DDT16 v Minister for Immigration
[2019] FCCA 3313
•25 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDT16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3313 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application –application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse to grant to the applicant a Temporary Protection (Class XD) (Subclass 785) visa – applicant made a new claim which was accepted as new information under s.473DC(1) of the Migration Act 1958 (Cth) by the Immigration Assessment Authority which was based on his fear of harm in Iran arising from his embracing of Christianity while in Australia – applicant claimed that Immigration Assessment Authority committed jurisdictional error by taking on the role of arbiter of doctrine and that its decision was irrational, illogical or arbitrary – Immigration Assessment Authority did not take on the role of arbiter of doctrine in considering the claims of the applicant and its decision was not irrational, illogical or arbitrary – applicant fails to establish any jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H, 46A, 91K, 195A, 473CA, 473DD |
| Cases cited: ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 |
| Applicant: | DDT16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2907 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 5 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Ms R. Graycar of Counsel |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 24 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2907 of 2016
| DDT16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Iran aged 37 years, having been born on 26 April 1982.
By Application filed in this Court on 24 October 2016 he seeks to quash and have re-determined in accordance with law the decision under Part 7AA of the Migration Act 1958 (Cth) (the Act) of the Second Respondent, the Immigration Assessment Authority (IAA), dated 19 September 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 11 July 2016 refusing to grant to him a Temporary Protection (Class XD) (Subclass 785) visa (Protection visa).
Background
The Applicant is an unauthorised maritime arrival who arrived in Australia on 17 September 2012. He had departed Iran legally for Indonesia with his brother on 17 July 2012 and had resided in Indonesia until 7 September 2012, when they boarded a boat organised by a people smuggler bound for Australia. That boat was intercepted by Australian authorities and the Applicant was transferred to the Christmas Island Detention Centre on 17 September 2012.
On 20 September 2012 the Applicant attended an Arrival interview conducted by an officer of the Department of the Minister (Department), and on 17 November 2012 attended an Irregular Maritime Arrival Entry Interview conducted by an officer of the Department.
Then on 15 January 2013 the Minister exercised his discretion under s.195A of the Act to allow the Applicant to be released from detention and to be granted a Humanitarian Stay (Temporary) (Class UJ) (Subclass 449) visa. The Applicant was subsequently granted a Bridging visa E and was released from detention.
The Applicant lodged through his solicitor an application for a Protection (Class XA) (Subclass 866) visa on 19 August 2013 together with a number of supporting documents, including a Statutory Declaration declared on 16 August 2013, which application was deemed invalid by the Department under ss.46A and 91K of the Act.
On 13 August 2015 the Minister, under s.46A(2) of the Act, lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class.
The Applicant made his application for the Protection visa on 5 January 2016 and lodged in support a further Statutory Declaration declared on 23 December 2015 (second Statutory Declaration).
The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:
a)who entered Australia after 13 August 2012 but before 1 January 2014;
b)who was not taken to a regional processing country;
c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and
d)who made, as he did, a valid application for a Protection visa.
Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.
I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 per Griffiths J at 538 – 541 [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Claims for Protection
The claims to protection made by the Applicant up to and including the time of his interview with the Delegate on 17 May 2016 were of a political nature arising out of his claimed political activism and anti-government political activities in Iran, including his support for Mr Hossein Mousavi in the 2009 Presidential election in Iran. Those claims are now irrelevant to the determination of the present proceeding and no further reference is made to them.
Decision of Delegate
The Delegate was not satisfied that the Applicant was a refugee as defined by s.5H(1) of the Act and found that he did not satisfy either the Refugees Convention criterion or the complementary protection criterion and refused to grant to him the Protection visa.
I note that in his second Statutory declaration at [6] the Applicant declared that he did not have any religion and had not practised any religion. At the interview with the Delegate he stated that he had been born into a Shia Muslim family, but that he did not practise or believe in any religion and that “from the beginning” he “did not believe in a religion”: see [77] – [80] of the Decision Record of the Delegate.
IAA Decision
On 12 July 2016 the Minister, pursuant to s.473CA of the Act, referred to the IAA the Delegate’s refusal to grant the Protection visa to the Applicant.
