DBP17 v Minister for Immigration
[2018] FCCA 1882
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBP17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1882 |
| Catchwords: MIGRATION – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority’s reasons demonstrate an intelligible justification for conclusions. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: BRGAO v Minister for Immigration and Citizenship [2009] FCA 126 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Tran v Minister for Immigration and Border Protection [2014] FCA 533 |
| Applicant: | DBP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 638 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 11 December 2017 |
| Date of Last Submission: | 11 December 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lee |
| Solicitors for the Applicant: | Holding Redlich |
| Solicitors for the First Respondent: | Minter Ellison |
| The Second Respondent entering a submitting appearance | |
ORDERS
The applicant be granted an extension of time to 17 November, 2017 within which to file an application for judicial review in respect of the second respondent’s decision made on 14 November 2016;
the amended application filed on 17 November, 2017 be dismissed;
the applicant pay the first respondents costs of and incidental to the application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 638 of 2017
| DBP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
By her application filed on 11 July, 2017 the applicant seeks an extension of the time within which she might apply to the Court for judicial review of a decision of the second respondent made 14 November, 2016. That decision affirmed a decision of a delegate of the first respondent not to grant her a Safe Haven Enterprise (Class XE) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
On 11 August, 2017 the Court made orders that permitted the applicant to file an amended application if the applicant wished to do so and to serve written submissions 28 days prior to the hearing date for the application. The applicant filed an amended application on 17 November, 2017 and written submissions on 21 November, 2017. The first respondent filed written submissions on 27 November, 2017.
Background
The applicant is a citizen of Iran who arrived in Australia as an unauthorised maritime arrival on 13 October, 2012.
Because the applicant was an unlawful maritime arrival she was prevented from lodging an application for a Protection visa pursuant to s.46A(1) of the Migration Act 1958 (Cth) unless the first respondent permitted her to do so pursuant to s.46A(2) of the Act. On 27 October, 2015 the first respondent exercised his discretion and allowed the applicant to apply for a Temporary Protection (subclass 785) visa or Safe Haven Enterprise (subclass 790) visa. On 9 February, 2016 the applicant applied for Safe Haven Enterprise (Class XE) visa.
For the purposes of that application she made a statutory declaration on 8 October, 2015 in which she set out her claims. They are as follows:
a)she has no religious beliefs and more specifically, no Islamic beliefs;
b)she would be killed by Iranian authorities if they found out she holds no religious beliefs;
c)she was forced to pray at work by an organisation called “Gozinesh”;
d)she would be arrested for dressing in bright colours and talking to men;
e)she was abused and given a warning by the Basji for walking in public with a male who was not her relative;
f)her niece was arrested for not dressing in accordance with the Basij’s standards;
g)if she was caught in public with a male again, she would:
i)cause disgrace to her family;
ii)be unable to return to her public sector job; and
iii)be imprisoned and raped by Islamic prison guards.
h)if she were returned to Iran she would be forced to pretend to hold a belief which she does not have;
i)she always tried to conform to avoid trouble and she believes that if the Iranian government found out that she held no religious belief they would kill her; and
j)because she is an agnostic she is not safe at all, anywhere in Iran. To survive she would have to pretend to have a belief when she does not.
On 20 June, 2016 the applicant attended an interview with a delegate of the first respondent. By letter dated 19 August, 2016 the applicant was notified that a delegate of the first respondent refused to grant the applicant the visa.
On 23 August, 2016 the applicant’s case was referred to the second respondent in accordance with the fast-track process provided for in Part 7AA of the Migration Act.
On 29 September, 2016 the applicant’s representative submitted a statutory declaration to the second respondent which contained information that had not been provided to the delegate. The information included medical information, information about her sister’s refugee status and residence in France and threats she had received from her brother.
Section 473DD of the Migration Act proscribes the circumstances in which the second respondent can receive and consider new information that was not before the delegate, for the purposes of its review. The second respondent found the requirements of s.473DD were not satisfied in respect of the medical evidence or her sister’s refugee status and residence in France. However, it considered that there were exceptional circumstances that justified consideration of the new information in relation to the threat received by her brother, given that the threat occurred after the delegate’s decision and, if credible, it may give rise to a claim for protection. In that respect, the applicant claimed that on 23 September, 2016 her brother telephoned her and made threats against her. He said he would behead her if she went back to Iran because she has boyfriends in Australia.
