Ebp17 v Minister for Immigration

[2018] FCCA 732

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 732

Catchwords:

CITIZENSHIP AND MIGRATION – Migration – review of decisions – judicial review – decision of Immigration Assessment Authority – whether Authority considered all relevant consideration.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2), 36(2)(aa), 473CB, Part 7AA

Applicant: EBP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 899 of 2017

Judgment of: Judge Jarrett

Hearing date: 23 March 2018

Date of Last Submission: 23 March 2018

Delivered at: Brisbane

Delivered on: 27 March 2018

REPRESENTATION

Counsel for the Applicant: William Markwell, directly instructed

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 30 November, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the amended application fixed in the sum of $6,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 899 of 2017

EBP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. In these proceedings the applicant seeks to challenge a decision of the second respondent given on 16 August, 2017 in which the second respondent affirmed a decision of a delegate of the first respondent not to grant him a Safe Haven Enterprise (subclass 790) visa.

2. The applicant is of a Shia religion and of a Turkish ethnic group.  He was born in Tehran, Iran and is an Iranian citizen.  He had three siblings, one of whom is now deceased.  According to his written submissions, he was educated to a Grade 12 standard of education.  

3. After leaving school the applicant appears to have undertaken military service from the end of 1999 to April, 2001.  He then worked in a number of low skilled jobs in manufacturing and was employed for his father for some time making radiators.  He was also self-employed with one of his brothers for approximately 12 months in the hospitality industry.

4. From 2007 until the end of April, 2013 the applicant was a taxi driver in Tehran.  The applicant has previously been married but is now divorced and his wife resides in Tehran.  They do not have any children.

5. The applicant paid a “people smuggler” in order to come to Australia.  He departed Tehran legally in April, 2013 with one of his brothers and flew to Kuala Lumpur.  From there he went to Bali and from there he travelled on a boat to Australia.  He arrived in Australia as an unauthorised maritime arrival on 8 May, 2013. 

6. On 5 October, 2016 he applied for a Safe Haven Enterprise (subclass 790) visa.  For the purposes of his application, on 25 January, 2017 he attended an interview with a delegate of the first respondent.

7. The applicant claimed that he grew up in a non-religious family and was raised to be open-minded.  His grandfather was a mid-ranked military officer at the time of the Shah and his father was also a supporter of the Shah.  He loved the monarchy and wished that Shahzadeh Reza Pahlavi would come into power.  He remembered the restrictions that they faced in Iran for listening to music or hiring movies.  He grew up under the dictatorship of the Islamic rulers of Iran. 

8. The applicant claimed that he came to the attention of the Basij when in October, 2012 he was in a restaurant having breakfast and made some comment to the restaurant owner.  The applicant said that he was overheard by another man sitting in the restaurant who yelled at him and slapped him hard.  The applicant alleged that this person was a Basij operative who was to report religious and moral dissent to the police.  A few minutes later, motorbike police came to detain the applicant but people in the restaurant helped him to flee.

9. He claimed that soon after this episode he was asked, but refused to become an informer or spy for the Iranian police.  He said that he left Iran because the authorities were trying to control his life, and he had no freedom of speech, personal and spiritual freedom or social freedom.  

10. Since his arrival in Australia he has volunteered with a Christian Church and assisted the community, but was not a Christian or a follower of any other religion.  He said that he had used his Facebook profile to share information about the Shahzadeh Reza Pahlavi and their supporters.  He was against the government of Iran. 

11. The applicant said that he feared the organs of the Iranian state such as the Basij and Seppah due to his westernised views and the time he has spent in Australia.  He suffered psychological harm from living in oppressive conditions forced upon him by the Iranian government. 

12. On 16 February, 2017 the first respondent’s delegate refused to grant the applicant the visa. On 21 February, 2017 the decision was referred to the second respondent for review under Part 7AA of the Migration Act 1958 (Cth).

13. On 13 March, 2017 the applicant’s registered migration agent provided written submissions as well as extracts from the AAT Guide to Refugee Law in Australia and further country information from Iran Wire, Iran Project and the Centre for Human Rights in Iran to the second respondent.  On 16 August, 2017 the second respondent affirmed the delegate’s decision to refuse the applicant the visa for which he had applied. 

