ECZ17 v Minister for Immigration

[2018] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECZ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1037

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation: 

Migration Act 1958 (Cth), s.5J

Applicant: ECZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 915 of 2017

Judgment of: Judge Vasta

Hearing date: 16 April 2018

Date of Last Submission: 16 April 2018

Delivered at: Brisbane

Delivered on: 16 April 2018

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The Application filed on 13 September 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 915 of 2017

ECZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 18 August 2017, the Immigration Assessment Authority affirmed a decision by the delegate of the Minister not to grant the Applicant, ECZ17, a protection visa. 

2. The Applicant is a citizen of Iran.  He arrived in Australia on 1 January 2013 as an unauthorised maritime arrival.  He was invited to apply for a temporary protection visa, or a safe haven enterprise visa, on 2 June 2016.  He lodged an application for such a visa on 5 January 2017. 

3. On 4 April 2017, the delegate of the Minister refused to grant the Applicant such a visa and because this was a fast track decision the application was referred to the Immigration Assessment Authority (“the IAA”) for a review of the delegate's decision.

4. By an application that was filed on 13 September 2017, the Applicant now asks this Court to review that decision. 

5. As I have tried to make plain to the Applicant, who is representing himself with the aid of an interpreter, this is a review and it is not an appeal. 

6. The Applicant seems extremely aggrieved at the decision.  This is understandable because the decision means, in effect, that he has no other right to remain in this country; however, it is not an application for an appeal where it is that I would have to consider the merits of the application.  It is an application for a review where the only criteria is whether or not the IAA has conducted their inquiry according to law.

7. It matters not whether I personally agree or disagree with the conclusion that was made by the IAA.  All that this Court is entitled to do is to look at the matter and to assess whether there has been a jurisdictional error made by the IAA. 

8. What the Applicant claimed before both the delegate and the IAA was this:

   a)That he is a Christian who is unable to practice his religion in Iran and he was forced to leave because he didn't believe in Islam and did not want to participate in Shia Muslim practices.

   b)That he learnt about Christianity through a colleague called Said whilst doing his military service.  Said was a Christian and unable to practice in Iran.

9. He learnt further about Christianity and the teachings of Jesus through a friend, Vahid.  It was difficult to access the Bible and other books about Christianity, but the Applicant researched on the internet to learn more and began to adopt the faith.  He also watched Christian programs on satellite channels. 

10. The Applicant did not believe in the principles of Islam and was drawn to the kindness and humanity that he noticed in Christianity through his readings of the Bible and other material.  The Applicant was unable to openly pray or read about Christianity because his family are heavily religious and would harm him if they found out that he was not Shia or not practising the Shia religion.  Since 2012 he said that he prayed in private.

11. In his last two years in Iran the Applicant refused to pray and follow Islam.  The Applicant was constantly harassed by the Basij in the street for no reason.  In 2010, he was attacked by them for celebrating the last Tuesday of the year and beaten with a baton.  In 2011, he was twice arrested for being outside with his girlfriend and held for one day on each occasion. 

12. He was not able to lead a normal life due to the oppressive landscape in Iran.  He did not seek help because the Basij have a presence everywhere, and he feared he would be arrested and harmed if they found out that he was seeking help in trying to escape their oppressive regime.

13. He said that he knew of many people who have been killed by the Basij and feared the same would happen to him. The Applicant suffered mentally as a result of being arrested and feeling oppressed because he was unable to practice his religion. 

14. Once he came to Australia, he attended Bible studies and converted to Christianity in February 2014 through the Salvation Army.  He has been attending church regularly since living in Australia.  He also attends a Hillsong Church which is closer to his home. 

15. The Applicant said that if he returned to Iran he feared that he would be harmed, and maybe even executed, because he has changed his religion.

16. He said he knows people who have been subjected to harm because they are not Muslim.  The Basij and the government will cause problems and harm people that are not Shia, and he believes they will kill him because he will refuse to engage in Shia practices. 

17. The Applicant says that he is a devout Christian and being able to practice Christianity by attending church to pray, and recognising the importance of religious events like the birth of Jesus, is important to him.  He said that he will not be able to practise Christianity without being killed if returned to Iran.  He fears harm, including execution, torture and inhumane treatment or punishment, because he is Christian, if he is returned to Iran.

