CKD17 v Minister for Immigration

[2018] FCCA 504

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKD17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 504

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5J

First Applicant: CKD17

Second Applicant: CKE17

Third Applicant: CKF17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 515 of 2017

Judgment of: Judge Vasta

Hearing date: 26 February 2018

Date of Last Submission: 26 February 2018

Delivered at: Brisbane

Delivered on: 26 February 2018

REPRESENTATION

Counsel for the Applicant: Mr W.J. Markwell

Solicitors for the Applicant: Paul Gallagher & Janelle Saffin

Counsel for the Respondent: Ms S. Forder

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the Application filed 2 June 2017 and Amended on 12 February 2018 be dismissed.

2. That the Applicants pay the First Respondent’s costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 515 of 2017

CKD17

Applicant

CKE17

Applicant

CKF17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 2 June 2017, and by amended application filed on 12 February 2018, the Applicant CKD17, together with the Applicant’s child, CKE17, and the Applicant’s wife, CKF17, have asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”).  That decision itself affirmed a decision by the delegate of the Minister not to grant the Applicants protection visas. 

2. The Applicants are citizens of Iran.  CKD and CKF say that they are atheists.  Iran is almost what would be known as a theocracy, so persons who are atheists may tend to not be in tune with their government.  Having an atheistic outlook and having a political view that is not in tune with the theocracy in Iran makes Iran a very undesirable place for someone in the position of CKD to live.  That is obvious by the number of times that CKD has attempted to leave. 

3. CKD says that in 1989 or 1990 he was operating a video rental shop.  That shop specialised in Bollywood films.  The Bollywood type film depicts a lifestyle that is somewhat inconsistent with a strict Islamic lifestyle. 

4. The Applicant claims that members of the Basij and Sepah raided his store, beat him, detained him overnight, and he appeared in Court and ended up receiving a suspended sentence. 

5. After this time, he had voiced hatred towards Iran’s religious paramilitary, and his uncle arranged for him to go to Japan.  He went to Japan.  He worked there for three years. 

6. When he returned to Iran, he worked as a taxi driver for five or six years and started a carpentry business.  The Applicant claims that the business did not do well, as he felt he was being watched constantly. 

7. He then went to South Korea and he worked there for three years.  He claimed that when he returned to Iran from South Korea, his passport was damp and the pages stuck together.  He said that he was questioned on arrival in Iran about the condition of his passport. 

8. After returning from Korea, he found that the environment and community in Iran was suffocating, so he decided to go to Thailand around 2005.  He obtained a counterfeit passport, and he planned to travel to New Zealand. 

9. However, when he travelled from Thailand to Malaysia, the passport was discovered not to be genuine, and he was returned to Iran.  He says that he became very anxious and distressed, but began to have hope when the 2009 protests commenced. 

10. He said that he and the wife participated in demonstrations in 2009.  When things began to intensify, they ran away, but were not caught.  The Applicant said that he was overcome by anxiety and he began to feel unwell and he had difficulty breathing after this. 

11. He then claimed that he used to use a small television satellite dish to listen to a particular persons’ broadcast, and that person’s broadcasts were quite “anti” the Iranian establishment.  He said that he started recording some of those broadcasts, and he would distribute it to people he knew. 

12. And he said that one day he gave a friend a USB stick with a lecture on it, and police were nearby and went to his friend, who hopped on his motorcycle and sped away.  As police officers went to follow his friend, the Applicant said that he drove away in his car.  He was scared and shaking, he felt physically unwell due to stress, and that’s when he knew he had to leave Iran. 

13. He said that he has posted lectures by this person on Facebook, and he has posted other anti-Islamic articles, and he said that if that was seen by persons in Iran, that he will be in danger; and if he is returned to Iran he would be detained, beaten, and killed.  His wife said that she noticed a man taking photographs of her in a park around 2010, and she said from his dress that he was either Basij or Sepah.  The two of them fear imprisonment, torture, and execution, and of being accused of being spies. 

14. They fear harm; that their oldest son’s friends, who are religious and are related to the authorities, may be giving information to the authorities about them.  The Applicant wife is very active on social media, and she’s a member of the official site of a particular group that that is atheist or agnostic Iranians. 

15. With that sort of background, it is obvious that the Applicants and Iran are not a good fit. 

16. The Applicant was able to leave Iran legally and travel to Indonesia via Dubai.  Once in Indonesia, it seems that, though there is no evidence to this effect, he hopped aboard an illegal people smuggling vehicle, and ended up in Christmas Island some six days after boarding the boat.  

