CZN16 v Minister for Immigration

[2017] FCCA 1224

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1224

Catchwords:
MIGRATION LAW – Judicial review – protection visa application – alleged denial of procedural fairness – credibility –  conversion to Christianity – application dismissed.

Legislation:

Migration Law Act 1956 (Cth)

Cases cited:
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 226 CLR 152
Minister for Immigration and Citizenship  v SZRKT (2013) FCA 317

Applicant: CZN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 32 of 2016

Judgment of: Judge Young

Hearing date: 2 June 2017

Date of Last Submission: 2 June 2017

Delivered at: Darwin

Delivered on: 2 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Charman

Solicitors for the Applicant: MSP Legal

Counsel for the First Respondent: Mr Liveris

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application filed 23 May 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,600.00.

NOTATION: These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 32 of 2016

CZN16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEAL S TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.  

2. This is an application for judicial review of a decision of the Refugee Review Tribunal made on 5 December 2013.  The applicant is a citizen of Iran.  He arrived in Australia on 13 April 2012.  He applied for a protection visa on 22 July 2012.  Sometime in October 2012 he was baptised in a Christian church in Sydney.  On 3 July 2013 his application for a protection visa was refused by a delegate of the Minister.  Various claims have been put forward by him which related to opposition to the religious authorities in Iran, political opposition and fear of the Basij who, as I understand it, are a form of police or militia allied to the regime in Iran.

3. There was no claim of Christianity put forward to the delegate and that was not a claim considered by the delegate.  On 8 August 2013, Pastor Sapford, who is a pastor of a church called the C3 Church in Sydney, wrote a letter attesting to the applicant’s baptism in that church and making brief observations about the authenticity of that baptism or conversion in his view.  On 23 October 2013 the applicant’s migration agent raised, in correspondence, claims of a conversion to Christianity and a consequent fear of persecution on the basis of the applicant’s apparent apostasy should he be returned to Iran .

4. The letter from the migration agent acknowledged that a central issue in considering his claim would be the genuineness of the applicant’s conversion and also referred to the then subsection 91R(3) of the Migration Act 1956 (Cth) which related to conduct of an applicant for a protection visa once in Australia.  The letter from the migration agent attached the letter from Pastor Sapford that I have mentioned.

5. There are three grounds of judicial review.  For any of those grounds to succeed there would need to be an extension of time.  The application is some two years and nine months out of time and counsel for the applicant conceded that unless the grounds of review were found to have merit that there would not be a proper basis for an extension of time.

6. Ground 1 of the application for review relates to a comment by the Tribunal at paragraph 67 of its reasons where the Tribunal referred to the letter from Pastor Sapford and said as follows:

   I lend little weight to the letter from the pastor of the C3 Church, other than to confirm that he was baptised.  It says nothing of his motivation for attending church, and given he [Pastor Sapford] did not attend the Tribunal, I have been unable to question him to verify the applicant’s claim regarding the reasons for his attraction to the faith and his ongoing education.

7. I take the last comment to refer to religious education.  The application for review characterises the Tribunal’s failure to give the applicant an opportunity to have Pastor Sapford appear in person as a denial of procedural fairness.  It is said that before the Tribunal reached the conclusion it did it ought to have given the applicant the opportunity to have Pastor Sapford attend in person and give evidence.  The respondent says that the failure to call Pastor Sapford (perhaps that is a rather legalistic description but what is meant is the failure of the Tribunal to invite the applicant to have Pastor Sapford attend to give oral testimony or evidence) was not the reason for the rejection of the claim relating to the genuineness of the applicant’s conversion to Christianity but rather the matters set out at paragraphs 62 through to 66 of the Tribunal’s reasons were the real grounds.

8. Those grounds, if I can summarise them, are a conclusion by the Tribunal that the “religious journey”, a phrase used by the Tribunal, of the applicant was not a typical one. It pointed to a number of matters.  The applicant had claimed in his original protection visa application to “hate religion in Iran”.  The Tribunal noted that there was, apparently, a quick conversion to Christianity.  It noted that there was no evidence of any inquiry about religions other than Christianity, as might be expected if the applicant had some spiritual inquisitiveness.  It noted that the baptism that took place in Paster Sapsford’s C3 Church occurred within 15 days of the applicant arriving in Sydney, that is, his baptism in that church was within 15 days of being introduced to a new church.