On 14 November, 2016 the second respondent affirmed the decision of the delegate of the first respondent not to grant the applicant a Safe Haven Enterprise (Class XE) visa.
Grounds of application for an extension of time
The applicant sets out three grounds for an extension of time. They appear as follows:
4. Within the 35 day period referred to in s 477 of the Migration Act, the Applicant took steps to email the Refugee and Immigration Legal Service (RAILS) to seek assistance, but unwittingly sent the email to an incorrect email address.
5. RAILS later informed the Applicant that RAILS could not assist her with the IAA Decision, but the Applicant could not manage without pro bono assistance given her lack of financial means, her limited English and lack of understanding of the process.
6. The Applicant made further unsuccessful attempts for help from others and did not know who to turn to for assistance, but then, in about July 2017, was introduced to a woman who In turn introduced her to an individual who gave her the Application Form, helped her fill it out and helped her file it for no charge.
The applicant’s written submissions take those grounds no further. However, in oral submissions, the applicant’s counsel argued that the applicant had not simply sat back, done nothing to advance her own interests and let the time limit pass. He argued that the evidence shows that she had taken consistent steps to advance her right to a review of the second respondent’s decision. She was unable to pay a lawyer and cannot speak English. She sought assistance from the Refugee and Immigration Legal Service on a number of occasions. She sent an email to a wrong email address. She was not aware that she had done so. She contacted the Victorian Refugee Service and went to the local Member of Parliament who put her in touch with a pro-bono lawyer.
The delay is 204 days and the first respondent submits that it is significant. Impecuniosity, the lack of legal advice or representation and ignorance of time limits are generally not, in themselves, regarded as satisfactory explanations for delay. That is plainly correct: BRGAO v Minister for Immigration and Citizenship [2009] FCA 126 at [16]–[17]; Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35]; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24]; SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38].
However, I am satisfied that the applicant has explained the delay in attempting to commence her application. Whilst her explanation might be seen as less than satisfactory, there are other matters to be considered.
The first respondent accepts that no substantial prejudice would be suffered by him if the time within which to bring the application was extended. I accept that submission.
However, the first respondent submits that the proposed amended application for review has no reasonable prospect of success and if for no other reason, it ought to be dismissed on that basis alone. It is to a consideration of that matter I now turn. But before doing so, I should note one matter. Ordinarily a consideration of the merits of an application for review in in the context of an application to extend time within which to commence that review application should be undertaken at a “reasonably impressionistic level”: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585, affirmed on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110. The practice of hearing an application for an extension of time and the application for review proper at the same hearing has been deprecated by the Federal Court (MZABP (2015) at [66]). Nonetheless, in the present case, the parties agree that I should determine the application for an extension of time and, if I consider that it should be granted, I should go on to consider and determine the application for review on its merits.
The proposed grounds of review
In her proposed amended application filed 16 November, 2017 the applicant sets out the following ground of review:
1. The Immigration Assessment Authority's decision that there was not a real chance of serious harm, or a real risk of significant harm was unreasonable in that:
(b) The decision lacked an evident and intelligible basis;
(c) The Applicant admits to a lack of religious belief which renders her guilty of apostasy, for which imprisonment or execution are available penalties; and
(d) Due to evidence that the Applicant would be interrogated at length by Iranian authorities on return to Iran, there was a real chance that she would admit her lack of religious belief.
The applicant submits that the second respondent gave inadequate and ambiguous reasons for its findings. In her written submissions she says:
22. It is not clear from the conclusions about a “remote” chance and the Applicant not coming to the “adverse attention” of Iran authorities, what precisely was the reasoning behind that conclusion.
23. One strand of reasoning which is embraced by the conclusion about not having a profile that would bring her to “adverse attention”, is that it was only a remote chance that the Applicant's lack of belief would be noticed by the authorities. This seems to be supported by the country information referred to at CB174 [21] and [22].
24. But it is unclear whether that is all that is meant by the words, not coming to the “adverse attention” of the authorities. As a matter of ordinary grammar, the phrase does not exclude the possibility of the Applicant's lack of belief coming to the attention of the authorities, but not with adverse consequences. It is a matter of conjecture, but the words might have expressed the view that, even if her lack of belief did come to the attention of the authorities, she would not be prosecute (sic) or punished as a matter of discretion or that she has committed no offence at all.
