DBS18 v Minister for Home Affairs

[2018] FCCA 3217

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBS18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3217

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misapplied the law – whether the Authority made adverse findings that lacked insufficient logical or an evidentiary basis – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473DD, 476

Applicant: DBS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1648 of 2018

Judgment of: Judge Street

Hearing date: 7 November 2018

Date of Last Submission: 7 November 2018

Delivered at: Sydney

Delivered on: 7 November 2018

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Barriston Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 6 November 2018 initialled and dated by the Court and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1648 of 2018

DBS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 10 May 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Iran and of Aszari Turkish ethnicity. The applicant arrived in Australia on 17 April 2013 as an unauthorised maritime arrival. The applicant claims that as a result of an incident in 2012 he was questioned and mistreated and that the authorities thought he was a protester. The applicant alleged that after his release he was approached by two men, and the applicant feared that he would be seen as supporting anti-regime ideas. The applicant left Iran legally and flew to Indonesia via Dubai and then later came to Australia by boat.

3. Since the applicant’s arrival in Australia, the applicant alleged he has renounced Islam, converted to Christianity, made Facebook posts about his Christianity and fears that his posts may become known to the authorities in Iran. The applicant claims that he fears returning to Iran because he has breached his bail conditions. The applicants fears he would be tortured and detained by the authorities as an anti-regime figure.

4. On 8 August 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 11 August 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions.

6. The applicant provided an email attaching legal submissions to which the Authority had regard, dated 1 September 2017. The Authority referred to the submissions concerning the applicant’s conversion to Christianity and referred to the fact that the submission argued the applicant did not claim to have feared persecution on the basis of his religious conversion at any time. The Authority referred to the fact that during the applicant’s July 2017 protection visa interview given before the delegate’s questions regarding Christianity, the applicant’s representative had specifically advised that this was not a claim that was being put forward by the applicant and that the applicant’s conversion to Christianity was first raised by the delegate who had independently found out about the conversion.

7. The Authority having reviewed the evidence, accepted that this was a fair recounting of the events and that the delegate was advised the applicant was not making any claims on the basis of Christianity. The Authority referred to a particular article and found the Authority was unable to consider the same as there were not exceptional circumstances to justify its consideration.

8. The Authority referred to an email attaching a letter from a Pastor containing a submission. An email was sent on 20 September 2017 requesting that the applicant be invited to attend an interview. The Authority was not persuaded that it was unfair to question the applicant about his Christian conversion and declined to give the applicant a further interview.

9. The Authority referred to a number of documents attached to the second email dated 20 September 2017 and considered the same under s 473DD of the Act. Relevantly, the Authority referred to a second email containing a letter from a Pastor of a Christian Church outlining a number of facts relevant to the applicant’s conversion to Christianity including the frequency of his attendance at Christian church activities, his attendance at Bible classes, his other church-related activities and a character judgment about the genuineness of the applicant’s conversion to Christianity. The Authority found this was not before the Authority and is new information.

10. The Authority referred to a further letter from the Pastor dated 17 September 2017, two months before the decision, and noted no explanation had been advanced why it was not given to the delegate and noted that the non-provision of the same supported the contention then made that the applicant was not making a claim on that basis. The Authority was not satisfied the delegate’s finding that the applicant’s conversion was not genuine gives rise to exceptional circumstances to justify considering that letter by the Pastor.

11. The second letter attached to the email sent to the Authority on 3  May 2018 described as the “new support letter” from the Pastor was addressed by the Authority at paragraph 17 and 18 The Authority was satisfied that there were exceptional circumstances to justify considering that new information.

12. The Authority summarised the applicant’s claims. The Authority was willing to accept the applicant was detained at a protest and then held in a prison for 10 days. The Authority accepted the applicant was mistreated whilst imprisoned and that afterwards he was released after signing a commitment not to engage in further protests. The Authority noted that the applicant was not on his own evidence, a participant in protests and that he had not made any claims to have engaged in the anti-regime activities since his departure or at all.

13. The Authority found that this incident was a result of an unfortunate and coincidental presence at a location where a spontaneous protest occurred rather than any indication that he was of interest at the time of arrest as the applicant himself has asserted. The Authority noted the applicant returned to his work and did not have any further interactions with the Iranian security agencies prior to his departure for Australia.

