DFA18 v Minister for Home Affairs & Anor

[2019] FCCA 258

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFA18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 258

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), ss.36(2)(a), 36(2)(aa)

Cases cited:

CLS15 v Federal Circuit Court of Australia [2017] FCA 577

EWP17 v Minister for Immigration and Border Protection [2018] FCCA 2133
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263

Applicant: DFA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 600 of 2018

Judgment of: Judge Vasta

Hearing date: 31 January 2019

Date of Last Submission: 31 January 2019

Delivered at: Brisbane

Delivered on: 31 January 2019

REPRESENTATION

Solicitors for the Applicant: Queensland Legal Service

Solicitors for the Respondent: Minter Ellison

ORDERS

1. That the Application filed 20 June 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 600 of 2018

DFA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 17 May 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the applicant, DFA18, a protection visa.  Following that decision, on 20 June 2018, the Applicant lodged an originating application in this Court to review that decision. 

2. The background to the decision is this.  The Applicant is a citizen of Iran, born in Ilam Province in 1987.  He is a Shia Muslim who identifies as a Kurd ethnic.  He claimed to the Tribunal that, as a Kurd, he experienced discrimination, intimidation and harassment during his childhood.  He was not allowed to speak his native language at school.  He was bullied about his accent and received corporal punishment that Persian children did not. 

3. He made the claim that Kurds were unable to wear their traditional clothes or speak their own language and that when they travelled to other cities, they are refused service in shops. If they require emergency medical treatment, they must pay upfront whereas others can pay later.

4. The applicant claimed that Kurds face discrimination in celebrating their culture and marriages and are not allowed to congregate in large groups; that skilled and experienced Kurdish workers are often refused employment and are unable to open their businesses.  Very few Kurds are able to obtain identity documents and they cannot hire a lawyer to protect their rights. 

5. The Applicant also claimed that Iranians who leave Islam or convert to another religion such as Christianity face jail. He said that returning asylum seekers to Iran are imputed to have been involved with anti-government activity and are jailed.

6. The Applicant said that on that background, he departed Iran legally in May 2013, but then got to another country and arrived, as it would seem, as an irregular maritime arrival in this country.  He made the claim that after he left, the Iranian authorities detained his younger brother demanding an explanation as to why the Applicant had left Iran and what his activities were in Australia. The Applicant claims that his parents have since told him not to return because he will be in great danger. 

7. The Applicant said that since he has been in Australia, he has married a Filipino citizen.  That citizen of the Philippines is a Catholic.  They have a child together.  He said previously that he was a non-practicing Shia Muslim but he has now been baptised, and he fears the Iranian authorities will detain, interrogate, torture or kill him because he is a Kurd; he is a person of adverse interest to them, he is a non-practicing Shia Muslim, he has been baptised Christian, his wife is Catholic, and he will be returning as a failed asylum seeker from Australia.

8. The IAA considered material that was not before the delegate.  The delegate expressed some doubt as to the relationship the Applicant had with the person who came to the interview, who was claimed to be his fiancée.  The person was pregnant.  The IAA had before it material showing the marriage between the Applicant and this person, the birth certificate of their child that named the Applicant as the father of the child, and a baptismal certificate showing that the Applicant had been baptised as a Catholic at St Edward The Confessor Church at Daisy Hill about six weeks after the delegate made his or her decision.

9. The Applicant did not make any claim that he himself had suffered the sort of discrimination that Kurds have been known to suffer in Iran.  Whilst the country information did point out that Kurds were discriminated against, notwithstanding that it was not a government policy to do so, the Applicant himself did not personally face any issues.  He has not been refused service at a shop.  He was able to complete his primary and high school.  There was no evidence that he was unable to access university level education. 

10. He did not face any issues when he did his compulsory military service.  The applicant had worked with his father on a family farm and as a self-employed truck driver and he had done that while living in Tehran for months prior to his departure.  His three brothers have left their home area of Ilam and reside in Tehran.  They work as a fireman, a driver, and the other runs his own electrical business.  There was no evidence before the delegate, or before the IAA, that there had been any discrimination faced by any of those persons in getting their jobs and keeping their jobs. 

11. There was no claim that he or anyone else in his family have been prevented from wearing their traditional clothing, nor have had to pay upfront for the medical services, or have been unable to hire a lawyer, or had any issues obtaining identity documents. 

12. The IAA was not satisfied that the Applicant faces a real chance of harm in Iran on account of his ethnicity.  The Applicant’s claim about his brother being interrogated was not accepted by the IAA. 

13. The Applicant had made an issue of the fact that he now has a tattoo on his arm and that tattoos are prohibited in Iran.  The country information says that tattoos are increasingly common, particularly among youth, and there was no DFAT report of any recent or specific report of people being targeted because they have tattoos. 