25. The IAA refers to country information at CB174 [19]: “DFAT states that the punishment for apostasy is subject to judicial discretion ...” On the one hand, this might be suggesting that once a person is convicted it is a matter for judicial discretion what penalty out of a range of possible penalties should be imposed, although on the other hand it might be suggesting that the authorities have a discretion whether or not to prosecute at all.3 But the IAA did not expressly say that there was not a rea1 chance of a discretionary decision to prosecute or imprison or execute, nor did it expressly say that the Applicant is not guilty of apostasy.
The applicant submits that the conclusions reached by the second respondent were unreasonable in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Further, she submits that the second respondent failed to make any finding about whether the applicant was an apostate and whether her apostasy would come to attention as a result of being questioned by Immigration Police on her return to Iran. The applicant submits that the second respondent took an “unjustified leap of faith” in arriving at the conclusion that there is no real chance of serious harm to apostates unless they have engaged in anti-Islamic or anti-regime actions.
The first respondent submits that the applicant seeks impermissible merits review. He submits that the second respondent had regard to and correctly interpreted and applied the requirements of s.473DD of the Act and gave cogent reasons for its findings, noting that “...[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error...”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
The applicant submits that it is unclear how the Second respondent reached its decision. She argues that the second respondent should have concluded that she would be interviewed upon her return to Iran and she would have answered questions put to her truthfully. In that event she would have confessed her apostasy. The Second respondent ought to have assumed that if she confessed to apostasy, she would be prosecuted.
The first respondent submits that the second respondent’s findings cannot be said to be illogical, irrational or unreasonable. It submits that the second respondent considered the applicant's claims and evidence and made findings that were open to it. He submits that the second respondent accepted that the applicant was not a devout Muslim but found that her attitudes were similar to many Iranians. It accepted that she had no religion. It had regard to a wide range of country information concerning the practice of Islam in Iran and the punishment of apostates. The country information indicated that millions of Iranians born into Muslim families do not attend mosque or perform daily prayers.
The second respondent accepted that there had been instances of persons in Iran being charged and prosecuted for the crime of apostasy under clerical instruction however, noted that they are primarily persons that have converted to another religion or been engaged in leadership positions within their religious communities and accused of proselytising. On the second respondent’s findings, the applicant was not within any of those groups.
While the second respondent acknowledged that it is legally possible for a person to be punished under the Penal Code in Iran for insulting the Prophet Muhammad or other prophets, it found that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. The second respondent was not satisfied that non-participation in Islamic religious practices would lead to a real chance of serious harm unless it was accompanied by anti-Islamic or anti-regime actions or motives or the perception of such actions or motives. The second respondent noted that the applicant had not come to the adverse attention of the authorities whilst she was living in Iran and found that she was unlikely to do so in the future. That finding was not challenged on the application before me.
The second respondent found it to be reasonably possible that the applicant might be questioned on her arrival in Iran. It found that she may be monitored by the authorities for a period of time. However, it was not satisfied that the applicant would suffer harm as a result.
However, the applicant argues that the second respondent did not consider the likelihood that the applicant would confess to her agnostic views during questioning. This is the lynch pin of the applicant’s argument. It was an integral part of her claim and there is no express statement from the second respondent to the effect that it considered what would happen if she confessed her agnosticism upon questioning when she returned to Iran.
Conclusion – extension of time
I think on a fair reading of the second respondent’s reasons there is no express finding about whether the applicant’s agnosticism would come to the Iranian authorities attention if she was returned to Iran. The absence of such a finding might lead to the conclusion that the matter was not considered or otherwise dealt with by the second respondent.
Considered at a reasonably impressionistic level, the applicant establishes that she has a case to be argued and that her proposed application is not so devoid of merit to justify a refusal of the extension on that basis alone.
Taking that matter into consideration along with the other matters I have referred to above, I consider that it is in the interests of the administration of justice to grant the application for the extension of time sought.
The application for review
I have set out the grounds of review out above. I will not repeat them here. Nor will I repeat the arguments of each of the parties that I have already set out above.
The applicant argues that there was nothing before the second respondent to suggest that the applicant would not confess to her agnostic views if she was questioned about it upon her return to Iran. She argued that the second respondent ought to have approached the case on the basis that the applicant, if questioned about her religious views, would have been truthful. She would have told her inquisitors that she was agnostic, or at least not a Muslim. In that event, she argues, there was a real risk that she would be prosecuted as an apostate and thereby face a real chance of serious harm.
