DWL16 v Minister for Immigration

[2019] FCCA 322

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWL16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 322

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – protection visa – whether Authority failed to consider material referred to by the Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB

Cases cited:

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Applicant: DWL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 2500 of 2016

Judgment of: Judge Hartnett

Hearing date: 30 October 2018

Delivered at: Melbourne

Delivered on: 15 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Victoria Immigration Lawyers

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2500 of 2016

DWL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant proceeded on an amended application filed 30 September 2018 wherein the Applicant sought judicial review of a decision of the Second Respondent (‘the Authority’), made 27 October 2016, which affirmed a decision of a delegate of the First Respondent, made 9 August 2016, to refuse the Applicant a Temporary Protection (subclass 785) (‘the visa’).

2. The grounds of application are as follows:-

   “1. The Second Respondent committed jurisdictional error by failing to consider all the Applicant's claims and/or their component integers.

   Particulars:

   The Second Respondent did not consider and/or engage in an active intellectual process with the Applicant's claims and evidence concerning his motivations for taking an interest in/converting to the Christian faith.

   2. The Second Respondent committed jurisdictional error by asking itself a wrong question, or addressing itself to a wrong issue, or otherwise misconceiving the nature of its jurisdiction.

   Particulars:

   The Second Respondent evaluated the risk of future harm by reference to whether the Applicant would, on the balance of probabilities, practise Christianity upon return. It should have assessed whether there was a probability of the Applicant practising Christianity which might have been less than 50% but which nevertheless might constitute a real risk of relevant harm.”

3. The First Respondent submitted no jurisdictional error attended the decision of the Authority and that the application should be dismissed with costs.

Background

1. The Applicant is an Iranian citizen. He arrived by boat on Christmas Island without lawful right to enter Australia, on 16 September 2012. The Applicant applied for a protection visa (class XA) on 26 July 2013, which was invalid, and thereafter for a Safe Haven Enterprise (subclass 790) visa on 6 November 2015.

2. The Applicant claimed, as set out in paragraphs two and three of the Decision and Reasons of the Authority (‘the Decision Record’) that he faced outstanding charges and persecution on return to Iran for reason of his imputed political opinion. He claimed that he had been arrested when participating in political demonstrations in 2009, and had been released after signing a declaration that he would not engage in political activity again. He claimed that he had subsequently opened an internet café or computer shop, and the authorities had discovered that he had printed anti-regime material for a customer. The authorities raided the shop and the Applicant’s home and found incriminating material. Fearing that he would be arrested, the Applicant fled Iran and since his departure he has been summonsed to attend court. He also claimed to fear harm on return to Iran because he has converted to Christianity in Australia.

The Authority

1. The Authority had before it the material referred by the Secretary under s.473CB of the Migration Act 1958 (Cth) (‘the Act’).

2. On 12 September 2016 the Applicant provided further information to the Authority. This consisted of a submission by his representative, and an undated ‘letter of support’ apparently written by an elder of his church, Ben Kelada, this latter document being new information.

3. As set out in paragraph eight of the Decision Record, the Authority determined as to the new information:-

   “The letter from Ben Kelada is undated and is not on church letterhead. It consists of a series of questions and answers; the questions were presumably posed by the applicant’s representative. The letter contains credible personal information, as it addresses aspects of the applicant’s commitment to Christianity, and I accept that it could have affected the consideration of the applicant’s claims had it been before the delegate. At the TPV interview the delegate asked the applicant to provide contact details of leaders of his church who could give evidence about his religious beliefs; a brief email from Ben Kelada dated 4 May 2016 is in the referred material. As the email provided to the IAA is undated it is not readily apparent that it provides an up to date assessment of the applicant’s religious activities, but I am prepared to assume that it post-dates the delegate’s decision. Given the importance of having regard to the most recent information about the applicant’s religious engagement, I am satisfied that there are exceptional circumstances and that the requirements of s.437DD are met, so I have considered this new information.”

4. The information referred to the Authority by the Secretary included two written statements of the Applicant, the first being dated 4 September 2013 and the second being dated 17 January 2016. Additionally, there was a written transcript of the Applicant’s entry interview of 6 December 2012 and the temporary protection visa interview of 14 April 2016. The Authority noted in paragraph nine of the Decision Record that “there are significant discrepancies between the information provided at the different stages”.

