CYK20 v Minister for Immigration

[2019] FCCA 3919

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYK20 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3919

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473GB, 473CB

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Applicant: CYK20

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 357 of 2020

Judgment of: Judge Vasta

Hearing date: 23 September 2019

Date of Last Submission: 23 September 2019

Delivered at: Brisbane

Delivered on: 23 September 2019

REPRESENTATION

Counsel for the Applicant: Mr G. Schipp

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondent: Ms B. O’Brien

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the application filed on 16 November 2018 as amended on 23 September 2019 be dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1200 of 2018

CYK20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 22 October 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the Delegate not to grant the Applicant, CYK20, a Protection Visa.  On 16 November 2018, the Applicant filed an originating application in this Court asking the Court to review that decision. 

2. In short compass, the Applicant claimed that he was born into a Shia Muslim family in Iran.  He said that he became disenchanted with religion from a young age and has now rejected Islam.  He says that he is not affiliated with any religion.  

3. He said that he first faced issues with Iranian authorities when he was about 17 or 18, and the morality police confronted him in the street for wearing a t-shirt that was not fully covering the tip of his hands, and while his hair was spiked up.  The Applicant resisted being taken into their van and the morality police beat him with a baton, and that caused him to sustain a fracture to his finger that required surgery.

4. The Applicant also said that during Ramadan in 2013, two to three months prior to his departure from Iran, members of the Basij confronted him in the street for drinking water during the fasting period.  He explained to them that he was suffering from a medical condition, kidney stones, and this did not seem to have any effect on the Basij.  The conflict escalated.  It got to the point where the Applicant declared that he was not a Muslim.  He was arrested.  He was detained for one night.  The Applicant said during that detention he was raped by the Basij.  The Basij filmed the rape and they threatened to make public the recording and to develop a case against him.

5. The Applicant said that since departing Iran, the Basij have continued to search for him at his parents’ house and through neighbours and shopkeepers in the area.  He says that he fears harm because of his lack of religious belief and the issues that this would create for him.  He said that he fears being hanged or executed due to renouncing his religion and because he has behaved in a sacrilegious way.  He also fears that the footage of him being raped will become public, and he fears the embarrassment this would cause him in front of his family, relatives and others.

6. The IAA assessed all of those claims in a very thorough manner.  The IAA found that the Applicant had provided a consistent testimony relating to his rejection of Islam.  The IAA was satisfied as to his genuineness about this rejection of the Islamic faith and how it had taken root in his brain.  The IAA were satisfied that the Applicant had rejected the faith, even though he still believes in God, but he is not affiliated with a particular religion.

7. The IAA then looked at the incident that the Applicant claimed happened at Ramadan with his drinking of the water.  The IAA looked at a number of matters, including what the Applicant had said at his arrival interview, where he did not talk about this particular claim of being raped and having the rape being filmed.  The inconsistency, the IAA found, was something that was not explicable simply because of either the passage of time or the nervousness or any other such pressure that he may have felt when he was first interviewed upon arrival.

8. The IAA looked at his claim as to what he believed, because of his time in the military, would happen to people who were committing sacrilege or who were renouncing their faith.  For that reason, they found that his claim that, as the conflict with the Basij escalated, he said to them that he was not Muslim, so as to stop them from continuing this conflict or that they would leave him alone.

9. The IAA also looked at the claim that the Applicant said that he was unofficially bailed out of the Basij’s custody through the assistance of family connections, but, if this were so, the IAA wondered why it was that the Basij would still be interested in the Applicant and would be still developing a case against him several years after this incident.  The IAA also noted that there was no arrest warrant or other official notice that had been sent to his family members since the Applicant’s departure. 

10. It was also noted that if, on the best case that the Applicant had said that this had occurred some three or more months before his departure from Iran, that the Applicant was able to depart from Iran legally using his genuine Iranian passport, and he faced no issues in doing so.  Also, that there were no further incidents or interest by the Basij in those three months prior to the departure from Iran.

