DOU16 v Minister for Immigration

[2019] FCCA 1367

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOU16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1367

Catchwords:
MIGRATION – Iranian nationals – military service – certificate of military service – whether the Tribunal failed to properly consider whether the Applicant’s bribe would be discovered – whether the Tribunal failed to consider the Applicant’s claims – whether the Tribunal’s reasons were illogical or irrational – whether the Tribunal failed to apply the real chance test – whether the Tribunal failed to consider the Third Applicant would be persecuted due to his lack of religion.

Legislation:

Migration Act 1958 (Cth), ss.91R(3), 476.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] 93 FCR 220.

First Applicant: DOU16

Second Applicant: DOV16

Third Applicant: DOW16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2546 of 2016

Judgment of: Judge McNab

Hearing date: 6 March 2019

Date of Last Submission: 6 March 2019

Delivered at: Melbourne

Delivered on: 23 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Kenneally

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Minson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 24 November 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2546 of 2016

DOU16

First Applicant

DOV16

Second Applicant

DOW16

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant filed an Application to this Court on 24 November 2016. By this Application the first applicant seeks judicial review of the Administrative Appeals Tribunal (‘the Tribunal’) decision of 10 November 2016 pursuant to s 476 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal set aside the decision of a delegate of the first respondent (‘Delegate’). The Tribunal substituted the Delegate’s refusal of a Protection (Class XA) visa with a decision to refuse the Temporary Protection (Class XD) visa.[1]

   [1] Court book 235 (‘CB’).

2. The applicants are a family, with the first applicant being the mother, the second applicant being the father, and the third applicant being their son (‘the applicants’).[2]

   [2] Affidavit sworn by DOU16 on 23 November 2016 [1].

Procedural matters

1. At the commencement of the hearing the Court granted leave for:

   a)the applicants to no longer rely on ground 3; and

   b)the First Respondent’s name be changed to the Minister for Home Affairs (‘the Minister’).

Background

1. The applicants are asylum seekers from Iran.[3] They travelled to Australia by boat and arrived on 4 May 2013.[4]

   [3] CB 15, 32, 41.

   [4] CB 16.

2. On 20 August 2013 the applicants lodged an Application for a Protection (Class XA) visa. The second applicant was the only applicant to make an individual protection claim,[5] with the first and third applicant answering “no” to the question of “Do you have your own claims for protection?”.[6]

   [5] CB 10.

   [6] CB 10.

3. The second applicant was invited to attend an interview with the Delegate by letter dated 12 November 2014.[7]

   [7] CB 107

4. On 27 January 2015 the Delegate refused to grant the applicant’s Protection (Class XA) visa.[8]

   [8] CB 156

5. On 6 February 2015 the Delegate’s decision was appealed (by the second applicant) to the Refugee Review Tribunal.

6. On 5 October 2016 the applicants were invited to attend a hearing before the Tribunal on 13 September 2016.[9] The second applicant appeared at this hearing with his migration agent,[10] with the first applicant being interviewed separately to the second applicant.[11]

   [9] CB 198.

   [10] CB 222

   [11] CB 241 [34].

7. The applicants were notified on 10 November 2016 that their application was unsuccessful.[12] The applicants are informed that:

   The Tribunal sets aside the decision to refuse to grant the application a Protection (Class XA) visa and substitutes a decision to refuse to grant the application a Protection (Class XD) visa.

   [12] CB 235.

8. On 24 November 2016 the first applicant filed an Application seeking judicial review of the Tribunal’s decision.

9. On 6 March 2019 the matter was heard with the applicant’s being represented by Counsel.

Claims of the Applicant and the Tribunal’s Decision

1. The second applicant made his application on behalf of his wife and son. Accordingly, his claims are the focus of the appeal.

2. At [2] of the Applicant’s Contentions of Fact and Law the applicant’s counsel provides a brief summary of the applicant’s claims:

   The applicant claimed to have fled Iran due to the harm he suffered as a drug addict. He claimed to fear harm upon return to Iran due to having departed illegally and claimed asylum, converted to Christianity, having not completed military service and having obtained a passport through fraudulent means.

