany on 1 April 2004 or of any of his church related activities. It follows that he was not of adverse interest of the Iranian authorities for these reasons;
f)even if the Iranian authorities were aware of the first applicant’s baptism and activities, what would be of concern would be what he does on return to Iran;
g)it was not satisfied that the first applicant would practise or have any desire to practise Christianity if he returns to Iran; and
h)it follows that he would not be of adverse interest to the Iranian authorities for this reason.
[23] RD 325-328 at [105]-[118]
The Tribunal concluded by finding that “there is no real chance that [the first applicant] would be at risk of persecution for reason of his actual or implied religion if he returns to Iran now or in the reasonably foreseeable future”.[24]
[24] RD 328 at [121]
Having considered the applicants’ claims individually and cumulatively, the Tribunal found that there was no real chance that the first applicant would be at risk of persecution for a Refugees Convention reason.[25]
[25] RD 331 at [135]
With regards to its consideration of the complementary protection criterion, the Tribunal was not satisfied that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Iran, there was a real risk that he would suffer significant harm.[26] In terms of his conversion to Christianity, the Tribunal found that:[27]
a)the first applicant had been baptised in 2004 and had attended church in Germany and Norway, but it was not satisfied that he was of adverse interest to the Iranian authorities for these reasons. However, even if they were aware of this, the Tribunal considered that they would only be concerned with what the first applicant would do on return to Iran;
b)the Iranian authorities would not be aware of his attendance at church in Australia and, in any event, he would not be of adverse interest for these reasons; and
c)the first applicant is not a genuine convert to Christianity and so he would not have a desire to practise Christianity on return to Iran. If returned his conduct would not bring him to the adverse attention of the Iranian authorities.
[26] RD 331-332 at [136]-[145]
[27] RD 332 at [141]-[144]
The Tribunal then concluded, by reference to the matters in s.36(2A) of the Migration Act 1958 (Cth) that it was not “satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm”.[28]
[28] RD 332 at [144]
The current proceedings
These proceedings began with a show cause application filed on 2 June 2017. At the trial of this matter on 1 March 2019, and over the objection of the Minister, I granted the applicants leave to rely upon an amended application lodged on 13 February 2019.[29]
[29] filed the following day
The matter was listed for a final hearing before me on 27 February 2019. On that day, counsel for the applicants requested a short adjournment due to illness. The listing was vacated and the matter relisted for hearing on 1 March 2019.
At the commencement of the trial, counsel for the applicants sought a further adjournment on the basis of an application for special leave to appeal against a decision of the Federal Court.[30] Counsel submitted that the issue in that case is essentially the same as the issue in this case. I declined the further adjournment application on the basis that, even if the legal issue was the same, these cases are fact dependent and the adequacy of the Tribunal’s reasons for its decision must be assessed on the terms of its own decision.
[30] CCK16 v Minister for Immigration [2018] FCA 1963
I have before me as evidence the book of relevant documents filed on 28 September 2017.
Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their legal representatives at the trial.
Consideration
The grounds in the application as amended by leave are as follows:
Ground 1: The Tribunal erred by failing to distinguish the first applicant's claims as an apostate under refugee criterion from the complementary criterion
1. The decision by the Tribunal was affected by jurisdictional error as the Tribunal erred by conflating the findings regarding the applicant's conversion to Christianity under the refugee criterion at [119]-[120] with the applicants claims of apostasy under the complementary criterion at [143] of the decision record. The Tribunal therefore constructively failed to review the applicant's claims of apostasy under the complementary criterion, giving rise to reviewable error.
Particulars
The Tribunal’s findings under the refugee criterion regarding the conversion to Christianity
a) At [119], the Tribunal “accept[ed] that the first named applicant was baptised at the Lutheran Parish of Martin Luther at Bad Harzburg in Germany on 1 April 2004.” However, the Tribunal was “not satisfied that he was or is a genuine convert to Christianity.”
