COV18 v Minister for Immigration

[2020] FCCA 2547

FEDERAL CIRCUIT COURT OF AUSTRALIA

COV18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2547

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority had a genuine intellectual engagement with the applicant’s claims and evidence – whether the Authority applied an incorrect test – whether the Authority’s decision was legally unreasonable – no jurisdictional error made out – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476

Applicant: COV18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1398 of 2018

Judgment of: Judge Street

Hearing date: 9 September 2020

Date of Last Submission: 9 September 2020

Delivered at: SYDNEY

Delivered on: 9 September 2020

REPRESENTATION

Solicitors for the Applicant: Mr R Turner, Turner Coulson Immigration Lawyers, via Microsoft Teams

Counsel for the Respondents: Ms K Hooper via Microsoft Teams

Solicitors for the Respondents: MinterEllison

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Leave is granted to the applicant to rely upon the amended application in the form annexed to the applicant’s second set of submissions filed on 26 August 2020 and directs that the applicant file and serve the amended application in that form on or before 5:00pm on 11 September 2020.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDER: 9 September 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1398 of 2018

COV18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Pt 7AA of the Act made on 10 May 2018 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

2. The applicant was found to be a citizen of Iran and her claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 14 February 2013. 

4. In summary, the applicant claimed to fear harm by reason of now being an atheist and not practising Islam, and by reason of experiences she suffered at university, and as a result of incidents including an incident of acid being thrown at her door. 

5. On 9 August 2017, the Delegate found that the applicant failed to meet the criteria for the granting of a Safe Haven Enterprise visa. 

6. On 14 August 2017, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions.  The applicant did put on submissions that were referred to and taken into account by the Authority in its reasons. 

7. The Authority identified the background to the visa application and had regard to the material provided by the Secretary under s 473CB of the Act. 

8. The Authority summarised the applicant’s claims and found that the applicant departed Iran lawfully by plane as the holder of a valid genuine passport, and observed that her passport was then taken from her by a people smuggler in Indonesia. 

9. The Authority summarised the relevant law including in an attachment incorporated by pagination in the Authority’s reasons. 

10. The Authority expressly referred to the experiences of the applicant at university and that she got into trouble and was suspended for one semester. The Authority referred to a heated debate in the classroom and that her religious lecturer was so furious he asked her to leave and yelled that people like her were apostates and infidels. The applicant alleged that after this incident, she was harassed and under a lot of pressure to drop out of that unit and the Examination Unit failed her on all her subjects. The applicant claimed that she was suspended for half the year and was taken to a committee twice during the semester and was interrogated about her behaviour. The applicant believed that she would be arrested, interrogated, tortured and imprisoned if she returns, and asserted that renouncing Islam is a crime punishable by the death penalty. 

11. In her Safe Haven Enterprise visa application, the applicant claimed that she is now an atheist. 

12. The Authority referred to the applicant raising consistent evidence about questioning her university teachers about religion, being suspended from classes and being a non-practicing Muslim, and that she had discussions with likeminded people in coffee shops, and once or twice they had been arrested. 

13. The Authority also referred to the applicant claiming that her laptop was stolen, and that the laptop allegedly included forbidden content. The applicant alleged the robbery occurred around the same time as her arrest in the coffee shop in the pursuit of her and her friend while they were driving, about three months prior to her departure from Iran. 

14. The Authority was satisfied that the applicant is a non-practising Muslim, and was so prior to her departure from Iran, and that at the time she identified as an agnostic. The Authority was prepared to accept that the applicant now identifies as an atheist. 

15. The Authority referred to the absence of evidence in relation to the applicant’s participation in the Sydney Atheist Group on social media or on Facebook, or any other social media discussion. The Authority was not satisfied that the applicant has developed a public profile as an atheist on social media. The Authority found that the applicant has not expressed any desire to convert other people to atheism or been engaged in activities to promote atheism in Australia or in Iran. 

16. The Authority was not satisfied that the applicant had an anti-Islam or otherwise adverse religious profile prior to her departure from Iran.  The Authority referred to the applicant’s computer being stolen and considered that if it had been by the Basij or other Iranian authorities and it had anti-Islamic material on it, the applicant would have been contacted prior to her departure which was not until three months later.  The Authority found that the incident was more likely to be an opportunistic robbery and that the applicant was not deliberately targeted for the purposes of threatening her. 

