CND18 v Minister for Home Affairs

[2019] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

CND18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1497

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in critical respects and other fears found not to be well founded – whether the Authority overlooked a claim or failed to afford the applicant procedural fairness considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 360, 425, 473CB, 473DB

Cases cited:

BCQ16 v Minister for Immigration [2018] FCA 365

DGZ16 v Minister for Immigration (2017) 258 FCR 551
Minister for Immigration v CRY16 (2017) 253 FCR 475

Applicant: CND18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 258 of 2018

Judgment of: Judge Driver

Hearing date: 31 May 2019

Delivered at: Perth

Delivered on: 31 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 15 May 2018 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 258 of 2018

CND18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 1 May 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are conveniently set out in the Minister’s submissions filed on 10 May 2019. 

3. The applicant is a citizen of Iran born in April 1979.[1]  He first arrived in Australia at Christmas Island in July 2013 as an unauthorised maritime arrival.[2]  On 2 February 2017, he applied for the visa.[3]

   [1] Court Book (CB) 41

   [2] CB 120

   [3] CB 27-88

4. In support of his application for the visa, the applicant raised the following matters:[4]

   a)the applicant was born in Abadan county, Khuzestan province, Iran.  He is of Arab ethnicity and of the Dervish faith;[5]

   b)the applicant grew up in a religious Shia Muslim family, and his brothers were in the Sepah;[6]

   c)in 2005, the applicant participated in protests in Ahvaz.  He was arrested and taken to an interrogation cell and tortured.  He was released because his brother had connections in the Iranian government.[7]  Later in 2005, he had a dispute with the Basij and was arrested, taken away and beaten.  He was then imprisoned for three months;[8]

   d)in 2010, the applicant met with a childhood friend of his, Ali.  Ali was of the Dervish faith and the applicant became interested in this.  The applicant began regularly attending Dervish gatherings;[9]

   e)in 2012, the applicant’s driving instructors licence and employment were terminated.  The applicant learned that the Iranian authorities were targeting him because they believed he was practising as a Dervish;[10] and

   f)shortly after, the applicant was required to attend an Ettela’at office, who interrogated him about his Dervish beliefs.  After he was released, his brother informed him that the Ettela’at believed that the applicant was an apostate who had converted to the Dervish “faith”.[11]  His brother told him that his conversion from Islam had dishonoured the family.[12]

   [4] CB 89-94; 112; 147

   [5] CB 89

   [6] CB 90

   [7] CB 90

   [8] CB 90-91

   [9] CB 91

   [10] CB 91-92

   [11] It is generally accepted that Dervish adherents are Muslims.

   [12] CB 92

5. The applicant fears harm from the authorities (including the Sepah, Ettela’at and Basij) and his brother, for a number of reasons including his religion (as a follower of the Dervish faith), membership of a social group (apostates and failed asylum seekers), and his political opinion (perceived as opposed to the Islamic regime because he sought asylum in Australia).[13]

   [13] CB 93-94; 112; 147

6. On 6 July 2017, the delegate refused to grant the visa.[14]  On 12 July 2017, the delegate’s decision was referred to the Authority for review.[15]  On 31 August 2017 and 6 March 2018, the applicant’s representative provided submissions to the Authority in relation to the review.[16]  On 1 May 2018, the Authority affirmed the delegate’s decision.[17]

   [14] CB 117-138

   [15] CB 140-141

   [16] CB 147-151; 154-157

   [17] CB 168-185

The Authority’s decision

1. The Authority had regard to the material provided to it by the Secretary pursuant to s.473CB of the Migration Act 1958 (Cth) (Migration Act).[18]  It also had regard to the applicant’s written submissions.[19]  The Authority considered “new information” provided by the applicant, including screenshots from his mobile phone showing participation on Dervish chat groups[20] and further news articles.[21]  The Authority decided to proceed to its decision without inviting further information from the applicant.[22]

   [18] CB 169 [2]

   [19] CB 169 [3]

   [20] CB 169 [4]-[5]

   [21] CB 170 [6]

   [22] CB 170 [7]