5. The submissions of the First Respondent accurately set out the relevant findings of the Authority as follows:-

   “4. The IAA did not accept aspects of the applicant’s claims regarding his asserted participation in protests in 2009, and also did not accept the applicant’s claims about the material printed in his store. It followed that the IAA did not accept that the applicant fled Iran because he was wanted by authorities in relation to these matters. It did not accept that the applicant would be at risk of harm if he was returned to Iran because of outstanding charges or connection with an anti-government or anti-Islamic activity. None of those findings is challenged on this application for review.

   5. The IAA also did not accept the claims in relation to the applicant’s asserted conversion to Christianity. The IAA found:

   a. The applicant had been able to demonstrate a reasonable understanding of Christian teachings, given the circumstances of his explanations in interviews with the Department. However, the IAA also noted that the applicant’s description of what Christianity means to him, at interview, did not accord with his Pastor’s submission and that the applicant spoke only about concepts of kindness and goodness.

   b. The IAA noted that the applicant was baptised very shortly after his arrival in Australia. The IAA did not accept that his understanding of Christianity at that time (based on his understanding at interviews) would have been sufficient to reflect informed and genuine commitment to Christianity. The IAA found that the applicant had been baptised only for the purpose of strengthening his refugee claims. The IAA therefore disregarded this aspect of the applicant’s conduct, pursuant to s 5J(6) of the Migration Act 1958 (Cth) (Act).

   c. The IAA accepted that the applicant had developed some interest in Christianity and had engaged in Christian activities for the purposes of social interaction and a sense of community. It did not accept, however, that the applicant’s commitment was lasting and genuine, nor that the applicant would continue to practise Christianity if returned to Iran.

   d. The IAA noted important parts of the applicant’s evidence in interviews, that revealed a social interest in attending church, rather than a spiritual dimension to that attendance.

   e. The IAA was not satisfied that attendance at church was a priority for the applicant, or that he had a genuine and lasting commitment to Christianity. Further, the applicant’s assertion that he would attempt to convert people in Iran if returned was found to have been made only for the purpose of strengthening the applicant’s claims and was also disregarded.

   f. The IAA did not accept that the applicant would continue to practise the Christian faith if returned to Iran. It found that the applicant had been drawn to attending church because of his circumstances – as an asylum seeker far from his home and family. If returned to Iran, these circumstances would not be present, and the applicant would not seek to pursue any interest in Christian worship.

   g. The IAA did not accept that the authorities would know about the applicant’s church activities in Australia

   h. It followed from the above findings that the IAA did not accept that the applicant would engage with the Christian faith if returned to Iran. He did not have a well founded fear of persecution for that reason.”

Ground One

1. A central claim advanced by the Applicant was that he had converted to Christianity and feared harm on return to Iran as a result.

2. The Applicant argued that the Authority’s findings, observations and reasoning overlooked a body of evidence before it, provided by the Applicant, to the effect that there were indeed spiritual reasons (and other reasons apart from companionship) which motivated the Applicant for his interest in and asserted conversion to Christianity (from Islam). It followed therefore that the Authority failed to consider, in the requisite sense, all the Applicant’s claims and/or their component integers. It was claimed jurisdictional error resulted.  In oral submissions the Applicant argued that there was not actually a complete overlooking by the Authority of the Applicant’s statements or evidence, a concession made by the Applicant, but rather a failure to deal with parts of that evidence.

3. This ground cannot succeed. The Authority clearly considered the claims and integers of the claims as put before it by the Applicant in his submissions and statements, both of which were expressly referred to in the Decision Record of the Authority. Further, it obviously dealt with those parts of the material to which it gave weight.

4. It is true the Authority did not expressly refer to all the evidence before it of the Applicant, but it cannot be inferred that the Authority failed to consider any relevant material. As submitted by the First Respondent, the lack of express reference to the limited passages from the Applicant’s materials as highlighted by the Applicant, reflect only the greater weight placed by the Authority on the Applicant’s oral evidence about his reasons for engaging with his church. This is apparent from paragraphs 27 to 31 of the Decision Record, where the Authority focused on the questioning of the Applicant at his interviews, (initially) and then, subsequently, the responsive evidence given by the Applicant orally. This material, in its entirety, the Authority found to be most relevant to the issues to be determined by it. On the evidence it was logical for the Authority to proceed in this way and its findings of fact where support by the evidence. The relevant paragraphs are as follows:-

