CQI15 v Minister for Immigration

[2016] FCCA 1453

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1453

Catchwords:
MIGRATION – Administrative review – Protection Visa refused – application dismissed – applicant pay respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: CQI15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1143 of 2015

Judgment of: Judge Vasta

Hearing date: 30 May 2016

Date of Last Submission: 30 May 2016

Delivered at: Brisbane

Delivered on: 30 May 2016

REPRESENTATION

The Applicant appearing on his behalf

Counsel for the Respondent: Ms Stoker

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application for an extension out of time be refused.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1143 of 2015

CQI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This is an application brought to extend the time in which to apply for a review of a decision of the then-Refugee Review Tribunal. 

2. The Refugee Review Tribunal made a decision that affirmed a previous decision of the delegate of the Minister to not grant the applicant a protection visa.  That decision was made on 27 May 2015. 

3. Under the rules of this Court, any application for a review of that decision must have been lodged in this Court by 1 July 2015.  The application was lodged on 9 December 2015, some five months or so late.

4. The principles for a Court to allow an extension of time are fairly well settled, and there are three aspects upon which the Court really needs to concern itself. 

5. Firstly, what is the reason for the delay.  Secondly, what prejudice if any follows for the respondent. Thirdly, is this a case where, on the merits, there may very well be a successful application. 

6. With regard to the reasons for the delay, in the application itself, the applicant writes this:

   “I was advised to make an application to the Minister for a Ministerial discretion instead of appealing to the Courts.  I waited for the decision which was not favourable.  It appears some information was not available to make the decision which though provided was not reconsidered.  The delay was due to the delay in the response.  The applicant wishes to be heard in Court.”

7. There is no further explanation than that.  Whilst it may be that there was a delay in the ministerial decision making process regarding the discretion, it certainly does not seem to adequately explain a five month delay.  Going to the Minister was always a route that may not have been successful, and it does not explain why an applicant still did not have a concurrent application to the Court.

8. But, nevertheless, that is still a very minor consideration overall.  Secondly, there does not seem to be any prejudice on the Minister for Immigration if I were to grant leave.

9. The third aspect, which really is more or less the merits aspect, is probably the most apposite to me deciding this matter.  One has to look at the background of the claim made by the applicant. It is a claim for protection, and protection must be either for a Convention reason or for the complimentary protection reasons.  In other words, it really seems on a case like this, that the tribunal must be satisfied that there really is a real risk, a true risk, of serious harm being done to the applicant if he were to return to Iran.

10. One has to look at the basic claim. 

11. It seems that the applicant has been in Australia since 2012.  He came here, it seems, on a passport.  What he now says is that he would face harm, if returned to Iran, because he has refused to conform to the Islamic way of life in Iran.

12. He claims that life is very difficult if a person does not conform.  He gives examples of being stopped for holding a water bottle during Ramadan, and having to clean the mosque, and sign a statement as some form of sanction for doing that.

13. He says that he has been stopped because he wears western clothes, he shaves his head, he was wearing an earring, he colours his hair.  He also has tattoos, and he claims that some of those tattoos can be viewed as a political tattoo. 

14. He claimed that a friend of his, with a similar tattoo, was stopped and had it (the tattoo) burnt with an iron.  He says that he is at risk because of his western appearance and the way in which he wears his clothing.  He told the delegate of the Minister that he was denied access to the local swimming pool because of his tattoos.  He claims that his girlfriend’s father would not allow him to marry her because of his tattoos.

15. He says that because of his disagreement with Islam, and his view that it is an oppressive religion, he cannot openly discuss his views about religion in Iran.  He said that he wanted to explore other religions, and does not want to live discreetly, and wants to be able to walk without fear of being stopped or mistreated because of his appearance and attitude. 

16. That aspect, the nonconforming to the Islamic way of life, and having the tattoos, was explored very much by the Tribunal. 

