CQZ18 v Minister for Immigration

[2019] FCCA 808

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQZ18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 808

Catchwords:
MIGRATION – Application for judicial review – Appeal from decision of the Immigration Assessment Authority – protection visa – no matter of principle.

Legislation:

Migration Act 1958 (Cth), ss.5J(6), 36(2), 36(2)(a), 36(2)(aa), 36(2A)

Applicant: CQZ18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: LNG 18 of 2018

Judgment of: Judge Riethmuller

Hearing date: 15 November 2018

Date of Last Submission: 15 November 2018

Delivered at: Melbourne

Delivered on: 1 April 2019

REPRESENTATION

Counsel for the Applicant: Mr G. Barns

Solicitors for the Applicant: Refugee Legal Service Tasmania

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 18 of 2018

CQZ18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made 3 April 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise Visa.

2. The applicant is a citizen of Iran who arrived in Australia by boat from Indonesia on 11 July 2013.  An entry interview took place in August 2013 following which the applicant was invited to apply for the visa in July 2016. The applicant made his visa application in September 2016 and was interviewed by the delegate on 4 May 2017. The delegate refused to grant the applicant the visa on 20 July 2017.

The Applicant’s claims

1. The applicant said that he had joined demonstrations in 2009 and had been photographed by somebody on a surrounding building. The applicant said that a few weeks later authorities tried to arrest him at his family home, but he was staying with a friend. The applicant said he then quit his job and began staying in other cities. However, in 2011, the applicant travelled to Saudi Arabia with his sister who was attending a haj pilgrimage, and for this purpose the applicant appears to have been able to exit and enter Iran without difficulty, although he says that his brother paid a bribe to officials.

2. The applicant also said that he had begun cleaning a Christian church in Tehran with a friend and that they both became interested in Christianity.  The applicant said they quickly developed a connection with the church caretaker who offered to teach them about Christianity, following which they attended five days per week to talk and learn with the caretaker.  The applicant said that the church was under surveillance and authorities had identified him and told his mother that they knew he had become a Christian. As a result, the applicant left, travelling initially to Malaysia.

3. The applicant said that he was baptised in Australia in November 2013 and was released from Immigration Detention in May 2014. The applicant now resides in the Hobart area, is an active participant in an Anglican congregation and has adopted a Christian first name. The applicant is concerned that if he returns to Iran, he will be detained at the airport, imprisoned, interrogated and harmed.

4. The applicant’s information was part of the major data leak that occurred some years ago, which was also addressed by the decision-makers.

The IAA’s Findings

1. The IAA considered the applicant’s claims with respect to the demonstration, noting that at the time around 6000 people were arrested by authorities. The IAA also placed weight on the fact that the applicant had been able to leave relatively easily and return to Iran in 2010, which was inconsistent with him being sought by authorities (the IAA not being persuaded that the payment of a bribe would overcome the difficulties).  The IAA also noted that the applicant’s statements about his employment history did not match his documents, for example, the applicant said he left his job with a welding company in 2009, yet the employment certificate from that company stated that he was a welder with them from 2008 until May 2011.

2. It also appeared to the IAA to be inconsistent that the applicant would be able to complete a number of courses and obtain skilled certificates from the Minister of Education, if he was being sought by authorities.

3. The IAA also considered the applicant’s claims of conversion to Christianity. The IAA identified evidence that the applicant identified as Muslim when he arrived in Australia and had requested a halal diet. As late as April 2014, the applicant advised an officer at the detention centre that he required a halal diet and that he practiced the Muslim religion.  The applicant did not mention his religious claims when interviewed on arrival in August 2013.

4. The IAA turned to consider the support that the applicant has from members of the parish in which he participates in Christian worship. The IAA accepted that the members of the church supporting the applicant are genuine in their support and accepted the evidence of the observations of the members of the church.