14. The Applicant had talked about his apostasy in the SHEV interview; that is, that he was a non-practicing Shia Muslim and that since he was 13 years old he has been against religion altogether, and he saw this as a real problem.  Whilst he was accompanied by his now wife at the SHEV interview, all he had said during the SHEV interview was that he had gone to the church with his wife to see what her religion is like, and he did not ever express any intention or desire to convert during that interview. 

15. The delegate was of the view that, because of his failure to adhere to the Shia Muslim religion, he would not face serious harm.  The claim now, because the Applicant had been baptised, is that he would face harm because of his new religion.  The IAA did not accept that his conversion was a true spiritual conversion because six weeks before he had been baptised, he had said that he was a non-practicing Shia Muslim and he was against religion all together. 

16. The timing of the baptism seemed to be far too convenient and the IAA saw it as an opportunity made by the Applicant to bolster his claims for the protection visa. 

17. The Applicant said now that he has married, his parents and brothers do not speak to him and do not wish to see him because he married outside of his religion.  However, the IAA found that this did not amount to him facing a real chance of harm in Iran. 

18. The IAA then looked at the question of his being a returning asylum seeker from Australia or from the West.  The IAA noted at paragraph 26:

    According to DFAT, Iran says it does not accept involuntary returnees and Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran…

19. The IAA then noted that officials provide assistance to Iranians who which to voluntarily return to Iran, even if they left irregularly. 

20. The IAA then looked at what would happen if the Applicant did go back to Iran, and noted that he would be interviewed and that there would be, according to the country information, no consequences to him that would satisfy the definition of serious harm.  At paragraph 29, the IAA said:

    While I accept the Iranian authorities may question and even briefly detain the applicant as a returnee, I am not satisfied this treatment would amount to serious harm.  Based on the applicant’s personal circumstances, I am also not satisfied the applicant faces a real chance of harm for any of the above reasons, should he return to Iran…

21. Therefore the Applicant did not have a well-founded fear of persecution.

22. The IAA then looked at the complementary protection criteria, and again looked at the fact that the Applicant had been baptised as a Christian, although the finding that the IAA had made is that this was not really a true conversation.  At paragraph 34, the IAA said:

    I accept the applicant is a Kurdish citizen of Iran.  I also accept the applicant is a non-practicing Shia Muslim with a tattoo, that his wife is a Catholic from the Philippines and that they have a child together.  However, I have not accepted that the applicant, with this background, would face a real chance of harm in relation to any of these reasons upon return…

    And found that he did not face a real risk that he would suffer significant harm.  At paragraph 35:

    I accept that as an asylum seeker returning to Iran without a passport the applicant may be questioned on his return for a few hours, but I do not consider this would amount to significant harm.  The applicant will not be arbitrarily deprived of his life or subject to the death penalty.  The applicant will not be subject to torture, cruel or inhuman treatment, or degrading treatment or punishment.

23. Having made those conclusions, the IAA affirmed the decision.

24. The application before this Court has now only one ground, that is:

    The Second Respondent failed to afford the Applicant natural justice by failing to take into consideration a claim raised by the evidence before it, which is an error of jurisdiction. 

25. The particulars given are that the IAA has “failed to take into account the impact of the applicant being involuntarily returned to his home country and whether any interview conducted by the authorities would divulge his apostasy.”

26. The submission is made by the Applicant on this basis; that the IAA has concluded that the Applicant would be a voluntary returnee and had proceeded upon that basis.  When one reads the decision, it does not seem to me that the IAA has actually done that, but for the purpose of this argument I will proceed upon a basis that the IAA has looked at the matter and decided that the Applicant is a voluntary returnee.  The question is what follows from that. 

27. I have been referred to two other decisions.  The first one, CLS15 v Federal Circuit Court of Australia [2017] FCA 577, is a decision of Charlesworth J, who was sitting as a single judge of appeal from a decision from this Court. The second, EWP17 v Minister for Immigration and Border Protection [2018] FCCA 2133 is a decision of my brother Judge Jarrett. Now, when one looks at both of those matters, it is clear that they were talking about a definite claim by the Applicants that they would not voluntarily return to Iran.

28. At paragraph 2 of CLS15, Charlesworth J put the claim before her as:

    …There is a real chance that he will be persecuted in any event if forcibly returned to Iran because he will come to the attention of Iranian authorities as a person who had made a failed claim for asylum in Australia.

29. At paragraph 41 her Honour said:

    …His claim was clearly articulated as one based on a premise that he would be “forced” to return to Iran if he were not granted a protection visa. 