2. The Authority accepted the applicant’s claim that he had been arrested and detained in 2005 following protests, and that he had been released with the assistance of his brother.[23]  It also accepted that the applicant had been imprisoned later that year after a fight with a Basij officer.[24]  The Authority did not accept that the applicant was of any adverse interest to the Iranian authorities because of those incidents.[25]  The Authority also accepted that the applicant was of Arab ethnicity, but was not satisfied that he had a real chance of suffering harm for this reason.[26]

   [23] CB 172 [12]

   [24] CB 172 [13]

   [25] CB 173 [14]

   [26] CB 173 [15]

3. The Authority had concerns as to the credibility of the applicant’s claimed involvement with the Dervish faith.[27]  The Authority considered that the applicant “has some familiarity” with the Dervish faith, but considered that some of his evidence “seemed superficial and lacking in detail”, and it appeared that he was someone who had spent time around or observed persons of the Dervish faith, rather than being an adherent himself.[28]  The Authority was also concerned by a number of inconsistencies it identified in the applicant’s evidence about the length of time he had been involved in the Dervish faith, the circumstances in which he lost his job, and his interactions with the authorities, as well as finding the Ettela’at’s delay in questioning the applicant over his faith as being implausible.[29]  The Authority also observed that country information did not suggest that a person who had turned from Shia Islam to Dervish would be viewed as an apostate, as the applicant claimed would occur.[30]

   [27] CB 173 [16]

   [28] CB 174 [17]

   [29] CB 174-175 [18]-[21]

   [30] CB 175 [22]

4. The Authority was not satisfied that the applicant’s evidence was reliable.[31]  It accepted that he had an interest in, and basic knowledge about, the Dervish faith, and that he may have attended Dervish gatherings.  However, it did not accept that he had converted, or was intending to convert, prior to departing Iran.[32]  The Authority was not satisfied that the applicant was questioned, arrested, detained or otherwise identified as Dervish or an apostate, or that he lost his job for this reason.  It also did not accept that the applicant’s brother had ordered the applicant to leave Iran, or had animosity towards the applicant, as claimed.[33]  The Authority also did not accept that the applicant had a genuine commitment to or belief in the Dervish faith, such that he would re-engage with it, or identify as Dervish, on return to Iran.[34]  The Authority did not accept that the applicant faced a real chance of harm in connection with the Dervish faith.[35]  It also did not accept that the applicant would be perceived to have converted to another faith or atheism, or to be an apostate, and found that there was no more than a remote chance of harm on account of not practising Shia Islam.[36]

   [31] CB 176 [24]

   [32] CB 176 [24]

   [33] CB 176 [24]

   [34] CB 177 [28]

   [35] CB 177 [29]

   [36] CB 178 [31]

5. The Authority accepted that on return to Iran, the authorities may infer that the applicant had made a claim for asylum in Australia.[37]  The Authority found that the country information available to it did not support a claim that asylum seekers returning from the West were being harmed.[38]  The Authority was not satisfied that asylum seekers returning from the West were routinely imputed with adverse opinions because they had claimed asylum, or that questioning in relation to their travel documents leads to or entails harm.[39]  The Authority accepted that the applicant may be questioned on return, but did not accept that this would lead to a real chance of any adverse interest in, or harm being suffered by, the applicant.[40]

   [37] CB 178 [33]

   [38] CB 179 [34]

   [39] CB 179 [36]

   [40] CB 180 [37]

6. The Authority was thus not satisfied that the applicant had a well-founded fear of persecution, and accordingly concluded that he did not satisfy s.36(2)(a) of the Migration Act. In reliance on the same findings, the Authority was also not satisfied that the applicant faced a real risk of significant harm on return to Iran. It thus also was not satisfied that the applicant met s.36(2)(aa) of the Migration Act.[41]

   [41] CB 180-181 [38]-[43]

The present proceedings

1. These proceedings began with a show cause application lodged on 15 May 2018.  The applicant continues to rely upon that application.  There are two handwritten grounds of review raised.  The first is the allegation that the Authority failed to properly consider all of the applicant’s claims for protection.  The second is the allegation that the Authority did not give the applicant the chance to comment on one aspect of his claims.  No particulars are provided.

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book lodged on 15 August 2018. 