5. Particularly damaging for the applicant was the evidence concerning the timing of his baptism, of which the IAA said:

   31. From the information before me the applicant indicated in the immigration detention centre report dated 28 September 2013 that he would like to go to church and I note that this was ten days after the applicant had received a “negative screening message” about which he was “highly aggravated and upset”. The applicant was then baptised within two months on 17 November 2013. The timing of the applicant's interest in attending church and Christianity, coming shortly after a negative screening outcome, brings into doubt that his conversion was for reason of religious beliefs. Furthermore I find the information that indicates the applicant was continuing to practise as a Muslim for a number of months after his baptism as Christian in November 2013 severely damages his claim to be a genuine convert to Christianity.

6. Ultimately, the IAA concluded that whilst the applicant had become integrated into the church community in Australia, the IAA were not satisfied that he was a genuine adherent to the Christian faith: see [33].

7. Since the applicant’s arrival in Australia, the applicant has established a Facebook page.  Originally, the page was established using his first name as shown on his official documents and a shortened form of the family name which appears on the official documents. Since that time, the first name has been changed to a Christian first name. The applicant also supplied a link to a television segment that was produced in Australia where he can be seen for a brief period carrying a cross during a service in the parish church where he currently attends.

8. The IAA’s findings with respect to the motivation of the applicant in becoming a member of the Christian community in Hobart mean that he is not able to meet the definition in s.36(2) of the Migration Act 1958 as a result of the exclusion in s.5J(6). It was nonetheless necessary for the IAA to consider whether or not the applicant would suffer significant harm on the basis set out in s.36(2A). In this regard, it became relevant to consider whether or not, if the applicant were to return to Iran, the authorities would be aware of the Facebook page that had been created since he was in Australia, and link it to him, and view it as being of such significance as to result in him being at real risk of significant harm.

9. The relevant passages of the IAA’s decision are as follows:

   34. I accept that the applicant has claimed asylum in Australia and that his details were released in the data breach in 2014. However I do not accept that while he was in detention in Australia authorities visited the family home in Iran and spoke to his mother and told her they knew the applicant was in Australia as an asylum seeker and had changed his religion. Information released in the data breach included name and other person details and detention status. No information about protection claims was released. I have already found that the applicant was not of interest to the authorities when he left Iran, and I am not satisfied that the release of his personal details through the data breach have brought him to their attention. The applicant further claims that his Facebook account is monitored, and while initially this account was in his own name, he changed his profile and this activity is under the Christian name the applicant has adopted in Australia and I do not accept that this information would be known to the Iranian authorities. I do not accept that the authorities have visited the family home since the applicant's departure and spoken to his mother about the applicant being in Australia and changing his religion.

   …

   39. The representative stated that as an asylum seeker and because of the data breach the applicant will be accused of colluding with Australia or somehow siding with Australia, and it is likely that he would be punished because of this if returned to Iran. His representative also asserts that the applicant used his Facebook account to call for reform within Iran and this would likely amount to propaganda against Iran and I note a shared post calling for a stop to executions in Iran. The applicant's social media activity is conducted under an alias and I do not accept that the Iranian authorities would be aware of his activity. I had have regard to country information about asylum seekers returning to Iran and reports of asylum seekers being arrested on return relate to those involved in persons in anti-government activities, either in Iran or during their time abroad [FN: omitted] and ‘member[s]s of an oppositional political party or involved in political activities in other ways’ [FN: omitted].  I am not satisfied that the applicant has a profile that would attract attention on return to Iran.

   …

   49. I am not satisfied that the applicant is a genuine convert to Christianity and I do not accept that he would be perceived as such on return to Iran. The country information before me indicates that even genuine converts are unlikely to come to harm in Iran, and that low level harassment may be experienced by attendees of house churches. While the applicant has been a frequent and active participant in church services and photographs and video of him carrying the cross and otherwise being involved in services have been published I am not satisfied that his involvement would be known to the authorities, or that this would raise concern  in Iran  if known. I am satisfied the applicant would not pursue Christianity in Iran and has not renounced Islam. The applicant has shared Christian messages on Facebook, however I am not satisfied that the authorities would be aware of his Facebook activity. The information before me does not support the applicant's concern that his engagement in Christianity in Australia would be known in Iran, or that if it was, it would be viewed as renouncing Islam or genuinely converting to Christianity. I am not satisfied that any of these factors would give the applicant any actual or perceived profile as an apostate and I am not satisfied that there is a real risk that he would face significant harm for these reasons.