14. The second respondent’s decision record shows that the second respondent had regard to the material referred by the Secretary under s.473CB of the Act. The second respondent also had regard to a submission provided by the applicant’s representative on 13 March, 2017, although it did not consider all of the material provided with that submission. Its ability to do so was circumscribed by the provisions of subdivision C in Part 7AA of the Act. The applicant takes no issues with the second respondent’s treatment of that material.

15. The second respondent accepted that the applicant grew up in a non-religious family and that his grandfather was a mid-ranked military officer at the time of the Shah and that his father was also a supporter of the Shah.  The second respondent observed that that there was nothing to suggest that the applicant or his family suffered past harm or discrimination for being a non-religious family or for reasons of his grandfather’s work or their perceived association or support for the Shah or the monarchy.

16. The second respondent accepted that when the applicant was a child he faced restrictions on listening to certain music or watching movies and that he was concerned that neighbours would report them to the authorities.  The second respondent observed that the applicant did not claim to have experienced harm in the past for these reasons.  Further, having regard to that and to certain country information identified by the second respondent, it was not satisfied that the applicant would face a real chance of harm on the basis of listening to music or hiring or watching movies now or in the reasonably foreseeable future.

17. The second respondent accepted that in October, 2012 the applicant had an altercation with the Basij as he had claimed.  However, the second respondent found that the applicant was not of any ongoing interest to the Basij, the police or the authorities more generally as a result of that incident.  The second respondent thought that the evidence did not suggest that the authorities approached the applicant after the incident and asked him to become an informer as he had claimed.  It thought it relevant that the applicant had continued to work as a taxi driver and to reside at the same address until his legal departure for Australia in April, 2013.  The second respondent reasoned that these matters indicated that he was not of adverse interest to the authorities.

18. The second respondent found that the applicant would not face a real chance of harm on the basis of having been asked by the Iranian authorities to be a spy, noting that he had not experienced any harm on the basis of his refusal to be a spy.  It also considered that the applicant was able to leave Iran legally and there was nothing to suggest that the police or other authorities approached the applicant after the incident.  The second respondent considered this to be a one-off incident and that the police, the Basij or other Iranian authorities had no desire to force the applicant to be a spy or informant. 

19. The second respondent considered and accepted the applicant’s evidence that he was not a Christian or part of any other religion.  It accepted the applicant’s evidence that he attended church services and volunteered in Australia because he wanted to get connections, learn the language, the culture and the basics to start his life in Australia, and was satisfied that the applicant did so other than for the purpose of strengthening his refugee claims.

20. The second respondent had regard to the applicant’s Facebook posts as well as the applicant’s evidence that the posts were not publically visible and that most of them were “likes” or “emoticons” with no added personal comments or authored content by the applicant.  The second respondent was not satisfied that the applicant would be perceived as defaming or renouncing Islam, or leaving his Muslim faith, or an apostate who blasphemed against Islam or engaged in propaganda against Iran or in support of other groups against Islam.  The second respondent accepted the applicant’s evidence that he had no interest in advocating or advertising religion or his religious views or beliefs. 

21. The second respondent found that on return to Iran the applicant would not attend church or involve in Christianity or publicise or advertise his religious views or beliefs.  It found that this was not due to fear of harm or a modification of behaviour but because he lacked the desire, interest or a sincere religious conviction.  The second respondent also considered relevant country information as to whether Muslims who leave their faith to practise atheism or the religion of another country could be charged with apostasy, but noted that such cases were rare.

22. The second respondent also had regard to the submission and articles provided by the applicant’s representative as to the environment in Iran and the upcoming elections.  The second respondent found this information to be speculative, and noted that there was no credible information that Iran had changed in a way that would impact on the applicant following the election.

23. The second respondent considered the claim made in the applicant’s written statement that he left Iran because he could not live in fear of the authorities who were trying to control his life.  The second respondent accepted that the applicant, like many other Iranians disliked the Iranian regime, however noted that there was no medical information to substantiate the assertion that he had suffered psychological harm.

