DSV17 v Minister for Immigration

[2018] FCCA 1605

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1605

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Immigration Assessment Authority – whether Authority considered applicant’s claims to complementary protection cumulatively.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 5H(1), 36(2)(a), 36(2)(aa), 36(2A), 36(2A)(e)

Cases cited:

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

Applicant: DSV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 795 of 2017

Judgment of: Judge Jarrett

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Brisbane

Delivered on: 19 June 2018

REPRESENTATION

Counsel for the applicant: Mr Jones

Solicitors for the applicant: Stolar Law

Counsel for the First Respondent: Ms Forder

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 9 January, 2018 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 795 of 2017

DSV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran. He arrived in Australia by boat on 11 March, 2013. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival.  On 4 May, 2016 the applicant applied for a Temporary Protection (subclass 785) visa.  On 4 November, 2016 he withdrew that application and applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa.  On 3 February, 2016 a delegate of the first respondent refused the visa application.

2. Because the delegate’s decision was a fast track decision it was referred to the second respondent in accordance with s.473CA of the Act.

3. On 17 July, 2017 the second respondent affirmed the delegate’s decision not to grant the applicant a safe haven enterprise visa.

4. By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application remitted to the second respondent to be determined according to law. The applicant concedes that he is not a refugee for the purposes of s.5H(1) of the Act and consequently is not entitled to protection pursuant to s.36(2)(a) of the Act. His argument in this proceeding is directed to the second respondents conclusion concerning his claim to complementary protection pursuant to s.36(2)(aa) of the Act.

5. In summary, the applicant argues that the decision of the Second respondent is affected by jurisdictional error, as the decision failed to give due weight to the particular social grouping to which the applicant belongs.  In so doing, he argues, the Second respondent did not give due to weight to the “cumulative effect of the applicant’s social grouping upon his likely treatment when he is returned to his country of origin”.  By not giving due weight to this evidence, the Second respondent failed to take into account a relevant consideration, that is he was a member of a particular social grouping the government of his country of origin would what to interrogate.

6. The first respondent opposes the application.  The second respondent entered a submitting appearance.

7. The applicant is a citizen of the Islamic Republic of Iran, of Kurdish ethnicity and was raised in the Shia Muslim faith.  However, he says that he has rejected, and stopped practising, his Muslim faith. He says that he has been associating with apostates.

8. In his entry interview, his visa application, his visa application interview with the first respondent’s delegate and his agent’s written submissions, the applicant laid out a number of claims said to engage Australia’s protection obligations.  The applicant claimed that:

   a)when he was younger he faced problems from the Basij, who picked on him. On one occasion, he and a friend were standing on a soccer field, and the Basij accused them of taking drugs. The Basij detained him and his friend, took his motorbike, and verbally abused and hit him.  The Basij released him after a few hours;

   b)the Kurdish people in his area have been discriminated against in their religion for many years, and recently it had gotten worse;

   c)grazing areas used by Kurdish shepherds have been re-classified as military restricted zones. The re-zoning or repurposing of land deprive the Kurdish shepherds of their traditional land usage;

   d)his home was searched many times by the authorities for no reason. His home area was under strict monitoring because it was close to the Iran/Iraq border;

   e)the Iranian government started sending young Iranian men to Syria to fight in support of the Syrian government.  Some were paid, and others were forced to fight. He was worried that he might be forced to go to Syria to fight.  After his arrival in Australia, his brother told him that Sepah came to their home with a letter requesting that he go to Illam.  He knew that this was how others had been called to fight for Syria;

   f)he was strongly against the Iranian government because he believed that they were oppressive to the clergy.  He felt strongly for the Kurdish people and shared articles about Kurdish freedom on his Facebook page;

   g)the Government targets Kurds;

   h)he feared that he would be detained on arrival in Iran as a result of being a failed asylum seeker. He also has Christian friends in Australia and could be accused of being involved in anti-government activities.

9. In considering the applicant’s claims, the second respondent had regard to the information referred to it by the Secretary of the first respondent’s department.  I also referred to the country information which was before the delegate.  It formed the view that the information it considered did not corroborate the applicant’s claim that young Kurds from his region were being pressured or threatened to join the Iranian forces in Syria as a means to rid Iran of Kurdish youth.  It did not accept the applicant’s claims in this regard.

