CSX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 319
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSX16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 319
File number(s): MLG 2064 of 2016 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 6 May 2022 Catchwords: MIGRATION– application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa – consideration of the applicant’s religious beliefs – where the applicant claims to fear harm due to his rejection of Islam and conversion to Christianity – where the applicant claims to fear harm due to his criminal conviction relating to possession and consumption of alcohol – whether the Authority failed to consider the correct legal questions – whether the Authority’s findings were reasonably open on the evidence before it – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 476 Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Division: Division 2 General Federal Law Number of paragraphs: 97 Date of last submission/s: 12 August 2021 Date of hearing: 12 August 2021 Place: Melbourne Solicitors for the Applicant: The applicant appearing on his own behalf Solicitors for the Respondent: Ms Roberts of Mills Oakley Lawyers ORDERS
MLG 2064 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSX16
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The applicant’s application filed on 23 September 2016 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $6,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘Authority’) made on 29 August 2016. By its decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection (‘Minister’) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
BACKGROUND
The applicant is an Iranian citizen. He arrived on Christmas Island on 22 September 2012 as an unauthorised maritime arrival.[1]
[1] Court book at pages 9, 127 and 208.
On his arrival, the applicant participated in a bio data interview and in response to a question as to why he left Iran, replied:
There is no security. I am not a Muslim, if they knew that they would torture and kill me.[2]
[2] Court book at page 3.
On 2 December 2012, the applicant participated in an Irregular Maritime Arrival Entry Interview in which he restated this as the reason for his departure from Iran.
He also said ‘I don’t accept Islam; the religion does not recognise women’.[3] In response to a question as to what he believed would happen if he were to return to Iran, the applicant stated, ‘I know 100% I will be executed for my religious beliefs’.[4]
[3] Court book at page 19.
[4] Court book at page 23.
By letter dated 14 September 2015, the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.[5]
[5] Court book at pages 25 to 31.
Application for SHEV on 27 October 2015
On 27 October 2015, the applicant lodged an application for a SHEV.[6] The applicant had requested, and been granted, an extension of time for this application.[7]
[6] Court book at pages 108 to 149.
[7] Court book at pages 106 to 107.
Attached to the applicant’s application for a SHEV is a statutory declaration dated 30 October 2013 in which he stated that:
(a)he is an Iranian citizen of Persian ethnicity;
(b)he left Iran because he rejected Islam and his life is at risk in Iran because it is an Islamic State;
(c)he completed military service in Iran as required, during which time he was assigned to work as a driver for the police and witnessed police abuse and harassment. He was particularly upset by the way in which the police treated women;
(d)it was during his military service that he started to reject Islam as he saw the way that women were unfairly treated in the name of Islam;
(e)he started to attend Narcotics Anonymous in 2010 to assist with his use of alcohol and hashish and he continued to attend for some two years;
(f)on one occasion whilst attending Narcotics Anonymous, the Basij came and broke up the meeting;
(g)he was also stopped in the street by the Basij in February 2012 and was found with a bottle of alcohol on him. He was subsequently detained, charged and found guilty of having alcohol and was sentenced to six months’ jail and 80 lashes. He stated that his time in prison was very difficult;
(h)the applicant was able to reduce the amount of lashes he was subjected to, and as a result of his time in prison, he completely rejected Islam, became anti-Islamic and opposed the Islamic Iranian regime;
(i)ultimately, he left Iran in September 2012 as he could no longer live under the regime;
(j)since arriving in Australia, he said that he had commenced attending church and converted to Christianity, being baptised on 10 November 2013; and
(k)he cannot return to Iran as he is not able to disclose his anti-Islamic views, and fears harm because of these views. He also fears harm if he were returned to Iran as a failed asylum seeker and further stated that he cannot relocate within Iran as the issues that he faces exist throughout the country.
At page 185 of the court book is a translation of a ‘Judgment’ which appears to relate to the applicant’s conviction for ‘storage and consumption of alcoholic drinks’ as a result of which the applicant received the sentence referred to above of 6 months imprisonment and 80 lashes.