11. The IAA said this, at paragraph 18:

    Owing to the significant credibility issues surrounding many key elements of this claimed incident, I am not satisfied the Basij arrested and detained the applicant as claimed, during Ramadan.  Accordingly, I am not satisfied the applicant’s claims regarding the events that took place that claimed one night in detention and as a consequence.

12. The IAA then looked at the dress code incident and, after going through the claim, came to the conclusion that it was not implausible that the Applicant may have, on occasion, not followed the strict dress code imposed by Iranian authorities in their enforcement of religious ideals, and may have even faced low-level harassment on occasion.

13. However, they were not satisfied that the morality police assaulted the Applicant, and subsequently came to the conclusion that they did not accept that the dress code incident occurred.  An aspect to that incident was that the Applicant claimed that the surgery on his hand left a scar on his hand, and the Delegate actually advised the Applicant that they were aware that the Applicant had recently been involved in a fist fight on the Gold Coast and asked the Applicant whether the scar injury was a result of the fist fight.

14. The Applicant showed the Delegate the scar on his right hand and a photograph, seemingly in an attempt to distinguish between the older scar from the dress code incident and that which was sustained more recently during the fist fight. That is something that I will speak of a little more later.

15. The IAA looked at whether the rejection of the Muslim faith would cause any problem to the Applicant.  The IAA concluded that, this being a form of religious crime, the Shia law would apply, because it is not something that is in the Iranian penal code.  The IAA looked at the country information as to when people have been charged with apostasy in Iran, and where serious sentences, including the death penalty, have been applied.

16. The IAA also looked at country information about what has happened to people who have insulted Islam, or committed what is deemed to be blasphemy, and referred to country information that cases of blasphemy have included individuals who posted what is deemed to be anti-Islamic materials online, or individuals who have expressed political and religious views on social media communication applications; Muslims who challenge prevailing interpretations of Islam, especially Sufis; Shia members of the reform movement, and those who hold non-conventional religious convictions; and, authors, poets and human rights activists, including those who express their convictions publicly through their work.

17. The IAA said this at paragraph 27:

    I note the applicant’s statements in his PV application that he left Iran as he was unable to search for a new religion or live with the freedom that he desired and not to practise Islam.  There is no evidence before me to suggest that the applicant was attempting to or indeed did explore any other religion(s) during his time in Iran.  The applicant has not provided any evidence to indicate that since his departure from Iran, he has been searching for a new religion.  There is no indication that the applicant, with the freedom of religion he currently enjoys in Australia, has engaged in any activities relating to other religions or their exploration.  I am not satisfied that the applicant would engage in any activities on return to Iran that relate to another religion(s) and/or its exploration and that would bring him to the adverse attention of the Iranian authorities.

18. At paragraph 28, the IAA said:

    Nonetheless, I accept the applicant has not practised Islam in Iran from a young age. The applicant has expressed his disagreement with Islam, through, amongst other things, his failure to fast, attend mosque and pray.  Country information is indicative of a largely young population in Iran, who are increasingly disinterested in religion, particularly the country’s official religion Shia Islam.  Country information indicates that it is highly unlikely that the Iranian government would monitor whether or not an individual was religiously observant such as their mosque attendance or participation in religious occasions and given, this, it is also unlikely that such a person’s beliefs would come to the attention of authorities.  Persons perceived to be apostates are only likely to become known to the authorities through outward manifestations of their new faith, or attempts to proselytize, and attendance at a house church or through informants.

19. At paragraph 29:

    I am not satisfied the applicant has engaged in any overt or covert political and/or other activities in Iran, which have brought him to the attention of the Iranian authorities either prior to his departure from Iran or afterwards nor engaged in the same since his arrival to Australia, for reason of or in expression of, his rejection of Islam and non-adherence to any religion. Similarly, I am not satisfied the applicant would engage in such activities, should he return to Iran.

