DEW16 v Minister for Immigration

[2017] FCCA 2294

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEW16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2294

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

Legislation:

Migration Act 1958 (Cth) s.36AA

Applicant: DEW16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 995 of 2016

Judgment of: Judge Vasta

Hearing date: 18 September 2017

Date of Last Submission: 18 September 2017

Delivered at: Brisbane

Delivered on: 18 September 2017

REPRESENTATION

Counsel for the Applicant: Mr L. Burrows

Solicitors for the Applicant: ARC MIGRATION

Counsel for the Respondent: Mr B. McGlade

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. That the Application filed 25 October 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to this proceeding fixed in the sum of $7,328.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 995 of 2016

DEW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application to this Court on 25 October 2016, the Applicant, DEW16, asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”). That body, on 28 September 2016, affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa. 

2. In short compass, the facts are that the Applicant arrived by boat undocumented on 8 September 2012.  He claimed to be a citizen of Iran and this has been accepted by all concerned.

3. The Applicant said that he had engaged in an adulterous affair in Iran and had to leave because of that affair, and, since he has been in Australia, he has converted to Christianity.  He claims that if he is returned to Iran that, because he has committed the crime of adultery or because he has converted to Christianity, or because of both matters, he has either a well-founded fear of persecution or, in the alternative, Australia owes him a duty of protection because he will suffer serious harm if he is returned there because of those reasons.

4. With regard to the adultery claim, such is summarised very well at paragraph 10 of the IAA decision.  That paragraph reads as follows:

   “The applicant claims that in late 2011 he began a sexual relationship with a woman ("A") who was married, although he did not know this until later. He claims that in March 2012 he dropped A at her friend's apartment and waited in the car for her. After some time, her friend F" and F's boyfriend came downstairs. The applicant asked about A, and F gave him the keys to her apartment, indicating that A was up there. When the applicant entered the apartment he saw A sitting in a distressed and dishevelled state, covered in bruises. He was then attacked by "H", who he later learned was A's husband. H, who was armed with a large knife, punched the applicant. F and her boyfriend returned to the apartment and managed to pacify H by smoking ice with him. The applicant left the apartment and has never seen or heard of A again. Three days later, F phoned the applicant and told him that H was A's husband; that he was a criminal with money and connections and could do whatever he wanted; he had photos and videos of the applicant and A having sex; he would have the applicant charged with adultery and hanged. F begged the applicant to leave the country. The applicant did so on about 8 or 9 May 2012, by plane via the main airport in Tehran, using his own passport which he has since lost. In a statutory declaration made on 4 February 2016, the applicant claimed that in May or June 2012, and in March or April 2013 the police had been to his family home asking about him. He believes that these inquiries were made in connection with the adultery charges.”

5. The Applicant also claimed to have now converted to Christianity.  He had said that he had stopped identifying as a Muslim, that his attraction to the Christian church was that it gave it hope and lifted him from depression from his circumstances, but he has not described any spiritual dimension to this, and the IAA say, in paragraph 24, that they:

   “… formed the impression from his evidence that it was, rather, the community aspect of church attendance that attracted him, gave him hope and lifted him from his depression; in fact, he said that it gave him something to do.”

   25. Asked how he practises his faith, he said that "sometimes" he reads the Bible and "sometimes" he attends church, when he can. He said that he goes every two weeks. He said that he likes church because people are happy, they sing and dance and smile, whereas in Iran they cry all the time.

   26. He stated that it was not his idea to be baptised, but there were two Iranian girls coming from America to share their story and someone suggested that the applicant put his name down to be baptised. There is no suggestion that the applicant was required to undertake a course of study to prepare him for baptism, or that he was required to demonstrate an understanding of the process or a degree of commitment to or understanding of the Christian faith. Based on the evidence before me, I do not consider that the applicant was baptised as a mark of commitment to the Christian faith, or that the fact that he has been baptised, of itself, demonstrates an understanding of or commitment to Christianity.

   27. Asked who the pastor at his church is, the applicant said ‘I think he's changed now,’ and hesitated for a long time before providing the current pastor's name in a very uncertain fashion. He said that the current pastor knew him, but when asked whether he would be able to answer questions about the applicant if the delegate phoned him, he indicated that he would not. This uncertainty about the name of the pastor lads me to doubt the frequency of the applicant's claimed attendance at church.

   28. Asked about Christian celebrations, the applicant said "Jesus birthday", but when asked further about it, he stated that he had not wished his conversion to be included in his claims because he had not done it for that reason. His response, in my view, appeared to be evasive and an attempt to avoid having his knowledge of Christianity tested. When the delegate pressed him for further information he knew little more about Jesus' birthday or Christmas, and said that there were many celebrations including ‘eating Jesus body’.

   29. He was able to talk about his favourite Bible story and its personal significance.

   30. Asked about the central values of Christianity, he replied ‘don't sleep with married women…just good things — don't cheat, don't lie, don't thieve’.