The applicant also produced a letter from Faith Christian Church which evidences that he had recently been baptised, as well as a certificate of baptism dated 10 November 2013.[8]
[8] Court book at pages 186 to 187.
By letter dated 23 December 2015, the applicant was invited to attend an interview in relation to his application for a protection visa.[9]
[9] Court book at page 193.
Decision of the delegate on 20 June 2016
Under cover of letter dated 20 June 2016, the applicant was notified that his application for a SHEV was refused.[10] The delegate’s decision was referred to the Authority for review on 6 July 2016.[11]
[10] Court book at pages 204 to 228.
[11] Court book at page 233.
By letter dated 22 July 2016, the applicant’s representative provided the Authority with an original version of one of the documents that had been provided to the delegate prior to the delegate’s decision. In the covering letter, the applicant’s representative stated:
Please note that it is very important to us that the IAA reviewer observe the provided document and not a copy or scan of it. This is because the dry seal at the bottom of the document is invisible in a copy or scan version.[12]
[12] Court book at page 240.
The applicant’s representative submitted further documents and a written submission to the Authority by email dated 27 July 2016.[13]
[13] Court book at page 242.
Decision of the Authority on 29 August 2016
The Authority’s decision record is at pages 264 to 280 of the court book. By its decision, the Authority affirmed the delegate’s decision to refuse the applicant a protection visa.
At paragraphs [1] and [2] of the decision record, the Authority noted the basis of the delegate’s decision to refuse the applicant’s protection visa.
At paragraphs [3] and [4] of the decision record, the Authority identified the material to which it had regard in making its decision, including the further documents attached to the legal submission filed by the applicant’s representative on 27 July 2016. The Authority also had regard to the correspondence from the applicant’s treating psychologist, notwithstanding that that letter had not been provided to the delegate. At paragraphs [5] to [7] of its decision record, the Authority explains the basis for accepting (or not accepting) the information attached to the applicant’s further submissions.
At paragraph [8], the Authority summarised the applicant’s claims for protection.
At paragraphs [9] to [25], the Authority sets out its factual findings. Relevantly, the Authority:
(a)accepted the applicant’s claims about his experiences in Iran, that he had did not believe in Islam, although he did believe in God, and that he fears harm as he is not a Muslim;
(b)accepted that the applicant had attended Narcotics Anonymous and that on one occasion, a Narcotics Anonymous meeting he attended was raided by the Basij and the applicant was hit on the head while running away;
(c)on balance, accepted that the applicant had been stopped by the Basij in 2012 while carrying alcohol, was detained and ultimately imprisoned and that he was sentenced to 80 lashes, but received a reduced punishment of 25 lashes;
(d)accepted that the applicant came to reject Islam as a result of his experiences, that he does not attend mosque and that he may drink alcohol again, however did not accept that the applicant ‘has the intention, motivation, desire or commitment to publically express his political and religious views’;[14]
(e)accepted that the applicant had attended the Faith Christian Church prior to his baptism and that he was baptised in that church, however, the Authority went on to express concerns over the genuineness of the applicant’s commitment to, and belief in, Christianity. The Authority’s concerns in this regard are set out at paragraphs [19] to [24]. At paragraph [24], the Authority relevantly concluded:
… While I accept that the applicant may have attended church on occasion, including since his baptism, I do not accept that he has done so with any sort of regularity. I am not satisfied on the applicant’s evidence that he has a genuine commitment to or belief in the religion or its practice. I do not accept that his conversion is genuine.[15]
(f)went on to say at paragraph [25] that it accepted that the applicant has rejected Islam, and that the applicant still believes in God and has an interest and curiosity in Christianity. However, the Authority was ultimately of the view that the applicant did not genuinely convert to Christianity but rather the primary motivation behind his conversion was his desire to strengthen his claims for protection.
[14] Court book at page 268; see also paragraph [14] of the IAA decision record.
[15] Court book at page 270.
Refugee status
The Authority then went on at paragraph [26] (and following) of its decision record to consider whether the applicant satisfied the criteria of a refugee. Whilst the Authority accepted the applicant’s rejection of Islam and his prior conviction for possessing and consuming alcohol, it did not accept that he faced a real chance of harm arising from either of these matters in the future if he were to return to Iran.