17. The Authority referred to country information, including Department of Foreign Affairs and Trade (“DFAT”) country information, that it is unlikely that individuals will be prosecuted on charges of apostasy. 

18. The Authority was not satisfied that the applicant would publicly declare or promote that she is a non-believer in Islam or an atheist on return to Iran and was satisfied that she would not do so due to lack of interest rather than fear of persecution. The Authority was not satisfied that the applicant’s non-belief in Islam/atheism has, or there is, a real chance that it will come to the adverse attention of the Iranian authorities or community on return to Iran such that she will face a real chance of harm. The Authority was not satisfied that the applicant faced a real chance of serious harm on return to Iran for reasons of her non-belief in Islam and/or her disagreement with the way Islam is practised in Iran, and/or stated personal atheism. 

19. The Authority referred to the applicant’s evidence about her making enquiries about her father who had gone missing during the Iraq/Iran war and that she had been arrested once about four years ago by the police for not wearing her hijab correctly. 

20. The Authority referred to the applicant’s written statement in relation to working for a particular campaign during the presidential election and the Authority referred to the applicant’s claim about the police forcing them all into a van and taking them to a detention centre, and that the applicant was pushed around, insulted and threatened, and that the family paid a bribe so that she could be released. 

21. The Authority referred to the applicant’s sentiments that she thought the authorities had intensifying interest in her over time and referred to her meeting friends in a coffee shop, and referred to being released because a family friend paid money as bail, and that she had to sign a statement making a promise not to repeat the offence.  

22. The Authority referred to the applicant’s claim in relation to the applicant’s father’s disappearance and the claim she made in her entry interview about enquiries she started making in May 2012. The Authority referred to the applicant then saying in her protection interview that she had started making the enquiries about seven or eight years ago and stopped about a year before she left Iran. The Authority found that this was the only significant inconsistency in her evidence.

23. The Authority referred to the applicant’s evidence that she claims she was threatened because of the enquiries about her father, and the Authority also referred to an incident about three to five months prior to the applicant departing Iran when there was another car following her and her friend and they went to a police station, and that the applicant and her friend were threatened and that the police did nothing, and that just before her departure acid was thrown on the front door of her home and graffiti printed on the walls, and a message left saying that whatever happened to her family she would be responsible. 

24. The Authority accepted that the applicant was actively discouraged from her search for reasons unknown to the applicant and that she was unsuccessful in finding information other than the date of her father’s disappearance. 

25. The Authority identified the role the applicant had played in relation to the elections and that she had not claimed that she suffered any harm as a result of that activity. The Authority was prepared to accept that the applicant was involved in the election campaign.  The Authority also accepted that she joined other young people in political and religious discussion in informal settings, such as coffee shops, during the time she was involved in the campaign, and that these gatherings continued after the elections. 

26. The Authority was willing to accept that the incident involving the car occurred, however, the Authority was not satisfied that the applicant provided persuasive reasons for the attack. The Authority referred to the applicant being unable to obtain information about the father and that it was possible she was threatened in such a manner in order to discourage any further attempts on her part to discover what happened to her father. The Authority, however, identified that she had already ceased asking about her father, making it extremely unlikely that the Iranian authorities would go to such extremes to further discourage her. The Authority accepted that it was possible that members of the Basij were following her car and saw that boys and girls were in the car together. 

27. The Authority had some concerns about the applicant’s evidence relating to her arrest with a friend at a gathering at a coffee shop in 2012. The Authority identified that the applicant had made no mention of this incident at her entry interview. The Authority found that if the applicant had been arrested only three months prior to her departure, verbally abused and threatened, detained for three or four days and only released after payment of a bribe, she would have mentioned this incident at the time of her entry interview given the amount of the detailed evidence that she provided at that time. 

28. It was in these circumstances that the Authority was satisfied that the applicant was never formally charged with any offence, including any political or religious offence, and that she was not sought by the authorities for any offence at the time of her departure in January 2013. 

29. The Authority referred to the incident involving the acid being thrown on the applicant’s front door and accepted that the incident occurred, and identified it being difficult to know what the reasons might have been for such an attack. The Authority did not accept the authorities in Iran  had done such a thing to discourage the applicant from searching for further information relating to her father after she had already ceased making enquiries, or because she had increasingly adverse political and/or religious profile. 

30. The Authority was not satisfied that the applicant’s earlier persistence in seeking information about her father led to her being identified as someone who has an adverse political profile with the authorities in Iran, such that there is a real chance that she would suffer serious harm if she returns to Iran. 

