DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3351

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3351

File number(s):	PEG 331 of 2019
Judgment of:	JUDGE VASTA
Date of judgment:	2 December 2020
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth), s 36(2)(aa)
Cases cited:	NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Number of paragraphs:	53
Date of last submission/s:	2 December 2020
Date of hearing:	2 December 2020
Place:	Brisbane
Counsel for the Applicant	M. Guo
Solicitor for the Applicant:	Estrin Saul Lawyers
Counsel for the First Respondent:	S. Oliver
Solicitor for the First Respondent	Australian Government Solicitor

ORDERS

PEG 331 of 2019

BETWEEN:

DFO19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	2 DECEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.That the Application filed 23 August 2019 and amended on 16 October 2020 is dismissed.

2.That the Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(EX TEMPORE)

JUDGE VASTA

1. On 23 July 2019, the Administrative Appeals Tribunal (“the AAT/ the Tribunal”) affirmed a decision not to grant the applicant, DFO19, a protection visa.  On 23 August 2019, the Applicant asked this Court to review that decision. 

2. The history to this matter is a rather long one:  the Applicant is a citizen of Iran.  He arrived here in Australia via Christmas Island on 10 August 2012.   He applied for a protection visa on 12 November 2012.

3. He was interviewed by the delegate on 26 March 2013, and nearly a year later, on 14 March 2014, the delegate refused to grant the protection visa to the applicant.  The applicant then went to what was then the Refugee Review Tribunal seeking an appeal/review and filed his application in March 2014.  He appeared before that Tribunal on 1 April 2015. On 12 June 2015, the Tribunal affirmed the decision.

4. The Applicant then asked this Court to review that decision.  That application was heard by one of my brother judges, and, on 26 February 2018, the Court then made orders that quashed the Tribunal’s decision and required the Tribunal to re-hear that application.  The Applicant appeared before the Tribunal on 10 May 2019 and gave evidence before it, and, as I have said, affirmed the decision of the delegate on 23 July 2019.

5. The background to the matter is that the Applicant fears that he will suffer if he is returned to Iran because he has converted to Christianity.  The Applicant explained to the Tribunal the manner in which he came to begin a faith journey, and how it had led him to the point where he is now; that is that he is very much a follower of the Christian religion.

6. The Tribunal was quite forceful in their questioning of parts of that journey, speaking to the Applicant as to his understanding of the Koran, why it was that the Islamic religion did not, as it were, give him the answers that he said he was seeking, and how it was that Christianity became his religion of choice. 

7. The Tribunal did put to him a number of matters that he had said in evidence at the previous Tribunal hearing.  These questions, or statements, were to illustrate inconsistencies in the Applicant’s claim.  At the previous Tribunal, the Applicant had spoken about being introduced to Christianity by a friend called A. Before this Tribunal, the Applicant accepted that he had told a lie about that, and that he had maintained that lie for about two years. 

8. The Applicant, on the last Tribunal hearing, had spoken about his father being under surveillance in Iran and that his father was interrogated about the Applicant’s location. At this Tribunal hearing, the Applicant conceded that that too was a fabrication.

9. The Applicant, at the last Tribunal hearing, had spoken about attending a Christian church in the suburb of Hamilton Hill.  Before this Tribunal, he acknowledged that this too was a lie, and he had not attended any such church.  It seems that the Tribunal had put to him that there was no such church in the suburb of Hamilton Hill.

10. The Applicant had previously said that he had become interested in Christianity while he was in Iran.  He did admit to this Tribunal that he did not become interested in Christianity until he was in Australia. 

11. There was one other aspect that the Applicant had been either dishonest or inconsistent in, and that was his work experience.  He had said at the last hearing that he claimed to have worked as an engineer for two years in Iran.  However, at his entry interview he had said that he had no job and that he was unemployed.  At this Tribunal hearing he said that he had worked for only two weeks as an engineer.

12. The Applicant, when all of this was put to him, said that whilst it was that he may have told lies in the past, he was sorry for that;  he asked for forgiveness for telling those lies, and that he had done so in an attempt to try and make his case stronger.  He said to the Tribunal, on each of the occasions that these inconsistencies and/or lies were put to him, that he was now telling the truth and that the Tribunal could have faith in what he has actually told them.