In relation to the applicant’s prior conviction, the Authority did accept that having a criminal record might make it more difficult for the applicant to find employment, but said that there was no evidence before it that people with a criminal record are unemployable.
In relation to the applicant’s interest in Christianity, having found that the applicant is not a genuine Christian and will not pursue an active interest in Christianity on his return, the Authority similarly concluded that there is not a real chance of him being harmed on this basis if he were to return to Iran.
Having accepted that the applicant had rejected Islam, the Authority conceded that under Iranian law this could lead to a charge of apostasy, which is punishable by death. However, it went on to say that based on the country information available to it, such cases are rare. Moreover, the Authority referred to country information which suggested that non-participation in religion in Iran was widespread, as was alcohol use among Iranians. The Authority therefore concluded that there was not a real chance that the applicant would be charged with any crime or otherwise suffer serious harm as a result of his beliefs or opinions.
Whilst the Authority accepted that the applicant might be afraid to tell his family about the fact that he did not believe in religion, it was not satisfied that there was a real chance that the applicant would be harmed by his family if they were to learn of his rejection of Islam.
At paragraphs [37] to [41], the Authority then considered the risk of harm to the applicant arising from his position as a failed asylum seeker. After considering country information from a variety of sources, the Authority was not satisfied that the applicant faced the possibility of an imputation of holding adverse political opinions or other adverse profiles as a result of having sought asylum or having spent time abroad.
The Authority went on to conclude at paragraph [42] that the applicant was not of interest to the Iranian government.
Having regard to all of these matters, at paragraph [43], the Authority concluded that it was not satisfied that there was a real chance that if the applicant were returned to Iran he would be persecuted and consequently, found the applicant did not have a well-founded fear of persecution within the meaning of section 5J of the Migration Act 1958 (Cth) (‘the Act’). Consequently, the Authority found that the applicant did not meet the requirements of the definition of a refugee in section 5H(1) of the Act nor did the applicant satisfy the requirements of section 36(2)(a) of the Act.
Complementary protection
At paragraphs [45] to [50] of its decision record, the Authority went on to consider whether the applicant’s claims engaged Australia’s complementary protection obligations and concluded that notwithstanding:
(a)any discrimination the applicant might face as a result of his criminal conviction;
(b)facing the risk of questioning on his return to Iran; and
(c)any risk arising from the applicant’s rejection of Islam;
the applicant did not face a real risk of harm which would engage Australia’s complementary protection obligations. It further found that any risk of harm that the applicant faced did not rise to the requisite level to engage Australia’s complementary protection obligations.
For each of these reasons, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
PROCEDURAL HISTORY
Orders were made by Registrar Caporale on 15 March 2017 which provided, among other things, for the applicant to have leave to file and serve an amended application with proper particulars of the grounds of the application 28 days prior to the hearing date. The applicant has not filed any such amended application.
The matter was initially listed for hearing on 15 June 2021. At that time, the applicant appeared on his own behalf and sought an adjournment. Orders were made on that occasion adjourning the hearing to 12 August 2021. The purpose of the adjournment was to allow the applicant time to obtain legal representation.
When the matter returned before me on 12 August 2021, the applicant again appeared on his own behalf and was assisted by an interpreter.
GROUNDS OF REVIEW
Application for judicial review filed on 23 September 2016
In his application for judicial review, the applicant set out a series of orders he sought and 11 ‘grounds for application’, which raise the following issues:[16]
(a)the Minister’s decision was an improper exercise of power;
(b)the Authority failed to address the correct legal questions as to whether the applicant was entitled to a protection visa;
(c)the Minister’s delegate asked a wrong question and consequently failed to apply the law and the Authority failed to correct that error;
(d)the Authority incorrectly assessed the evidence;
(e)the Authority failed to take into account relevant considerations and/or took into account irrelevant considerations;
(f)the Authority acted in bad faith; and
(g)the Minister’s delegate breached the rules of natural justice in the interview in the manner in which he asked questions of the applicant, and the Authority’s failure to take that into account in its decision amounts to a jurisdictional error by the Authority.