20. The IAA said, at paragraph 34:

    I am not satisfied that any harassment that the applicant may face on return to Iran for reason of his dress code and/or hairstyle, would meet the threshold of serious harm.  I am not satisfied he faces a real chance of serious harm on this basis.

21. Therefore the IAA found that the Applicant did not meet the requirements of the definition of “refugee”.  The IAA then went through the complementary protection assessment criteria, and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, that there was a real risk that he would suffer “significant harm”.  Having come to those conclusions, the IAA affirmed the decision.

22. The Applicant has three grounds of application.  They are:

    1.The IAA acted without jurisdiction by acting unreasonably, in that it:

    a.Did not disclose to the Applicant full details of the fist fight on the Gold Coast,

    b.Failed to request the photograph of the Applicant’s scarring, under s 473DC,

    c.Failed to independently assess the photograph of the Applicant’s scarring,

    d.in the alternative, failed to disclose the existence of a s473GB certificate relating to the fist fight on the Gold Coast.

    2.In the alternative, the jurisdiction of the IAA was vitiated by reason of the failure of the Secretary to forward documents to the IAA in regard to the fist fight on the Gold Coast, including photographs.

23. Those two grounds are interrelated, and I will deal with them together.  As I had previously mentioned when going through the decision of the IAA, the aspect of the fist fight was something that had arisen during the hearing.  I have been very helpfully provided with a transcript of the interview with the Delegate as to this aspect with regard to the fist fight.  It is obvious that this is what the IAA had listened to. 

24. At line 665, in the affidavit filed 5 September 2019, the Delegate asks:

    When was the first time you had issues with the police?

    The Applicant said at line 667:

    When I was 17 to 18 years of age.

    The Delegate asked at line 669:

    What did you get in trouble for?

    The Applicant said at line 671:

    The first confrontation was in the street.  There was morality police and you know, they had a van, they stopped.  The first time I was confronted was by the morality police in the streets in public.  The morality police stop boys and girls because of dress code or hairstyle.  That was the first time.  And after 2 to 3 times they give you fine or they make you sign an undertaking and once you’re detained they would easily beat you up and on one occasion you can see they hit me with a baton and I got a fractured bone, I had surgery, and there is still a scar on my hand.

    The Delegate asked at line 679:

    What was it that you got in trouble for?

    The Applicant said at line 681: 

    They picked on me for my dress code, the style of my dress and my hair.  I resisted not to get into the van.  Some do, some resist.  I did.  When I did I was beaten up with a baton and my finger flipped backwards and got fractured. 

    The Delegate asked at line 685: 

    When you say you were in trouble for your dress and your hair can you just explain what it was that was wrong with the way you were dressing, the way you were wearing your hair? 

    The Applicant said at line 689: 

    Well, in Australian terms my dress and my hairstyle were okay but I was wearing a T-shirt and my shirt was not fully covering the tip of my pants.  Shirt should be covering a considerable part of the trousers it should not go line in line with the trousers okay.  And also the pants should not be shredded, torn and about the hairstyle was having how do you call it.. electrocuted hairstyle. 

    The Delegate asked at line 695: 

    Spiked up? 

    The Applicant said at line 697:

    Spiked up, yes.  And if it has a style of fashion in it that’s frowned upon and these are the things they would pick on you. 

    The Delegate asked at line 700: 

    In terms of the injury of you hand there, I’m also aware of the fact that you not too long ago were in a fistfight on Cavill Avenue on the Gold Coast is it possible that that is an injury from that? 

    That Applicant said at line 704: 

    That’s the scar that you’re talking about?

    And at line 706:

    This is from a long time ago.

    The Delegate asked at line 708:

    They look like they’re quite similar scars.  They both look quite recent.

    The Applicant said at line 710:

    I have the photos of the scar were sustained.  You can notice this was a scar from the time that precedes that night, that fist fight. 