13. He was asked about his work and he said that he had previously applied for another job but, in the interview for that job, he was asked about his religion and whether he prays and whether it was regularly or so on.  He said that he did not get that job because he believed that his answers about his religion caused him to not get the job. 

14. He said that there are two stages of interviews: there is firstly a religious interview and then the second interview is based upon his qualifications; he said that he did not get through the first stage.  The Tribunal put to him that he may not have been invited to the second stage because of a lack of experience and he said that he did have sufficient experience to warrant getting to the second interview if his religious interview was successful.

15. He said that all employees are under surveillance by Herasat, which is the agency that monitors religious adherence.  The Tribunal put to him that his concerns about surveillance may be true for government employees, but they are less so for large-scale companies, and there should be no concerns for small companies.  The Applicant said that the government obliges private companies to have Herasat on site with a mullah in charge.

16. He agreed that small companies do not have mullahs, but he said that he cannot work in a small shop because he did engineering.  He said that all shops have to close during prayer time and people go to pray. 

17. The Tribunal put to him the information from the World Value Survey, which found that nearly a quarter of Iranians never attend religious services, and another 23 per cent only attend on holy days.

18. The Applicant responded to that information by saying that they have to go and pray.  The Tribunal asked him to tell the Tribunal how it is, and now how it should be. The Applicant then gave an example of a school.  The Tribunal explained to the applicant that school and military service are different circumstances to a work environment.  The Applicant said that if he wanted to work in a place where he would not be required to go to a mosque, then he would be missing out on a number of opportunities.

19. The Tribunal spoke then at length as to his belief in Christianity, and of the persons who he had encountered in his Christian faith journey.  A witness - a person called Pastor Rick - of the Baptist church that the Applicant attends, came to the Tribunal and gave evidence. 

20. The Tribunal then considered all of the claims.  The Tribunal noted that the Applicant had engaged with the Australian government on a number of occasions, beginning with the entry interview.  He then submitted a protection visa application; he appeared before an earlier constituted Tribunal.  At each of these stages the Tribunal noted that he had given evidence, and through this period the Applicant had maintained consistent claims about why he fled Iran.

21. The Tribunal noted that the pre-hearing submissions from the Applicant’s representative were that the Applicant had misled the Australian government by embellishing his claims to include those matters I have earlier touched upon.  The Tribunal concluded that they did not consider that his previous claims, that he had been somewhat blacklisted, were now going to be relied upon.

22. The Tribunal noted that the entirety of the applicant's claims now rest on his actions in Australia, and, in particular, the conversion to Christianity.  The Tribunal also said that what the applicant has done up till the time of this Tribunal hearing contributed to a perception that he has a problem with telling the truth, and will amend his story to achieve his desired visa outcome.

23. The Tribunal said that they had to consider whether the Applicant’s conversion was a conversion on paper only, or whether he has had a genuine spiritual conversion.  The Tribunal accepted that the Applicant labels himself as a Christian, and has accepted that he has converted to Christianity through a baptism process, but did not find that it was a conversion that shaped the Applicant’s decisions and actions, and was not, therefore, a genuine Christian conversion.

24. The Tribunal said that they found that the Applicant, if he did not have the incentive of obtaining a visa, would not be involved in Christianity; if he were free from fear in Iran, he would not seek out a Christian church to participate in Mass.

25. Notwithstanding that the Tribunal did not accept that the Applicant’s conversion was actually a genuine one, it did assess the claims on this basis; that there was quite a deal of publicly-available evidence of the Applicant’s conversion, and this may be problematic for the Applicant if he returned to Iran, notwithstanding that the Tribunal was not satisfied that there was a true conversion to Christianity.

26. The Tribunal also looked at what would happen to the Applicant only on the basis that he would be a voluntary returnee, and that is because it is doubtful that Iran would accept the Applicant if it were that he did not return voluntarily.  The Tribunal relied upon a great deal of country information.  That country information was that many people have left Iran, certainly since the 1979 revolution, and that they live and work overseas for economic reasons, but then return to Iran.