[16] Initiating application filed on 23 September 2016.
In his application, under the heading ‘Particulars’, the applicant essentially sets out what appear to be his submissions in support of his application. After setting out the relevant definitions of the requirements necessary to establish a well-founded fear of persecution, the applicant stated that the Authority ‘did not place weight on the evidence presented by the applicant’.
The applicant then included further information about the absence of religious freedom in Iran and refers to the consequences to men who engage in acts of apostasy in Iran.
The applicant further claims that although the Authority accepted much of his evidence about not believing in Islam, the Authority failed to consider that the ‘applicant’s life was and if returned to Iran is, in a real risk’.
The applicant states that at paragraph [13] of the decision record, the Authority did not accept a document produced by him as a true copy because of the quality of the printing.
The applicant also suggests that at paragraph [12] of the decision record, the Authority came to contradictory findings in relation to the applicant’s criminal history and punishment.
The applicant further claims that the Authority made an error in concluding that:
(a)the applicant’s views about Islam and the Iranian regime would not become widely known if he were to return to Iran; and
(b)the applicant had not demonstrated a commitment to vocalising his beliefs in Christianity.
The applicant says that in concluding that he was not committed to Christianity, the Authority failed to take into account the applicant’s level of education, history and the impact that this has on the applicant’s preparedness to publically express his religious beliefs.
The applicant further claims that the Authority placed too much weight on the applicant’s knowledge of bible stories and on the applicant’s attendance at church after his baptism in determining whether he had a genuine belief in Christianity. In circumstances where the applicant claimed to fear harm from his disbelief in Islam, not his conversion to Christianity, this resulted in a jurisdictional error by the Authority.
The applicant also claimed that in concluding that the applicant would not face a risk of serious harm if he were to return to Iran, even though it had accepted that the applicant rejected Islam, the Authority made an error of law. In essence, the applicant takes issue with the Authority’s assessment of the risk the applicant would face on his return to Iran arising from his rejection of Islam. The applicant also asserts that some of the Authority’s findings in this regard were contradictory.
The applicant further claims that the Authority has made an error in determining that the applicant would not face harm if his family became aware of his conversion to Christianity.
Ultimately, the applicant states that his fear of harm arises from his rejection of Islam, not primarily his adoption of Christianity, and in failing to make this distinction, the Authority made a jurisdictional error.
The applicant also filed an affidavit sworn on 23 September 2016 in which he sets out his views on Islam, the Iranian state and the background to his decision to flee Iran. In this affidavit, which repeats much of what was contained in his application, the applicant further said:
(a)the Authority failed to consider that if the applicant were to return to Iran, he would be interviewed by the authorities on his arrival and if they understood that he had rejected Islam, might not be released and could face jail or the death penalty, or at the very least, face torture;
(b)if he were to return to Iran, the applicant might try to hide his opposition to Islam, but may ultimately not be able to do so, effectively thereby exposing himself to serious risk of harm;
(c)the Authority erred in overemphasising the relevance of the applicant’s conversion to Christianity in circumstances where the applicant’s primary claim was based on his rejection of Islam, not his adoption of Christianity; and
(d)in any event, the Authority underestimated the risk of harm to the applicant if he were to return to Iran in circumstances where he had converted to Christianity.
Further submissions at hearing on 12 August 2021
At the hearing before me, the applicant sought to file a document in which he raises the following issues, in addition to the grounds of review raised in his application filed on 23 September 2016:
(a)the Authority acted unreasonably in finding events which had occurred in the past did not have a real chance of reoccurring. The Authority’s reasoning at paragraph [28] of its decision record was legally unreasonable, or reflected a misunderstanding of the reasonable chance test; and
(b)the Authority’s reasoning at paragraph [30] of its decision record was similarly legally unreasonable. It was submitted that the Authority’s reasoning was dismissive of country information and the conclusion that the applicant would not be discriminated against as a result of his criminal history was simply incorrect, unfounded and irrational.
