CMA17 v Minister for Immigration

[2017] FCCA 2817

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMA17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2817

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – no application of personal view by the Authority in determining whether the applicant made an informed and genuine commitment to Christianity – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DA, 473DC, 473DD, 476

Applicant: CMA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1778 of 2017

Judgment of: Judge Street

Hearing date: 17 November 2017

Date of Last Submission: 17 November 2017

Delivered at: Sydney

Delivered on: 17 November 2017

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie
Dobbie and Devine Immigration Lawyers

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Grant leave to the applicant to file in Court the amended application and the Court dispenses with the need for the filing of an electronic copy.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1778 of 2017

CMA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 12 May affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant arrived in Australia on 31 October 2012 as an unauthorised maritime arrival. On 18 February 2016, the applicant applied for a Safe Haven Enterprise visa. The applicant claimed to fear harm from the Iranian authorities and his  family in Iran as he had converted to Christianity and was a practising Christian in Australia.

3. The applicant alleged that in 2009 or 2010, he met an Armenian Christian girl who invited him to interact with other Christians at a small meeting. The applicant alleged that in July 2011, he decided to accept Christianity. The applicant alleged that the girlfriend announced the applicant’s conversion to Christianity in a park and that the applicant continued to attend house churches with the girlfriend with Armenian Christians and Christian converts. The applicant alleged that he was stopped by the Basij once and questioned and was able to give a plausible excuse. The applicant alleged that in May 2012, his girlfriend informed him that some Christian converts had been arrested at a house gathering. One of the converts knew the applicant and that he was a convert from Islam. The applicant alleged as a result that he decided to flee Iran.

The delegate’s decision

1. The delegate, on 23 November 2016, found that the applicant failed to meet the criteria for the grant of a visa. The delegate made adverse credibility findings and relevantly, in relation to the applicant’s religion found the claim of the applicant about being introduced to Christianity by Armenian apostolic Christians was inconsistent with DFAT country information.

2. The delegate found the applicant was a broadly unreliable witness who did not have a genuine interest in Christianity or engage in any Christian activities when he was in Iran. The delegate found the applicant engaged in Christian activities in Australia for contrived reasons and the sole purpose of his conduct was to strengthen his protection claims.  The delegate found the applicant didn’t have a genuine belief in Christianity and he has engaged in Christian activities in Australia for contrived reasons. The delegate did not accept the applicant engaged in Christian practices when he was living in Iran and found that the applicant had no intention of engaging in Christian practices if he returns to Iran. 

The Authority’s decision

1. Following the delegate’s decision, the Authority wrote to the applicant on 29 November 2016, identifying that the matter had been referred to the Authority for review. The Authority’s letter identified that there were only limited circumstances in which the Authority could receive new information. The letter provided an attached fact sheet and practice direction, giving the applicant an opportunity to put on new information and submissions.

2. Pursuant to that opportunity, submissions were provided on behalf of the applicant to the Authority, which were considered and addressed in the Authority’s reasons. The Authority in its reasons identified the background to the visa application. The Authority made reference to the content of the submissions and identified material which the Authority did not regard as new information to which the Authority had regard, and identified other, new information which the Authority identified it was not satisfied there were exceptional circumstances to justify considering. 

3. The Authority summarised the applicant’s claims for protection. The Authority made reference to the applicant’s evidence about protests and did not accept that the applicant misunderstood the questions and did not find the applicant’s claim plausible to have participated in demonstrations in 2009 or to have been arrested and detained by the Basij.

4. The Authority found the applicant’s claim regarding his girlfriend’s invitation to interact with other Armenian Christians and his claimed attendance at a house meeting contradict a significant amount of country information about the attitude of the Armenian Church in Iran towards converts. The Authority did not accept that even attendance at less formal gatherings is in keeping with the Church attitudes reflected in the country information. The Authority did not accept as plausible that the girlfriend encouraged the applicant to attend house meetings, snuck him into the Armenian church in a particular location, or that the applicant engaged in any Christian activities in Iran with members of the Armenian church, including professing to have converted to Christianity. 