Notwithstanding the Applicant’s statement in his second Statutory Declaration that he did not have or practise any religion, by email dated 22 August 2016 his new migration agent put forward the following new claim:
For your information, the applicant had embraced Christianity since he came to Australia through his friends and acquaintances but his former migration agent advised him not to mix up his religious matters with his political case as it could undermine the genuineness of his initial case.
Therefore although he had attended the church since he came to Australia and participated in a number of church activities and became close to Christian communities in Australia, he did not include any information in this regard in his case statement and interviews with the DIBP's delegate.
The IAA accepted this new information under s.473DD of the Act, stating at [4] of its Decision Record as follows:
[4]In email correspondence dated 22 August 2016, the applicant's authorised representative advised that the applicant had embraced Christianity since arriving in Australia but had not revealed this to the Department as his former migration agent advised him: ' ... not to mix up his religious matters with his political case as it could undermine the genuineness of his initial case.' As the information regarding the applicant's purported embrace of Christianity was not before the delegate, I consider it to be new information under s.473DC(1) of the Act. After considering the supporting documentation and submission subsequently provided to the IAA on 26 August 2016, I accept that this new information is credible personal information, in that it relates specifically to the applicant and is capable of being believed. Had this new information been known by the delegate, it may have affected the consideration of the referred applicant's claims. I note that at the application stage the applicant was assisted by a reputable and experienced firm of solicitors. However I am willing to accept that the applicant was misadvised by, or misunderstood, his representative and accordingly withheld information relevant to the consideration of his protection claims. In light of this I am satisfied that there are exceptional circumstances to justify considering the information regarding the applicant's purported embrace of Christianity since arriving in Australia.
The new information that the Applicant had embraced Christianity was supported by the Applicant’s migration agent’s Written Submission dated 26 August 2019 (migration agent’s submission) and a number of statements from persons which affirmed the Applicant’s attendance at various Church services and functions and which supported the Applicant’s claim to have adopted the Christian faith. In the last bullet point of [6] of its Decision Record the IAA summarised the Applicant’s claim to have embraced Christianity as follows:
[6] In the submission to the IAA the applicant states he initially became interested in Christianity through an Armenian Christian friend in Iran, however it was not until he came to Australia that he became more interested in finding out about the Christian faith and started to participate in Bible studies while in immigration detention in Darwin. He participated in Bible studies for a month until he was transferred to Brisbane. After attending an evangelical church in Brisbane for about seven weeks, he moved to Sydney and began taking part in local Presbyterian church services in Castle Hill. He then moved to Meadowbank and attended the St John Anglican Church of Parramatta for about a month. For the past month he has been attending the Centre for New Life church in Parramatta.
Nevertheless, in the result the IAA was not satisfied that the Applicant had been converted to Christianity or had a genuine ongoing interest in Christianity, dealing with this claim at [11], [12], [19] and [27] of its Decision Record in the following terms:
[11]The applicant claims to have embraced Christianity since his arrival in Australia. In support of this he has provided several supporting documents including character references from community members, photographs of him in church settings and a support letter from the CEO of a Christian charity. I accept on the basis of the information provided that the applicant may have attended some church services while in immigration detention and in Brisbane and Sydney in 2013 and 2014. However for the following reasons I do not accept that the applicant has converted to Christianity or has a genuine ongoing interest in Christianity. In the time that the applicant has been in Australia he not demonstrated a commitment to a particular Christian denomination and has attended Catholic, Presbyterian, Anglican and evangelical church services. In January 2014 the applicant moved to Meadowbank and attended the St John Anglican Church of Parramatta for about a month, but stopped after he became afraid of informers when he heard that Australia and Iran were discussing the return of asylum seekers. He recommenced attending church only when he learned that his TPV application had been refused. The evidence the applicant has provided in support of this claim indicates he has attended church services and church functions, but say little about the genuineness of his commitment. Even the most recent support letter from the CEO of a Christian charity organisation states he met the applicant a few months ago and believes the applicant is a Christian because he has prayed the prayer of confession.