17. His other claim was that he had changed his religion. He said that, therefore, going back to Iran, having changed a religion, would cause him to be persecuted.  This claim was also looked at by the Tribunal as was his claim that, upon return to Iran, he would be seen as failed asylum seeker. 

18. These were the claims that he had made to the delegate for the Minister in order to justify why it is that he ought be given a protection visa. 

19. What also occurred at the Tribunal was that he made a new claim that he had not made before, and that was that there was an incident involving himself and a friend imbibing alcohol and going to his friend’s girlfriend’s house.  His friend’s girlfriend, he said, was actually a married woman and married to an intelligence officer in the Iranian Army or government service.  He said that what occurred was that after having drunk some alcohol, his friend and his girlfriend went into a room and started to have sexual intercourse.

20. He said that he and the girlfriend’s 22 year old daughter then also started having sexual intercourse in another room.  He said that at about 3:00am or 4:00am, the husband was loudly knocking on the front door and the applicant and his friend jumped over the balcony.  This caused his friend to fracture his leg and his friend had to be taken to the hospital.

21. Notwithstanding that this apparently occurred some three or four weeks before he left Iran in 2012, the applicant told the Tribunal he had only just found out a few months ago (that being in early 2015), that the husband was from intelligence and that his friend had been arrested and sentenced to death. But, he claimed, the sentence was commuted to life because he gave authorities the details of the applicant and now the authorities were looking for him (the applicant).  He said that his mother told him three days ago that the authorities had raided their home three or four times and she asked what had the applicant done that would cause this. 

22. Now, all of those matters were being considered by the Tribunal because it wasn’t so much that any one of them was the matter that the applicant relied upon.  It was the cumulative effect of all of those claims.  However, it does seem that the Tribunal did go through everything very thoroughly.

23. With regard to the sex incident, the Tribunal found that that was a claim that was lacking in credibility.  The Tribunal found that it was not credible that the applicant would not have talked about the girl’s father or mother, or the fact that there was a man in the house beforehand.  The Tribunal found that it was implausible that, if it were the husband coming home at the time of 3:00am or 4:00am, there would be a reason for why he would be knocking on the door; because it is his house and he would simply walk in.

24. The applicant, when that was put to him by the Tribunal, said that the key was on the other side of the door.  That seemed a very convenient excuse but one also has to think that if the husband is simply returning home, why he would be knocking on the door at 3:00am or 4:00am, knowing that he would be waking the persons inside.  The Tribunal also found it incredible that the applicant would not have known that his friend was detained and that the applicant would not have tried to contact the friend any time between the time that he left Iran until now.

25. There were a number of other reasons as well, but I do not need to go into why the Tribunal found that the claim was just lacking in credibility. 

26. The other aspect, of course, was that it did seem incredible that the mother would not tell him of the raids because she “did not want to worry him”.  Considering that he is in Australia because he is making an application for protection, it seems ridiculous that the mother would not have told him about these raids until there were three or four of them; and then only a couple of days before he, himself, was going to a protection hearing.  One wonders why it just now come out of the mother’s mouth, considering, as the applicant had said, they had always had almost daily contact

27. As far as his appearance is concerned, whilst the applicant is obviously from a country in which persons are meant to comply with Islamic traditions, the fact is that the applicant wears formal pants and a long sleeved shirt to work in Iran.  There would be nothing to illustrate to anyone that the applicant has tattoos.

28. Whilst he did have earrings and dyed hair, he certainly does not do that now and said that he does not do that at the moment because he wants to fit in to Australian society.  Whilst there may be some truth to him needing to hide the tattoos or not being able to go to the pool because of the tattoos, such does not amount to persecution within the meaning of the convention.

29. The Tribunal said that they had serious doubts as to the tattoo of the friend being burned and considered that the applicant fabricated his claims. The Tribunal also did not accept that the applicant had a girlfriend whose father disapproved of him marrying the daughter simply because of his tattoos, but, even if that did happen, such would not amount to serious harm.