Grounds of Judicial Review

1. A Further Amended Application was produced at the hearing, which abandoned ground 1. The grounds for judicial review in this case are framed as follows:

   2. The Decision of the Immigration Assessment Authority (IAA) was affected by jurisdictional error in that no logical connection existed between the evidence and the inferences or conclusions drawn by the IAA that the Iranian authorities would not be aware of the Applicant’s Christian messages on Facebook or that if they were, it would be viewed as renouncing Islam or genuinely converting to Christianity.

   3. The Second Respondent engaged in jurisdictional error by failing to have regard to a relevant consideration or otherwise failed to carry out its statutory task.

   Particulars

   The Applicant’s submission stated he had opened a Facebook Account three years ago in his own name and after a year he changed the first name on the Facebook page but his surname remained the same: CB [3] 309.

   The Facebook page contains information about his conversion to Christianity and Christian messages: CB [4], [5] 309

   The Applicant’s submission referred to a YouTube vide of the Applicant’s involvement in a Christian Easter ceremony: CB [12] 310

   The Second Respondent did not accept, in the context of the complimentary protection claim, the Iranian authorities would be aware of his Facebook activity or the YouTube video: CB [49] 336

   The Second Respondent did not deal with the process of questioning or interrogation of the Applicant if he returned to Iran voluntary or, if there was a change of government policy, involuntarily and whether, in the course of that interrogation or questioning, the Applicant’s Facebook pages, YouTube video and photographs would be revealed to the Iranian authorities, and if so what the consequences of that would be for the Applicant.

2. The substance of the applicant’s arguments (omitting quotes from authorities) was:

   18. In essence it is submitted that the Second Respondent came to a conclusion about whether the Iranian authorities would be aware of the Applicant’s activities as a Christian which was illogical and erroneous because it failed to have regard to the fact that the Applicant’s Facebook page was in his own name, and not conducted under an alias, and furthermore that the Second Respondent’s conclusion that the Facebook pages, photographs and the YouTube video would not come to the attention of the Iranian authorities was not based on any evidence before it.

   …

   21. The Second Respondent made an erroneous finding of fact about the authorship of the Facebook page. The Applicant had not used an alias, opened a separate page, but merely changed his first name on the Facebook page after a year from Hossein to Gabriel.

   22. On the issue of the finding that the Facebook pages and YouTube video would not come to the attention of the Iranian authorities this is a case where there was no evidence to support that conclusion.

   …

   25. This summary of the law is apt in this case. Here the Second Respondent, in dealing with the issue of complementary protection, and in particular the issue of harm on return to Iran, failed to take account of the Applicant’s claimed fear, whether he would be questioned on his return about the Facebook pages, the YouTube video and the photographs concerning his Christian activities in Australia.

   26. The Second Respondent did not deal with the issue of the questioning process on return to Iran and the nature of that interrogation. It did not, for example, ask itself about whether the Applicant would be forced to reveal the Facebook pages, YouTube video and photographs depicting the Applicant’s Christian beliefs and activities to the Iranian authorities if he voluntarily returned to Iran or if, at some point he was forced to return involuntarily.

3. The substantive complaint is that the IAA had erred in concluding that the Facebook page was operated under an alias, given the connection between the Facebook page name and the true name of the applicant. 

4. The Facebook page name is materially different to the applicant’s name and whilst not an alias in the sense of a name created or designed to have absolutely no connection with the author, it is nonetheless a different name (the first name being different, and the surname being considerably shortened) to that which appears on the applicant’s official documents: see Court Book (CB) pp.171 and 175. As a result, it does not appear to be illogical or unreasonable for the IAA to conclude that the Facebook page is operated under an alias in the sense that is relevant for this decision – that is, a name different to the applicant’s name. The real complaint goes to the tribunal’s view as to the impact of the differences.  It is not open to the Court to conduct a merits review: judicial review is constricted to the question of whether or not the conclusion is illogical or legally unreasonable.  This is not a case where the difference in names was so slight (for example a transposition of two letters such as ‘i’ and ‘e’) that it could be said that the IAA’s view was illogical or legally unreasonable.