9. The Tribunal also noted that the applicant appeared to be ignorant of some fundamental elements of Christianity and gave, as an example, the applicant’s apparent inability to say when in Easter Jesus was said to have risen from the dead.  The Tribunal also observed that a “verbal quiz” is probably not necessarily a perfect way of determining the genuineness or otherwise of a person’s religious conversion.  Nevertheless, those were reasons referred to by the Tribunal and, on the basis of its questioning of the applicant about those matters, it concluded that, while a baptism had taken place, it was not a genuine one.  In other words, the baptism was not evidence of a genuine conversion to Christianity.

10. I accept the submission of the Minister.  It was a matter for the applicant to bring forward material to satisfy the Tribunal that there were grounds for him to be granted a protection visa.  There was no reason why the Tribunal should accept a letter that did not describe in any detail the motivation or religious experience, according to Pastor Sapford, of the applicant.  Given that the genuineness of conversion was a central issue and was recognised as such by the applicant or ought to have been recognised as such by the applicant, and was certainly recognised as such by his migration agent, it appears to me that it was for him to bring forward appropriate material and, if he wished, to have Pastor Sapsford attend in person.  In my view, the weight to be given to that letter was a matter for the Tribunal.  Counsel for the Minister also pointed to the passage from SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 226 CLR 152 where the court observed that the requirements of procedural fairness did not require a running commentary on the Tribunal’s thought processes. I accept that comment is apposite in this case.

11. The second limb of ground 1 relates to an error made by the Tribunal which is evidenced at paragraph 59 of the reasons for decision. In the second sentence the Tribunal said that:

    No translation of the summons has been provided either.

    This was a reference to the applicant’s claim that, as a result of his involvement in the Green Movement or in anti-regime activity, a summons had been delivered by the Basij, or at least the authorities, to his home sometime after he fled.  It is common ground that the Tribunal was in error in its reference to the translation of the summons not being provided.  The translation of the summons is included in the court book at page 211.

12. The failure to consider “important, cogent, substantial and consequential evidence” may amount to jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) FCA 317 at [112]. The Minister submitted that while such a failure may constitute jurisdictional error in this case the evidence that was overlooked was not of the nature described in SZRKT and the evidence was relatively inconsequential and overlooking it did not constitute jurisdictional error.  To assess that submission it is necessary to look at the context in which the summons was considered. 

13. At paragraph 58 of the reasons for decision the Tribunal considered the applicant’s narrative about his involvement with the Green Movement, a man called Payman, who was also said to be involved in the Green Movement, and the fact that Payman and the applicant came to the attention of the authorities or the Basij as a result of that activity.  The Tribunal pointed out that the applicant’s narrative about that matter was inconsistent and different versions had been given at different times.  I will not refer to that in detail but the inconsistencies are referred to in paragraph 58 and relate to inconsistencies about whether and when a written summons had been received.

14. In the hearing before the Tribunal the applicant said that he received a summons from the police or Basij at his home some six days after he had fled in fear after the Basij had taken his computer from his office.  At paragraph 59 the Tribunal said it did not accept that the inconsistency was due to a translation error, as was asserted by the applicant. In reference to the summons said to have been received the Tribunal observed, incorrectly, that no translation of the summons had been provided.

15. The Tribunal, in that paragraph, found that the applicant’s account of his involvement with the Green Movement, with Payman and the interest in his activities by the Basij, including attending at his office and seizing a computer, was fabricated.  It also concluded, on the basis of country information, that documents in Iran can be forged.  Accordingly, it said that it gave no weight to the summons in assessing the applicant’s claim.  In my view, given a finding that the applicant’s narrative of this crucial matter was fabricated and given that it was satisfied that forged documents were available in Iran, it followed, necessarily, that the Tribunal would find that the document was not a genuine one or at least give the document no weight.