30. The Tribunal did not accept the tattoo, which was a star tattoo, could have been considered as a political tattoo.

31. The Tribunal did not accept that any of the claims as to what the applicant had endured before he left Iran could have amounted to persecution or give rise to a real risk that he will be subjected to serious harm if he is returned to Iran. 

32. At paragraph 38 the Tribunal said:

    “Having considered the applicant’s circumstances and the country information, the tribunal does not accept he faces a real chance of serious harm as a Westernised Iranian, or because of an imputed political opinion.  The tribunal finds that there is no real chance that he would be seriously harmed for reasons of his dress or appearance, whether that be on the basis of him being in a particular social group or imputed political opinion, in the reasonably foreseeable future and his fear of persecution on these bases is not well-founded.”

33. Whilst the applicant said that he was exploring other religions, the only evidence that he gave to the Tribunal was that in the last two months (that is, the two months before the Tribunal hearing), he started attending the Mormon Church for religious classes.  He told the Tribunal that he did not know why he had chosen that Church and had not explored other religions.  His evidence about the religious activities was vague, it changed and it was inconsistent with country information. 

34. The Tribunal gave the example that the applicant said that he went to the church once and went for about one and a half hours, but then later in his evidence detailed that he went three or four times.  He claimed that he attended the church services on Sunday between 12:00pm and 2:00pm.  However, the church services at the Kangaroo Point Mormon Church, where the applicant claimed to have gone, has services at 9:00am to 1:00pm.  The applicant could not provide any information about the Church’s beliefs or what he had learned, other than he knew that it talked about a person called Joseph Smith and that they do not smoke or drink alcohol.

35. He was asked about what the sermon was about, but he said he did not know because his English was too poor.  However, the Tribunal said that, given that the applicant may not know much about church teachings, it was inconsistent with his claim that he was exploring religions for the applicant to choose that church over any other church without being able to give a reason for that choice.

36. Later in his evidence, he told the Tribunal that he joined to repent his sin in relation to the sex incident that occurred before he left Iran, but the Tribunal was not satisfied that the attendance at the Mormon Church and religious classes was anything other than for the purpose of strengthening his claims to be a refugee and, therefore, the Tribunal did not find that there was a true conversion to Christianity such that he would wish to practice Christianity in this way if he were returned to Iran.

37. As a failed asylum seeker, the Tribunal found that, on the country information and the circumstances, the Tribunal did not accept that he would be prosecuted or harmed upon return or be imputed with an anti-government political opinion simply because he applied for asylum in Australia or was returned from a Western country or had become a Westernised Iranian.  The Tribunal looked at the fact that in Iran there are plenty of people who are coming and going from Western countries all the time.  There does not seem to be any country information that talks about anything that occurs to people upon their return. 

38. So for all of those reasons, the Tribunal, in effect, was not satisfied that Australia had protection obligations under the Refugee Convention, nor was the Tribunal satisfied that the applicant satisfied the criterion of complementary protection. 

39. However, in this Court there was another submission made. The applicant says that he told his solicitor what to write and the solicitor wrote what it was that he said but put it into the formal English words.  The applicant could not explain much more about this and, for that reason, even though he had not initially wanted an interpreter, I then insisted that an interpreter be provided. 

40. Still, upon the interpreter coming, the applicant said he could not expand on anything more than what was said in the submission. 

41. The submission is quite contradictory and that is the reason why I wanted some explanation.  The submission says this:

    “3. The main thrust of my applicant (sic) was that I come from the Shiite Muslim Group while the majority of the population in Iran and the Government is the Sunni group. 

    4. It is well known that Iran supports ISIS and all Sunni fractions (sic) in the fight in Syria and Iraq against the Shia fractions. 

    5.This means that my group is constantly under vigilance and it takes very little evidence to arrest me and put me in jail on account of my religious affiliation. 