   31. The applicant indicated that he attended the particular church he does because his favourite person, his ‘bestie’, goes to that church. Based on his comments about this person at the TPV interview, and given his limited understanding of the Christian faith and its values, even taking into account his language limitations, I consider that spending time with that person is a greater motivation for the applicant to attend church than any spiritual dimension.”

6. The IAA looked at the general story of the adultery, and came to the conclusion that it was an implausible story.  In my recitation of those facts, the implausibility really does stand out. 

7. It does not seem logical at all that the Applicant would be simply waiting in the car after driving A there. It is very strange that F would give keys to an apartment where the woman is, knowing that her husband, being a very violent person would be there.  It is also odd that the husband, who is supposedly a thug and brandishing a knife was able to attack the Applicant but not cause any real injury, and certainly not even use the knife on the Applicant. Then that the person F seemed to just then come back into the apartment – notwithstanding that they had given a set of keys to the Applicant – and were able to calm down this thuggish criminal is quite astounding.

8. That three days, later the Applicant was warned about the connections that this person had, and that the person would have him charged with adultery, is perplexing.  When one considers that H is a criminal and was going to attack the Applicant with a knife, why he would bother to go to the police with that sort of information and risk the police looking at him and finding out his own criminality with regard to drugs and other matters.

9. These details really gave an air of unreality to the story. This is further compounded when one thinks that, notwithstanding that the person F begged the Applicant to leave Iran, he did wait two months before leaving Iran, and he left Iran legally.

10. Nothing happened to the Applicant in those two months.  There was no police involvement, and certainly no thugs or criminals in the night making any sorts of threats to the Applicant. One can understand the IAA coming to the conclusion that they did. 

11. As far as the conversion to Christianity is concerned, given what I’ve already outlined it’s not difficult to see why the IAA placed very little store in this conversion.

12. The grounds of the application before me are as follows, and I will go to ground 1. 

    “1. The decision maker erred by denying the applicant natural justice including:

    a. By providing insufficient and inadequate support for his language competency and failing to take evidence that was not in the English language and failing to follow up evidence that was sought to be provided

    b. Refusing to allow the applicant to give information in IAA interviews through means of a translator or to allow sufficient means to provide information or to provide clarification where necessary when on notice that this was required.”

13. This ground stems from the incident that occurred during the interview that the Applicant had with the delegate of the Minister.  In that interview, the Applicant did have an interpreter present.  The Applicant chose to answer questions in English. 

14. The Applicant said to the IAA that the delegate had, in effect, persuaded him to use English and not to use the interpreter when conducting the interview.  The Applicant claimed that there were nuances and terminology that he would have used if he were talking in his native language that would have put a different slant on the evidence.  He said that he discovered that after he had read the decision of the delegate. It was then that he realised, when that decision was interpreted to him, that he should have used the interpreter and, therefore, he had been denied natural justice.

15. At paragraph 8 of the IAA reasons, the IAA talk about this aspect.  In that paragraph, the IAA says this:

    “…The applicant claims that because of comments made by the delegate to the interpreter, about his (the applicant’s) competence in English prior to the TPV interview, he thought that he should not use the interpreter. When he saw the delegate’s decision he realised that he had misunderstood many questions and had not been able to express himself properly.  His representative argues that the delegate had a duty of care to ensure the best possible communication at the interview and that she should have encouraged the applicant to use the interpreter…”

16. The IAA took all of that into account.  The problem with this aspect was that what the Applicant has said, with regard to this aspect, is that it was the change in terminology which led to inconsistencies between what he had said when he first was interviewed, and when he arrived in the country, and what he said to the delegate.

17. In his statutory declaration to the IAA, the Applicant does not complain that what was said was totally incorrect. It is simply that the terminology was wrong.  When looking at the implausibility of the tale that the Applicant told, there was no aspect of that tale that is affected by any inconsistency.  The tenor of the tale is that:

    a)the applicant dropped off the Woman A at an apartment;

    b)that the applicant stayed downstairs and just sat in his car;

    c)that the woman whose apartment it was came down, gave him the keys and told him that the Woman A was upstairs;

    d)that the applicant went upstairs and she was in the room;

    e)that the applicant was then attacked by the woman’s husband;

    f)that the woman whose apartment it was returned and was able to placate the husband;

    g)that the applicant was able to leave the apartment and has never seen the woman again;

    h)that the person whose apartment it was phoned him three days later and told him about the nefarious reputation of the husband;

    i)that the applicant was told that he should leave the country as soon as possible and then;

    j)that two months later, the applicant did leave the country.

18. Those basic tenants are not attended by any inconsistency or any change in terminology.  That is the story that the Applicant wanted to put before the Minister when he first arrived and before the delegate when he was interviewed, and before the IAA when the matter was reviewed. 

19. It is accepted that there were differences of details and there were more details given but, basically, that was the story and that was the story that the IAA found to be implausible. 

