DWP17 v Minister for Immigration

[2018] FCCA 1809

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1809

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal failed to comply with the requirements of s 424A of the Act – whether the Tribunal failed to take into account corroborative evidence – whether the Tribunal failed to comply with the requirements of s 425 of the Act – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 36, 423A, 424A, 424AA, 425, 476.

Applicant: DWP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2715 of 2017

Judgment of: Judge Street

Hearing date: 29 June 2018

Date of Last Submission: 29 June 2018

Delivered at: Sydney

Delivered on: 27 July 2018

REPRESENTATION

Counsel for the Applicant: Mr R Chia
Direct basis

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2715 of 2017

DWP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 August 2017, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Iran and her claims were assessed against that country. On 8 December 2013, the applicant applied for an offshore student visa (subclass TU-573). The visa was granted offshore on 6 February 2014. The applicant arrived in Australia on 25 February 2014. The student visa remained valid until 15 March 2018. Prior to the cessation of the student visa, the applicant applied for a protection visa on 18 August 2015.

3. The applicant claimed to be from a Shia family and claimed to have converted to Christianity. The applicant claimed that if she returned to Iran she would be killed by agents of the Iranian government. In particular, the applicant claimed she feared a paternal uncle who is the head of the Basij in Shiraz. The applicant claimed that her uncle would inform the authorities of her conversion to Christianity should she return to Iran. The applicant also claimed that her uncle had arranged a marriage for her with his son, the applicant’s cousin.

4. On 4 March 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate made adverse credibility findings in relation to the applicant and did not accept that she is a genuine Christian convert, and did not accept her uncle is a Basij or that he threatened her for being a Christian convert, and did not accept that the uncle had threatened her family in Iran because the applicant is a Christian convert. The delegate expressly found that the Iranian authorities would have no reason to suspect that the applicant had a transitory interest in Christianity in Australia either now or in the future.

The Tribunal

1. The applicant applied to the Tribunal for review on 18 March 2016. By letter dated 6 March 2017, the applicant was invited to attend a hearing on 13 April 2017. The applicant appeared on that date to give evidence and present arguments and was represented by her migration agent and also had the benefit of two witnesses giving evidence. The Tribunal also provided the applicant with a further opportunity after the hearing was held on 13 April 2017 to provide further information. In that regard, a submission was provided to the Tribunal dated 1 May 2017, which was expressly referred to in the Tribunal’s reasons.

2. Those submissions referred to a new claim and expressly addressed, at the commencement of the new claim, s 423A of the Act. In that regard, that provision referred to the Tribunal drawing an adverse unfavourable inference to s 423A of the Act, which reads as follows:

   In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

3. The submissions expressly address the issue under s 423A(2) of the Act, by referring to the applicant stating in her oral testimony she only became aware of the uncle’s nuptial intentions to force her to marry one of his sons subsequent to the refusal of the primary application being notified to the applicant. It was submitted that this was in spite of the fact that the mother had prior knowledge which she had not shared with the applicant until after the refusal of the protection visa application and that the mother was aware of the applicant’s fragile state of mind and that she had already been threatened by the uncle and that this was a reasonable explanation for the delay. The Tribunal found that it had strong reservations about the applicant’s credibility due to the timelines of the making of some of her claims. In particular, the Tribunal referred to inconsistencies in the evidence of the applicant to the delegate and to the Tribunal about how many times the applicant had visited a church in Iran. Further, the applicant agreed with the comment from a witness, Ms M, that the applicant was not a Christian in Iran but that she only had an interest in religion there.

4. The Tribunal found the applicant was not a Christian before coming to Australia. The Tribunal proceeded on the basis that the applicant’s claimed engagement with Christianity was potentially a sur place activity. The Tribunal expressed concern with the haste with which the applicant sought baptism after arriving in Australia, notwithstanding the evidence of Ms M that it was not uncommon for those of the faith to seek baptism only after a short time. The Tribunal was not satisfied, given the applicant’s circumstances of having led an irreligious life virtually until three months before her baptism, that she had the kind of belief that Ms M identified in her evidence. The Tribunal was not satisfied that the applicant had persuaded her brother to be baptised supported her claims. The Tribunal concluded the applicant was not a genuine Christian convert.