27. The country information was that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside of Iran, including in relation to protection claims; this included posting social media comments critical of the government that is because the heavy Internet filtering means most Iranians would never see such posts or converting to Christianity, or engaging in LGBTI activities. 

28. When this was put to the Applicant, he responded by saying that that was about people who can hide their beliefs, but he cannot hide his belief, and he wants to be among people who believe in Jesus Christ with all their heart. 

29. The Tribunal preferred the evidence of the country information and noted that, were the Applicant to return voluntarily, he would not be questioned at the airport and he would not be asked whether he has converted, and the authorities would not know of his activities in Australia.  Because of this, the Tribunal found that the Applicant does not face a real chance of serious harm, or a real risk of significant harm, for reasons of being a failed asylum seeker returning to Iran.

30. With regard to the conversion to Christianity, having regard to all of the country information, the Tribunal found that none of that would lead to the Applicant facing a real chance of serious harm or a real risk of significant harm.  The Tribunal then looked at other claims; that is that the Applicant was critical of Shia Islam while he was in Iran, and what the Applicant had said about losing employment, or not getting employment, because of his non-adherence to the Islamic religion.

31. The Tribunal said that the Applicant would be able to find employment such that he would be able to subsist and not face a real chance of serious harm or a real risk of significant harm.  The Tribunal looked at the situation of the Applicant’s brother and found that there was no reasonable chance of serious harm or a risk of significant harm because of the brother’s situation.

32. For those reasons the Tribunal was satisfied the Applicant did not satisfy the refugee criteria, nor did he satisfy the complementary criteria.  For those reasons the Tribunal then affirmed the decision not to grant the Applicant a protection visa.

33. The ground of application has two aspects which are a further and alternative aspect.  The grounds are that:

    1.The Administrative Appeals Tribunal (Tribunal) erred by misconstruing or misapplying the test under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) or by failing to ask itself the right questions.

    2.Further or alternatively, the Tribunal erred by failing to consider the Department’s ‘Complementary Protection Guidelines’ (CP Guidelines), which it was required to consider pursuant to s 499 of the Act and Direction No. 84, specifically, the part of the CP Guidelines which stated that: ‘A measure that does not involve physical ill-treatment but lowers a person in rank, position, reputation or character may also amount to degrading treatment … provided it is of a minimum level of severity, thereby interfering with human dignity’.

34. To understand these grounds, it is imperative that one looks at paragraph 72 and 73 of the reasons.  I will read them into the record;

    72. The applicant claims that in the past his lack of commitment to Islam led to him losing his employment and that he feared at the time that he would not be able to secure employment if he did not feign adherence to Shia Islam. At the hearing we discussed the prevalence of the government’s monitoring of employee adherence to Islam and that it is for government employment and large private companies but not for small businesses. The applicant agreed but added that his training was engineering and that he couldn’t work in a small business.

    73. While I acknowledge that the applicant may not be able to find work as an engineer, there is no claim and no evidence before me that suggests he would be unable to find work. The applicant acknowledged this by stating at the hearing that if he wanted to work in a place which doesn’t require him to go to a mosque then he’d be missing out on a number of opportunities. I find that the applicant missing out on a number of career or employment opportunities does not amount to serious or significant harm. I find that the applicant will into the reasonably foreseeable future be able to find employment such that he would be able to subsist and as such not face a real chance of serious harm or a real risk of significant harm.

35. The thrust of the submissions of the Applicant are that the Tribunal has looked at what it must do pursuant to the refugee criteria, and the complementary criteria, at the same time, and not had sufficient regard to the differences.  The final sentence of paragraph 73, it is submitted to me, is an illustration of that point.  The Tribunal speaks of the Applicant not facing a real chance of serious harm or a real risk of significant harm. 

36. As most persons who practise in the migration area realise, the term “a real chance of serious harm” is the language that is used when talking of the refugee criteria; “serious harm” is defined under the Act. The phrase “a real risk of significant harm” is wording that is germane to the complementary protection criteria, and “significant harm” is also defined. 

37. There is great overlap between what “serious harm” is and what is “significant harm”, though there are differences.  In the definition of “serious harm”, for example, there is reference to the ability for a person to subsist. When one looks at “significant harm”, one also sees an aspect that a person cannot be subject to degrading treatment or punishment. 