3. The applicant denied receipt of the court book.  Exhibit R1 establishes that the court book was sent to the applicant at his nominated postal address for service on 15 August 2018 by express post.  I have no reason to disbelieve his claim that he did not, in fact, receive the court book.  The applicant was represented by the law firm Estrin Saul before the Minister’s Department and the Authority.  Although that firm did not act for him in this proceeding, it appears that at some point they provided some advice or assistance and requested the court book for that purpose.  The applicant was provided with a copy of the court book for the purposes of today’s hearing.  I am satisfied that he has not been disadvantaged by any late provision of the court book.

4. The applicant was uncertain whether he had received the Minister’s outline of submissions.  Exhibit R2 establishes that those submissions were sent to the applicant both by email and by express post on 10 May 2019.  I gave the applicant the option of having the submissions read to him by the interpreter or having the opportunity to respond to an oral presentation of the submissions by counsel for the Minister.  After discussion, the second option was pursued, albeit after an explanation of the applicant’s claims for protection by him.

5. An issue also arose at the outset of today’s hearing about the interpreter.  Although the applicant is an Arab from Khuzestan Province in Iran, in his application he requested a Hazaragi interpreter.  He speaks both Arabic and Farsi.  The request for the interpreter was in typewritten form in contrast to the rest of the application which the applicant handwrote himself.  It is apparent that an error was made by somebody in the preparation of the application.  In the event, no harm resulted from that error because the interpreter booked for today’s hearing is fluent in both the Hazaragi and Farsi languages.

6. The first allegation raised by the applicant is that not all of his claims were properly considered by the Authority.  The applicant explained his claims for protection at some length.  With one exception, it is apparent from the court book that all of his claims were considered by the Authority.  The applicant stated today orally that he was accused of spying on behalf of the Dervish community.  He also claimed today that he has recently come into possession of an arrest warrant apparently issued at the instigation of one of his brothers with whom he has had problems.  The applicant offered to provide me with a document.  It is apparently in the Farsi language, but I have no reason to disbelieve the claim that it purports to be an arrest warrant.  It was, however, clearly, not before the Authority and so could not have affected the Authority’s review.  I declined to receive it.

7. The claim of being regarded as a spy was not made previously.  In his submissions in reply, the applicant modified the claim as having been accused of being “rotten world” in a general sense.  The applicant claims that this is somehow connected with the accusation that he has left the Islamic religion.  That claim clearly was considered. 

8. Having considered in detail the applicant’s claims and the treatment of them by the Authority, I am satisfied that nothing has been overlooked.

9. The second issue raised by the applicant concerns his request for an oral hearing before the Authority.  That request was made in a submission to the Authority made on behalf of the applicant by his then lawyers.  The proposition was that if the Authority was unable to make a favourable decision on the papers, it should afford the applicant the benefit of an oral hearing.  The proposition overlooks the particular statutory regime under which the Authority operates.  In that regard, I agree with the Minister’s written submissions. 

10. This ground alleges that the Authority “didn’t give me a chance to comment on one aspect of my claims”. Again, the “claim”, or “aspect” of that claim, is not identified, and the ground cannot succeed for that reason. Further, Part 7AA of the Migration Act “modifies (by restricting) the common law principles of procedural fairness”,[42] and the Authority’s decisions are not to be approached through the “lens” of the general law rules of procedural fairness.[43] There is no obligation on the Authority akin to s.360 or s.425 of the Migration Act,[44] and decisions are ordinarily to be made on the papers.[45]  No jurisdictional error is shown in the Authority not having invited the applicant to “comment” on his claims (whichever claim that might specifically have been directed towards).  Further, the matters identified at [7] of the Authority’s reasons provided a rational and logical basis for the Authority not to have invited the applicant to provide further comment in relation to his Dervish faith.

    [42] BCQ16 v Minister for Immigration [2018] FCA 365 at [71]

    [43] See eg. Minister for Immigration v CRY16 (2017) 253 FCR 475 at [67]; DGZ16 v Minister for Immigration (2017) 258 FCR 551 at [68]-[78]

    [44] Cf. DGZ16 at [75]

    [45] Cf. s.473DB(1)

11. The submissions made on behalf of the applicant to the Authority also asserted that the applicant had not had the opportunity to comment on an aspect of the reasoning of the delegate.  It is possible that the applicant’s second ground is directed to that proposition.  That proposition was, however, specifically put to the Authority in the submission made to it on behalf of the applicant.  The applicant provided new information to the Authority to deal with that aspect of the delegate’s reasoning.  The circumstances are dealt with in the Authority’s reasons at [3] through to [7]:

    The IAA received a legal submission from the applicant’s representative on 1 September 2017 which makes argument in response to the delegate’s decision and which I have taken into consideration.