The second applicant’s drug use and police notoriety

1. The Tribunal accepted many of the second applicant’s claims regarding his drug use and whether he was known to the police:

   a)at [25] of the decision record the Tribunal accepted that the second applicant had been a former drug addict while in Iran;

   b)at [26] of the decision record the Tribunal accepted that the second applicant was known to police in Iran for reasons of drug possession;

   c)at [27] of the decision record the Tribunal accepted the narrative provided by the second applicant that he was arrested for installing satellite dishes (as these are illegal in Iran) but paid a fine; and

   d)at [28] of the decision record the Tribunal accepted that the second applicant had not been able to rehabilitate himself while in Iran, but has been able to stay drug free in Australia and that if returned to Iran he would stay drug free.

2. Despite accepting many of the second applicant’s factual assertions, the Tribunal was not satisfied that the second applicant or his family faced any harm relating to his drug use: decision record [40]. The Tribunal noted that the second applicant had already served his sentences for drug use and there were no outstanding warrants: decision record [40].

3. The Tribunal did not turn its mind to the second applicant relapsing and using drugs again as the second applicant had represented to the Tribunal he would not to re-use drugs if returned to Iran: decision record [39].

Conversion to Christianity

1. The Tribunal did not accept the second applicant’s evidence that he and his family had converted to Christianity. The second applicant claimed to be going to ‘Connect Church’ every Sunday before moving and attending ‘Enjoy Church’.[13]

   [13] CB 240 [31].

2. The second applicant claimed to attend Bible Study every Monday, but when contradicted by his wife’s evidence, claimed to be confused about the days.[14]

   [14] CB 240 [31].

3. Whilst accepting that the second applicant and his wife attend ‘Enjoy Church’ the Tribunal did not accept they had previously attended ‘Connect Church’ or “participated in any activities associated with that Church”.[15] The Tribunal requested that the second applicant provide a letter from ‘Connect Church’ confirming his attendance, but none was received.[16] The Tribunal was also concerned that the second applicant began attending church around the time he was served with a request to attend this hearing.[17] The Tribunal concluded at [33] of the decision record:

   Without evidence of earlier engagement with Christianity and noting that his apparent interest coincided with an invitation to attend a hearing at the Tribunal alongside the applicant’s limited explanation of his spiritual journey and sparse understanding of his faith for someone who claims to have been attending church and Bible study classes every week for several months leads me to conclude that his embrace of Christianity is superficial and contrived solely for the purposes of furthering his refugee claims.

   [15] CB 240 [31].

   [16] CB 241 [33].

   [17] CB 24 [33].

4. Having found the second applicant’s conversion to Christianity to be contrived solely for the purpose of furthering their refugee claim, the Tribunal disregarded the conduct of the applicant in Australia pursuant to s 91R(3) of the Act: decision record [35].

5. However, the Tribunal noted that s 91R(3) does not apply to Complementary Protection. As such, the Tribunal considered whether the applicant’s faced a real risk of significant harm should they return to Iran. As the Tribunal had found their conversion to be contrived, the Tribunal reasoned that they would not practice Christianity in Iran and therefore not face harm: decision record [37]. Moreover, it held that there is no evidence that Iran monitors Persian language Churches in Australia and Iranian officials would not reason that, by virtue of their time in Australia, the applicants had converted to Christianity: decision record [38].

Military Service

1. The second applicant had two claims with respect to his military service.

2. The first claim was that he may be viewed as a spy by Iranian authorities: decision record [41]. The Tribunal did not accept this submission, noting that his time in the army was 17 years ago, he was not at a senior level and that he had received an exit permit from the Government and was allowed to leave the country (which indicates the Iranian government did not deem him to be of concern): decision record [41].

3. The second claim was that, because he obtained a completion of military service certificate by bribing officials, the second applicant feared harm: decision record [43].[18] The Tribunal found the risk of harm for having obtained his certificate by bribery as low for two reasons.

   [18] See also second applicant’s statutory declaration dated 13 August 2013 [21] and [23].

4. The first reason is that the chance of serious harm or risk of significant harm is low because the underlying document had been amended. The Tribunal explained at [43] of the decision record:

   Considering that the applicant claims the certificate was real and that it was obtained through the department in which he served I find that the chance that this certificate was obtained without amending the records to be unlikely and as such conclude that the chance of serious harm or risk of significant harm for reasons related to having bribed officials to acquire a military service certificate is present but remote.

5. The second reason is that, should he be discovered by other means (such as interaction with people in the community), the punishment would not be either serious or significant harm. At [44] of the decision record, the Tribunal notes that his punishment (if he is discovered) for failing to complete his military service would be to pay a fine which varies on the basis of his level of education. As his level of education is low, and he has relatives in well remunerated roles, the possible harm is not serious or significant.