119. The Tribunal accepts that the first named applicant was baptised at the Lutheran Parish of Martin Luther at Bad Harzburg in Germany on 1 April 2004. The Tribunal is not satisfied that he was or is a genuine convert to Christianity. It follows that the Tribunal does not accept that he practised Christianity after he returned to Iran in 2004. The Tribunal accepts that he may have attended Church and Bible study classes in Norway. The Tribunal is of the view that he did so to for the purpose of enhancing his prospects of obtaining asylum in Norway and not because he was a genuine convert to Christianity. The Tribunal does not accept that he practised Christianity after he was deported from Norway to Iran on 17 January 2013.
b) At [120], the Tribunal was “not satisfied that his attendance at Church services and Bible study classes is otherwise than for the purpose of strengthening his claims to be a refugee and therefore is required under s.91R(3) of the Act to disregard this conduct in its assessment of his well-founded fear of persecution.”
120. The Tribunal does not accept that the first named applicant started attending Church at Parramatta one week after his arrival in Australia. The Tribunal accepts that he started attending the Liberty Baptist Church at North Rocks on 30 November 2014, four days before his interview with the Department on 4 December 2014. The Tribunal accepts that he has attended Church services and Bible study classes at this Church. The Tribunal is not satisfied that his attendance at Church services and Bible study classes is otherwise than for the purpose of strengthening his claims to be a refugee and therefore is required under s.91R(3) of the Act to disregard this conduct in its assessment of his well-founded fear of persecution.
The Tribunal findings under the complementary criterion regarding apostasy
c) The Tribunal erred by failing to examine entirely the applicant's claims of apostasy under the complementary criterion and by conflating the findings regarding the applicants claims regarding apostasy under the refugee criterion at [120] with the applicants claims of apostasy under the complementary criterion at [143] of the decision record.
143. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a genuine convert to Christianity. It follows that the Tribunal is not satisfied that he would practise Christianity if he returns to Iran or that he would have any desire to do so. In view of the above findings, the Tribunal is satisfied that his conduct if he returns to Iran now or in the reasonably foreseeable future would not bring him to the adverse attention of the Iranian authorities.
Jurisdictional error
d) It was not enough for the Tribunal to simply dismiss the applicant’s claims for protection as an apostate under the complementary criterion by applying the Tribunal's findings under the refugee criterion. The Tribunal failed to appreciate that the considerations under the refugee criterion are different in kind to the considerations under the complementary criterion. The Tribunal erred by failing to examine entirely the first applicant's claims of apostasy under the complementary criterion and by conflating the findings regarding the applicants claims regarding apostasy under the refugee criterion from [119]-[120] with the applicants claims of apostasy under the complementary criterion at [143] of the decision record. As a consequence, the Tribunal failed to constructively review the applicant's claim of apostasy under the complementary criterion, giving rise to reviewable error.
In short, the applicants contend that the Tribunal conflated its consideration of the first applicant’s asserted conversion to Christianity with the issue of whether he would be tried as an apostate under Sharia law. Further, it is asserted that the Tribunal conflated its consideration of the issue under the refugee criterion with its later consideration of the same issue under the complementary protection criterion.
The first applicant did not specifically make any claim to fear harm in Iran as an apostate. His claim was to fear harm as a convert to Christianity. It is, nevertheless, tolerably clear that the possibility of a criminal proceeding against the first applicant under Sharia law for apostasy was an issue arising in the review. Indeed, the first applicant asserted that there had been a proceeding but that he was not convicted.[31]
[31] see the Tribunal decision at [61], [115] and [142]
The issue is somewhat theoretical as the Tribunal did not accept the first applicant’s claims concerning the alleged revelation of conversion made in Iran by his estranged first wife (although he had undergone a form of conversion in Germany) and neither did the Tribunal accept that the first applicant engaged in any Christian activities while he was in Iran prior to coming to Australia. The Tribunal also rejected the claim that the issue of apostasy had been considered by the Iranian Family Court (which the first applicant had claimed lacked jurisdiction) and the Islamic Revolutionary Court (which, on the first applicant’s account, did not convict him of apostasy).
Whether the issue is characterised as exposure to prosecution for apostasy, or exposure to harm in Iran for having gone through a form of conversion and for attending Christian church in Australia, the issue remaining for the Tribunal to determine, after it had rejected the first applicant’s factual claims, was whether the Iranian authorities would find out that the first applicant had gone through a form of conversion and had attended Christian church activities in Norway and Australia, albeit not genuinely.