    The Delegate says at line 716:

    I’ll tell you what [name redacted], rather than, unless you have it right there, you can submit that photograph at a later time…

25. One can see from the transcript that the Applicant was saying that he was assaulted by the Basij because he resisted going into the van.  The IAA has interpreted this as that the claim is that the Applicant had been assaulted because of his wearing of western clothes.  In any event, the aspect of this is that the Delegate did see that there were two scars, and the Applicant showed them a photograph that suggested that the scars were given to the Applicant at different times.  The statement by the Delegate at line 716:

    I’ll tell you what [name redacted] rather than, unless you have it right there, you can submit that photograph at a later time…

26. It seems uncontested that the photograph was not submitted at a later time.  Whilst the grounds of the application talk about not disclosing the Applicant full details of the fistfight, this was not really persisted with in oral submissions.  It would seem to me that that is sensible, because the full details of the fistfight at the Gold Coast really have no real application to what was being looked at here and could never have been relevant to the matter, and it seems as though that was not something that had been any part of the consideration as to the affirming of the decision. 

27. The submission that there had been a failure to request the photograph of the Applicant’s scarring under s.473DC of the Migration Act 1958 (Cth) (“the Act”) was not persisted with because that section talks about the IAA receiving new material.  This was not new material.  This was material that was before the Delegate.  

28. The submission about failing to independently assess the photograph of the Applicant’s scarring, or in the alternate, failing to disclose the existence of a s.473GB certificate relating to the fistfight on the Gold Coast, does not go anywhere as there is no material before the Court to indicate that there was a s.473GB certificate in existence, so it is hard to see how that has been failed to be disclosed.

29. The question really is, should this photograph have been before the IAA to assess. When one looks at s.473CB of the Act, the material that should be before the IAA is outlined in s.473CB(b) and (c) of the Act as follows:

    (b) material provided by the referred applicant to the person making the decision before the decision was made;

    (c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

30. This photograph was not in the Secretary’s possession or control.  That seems quite clear.  However, it was put before the Delegate by the Applicant.  The Applicant was asked by the Delegate to submit the photograph at a later time.  The Applicant did not do that.  The question is whether or not that is a failure of the Secretary to ensure that material that was before the Delegate was able to be put before the IAA. 

31. Strictly speaking, the Applicant was asked to submit that photograph and he failed to do so.  It was not a photograph that the Secretary had, or that the Delegate had, or that was there in the material.  It was a photograph, as has now become apparent, on the phone of the Applicant, and the Applicant did nothing to ensure that the Delegate or the Department had a copy of it. 

32. However, the question is, in some ways, should the Delegate have insisted not, that the Applicant submit it but that the Applicant not leave without the Department getting a copy of that particular photograph. Because if, as it happened, it was left to the devices of the Applicant, then s.473CB(1)(b) could not be complied with.

1. It does seem to me that this was a matter that was within the power of the Applicant to ensure happen.  He was asked to do so, and he simply did not do so.  It is somewhat unsatisfactory but, it is, it would seem to me, totally in the hands of the Applicant.  Therefore, I cannot see that there has been any jurisdictional error displayed by grounds 1 and the alternative ground 2. 

2. I should say that, even if there had been something that had occurred, or there had been a failure by the Secretary to put that material before the IAA, the question of materiality still loomed large.  The High Court, in February this year, in the matter of the Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 spoke of the breach being material only if compliance could realistically have resulted in a different outcome.

3. In this case, one goes to what the IAA had said at the end of paragraph 20, where it said:

   …The applicant has not submitted any other evidence to the delegate or the IAA to substantiate his claim that he has two different scars or that this scar was caused by the injury he claims was sustained by the morality police. 

4. That is all this photograph could have gone to, as to whether he did have the two different scars, given at different times.  Whether it does that or whether it does not, is really a matter for an assessor of fact, but it seems to me that the real question is not whether there were scars given at different times.  It was whether that photograph was sufficient evidence to corroborate a claim that the Applicant makes that he sustained an injury by the morality police that occurred because he wore western clothing.  That is the materiality. 