   “27. The delegate did not accept that the applicant had genuinely converted to Christianity, although she accepted that he had been baptised and attended church. She found that in many respects his knowledge of Christianity was limited. I have some concerns about the assessment of the applicant’s answers to extensive questioning at the TPV interview about his beliefs, and understanding of Christian doctrine, partly because the interpreter at the TPV interview expressed concerns about his own ability to properly interpret Christian terminology. I accept, as pointed out in his representative’s submission to the IAA, that the applicant’s knowledge of Christianity must be considered in the context of his educational standard (which appears to have been eleven years and not eight, as stated in the submission), his IQ (about which I have no information), his non-Christian background, and the fact that he is a “beginner” at Christianity. I recognise the difficulty of explaining complex and abstract concepts of religious faith through an interpreter, and I have had regard to the reservations expressed by the interpreter at the TPV interview about his ability to translate Christian terms. I have therefore taken a generous view of the responses provided by the applicant to the questions asked of him at the TPV interview and consider that he was able to demonstrate a reasonable understanding of Christian teachings, given the limitations and circumstances discussed above. For example, while the delegate noted that the applicant was confused about matters of doctrine such as the identity of God and Jesus, I think he did a reasonable job explaining the very complex concept of the nature of “God the Father” and “God the Son”. I have also had regard to the letter from Ben Kelada in which he states that he has known the applicant for two years during which he was a “fairly regular” attendee at Sunday morning bible studies and Friday night Iranian fellowship; he also stated that the applicant works hard and misses church due to work. He noted that the applicant had been “pro-active” in seeking out a church in Melbourne when he moved there from Brisbane, where he was baptised (in March 2013, having started attending church in January 2013). Asked whether he considered the applicant a genuine believer in Christianity he stated that the applicant has a “beginning faith in Jesus, he trusts that Jesus is both his King and his Saviour”. Asked whether the applicant expressed his faith in public, he stated that he “does not shy away from identifying himself as a Christian”. He believes that the applicant will continue to practice Christianity and keep learning. He acknowledged that the applicant has only a limited knowledge of Christianity, but stated that the applicant has confessed that he is a sinner who wishes to turn to “God in Jesus” and acknowledges that he needs Jesus’ death to pay for his sin, and that under no other name or religion can he be saved. Mr Kelada states that this is what makes the applicant a Christian and puts him in danger because it involves renouncing other religions. However, I note that when questioned at the TPV interview about what it means to him, or generally, to be a Christian, the applicant did not say anything like this, although he appeared to have some understanding of the notion the Jesus died “because of us”. Rather, he spoke about the concepts of kindness and goodness which he values.

   28. I note that the applicant was baptised in March 2013, shortly after arriving in Australia and only two months after he first attended church. Given the admitted limitations in his knowledge of Christianity even now, three years later, and the current description of him as a “beginner” in the faith, I do not accept that the applicant, at the time he was baptised, would have had a sufficient understanding of the faith or what was involved in being a practising Christian or in being baptised, to make an informed and genuine commitment to Christianity. I am of the view that the applicant was baptised solely for the purpose of strengthening his claims to refugee status and I must therefore disregard this aspect of his conduct pursuant to s.5J(6) of the Act.

   29. I accept that since then the applicant has developed some interest in Christianity and that he has subsequently engaged in Christian activities in Australia for reasons other than to strengthen his claims to refugee status, namely, for social interaction and a sense of community. However, aspects of his evidence lead me to conclude that his commitment is not lasting and genuine and that he would not seek to continue to practise Christianity if he returned to Iran.

   30. He stated that he had no interest in religion in Iran; he was drawn to Christianity in Australia because he saw “good people” in the church who made him feel welcome. The applicant’s own evidence thus suggests that he was drawn to church and the Christian faith by the sense of community. While I would not expect the applicant to be able to present a sophisticated explanation for his attraction to Christianity over Islam, his own evidence revealed no spiritual dimension to his initial attendance at church and no explanation for his decision to investigate a religion when he had not been religious in Iran, apart from a desire for companionship.

   31. He stated that to be a good Christian you need to read the bible every day; in his 2016 statutory declaration he claimed that he reads his Farsi language bible once a week. At the TPV interview he said that he does not read the bible every week, but “any week that I go to church”; he indicated that this is every two or three weeks. He added that “when it’s the English speaking… I don’t pick up much of what they say”. His knowledge of the bible appeared to be extremely limited. He was aware that there are old and new testaments and could name the book of Corinthians, but was unable to say anything more about any aspect of the bible. In my view his lack of knowledge of the bible is not consistent with his written claim, which was contradicted in any event in his oral testimony, and I do not accept that he reads it weekly. Moreover, his oral evidence indicates that he only attends church every two or three weeks, and I note Mr Kelada’s letter was somewhat vague about how often the applicant attends church and fellowship and indicated that he misses both for work. Although I accept that the applicant needs to work and may not enjoy flexibility in his hours, I am not satisfied, in these circumstances, that attendance at church is a priority for the applicant reflective of a genuine and lasting commitment to Christianity. Indeed, he stated at the TPV interview that he does not go to church “to understand much”, he goes there “to be with them”.”