10. It also did not accept the claim that the applicant’s family were shown a letter by Sepah requesting him to attend their office as a means of pressuring him to join the forces in Syria or for any reason.  The second respondent expressly found that the applicant had embellished this claim to enhance his profile.  The second respondent did not accept that the applicant’s two brothers had left the area to avoid the problem.

11. However, the second respondent accepted that the applicant had a political opinion against the Iranian government, he felt strongly about the rights of the Kurdish people and that he had posted political material on his Facebook page since his arrival in Australia other than for the purpose of strengthening his claims for protection. 

12. As to the issues raised by the applicant’s Facebook activities, the applicant argues that the Second respondent placed little weight on the evidence of his protests on Facebook. What the second respondent said about the applicant’s Facebook activities was as follows (footnotes omitted):

    13.    During the protection visa interview he noted that he started posting political information on his Facebook page in late 2013 and in early 2014 but did not do so whilst he was in Iran as he did not have access to Facebook there. He claims that he posts information about executions of Kurdish activists and many things about Kurdish people and the former King of Iran. He also noted that he had deleted many of the old posts. His former representative provided the delegate with a number of screenshots of the applicant’s Facebook posts. They appear to be posts dated in 2014 and late 2015 with images with untranslated texts including images of the former Shah of Iran and a post about Azadi Television (a major opposition TV channel). In the delegate’s decision, she noted that a Farsi speaking colleague interpreted the posts which confirmed that some of the posts were in relation to the former Iranian Royal Family, Iranian artists and the bombing of Kurdish people by Iraq in 1988.

    14.    I accept that the applicant has a political opinion against the Iranian government and that he feels strongly about the rights of the Kurdish people and accept that he has posted political material on his Facebook page since his arrival in Australia otherwise than for the purpose of strengthening his claims for protection. Although he claims that he wants everyone to know about the suffering of the Kurdish people I am not satisfied he will speak openly or engage in other political activities against the Iranian government or in support of the rights of the Kurdish people on return to Iran as I am not satisfied that the few posts he has shared on his Facebook page is indicative of someone who intends to speak openly or engage in public political activities on return to Iran and there is no other evidence before me that he has voiced his political opinion in other ways. I am not satisfied the applicant will publicly voice his political opinion against the Iranian regime or in support of the rights of the Kurdish people, other than through his Facebook page, on return to Iran and due to lack of genuine interest and commitment rather than out of fear of persecution.

    15.    The applicant’s former representative provided reports to the delegate indicating that the Iranian regime’s Cyber Police are responsible for monitoring cyber activities and reports of the arrest of Iranian citizens for their Facebook posts. Journalists do not have to be particularly high-profile to be subject to adverse attention from authorities. For example, bloggers who only have a handful of readers have been arrested and imprisoned for their published work. The Australian Department of Foreign Affairs and Trade (DFAT) has assessed that the treatment of journalists and bloggers by the state is dependent on the prevailing political environment and individual personalities in security forces. The more high profile a journalist or blogger is, the more likely that they will become subject to adverse attention if the material they publish crosses red lines.

    16.    I am not satisfied, on the information that was before the delegate, that the applicant has such a profile that would attract the adverse attention of the Iranian authorities such that there is a real chance his Facebook page would be monitored by the Iranian authorities and that he would be targeted for his Facebook posts. I am also not satisfied that if he were to continue sharing such material on his Facebook page on return to Iran that he will be identified by the Iranian authorities and that there is a real chance he will be subjected to harm from the Iranian authorities. I am not satisfied the applicant’s political views have, or there is a real chance that they will, come to the attention of the Iranian authorities on his return to Iran.

    17.    I am not satisfied the applicant faces a real chance of harm on return to Iran on the basis of his political opinion and Facebook activity.

13. In those paragraphs, the second respondent exposes its reasoning whereby it reached its conclusion that the applicant did not face a real chance of harm on return to Iran on the basis of his political opinion and Facebook activity.