31. The Authority was satisfied that there is no real chance the applicant would suffer serious harm, having regard to the extensive examples of harm in s 5J(5) of the Act for reasons of her imputed or actual political opinion if she returns to Iran now or in the reasonably foreseeable future. 

32. The Authority referred to the applicant being a failed asylum seeker. The Authority noted that, on the country evidence, officials do not attempt to prosecute voluntary returnees, largely because most failed asylum seekers leave Iran legally. The Authority found that there was no real chance that the applicant would suffer serious harm for reasons relating to being a member of a particular social group, returned failed asylum seekers who have sought protection in a western country, if she returned to Iran now or in the reasonably foreseeable future. 

33. The Authority referred to having considered the applicant’s claims cumulatively and was satisfied that she is currently an atheist not practising Islam but was not satisfied that she has engaged in social media forums or discussion in which she is identified on social media. The Authority was satisfied that the applicant was agnostic prior to her departure from Iran and that she was suspended from university on two occasions for expressing doubts and asking questions. The Authority was satisfied that the applicant participated in informal discussion with other students and young people in locations such as coffee shops, where they discussed religious and political issues. The Authority did not accept the applicant’s evidence that roughly three months before her departure, she and her friends were arrested when participating in discussions in a coffee shop, and that she was detained for three or four days and released after the payment of the bribe. The Authority did not accept that when the applicant’s laptop was stolen she had anti-Islamic or banned material on it which would have come to the notice of the authorities. The Authority was not satisfied that the applicant suffered any serious harm as a consequence of her religious beliefs or failure to practice Islam prior to her departure. Taking into account country information, the Authority was not satisfied that there is a real chance the applicant would suffer serious harm for reasons of her religious opinions, beliefs, and/or failure to practice Islam, if she returns to Iran now or in the reasonably foreseeable future. 

34. The Authority referred to the applicant’s involvement in the election campaign but was not satisfied that her participation in informal discussions about politics and the situation in Iran, combined with her initial persistence in searching for information for her father, led to her having an adverse profile as a political dissident or activist with the Iranian authorities in 2012 and 2013. The Authority was satisfied that the applicant was of no adverse interest to the Iranian authorities at the time of her departure in January 2013. Having regard to these findings, the Authority found that there was no real chance the applicant will suffer serious harm for reasons of her actual or imputed political opinion if she returns to Iran now or in the reasonably foreseeable future. 

35. The Authority again referred to the fact that the applicant was able to depart Iran lawfully as the holder of a valid passport, and that if she returns to Iran as the holder of a temporary travel document, she would be assumed by the authorities to be a failed asylum seeker from a western country. The Authority was satisfied that there is no real chance that the applicant would suffer serious harm for reasons related to being a member of a particular social group of returned failed asylum seekers who had sought protection in a western country if she returned to Iran now or in the reasonably foreseeable future. 

36. The Authority referred to having considered all the applicant’s circumstances and was not satisfied that there is a real chance of the applicant being seriously harmed by Iranian authorities or by any other group or person. The Authority was not satisfied that the treatment that the applicant may experience would amount to serious harm even when considered cumulatively. 

37. The Authority found that applicant did not meet the requirements for the definition of refugee under s 5H(1) of the Act and did not meet the criteria in s 36(2)(a) of the Act. 

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

Before the Court

1. The grounds in the amended application are as follows: 

   1.The Immigration Assessment Authority (IAA) failed to carry out its statutory duty.

   Particulars

   a.Section 473CC(1) of the Migration Act 1958 requires that the IAA conduct a review of the delegate's decision.

   b.The duty to carry out a review of the decision must be a bona fide review.

   c.The IAA failed to realise that the Applicant's denunciation at University and her discussions in coffee shops were a public display of her perceived renunciation of Islam.

   d.The IAA accepted that these actions took place and accepted that apostasy is a crime in Iran.

   e.Following the incident in the University, her views of lslam would have been publicly known.

   f.In that context the later events can be seen as cumulative upon the earlier incident.

   g.The IAA found that the attack on the Applicant's front door was not connected to her search for information about her father's disappearance because that search had ended "a few months" before the attack.

   h.While it is true that the Applicant's enquiries had ceased, the time is too short to be certain that the authorities were aware, or concluded, that she had ceased to search for information.

   2.The IAA failed to apply the correct test.