It was submitted for the Minister that the findings made by the Authority were reasonably open to it on the evidence, and do not otherwise disclose any jurisdictional error.
At the hearing before me, the applicant, who was assisted with an interpreter, also made the following oral submissions.
The first issue that the applicant wished to discuss related to his rejection of Islam. In circumstances where Iran is a religious regime, the applicant submitted that whoever renounces Islam faces the risk of execution, and in not accepting this, the Authority made an error.
Moreover, as to whether the applicant would disclose his views about Islam, he further said that if he returned to Iran and applied for work, the first question that he would be asked would be to identify his religion. If he were to say he had no religion, even his family and friends would not accept that and would become furious and threaten his life. The applicant said that the Authority did not give sufficient regard to the applicant’s denunciation of Islam.
The second issue that the applicant raised was in relation to the fact that he had used alcohol whilst in Iran, was caught and sent to prison. He said that the Authority’s finding that this was not going to happen again was a further error. The applicant accepted that he does use alcohol sometimes, but stated that he is not addicted. He says that if he were to return to Iran and continue to use alcohol, he would get an even more severe punishment than he did the first time.
The applicant then raised the issue of his prior convictions and criminal record which he has in Iran. He said that this will make it difficult for him to obtain employment if he is required to return to Iran. In this context, he submitted that the Tribunal’s finding that he would not suffer risk of harm arising from his criminal record evidences a further error. The applicant stated that country information confirms that people who have a criminal record are discriminated against and that the Authority’s findings in this regard are affected by jurisdictional error.
CONSIDERATION
Grounds 1, 3, 5 and 11
Ground 1, 3 and 11 and part of ground 5 seek to challenge the decision made by the first respondent. This court does not have the jurisdiction to review a decision by the Minister’s delegate.[17] As such, none of these grounds, in so far as they relate to the delegate’s decision, are made out.
[17] Migration Act 1958 (Cth) s 476(2)(a).
Ground 2
By ground 2, the applicant suggests that the Authority failed to consider the correct legal questions in determining whether he was entitled to a protection visa. Without in any way being critical of the applicant, who is a self-represented litigant making his way through a legal process in a foreign language, it is not entirely clear how the applicant says that the Authority failed to consider the correct legal questions.
However doing the best one can, it would seem that the applicant claims that the Authority failed to properly consider the risk of harm which the applicant would face if he were to return to Iran as a result of his renunciation of Islam. This is particularly so in circumstances where the Authority accepted that the applicant had rejected Islam but incorrectly failed to consider that this rejection would become publically known and known to his family and friends if he were to return to Iran.
This ground is not made out and does little more than seek impermissible merits review. A fair reading of the Authority’s reasons makes it clear that the Authority considered the applicant’s rejection of Islam and the impact on him if he were to return to Iran and continue to hold those views. Ultimately, the Authority concluded that there was no evidence that the applicant would publically express his political or religious views. This conclusion was reasonably open on the evidence before the Authority and does not disclose a jurisdictional error.
Grounds 4 and 5
By grounds 4 and 5, the applicant essentially takes issue with some of the factual findings made by the Authority. By these grounds, the applicant disagrees with the conclusions reached by the Authority and seeks little more than impermissible merits review.
In particular, the applicant takes issue with the Authority’s focus on the applicant’s knowledge, or lack thereof, about the details of Christianity. Moreover, the applicant takes issue with the focus on his conversion to Christianity, whereas the risk of harm that the applicant relied upon was the risk arising from his rejection of Islam.
Ultimately, the conclusion reached by the Authority that it had some concerns over the applicant’s genuine commitment to and belief in Christianity was reasonably open to it on the basis of the evidence before it. The Authority’s analysis of the relevant evidence in this regard is set out at paragraphs [15] to [24] of the decision record. The Authority’s ultimate conclusion that it did not believe that the applicant’s conversion was genuine was reasonably open on the evidence before it and does not disclose any jurisdictional error.