5. The Tribunal expressed strong reservations about the intentions of the applicant in participating in Christian life behaviour for the purpose of considering whether it should be disregarded under s 5J(6) of the Act. The Tribunal was not satisfied of the applicant’s good faith in engaging in Christian-like activities, but was not satisfied that her sole intention in engaging in activities was to strengthen her claims. The Tribunal took the conduct into account including the applicant’s baptism, her church attendance and bible studies and her involvement in the community. The Tribunal was not satisfied the applicant would practice Christianity in Iran. The Tribunal was not satisfied the applicant would be harmed in Iran for having engaged in Christian-like activities because there was no evidence of the applicant evangelising or proselytising. The Tribunal was not satisfied that the authorities in Iran would know that the she had engaged in any such activities. The Tribunal was not satisfied that the applicant’s rejection of Islam would expose her to harm. The Tribunal was not satisfied the applicant would be imputed with an anti-political Government profile.

6. The Tribunal considered the applicant’s claims to be at risk of harm on the basis of the email threats from her uncle. The Tribunal understood the applicant’s claims that the threatening letter, coupled with the uncle’s position in Basij, meant that the applicant’s conversion reflected badly on the uncle. The Tribunal had numerous difficulties with the claim including the fact that only one threatening email was sent, the fact that the applicant lacked understanding of what her uncle actually did, the fact that her mother had visited Iran without incident and apparently lives without fear of the uncle or the Basij, and the delay in sending any communication to the applicant. The Tribunal did not accept the applicant had a fear of death from her uncle.

7. The Tribunal referred to the applicant’s claims based on an arranged marriage and was concerned with the timing as it was advanced shortly after the delegate’s decision. The Tribunal did not accept the applicant’s explanation as to the timing of the making of the claim. The Tribunal did not accept the claim.

8. The Tribunal considered whether the applicant may face harm as a person who had sought asylum in Australia. The Tribunal noted that the applicant departed Iran on her own passport and did not accept that either the length of time abroad or the applicant being known as an asylum seeker would lead to a real chance of serious harm. The Tribunal observed that the applicant had not engaged in political activities in Australia and would not face harm for this reason if she returned to Iran. The Tribunal did not accept the applicant’s representative’s claim that the applicant would face harm on the basis of her passport having expired. The Tribunal found that whether the applicant was returned voluntarily or involuntarily, with or without a passport, there is not a real chance she would suffer serious harm as a member of a particular social group. The Tribunal found that the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The second respondent (“Tribunal”) failed to comply with the requirements of section 424A of the Migration Act 1958 (“Act”) in respect of information given to the Tribunal by the applicant’s witness, Ms M.

   2. Further or in the alternative, the Tribunal failed to take into account corroborative evidence relevant to its decision on the review.

   3. Further or in the alternative to 1 and 2, the Tribunal failed to comply with the requirement under section 425 of the Act to “invite” her to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Ground 1

1. In relation to ground 1, Mr Chia of counsel on behalf of the applicant, took the Court to the evidence given by Ms M, relevantly:

   Ms M: I don’t believe she actually was a Christian before she came to Australia. She was interested in Christianity, she was interested in the person of Jesus which is different ‑ ‑ ‑ 

   Tribunal Member: Yeah.

   Ms M: to being Christian therefore she wasn’t expressing her Christianity but she was expressing an interest…

   Tribunal Member: An interest

   Ms M: In Christ.

   Tribunal Member: Do you agree with that?

   Ms M: She was seeking. 

   Applicant: Exactly.

2. The applicant then gave a further answer confirming that interest.

3. Mr Chia took the Court to the reasoning of the Tribunal at paragraphs 97 and 98. At 97, the Tribunal identified that the applicant’s engagement with Christianity is a sur place activity and that the applicant was not a Christian before coming to Australia. The Tribunal referred to the applicant’s evidence that she had an interest in Christianity in Iran and visited a church with her mother before coming to Australia and then became engaged with a church when she arrived in Australia. The Tribunal referred to the Pastor’s evidence however was not satisfied as to the truthfulness of the applicant’s evidence. The Tribunal found that it was troubled by the fact of the applicant having sought baptism within a short period of arriving in Australia and the consequent emphasis that the applicant placed on the fact of her baptism being evidence of her conversion to Christianity.

4. The Tribunal referred to the evidence of Ms M that Baptists undertook baptism later in life when they are able to make an informed choice. The Tribunal queried whether the applicant had made such an informed choice. The Tribunal noted that Ms M then had stated that it is not uncommon for those of the faith to seek baptism only after a short time and that it was imperative that one had a belief, more so than particular analogous of scripture, the Bible or events. The Tribunal found that it remained sceptical as to the plausibility of the reason for the applicant seeking baptism with such haste. The Tribunal observed that it had doubts about the intentions of the applicant in getting baptised and so quickly after arriving in Australia, particularly given that the applicant had stated that she and her family were not very religious and for that portion of her life lived in Iran was irreligious. The Tribunal referred to Ms M stating that some people seek baptism quickly but also spoke of them having a belief. The Tribunal found it was not satisfied, given the applicant’s circumstances of having led an irreligious life virtually until three months before she took baptism, that the applicant met the criteria of belief to which Ms M had referred in her evidence.

