EBF18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 864

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

EBF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 864

File number:	MLG 2328 of 2018
Judgment of:	JUDGE RILEY
Date of judgment:	27 September 2023
Catchwords:	MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – Iranian national making Facebook posts that were critical of Islam – the Authority concluding the applicant could not be identified by the Iranian authorities from his Facebook posts, which included his photograph – whether the Authority should have obtained new information consisting of better quality photographs – whether it was irrational for the Authority to conclude that the applicant could not be identified from his Facebook posts.
Legislation:	Migration Act 1958 s.65
Division:	Division 2 General Federal Law
Number of paragraphs:	20
Date of hearing:	3 August 2023
Place:	Melbourne
Counsel for the Applicant:	Mathew Kenneally
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the First Respondent:	Jonathan Barrington
Counsel for the Second Respondent:	No appearance
Solicitor for the Respondents:	Mills Oakley

ORDERS

MLG 2328 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EBF18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	27 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.The application filed on 7 August 2018 and amended on 6 July 2023 be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.

Note:   The form of the order is subject to the entry in the court’s records.

Note:   This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise visa pursuant to s.65 of the Migration Act 1958 (“the Act”).

   BACKGROUND

2. In his written submissions filed on 20 July 2023 in this court, the Minister provided the following background to this matter:

   2.The applicant is a male citizen of Iran who arrived in Australia on 6 July 2013.

   3.He applied for the visa on 4 November 2016. He provided a written statement together with his application for the visa. Relevantly to this application, the applicant claimed that he was atheist. He said that he had been actively involved in social networks, including Facebook and Instagram, where he posts and shares materials about atheism and in defiance of religion and the Islamic regime of Iran on a regular basis (the Facebook claim).

   4.On 14 June 2017, the applicant’s representative provided the Authority with over 240 pages of Facebook posts made by the applicant. These are contained at Court Book (CB) 103-349. Also relevantly to the application, the Facebook posts are in black and white. They are of relatively low quality, but are, for the most part, legible.

   5.On 13 October 2017, the delegate refused to grant the applicant the visa. The delegate rejected the Facebook claim, finding, in part, that:

   Given the very low social media and online presence held by the applicant, and the Iranian authorities being currently unaware of his online activism, I am satisfied that simple online searches described in the Upper Tribunal Report will not expose an online profile of considerable adverse interest to the regime.

   6.The matter was subsequently referred to the Authority for fast-track review under Part 7AA of the Act.

   7.On 13 November 2017, the applicant’s representative provided submissions and new information to the Authority.

   8.On 5 July 2018, the Authority affirmed the delegate’s decision. …

   (citations omitted)

3. In his written submissions filed on 6 July 2023 in this court, the applicant said by way of background:

   INTRODUCTION

   1.The applicant claimed to fear serious and significant harm on return to Iran because he made a series of Facebook posts critical of Islam, and Islamic leaders. The applicant provided black and white copies of screenshots of the Facebook posts to the delegate and IAA. The IAA found the applicant did not face a real chance or real risk in part because the applicant was not identifiable from the photographs in the screenshots. By contrast, the delegate had viewed the Facebook page himself and had seen the applicant at the SHEV interview. The delegate did not raise in the SHEV interview or decision that the applicant could not be identified. In these circumstances, the IAA’s finding that the applicant could not be identified by the photographs – without seeking new information from the applicant or the Facebook page – was legally unreasonable.

   THE CLAIM AND DECISION

   2.The applicant claimed to fear harm for reason of his religious or political opinion as an atheist (Statement, [27], CB 69; Transcript, p 42). The applicant provided black and white PDF documents containing screenshots of his Facebook posts (CB 103 – 349). This included low quality images of what appears to be the applicant’s profile picture on every page.

   3.On 15 June 2017, the applicant attended an in-person interview in person with an officer from the Department named Simon (Transcript, p 1). The applicant raised the claim to fear harm for reason of his Facebook posts. The delegate did not raise the issue that the applicant was not identifiable from photos on his Facebook page. On 13 October 2017, a delegate of the Minister identified as “Simon 60023121” (CB 379) refused the application. It can be inferred the delegate who conducted the interview made the decision.

   4.        As to the Facebook posts the delegate said at CB 372 – 373:

   I note the applicant supplied several translated printouts from his Facebook profile containing posts from his timeline which appear to be anti-Islamic or against the Iranian regime. While some posts could be deemed confronting, those posts are small in number and do not appear to be visible to the general public on the applicant’s Facebook account. While it is possible the applicant has deleted the material, it is also possible he has modified the security settings to no (sic) show them to people not on his ‘Friends’ list, making them unavailable to the public.