A fair reading of the Authority’s reasons also discloses that the Authority properly considered the applicant’s claims to have adopted Christianity, as this was a claim made by the applicant. Had the Authority accepted the applicant’s conversion to Christianity as legitimate, it would have been open to the Authority to conclude that the applicant feared harm from his conversion to Christianity as a separate and distinct basis from his claimed fear of harm arising from his rejection of Islam.
Contrary to the applicant’s assertion, the Authority did not conflate these two different grounds of fear of harm, but rather considered each of them as a separate basis of a fear of persecution if he were to return to Iran. So much is evident from the opening paragraph [1] of the Authority’s reasons, where the Authority identifies that the applicant claimed to fear harm ‘on account of his conversion to Christianity, anti-Islamic … views …’. Moreover, the Authority further dealt with these differences in its reasoning at paragraph [25]. The Authority, after discussing the applicant’s conversion to Christianity and the Authority’s views about the genuineness of that conversion, went on to conclude:
… I accept that he has rejected Islam, but that he continues to have a belief in God. I have also accepted above that there are aspects of Christianity that the applicant finds interesting and appealing. As such, while I do not accept that he has genuinely converted to Christianity and find that a desire to strengthen his claims for protection was the primary motivation behind his religious activity in Australia, I am willing to accept that religious curiosity and exploration also played a role.[18]
[18] Court book at page 270.
The Authority therefore went on to conclude that section 5J(6) of the Act did not apply, but in any event, concluded that the applicant was unlikely to continue to pursue his interest in Christianity, either in Australia or in Iran. Whilst the applicant may well disagree with these findings, they are findings which were reasonably open on the evidence before the Authority and therefore do not evidence any jurisdictional error.
Therefore, to the extent that ground 4 deals with the applicant’s religious beliefs, I refer to my comments in the immediately preceding paragraphs.
To the extent that ground 4 relates to the Authority’s treatment of the police report, it is clear from the Authority’s reasons that it differed in its findings about the ‘police report’ from those made by the delegate. At paragraph [12] of the Authority’s reasons, the Authority noted that the delegate had ‘concerns that the court verdict document presented by the applicant was fraudulent’. The Authority then went on to say:
… The submission to the IAA explains that the document is a copy certified by a Notary Public in Iran and that it had been provided from the Iranian authorities to the applicant’s family on their request.[19]
[19] Court book at page 267.
In paragraph [13], the Authority went on effectively to accept that this document, whilst of ‘poor quality’, was authentic. Importantly, in any event, the Authority accepted that ‘the applicant has been generally consistent in his claims regarding his conviction and punishment and I am willing to accept that in February 2012 the applicant was stopped by the Basij while carrying alcohol, detained in Basij base, found guilty before the court of possessing and drinking alcohol, and imprisoned at Adel Abad Prison until August 2012. I accept that the applicant’s time in prison was difficult as he claims. I accept the applicant was sentenced to 80 lashes but received a reduced punishment of 25 lashes’.
As a result, ground 4 does not identify any jurisdictional error and ultimately, does little more than disagree with the Authority’s findings.
To the extent that ground 5 refers to decisions by the delegate, I refer to my earlier comments in relation to grounds 1, 3 5 and 11. This court has no jurisdiction to review the delegate’s decision.
Ground 5 also claims that the Authority ‘misapprehended some of the evidence before him’. It is not clear what evidence the applicant is referring to here. In the ‘particulars’, the applicant refers to various country information which suggests that he could face the death penalty, or at least torture if he were to return to Iran and be charged with and prosecuted for apostasy.
It is well settled that the weight to be given to country information is a matter for the decision maker, not the court.[20] The Authority considered the impact on the applicant of his rejection of Islam and his political views at paragraphs [32] to [33]. In particular, at paragraph [33], the Authority accepted that ‘a Muslim who leaves his or her faith can be charged with apostacy, which is punishable by death in Iran. However such cases are rare’.[21]
[20] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] to [13].
[21] Court book at page 272.
In making these statements, the Authority referred to various country information and went on to discuss the last occasion in which a person was sentenced death for such an offence. Again, those conclusions and observations were reasonably open based on the country information before the Authority. By this ground, the applicant again disagrees with the conclusion reached and seeks impermissible merits review.