5. The Authority did not accept the applicant engaged in any Christian activities in Iran with members of the Armenian church. The Authority did not accept that while in Iran, the applicant renounced Islam or converted to Christianity or that he faces a real chance of harm in Iran as a consequence. 

6. The Authority did not accept that the applicant is of any ongoing interest to the Basij or any other Iranian authorities.  The Authority did not accept that the Armenian church accepts converts or apostates and accordingly, did not accept that the girlfriend engaged in or was arrested in association with such activities. The Authority did not accept the applicant faces a real chance of harm as a result of the girlfriend’s arrest. The Authority rejected the applicant’s claim that he had suffered psychological harm in the past. 

7. The Authority made reference to country information in relation to the applicant’s claim of fearing the death penalty as a Christian convert in Iran. The Authority made reference to the latest case where a convert has been charged with apostasy in respect of a pastor who came to the attention of the authorities in 2009. The Authority found there had been no charges of apostasy against Christians in Iran after that particular case, in which his charges were overturned.

8. The Authority made reference to the protection visa interview, in which the applicant stated he tries to attend church services twice a month but that sometimes it conflicts with his work commitments. The Authority made reference to the applicant’s protection visa interview, in which the applicant indicated he began attending bible study more frequently after announcing to friends in Iran that he had converted to Christianity. The Authority made reference to the protection visa interview and the delegate raising that the applicant’s increase in bible study attendance appeared to coincide with the lodgement of his protection visa application, and the applicant’s assertion that he had been attending bible study from the time he arrived in Australia. The Authority noted that it had found the applicant did not engage in any Christian activities with members of the Armenian church, and that he was raised in a very strict Islamic family who supported the Iranian government.

9. The Authority made reference to the applicant’s baptism in April 2013 shortly after arriving in Australia and only a few months after attending a Baptist church. The Authority did not accept at the time the applicant was baptised the applicant would have a sufficient understanding of the faith or what was involved in being a practicing Christian or in being baptised to make an informed and genuine commitment to Christianity. After taking that finding into consideration and also taking into account the timing of the increased bible study activity occurred around the time of his protection visa application, the Authority was satisfied that the applicant had attended church services, bible study and was baptised solely for the purpose of strengthening his claims to refugee status. The Authority found that that must be disregarded pursuant to s 5J(6) of the Act.

10. The Authority found that it was not satisfied the applicant faces a real chance of harm from Iranian authorities on account of his tattoos. The Authority found that in the absence of a dissident profile, there is not a real chance the applicant will be harmed for claiming asylum in Australia. 

11. The Authority made reference to voluntary returnees being unlikely to attract much interest by the authorities and that the border authorities in practice regularly accept Iranians with valid Iranian travel documents returned involuntary to Iran. The Authority made reference to DFAT not being aware of any legislative or social barriers to returnees finding shelter or work in Iran, provided they have sufficient identification to enter Iran. The Authority then observed, in light of this, the Authority was satisfied that if the applicant returns to Iran the applicant will not face a real chance of persecution as a returning asylum seeker or for any other reason. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and the applicant failed to meet the criteria under s 36(2)(a) of the Act. 

Complementary protection assessment

1. In relation to complementary protection, the Authority was not satisfied the applicant has any genuine interest in Christianity and as such, the Authority was satisfied on the evidence that in Iran, the applicant will not pursue any interest in Christianity and will not attend church services, proselytise or evangelise. The Authority found that when the applicant left Iran, he did not have an activist or dissident profile to the extent that he would have been of interest to the Iranian authorities. The Authority found the applicant did not face a real risk of harm in Iran from his family, the general community or Iranian authorities on the basis of his Christian activities.