[12]Considering the evidence as a whole, I find that the applicant has not displayed a commitment to Christianity reflective of a desire to embrace a new spiritual faith. While I accept that the applicant may have participated in bible study groups in immigration detention and has attended church services while he has been in the community, he has not been baptised and I am not satisfied on the applicant's own evidence that he has a genuine commitment to or belief in the Christian religion or its practice. As a result I find that his level of interest in Christianity is such that he would not seek to pursue it on return to Iran and that he has not converted to Christianity or would be perceived as having done so.
[19]As I have found that the applicant does not have a genuine ongoing interest in Christianity, will not pursue any interest in Christianity on return to Iran, has not converted to Christianity and would not be perceived as having done so, there is not a real chance of him being harmed for engaging in Christian activity in Iran.
[27]While I accept the evidence the applicant has provided indicates he has attended church services and church functions, as I have found that he does not have a genuine ongoing interest in Christianity, will not pursue any interest in Christianity on return to Iran, has not converted to Christianity and would not be perceived as having done so, there is not a real risk of him being harmed for engaging in Christian activity in Iran.
Accordingly, in the result the IAA found that the Applicant was not a refugee and did not satisfy either the Refugees Convention criterion or the complementary protection criterion and affirmed the Delegate’s decision not to grant the Protection visa to the Applicant.
Grounds of Attack on IAA Decision in this Court
At the hearing Mr Dobbie appeared for the Applicant and Ms Graycar of Counsel appeared for the Minster. Mr Dobbie only pressed the following of the Grounds appearing in the Application, namely:
1.The Immigration Assessment Authority failed to discharge its core function to review the decision.
(iii)The Authority failed to discharge its core function to review the delegate's decision, thereby committing jurisdictional error, because it took on the role of arbiter of doctrine with respect to the Applicant's Christian faith.
(a) The Authority stated at [11] and [12] of its decision:
(see [20] above for the terms of [11] and [12])
The Authority took on the role of arbiter of doctrine with respect to the Applicant's Christian faith; because it required the Applicant to have been baptised; and because it required the Applicant to have demonstrated a commitment to a particular Christian denomination, rather than having attended Catholic, Presbyterian, Anglican and evangelical church services.
2.The decision of the Immigration Assessment Authority is irrational, arbitrary or illogical
Particulars:
(i)The Authority required the Applicant to have been baptised in order for it to accept that he was a Christian. That was arbitrary, as there is no requirement that a person be baptised before he or she is a Christian.
(ii)The Authority required the Applicant to have demonstrated a commitment to a particular Christian denomination, rather than having attended Catholic, Presbyterian, Anglican and evangelical church services. That was illogical or irrational, because in order for the Applicant to have demonstrated a commitment to a particular Christian denomination, he would first have to have considered other denominations.
(iii)In the alternative to Ground 2(ii) above, the Authority required the Applicant to embrace a Christian denomination without considering alternative denominations. That requirement was arbitrary.
Consideration
Ground 1(iii)
It is of course the case that the IAA cannot set itself up as an “arbiter of doctrine” by applying an “arbitrary standard” of what amounts to genuine religious belief or practice or which a person must have to be regarded as a follower of a religion. In BWC16 v Minister for Home Affairs [2018] FCA 1375 at [49] Thawley J noted as follows:
[49] In Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, Kenny J addressed the question of whether jurisdictional error might arise in applying an “arbitrary standard” of knowledge which a person must have in order to be found to be a follower of a religion. If a decision-maker relies on a premise that every follower of a particular religion must have a certain knowledge or provide certain answers concerning an aspect of a religion, it may fail to engage with the question whether the particular applicant before it is in fact a follower of the religion. Her Honour noted at [37] that there is a difference between (emphasis in original):
(a)operating from the premise that all believers will have certain specific knowledge; and
(b)concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion.
The IAA is entitled to test a claim of adhesion to a particular religion. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:
[24]The manner in which the Refugee Review Tribunal set out to test the Applicant’s claim to be a Christian was a function entrusted to it. There was no impediment to the Tribunal testing the claim being advanced. An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church. The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief. In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.