   [emphasis added]

   The passage reveals that the delegate accessed the applicant’s Facebook page. The delegate did not in the SHEV interview or decision suggest that the applicant was not identifiable from the photos on his Facebook page.

   5.On review to the IAA the applicant’s representative made a submission that responded to the delegate’s findings regarding the Facebook posts at CB 455:

   We assume that the delegate did not spend enough time scrolling down the applicant's Facebook page. The applicant instructs that he has never changed the privacy settings of his posts to be seen by only his friends. The applicant instructs that as per his Facebook privacy settings all his posts have been accessible by the public. We refer to the following files which were submitted to the Department:

   •Facebook posts-1 (104 posts - attached and marked with D), Facebook posts- 2 (120 posts - attached and marked with E) and Facebook posts- 3 (20 posts - attached and marked with F): they were obtained from the applicant's Facebook page using “CTRL +P” command, which generated a Pdf file in black and white. Because of the way of generating these files, the public logo…is not visible on the top of each post.

   •Binder1 (19 posts - attached and marked with G): this was generated using “PRT SCRN” command and the public logo…is visible on the top of each post.

   Our client submits that all his posts which were provided to the Department, have been always visible and he has never changed their privacy settings. We also enclose posts the applicant has published after the day of his PV interview (attached and marked with H).

   6.The submission included further Facebook posts (CB 456 – 494). This bundle included photos directly insulting to the Prophet (CB 462, 492). The IAA found it could consider the new information in the posts and submissions pursuant to s 473DD of the Migration Act 1958 (Cth) (Act) (IAA Decision, [7]).

   THE AUTHORITY’S DECISION

4. The applicant summarised the Authority’s decision in his written submissions filed in this court as follows:

   7.The IAA accepted at [29] that the applicant had not changed the privacy settings to his Facebook account, but rather that the posts were publicly available.

   8.The IAA accepted that the images on many of the posts were confronting and derogatory towards Islam and Islamic leaders ([40]). The IAA detailed country information regarding the seriousness with which blasphemous conduct is taken in Iran ([41]), and referred to country information that Iranian authorities monitor social media ([42]). The IAA concluded at [43]:

   I have taken into account the reports of bloggers and other non-professionals who have come to adverse attention because of their internet activities however I am not satisfied that the country information supports a finding that there is a real chance the applicant’s Facebook use would be detected and result in him experiencing harm.

   [emphasis added]

   The IAA proceeded to detail the matters it had given weight to in reaching this conclusion. First, the IAA found that the applicant was not readily identifiable from the posts:

   I place weight on the fact that the applicant has not used his full name on his Facebook account, while he has used his family name he is otherwise identified by the nickname he prefers to use. I note his face is visible in some posts, however I am not satisfied he would be identifiable to the authorities by these images of his face. From the posts provided by the applicant it is not apparent that he has posted other identifying material, apart from being a resident in Melbourne. I also take into account that of the posts provided the indications are that the applicant is mostly ‘liking’ the posts of others and it is not apparent that he is creating or generating the material on his Facebook page.

   [emphasis added]

   The IAA also gave weight to the fact the applicant’s activity on Facebook was limited as he only had 185 friends and shared rather than generated content. The IAA was not satisfied the applicant’s Facebook content would attract adverse interest.

   9.The IAA’s reasons at [43] included a global finding the applicant did not face a real chance of serious harm due to his Facebook activity. That finding was made for two cumulative reasons: a lack of satisfaction that he is identifiable from the content on the page and that the content would give rise to adverse interest. The findings were not separate and independent bases for the conclusion, rather they were cumulative. The IAA expressly gave ‘weight’ to each finding in supporting an overall conclusion, plainly revealing that both reasons factored into the conclusion.

   [emphasis in applicant’s submissions]

   MATERIAL RELIED UPON

5. At the hearing before this court, the applicant relied upon:

   (a)his application filed on 7 August 2018 and amended on 6 July 2023 (“the application”);

   (b)his affidavit affirmed on 1 August 2018;

   (c)the court book filed on 5 February 2019;

   (d)his written submissions filed on 6 July 2023; and

   (e)his bundle of authorities filed on 1 August 2023.