14. The Authority referred to the claim that there had been a surety and good behaviour bond and found the evidence to be vague, contradictory, unconvincing, and was not satisfied the applicant was telling the truth in respect of this aspect of his claim. The Authority did not accept the applicant’s explanation to be credible and concluded the applicant had fabricated this aspect of his claim in order to advance his claims for protection. The Authority was satisfied that after being released, the applicant was not of any further interest to the authorities and found that he would only come to the adverse attention of the Iranian authorities if he actively engaged in anti-regime activities which, given his comments about lack of interest in political matters, the Authority found was highly unlikely.

15. The Authority referred to the applicant being approached by two men in the market after his release and the claim that these men had disappeared and not been seen since and that the applicant was fearful he would be imputed with anti-regime opinions and might disappear. The Authority noted the applicant himself conceded he did not have problems with the Iranian authorities at this time and only he feared he might. The Authority observed that as the event occurred a few days after his July 2012 release, the applicant continued to live and work in Tehran for approximately six months after he asserts this event occurred without any difficulty.

16. The Authority having considered the evidence of the applicant, was not satisfied the applicant is telling the truth about these events. The Authority did not accept the events occurred at all and concluded the applicant invented these aspects of his claims in order to enhance his claim for protection. The Authority did accept the applicant departed Iran via Tehran Airport in a passport issued in his own name as asserted but not for the reasons he now claims.

17. The Authority referred to the applicant’s claim that his family home had been raided in order to find him and to arrest him. The Authority noted this claim was put forward during discussion about his relationship and that the applicant had not explained this incident further or explained which agency was responsible or why they were looking for him and that the applicant had not made this claim earlier. The Authority was not satisfied the applicant is telling the truth about this claim and concluded that it was invented in order to enhance the applicant’s claims for protection.

18. The Authority referred to the applicant’s alleged conversion to Christianity and particularly referred to the aspect of the applicant’s claims having an odd history and requiring some background to understand the same fully. The Authority referred to the applicant after his arrival describing himself as a Shia Muslim in 2013, and that in the Safe Haven Enterprise visa application of November 2016, the applicant did not answer question 33 which required him to nominate his religion, and that he left the answer blank.

19. The Authority took into account that the applicant did not mention religion or make any religious claims in the Statement of Claims that accompanied his application. The Authority took into account that during the interview of July 2017, the delegate raised the subject of the applicant’s apparent conversion to Christianity, noting the applicant appeared to have maintained a Facebook page.

20. The Authority noted the applicant suggested that the Facebook page was old and out of date and that he no longer maintained it. The delegate contradicted the applicant on that point, showing the applicant evidence that he had posted a number of pro-Christian messages in the month immediately prior to his protection visa interview and pictures of himself consuming alcohol. The applicant ultimately acknowledged that in fact he still maintained the Facebook account. The Authority noted the applicant and his representative both stated during the protection visa interview that the applicant’s conversion, whilst genuine, was not the subject of any claim for protection, though the applicant’s representative did assert that the applicant may face harm because of the Facebook posts.

21. The Authority noted that the delegate did consider the applicant’s profile in this regard. The Authority referred to the Pastor’s second letter that the applicant is contended to engage in Christian activities since the delegate’s decision, including regular church attendance and Bible classes. The Authority also noted the author of the letter asserted the applicant to be a genuine convert to Christianity.

22. The Authority referred to country information and to the documents brought by the applicant including a Certificate of Baptism dated 16 July 2017, two days prior to the applicant’s protection visa interview. The Authority referred to the other documents gathered by the applicant as evidence of the genuineness of the conversion to Christianity. The Authority found the fact that the applicant had brought the documents to the interview, that he was posting images of himself consuming alcohol and pro-Christian messages on Facebook and tried to hide these from the delegate suggests he intended to make such a claim at some stage. The Authority found the applicant and his representative’s denial about the relevance of the conversion to his claims for protection to be highly disingenuous.  The Authority noted that a claim might be later lodged was explicitly acknowledged by the applicant’s representative during the interview.