The second respondent delivered a statement of its reasons. Relevantly from that statement, the following matters appear.
The second respondent accepted that the applicant was a woman who was born into a Muslim family and is thereby regarded by the Iranian regime as Muslim. It found that she does not believe in the Islamic faith or any religion and regards herself as agnostic.
The second respondent reviewed material that dealt with the attitude of the Iranian authorities towards religion and religious views in Iran. That material (described as the United States Department of State International Religious Freedom Report) suggested that there is a significant level of discrimination and harassment in Iran against people who are not Shia Muslims. The report also indicated, according to the second respondent, that engaging in anything perceived as being anti-Islamic activity including conversion from Islam, can result in arrest, conviction, imprisonment and execution.
The second respondent also recorded information obtained from a report issued by the Department of Foreign Affairs and Trade (Country Information Report - Iran, 21 April, 2016) and in particular that DFAT:
a)acknowledged that, under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy;
b)recognised that while cases of apostasy are rare, Muslim-born converts to Christianity, Baha'is, Muslims who challenge the prevailing interpretation of Islam and others who espouse unconventional religious beliefs have been charged with apostasy in the past;
c)noted that apostasy charges have also been applied against political opponents of the regime;
d)stated that the punishment for apostasy is subject to judicial discretion. Whilst there is no provision in Iran's Penal Code criminalising apostasy, nevertheless, Article 167 of the Iranian Constitution requires judges to apply Shari'a in situations in which the law is silent and Article 220 of the Iranian Penal Code effectively states that crimes punishable under Iranian law are not limited to the ones specified in the Penal Code. According to Article 160 of the Iranian Penal Code, confessions, the testimony of two male witnesses or the “knowledge of the judge' can each be the basis for a conviction.”;
e)noted that in the rare instances that they are applied, charges of apostasy have in the past resulted in the death penalty and are often combined along with other crimes related to national security such as waging war against God and the Prophet;
f)suggested that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. Although DFAT was unaware of any recent charges of individuals for being atheists, it is legally possible for a person to be punished under the Penal Code for insulting the Prophet Muhammad or other prophets. Punishments can range from lashes to the death penalty."; and
g)acknowledged that a Muslim who leaves his or her faith to practice atheism can be charged with apostasy.
The second respondent found that the applicant's religious views have contributed to her feeling unsafe at her workplace and in the broader community. Her religious views, however, were “not dissimilar to the views apparently held by a significant portion of the Iranian population”, particularly those in cities such as Tehran where the applicant lived.
The second respondent accepted that the applicant's lack of attendance at the workplace prayer room was noted by the authorities at her workplace seven or eight years ago and that since and until she left Iran, she has conformed to the requirements in relation to praying. No further action had been taken against her by those authorities.
The second respondent accepted that by observing Islamic practice at her workplace the applicant was conforming to doing something that she does not believe in. It noted that her right to having no religion is enshrined in international law. The second respondent accepted that the applicant suffers from a level of anxiety and stress and has done so in the past but there was no evidence to indicate that this was the result of having to engage in a religious activity that goes against her personal beliefs or that the level of anxiety and stress caused by her religious views are such that it could be regarded as serious psychological harm.
Significantly, the second respondent recorded the following matters (citations omitted, my emphasis):
20. However, DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians - for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram - and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. DFAT states that “Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants."
21. According to DFAT, “atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. Although DFAT is unaware of any recent charges of individuals for being atheists, it is legally possible for a person to be punished under the Penal Code for insulting the Prophet Muhammad or other prophets. Punishments can range from lashes to the death penalty." DFAT acknowledges that: “A Muslim who leaves his or her faith to practice atheism can be charged with apostasy."
…
27. The country information reports indicate that whilst apostasy or renouncing Islam has serious consequences including possible arrest, conviction, lengthy terms of imprisonment and execution, there is none-the-less a significant portion of the population of Iran, particularly in the major cities, who do not actively practise Islam and who do not appear to face any consequences as a result. While obvious conversion from Islam to another religion may lead to a real chance of serious harm, not participating in Islamic religious practices will not of itself lead to a real chance of serious harm unless it is accompanied by anti-Islamic or anti-regime actions or motives or the perception of such actions or motives.
…
34. After assessing all the evidence I am satisfied that the applicant has not been subjected to serious harm in the past because of her religious views. I find that the chance of the applicant's religious views giving rise to her being subjected to serious harm now and in the reasonably foreseeable future in Iran to be remote. As such I find that she does not face a real chance of serious harm in this regard.
