Epj19 v Minister for Immigration
[2020] FCCA 2197
•26 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EPJ19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2197 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority overlooked a relevant consideration, asked itself the wrong question or failed to properly consider a claim considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 473CB, 473DC, 476, 477 |
| Cases cited: Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 AXT19 v Minister for Home Affairs [2020] FCAFC 32 Carrascalao v Minister for Immigration (2017) 252 FCR 352 CXS18 v Minister for Home Affairs [2020] FCAFC 18 DWA17 v Minister for Immigration [2019] FCAFC 160 Hossain v Minister for Immigration (2018) 264 CLR 123 Minister for Immigration v SZIAI (2009) 259 ALR 429 Minister for Immigration v SZLSP (2010) 187 FCR 362 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration (2019) 264 CLR 421 Minister for Immigration v SZOCT (2010) 189 FCR 577 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZVFW (2018) 357 ALR 408 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZZJO v Minister for Immigration (2014) 239 FCR 436 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Ram v Minister for Immigration (1995) 57 FCR 565 Singh v Minister for Home Affairs [2019] FCAFC 3 SZOOR v Minister for Immigration (2012) 202 FCR 1 WALT v Minister for Immigration [2007] FCAFC 2 Wang v Minister for Immigration (2000) 105 FCR 548 |
| Applicant: | EPJ19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3026 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Li |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondents: | Ms A Carr |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as amended on 9 March 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3026 of 2019
| EPJ19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 13 July 2020.
The applicant is a citizen of Iran who arrived in Australia on 6 March 2013 as an unauthorised maritime arrival.[1] On 18 March 2013, the applicant participated in an entry interview.[2]
[1] Court Book (CB) 43, 50.
[2] CB 1–16.
On 11 January 2016 and 29 April 2016, the applicant was invited to apply for either a temporary protection visa or a Safe Haven Enterprise Visa (subclass 790).[3] On 21 June 2016, the applicant, with the assistance of a registered migration agent, took the opportunity to apply for a temporary protection visa.[4] The applicant’s claims for protection were set out in that application.[5]
[3] CB 17 – 27.
[4] CB 29 – 73.
[5] CB 61 – 63
The applicant claimed that he had been forced to follow Islam in Iran by his father who had been aggressive and abusive towards him.[6] The applicant claimed that he had been deprived of his right to practice Christianity and that he had been harassed by Iranian police who had beaten the applicant and issued an order for him to attend court for drinking alcohol and fraternising with a Kurdish girl to whom he was not married.[7] The applicant also claimed that his association with his Kurdish girlfriend would lead to him being the victim of an honour killing by her relatives.[8] If returned to Iran, the applicant claimed that he would be detained and face harassment from the Iranian authorities, the family of the Kurdish girl and his father.[9]
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
On 24 April 2019, the applicant attended an interview before the delegate, at which time he made further claims.[10]
[10] CB 113, 123.
The applicant claimed that he became interested in Christianity when he met some Armenian Christians while undertaking compulsory military service.[11] After military service, the applicant claimed that the Armenian Christians invited the applicant to their homes and provided him handouts about their religion.[12] The applicant also claimed that he had bought a Bible in Iran and had been caught in a public park with it while with his Kurdish girlfriend on 3 January 2013.[13] The applicant claimed that when the police approached them he ran away and his Kurdish girlfriend was arrested and medically examined at the local police station, but was not detained.[14] The applicant further claimed that there had been a warrant for his arrest and the authorities attended his family residence three times and took his mother’s fingerprints before the applicant departed Iran.[15]
[11] CB 124.
[12] Ibid.
[13] Ibid.
[14] CB 125.
[15] Ibid.
The applicant also claimed that, since arriving in Australia, he had been baptised and had attended Bible studies.[16]
[16] CB 126.
On 28 June 2019, the delegate refused the applicant’s application,[17] and that decision was subsequently referred to the Authority on 5 July 2019.[18]
[17] CB 119–140.
[18] CB 142–151.
As noted above, on 2 August 2019, the Authority affirmed the delegate’s decision.[19]
[19] CB 154–174.