5. It is apparent that the IAA had regard to the video as it refers to it in its reasons. The reasons and conclusions of the IAA (at [39]) appear to have been reasonably open to the IAA based upon the material that was before it. The contents of the Facebook page and the video were clearly considered by the IAA. The IAA did not accept that the Iranian authorities would be aware of the activity on Facebook and also found that the applicant’s profile would not attract attention on his return to Iran.

6. The argument that there is no evidence that the authorities did not know of the page overlooks the reality that rarely is there evidence for or against such a proposition. It is for the decision maker to form a view, based upon the circumstances of the particular case. In this case the IAA appears to have adopted as the test the question of whether the Iranian Authorities ‘would be aware’. This appears to be too high a test in the context of a finding that must ultimately be based upon a test of ‘real risk’.

7. To the extent that the issue arises under s.36(2)(a) the issue is overtaken by the findings that enliven the operation of s.5J of the Act. However, s.5J does not relevantly apply to the considerations under s.36(2)(aa), as the IAA correctly identifies.

8. The IAA made an alternative finding based upon the situation if it were that the authorities were aware of these things. The IAA found, in this regard, that if the Facebook comments, video and photos where known to authorities that they were not satisfied that these things ‘would be viewed as renouncing Islam or genuinely converting to Christianity.’  The IAA reverts to the correct test by the end of the paragraph.

9. As Counsel for the Minister points out:

   25. With respect to the applicant’s claims for complementary protection the Authority acknowledged that it was required to take into account the applicant’s conduct in Australia in relation to his Christianity (CB335, [46]). It did so by considering country information (CB335, [48]). It concluded that the country information ‘indicates that even genuine converts are unlikely to come to harm in Iran’ (CB336, [49]). … The point the Authority was making was that even if those activities came to the attention of the Iranian authorities, he would not face a real risk of significant harm.

10. The discussion of the risks in this regard, in paragraph 48 of the IAA’s reasons are quite lengthy. Paragraph 48 identifies information indicating a low level of risk, but also information indicating a death sentence for an apostate in 2011. That paragraph provides:

    I have considered country information to assess whether his engagement in Christianity in Australia, including baptism, confirmation, participating in church services and activities and posting messages on Facebook may result in significant harm to the applicant in Iran as an apostate and Christian convert. The Danish Immigration Service reported in 2009 that “asylum seekers and refugees are kept under strict surveillance by any Iranian embassy and its network of informers. Thus, conversion abroad may very likely come to the knowledge of the Iranian authorities”. However the same report cited a Christian church in Tehran which “confirmed that if a convert returns to Iran from a country where he has converted, he might face difficulties. However, the source has not heard of any such cases but added that sometimes converts might risk the death penalty should they return to Iran.” The Department of Foreign Affairs and Trade (DFAT) advises that the last known application of the death penalty for apostasy occurred in 1990 and in 2011 an apostate was sentenced to death however, following international pressure, the conviction was subsequently commuted and the death penalty was dropped. In 2011 the UK Home Office cited several agencies; Landinfo stated that in “recent years, the Iranian government and clerical leadership have viewed apostasy as an increasing threat to the structure of Iranian society” however in practice, “it is very rare for anyone to be convicted of apostasy”, and the International Federation for Human Rights 2009 report Iran/Death Penalty: State Terror Policy”, dated 28 April 2009, which stated that “There have been few reports on apostasy cases in recent years”. Overall the information in the UK Home Office report pointed to priests and outspoken proselytisers as attract adverse attention in Iran. Reporting more recently in 2016 DFAT “considers it unlikely that individuals will be prosecuted on charges of apostasy.”