6. At the hearing before this court, the Minister relied upon:

   (a)his response filed on 28 August 2018;

   (b)the court book filed on 5 February 2019; and

   (c)his written submissions filed on 20 July 2023, except the first sentence of paragraph 18.

   GROUND 1

7. The first ground of review in the application is:

   The IAA’s failure to consider exercising or to exercise its power to seek new information pursuant to s 473DC regarding the applicant’s Facebook page posts was legally unreasonable.

   Particulars

   (a)The applicant claimed to fear serious or significant harm due to his expression of political opinions on his Facebook page.

   (b)The applicant provided black and white, low quality, images of screenshots from his Facebook page to the delegate and IAA to provide examples of his posts.

   (c)The IAA found the applicant did not face a real chance of serious harm or significant harm due to his activity on Facebook because the IAA was not satisfied:

   (i)the applicant was not identifiable from the page, in particular from the pictures of himself; and

   (ii)the applicant’s Facebook activity would bring him to the adverse attention of the Iranian authorities.

   (d)The IAA’s failure to consider exercising and/or to exercise s 473DC to get further information regarding the photos of the applicant on the Facebook page was legally unreasonable as:

   (i)the applicant’s claim was to fear serious harm because he could be identified from his digital Facebook page not from the black and white screen shots he provided to the delegate and IAA;

   (ii)the IAA only had low quality black and white screenshots of photos on the applicant’s Facebook page;

   (iii)the issue of whether the applicant could be identified from the photos on his Facebook page was not obvious and had not been raised by the delegate;

   (iv)      the delegate had seen the applicant at an-person interview;

   (v)       the delegate had viewed the applicant’s digital Facebook page;

   (vi)the IAA knew the delegate had seen the applicant and viewed the applicant’s Facebook page;

   (vii)the IAA’s finding the applicant was not identifiable in his Facebook photos was critical to the conclusion the applicant did not face a real chance of serious harm in Iran; and/or

   (viii)the IAA could easily obtain new information as to whether the applicant was recognizable on his Facebook page.

8. In paragraph 10 of his written submissions filed on 6 July 2023 in this court, the applicant described the new information that the Authority should have obtained as follows:

   … The IAA should have accessed the page itself or asked the applicant for information. The IAA should also have asked to see the applicant or for contemporaneous photos of the applicant to put itself in the same position as the delegate.

9. In oral submissions, the applicant said that the Authority had critically found that the applicant was not identifiable from his Facebook photographs, which were of poor quality and in the form of black and white photocopies. The applicant submitted that it was legally unreasonable for the Authority to have not asked the applicant for more information, or, alternatively, to have not accessed the applicant’s Facebook page for itself, where it could have seen a good quality colour photograph of the applicant.

10. This ground concerned paragraph 43 of the Authority’s reasons for decision, which is as follows:

    The indications are that partly due to the scope of internet use in Iran the Iranian authorities focus on interruption and blocking activities and target ethnic and religious minority activists (the Baha’i’s and the Dervishes more than others), as well as members of known political groups, for constant offline and online surveillance with the intention of controlling and suppressing the activities of members of these groups. I have taken into account the reports of bloggers and other non-professionals who have come to adverse attention because of their internet activities however I am not satisfied that the country information supports a finding that there is a real chance the applicant's Facebook use would be detected and result in him experiencing harm. I place weight on the fact that the applicant has not used his full name on his Facebook account, while he has used his family name he is otherwise identified by the nickname he prefers to use. I note his face is visible in some posts, however I am not satisfied he would be identifiable to the authorities by these images of his face. From the posts provided by the applicant it is not apparent that he has posted other identifying material, apart from being a resident in Melbourne. I also take into account that of the posts provided the indications are that the applicant is mostly ‘liking’ the posts of others and it is not apparent that he is creating or generating the material on his Facebook page. I note he has 185 Facebook friends, and while this may be a significant number of friends, I am not satisfied that it represents a substantial enough following to be of concern to the Iranian authorities, particularly noting that his posts receive ‘like’ responses from only the same few people. This does not indicate the Facebook activity of someone who is agitating to, and influencing, a wide audience and therefore of adverse interest to the Iranian authorities. Considered together with the extent of internet use in Iran I am not satisfied that the applicant’s Facebook posts would attract [adverse attention] in Iran, or should he continue such or similar activity in the event he returned to Iran.