18. The IAA assessed all of those matters.  They looked at the evidence that was before them.  Whilst the Applicant was able to talk to the delegate and give the delegate an adequate list of the tenets of Christianity, the IAA concluded that this was not evidence that showed that the reason that the Applicant left Iran was because of his Christian belief and Christian religion. 

19. The IAA noted that, on 2 June 2013, when the Applicant had his first arrival interview, he did not make any mention of wanting to explore Christianity.  In contrast, he actually told the officials that his religion was Shia Muslim.

20. In that same interview, when he was asked why it was that he left Iran, he referred to not having comfort and a relaxed life; that he was not able to relax and have a good life and he had not been able to get anywhere with his job.  He later referred to the authorities impacting his life because of a lack of freedom, of choosing what clothes to wear and the lack of respect for social rights. He said that he had come to Australia to have a good life and to be a useful person for society. 

21. When he was interviewed for the visa in 2016, some three years afterwards, the delegate asked the Applicant why he hadn't mentioned his faith or desire to convert to Christianity at the arrival interview.

22. The Applicant said that he gets sad talking about it, but at the time he was not sure.  He was just interested, but “did not know what was going on but said he had the decision to get it done and a short time after that he had converted and remained faithful”. 

23. In his 2017 statutory declaration, the Applicant also provided an explanation for the omission, saying that he had been asked about problems and had not had any problems because of Christianity and did not realise that he should mention his future purposes in Australia. 

24. The IAA looked at those responses and all the explanations that the Applicant gave. The IAA found that the fact of what it was that the Applicant said at the time of arrival, undermined the clear implication in his statutory declarations that his wanting to explore Christianity, and an intention to convert, was a reason that he left Iran.

25. In those premises, the IAA did not accept that the Applicant had undertaken any significant exploration of Christianity; that he prayed as a Christian; or that he had any intention to convert or practice Christianity at the time he left Iran. 

26. Whilst the IAA then accepted that the Applicant had certainly indulged in Christian activities, and had become knowledgeable about the tenets of the Christian religion, it found that such evidence could only convince the IAA that the Applicant's devotion to Christianity was somewhat superficial. 

27. The IAA pointed to a case note dated 13 March 2017 that indicated that, on 7 March 2017, the delegate for the Minister spoke to Major Michelle and Major David of the Salvation Army.  Major Michelle didn't recognise the Applicant's name and Major David indicated that the Applicant had attended services for a while after becoming an adherent in February 2014, but they had not seen him for quite a while.  Major David thought for a couple of years. 

28. The IAA also took into consideration a letter from a Graham Cooper, who is the treasurer of the Corps leadership. In that letter, Mr Cooper had talked of the Applicant being quite an adherent to the Christian faith and that the Applicant had a strong belief in Jesus Christ, and says that regular attendance is not a reflection of his belief in Jesus Christ.

29. The IAA accepted what Mr Cooper had said in that Mr Cooper believed that the Applicant was genuine in his beliefs, but, having regard to all of the evidence before it, the IAA came to the view, as I say, that the interest in Christianity was somewhat superficial. 

30. The IAA at paragraph 32 said:

    “However, I do not accept that the applicant's exploration has cemented into any sort of actual belief in or commitment to Christianity, that he is genuinely continuing to explore the religion or that he is a genuine practising Christian.  I find that the applicant will not identify as Christian or engage in any Christian religious practice on return to Iran, not because of a fear of harm but because he does not have any genuine commitment to Christianity, its beliefs or its practice.”

31. Now, that conclusion is a conclusion that the IAA came to on the evidence. It is obviously a conclusion with which the Applicant has vehement disagreement; however, I am not here to decide whether or not the Applicant's version or what the IAA have said is correct.  What I am to look at is whether the conclusion that the IAA came to was a conclusion that was open on the evidence. 

32. Clearly, it was a conclusion that was open on the evidence.  It was a matter for the IAA to come to the conclusion that they did.  It is trite to say that there may be others who, looking at the evidence before them, may not have come to that conclusion, but that is not the test for whether there is a jurisdictional error.  The question is whether such a conclusion was open on the evidence.  In my view, it was.

33. The IAA then looked at the lack of belief in and practice of Islam, the harassment by the Basij and the return to Iran after claiming asylum in Australia. 