1. In paragraph 49 and 50 the Tribunal comes to consider whether the Applicant faces a real risk of significant harm. The paragraph is in these forms:

   49. I am not satisfied that the applicant is a genuine convert to Christianity and I do not accept that he would be perceived as such on return to Iran. The country information before me indicates that even genuine converts are unlikely to come to harm in Iran, and that low level harassment may be experienced by attendees of house churches. While the applicant has been a frequent and active participant in church services and photographs and video of him carrying the cross and otherwise being involved in services have been published I am not satisfied that his involvement would be known to the authorities, or that this would raise concern in Iran if known. I am satisfied the applicant would not pursue Christianity in Iran and has not renounced Islam. The applicant has shared Christian messages on Facebook, however I am not satisfied that the authorities would be aware of his Facebook activity. The information before me does not support the applicant’s concern that his engagement in Christianity in Australia would be known in Iran, or that if it was, it would be viewed as renouncing Islam or genuinely converting to Christianity. I am not satisfied that any of these factors would give the applicant any actual or perceived profile as an apostate and I am not satisfied that there is a real risk that he would face significant harm for these reasons.

   50. I have found that there is not a real chance that the applicant faces harm on the basis of his political opinion and attending the 2009 election protests and Facebook posts, or returning to Iran as an involuntary returnee asylum seeker. Noting that the “real risk” test for complementary protection is the same standard as the “real chance” test,14 and based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for these reasons.

2. Whilst the correct test is used in the last half of the last sentence of paragraph 49 and all of paragraph 50, the actual reasoning approaches the case by making determinations on a ‘would be’ test, eg ‘would be perceived’, ‘would be known’, ‘would raise concerns’, ‘would be aware’ and ‘would be viewed’. The use of findings on the basis of ‘would be ‘indicates a test of proof on the balance of probabilities. The correct test requires consideration of whether there is a ‘real risk’ not ‘would be’.

3. It is always difficult to determine whether the correct test has been applied when words such as these are used in the reasons but not the ultimate conclusion. It is clear that the Tribunal formed the view that it was not persuaded that the activities of the applicant are known to Iranian authorities through the use of a ‘would be’ test. However the applicant need only show that there is a ‘real risk’ of serious harm.

4. For example, the finding that the IAA did “not accept that [the applicant] would be perceived” as a genuine convert was open. However, there must surely be some risk that he would be so perceived by anyone seeing video of him in a cassock and carrying a large cross in a Cathedral procession. Ultimately I am satisfied that the use of ‘would be’ test were in error in the context of this case.

5. The difficulty for the applicant is the finding of the IAA that “even genuine converts are unlikely to come to harm in Iran.” A finding of likelihood is an appropriate fact finding step to inform the ultimate finding as the real risk, just as a positive finding that something would be known to authorities. The IAA also made a positive finding that the applicant has not renounced Islam and that he would not pursue Christianity if returned to Iran.

6. These findings support the ultimate conclusions of the IAA. Whilst rejecting various propositions that certain facts or views ‘would be’ known to or held by the authorities, it appears that the IAA nonetheless made a decision on a ‘risk’ of harm.

7. The final matter is whether the various Facebook materials may become known to the authorities in Iran if the applicant returns voluntarily. The IAA made a clear finding that as Iran does not accept involuntary returnees, any return could only be on a voluntary basis:

   Country information advises that Iran does not accept involuntary returnees9 and I find that if the applicant is returned to Iran it would be on a voluntary basis. There is no indication in the information before me that voluntary returnees face harm on return. Country information indicates that people of interest may be questioned on return but I have not accepted that the applicant would be of interest to the Iranian authorities.

8. It is argued that no consideration was given to him possibly alerting the Iranian officials to his Facebook information if interrogated on a voluntary return. However the findings referred to above dispose of this issue on the basis that even genuine converts are unlikely to come to harm and the IAA being satisfied he is not a genuine convert.

9. Ultimately, it does not appear that the applicant has established a ground for judicial review in these proceedings and, therefore, I have no choice but to refuse the application.

Costs

1. The parties are agreed that costs should follow the event at the scale fee, and I, therefore, make costs accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  1 April 2019