    …His failed claim for asylum, based as it was on a claim to have converted to Christianity, will come to the authority’s attention because of his forcible removal from Australia.

30. In EWP17, the Applicant had claimed, and quoted at paragraph 31:

    I will not go back to Iran voluntarily because I fear that the Ettela’at would punish me. I fear that I will be detained, questioned and tortured on arrive at the airport…

    … There is every chance that when I arrive at the airport in Iran (if I am forcibly returned to Iran) that I will be interrogated at the airport in Tehran…

31. In both those cases, the Court had found that the claim was always that the Applicant would only return to Iran if forced and that they would not be returning voluntarily.  There has been no claim made as clearly as that in this case. 

32. Ms Smith, who appears for the Applicant, has said that it is a claim that has been raised on the evidence because the Applicant does not want to go back to Iran and has said so because he does not want to be separated from his now wife and his child; and that any return to Iran must therefore be an involuntary return.  If that submission is correct, it really means that any person who makes a claim for asylum is not going to be voluntarily returned. 

33. The question as to what constitutes a voluntary return is not clearly defined in the DFAT reports or in any of the authorities.  If one uses a cricket analogy, a batsman may be batting and is rapped on the pads and given out by the umpire.  Having been given out, he must leave the field.  A batsman who does not believe that he is out may leave the field begrudgingly, but the question is, is he really leaving it involuntarily? 

34. The same may be said of a person who makes a claim for asylum and has exhausted all of his remedies; that is, he has failed to get the visa, the AAT or IAA has affirmed the decision, the Federal Circuit Court has dismissed the application, the Full Court of the Federal Court or the appellate division of the Federal Court has dismissed the application, and the High Court then has dismissed the application.  Such a person may then leave the country and return to their country of origin and may do so quite begrudgingly.  The question is whether that is an involuntary removal. 

35. It seems to me that such a removal, when it is a consequence of a decision made of a Court, is not an involuntary response.  That is because the way in which Australian society has been established is that if there are disputes, disputes are resolved by Courts.  Once Courts make a decision, even if it is a decision that is eventually a decision of the High Court, the community accepts that and goes on, albeit sometimes begrudgingly, with what is the decision of the umpire.  That does not mean that the actions of persons after such decisions can be said to be involuntary.  It is voluntary because they have submitted themselves to the authority of the Court. 

36. The situation in EWP17 and CSL15 really is that such persons were never going to submit to the authority of the Court, and were going to be somewhat belligerent and be dragged kicking and screaming to the plane and would, one would think, have to be forcibly restrained on the plane in the same way prisoners are transported if they are being extradited from different countries or different states.  That may be seen to be involuntary.  If that is the case, then it is something about which there needs to be a clear claim. 

37. It is not the sort of claim that is envisaged in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263, because it is not something that arises simply from the evidence. Unless there is evidence that a person will not accept a decision that a protection visa will not be granted to them, then it seems to me one must accept that a person before the Courts will abide by the Court, albeit begrudgingly.

38. Therefore, in this case, I am of the view that there is nothing before the IAA that would have indicated that the Applicant was going to be an involuntary returnee to the country of Iran. 

39. But in some ways, when I look at the matter, and whilst what I am saying is probably contrary to what was said by Charlesworth, J in CLS15, it seems to me that this does not matter.  It really matters not whether the Applicant will be a voluntary or an involuntary returnee to their country of origin, because that is not what the IAA needs to consider.  The IAA needs to consider what will happen if, and when, the Applicants are returned to their country. 

40. What has occurred in this case is that the IAA has noted the DFAT information that involuntary returnees will not be allowed into Iran. If that is so, then that is so. But the IAA’s role is not to then say, “well, that is the end of the matter”. The IAA’s role is to look at what will happen if they are returned, and this is what this IAA has done. The criteria that the IAA have to look at as to whether s.36(2)(a), being the refugee criteria, or s. 36(2)(aa), the complementary criteria, have been satisfied.

41. Whether or not the Applicant is a voluntary returnee or an involuntary returnee does not affect the question that the IAA has to decide unless there is a specific claim that the manner of return, whether it be voluntary or involuntary, affects what will happen on return; otherwise it is irrelevant to the decision of the IAA.  Whether the Applicant is a voluntary returnee or an involuntary returnee does not in any way, shape or form affect the ascertaining of whether or not the criteria are fulfilled. 

42. But even if I am wrong in what I have just said, in my view, there is nothing in this material that would have constituted the Applicant making a claim that he would be involuntarily returned to Iran.  That being the case, there is no jurisdictional error. 

43. I therefore dismiss the application with costs fixed in the sum of $7,000.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:10 May 2019