    6. I became despondent and as a result expressed views against the religion and began to follow the western style of life.  This includes the use of western dress, the hairstyle and because of the influence from western groups also got tattoos. 

    7.While I agree the tattoos are not illegal but frowned upon, it is the combination of behaviour patterns that led to my being singled out for attention by the Iranian authorities. 

    8.The religious enforcement authorities are very powerful and have the power to carry out extreme forms of punishment for minor offences. 

    9.Full details have been presented in the letter on page 24 onwards of the Court Book. 

    10.Changing of religious is forbidden in Islam.  This puts me in a worse position and the trigger for the worst penalty of death is very small. 

    11.The main ground of the appeal to the decision was that the Tribunal failed to consider the main thrust of the application of the discrimination and persecution of Sunni sects particularly where such member has strayed from Islam and moved to Christianity. 

    12.I consider the Tribunal’s failure to consider this aspect of my application a ground of the application that is valid. 

    13.The Tribunal failed to consider the application under the Complementary provisions in that even if the first ground fails, the Tribunal has the obligation to consider the overall position of the Applicant with respect to the cumulative effect of the reasons which include: 

    (a) The Applicant being of the Sunni minority

    (b) The home country supports the Shiite against the Sunni in that is occurring in the Middle East. 

    (c) The applicant has committed the fatal error in Islam as by changing to Christianity. 

    (d)The Applicant in changing his dress patterns and the wearing of tattoos that are not accepted by the regime further exacerbated the critical position of the Applicant which makes his life in Iran untenable.”

42. The submission finishes with:

    “14. I seek this court to consider the grounds sympathetically and allow the application.”

43. The problem with all of that is none of this was mentioned before the Tribunal.  Whilst it was quite clear that the applicant had always said that he was of the Shia faction within the Muslim religion, he had not, in any way, shape or form beforehand, said that this was some other aspect upon which he should be looked at favourably. 

44. It does seem that this is a pattern that is becoming clear; that the applicant had a particular set of grievances that he told to the delegate of the Minister and when that was unsuccessful he then added the sex claim, and when that was unacceptable he now adds the new submission that the Shia and Sunni religions do not get along and so that is another matter that should be considered. 

45. However, as I say, this submission is quite contradictory because while he starts off by saying that the Shiite is in the minority and the Sunni are the majority and so, therefore, the Shiite is persecuted, later in the submission he says that he is of the Sunni minority and that the home country supports the Shiite against the Sunni and that is occurring in the Middle East. 

46. The applicant was asked about this.  He said he did not want to make any further comment.  What was written was what was written and it was right. 

47. So it seems to me that this aspect, even if it were something that could have been considered by the Tribunal, would have been rejected as well; one, because of its contradictory nature but, secondly, it really does not advance anything any further than what had already been done. 

48. So, as I say, even if were able to look at that aspect, when one has a look at all five of the matters of the basic claim, that is, the non-conforming to the Islamic way of life, the change of religion, his being a failed asylum seeker, the sex claim and the Shia versus Sunni aspect, none of those were looked at and found to have been of sufficient credibility to enable the Tribunal to be satisfied that the criterion in the Refugee Convention or the complementary protection criteria had been met. 

49. It is not for this Court to look at the evidence and to say whether the Court would have made exactly the same decision. It is for the Court to look at what was there before the Tribunal and to say whether or not the conclusions made by the Tribunal were open on the evidence. 

50. In this case, the conclusions were well and truly open. 

51. I cannot find that there has been any jurisdictional error made by the Tribunal. 

1. Therefore, going back to the matter that I have to look at as to whether I should grant the application to extend time, when I look at all of the matters that I need to look at, I cannot be satisfied that there is any merit in any of the matters and, therefore, I decline to exercise my discretion. 

2. I would, therefore, refuse the application for an extension of time and, having refused that, I ought make an order as for costs in this matter.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:15 June 2016