24. Having regard to the evidence provided by the applicant, it accepted that the applicant had posted content on his Facebook page.  The second respondent accepted that the applicant shared his Facebook posts other than for the purpose of strengthening his refugee claims.  With reference to country information, the second respondent accepted that there were reports of the authorities arresting and interrogating Iranians who had used social media, but was not satisfied that the Iranian government would spend time and resources monitoring the applicant who had no known religious or political profile.  The second respondent found that upon return the applicant could continue to post materials on social media in the same way that he had done in Australia without modifying his behaviour and it was not satisfied that such low-level activity would give rise to a real chance of harm to the applicant.  The second respondent was otherwise not satisfied that the applicant was or would be perceived as a political activist or as having a religious or political profile.

25. The second respondent considered whether the applicant would fear harm as an asylum seeker or returnee from Australia, although noted that such a claim had not been raised by the applicant.  The second respondent considered the applicant’s evidence that he had left Iran legally and had approached the Iranian Embassy several times whilst in Australia and successfully obtained identity documents.  Accordingly, the second respondent was not satisfied that there was a real chance that the applicant would be interrogated, arrested, detained or otherwise harmed for being a returnee from Australia.

26. Accordingly, the second respondent was not satisfied that the applicant met the definition of a refugee in s.5H(1) of the Act and therefore did not meet s.36(2). Relying on its anterior findings, the second respondent was also not satisfied that there was a real risk that the applicant would suffer significant harm such that he met s.36(2)(aa).

27. On 30 November, 2017 the applicant filed an amended application for judicial review.  His amended application contains four grounds of review.  In his written submissions, counsel for the applicant abandoned two of those grounds and at the hearing before me he confirmed that those two grounds (numbered 3a. and 4a. in the amended application) were not pressed.  Two grounds remain to be considered and determined.  I will deal with each of those grounds of review in turn.

28. The first of the remaining grounds asserts that the second respondent did not take into account a relevant consideration or not asked the correct question because it did not consider that the Basij operative (that assaulted the applicant in the café in October, 2012) had contacted the police and “it would have only been a matter of time before the police had detained the applicant”.

29. In this respect, the applicant argues that following his assault the person who assaulted him called the police on his mobile telephone and they arrived very shortly thereafter.  He says (footnotes omitted, errors in the original):

    25.    The applicant was in great fear for his safety, his wellbeing and indeed his life.  The Basij are a volunteer paramilitary organisation operating under the command of the Islamic Revolutionary Guard Corp (IRGC).

    26.    The Basij are very much a feared organisation and receive little formal training and can operative without orders or objectives, resulting in unpredictable inactions with civilians.

    27.    The second respondent has not considered that the Basij operative had contacted the police and the applicant would have been arrested if the other bystanders had not helped the applicant escape.  The second respondent has not taken into consideration that the police were contacted and indeed the applicant was in very fear of his life. 

30. He further argues that the second respondent has not taken into consideration that the applicant had a well-founded fear of persecution for reason of political opinion.  He argues that “one must put themselves in the shoes of the applicant when this incident occurred and he was slapped very hard by a person that he recognised as being a Basij operative and he would have known what to expect and if he was caught he would have been imprisoned and possibly tortured”.  The applicant points out that there was country information before the second respondent that provided that: “Basij members often receive little formal training and can operative without orders or objectives, resulting in unpredictable interactions with civilians.”

31. Moreover, the applicant argues that the second respondent had asked itself the wrong question “in relation to the applicant fleeing the premises when he was confronted by, what turned out to be, the Basij operative”.  He suggests that the correct question that ought to have been asked by the second respondent was: “Why was the applicant so frightened that he had to abscond and had to rely on the assistance of others to do so?”