17. He now claims protection.  As was made obvious by both the delegate and the IAA, protection requires a far greater level of criteria to be filled rather than just a simple disagreement with, or a preference not to live in a particular country. 

18. The IAA thoroughly assessed the claims and then affirmed the decision. 

19. In this application, the Applicant argues the following ground: 

    “2. The Second Respondent has not considered that the First Applicant (and subsequently the Second and Third Applicants) has a well-founded fear of persecution and accordingly Australia has an obligation to provide protection section 36(2)(a) of the Migration Act 1958. The Second Respondent has not considered both the subjective and objective elements of the First Applicant’s claim of a well-founded fear of persecution.

    Particular

    The First Applicant has suffered repeatedly at the hands of the Iranian Regime, and the First Applicant has fled Iran and lived in different countries numerous times, only to be removed back to Iran on each occasion.  The First Applicant has been in constant fear of the Iranian Regime and what it could or would do to him and his family.” 

20. This argument was expanded upon by Mr Markwell in his both written submissions and in his oral submissions to me. 

21. The gravamen of the claim is that the Tribunal has not gone through the matters in the formulaic manner in which they list out “These are the subjective matters, and these are the objective matters, and these are the conclusions that we make.” 

22. It is obvious, from my recitation of those facts which are drawn from the reasons given by the IAA, that those subjective fears were considered by the IAA. The fact is that what the IAA did, was to do what they need to do pursuant to s.5J of the Migration Act 1958 (Cth) (“the Act”). That section relevantly says

    “(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

    (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c) the real chance of persecution relates to all areas of a receiving country.”

23. The Applicant was inferring that the Tribunal had to first identify the subjective fears and then look at the objective fears to see if the objective fears either corroborated, or ended up meaning that, the subjective fears had no real basis.  That does not seem to be the test that the legislation is asking the Minister and then the IAA to undertake. 

24. The summary given by the IAA at paragraph 8 of its reasons seems to me to state the law properly.  That is, that the well-founded fear of persecution involves a number of components which include that

    a)the person fears persecution and there is a real chance that the person would be persecuted; 

    b)the real chance of persecution relates to all areas of the receiving country;

    c)the persecution involves serious harm, and systematic and discriminatory conduct; 

    d)the essential and significant reason or reasons for the persecution is race, religion, nationality, membership of a particular social group or political opinion; 

    e)the person does not have a well-founded fear of persecution if effective protection measures are available to the person and

    f)the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour other than certain types of modification. 

    Those last two aspects do not really apply in this case. 

25. The IAA has looked at all of these matters.  The IAA, first off, looked at the aspect regarding the Applicant simply being persecuted because he was an atheist.  Whilst that may form some form of subjective fear, it was not well-founded according to the IAA.  This was because the country information showed that only around 17 per cent of Iranians actively practice Islam and that Iran has one of the lowest mosque attendance rates in the Muslim world.  Country information was that authorities are highly unlikely to monitor religious observance by Iranians; for example, whether or not a person regularly attends the mosque or participates in religious occasions. Thus it would generally be unlikely that it would become known that a person was no longer faithful to Islam. 

26. Even if this monitoring could conceivably be occurring, one must look at the time that the Applicant has been in Iran, which would seem to be from, if one looked at the period from 1990, when the video store was raided, to 2013, when it seems the Applicant left Iran. That is some 23 years, take away the six or seven years that he spent outside of the country. During that time, there were no ill effects on the Applicant or his family for his lack of religious observance.

27. The IAA noted that, whilst the Applicant had been questioned at the border regarding the poor condition of his passport, his ability to openly travel in and out of Iran without incident indicated strongly that he had no profile of interest to Iranian authorities, and certainly not in 2013, when he left Iran. 

28. The Applicant’s subjective fear of retribution for taking part in the 2009 protests were considered, but the IAA  noted that there were large demonstrations in Tehran with 1 million participants. 

29. The IAA accepted that along with hundreds of thousands of other individuals, the Applicants participated in protests, but nothing occurred after the protests. 

30. The only allegation that has really been made was that the Applicant wife said that two years later she was at a park and someone dressed like Basij or Sepah was photographing her.  The IAA found as a fact that they did not accept that there was a link between the person purportedly photographing the Applicant wife in a public park two years after the 2009 protests and the Applicant’s participation in the protests. 

31. The IAA was not satisfied that the Applicants face a real chance of harm as a result of participation in the 2009 protests. 