16. Having looked at the document myself, at page 211 of the court book, there is nothing in it that strikes me as leading, necessarily, to any different conclusion.  The mere translation of this document does not suggest to me anything inconsistent with the Tribunal’s finding.  I accept the Minister’s submission. I find that there is grounds for the limbs 1 and 2 in ground 1 are not made out.

17. Ground 2 relates to paragraph 60 of the Tribunal’s reasons.  At paragraph 60, the Tribunal said:

    I do not accept the applicant’s other claims regarding having participated in the 2009 protests [a reference to the protests following an election in Iran], drunk alcohol and come to the attention of the Basij for having a fashionable hairstyle, wearing un-Islamic clothing, playing music and having a girl in his car.

18. The paragraph goes on:

    I note that these claims were raised in his original application.  However, they were not raised during his hearing even when he was given the opportunity to raise any claims other than those relating to his conversion or revealing the names of local Basij.

19. The applicant says that such a cursory consideration of these claims was insufficient.  There is no doubt that the Tribunal was aware of those particular claims (which counsel for the applicant called “lifestyle claims”). They are set out at paragraph 5 of the Tribunal’s reasons.  On first glance, there does appear to be cursory consideration of those claims.  However, the reasons for the Tribunal’s refusal to accept those claims are set out in paragraph 61 where it found:

    The failure to raise the claims in the hearing is not indicative of someone who claims to have a fear of serious harm for having undertaken these activities.  

20. The Tribunal found at paragraph 61 that the applicant was not a credible witness and had fabricated claims. It goes on to say in the remainder of the paragraph why it concluded that the claims were fabricated.  If a Tribunal finds that claims are fabricated an applicant is at risk that a Tribunal will find that he or she has not made out grounds for protection under the Migration Act.  It appears to me that that is what has occurred in this case.  The claims were not elaborated. In the circumstances of a finding that claims were fabricated, I am not satisfied that any more detailed consideration of the so-called “lifestyle claims” was necessary.

21. Ground 3 relates to the question of whether the applicant was at risk of harm on return to Iran as a failed asylum seeker.  This was not a ground raised by the applicant himself but was raised and considered by the Tribunal.  The consideration begins with the country information that is set out at paragraphs 46, 47 and 48 of the Tribunal reasons.  I do not propose to read the entirety of that but I will try and summarise the effect of the country information.  It is that the author of the country information, in particular that from the Department of Foreign Affairs and Trade at paragraph 47, was not aware of any mistreatment of failed asylum seekers.

22. The report appeared to concede that it is possible in isolated cases.  It also observed that it could be expected that the regime would do its best to hide such mistreatment and it also conceded that if someone had a public profile relating to regime opposition then that may increase the risk of maltreatment.  It goes on to say:

    We are not aware of any specific cases of returned asylum seekers being detained or tortured on their return to Iran.

23. At paragraph 73, the Tribunal summarised that material as follows:

    There is general agreement amongst the country information cited in paragraphs 46 to 48 that the people who may be interrogated, placed under surveillance and/or detained on return will have a profile as a political activist or been actively and publicly critical of the government while overseas.  There is no evidence to suggest that being a failed asylum seeker would, in itself, result in mistreatment on return to Iran.

24. I consider that that final sentence is an accurate summary of the country information.  The applicant argues that the reference to the possibility of mistreatment in the country information amounts to a real chance of persecution in the sense referred to in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the well-known passage where it was said that even a 10 per cent chance of being shot or tortured would amount to a “real chance” of persecution.

25. I do not accept that the passage in Chan is applicable in this situation.  It is for the applicant to satisfy the Tribunal that grounds for a protection visa exist and not for the Tribunal to satisfy itself that there are no grounds.  In the absence of any evidence to suggest a failed asylum seeker would, simply because of being a failed asylum seeker, be mistreated on return to Iran it appears to me that the conclusion reached by the Tribunal was open to it. I dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Young.

Date: 7 June 2017