14. The second respondent considered the applicant’s religious opinion.  It noted that he claimed to have shared his views on Facebook, but had not provided evidence of this.  Moreover, the second respondent did not consider that the Facebook posts that the applicant had provided to the delegate was evidence of his religious views.  The second respondent was not satisfied on the evidence before it that the applicant was committed to publicly communicating his views on Islam.

15. The second respondent considered the applicant’s claim that he had apostate friends but found his evidence about those matters unconvincing:

    20.    I accept that the applicant’s maternal uncle is very religious and used to punish and hit him for not praying at school. He claims if he goes back to Iran his family, including his uncle could hand him over to the government because he is extremely religious and could use information such as the fact that he has Christian convert friends. He claims his family and sons have access to Facebook and they could tell his uncle about his Facebook posts and it is possible that they would do that. Although I accept that the applicant’s uncle is religious I found the applicant’s evidence in regards to his fear of harm from his family and his uncle to be unconvincing. As noted above the applicant has not provided evidence of his Facebook posts promoting his religious opinion or how his family would know that he has friends who converted to Christianity. Even if he had posted such information on Facebook, the applicant has not claimed to have received any threats from his relatives in Iran as a result of this. He has also claimed that although his family are practising Muslims he was never forced to practise Islam at home indicating that his immediate family did not impose their faith on him. Although his uncle may have had the authority to punish him as his teacher in school for not praying, I am not satisfied on the evidence before me that there is a real chance his uncle will harm the applicant, who is now an independent adult, on the basis that he no longer believes in Islam. I am also not satisfied, on the evidence before me, that there is a real chance the applicant’s other family members will harm him for the same reason on return to Iran.

16. The second respondent was also not satisfied that the applicant’s non-belief in Islam and religion would come to the adverse attention of the community or Iranian authorities on the basis that he would not engage in public manifestations of Shia faith.  Nor did it accept that the applicant would be perceived as an apostate because he may not conform to expected standards of Islamic dress and behaviour.  It was not satisfied that the applicant was committed to publicly communicating his views on Islam, nor was it satisfied that the applicant would seek to publicise his religious beliefs on return to Iran because of a lack of interest and commitment rather than a fear of persecution.

17. The applicant takes issue with this aspect of the second respondent’s decision.  He argues that whilst the Second respondent had evidence before it of the zealous religious adherence of the  applicant’s maternal uncle, no weight was attached to “this uncle reporting his nephew’s lapse, and given the applicant’s other perceived transgressions, as previously outlined it is reasonably foreseeable that the authorities could take action against the applicant”.  In [20] (set out above) the second respondent considered the claims made by the applicant concerning his maternal uncle.  It explained why it did not think that the applicant would be harmed by his maternal uncle because of his non-adherence to the Islamic faith.  Those reasons were:

    a)the applicant had not provided evidence of his Facebook posts promoting his religious opinion;

    b)the applicant had not provided evidence of how his family would know that he has friends who converted to Christianity.;

    c)the applicant has not claimed to have received any threats from his relatives in Iran as a result of his Facebook posts or that that he has friends who converted to Christianity;

    d)although he claimed that his family are practising Muslims he was never forced to practise Islam at home.

18. The second respondent accepted that the applicant had friends in Australia who had converted to Christianity and there were photographs of him with these friends, but it found that there was no credible evidence that the photos had been published anywhere.  The second respondent was not satisfied that there was a real chance that the Iranian authorities or the community in Iran would find out that the applicant had Christian convert friends and that he would be accused of converting to Christianity or being involved in anti-government activities.

19. Whilst the second respondent accepted that the applicant had attended church three or four times in Australia other than for the purpose of strengthening his claims for protection, it was satisfied that the applicant did not believe in Christianity and that his claim that he might consider it in the future was speculative and unconvincing. The second respondent was not satisfied that there was a real chance that the applicant would pursue an interest or practice Christianity on return to Iran.