32. The satellite television broadcast that the Applicant said he was watching or listening to must be tempered by this information:  that there are about 8 million satellite dishes in Iran, and between 85 and 90 per cent of the population have access to satellite channels.  Country information is that one of the most–watched programs on the satellite television is Sarzamin Javid, hosted by the person (Mesheri) whom the Applicant talked about giving anti-authoritarian lectures. 

33. That person is known quite openly to question several stereotypes of Shia Islam, and focuses on historical facts and asks the population, in effect, to think and re-evaluate their Persian patriotism.  The country information notes that this person’s influence reaches not only young people, but also part of the older generation that participated in the Iranian revolution but still feels marginalised and dissatisfied by that republic. 

34. The claim, that the friend was chased because of the USB being given to the friend and that the friend managed to escape on a motorbike whilst the husband managed to drive away without being chased or apprehended, was a claim that was not accepted by the IAA. 

35. The IAA said that while the Applicant husband may have recorded some Mesheri and distributed them to his friends, there was no country information that Iranian authorities routinely monitor or investigate viewers of Mesheri’s broadcast, or that those persons are subjected to harm as a result. 

36. Therefore, the IAA did not accept that the Applicant faces a real chance of harm as a consequence of watching or distributing the programs. 

37. As far as the Facebook material is concerned, and such material seems to have been posted on Facebook after the Applicant and his wife have left Iran, this was done because the Applicant husband said that he felt the need to share his opinions, and that the wife is a member of the groups that are Iranian atheist and agnostic groups. 

38. The IAA accepted that Iranian authorities have conducted targeted surveillance to monitor, in Iran, internet users of Facebook and other social media and digital platforms.  However, the IAA did not accept as plausible that Iranian authorities have the capacity to conduct widespread online surveillance of the five to seven million people in the Iranian diaspora. 

39. The country information suggests that it’s more a case that individuals’ offline, non-digital activities draw the attention of authorities to social media contributions.  There is no evidence to indicate that the Applicants have activist or dissident profiles to the extent that their offline activities would have come to the attention of Iranian authorities.

40. Therefore the IAA was not satisfied that the Applicants face a real chance of harm as a result of their Facebook activities or the wife’s membership of the Facebook groups. 

41. The IAA accepted that the wife had carried a water bottle during Ramadan, and she hid, because police officers appeared.  The IAA accepted that she may have been yelled at by a police officer, who believed that she was not wearing her headscarf correctly.  The IAA accepted that Iran was a heavily patriarchal society and that penalties apply to women who fail to cover their head and adhere to a strict Islamic dress code. 

42. But the recent country information from DFAT was that whilst legal provisions, including the penal and civil codes, discriminate against women, the actual constitution of Iran provides for equal rights for women, and that the government has done a number of things in the last number of years to increase the participation of women in social issues and to give them a voice in the judicial system. 

43. The IAA concluded that it did not consider that having to conform with Iran’s dress code amounts to serious harm, or that, as a woman, the wife had suffered treatment in Iran of a nature that amounts to serious harm. 

44. There was no evidence to indicate that, on a return to Iran, the wife would uncover her hair, and the IAA was not satisfied that she would contravene Iran’s dress code on return. 

45. The IAA said that they consider that, in this regard, the Applicant was not modifying her behaviour in the past, and that she would not be doing so in the future, and therefore the IAA did not consider that she faces a real chance of harm in Iran on account of her gender. 

46. The IAA looked at the husband’s health issues, and concluded that the Iranian government has demonstrated effective healthcare delivery, which is part of their Constitution, and it was available to citizens in Iran.  The IAA found that they were not satisfied that there was a real chance that the Applicant husband would suffer harm arising from his medical condition. 

47. The IAA looked at whether there would be harm from them returning to Iran as failed asylum seekers, but concluded that, in the absence of a dissident profile, there is no real chance that the Applicants would be harmed for claiming asylum in Australia.

48. The dissertation that I have just conducted shows that there was a consideration of the subjective elements of s.5J as well as a consideration of the objective elements of s.5J.

49. In the end, the IAA came to a conclusion that the criteria were not met.  Such a conclusion was well and truly open on the evidence. 

50. As the Applicant only points to a failure to consider the subjective and objective elements of s.5J as the jurisdictional error, it follows that, for the reasons I have just given, there is no such jurisdictional error.

51. Therefore, the only course open to me is to dismiss the application and order that the Applicants pay the respondent’s costs fixed in the sum of $7,328.00.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  5 April 2018