32. The first respondent submits that, in essence, this ground constitutes an attempt to cavil with the Tribunal’s factual findings and seeks to invite the Court to undertake impermissible merits review.  That is so, it is argued, because whilst the Tribunal accepted that the applicant had an altercation with the Basij as claimed in October, 2012 it found that the applicant was not of any ongoing interest to the Basij, the police or other authorities after the incident.  The second respondent said:

    13. I accept that the applicant had an altercation with a Basij in October 2012 as claimed.  However, I find that the applicant is not of any ongoing interest as a result of this incident. The evidence before me does not suggest that the Basij, the police or the other authorities approached the applicant or his family looking for him after the incident. Moreover, the TPV application form indicates that the applicant continued to work as a taxi driver and resided at the same address until he left Iran in April 2013, and that he departed Iran legally using his own passport. These, to me, indicate that the applicant was not of adverse interest to the authorities or any person for reasons relating to this incident. Based on the evidence before me, I am not satisfied that the applicant will face a real chance of harm on this basis now, over four and a half years since the incident, or in the reasonably foreseeable future.

33. I accept that this finding was open to the second respondent on the material before it.  The second respondent formed the view that the evidence before it did not suggest that the Basij, the police or other authorities approached the applicant or his family looking for him after the incident and the applicant continued to work as a taxi driver and resided at the same address until he legally departed Iran in April. 

34. Moreover, the second respondent’s reasons demonstrate the very thing that the applicant argues it does not do.  The second respondent’s reasons demonstrate that it did consider whether the applicant was liable to harm from the Basiji in the reasonably foreseeable future.  For the reasons it gave the second respondent concluded the question against the applicant.

35. No jurisdictional error is revealed by this ground. 

36. The applicant’s second ground of review asserts that the second respondent has “not taken a relevant consideration into account and/or not asked the correct question because the second respondent did not considered (sic) the real risk of serious harm that the applicant may suffer, because he has placed a photo of the Shah on his Facebook account”.  

37. The applicant submits that “the Shah is a complete anathema to the ruling government of Iran at the present time and he is against everything that the ruling theocracy stands for and has built or has purported to build since 1979, when the Shah was deposed”.  He points to country information which records that:

    As outlined previously, criticism of some key institutions - such as the Supreme Leader, the clerical elite, the Islamic Revolutionary Guard Corp or the Basij - is not tolerated and can result in harsh punishment, including prison time and corporal punishment. 

38. The applicant submits that expressions of support for the Shah are seen as criticisms of the key institutions in Iran.  He points out that there was country information before the second respondent that showed that Iranian exiles have had their social media and Facebook accounts monitored and “bloggers” who have only a handful of readers have been arrested and imprisoned for published work.  The material showed that in 2014 the Supreme Court of Iran upheld the death sentence of a blogger for insulting the Prophet Muhammad. 

39. He submits that the second respondent was dismissive of his concerns arising from the picture of the Shah on his Facebook page in circumstances where it should have found that the existence of the picture was “more than enough for the applicant to be arrested for treason or similar on his return to Iran and imprisoned”.   He points out that there was material before the second respondent, considered by the first respondent’s delegate in his decision, that established that the Islamic Revolutionary Guard Corp had established surveillance programs to monitor Iranian internet users on social media such as Facebook. 

1. In those circumstances, the applicant argues, the second respondent has not taken “a very valid consideration into account and has reached a wrong conclusion at law, when it states: ‘I have found that upon return, the applicant would be able to continue to share his political views with his friends and post on Facebook in the same way, without facing a real chance of harm’.”  In that respect, the second respondent said:

   54. I have not accepted that the authorities or the regime are aware of the applicant’s Facebook activities, or there is a real chance that they will become aware of them.  I have also found there is no real chance that the applicant’s limited and private nature of his Facebook contents would attract any adverse attention from the Iranian regime or the authorities or any person.  I have rejected that the applicant would be perceived as an activist or that his Facebook posts would be perceived as having crossed the red lines or being in a way that is in conflict with the Iranian ideals or Islamic morals.  I have found that the applicant’s Facebook posts would not give rise to a real chance of harm to him. I have also found that the applicant has no genuine desire or interest in expressing his political views, opinions or engaging in activities, including on social media, beyond the scope and manner in which he had done in Australia. I have found that upon return, the applicant would be able to continue to share his political views with his friends and post on Facebook in the same way, without facing a real chance of harm.