23. The Authority also noted that during the interview, the applicant was asked a number of questions about his conversion to Christianity. The Authority observed that the applicant was unable to answer any of the questions satisfactorily. The Authority noted the applicant openly admitted he did not know basic tenets of Christian faith and could not outline the significance of Jesus to Christianity. The Authority expressly observed that it was not appropriate to impose an artificial or arbitrary standard on the applicant about the level of doctrinal knowledge required or expected of a convert.

24. Nonetheless, the Authority found the applicant’s knowledge of Christianity to be extremely superficial and found the applicant’s explanations unconvincing. The Authority noted the applicant claimed he converted because his Pastor had convinced him of the errors of Islam in a single session on the date of his baptism. The Authority noted that at the end of the interview, the applicant’s representative argued the applicant was a new convert and that as he was illiterate, and as he did not speak English, that his understanding of Christianity was poor because he could not understand the preaching. It was also suggested the applicant did not answer question 33 of his Safe Haven Enterprise visa application at the time that he lodged it because he was doubtful about his Muslim faith and was investigating alternatives.

25. The Authority noted the applicant’s legal submission to the Authority asserted that the applicant is now a genuine Christian, although there was no express claim for protection put forward on that basis, that the applicant’s illiteracy was the reason for his failure to answer questions satisfactorily at the interview and that it was unfair to question him about this issue at the interview since it was not put forward as a claim for protection at the time. The Authority was not persuaded by any of these arguments and concluded that question 33 was left blank deliberately in order to allow a later claim for Christian conversion.

26. The Authority found the applicant’s Facebook posts including Christian messages and images of alcohol consumption were published by him with a view to later demonstrating his claim to have converted to Christianity. The Authority referred to having considered all of the applicant’s evidence about his conversion to Christianity and found the applicant to be very unconvincing.

27. The Authority did accept the applicant had engaged in a range of Christian activities since submitting his Safe Haven Enterprise visa application in November 2016, including attending church services, Bible classes and being baptised and that the applicant continues to attend regular church services and other Christian activities. The Authority referred to having carefully considered the pastor’s letter in support of the applicant, including the opinion expressed that the applicant is a genuine convert to Christianity.

28. The Authority, however, found taking into account the overall history of the matter, the Authority was not satisfied the applicant’s activities reflected genuine conversion to Christianity. The Authority concluded that the applicant had engaged in these activities solely for the purpose of enhancing his claims for protection in Australia. The Authority concluded that the Facebook activity, which the applicant tried to hide from the delegate at interview which contained images of him consuming alcohol and pro-Christian images was published for the sole purpose of strengthening his protection claims. The Authority found the Facebook posts were not genuine indications of the applicant’s feelings but were part of his fabricated attempts to prove he was Christian.

29. The Authority identified the requirements of s 5J(6) of the Act in relation to the applicant’s alleged conversion to Christianity and found the Authority was required to disregard all of this conduct. The Authority was not satisfied that the applicant has a well-founded fear of being persecuted for reasons of religion.

30. The Authority turned to the applicant’s detention and mistreatment and was not satisfied the applicant would face a real chance of harm arising from his detention in 2012 if he returned to Iran.

31. The Authority noted that the applicant resiled from any claim for protection on the grounds of his ethnicity.

32. The Authority found that it was not satisfied the applicant would face a real chance of harm arising from his status as a failed asylum seeker if he returned to Iran.

33. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and that the applicant failed to meet the criterion in s 36(2)(a) of the Act.

34. The Authority turned to the issue of complementary protection and noted the finding that had been made that the applicant’s conversion to Christianity and his other ostensible Christian activities were not genuine.

35. The Authority noted, despite the considerable time and effort that the applicant put into overt demonstrations of Christianity, the Authority concluded the applicant remains a Muslim and that if returned to Iran he would return to the Islamic faith he formerly practiced in that country when he first arrived in Australia. The Authority referred to the Facebook posts and was not satisfied the applicant faced a real risk of any harm arising from these pro-Christian posts. The Authority found the Facebook posts about the consumption of alcohol are highly unlikely to become known.