In my opinion, the Tribunal dealt with that issue adequately, both in relation to the refugee claim and in relation to the complementary protection claim. The first applicant’s principal focus of attention is on the complementary protection claim. In relation to that claim, the Tribunal stated the following at [139]-[143]:[32]
The Tribunal has accepted that the first named applicant was baptised at the Lutheran Parish of Martin Luther at Bad Harzburg in Germany on 1 April 2004. The Tribunal was not satisfied that he was or is a genuine convert to Christianity, The Tribunal did not accept that he practised Christianity after he returned to Iran in 2004. The Tribunal has accepted that he may have attended Church and Bible study classes in Norway. The Tribunal was of the view that he did so to for the purpose of enhancing his prospects of obtaining asylum in Norway and not because he was a genuine convert to Christianity. The Tribunal did not accept that he practised Christianity after he was deported from Norway to Iran on 17 January 2013.
The Tribunal did not accept that the first named applicant started attending Church at Parramatta one week after his arrival in Australia. The Tribunal has accepted that he started attending the Liberty Baptist Church at North Rocks on 30 November 2014, four days before his interview with the Department on 4 December 2014. The Tribunal has accepted that he has attended Church services and Bible study classes at this Church.
The Tribunal was not satisfied that the Iranian authorities are aware of the first named applicant's baptism in Germany on 1 April 2004 or of any of his Church related activities in Germany and Norway. The Tribunal was not satisfied that he was or is of adverse interest to the Iranian authorities for these reasons. The Tribunal was of the view that even if they are aware of it, which it did not accept, what would be of concern to the Iranian authorities is what he does on his return to Iran.
The Tribunal was not satisfied that the first named applicant's attendance at Church services and Bible study classes at the Liberty Baptist Church at North Rocks was otherwise than for the purpose of strengthening his claims to be a refugee and therefore was required under s.91R(3) of the Act to disregard this conduct in its assessment of his well-founded fear of persecution. The Tribunal is mindful that s.91R(3) of the Act does not apply with respect to conduct in the context of complementary protection. The Tribunal has considered whether the Iranian authorities would be aware of his Church related activities in Australia and whether he would be of adverse interest to the Iranian authorities for this reason. The Tribunal is not satisfied, on the evidence before it, that the Iranian authorities are aware of his Church related activities in Australia and, even if they are aware of them, he would be of adverse interest to them for that reason.
For the reasons given above, the Tribunal is not satisfied that the first named applicant is a genuine convert to Christianity. It follows that the Tribunal is not satisfied that he would practise Christianity if he returns to Iran or that he would have any desire to do so. In view of the above findings, the Tribunal is satisfied that his conduct if he returns to Iran now or in the reasonably foreseeable future would not bring him to the adverse attention of the Iranian authorities.
[32] RD 331-332
I see no error in the Tribunal’s approach. I otherwise agree with the submissions of the Minister on the issues raised in the amended application.
The Tribunal squarely dealt with the first applicant’s claims to have converted from Islam to Christianity. Its conclusions that the Iranian authorities would either not know about his conversion, or not care about his purported conversion, would have dealt with any issue of apostasy.[33]
[33] see Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
The first applicant’s claims that the “Tribunal failed to appreciate that considerations under the refugee criterion are different in kind to the considerations under the complementary protection criterion”[34] are unfounded. The Tribunal considered and rejected the first applicant’s claims to fear harm having converted to Christianity. It then specifically applied the test under the refugee criterion[35] and the alternate test under the complementary protection criterion.[36] A specific example of the Tribunal’s differentiation of the relevant tests is that under the refugee criterion the Tribunal discounted the first applicant’s attendance at church in Australia[37] but did not do so under the complementary protection criterion.[38] This was because the Tribunal was mindful that s.91R(3)[39] did not apply in the assessment of complementary protection.[40]
[34] applicants’ submissions at [7]
[35] RD 328 at [121]
[36] RD 322 at [144]
[37] RD 328 at [120]
[38] RD 332 at [142]
[39] the relevant provision was in fact s.5J(6)
[40] RD 332 at [142]
Conclusion
The applicants are unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 15 March 2019
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