5. The Tribunal also considered the evidence about the applicant’s brother having been baptised. The Tribunal was particularly unimpressed by the brother’s commitment to the faith. The Tribunal was of the view that the applicant’s involvement with the persuasion of her brother to seek baptism, if anything, shows a lack of understanding of the values and beliefs of Christianity and evangelism.

6. The Tribunal then turned to the question of whether or not the applicant had in fact converted to Christianity. The Tribunal referred to the fact that baptism alone does not constitute genuine conversion. The Tribunal identified having to consider all of the applicant’s circumstances individually and collectively. The Tribunal expressed having strong doubts about the applicant’s reason for seeking baptism at the time she did. The Tribunal expressed reservations about the applicant’s motivation for persuading her brother to become baptised. The Tribunal noted that the delegate had concerns about the applicant’s knowledge of the Bible and basic tenets of the faith at the time of her interview with the delegate. The Tribunal was satisfied that since that time the applicant has continued to attend church services and involve herself in the community. The Tribunal found however that the applicant had not engaged in evangelising or proselytising. On her own admission, the applicant had “begun to practice” on someone she knows. The Tribunal referred to Ms M’s statement that she hopes the applicant will evangelise. The Tribunal referred to the applicant, after taking a short break in the hearing, advanced her position by stating that she will evangelise in the future. The Tribunal is of the view that whilst being a non‑practising Muslim and getting involved in Christian‑like and related activities, does not make the applicant a Christian convert. The Tribunal found the applicant is not a genuine Christian convert.

7. The Tribunal also referred to having strong reservations about the intentions of the applicant in participating in Christian‑like behaviour and considered whether the applicant’s behaviour does amount to sur place activity, entitling the Tribunal to disregard it as being engaged in for the sole purpose of strengthening her protection claims. The Tribunal considered the timing of the applicant’s engagement in church going and Bible class attendance, which began around 2014, which was confirmed by the witness Ms M, which was undertaken at a time when the applicant’s presence in Australia was pursuant to a student visa. The Tribunal noted that the applicant made her protection application in August 2015. The Tribunal was satisfied that whilst the applicant may or may not have been complying with her student visa, she had no desire to return to Iran and to the limitations she feels are imposed on her capacity to dress, exercise and express herself. The Tribunal noted that the applicant is an intelligent lady and the Tribunal was not convinced of the applicant’s good faith in engaging in these Christian‑like activities. The Tribunal was equally not convinced that the applicant is engaged in Christian‑like activities for the sole purpose of strengthening her protection claims. Notwithstanding this finding, the Tribunal did accept that the applicant had engaged in Christian‑like activities in Australia and did not ignore the fact that she had been baptised and that she had attended church and Bible study and involved herself in the community. The Tribunal was satisfied, nonetheless, that the applicant is not a genuine Christian and that she will not practice Christianity in Iran.

8. The Tribunal turned to consider whether the applicant’s engagement in Christianity will impact on the risks she faces when she returns to Iran. The Tribunal found that in considering the real chance of serious harm or the risk of significant harm that an individual who does practice Christian‑like activity faces a number of different considerations which need to be made, including what country information states in relation to people who have practiced Christian‑like activities in that manner and the risk of an impugned anti‑regime political opinion as a result of the practice of Christian‑like activities. The Tribunal turned to the country information. The Tribunal did not accept that the harm faced by anyone engaging in Christian‑like behaviour amounts to serious and significant harm unless the person was engaged in evangelising and proselytising. The Tribunal referred to the applicant’s activities in Iran and her behaviour in Australia and that the applicant had never proselytised or evangelised previously in Iran or Australia.

9. The Tribunal found the applicant does not face a real chance of serious harm or a real risk of significant harm for her practice of Christian‑like activities in Australia were she to return to Iran. The Tribunal did not accept the applicant’s contention that she will be an apostate because she wants to share the miracles of Jesus in her life, because she has not done so yet, even in Australia where Christians do not fear persecution for expressing their faith in their church or outside their church.

10. The Tribunal found the applicant most likely made a very moving speech to her congregation on the occasion of her baptism and acceptance into the church, but as the Tribunal discussed with the applicant, the applicant was preaching to the already converted. On the basis of the available information to the Tribunal, the Tribunal was not satisfied that if the applicant were to return to Iran, the Iranian authorities would know that she had engaged in Christian‑related activities, or that she had acquired a profile as a result of those activities which would be of any interest to the Iranian authorities. The Tribunal found the applicant is not a genuine Christian and is satisfied that the applicant would not wear a cross, or carry a Bible or do anything else to alert Iranian authorities to her.