20. The second respondent also considered the applicant’s claim that Kurdish people had been discriminated against in the region for many years and had regard to relevant country information about that.  It noted that the applicant had claimed that neither he nor his family had been involved in any anti-regime political activities or political groups.  Having regard to country information, it did not accept the applicant’s claim that authorities had randomly searched and raided Kurdish people’s homes in his home area for no reason, nor did it accept that the applicant’s home was searched and raided by the Iranian authorities.  The second respondent did not accept that the applicant that been arrested and humiliated for wearing Kurdish dress, noting the applicant had not claimed that he had worn Kurdish dress or would do so on return to Iran. 

21. The second respondent accepted a claim made by the applicant at the entry interview that the Iranian authorities took over some paddocks that his family used for sheep grazing and made them military zones.  However, the second respondent was not satisfied on the information before it that this involved discriminatory conduct against the Kurdish community or Kurds who lived in border areas west of Iran.  Having regard to country information, it was not satisfied that Kurds or Kurds from border areas in the west were imputed to be against the Iranian authorities. It was also not satisfied that the applicant was denied employment opportunities by the Iranian authorities because of his Kurdish ethnicity.

22. The second respondent accepted the applicant’s claim that he had encounters with the Basij when he was young, but thought that the encounter on the soccer field described by the applicant was a random encounter given that the applicant was not charged, was released after a few hours, and because he had not provided any further evidence of experiencing similar treatment by the Basij.  The second respondent was not satisfied that the applicant faced a real chance of serious harm on return to Iran because of his previous encounter with the Basij.

23. The applicant claimed that he was a real chance of serious harm by reason of being a failed asylum seeker.  The second respondent accepted the applicant’s evidence that he left Iran legally on his own genuine passport.

24. The second respondent conducted a review of information available from the Department of Foreign Affairs and Trade along with other country information that bore on the issue of the treatment of those forcibly returned to Iran. After reviewing that material, the second respondent was not satisfied that the Iranian authorities imputed failed asylum seekers from western countries as holding anti-regime or anti-government opinion in Iran. It was not satisfied that the applicant had a profile that would attract the adverse attention of the Iranian authorities on return. Further, in light of DFAT country information, the second respondent was not satisfied that the applicant would be questioned on return to Iran with respect to why he left Iran and what he told the Australian authorities. Alternatively, even if the second respondent accepted that the applicant would be questioned on return by the Iranian authorities due to having to establish his identity, the second respondent was not satisfied that this would be prolonged given that he had other Iranian identity documents which would assist in establishing his identity. The second respondent was not satisfied that the applicant faced a real chance of serious harm on return to Iran, and did not meet s.36(2)(a) of the Act.

1. In relation to the complementary protection criterion, the second respondent relied on its anterior findings and was not satisfied that the applicant would face a real risk of significant harm on return to Iran for any reason. The second respondent otherwise accepted that the applicant may face a level of societal discrimination upon return to Iran on the basis of his ethnicity, but found that the level of discrimination that he may face did not rise to the level of pain, suffering or humiliation required by s.5(1) of the Act. The second respondent also accepted that the applicant may face low-level harassment on return, however, it did not consider that this level of harassment rose to the requisite level of significant harm because it was not satisfied that these incidents involved acts or omissions that were intended to cause extreme humiliation.

2. The second respondent concluded by saying:

   54.    Assessing the applicant’s claims individually and cumulatively I find they do not give rise to a real risk of significant harm.

   Complementary protection: conclusion

   55.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

Grounds of review

1. The applicant presses one ground of review in his amended application for review filed on 9 January, 2018.  It is in the following terms:

   1. The First Respondent fell into jurisdictional error by failing to take into consideration the cumulative effect of the applicant’s claims:

   (a) The applicant is of a particular social group, being:

   (i) A citizen of the Islamic Republic of Iran, having been born in Ilam province;

   (ii) Of Kurdish ethnicity, a minority racial group who is exposed to societal discrimination, not adequately addressed by the Iranian authorities, and

   (iii) A Shia Muslim, who no longer practicing his faith.

   (b) The applicant has also been openly critical of the current Iranian government, especially the involvement of the clergy in politics.

   (c) Is a failed asylum seeker, who will be forcibly returned from a Western country, without a valid passport;

   (d) Who is a non-practicing Muslim, open to be charged with the offence of apostasy, after he is likely informed upon my a member of his own family;

   (e) The substantial grounds, as set out in (a) to (d) above, taken cumulatively form a belief, as a necessary and foreseeable consequence of the applicant’s forcible return to his receiving country he will be exposed to a real risk of suffering significant harm.