38. Those two aspects, which I have just pointed out, are peculiar only to those two areas and not to the other area.  For this reason, the fact that the Tribunal has talked about facing a real chance of serious harm, or a real risk of significant harm, in the same sentence, might give someone the impression that the Tribunal has conflated what it is that they are to do and simply looked at the areas of similarity without looking at each particular aspect of serious harm and each particular aspect of significant harm.

39. In the sentence that I have referred to, the Tribunal says:

    …I find that the applicant will, into the reasonably foreseeable future, be able to find employment such that he would be able to subsist, and as such not face a real chance of serious harm or a real risk of significant harm. 

40. As the reference to the person being able to subsist is something that one must look at in looking at whether there is a real chance of serious harm, it could be said that the Tribunal has simply concentrated on the matters of serious harm and have not looked at the matters of significant harm. 

41. This is important, because if it is that the Tribunal has not looked at significant harm, it would not have looked at whether the Applicant would be subjected to degrading treatment or punishment. 

42. In this case, the Applicant says that there is a claim that has been made out on the evidence, and that is that if the Applicant - who had been trained as an engineer - were precluded from working as an engineer because he would not adhere to Islamic religious tradition, then the fact that he would be working at some form of menial or lower-grade job, could constitute degrading treatment or punishment.

43. The Applicant says that that claim has been made on the evidence and it has not been dealt with by the Tribunal; part of why it has not been dealt with by the Tribunal is that the Tribunal has conflated the matters of serious harm and significant harm.  As further argument to that, the Applicant says that the PAM3 guidelines mandate that the Tribunal must consider those sorts of matters when considering the claims and that this was ignored by this Tribunal.

44. In assessing those grounds, it is useful to revisit the way in which the Tribunal has set out its reasons.  The Tribunal has, at the beginning of its reasons, set out, under the heading “Relevant Law”, both the refugee criterion and then the complementary protection criterion.  With regard to the complementary protection criterion, at paragraph 18 the Tribunal has said this:

    18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

1. Because the Tribunal has set out both the refugee criteria and the complementary protection criteria, and has enunciated the principles with regard to both, before it is that the Tribunal has embarked upon its assessment of the claims, it seems to me that it is proper for the Tribunal to assess each of the claims in the way that it has, because it has already acknowledged both the similarities and the differences in the complementary protection criteria and the refugee criteria.

2. The Tribunal has also said at paragraph 20:

   20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

3. It would seem then that this statement, coming immediately after the Tribunal has spoken of the complementary protection criteria and the refugee criteria, illustrates that the Tribunal was fully cognisant of what those guidelines mandated the Tribunal to do.  It is after, as I say, setting out all of that, that the Tribunal has made their consideration of the claims. 

4. The matters referred to in paragraphs 72 and 73 are the claim that the Applicant would not be able to secure employment if he did not feign adherence to Shia Islam.  As to how this arose, I have been helpfully provided with a transcript of the proceedings that is annexed to an affidavit of the paralegal to the solicitor who was instructing counsel for the Applicant.  In that transcript there is - for all intents and purposes - the following exchange.  I will talk of the exchange rather than going through each of the lines of the interpreter and the applicant, and simply relay it as question and answer (though if these reasons are asked to be reduced to writing, I will have the transcript reproduced properly).

   MEMBER: So, this is important because not being able to find subsistence or the ability to subsist for reasons or religions could be something that could amount to persecutions so I just want you to discuss this a little more. 

   INTERPRETER Yeah, what you're saying is actually correct.

   MEMBER: Is it true, in Iran, that smaller companies, middle sized of small sized companies don't have a Harasad office?

   INTERPRETER: All the companies are obliged to have a section to control the employees and that is a law from the government, and all of this set a [inaudible] in Iran

   INTERPRETER: So no one can just open a small factory and do whatever they want because they are part of Iran. They have to follow. 

   MEMBER: Let me go back t to what I just said.  The shop that sells milk surely doesn't have a Mullah in it.

   INTERPRETER: Well, to that small extent, no there is no mullah, but just because of the job that I was going to do, will I be able to work in a small shop? 