Claims related to the son

1. Whilst the son did not make a claim himself, the Tribunal considered his risk from the school system in Iran: decision record [45]-[46]. The Tribunal ultimately found that corporal punishment is not common in Iranian schools and the child “does not face a real chance of serious harm or a real risk of significant harm as a result of excessive chastisement delivered by school authorities”: decision record [48]

Claims based upon having sought asylum

1. The Tribunal questioned the first and second applicant as to whether they were involved in any political activities in Iran or Australia. Both answered that they were not involved in political activities: decision record [51].

2. Relying on country information, the Tribunal noted that the applicants may be held for a few days upon arrival while the police determine whether the parties had been involved in any political activities: decision record [51].

3. The Tribunal concluded at [52] of the decision record:

   as the applicants would not be considered to have engaged with political activism I find that they do not face a real chance of serious harm for reasons of being members of a particular social group in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of the applicants returning.

4. Country information also informed the Tribunal that those “impugned [with] Western ideals and political views” will not be harassed upon their return unless they had committed a crime: decision record [52].

Grounds of review

1. The first applicant amended her original Application (filed 24 November 2016) twice. This resulted in the Amended Application filed 13 December 2018 and the Further Amended Application filed on 28 February 2019.

2. The grounds of review set out in the Further Amended Application filed are as follows:

   1. The Tribunal failed to consider the second applicant’s claims or an integer of the second applicant’s claim to face a real chance of serious or real risk of significant harm for reason of having paid a bribe to obtain a statement that he had completed military service.

   2. The Tribunal’s finding that the second applicant only faced a remote chance of serious of significant harm for reason of paying a bribe to obtain the certificate was irrational and illogical.

   3. [withdrawn by the applicants]

   4. The Tribunal failed to consider if the applicant faced a real chance of serious harm or a real risk of significant harm in the foreseeable future for reason of his payment of a bribe to obtain the certificate.

   5. The Tribunal failed to consider a claim raised on behalf of the third applicant that he would face serious or significant harm if compelled to practice Islam.

   As ground 3 was abandoned it is not extracted. I have further omitted the particulars of the above grounds of review for reasons of brevity.

3. It is clear that there are two distinct aspects of the Applicant’s claim. I quote from [4] of the Applicant’s Contentions of Fact and Law:

   a. The Tribunal failed to properly consider if the applicant’s payment of a bribe to gain a certificate that he had completed military service (the certificate) would also be discovered (Grounds 1-4)

   b. The Tribunal failed to consider the claims put on behalf of the third applicant that he would be persecuted due to his lack of religion (Grounds 5).

   I will use this delineation to organise the following section.

Submissions

1. Both parties provided detailed submissions and relied upon the Transcript of the interview before the Tribunal (which was tendered into evidence).

Applicant’s submissions

Military certificate

Ground 1 – Tribunal failed to consider the claim

1. The applicants assert that the Tribunal only considered if the second applicant’s bribe could be discovered through the Navy records. The finding at [44] of the Tribunal’s decision record, allegedly, failed to make a finding on the likelihood of being found out by other means.[19]

Ground 2 – Tribunal’s reasons were illogical and/or irrational

[19] Applicant’s submissions [12].

1. The applicants assert that the Tribunal’s reasoning was illogical and/or irrational. The applicants contends at [18] of the applicant’s submissions that:

   if the applicant’s failure to complete military service were discovered, then it follows the authorities may identify that the original records with the navy had been altered. It was illogical for the Tribunal to find the applicant’s risk of harm for paying a bribe was remote without considering the possibility his failure to have completed military service would be discovered by other means.

Ground 4 – Tribunal failed to apply the real chance test

1. The applicants submit that the Tribunal failed to apply the ‘real chance’ test and that the Tribunal’s finding that it was “unlikely” that the Iranian navy records had not been amended was a tentative (or not firm) finding.[20]

   [20] Applicant’s submissions [25].

2. The applicants make this argument on the following inferences:

   a)that the Tribunal cites no country information that modifying the underlying documents is standard practice;

   b)the applicant had given no first hand evidence regarding how the certificate may be made;

   c)the Tribunal’s use of the word “unlikely” rather than using a definitive term is indicative of a tentative, rather than firm, finding.[21]

   [21] Applicant’s submissions [25].

3. As the finding is tentative, the Tribunal was obligated to consider whether the certificate could have been obtained without the records being amended. As the Tribunal did not do this, the applicants assert that the Tribunal failed to apply the “real chance” test correctly.