In my view, this Ground fails on a factual level because the IAA neither required the Applicant to have been baptised or to have demonstrated a commitment to a particular religious denomination of the Christian religion. There is no suggestion in the Decision Record of the IAA that it expected the Applicant to have had any particular standard of knowledge of the tenets of the Christian religion. The reference to the Applicant not being baptised at [12] of the IAA Decision Record and having attended a variety of services of different denominations at [11] were simply factors to which the IAA had regard in carrying out its overall task of considering and testing the claim of the Applicant that he had embraced the Christian religion whilst in Australia. There is nothing in the Decision Record of the IAA that suggests that it approached this task on a preordained basis that the Applicant was required to have been baptised or to have been a member of a particular denomination before his claim in this regard could be accepted.
In this case the IAA, having first determined under s.473DD of the Act that it should consider the Applicant’s claim to have embraced Christianity since arriving in Australia, was then faced with the task of determining whether it was satisfied that the Applicant had a genuine commitment to, or belief in, the Christian religion. In coming to the conclusion that it was not satisfied on the evidence that the Applicant had a genuine commitment to, or belief in, the Christian religion the IAA took into account, and was entitled to take into account in the context where the Applicant had not given any personal evidence himself that he had a genuine commitment to the Christian religion, the various factors and evidence recorded at [11] and [12] of its Decision Record, which included the following matters:
a)the migration agent’s submission and the statements of third parties that he had “attended some church services while in immigration detention and in Brisbane and Sydney in 2013 and 2014”, which it accepted: see [11];
b)in January 2014 the Applicant moved to live at Meadowbank in Sydney and attended St John’s Anglican Church at Parramatta “for about a month”, but then stopped attending any Church for a period which at the hearing in this Court was agreed as common ground to be “some two years”, and only recommenced attending Church when he learned that his Protection visa application had been refused: see [11];
c)the Applicant had attended Catholic, Presbyterian, Anglican and Evangelical Church services which led the IAA to consider that the Applicant had “not demonstrated a commitment to a particular Christian denomination”: see [11]. In my opinion the IAA, in having regard to this factor and taking this view, was not acting irrationally, illogically or without an intelligible justification in light of the common knowledge that most adherents of the Christian religion practise their faith in a particular denomination;
d)whilst the evidence provided by the Applicant in support of his claim indicated that he had attended Church services and functions, such evidence said “little about the genuineness of his commitment”, with the most recent support letter from the Chief Executive Officer of a Christian charity stating that he had “met the applicant a few months ago and believes the applicant is a Christian because he has prayed the prayer of confession”: see [11]; and
e)the Applicant had not been baptised: see [12]. In my view there was nothing irrational, illogical, or lacking in an intelligible justification in the IAA taking into account that over the period of four years since allegedly becoming interested in the Christian religion at the Christmas Island Detention Centre and attending the Churches and services that he claimed to have attended over that period, the Applicant had still not undergone what, on any basis, is regarded as a fundamental rite of the Christian religion.
In my view the IAA did discharge its core function of meaningfully considering the Applicant’s claim in relation to his being a Christian and did not take on the role of an arbiter of doctrine.
Accordingly, this Ground is not made out.
Ground 2
In my view this Ground also fails, for the same reasons given above for the failure of Ground 1(iii).
The IAA did not act on the basis that it would not accept that the Applicant was a Christian unless he had been baptised or was a member of a particular Christian denomination. It was simply recording those matters and factors as part of its overall consideration and in my view it was not illogical, arbitrary or legally unreasonable for it to take them into account in considering the Applicant’s claim to have embraced Christianity.
Neither in its process of reasoning nor in its failure to be satisfied with the Applicant’s embrace of Christianity did the IAA act irrationally, arbitrarily or illogically. As White J stated in ASY17 v Minister for Immigration & Border Protection [2019] FCA 1888 at [60]:
[60]After a review of the authorities in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Crennan and Bell JJ said, at [130], that, in the context of the decision of the Refugee Review Tribunal then under consideration, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error “must mean the decision to which the Tribunal claimed, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence”. Their Honours continued, at [131]:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
This Ground also fails to establish that the decision of the IAA is affected by jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 November 2019
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