Ground 5 is therefore not made out.
Ground 6
Ground 6 appears to relate to the Authority’s findings in relation to the applicant’s conversion to Christianity dealt with at grounds 4 and 5. I refer to and repeat my reasons above for finding that this ground is also not made out.
Ground 7
Ground 7 claims that the Authority failed to have regard to relevant considerations and took into account irrelevant considerations. The applicant does not clearly identify what those various considerations were that should, or should not, have been taken into account.
It is submitted for the first respondent that to the extent that this ground relates to the complaint made by the applicant that the Authority erred in finding that he was an agnostic and failed to consider the trauma if he were to tell his family that he no longer believed in Islam and that they would be ‘branded’, neither of these matters give rise to a jurisdictional error. There is much force to this submission.
Contrary to the applicant’s assertion, the Authority concluded that the applicant was not an agnostic but rather found that he continued to believe in God even though he had rejected Islam. Moreover, the applicant did not raise any claim to fear harm on the basis that his family would be branded if they were made aware that he had rejected Islam, nor did any such claim squarely arise on the material.
In relation to this second issue, the only reference in the application filed on 23 September 2016 to his family being ‘branded’ by his rejection of Islam is found in the penultimate paragraph of the application, in which the applicant says:
The Second Respondent having misguided himself about the Iranian Muslim community, considered the family will not harm to the applicant upon realization of his conversion to the Christianity. The Second Respondent failed to consider the Applicant is to fear to disclose his disbelief the Islam than conversion to Christianity is not because fear of harm from his family but the traumatic condition of his immediate family members. The family members would disgruntle upon hearing the conversion because the family will be branded among the community for a serious offence done by a family member.[22]
[22] Initiating application filed on 29 September 2016 at page 8.
As I understand the extract of the applicant’s judicial review application set out in paragraph [76] above, the applicant seems to be suggesting that the Authority did not address an integer of his claim, which related to the impact on his family upon being made aware that he had rejected Islam.
Accepting that the applicant is a self-represented litigant whose first language is not English, there are two difficulties with this aspect of the applicant’s claim. The first is whether he in fact raised a claim that his family would be at risk if he were to return to Iran and live as a person who had rejected Islam. Secondly, there is a difficulty with whether the Authority failed to consider this integer of the applicant’s claim.
For the following reasons I find that the applicant did not make such a claim, nor did such a claim squarely arise from the material. In his Irregular Maritime Arrival Interview, in response to question 18 where he was asked about what he thought would happen if he were to return to his country, the applicant said ‘I know 100% I will be executed for my religious beliefs’.[23] There was no reference to fearing harm from or for his family as a result of his religious beliefs.
[23] Court book at page 23.
In his application for a protection visa, the applicant relevantly stated at paragraph [2] of his statutory declaration dated 30 October 2013:
I left Iran because I have rejected Islam and my life is at risk in Iran because it is an Islamic State.[24]
[24] Court book at page 66.
The applicant provides further statements about the fear of harm he will face if returned to Iran at paragraphs [10] to [12] of his statutory declaration.[25] Again there is no mention of any fear of harm from or for his family arising from his rejection of Islam or otherwise.
[25] Court book at page 67.
In a further statutory declaration made by the applicant in 2015,[26] these claims are repeated and again there is no mention of any fear of harm from or for his family. Nor is there any reference to any such claim having been made in the applicant’s Temporary Protection Visa interview as recorded in the delegate’s decision.[27]
[26] Court book at pages 150 to 153.
[27] Court book at pages 208 to 228.
In a submission made to the Authority on the applicant’s behalf dated 27 July 2016, the applicant’s representative stated at paragraph [25]:
The client states that he belonged to a religious family and even he had a fear of being rejected by his own family if they were aware of his religious sentiments.[28]
[28] Court book at page 247.
The applicant does not otherwise make any claims of fear of harm from his family arising from his anti‑Islamic views or otherwise.