Religious belief

Ground 5 – failure to consider third applicant’s claims

1. The second applicant’s migration agent made a claim during final submissions on behalf of the son that the son would suffer harm because he did not have an Islamic upbringing. The migration agent submitted to the Tribunal that (transcript page 55, lines 36-37):

   I submit that [the son] would suffer some form of harm because that religion would be imposed on him whereas he has not chosen it freely.

2. The applicant submits that the Tribunal did not consider this aspect of the claim, noting that the dismissal of having converted to Christianity does not address this point.

Respondent’s submissions

Military certificate

Ground 1 – tribunal failed to consider the claim

1. Counsel for the respondent submits the Tribunal’s failure to consider “each and every other way in which the second applicant’s having paid a bribe could possibly come to light is not indicative of error”.[22]

   [22] Respondent’s submissions [22]

2. The respondent contends that we may infer that the Tribunal did not consider it necessary to consider each and every other way the bribe may come out as the chance this would occur was sufficiently low as to not warrant mention.[23]

   [23] Respondent’s submissions [22]

3. The respondent further relies on the Tribunal being an administrative body rather than a court, and that the Tribunal’s reasons should not be scrutinised in a manner attuned to error.

Ground 2 – Tribunal’s reasons were illogical and/or irrational

1. The respondent relies on his reasoning in ground 1 to substantiate a claim that “it cannot be inferred on a fair reading of the Tribunal’s reasons that it did not consider” the possibility the second applicant’s failure to complete his military service could be discovered by other means.

Ground 4 – Tribunal failed to apply the real chance test

1. The respondent challenges the applicant’s submission that the word “unlikely” was not a firm finding, contending that the context indicates that the finding was firm.

2. The respondent relies on [26]-[27] (being paragraphs that respond to Ground 3).[24] These paragraphs make the argument that the Tribunal’s finding that the underlying documents was changed was a sound one – as it was put forward by both the migration agent and the second applicant.[25] As a firm conclusion of fact, the Tribunal was not under ‘real doubt’ as to whether its finding was correct.

   [24] Respondent’s submissions [29].

   [25] Respondent’s submissions [26] and [27].

Religious belief

Ground 5 – failure to consider third applicant’s claims

1. The respondent denies the applicant’s submission with two arguments.

2. The first reason is that the context of the migration agent’s claims was “clearly contingent on the Tribunal accepting that the first and second applicants were Christian”.[26] The contingency, it is argued, exists in the context of the third applicant being a child of Christian parents who are unlikely to turn back to Islam.[27] The Tribunal, as noted, did not find the applicants to be true Christians.

   [26] Respondent’s submissions [32].

   [27] Respondent’s submissions [32].

3. The second reason, put in the alternative, was that the Tribunal would only be in error if it had failed to consider “‘a substantial and clearly articulated argument’ supported by probative material”.[28] The respondent puts it that the argument was neither substantial nor clearly articulated and was not supported by evidence. The respondent put it that (with citations omitted):

   the suggestion that the third applicant had “never had an Islam [sic] upbringing”, that his parents “never practiced Islam”, that he would not “turn back” to Islam and that he would suffer harm was contrary to the first applicant’s evidence that the third applicant was born a Muslim, that [the first applicant] “used to pray” in Iran, that the third applicant had not converted to Christianity, that children under 14 years of age are not required to pray and that, if the third applicant returned to Iran, no problem would arise from the fact that he didn’t know how to pray.

Consideration

Military certificate

[28] Respondent’s submissions [33].

Ground 1 – the Tribunal failed to consider the claim

1. There is no failure on the part of the Tribunal to consider the claim of the second applicant to fear harm on account of having obtained a completion of military service certificate by bribing officials.

2. The Tribunal at [43] of the decision record makes it plain that the Tribunal did consider this claim, particularly that the second applicant had obtained a military service certificate by bribing officials. The Tribunal summarises the second applicant's concerns at [43]:

   He is concerned that upon return it would become apparent were he subjected to a more stringent interview that he had not completed his service and that as a result he obtained his certificate illegally.

3. This passage summarises matters that were put to the Tribunal by the second applicant's representative during interview: Transcript, page 24 lines 20-30. The transcript indicates that the Tribunal understood the claims of the second applicant, summarised them, and ultimately concluded that although the chance or risk of significant harm for having bribed officials is present, such harm was remote: decision record [43].