20. The extent of natural justice to be given to an Applicant before the IAA is statutorily conferred by sections of the Migration Act 1958 (Cth). In my mind, there has not been any jurisdictional error in that aspect that would amount to a jurisdictional error that would cause this Court to send the matter back to the IAA.

21. Ground Two is:

    “2. The decision maker failed to take into account relevant information including the Applicant’s limited undertaking of English and his protests about the use of recordings made by the DIBP and requests for further interviews and the use of translation services.”

22. For the reasons I have already given, the IAA, in their decision, made it clear that they accepted what the Applicant had said about those matters and gave him the most generous interpretation of what had been said.  Notwithstanding the generous nature of what the IAA had interpreted the Applicant as saying, it still found that the story given was implausible, and the relevant information was taken into account when making the decision.  Therefore, I do not see any merit in ground two, and that fails.

23. Ground Three is:

    “The decision maker engaged in jurisdictional error in making a decision that was unreasonable, irrational and illogical in that the decision was one that was not one that was so unreasonable no decision maker acting reasonably, on all of the evidence, including the material that should not have been considered, could have made it, or even excluding the material that should not have been considered, could have made. In particular, the error is demonstrated when considering:

    a. the decision maker’s views as the likelihood and views taken by Iran as to adultery, and heresy by Islam formed a component of the irrational, illogical and unreasonable nature of the decision

    b. the view taken by the decision maker of the Applicant’s evidence and its plausibility

    c. the nature of social media

    d. drawing conclusions without basis.”

24. As I have already mentioned, the Tribunal had found that the story given about the adultery being the reason for him fleeing Iran was implausible.  At paragraph 23, the Tribunal came to this conclusion:

    Overall, I consider it likely that parts of the applicant’s story reflect real events.  I am prepared to accept that he had a relationship with A, although I do not accept that she was married to a criminal involved in the drug trade who seeks to exact revenge on the applicant by having him charged with adultery. I do not accept that the applicant faces harm of any kind on return to Iran, arising from his relationship with A.”

25. With regard to Christianity, the Applicant has said that one of his concerns about returning to Iran is that he will be asked to open his Facebook account and the authorities will have evidence of his conversion.  He is also afraid that informants in Australia may have passed information about his activities to the Iranian authorities.  The Tribunal said this, at paragraph 33:

    “33. Based on the evidence provided by the applicant, I accept that he has some interest in Christianity and I accept that he has engaged in Christian activities in Australia for reasons other than to strengthen his claims to refugee status, namely, for social interaction and a sense of community. I do not consider that the applicant would seek to continue to practice Christianity if he returned to Iran. I consider that the applicant has been drawn to Christianity in Australia by his particular circumstances – living as an asylum seeker far from home, without family or friends, and most likely in more difficult financial circumstances than he is used to. The applicant’s evidence suggests that he is drawn to attend church because of his friendship with a member of the congregation, because it makes him feel happy and gives him something to do. His knowledge of and understanding of Christianity in terms of its rituals, beliefs and values, is extremely limited in my view, taking into account the applicant’s language limitations (although I note he called on the interpreter for assistance more frequently during the TPV interview when being questioned about his religious beliefs) but also the length of time over which he claims to have been attending church, which is not insignificant. I do not consider that there is any spiritual element to the applicant’s practice of Christianity, and I do not consider that he would feel the need to practice or attend church if he returned to Iran, where he would be living in familiar surroundings within his community of friends and family and his need for social interaction and community would be fulfilled by other means.

    34. Overall, I do not consider the applicant is committed to Christianity such that he would seek to pursue any interest in it, or attend Christian worship in Iran. I find that this is not because he would be afraid to attend church or pursue Christianity because of the risk of harm in doing so, but because he is not really committed to Christianity. I find the conditions that have led to his interest in it in Australia – loneliness and social isolation – will not exist in Iran.”

26. It seems to me that what the IAA has said is not without some merit. It does, however, fall to me to look at the matter when a ground such as ground three has been raised. The question I have to consider is, upon the evidence that was properly before the IAA, was it open for the IAA to find that Australia did not owe protection obligations under the Convention, or complimentary protection under s.36AA.

27. The Minister has correctly submitted that, with regard to the aspect of the adultery, such a matter would not be covered by either the Convention aspect or the complimentary protections in any event, because that is a law of general application to all citizens of Iran.  This is, in my view, a correct submission.

28. However, I do note the country information that is before the IAA, that came from the delegate, that in Iran, whilst it may be against the law, crimes such as adultery, have a blind eye turned to them by the authorities. 

29. But nevertheless, it seems to me that when one looks at the adultery aspect, and then combines it with the conversion to Christianity and what has been found by the IAA, that the overall conclusion that Australia does not owe protection obligations to the Applicant is a conclusion that was well and truly open.  That means that ground three also fails. 

1. This means that the result of this matter is that I ought dismiss the application and order that the applicant pay the costs of the Minister, fixed in the sum of $7328.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date:4 October 2017