36. Taking into account country information, the Authority was not satisfied that even if the alcohol use by the applicant became known whilst in a foreign country, this would not lead to a real risk of the applicant facing any harm if returned to Iran. The Authority referred to having found that the applicant would resume his previous practice of Islam and the Authority did not consider the applicant could genuinely be said to be a non-practicing Muslim or an apostate and found the applicant would not face a real risk of harm on either basis.

37. The Authority was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criterion under s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application were each the subject of particulars and the Court will have set out the substantive grounds but not the particulars. The Court has taken into account the particulars and the submissions, both oral and in writing, advanced by Mr Williams of counsel on behalf of the applicant in relation to each of the grounds.

Ground 1

1. Ground 1 is as follows:

   Ground 1: There was an insufficient logical or evidentiary basis for the IAA to find the applicant was not a "genuine" Christian after finding the applicant was baptised, attended bible classes and church services

   1. The decision by the IAA was affected by jurisdictional error as there was an insufficient logical or evidentiary basis for the IAA to find that the applicant was not a "genuine" Christian at [46] under the refugee criterion and at [50]-[51], after accepting at [46] that the applicant was baptized on 16 July 2018, attended bible classes and church services.

1. In relation to ground 1, Mr Williams sought to take issue with the adverse finding by the Authority that the applicant was not a genuine convert to Christianity, referring expressly to paragraphs 46, 50 to 51 of the Authority’s reasons. Mr Williams submitted there was error by the Authority in finding the applicant was not a genuine convert to Christianity in the context of the findings by the Authority under complementary protection.

2. Mr Williams referred to the Authority’s reasoning and advanced that the Authority had erroneously applied a standard of an arbiter of faith. The Authority’s reasons expressly refer to not applying any such standard. Further, it was open to the Authority to take into account the applicant’s knowledge of Christianity being extremely superficial, in the context of the applicant’s explanation for his conversion to Christianity. It is apparent the Authority took into account the history of the applicant’s conversion and his explanation for his conversion and the timing of his conversion in relation to his baptism and the delegate’s interview, as well as the history advanced in respect of the applicant’s absence of advancing any claim to fear harm on the grounds of Christianity at a time that that conversion had already allegedly taken place, as well as the leaving blank of the answer about the applicant’s faith in his Safe Haven Enterprise visa application.

3. The Authority’s adverse finding that the applicant was not a genuine Christian was open on the evidence before the Authority and cannot be said to be irrational or illogical. The Authority provided reasons in support of the adverse findings as summarised above, and accordingly the adverse finding cannot be said to lack an evident and intelligible justification.  I do not accept that the Authority applied an arbitrary or erroneous arbiter of faith doctrine in determining whether the applicant was a genuine convert to Christianity. There was a real and genuine engagement with the applicant’s submissions by the Authority in respect of the applicant’s claim in this regard and the Authority made adverse dispositive findings that were open for the reasons summarised above. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. Ground 2 is as follows:

   Ground 2: There was an insufficient logical or evidentiary basis for the IAA to conclude that the applicant was ignorant of the elements an adherent to the religion might reasonably know regarding the refugee criterion.

   2. The decision by the IAA was affected by jurisdictional error at [45] as there was not a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant, are elements that an adherent to the religion might reasonably be expected to know.

2. In ground 2, Mr Williams of counsel submitted that the Authority had erred in taking into account the applicant’s limited understanding of the doctrines of the Christian faith. For the reasons already given, the Court finds that the Authority did not determine the applicant’s claim of being a genuine Christian on the basis of an arbitrary standard of faith, but rather made adverse findings that were open to the Authority and were logical and rational.

3. Further, for reasons already given, it was relevant to the Authority to take into account the extremely superficial knowledge of the applicant. The adverse findings by the Authority were reasonable and open given the applicant’s history in relation to his claimed conversion as summarised earlier above. No jurisdictional error, as alleged in ground 2, is made out.