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

Before this Court

1. Mr Dobbie, the solicitor for the applicant, confirmed that ground 2 was abandoned. The grounds in the amended application are as follows:

   1. The decision of the Immigration Assessment Authority is irrational and or arbitrary and or unreasonable Particulars:

   A. The decision of the Immigration Assessment Authority is infected with jurisdictional error because it is irrational and or arbitrary and or unreasonable:

   (i) In finding that the Applicant was not a genuine convert to Christianity, the Authority stated at [25] of its reasons:

   25 .... I note that the applicant was baptised in April 2013, shortly after arriving in Australia and only a few months after first attending a Baptist church. I do not accept that at the time he was baptised, the applicant would have had a sufficient understanding of the faith or what was involved in being a practising Christian or in being baptised, to make an informed and genuine commitment to Christianity. After considering this and also taking into account that the timing of his increased Bible study activity occurred around the time of his PV application, I am of the view that in Australia the applicant has attended church services, Bible studies and was baptised solely for the purpose of strengthening his claims to refugee status.

   (ii) The decision maker acted as an arbiter of faith, making his findings at [25] of the decision, merely because the Applicant was baptised before an unstated period of time had transpired, that unstated period of time being a measure personal to the decision maker. By so doing, the Authority's decision, which was based in part upon that finding, was arbitrary and or irrational and or unreasonable.

   B.

   (i) The decision maker stated at [34] of the decision that he was not satisfied that the Applicant has any genuine interest in Christianity. This was so despite the evidence provided in support of the application and the review. On the other hand, the delegate offers no reasons as to how he reached this adverse finding. By so doing, the Authority's decision, which was based in part upon that finding, was arbitrary and or irrational and or unreasonable.

   3. The Immigration Assessment Authority failed to accord the Applicant procedural fairness

   Particulars:

   A. The Authority failed to accord the Applicant procedural fairness, thereby committing jurisdictional error:

   (i) In finding that the Applicant was not a genuine convert to Christianity, the Authority took into account the following:

   (a) The decision maker's own standard of what he considered to be a suitable period of time before one could understand Christianity, and or understand what was involved in being a practising Christian, and or in being baptised.

   (ii) The Authority failed to put the Applicant on notice, and failed to give him the opportunity to respond, that it considered that the decision maker's own standard was to be a determinant of whether or not the Applicant was a genuine convert to Christianity.

   4. The Immigration Assessment Authority failed to apply the law

   Particulars:

   A. The Authority failed to apply the law, thereby committing jurisdictional error:

   (i) The Authority failed to consider the Applicant's claims on a cumulative basis before affirming the decision before it.

   5. The Immigration Assessment Authority based the decision on a fact that did not exist

   Particulars:

   A. The Authority based the decision on a fact that did not exist, thereby committing jurisdictional error:

   (i) The Authority stated at [23] of its decision:

   23. …The latest case where a convert has been charged with apostasy is that of Yousef Naderkhani, a Church of Iran pastor who came to the attention of the authorities in 2009. There have been no charges of apostasy against Christians in Iran after the case of Naderkhani, in which his charges were overturned.

   (ii) However, that fact did not exist. Country information shows that Christian converts from Islam had been arrested, harassed and detained after 2009; for example the United States Bureau of Democracy, Human Rights and Labor, International religious Freedom Report for 2015, Iran, states:

   Muslim converts to Christianity reportedly continued to face harassment, arrest, and detention. According to UN reports, on April 15, the Shahin Shahr Revolutionary Court upheld the one-year prison sentence and two year travel ban of 13 Christian converts who were arrested in 2013 at a house church and were charged with ''propaganda against the State,” “advocating for evangelical Christianity,” and “establishing house churches."

   Particulars:

   B. The Authority based the decision on a fact that did not exist, thereby committing jurisdictional error:

   (i) In the event that the Authority had regard to the delegate's decision record and took into account the following in the delegate's decision record, the IAA committed jurisdictional error because the following did not exist:

   ... Furthermore, statements made at the PV interview held on 18 October 2016 indicate the applicant's knowledge of Christianity in limited and the claimed increase in his attendance at Bible study coincides with the date that he application for a Safe Haven Enterprise visa. (CB119)

Consideration

Ground 1

1. In relation to ground 1, Mr Dobbie took the Court to paragraph 25 of the Authority’s reasons and submitted that the Authority had engaged in determination of this claim on the basis of only two matters and that they should be characterised as ones where the Authority was applying its own personal view as an arbiter of faith in respect of the applicant’s conversion to Christianity not being genuine.