5. This particular photograph, in my view, could never have gotten to the point where it could realistically have resulted in a different outcome.  So that is just another aspect to grounds 1 and 2 that fortified my conviction that there has been no jurisdictional error illustrated by those two grounds. 

6. The third ground is that the IAA acted without jurisdiction in that it failed to consider integers of the Applicant’s claim, particularly whether:

   (a) the requirement to not express his desire not to practice Islam was itself persecutory conduct;

   (b) the requirement to dress conservatively was itself persecutory conduct. 

7. The submission in regards to that matter is one that is based on the findings that the IAA had made with regard to what the Applicant had done in his time in Iran. 

8. In this case, the Applicant submits that he had modified his behaviour; that is, that because of his non-belief or non-adherence to Islam, that he had modified his behaviour so as to escape punishment and persecution. 

9. He says that whilst there may not be any specific evidence or claim that he had actually modified his behaviour, the submission is that the Court can infer that behaviour has been modified; that is, that the Applicant was not wearing western clothes because he would be harassed. He didn’t drink water during Ramadan because he would be harassed. 

10. The submission continued that he had failed to pray and that he had made excuses not to go to the mosque and so on.  This behaviour, it was submitted, was a modification because of harassment. Looking at the material though, it would seem as though those excuses that he claims to have made, were excuses he made when he was at school, when forced by the school or parents to do things in the exercise of the religion.  There actually is nothing that he has shown or claimed that he has had to do, as an adult, so as to fit in so that he is not persecuted. 

11. It seems to me that this is a totally different situation to the one that confronted the Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (“S395/2002”).  In that matter, where the male appellant said that they were homosexuals in Bangladesh, the original decision-maker had found that they would not suffer serious harm because they had been discreet about their homosexuality before they left Bangladesh, and they would be unlikely to be persecuted if they remained discreet when returned to Bangladesh. 

12. The Court there said that the question to be considered in assessing whether the Applicant’s fear of persecution is well-founded is what may happen if the Applicant returns to the country of nationality.  It is not, could the Applicant live in that country without attracting adverse consequences.  Such reasoning has been cited with approval in a number of other matters in the High Court since then. 

13. The First Respondent has submitted that what the IAA has done is not to ask whether the Applicant could avoid persecution by modifying his behaviour, but has instead considered what may happen if the Applicant was returned to Iran.  In other words, the IAA had done exactly what the Court since S395/200 have asked the Tribunal’s to do. 

14. The claim in ground 3, that the IAA failed to consider the integer of the Applicant’s claim, particularly whether the requirement to dress conservatively was itself persecutory conduct, it would seem to me, has been correctly identified by the First Respondent as being one that was not clearly raised on the material.  The Applicant has not articulated how dressing conservatively constitutes persecutory conduct and, in fact, the IAA implicitly did look at the question of whether such could amount to serious harm, and, at paragraph 34, rejected that this would meet the threshold of serious harm. 

15. As to the claim that the IAA did not consider whether the requirement to not express his desire not to practice Islam was itself persecutory conduct, the IAA did, at paragraphs 27 through to 31, make factual findings about what the Applicant had done in practising or not practising Islam in Iran from a young age. 

16. The IAA was not satisfied the Applicant had faced any specific incidents in Iran due to his beliefs, and there was no satisfaction by the IAA that the Applicant had modified his behaviour to not express his rejection of Islam or non-adherence to a religion.  That approach was a proper approach. 

17. As to the drinking water during Ramadan, the IAA rejected that that incident occurred at all.  The Applicant has not shown how it is that he has, in any way, modified his behaviour.  It would seem to me then, that there had been consideration of all the integers of the claim and that ground 3 does not disclose any jurisdictional error either. 

18. Having looked at the matter as a whole, I cannot find any jurisdictional error. 

19. I therefore dismiss the application with costs fixed in the sum of $7,467 and I will change the name of the First Respondent.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 16 October 2019