A fair reading of the second respondent’s reasons reveals that whilst the second respondent accepted that people who are known to have left the Shia Islam faith are at a serious risk of harm, it was unlikely that the applicant’s lack of religion and her rejection of Shia Islam would become known to the authorities. It was always the applicant’s case that her agnosticism had not been revealed to the Iranian authorities. The finding made by the second respondent that the applicant had not been subjected to serious harm in the past because of her religious views was consistent with the applicant’s evidence that she had kept her agnosticism to herself. That she had not been subjected to serious harm in the past was also consistent with the information before the second respondent that it was only those who were known to have turned away from the Shia Islam faith that were at a serious risk of harm.
The second of respondent’s finding that the chance of the applicant's religious views giving rise to her being subjected to serious harm in Iran to be remote must be based on the proposition that the applicant’s agnosticism would not become known to the authorities. In that respect, the second respondent reviewed country information that demonstrated that many people in Iran do not practice the Shia Islamic faith without persecution.
The applicant’s case before me was that when the applicant was returned to Iran she would be stopped at the airport and questioned. Her argument is that if she was questioned about her religious views, she would tell the truth and her agnosticism would be revealed. She argues that the second respondent did not consider this proposition.
The second respondent did consider what might happen when the applicant was returned to Iran. As to this matter, and after considering information available to the second respondent from DFAT, the second respondent said (citations omitted):
53. … According to DFAT "...a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports - usually Tehran Imam Khomeini - without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person's return because of Iran's sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two.”
55. DFAT and other sources of information acknowledge that Iranians with a profile as a political activist, or who have publicly criticised the Iranian regime, or who have converted to Christianity or another religion, are at risk of being detained on return to Iran. However in general, country information indicates that Iranians who return with their passports will not face any problem at the airport when they return after a longer stay abroad. A long stay abroad in itself, is not an issue as long as a person has left the country legally. The International Office of Migration (IOM) reports that Iranians who have left the country on their passports and are returned on a Laissez-passer will be questioned by the Immigration Police at the airport. This questioning may take few hours, but according to IOM, nobody has been arrested when travelling back on a Laissez-passer.
56. In August 2012 the applicant departed Iran legally with a genuine passport containing correct information about her identity and she had no difficult doing so. She does not have the profile of an anti-Iranian regime political activist, she has not claimed to have criticised Islam or the Iranian regime, and she has not converted to Christianity or another religion. I am satisfied that the applicant does not have a profile that would bring her to the adverse attention of the Iranian authorities on return to Iran. I find her claims of fearing harm as a failed asylum seeker are not well-founded.
The applicant submits that she would be interrogated at length by Iranian authorities upon her return to Iran during the course of which, there was a real chance that she would admit her lack of religious belief. However, whilst the second respondent made no express finding as to whether the applicant would in fact be questioned upon her return to Iran, having regard to the second respondent’s reasoning set out above, it is tolerably clear that the second respondent considered that even if she was questioned, it would not be for very long because she would not attract any adverse attention from the authorities. She did not have a profile that would bring her to the attention of the Authorities. The applicant does not seek to challenge the findings made by the second respondent recorded in [56] (set out above).
There was no material before the second respondent as to what form the questioning by the Authorities at the airport would take if the applicant was detained upon her return. There was no suggestion from the applicant herself that during the questioning she would be asked about her religious faith. The only reference in the material before me to the nature of the questions that might be asked upon the applicant’s return to around and her detention at the airport is to be found at paragraph 144 of the delegate’s decision (Court Book page 132). Nonetheless, the applicant argued that the second respondent ought to have considered that she would be questioned about her religion when she was detained at the airport. However that matter was not raised by the applicant with the second respondent. Nor was it raised by the applicant in the material that she supplied to the delegate who made the decision the subject of the second respondent’s review.
Conclusion
I am not satisfied that the applicant establishes that the second respondent’s decision is affected by jurisdictional error. The Second respondent properly understood the properly understood the claims that were made by the applicant and when considering those claims, undertook a detailed analysis of the country information before it. The second respondent’s reasons reveal and intelligible justification for the conclusion that it arrived at concerning the risk of harm to be faced by the applicant if she was returned to Iran.
The application must therefore be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 12 July, 2018.
Date: 12 July, 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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