4. The Tribunal explained its reasoning for this conclusion at [43]. The Tribunal noted that, although the certificate was real and that it was obtained through the Department of Navy (‘the Department’) which the second applicant served, it was unlikely that the certificate had been obtained without amending the records maintained by the Department. The Tribunal then reasoned that because the records had been amended, the chance of serious harm or risk of significant harm was held to be present but remote. This decision was open to the Tribunal.

5. On reading the transcript of the hearing, the Tribunal did engage with the second applicant and his representative in order to understand the arguments being put in relation to the certificate. The Tribunal then made a decision having regard to that information. Consequently, I am of the view there is no failure on the part of the Tribunal to engage with the case as put by the applicant or to consider his other claims.

Ground 2 – the Tribunal’s reasons were illogical and/or irrational

1. The applicant's argument appears to be that the Tribunal ought to have considered that it may be discovered that the second applicant had paid a bribe to obtain a false certificate by means other than through the record system.

2. However, the Tribunal’s decision is neither irrational nor illogical. It is clear the Tribunal considered whether the applicant's failure to complete his military service could be identified by means other than through the record system "such as random interaction with military personnel who knew him personally": decision record [44].

3. In my view, the fact the Tribunal did not canvass all alternative ways in which the bribe might be discovered is not indicative of error. The Tribunal was given a positive account of how the false certificate had been obtained and was therefore entitled to find that the chance of discovery that the certificate had been obtained by paying a bribe was remote. The Tribunal was not required to consider every possible contention that could have been made: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46].

4. In my view the Tribunal has considered the claims of the applicant and there is no irrationality in the decision-making process in relation to the question of whether the applicant's failure to complete military service would be discovered by another means.

Ground 3 – irrational finding regarding alternation of navy records

1. As noted previously, this ground was withdrawn at the start of the hearing.

Ground 4 – the Tribunal failed to apply the real chance test

1. The applicants allege that the Tribunal failed to apply the ‘real chance’ test correctly. The applicants claim that because of the Tribunal’s finding that it was unlikely that the Department records had not been amended, the Tribunal must consider the possibility that the finding is wrong in order to assess if there is a ‘real chance’ of harm in the foreseeable future.

2. At [43] the Tribunal held:

   Considering that the applicant claims the certificate was real and that it was obtained through the department in which he served I find that the chance that this certificate was obtained without amending the records to be unlikely and as such conclude that the chance of serious harm or risk of significant harm for reasons related to having bribed officials to acquire a military service certificate is present but remote.

3. The applicants referred the court to Minister for Immigration and Multicultural Affairs v Rajalingam [1999] 93 FCR 220 at [62] and [63]:

   [62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal [(‘the RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

   [63] Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang [(1996) 185 CLR 9] and Guo [(1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

4. Importantly, at [67], the court stated:

   In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

5. The applicants put it that the Tribunal needed to consider whether the second applicant’s certificate may have been obtained without the records being amended: applicants’ submission [26].

6. In my view, the Tribunal was not required to consider claims alternative to those which the second applicant himself had put. I accept the submission of the respondent that the Tribunal accepted the second applicant's own claims in relation to how he had obtained the certificate and on that basis, it cannot be said there was real doubt expressed by the Tribunal as to whether its finding was correct. The Tribunal has considered the second applicant's claims and applied the real chance test appropriately.

Religious belief

Ground 5 – failure to consider third applicant’s claims

1. This ground is to the effect that the Tribunal failed to consider a claim raised on behalf of the third applicant that he would face serious or significant harm if compelled to practice Islam on return to Iran. A submission was made to the Tribunal that the third applicant would be compelled to practice Islam if he returned to Iran and that this would constitute serious or significant harm because the third applicant is the son of Christian parents who do not practice Islam.

2. The Tribunal held that it did not accept that the parents had converted to Christianity. Given the Tribunal’s finding in relation to the parents, this argument falls away.

3. I note that the first applicant gave evidence that the third applicant was born a Muslim (transcript page 49, lines 42-43), that she, the first applicant, used to pray in Iran (transcript page 50, line 12), that the third applicant had not converted to Christianity and that children under 14 years of age in Iran are not required to pray and that if the third applicant returned to Iran no problem would arise from the fact that he did not know how to pray (transcript page 50, lines 34-37). Given this evidence, it was not necessary for the Tribunal to directly address a claim that the child may face harm because he did not know how to pray.

Conclusion

1. For these reasons none of the grounds of review are successful. Accordingly, orders are made dismissing the application.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 23 May 2019