5. There was no obligation on the Authority to refer to each part of Applicant’s evidence, as distinct from considering each of the claims and integers of claims made by the Applicant. The Authority’s discussion of the evidence demonstrates a consideration of the totality of the material put before it by the Applicant.

6. Even had the Authority not considered the material referred to by the Applicant, and the Court finds that indeed it did, that material was not sufficiently probative, and/or sufficiently important and relevant such that such a failure to consider those matters raised by the Applicant would not constitute jurisdictional error.

Ground Two

1. This ground must fail.

2. The Authority found the Applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and thus did not meet s.36(2)(a) of the Act. When considering the complementary protection criterion in s.36(2)(aa) of the Act the Authority found the Applicant did not meet s.36(2)(aa) of the Act.

3. The Authority found, as set out in paragraph 39 of the Decision Record the following:-

   “While I accept that the applicant has attended church in Australia, I do not accept that this would be known to the Iranian authorities. I do not accept that he has a genuine or lasting commitment to the Christian faith. I do not accept that he would wish to attend church on return to Iran or engage in any way with the Christian faith – I believe that his interest in Christianity has come about as the result of his particular circumstances in Australia which would not exist in Iran.”

1. The Authority found, further, as set out in paragraph 46 of the Decision Record the following:-

   “... I do not accept that the applicant has genuinely adopted the Christian faith, even having regard to his having been baptised, and I do not accept that he would seek to practise the Christian faith on return to Iran. Nor do I accept that he would seek to convert others to Christianity. I find that he would not face significant harm for that reason. I do not accept that Iranian intelligence services are aware that he has attended church or been baptised in Australia, so I do not accept that he would face harm of any kind in Iran as a result of having publicly engaged in Christian religious activities in Australia.”

2. The Applicant argued that jurisdictional error attends the finding of the Authority that the Applicant would not continue to attend church or engage in Christianity if returned to Iran (as set out in paragraph 19 above).

3. The Authority’s factual findings were clearly open to it on the evidence before it, and in particular the finding that the Applicant was “not really committed to Christianity” and that it was the Applicant’s circumstances in Australia that led him to engage with churches here. That engagement would become unnecessary once he returned to Iran where he would be surrounded by his support network.

4. As submitted by the First Respondent, a submission with which the Court agrees, it may be accepted that if the Authority did have “real doubts”, then it would have been required to consider whether there was a “real risk” that the Applicant may suffer harm on the assumption that it was wrong.[1] In this case however, the Authority “entertained no real doubt” about the findings. In paragraph 33 of the Decision Record, the Authority stated as follows:-

   “… I do not accept that the applicant would seek to practise the Christian faith himself if he returned to Iran. His evidence suggests that he was drawn to attend church because of the warm welcome he received and the friendships he has made. His knowledge of and understanding of Christianity in terms of its rituals, beliefs and values is limited in my view, taking into account the applicant’s language limitations but also the length of time over which he claims to have been attending church, which is not insignificant. I consider that the applicant has been drawn to attending church and fellowship in Australia by his particular circumstances – living as an asylum seeker far from home, without family. I do not consider that he would feel the need to practise or attend church if he returned to Iran, where he would be living in familiar surroundings within his community of friends and family and his need for social interaction and community would be fulfilled by other means. Overall, I do not consider that the applicant is committed to Christianity such that he would seek to pursue any interest in it, or attend Christian worship in Iran. I find that this is not because he would be afraid to attend church or pursue Christianity because of the risk of harm in doing so, but because he is not really committed to Christianity. I find that the conditions that have led to his interest in it in Australia will not exist in Iran.”

   [1] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, 36.

5. There was no error in the Authority holding its firm and unequivocal views. The conclusion that the Applicant was not at “real risk” of harm, even where that is understood to be a less than 50% probability, was, as submitted by the First Respondent, inevitable.

6. The application shall be dismissed with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 February 2019