2. Those statements appear in that part of the second respondent’s reasons that deal with the applicant’s claim for complementary protection.  Earlier, in connection with the applicant’s claims concerning his religion, the second respondent said:

   21.    I have also taken into account the applicant’s Facebook posts, which I have explicitly addressed below. Considering the nature and the contents of the Facebook posts, and as noted below, including that they are not publically visible and most of them are ‘likes’ or ‘emoticons’ with no added personal comments or authored contents by the applicant, I am not satisfied that the applicant will be perceived as defaming or renouncing Islam, or leaving his Muslim faith, or an apostate who blasphemed against Islam, or engaged in propaganda against Iran or in support of opposition groups or association, or insulting the sacred values of Islam, the Supreme Leader or otherwise contravening the Penal Code on the basis of his Facebook posts. There is also no evidence before me to suggest that the applicant’s Facebook posts have attracted any comments or attention from the Iranian authorities.

   22.    In view of the nature and contents of these Facebook posts, I am prepared to accept the applicant’s evidence at the TPV interview that he has no interest in advocating or advertising religion or his religious views or beliefs because he believes that religion is a personal thing and he is not religious. In my view, if the applicant wishes to publicise his views or beliefs, he would have done so in Australia where he is free to do so, rather than only sharing social media posts privately and without adding or sharing any personal views or comments.

3. In connection with his claims expressly concerning the sharing of his political views via Facebook, the second respondent recorded (footnotes omitted):

   31.    The applicant submitted some screenshots of Facebook posts dated between August 2015 and September 2016 with his TPV application. The posts contain photographic images and captions. The translations of the captions have not been provided. It appears from the images of the posts that some of them have political connotations. At the TPV interview, the applicant was asked a number of questions regarding the Facebook posts. The applicant stated that he started posting on Facebook after he came to Australia in around 2015. He conceded that all the contents of his Facebook posts were blocked to the public, except one photo of the Shah on his profile page. The applicant also conceded that he only shared his Facebook posts amongst the people that he knew and trusted. The majority of his Facebook posts are ‘likes’ and ‘emoticons’ for others people’s posts, and not comments or images added, written or drawn by the applicant. I accept that the applicant may have posted this kind of contents on his Facebook page, where he has not added any comments and restricted access to his Facebook contents such that they are not visible to the  public.  I do not  accept  that the applicant has engaged in any political activity beyond this.

   32.    I am satisfied on the information that the applicant shared his Facebook posts in Australia otherwise than for the purpose of strengthening his refugee claims and I am not required to disregard it under s.5J(6).

   33.    I accept that the Iranian authorities monitor the internet and social medial sites, and that human rights defender, political activities, lawyers, journalists and other media professionals are harassed, interrogated, arrested and imprisoned, to ensure that they do not cross known red lines.  However, the applicant does not fall within these profiles.  The applicant has never been involved in protests or demonstrations or any political groups or organisations in Iran or Australia. I have found above that the applicant is not of interest to the authorities for reasons relating to the October 2012 incident and his refusal to be a spy or an informant. I consider the fact that the Iranian authorities requested the applicant to be a spy supports that the applicant had no political profile at the time of his departure from Iran, notwithstanding the fact that he and his family were supporters of the monarchy and the applicant’s claimed views against the Iranian regime.

4. The second respondent then recorded and discussed country information before it that bore on the social and cultural environment in Iran, including the place of social media and dissent in that environment.  The second respondent then recorded (footnotes omitted):

   35.    I have accepted that the applicant may have shared, ‘liked’ or inserted ‘emoticons’ on posts with political connotations on Facebook. I accept there are reports that the authorities have arrested and interrogated Iranians who have used social media in a way that the authorities deem to be in conflict with the Iranian ideals and Islamic morals, including bloggers who do not have a particularly high profile and posted comments on several Facebook accounts, or Facebook users who drew and posted critical cartoon on their Facebook page.