    (citation omitted) (emphasis added)

11. The applicant argued that the Authority in that paragraph gave two cumulative reasons for finding that the applicant would not face a real chance of harm because of his Facebook posts, being the findings that:

    (a)the applicant was hard to identify because:

    (i)he had not used his full name on Facebook;

    (ii)he was not identifiable from the images of his face; and

    (iii)he had not provided any other identifying information; and

    (b)the applicant had a limited number of friends and only shared other posts, so would not be identified by the authorities as an activist.

12. The applicant noted that the Minister argued that the Authority gave a separate reason for rejecting the claim. The applicant conceded that, if the court accepted the Minister’s argument, this ground could not succeed.

13. The Minister noted paragraph 42 of the Authority’s reasons for decision, which is as follows:

    While the authorities seek to limit anti-Islam and anti-regime opinion, policing this in modern Iran presents a significant challenge, noting it is reported Iran has 42 million internet users and research from 2009 indicated the existence of 700,000 Iranian blogs and websites. Facebook itself is blocked in Iran, yet estimates indicate a high level of use of Facebook, varying from between 6 and 27 million users. Despite the blocking of websites internet use is widespread and users routinely use Virtual Private Networks to circumvent restrictions to access and DFAT describes Iran as having “an active blogosphere and an enthusiastic embrace of social media”. The authorities devote considerable resources to monitoring Facebook and other social media; the Islamic Revolutionary Guards and the police force’s Cyber Police unit are among agencies monitoring the activities of activists, and using data obtained from internet providers to pursue online activity. Journalists, bloggers and other media professionals are harassed by the authorities, including surveillance and monitoring, summons, arbitrary arrest and detention, and imprisonment. According to a 2015 report by the UN Special Rapporteur on Iran, 30 journalists were detained in 2014. Additionally there are reports of “ordinary” people being targeted for promoting their views over the internet. The incidence of prosecution of people for their internet activity is limited by the capacity of the authorities and I note the opinion of the Director of the Iran Media Program at the University of Pennsylvania, who stated in 2011 that because they “cannot effectively monitor the Facebook activities of its citizens”, the Iranian authorities generate fear amongst users to discourage activism.

    (citations omitted) (emphasis added)

1. The Minister argued that the Authority, relying on that paragraph and particularly the country information that Iran “cannot effectively monitor the Facebook activities of its citizens”, found in paragraph 43 that there was not “a real chance the applicant’s Facebook activity would be detected” by the Iranian authorities. That is really the end of the matter. If there was not a real chance that the applicant’s Facebook posts would be detected by the authorities, it was immaterial whether his photographs in those posts were poor quality or otherwise. And it was therefore not unreasonable for the Authority to not seek out better quality images.

2. Moreover, the Authority accepted in paragraph 43 of its reasons for decision that the applicant’s “face is visible in some posts”. The Authority considered that, nevertheless, the applicant would not be “identifiable to the authorities”. The reasons given were not connected to the quality of the images available to the Authority. Rather, they were based on the applicant not providing sufficient information on Facebook for the Iranian authorities to identify him, such as his full name, or address, and the applicant not having the Facebook activity of a substantial agitator. In these circumstances, the quality of the images was irrelevant, and it was not unreasonable for the Authority to not seek out better quality images.

3. This ground is not made out.

   GROUND 2

4. The second ground of review in the application is:

   The IAA’s finding that the applicant could not be identified from the photos on his Facebook page was irrational, illogical, or unreasonable or the IAA failed to consider photographs of the applicant on his Facebook page.

   Particulars

   (a)The applicant produced screenshots of his Facebook posts including large photos of himself at CB 157, and 163.

   (b)The applicant is identifiable and recognizable in the photographs at CB 157 and 163.

   (c)The IAA’s finding that it could not be satisfied the applicant was recognizable in these photographs lacks an evident or intelligible basis.

   (d)Alternatively, the IAA failed to consider the photographs at CB 157 and 163, which constituted cogent, and significant information in support of the applicant’s claims.

5. This ground misapprehends the Authority’s reasons for decision. The Authority said that it was not satisfied that the applicant “would be identifiable to the authorities by these images of his face”. The Authority in this finding did not mean that the applicant would not be recognisable by anyone who knew him. The Authority meant that the authorities could not work out who he was, that is, his name and address, by the images of his face. The Authority went on to say why the authorities would not be able to identify him, that is, ascertain his name and address, by other information he had provided on Facebook.

6. It follows that the Authority’s findings on this issue were not irrational. This ground is not made out.

   CONCLUSION

7. As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated:       27 September 2023