    The submission annexes new information in the form of screenshots from the applicant’s Australian mobile phone showing the chat history of a group for followers of the Gonabadi Dervish faith on an Iranian messaging application, along with a translation. It is claimed that the applicant is an active member of the community despite living in Australia. The submission argues that the applicant could not have provided the information to the delegate at the time of the decision because it is a response to the information provided in the decision, and that the information is directly relevant to assessing whether the applicant meets the requirements for the grant of the visa and so there are exceptional circumstances to justify its consideration.

    The delegate found that there was no evidence that the applicant’s belief in the religion was continuing or that he had any further connection with the Dervish since his arrival in Australia. I note that the applicant was asked during the 21 April 2017 protection visa interview about his current religious practise and referred to not having any guidance in the Dervish faith in Perth. He claimed to have spoken to a friend in Iran, AR, about Dervish groups in Australia, but did not indicate he was part of Iranian Gonabadi Dervish chat groups. As discussed later below, the dates of the messages are not entirely clear and it appears that some may post-date the decision whereas others do not. In any event, I find that the new information is credible personal information, evidencing the applicant’s membership of a Dervish chat group, which was not previously known to the delegate and may have affected consideration of the claims. I have taken into account the corroborative nature of the material, the fact that at least some of it appears to post-date the decision, and also that in my view the delegate did not expressly raise her concerns that the applicant was not a genuine convert or had a genuine and continuing belief in the religion during the protection visa interview. Considering the combination of these matters I am satisfied that there are exceptional circumstances that justify considering the new information.

    The IAA received a further email from the applicant’s representative on 6 March 2018 attaching two news articles, which I find to be new information, along with submissions as to why the IAA should consider the new information. The articles refer to clashes between security forces and members of the Gonabadi Dervish order, and subsequent arrests of Gonabadi Dervish practitioners in February 2018. It is claimed that the applicant fears that the recent crackdown on the rights of Gonabadi Dervish practitioners will mean he will face heightened scrutiny and a heightened risk of harm if forced to return to Iran. The information is recent and represents a new development relevant to the treatment of Gonabadi Dervishes (which the applicant claims to be) in Iran. I am satisfied both that it could not have been provided prior to the decision being made and that there are exceptional circumstances to justify its consideration.

    The 1 September 2017 submission requests that if the IAA is not satisfied the applicant is a genuine follower of the Gonabadi Dervish faith, it invite him to attend an interview to provide further evidence of his religious beliefs and address any adverse information that arises throughout the review process, and that it would be unreasonable to make an adverse finding without allowing the applicant the opportunity to provide additional evidence at a hearing. I am not obliged to obtain new information just because the applicant requests me to, although I have the discretion to do so. The applicant has not particularised what additional information he might provide at an interview nor claimed that there have been further developments in his circumstances or beliefs. While I accept that the delegate did not expressly raise her concerns with the applicant’s evidence during the protection visa interview, the applicant is on notice of the findings made by the delegate in her decision and has submitted new information to the IAA in response to those findings which I have taken into consideration. The applicant was questioned by the delegate about his faith and his experiences in Iran. Although some of my findings do depart from those of the delegate, they are based on the applicant’s evidence given as part of the protection visa application process, along with country information cited in the delegate’s decision and his representative’s submissions. No adverse new information has arisen. Considering all of these matters, I have decided to proceed to a decision without inviting further information from the applicant.

1. In response to the submissions made to it, the Authority agreed to consider the new information provided on behalf of the applicant.  In my view, the Authority dealt adequately and appropriately with that issue. 

2. In my view, neither of the grounds advanced by the applicant has any real substance.  Neither, in my view, is there any other argument of jurisdictional error available to the applicant. 

Conclusion

1. I find that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.  I will so order. 

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  At the time the application was filed, the relevant scale amount was $7,328.  The applicant made submissions which go to the merits of my judgment and the decision of the Authority.  It is apparent, however, that he does not consider any costs order as appropriate. 

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       7 June 2019