34. The IAA at paragraph 44 said this:

    “I have also considered these factors, together with the applicant's other circumstances, including that he will not practice Islam, but he has been arrested, beaten and harassed by the Basij in the past and may again face harassment or brief arrest in the future, and that he has engaged in Christian activities in Australia, including becoming an adherent member of the Salvation Army.  However, even considering these matters cumulatively, I'm not satisfied there is a real chance of the applicant suffering serious harm for these or any other reasons, or that the treatment I've accepted he may experience amounts to serious harm when considered in combination.”

35. Therefore, the IAA found that the Applicant does not have a well-founded fear of persecution within the meaning of s.5J of the Migration Act 1958 (Cth) (“the Act”).

36. The IAA came to a similar conclusion when looking at the complementary protection criteria. 

37. The grounds of this application are as follows:

    “1. The decision of the IAA is affected by jurisdictional error in that the IAA did not consider relevant material. 

    Particulars:

    (a) in its assessment as to whether there existed exceptional circumstances warranting consideration of the new letters, the IAA ignored relevant material,

    (b) the IAA applied section 473DD of the Migration Act in deciding there were no exceptional circumstances warranting the consideration of the new information, namely, letters from people associated with the church,

    (c) the applicant as not aware that there were significant doubts regarding his claims as a whole because the delegate failed to put the applicant on notice in relation to other aspects of the applicant's oral and written evidence and country information.”

38. When the Applicant appeared before me today he acknowledged that he had not put any written submissions before the Court as he was asked to do by the Registrar and simply made oral submissions. 

39. He said to me that the IAA should have looked at the material, that there was no reason why they didn't look at the material and that a failure to do so was, to use his words - illegal. 

40. At the beginning of the IAA decision, the IAA spoke of the new material that the Applicant wished to put before the IAA.  That consisted of an affidavit under the hand of the Applicant as well, as screenshots of text messages said to be from the Hillsong Church to the Applicant, a letter from Major David of the Salvation Army and a letter from Rachel Mawston of Hillsong Church.  That was all new information.

41. The statutory declaration itself responded to the delegate's findings.  In it, the Applicant states that the delegate did not raise her concerns during the interview to give him an opportunity to respond.  To the extent that the delegate's reasoning relied on aspects of the Applicant's oral and written evidence and country information to reject his claims, the IAA accepted that this was the case. 

42. The IAA noted that while the delegate questioned the Applicant on matters on which she later drew adverse conclusions, she did not put the Applicant on notice of credibility concerns during the interview or put to him any of the country information relied on in the decision.

43. The IAA was satisfied that the Applicant could not have provided the statutory declaration prior to the decision being made and that there were exceptional circumstances to justify its consideration.  The IAA certainly responded to the concerns which the Applicant had raised in his grounds as ground 1(c). 

44. Having made that complaint to the IAA and the IAA accepting it as a valid complaint, and ensuring that what explanations the Applicant wanted to give in his affidavit were taken into consideration, there is no need for any further consideration of ground 1(c).  It does not matter what the delegate did as far as the review before me is concerned.  It is what the IAA did and the IAA in its actions has effectively laid to rest ground 1(c) of this application.

45. However, the IAA did not allow the letters from the Salvation Army Major or the person from Hillsong Church or the text messages.  This is because, with the exception of one text message, all of that material was available to the Applicant before the interview with the delegate. 

46. There was no explanation as to why that material was not before the delegate. It did not come within the ambit of exceptional circumstances and so it was properly not considered by the IAA.  Grounds 1(a) and 1(b) of the application talk of the IAA committing a jurisdictional error in not considering that material, but it was well and truly within the purview of the IAA to decide whether or not it should look at that material.

47. Given the fact that that material existed before the SHEV interview, I can see that there has been no error committed by the IAA in deciding not to consider that material. 

48. I asked the Applicant during the course of the hearing whether there was anything else that he wished to say given that, as I've now gone through the material, I have found that there is no merit in the ground of review. 

49. The Applicant stated to me, as forcefully as he could, that he was a Christian, that he converted in 2014 and that the Iranian Government has a long-standing arrangement that they would put him under terrible conditions because he has changed religion if he were to be removed back to Iran.

50. He said that he was shocked that the IAA or the delegate did not accept what he had said and he made the complaints along that line that there was no valid reason why the submissions that he made were not accepted. 

51. As I've pointed out on a number of occasions, those are matters where the Applicant is really asking me to review the matter on the merits and that is impermissible in this sort of application. 

52. Having gone through all of the matters and listened to everything that the applicant has said, I can find no jurisdictional error. 

53. Therefore, I dismiss the application with costs in the sum of $7,000.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  18 May 2018