2. The Authority’s reasons do not reflect any application of personal view by the Authority in determining whether the applicant made an informed and genuine commitment to Christianity. The Authority’s adverse findings in relation to the applicant not being a genuine convert to Christianity were ones which clearly took into account the adverse credibility findings that were made by the Authority in respect of the applicant’s alleged Christian activities in Iran and the finding by the Authority that the applicant was still a Muslim. No jurisdictional error of the kind alleged in ground 1A is made out.

3. Mr Dobbie accepted that if ground 1A did not succeed, ground 1B could not succeed. The findings of the Authority that the applicant was not a genuine convert to Christianity cannot be said to be irrational, arbitrary or unreasonable. No jurisdictional error as alleged in ground 1 is made out.

Ground 3

1. In relation to ground 3, Mr Dobbie maintained that there was a requirement of procedural fairness if the Authority was going to adopt a personal view, that the Authority must raise that personal view with the applicant in determining the review matter. The Court took Mr Dobbie to s 473DC(3) of the Act and no submission was advanced that there was a basis upon which it could be said the Authority should have provided the applicant with any such invitation under s 473DC(3) of the Act.  That position was the correct course to take as there was no request to the Authority to exercise any such power.

2. Section 473DA of the Act identifies that the division, together with certain other provisions, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. I do not accept that there was any personal view by the Authority that was being taken into account in the determination of the fact finding made by the Authority.  The adverse findings of fact were open to the Authority for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification.

3. Further, I do not accept that there is scope for the contention that there is some other obligation of procedural fairness in respect of requiring the Authority to put the applicant on notice or give him an opportunity to respond as alleged in ground 3. Further, this is a case where the issue of the applicant’s genuineness in respect to Christian activities had been the subject of adverse findings by the delegate and it was an issue in respect of which the Authority did comply with the requirements of procedural fairness insofar as not otherwise excluded by s 473DA of the Act by the sending of the letter dated 29 November 2016 giving the applicant an opportunity to put on new information submissions and by taking the same into account in the assessment under s 473DD of the Act. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, Mr Dobbie submitted that the Authority had not referred to an evaluation of the claims cumulatively in respect of the applicant’s claim to be a refugee and that this amounted to jurisdictional error. The Authority’s reasons are not to be read with a keen eye for error.  The Authority clearly referred to and made adverse findings dispositive of the applicant’s claims.

2. The penultimate sentence before the assessment of complementary protection makes reference to “in light of this”. On a fair reading, the Authority was referring to the cumulative findings that the Authority had made. Further, the penultimate sentence, on a fair reading, referred to both the applicant’s chance of persecution as a returning asylum seeker and the other reasons that had been the subject of adverse findings identified by the Authority above. The use of the singular “reason” does not give rise to the circumstance in the present case in which the Court should find that the Authority failed to consider the claims cumulatively. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Dobbie sought to rely upon a proposition that the Authority was wrong in saying what the latest case was, in respect of a person being charged for apostasy. Mr Dobbie had sought to tender into evidence other country information that was not before the Authority. The Court admitted that material into evidence, confined to the issue of discretionary relief if jurisdictional error had been made out. The material was not admissible to establish any jurisdictional error, and could not be so used.

2. Mr Dobbie properly conceded that there was no material before the Authority on which it could be said it was not open to the Authority to find that that was the latest case, as identified in paragraph 23 of the Authority’s reasons. In these circumstances, the allegations and the premise upon which ground 5 has been argued, cannot be made out.  No jurisdictional error as alleged in ground 5 is laid out.

Conclusion

1. As the amended application fails to make any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  21 December 2017