Ground 3

1. Ground 3 is as follows:

   Ground 3: The IAA misapplied of law regarding section 5J(6) of the Migration Act 1958 (Cth) under the refugee criterion

   3. The IAA erred at [50] by finding that the applicant's conduct in Australia was "otherwise" than for the purpose of strengthening his refugee claims after accepting at [41], that “… applicant and his representative both stated during the protection visa interview that the applicant's conversion, whilst genuine, was not the subject of any claim for protection" and after accepting at [46], that the "applicant has engaged in a range of Christian activities since he submitted his SHEV application in November 2016 including attending church services and bible classes and being baptised and that he continues to attend regular church services and other Christian activities ..." Ultimately, the IAA erred at [46] by "conclud[ing] that he has engaged in these activities solely for the purpose of enhancing his claims for protection in Australia" and that "his Facebook activity, which he tried to hide from the delegate at interview and which contained images of him consuming alcohol and pro-Christian messages, was published with the sole purpose of strengthening his claims for protection." The IAA failed to take into account that the applicant made no claims at the protection interview and was prompted by the delegate and that he engaged in Christian activities before his protection visa interview of July 2017. The IAA therefore misapplied section 5J(6) of the Migration Act 1958 (Cth) by finding that is his conduct was only for the purpose of strengthening is refugee claims and by disregarding this conduct in the assessment of the refugee criterion. The IAA constructively failed to review the applicant's claims.

2. In relation to ground 3, Mr Williams submitted that the Authority had misapplied s 5J of the Act. Mr Williams contended that the Authority had erred in holding that the applicant’s conduct had been undertaken for the sole purpose of strengthening his protection claims.

3. Mr Williams in that regard referred to the activities that had been accepted by the Authority as well as to the pastor’s letter. The submissions of Mr Williams were in substance an invitation for this Court to engage in impermissible merits review. On the face of the material before the Court, the Authority correctly understood and applied s 5J of the Act and it was open to the Authority as a matter of logic and rationality to find in the present case that the conduct was engaged in for the sole purpose of strengthening the applicant’s protection claims.

4. The Authority’s adverse finding in that regard cannot be said to lack and evident and intelligible justification for the reasons summarised above. In particular, the Authority referred to the history and the applicant leaving question 33 blank in the Safe Haven Enterprise visa application which required him to nominate his religion. The Authority also referred to evidence given by the applicant at the interview about the Facebook posts and initially denying the maintenance of the same. The Authority also referred to the applicant stating at the protection visa interview that he advanced no claim to fear harm on the grounds of Christianity. The Authority also referred to the ability to raise such a claim later acknowledged by the applicant’s representative. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. Ground 4 is as follows:

   Ground 4: The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) by finding the applicant should modify his behaviour so as to avoid a real chance of persecution

   4. The IAA misapplied section 5J(3)(i) of the Migration Act 1958 (Cth) at [46], by finding that the applicant can modify his behaviour regarding his religious beliefs, by concealing his true religious beliefs, or cease to be involved in the practice of his religion, so as to avoid a real chance of persecution.

2. In relation to ground 4, Mr Williams of counsel submitted that the Authority had in substance found the applicant would modify his behaviour by returning to the practice of Islam rather than his practice his beliefs of Christianity. The Authority found the applicant was not a genuine convert and found that the applicant remained a Muslim. In the circumstances, there was no modification of behaviour by the applicant and no jurisdictional error, as alleged in ground 4, is made out.

Ground 5

1. Ground 5 is as follows:

   Ground 5: The IAA erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion

   5. The decision by the IAA was affected by jurisdictional error as the IAA misapplied the applicable law by conflating the findings regarding the applicant's conversion to Christianity under the refugee criterion at [50] of the decision record, with the applicant's claims of apostasy under the complementary criterion at [73] of the decision record.

2. In relation to ground 5, Mr Williams submitted that the Authority had conflated the applicant’s claims to fear harm on the basis of Christianity and the applicant’s claim to fear harm on apostasy. The Authority expressly addressed both the claim to fear harm on the grounds of Christianity and in relation to complementary protection made an express adverse finding in relation to the applicant’s claim to fear harm on the grounds of apostasy. There is no substance in the contention of a conflation by the Authority of the applicant’s claims or a misunderstanding of the applicant’s claims.

3. Further, it is apparent that, on a fair reading of the Authority’s reasons as a whole, that the Authority took into account the activities of the applicant in relation to his purported conversion to Christianity in the adverse finding in respect of apostasy. No jurisdictional error as alleged in ground 5 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  21 December 2018