   INTERPRETER: I’ll just give you an example in Iran, at lunchtime…

   INTERPRETER: People will have to close all the shops and go to the mosque.

   INTERPRETER: So, my milk shop will have to close and go to the mosque. 

   MEMBER: Are you saying that all citizens of Iran go to the mosque?

   INTERPRETER: Not all citizens go to the mosque, but people who are in public eyes; the public have to go to the mosque. 

   MEMBER: The information that I have, and I will read it to you; “a quarter of Iranians never attend religious services, and another 23 per cent only attend in holidays” So, we are talking about nearly half of Iranians don’t.

   INTERPRETER: I will give you examples.  All Iranians have to go to the mosque [inaudible]

   MEMBER: Well, I’m asking what the situation is actually like.  The information I have suggests that not even half of Iranians don’t even go to mosque every Friday, not even everyday.

   INTERPRETER: When you start going to school…

   INTERPRETER: They have to finish classes at lunchtime and everyone has to go to the mosque because every school has a mosque.

   MEMBER: I understand school, and I understand military service. I’m talking about general employment.

   INTERPRETER: If I wanna work in a place that I don’t want to go to the mosque for, I will be missing out on working in a number of places…

   INTERPRETER: Even if I don’t have to work [inaudible] one per cent of the country.

   INTERPRETER: Based on the law 18th of human rights…

   INTERPRETER: I’m not a citizen of the country.

   MEMBER: Just to be clear on what level of harm we are considering here. You not getting the job that you would like to have or you are not getting a job that is aligned with your degree is not the level of harm we are talking about.  The level of harm is that you cannot subsist, that you cannot live, because you cannot find a job.  And what you have explained to me so far seems that you could but you just have to do something below what you have been trained for.

   INTERPRETER: Yes, there is such a thing. But I have to say, I have lost a number of services from my country because of my religious beliefs.  And if we go back to that milk shop…

   INTERPRETER: This is not only limited to employment

   INTERPRETER: of Islam is forced upon people, people actually become disenchanted with the whole thing. 

   INTERPRETER: What I have made an example, in terms of employment, is just a small example in -

   INTERPRETER: [inaudible] in society…

   INTERPRETER: [inaudible] or anything else…

   INTERPRETER: because [inaudible] freedom or the freedom of speech

   INTERPRETER: [inaudible] for many years and lose your life.

5. The Applicant claims that, on that passage, which is properly and fairly summarised in paragraph 72 and 73, there has been a claim that arises.  That claim is that the Applicant, being skilled and qualified as an engineer, would suffer degrading treatment or punishment if it is that he were forced to work in a lesser or menial job because of his reluctance to feign adherence to religious observances.

6. I am not convinced that this is a claim that has truly arisen.  As the authorities say - particularly NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, the claim must clearly emerge, or must be squarely raised on the materials before the decision-maker. Such a claim, to my mind, has not been squarely raised on that material. The material shows that the Applicant is concerned about his ability to actually work. He has not expressed at all that he feels that he would be in any way humiliated, degraded or have less self-worth because he would not be able to work in a position to which he would be entitled to work because of his qualifications.

7. It seems to me that his claim stopped at his assertion that if he were to have to work at a job where he did not have to observe the tenants of Islam, he would be missing out on opportunities.  It is another leap altogether to somehow say that such a statement is actually a claim that, in working in that other job, such would be degrading treatment or punishment.

8. This becomes even more stark when one considers those guidelines, that the Tribunal has had regard to, define degrading treatment or punishment in this way:  that is “a measure that does not involve physical ill-treatment - but lowers a person in rank, position, reputation or character - may also constitute degrading treatment, but again provided it is of a minimal level of severity thereby interfering with human dignity”.  That definition is tempered by the direction that “the assessment of this minimum depends on all the circumstances of the case such as the nature and context of the treatment, its duration, its physical or mental effects, and in some instances the sex, age, state of health, or other status of the victim”.

9. Having regard to that definition, I cannot see how such a claim has been made out on these materials.  Having come to that conclusion, it means that there has been no jurisdictional error on the part of the Tribunal. 

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       11 December 2020