   Particulars

   a.The correct test is whether there is a "real chance" of persecution. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 3 79 at 3 89.

   b.The IAA test was whether a claimed occurrence was "likely" [19), "strong anecdotal evidence." [ 42]

   c.A real chance does not have to be likely and must be based on other than anecdotal evidence.

   3.The IAA acted unreasonably in rejecting the Applicant's fear of harm when the evidence before it clearly showed that the Applicant had a well-founded fear of persecution.

   Particulars

   a.The IAA accepted the Applicant's evidence regarding suspension from university due to her questioning of Islam and the meetings with young people at coffee shops to discuss religion.

   b.The IAA also accepted that the Applicant had been actively discouraged from questioning her father's disappearance, attacked by men who threatened to kill her and that acid was thrown at the Applicant's front door shortly prior to her departure.

   c.These incidents clearly indicate that the Applicant would be perceived as renouncing the Islamic religion and would face serious harm from the Iranian community and authorities if she continues to question her father's disappearance.

   d.The IAA acted unreasonably in rejecting the Applicant's fear of harm when the evidence before it clearly showed that the Applicant had a well-founded fear of persecution.

1. Mr Turner, the solicitor for the applicant, took the Court to the applicant’s claims in relation to the experience that she had suffered and the findings made by the Authority in relation to the applicant’s activities, including the acceptance of her being an apostate and the incident involved at the university. 

2. Mr Turner also placed weight on the incident that occurred involving the family’s door and having acid thrown on it, and the discouragement of the applicant in searching for information about her father. 

3. In substance, Mr Turner submitted that there was not a genuine intellectual engagement with the applicant’s claims in relation to the significance of the events involving what occurred at university, and her discussions about religion at coffee shops, and the incident involving the applicant’s family’s door being the subject of an acid attack, and the discouragement of the applicant in searching for her father. 

4. Mr Turner submitted that the Authority had failed to carry out its statutory duty by recognising that the applicant engaged in a public display of her perceived renunciation of Islam and that the applicant faced a real chance of harm in Iran, including being charged with apostasy. 

5. The Authority’s reason, as summarised above, reflect a genuine intellectual engagement with the whole of the applicant’s claims and evidence and the making of adverse findings that were open for the reasons given by the Authority. There is no substance in the contention that the Authority failed to carry out its statutory duty as advanced in relation to ground 1. Ground 1 is in substance an invitation to the Court to engage an impermissible merits review. 

6. No jurisdictional error as alleged in ground 1 is made out. 

7. In relation to ground 2, Mr Turner submitted that the Authority had applied an incorrect test and referred to language in paragraphs that referred to matters of something being likely or unlikely. The references were not that the application by the Authority of the test under the Refugee’s Convention, but rather seeking to read the Authority’s reasons with a fine or keen eye for error. 

8. The Authority correctly identified the relevant law and on the face of the Authority’s reasons correctly applied the relevant law. Further, the Authority correctly identified the country information, and it was open to the Authority to take into account that country information. The Court does accept the submission that the Authority failed to apply the correct real chance test in relation to the Refugee Convention. 

9. No jurisdictional error as alleged in ground 2 is made out. 

10. In relation to ground 3, Mr Turner submitted that this was a case where the Court should find that the Authority’s decision was legally unreasonable in relation to a failure to hold that the applicant had a well-founded fear of persecution. Again, this was, in substance, an invitation to engage in merits review. 

11. The Authority’s adverse finding was open for the reasons given by the Authority as summarised above. Those reasons cannot be said to lack an evident and intelligible justification, and relevantly, include the ability of the applicant to leave lawfully on a passport issued by Iran to which the Authority referred in its reasons. 

12. The Authority also referred to the cessation of the applicant’s activities in relation to the search for her father, and reasons why the content of her computer had not come to attention of the authorities, and clearly took into account the applicant’s claims in relation to her activities at university, and provided logical and rational reasons for rejecting the applicant’s claim in relation to the more recent alleged arrest that had not been raised in the applicant’s application for protection. That was an adverse finding that cannot be said to lack an evident and intelligible justification. 

13. The Authority’s reasons in terms of outcome cannot be said to lack an evident and intelligible justification given the reasons of the Authority as summarised above. The adverse outcome is not one to which no reasonable decision maker could come. There was no legal unreasonableness in the determination of the application for review by the Authority.

14. No jurisdictional error as alleged in ground 3 is made out. 

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

I certify that the preceding fifty-four (54) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 September 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 14 October 2020