In his affidavit filed in support of his application to this court, which is more in the nature of submissions in support of his judicial review application, the applicant relevantly said at paragraph [95]:
The second respondent having misguided himself about the Iranian Muslim community, considered the family will not harm to me upon realization of my conversion to the Christianity. The second respondent failed to consider I am in fear to disclose my disbelief about the Islam even within the family members. In fact, to date, it was only my older sister who knows that I have converted into Christianity and not even my parents are aware of my situation. Had the situation was transpired to them, they would shock to hear and feel very sad and embarrass to disclose to others. Consequences are very serious not only from the authority but from the unauthorised religious extremist groups.[29]
[29] Applicant’s supporting affidavit filed on 26 September 2016.
It is therefore clear that the applicant’s only claim before the Authority in relation to his family at paragraph [36] of the Authority’s decision record, was that set out in paragraph [85]83 above. That claim was considered by the Authority and dealt with. The applicant otherwise did not make any claims to fear harm for his family, nor did any such claim squarely arise on the material. As such, insofar as it relates to this issue, this ground is not made out.
To the extent that ground 7 could be said to relate to the claim that the Authority failed to have regard to the applicant’s evidence about:
(a)the risk of harm to him if he were to return to Iran;
(b)the consequences in Iran for anyone charged with or convicted of apostasy;
(c)the legitimacy of the document certified by the notary public;
(d)the legitimacy of the applicant’s alleged conversion to Christianity; and
(e)the impact on the applicant if his family were to learn that he had converted to Christianity;
these are all matters which the Authority considered and, in respect of which, explained its reasoning.[30] Therefore, insofar as this ground relates to these matters, this ground is similarly not made out.
Grounds 8 and 10[31]
[30] See, for example, paragraphs [1] and [15] to [25] of the IAA decision record.
[31] Ground 9 is omitted from the applicant’s initiating application filed on 23 September 2016.
Grounds 8 and 10 each allege errors of law and acting in bad faith. No particulars are given of either of these grounds. In such circumstances, neither of these grounds are made out.
OTHER ISSUES RAISED
As stated, at the hearing before me, the applicant took issue with the Authority’s findings at paragraph [28] of the decision record and submitted that this evidences legal unreasonableness on the part of the Authority. For the following reason, that submission cannot be accepted.
At paragraph [28] of its decision record, the Authority notes that the applicant was apprehended whilst on the street by the Basij and that this appears to have been a random event. That finding was reasonably open to the Authority and there was no evidence that the applicant had been particularly targeted on that occasion.
The Authority went on to say that whilst it is not impossible that the applicant could be stopped again whilst carrying alcohol or hashish, the decision maker considered the prospect of that to be remote and was not satisfied that there was a real chance of it happening again. Relevantly, the Authority was not saying that it was not possible that the Basij would stop and search people generally, but rather that the chances of the applicant being stopped and searched were remote. That finding was reasonably open to the Authority on the evidence before it and does not disclose jurisdictional error.
In relation to the Authority’s reasoning at paragraph [30], the applicant claims that the Authority’s findings are contrary to country information. The applicant submits that the effect of the Authority’s reasoning at paragraph [30] is that a person with a criminal record will have the same prospects of finding work as someone without a criminal record and that such a finding is unfounded and irrational, as well as incorrect.
The applicant’s submission in this regard fails on the basis of a plain reading of paragraph [28]. Relevantly, the second sentence makes it clear that the Authority accepted that having a criminal record may be a factor of relevance to employers and landlords. However, the Authority went on to say that there was no evidence before it to suggest that a person with a criminal record is unemployable.
Moreover, the Authority went on to say that where the use of alcohol is reportedly widespread, together with country information which suggests that large numbers of Iranians do not observe religious practice, the Authority concluded that it was not satisfied that the applicant’s conviction for alcohol use would increase the discrimination he would experience. The findings made by the Authority at paragraph [28] were therefore reasonably open to it to make, and were not legally irrational or illogical as claimed.
Ultimately the applicant’s complaints in relation to these matters, and as set out in Exhibit B, effectively seek impermissible merits review.
CONCLUSION
For each of these reasons, the applicant’s application ought to be dismissed with costs.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 6 May 2022
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