11. Mr Chia submitted that the information advanced by the witness Ms M that the applicant had not converted to Christianity before arriving in Australia was information enlivening the obligation under s 424A of the Act. There is no issue that the Tribunal did not comply with the requirements of s 424AA of the Act if there was information given by Ms M enlivened an obligation under s 424A of the Act. Nowhere did the applicant claim to have converted to Christianity before arriving in Australia. That was not the applicant’s claim. The information provided by Ms M to that effect did not negate, undermine or contradict the applicant’s claim. The information provided by Ms M that the applicant had an interest in Christianity prior to arriving in Australia also was not information engaging any obligation under s 424A of the Act. Mr Chia submitted that the information provided by Ms M had been used as a step towards making an adverse finding because the Tribunal had found that she had not converted to Christianity prior to that date. The applicant made no claim that she had converted to Christianity prior to arriving in Australia and the information provided by Ms M did not, in that regard, negate, undermine or contradict the applicant’s claims and was not a step towards such.

1. Mr Chia also took the Court to the Tribunal’s reasoning in relation to the speed with which the applicant sought baptism and the reference to Ms M’s evidence in relation to the applicant not being Christian prior to arrival in Australia and, accordingly, Mr Chia submitted that it was information that was the reason or that would be the reason or part of the reason for affirming the decision under review and enlivening the obligation under s 424A of the Act.

2. I do not accept that the information provided by Ms M as to the applicant not being a Christian prior to her arrival in Australia can be said to be the reason or part of the reason for the Tribunal affirming the decision under review. There was no information provided by Ms M that enlivened any obligation under s 424A of the Act as alleged by the applicant. The applicant did not claim to be a Christian prior to arriving in Australia. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Chia submitted that the Tribunal had not given proper and genuine consideration to the submissions provided by the applicant in relation to the new claim to fear harm by reason of the arranged marriage to her cousin. Mr Chia submitted that there was no express reference to those post-hearing submissions under the heading ‘Applicant’s Claims Based on Arranged Marriage’, albeit there was a reference to what was put by the representative during the hearing and Mr Chia submitted that the meaning of paragraphs 129 to 134 of the Tribunal’s decision engaged with the application of s 423A of the Act and failed to make any finding as to whether the applicant was, in fact, the subject of an arranged marriage. Contrary to the submissions advanced by Mr Chia, the content of the Tribunal’s reasons on a fair reading reflects engaging with the substance of the submissions that were provided to the Tribunal post the hearing. Those submissions expressly refer to the plausible explanation allegedly advanced as to why her mother did not inform her of the arranged marriage, which was rejected by the Tribunal.

2. The substance of the Tribunal’s reasoning in relation to rejecting the applicant’s claim based on arranged marriage supports the Court’s findings that the Tribunal did actively and meaningfully engage with the submissions advanced in relation to the applicant’s claim of fear of harm based on the arranged marriage. Mr Chia submitted that the Tribunal had an obligation to give a proper, genuine and realistic consideration to the applicant’s claims in relation to the arranged marriage and that there is no finding to support the conclusion that the Tribunal did not accept the applicant’s claim that she will be the subject of an arranged marriage.

3. The Tribunal’s reasons are not to be read with a keen eye to error. The Tribunal’s finding in paragraph 134 that it did not accept the applicant’s claim that she will be the subject of an arranged marriage to her cousin is clearly an adverse finding by the Tribunal that it did not accept, for the reasons given, that there had been an arranged marriage with the cousin. The Tribunal’s reasons expressly refer to the problems with the applicant’s credibility in respect of that claim and the evidence advanced in that regard. The Tribunal, on a fair reading of the reasons, did not confine itself to the issue of the explanation under s 423A of the Act. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Chia took the Court to the reasons of the Tribunal to the effect that the authorities would not know that the applicant had engaged in Christian‑related activities in Australia and contended that this was an issue under s 425 of the Act that the Tribunal should have raised with the applicant as a new issue.

2. The delegate’s reasons, as referred to above, made a finding that the authorities would have no reason to suspect, either now or in the future, that the applicant had a transitory interest in Christianity in Australia. The applicant was on notice in respect to that issue and, whilst the delegate’s reasoning may have been different in respect of the applicant’s conduct engaged in in Australia being disregarded under the Refugee Convention, that does not diminish the force of the adverse finding referred to by the delegate concerning the interest of the Iranian authorities in the applicant in respect of activities in Australia.

3. I do not accept that there was any new issue under s 425 of the Act that the Tribunal was required to raise with the applicant. The delegate’s decision was sufficient to put the applicant on notice of the issue. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 July 2018