   36.    However, on my findings above, the applicant has only posted some private and limited contents on one Facebook account, without adding personal comments or drawings. The applicant is not of current interest to the Iranian regime or the authorities. He has no profile in Iran and has not been involved in protests, demonstrations or any other political activities. The evidence does not suggest that his Facebook posts have attracted any attention from the Iranian government, the authorities or any persons. I accept that the Iranian government may be aware that the applicant is in Australia because the applicant approached the Iranian Embassy in Australia several times to obtain Iranian identity documents. However, in view the information, my findings above and the applicant’s accepted profile, I do not consider that the Iranian government would spend the time and resources in actively monitoring the applicant, who has no known religious or political profile and not of interest to them. I do not accept that the applicant is or was under surveillance by the Iranian government or authorities. There is no credible evidence before me to indicate that the applicant’s Facebook posts may have, or there is a real chance that they will, come to the attention of the Iranian authorities. I consider the prospect of the applicant’s social media activities coming to the attention of the authorities to be remote.

5. The second respondent determined that the treatment of social media users would depend upon the profile of that social media user and the applicant did not have a profile that was likely to lead to his social media use being problematical for him.

6. The applicant’s argument focuses upon the fact that his profile on Facebook had a publicly accessible photograph or image of the Shah.  The second respondent’s reasons make it plain that the second respondent was aware of that image.  It is mentioned in the second respondent’s reasons that I have set out above.

7. The applicant submits, however, that were the applicant to return to Iran and have a photo of the Shah on his Facebook profile for everyone to see then he would be immediately arrested and detained.  He argues that the Shah was and is a figure of hatred in Iran “and the Shah has been at the centre notable world events such as the seizure of the American Embassy in 1979 after the Shah’s removal and to the absolute hatred of Israel by the Iranian Regime and also Iran arming itself as a nuclear power”.  He further argues that (footnotes omitted): 

   40.    The second respondent has stated that whilst the Government may be criticised robustly, the media organisations express different political views and report on these accordingly.  Everything may said to be okay if they do not cross understood ‘redlines’, which include respect for the Supreme Leader, the constitutional and territorial foundations of the Islamic Republic and the place of Shia Islam in Iran.  It would have to be stated that beyond doubt, that the applicant having a photograph of the Shah on his Face book profile has definitely crossed a ‘redline’ and there is no doubt, that if he were to return to Iran with the Shah on his Facebook profile, then he would be arrested and detained immediately. 

   41.    Accordingly, the second respondent has reached a mistaken conclusion, not taken a relevant consideration into account and has also asked the wrong question…

8. As to asking the wrong question, the applicant argues that the correct question must be or to the effect of, “If the authorities were to discover a photograph of the Shah on the applicant’s Facebook profile, would the applicant be persecuted?” He argues that the answer in this regard would have to be “Yes”.

9. The applicant’s arguments however, do not identify jurisdictional error on the part of the second respondent. At best, they demonstrate emphatic disagreement with the second respondent’s conclusions and decision, but nothing more.  As the first respondent submits, although the second respondent did not, in terms, address a claim made specifically about the public availability of the Shah’s image on the applicant’s Facebook page, the claim was dealt with within the second respondent’s findings at a higher level of generality. As the reasons I have extracted above demonstrate, the second respondent was aware of and did refer to the Shah’s photo on the applicant’s Facebook page.  However, because the applicant had only posted some private and limited contents on one Facebook account, he was not of current interest to the Iranian regime or the authorities, he had no political profile in Iran and as the Facebook posts had not attracted any comments or attention from the Iranian authorities, the second respondent was not satisfied that there was a real chance that the applicant’s Facebook posts or account would come to the attention of the Iranian authorities.

10. The findings made by the second respondent about this matter were plainly open to it on the evidence before it.  It clearly explained why it made the findings that it did.  The gravamen of the applicant’s argument is that the second respondent did not give the existence of the image of the Shah on the applicant’s Facebook page the weight he thought it should be given.  But the weight to be given to various aspects of the material before the second respondent is a matter for it.

11. No jurisdictional error is demonstrated by this ground. 

12. In those circumstances, the applicant has failed to demonstrate that the second respondent’s decision is impeachable for jurisdictional error.  The amended application must be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:  

Date:  27 March 2018