2. The applicant, by his counsel, explained that the ground of review is directed to the second respondent’s findings in respect of the applicant’s claim to complementary protection.  The written outline for the applicant focusses upon the definition of significant harm in s.36(2A) of the Act and in particular the provision in s.36(2A)(e) that exposure to degrading treatment or punishment will attract complementary protection obligations.  The applicant points out that degrading treatment or punishment is defined in s.5(1) of the Act to mean an act or omission that causes and is intended to cause extreme humiliation which is unreasonable. His submissions proceed (footnotes omitted, original emphasis):

   21.    Therefore, what could amount to ‘...extreme humiliation ...’?

   22.    Referring to a decision of the European Court of Human Rights it would support the view that ‘degrading treatment’ could be constituted while a person is held in custody and unauthorized or unjustified physical force is used, such as a slap to the prisoner’s face when it proves he is unco­ operative to the authorities, as such conduct would violate Article 3 of the European Convention of Human Rights.

   23.    It was conceded by the Second respondent the applicant will be detained by Iranian authorities upon his return to his country of origin.  It is further conceded he will be questioned, perhaps on a range of topics, including why he left Iran, why he sought asylum in Australia and there is a possibility he could be mistreated, perhaps slapped across his face for some reason causing him humiliation, the question not answered by the Second respondent was could such conduct amount to extreme humiliation for that prisoner, the applicant.

   24.    What could amount to ‘degrading treatment’ was not properly considered by the Second respondent, it is submitted that the decision-maker failed to take all relevant considerations into account when making its decision and in so doing it fell into jurisdictional error.

3. These submissions cannot succeed.  The applicant made no claim about the possibility of being slapped across the face if he was questioned upon his return to Iran and he was detained on his re-entry.  The second respondent was not obliged to consider that matter given that it was not raised by the applicant.  The second respondent did consider whether the treatment the applicant could expect upon his return to Iran, as revealed in the country information considered by the second respondent would amount to degrading treatment or punishment and found against that proposition.

4. Elsewhere in his submissions and in his ground of review, the applicant contends that the second respondent did not undertake a cumulative assessment of his claims for the purposes of its determination of the complementary protection grounds.  Two observations can be made about the applicant’s arguments that demonstrate the difficulties in the way of success for the applicant.  First, the applicant does not challenge any of the findings of the second respondent that it made in respect of the claims made by the applicant in support of his claim to be a refugee.  As set out above, the applicant concedes that he does not satisfy the requirements to meet the definition of refugee in s.36(2)(a) of the Act. Second, for the purposes of his claim to complementary protection, the applicant raised no additional matters to those relied upon by him to engage s.36(2)(a) of the Act. The second respondent’s reasons make plain that it considered again each of the matters relied upon by the applicant. Relying on the findings that it had made about those matters for the purposes of its refugee assessment, the second respondent concluded that matter against the applicant.  Because the applicant did not make good any of the grounds upon which he sought to establish that he was a refugee and because he raised no additional matters that required separate consideration by the second respondent, his claims did not engage s.36(2)(aa) of the Act and the second respondent needed to go no further.

5. Where the second respondent has rejected each of the individual claims relied upon by the applicant to make out his entitlement, no obligation to assess those claims cumulatively arises.  The first respondent directs my attention to the recent decision of the Full Federal Court in first respondent for Immigration and Border Protection v DDK16 [2017] FCAFC 188 where at [34] the Court said:

   …as a matter of inexorable logic, that if, as is common ground here, all individual claims or basis for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise to a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.

6. I accept the first respondent’s submission that on the facts as here found by the second respondent no obligation to undertake a “cumulative assessment” arose.  Nor would a cumulative assessment have produced a different result.

7. I also accept that, in any event, the second respondent considered the applicant’s claims cumulatively and found that they did not give rise to a real risk of serious or significant harm.

Conclusion

1. No error is demonstrated in the way in which the second respondent dealt with the review before it, let alone jurisdictional error.  The amended application must be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  19 June 2018