The Authority accepted that the applicant was dissatisfied with Islam, such that he no longer followed or practiced Islam,[20] and possessed an interest and an attraction to the empathetic values of Christianity.[21] The Authority also accepted that the applicant had intermittently attended a number of churches in Australia, had been baptised and attended Bible study classes and that his attendance at church events had created a level of social engagement for the applicant.[22] However, the Authority was not satisfied that the applicant had consciously converted to Christianity,[23] that he was genuinely committed to the Christian faith or that he identified as Christian.[24] Consequently the Authority, rejected the applicant’s claim that authorities had found the applicant and his Kurdish girlfriend in a park with a Bible,[25] was not satisfied that the applicant would proselytise Christianity or publicise his anti-Islamic views, or would come to the adverse attention of the authorities if returned to Iran for reason of his church attendance in Australia.[26]
[20] CB 164 at [36].
[21] CB 160 at [21].
[22] CB 163–164 at [35].
[23] CB 160 at [21].
[24] CB 164 at [35].
[25] CB 160 at [22] – [23].
[26] CB 164 at [35], CB 165 at [38], [40].
The Authority was also not satisfied that the applicant’s father had forced him to practice Islam.[27] The Authority accepted that the applicant had a difficult relationship with his father, however, given the length of time the applicant had lived away from the family home, if returned to Iran, the Authority was satisfied that the applicant could live independently from his family and avoid any potential conflict.[28]
[27] CB 162 at [28].
[28] CB 162 at [28].
With reference to country information, the Authority did not accept that the applicant’s then girlfriend was Kurdish, that the applicant would be the victim of an honour killing,[29] or that the authorities came to the applicant’s house or issued a warrant for his arrest.[30] The Authority also found with reference to country information, and noting that the applicant had not provided further details of claimed harm relating to drinking, that the applicant did not face a real chance of harm for drinking alcohol if returned to Iran.[31]
[29] CB 161 at [25].
[30] CB 160–161 at [24].
[31] CB 161–162 at [26].
The Authority accepted that the applicant no longer had a valid Iranian passport, and that if the applicant were returned to Iran, he would be returning as a failed asylum seeker.[32] However, with reference to country information, the Authority was not satisfied that the applicant had a profile which would bring him to the adverse attention of the authorities.[33]
[32] CB 166 at [44].
[33] CB 166–167 at [45]–[48].
Consequently, the Authority was not satisfied that there was a real chance that if returned to Iran the applicant would suffer serious harm,[34] or significant harm.[35]
[34] CB 167 at [49]–[50].
[35] CB 168 at [53]–[55].
The current proceedings
These proceedings began with a show cause application filed on 20 November 2019. That was filed outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). On 25 February 2020 I granted the applicant an extension of time under s.477(2) of the Migration Act. I also provided the applicant with the opportunity to file and serve an amended application, which the applicant took up by way of an amended application filed on 9 March 2020. There are three particularised grounds in that application as amended:
1. The Second Respondent fell into jurisdictional error by failing to take into account a mandatory relevant consideration:
Particulars
a.the Applicant has attributed physical, mental and emotional trauma to violence perpetrated by persons professing the Islamic faith: CB 61
b.the Applicant has expressed the view that "Islam is a religion of violence and terror": CB 61
c.the Second Respondent found that the Applicant would not publicise his anti-Islamic views if returned to Iran: IAA [40] CB 165
d.the Second Respondent failed to consider whether the reasons why the Applicant would not publicise his anti-Islamic views if returned to Iran would be a prohibited modification pursuant to s 5J(3)(c)(i) of the Migration Act 1958 (Cth)
2. The Second Respondent fell into constructive jurisdictional error by asking itself the wrong question:
Particulars
a. the Second Respondent found that the Applicant is genuinely attracted to Christianity, its kindness and that it brings him a sense of clam: IAA [35] CB 164
b.the Second Respondent found that the Applicant has manifested genuine social engagement in Christianity in Australia: IAA [35] CB 164
c.the Second Respondent was not satisfied that the Applicant has “genuinely committed to the Christian faith or that he truly identifies as a Christian”: IAA [35] CB 164
d.in so concluding, the Second Respondent asked the wrong question by looking to additional qualifying conduct necessary to profess a genuine commitment to the Christian faith
e.in so concluding, the Second Respondent asked the wrong question by looking to additional qualifying conduct necessary to possess a true identity as a Christian
3. The Second Respondent fell into jurisdictional error by failing to give proper, genuine and realistic consideration to the Applicant’s claims:
Particulars
a.the Applicant claimed in his arrival interview that his father was a member of the Basij (Basij Particular): CB 7, 10
b.the delegate of the First Respondent failed to give proper, genuine and realistic consideration to the Basij Particular
c.the Applicant failed to repeat the Basij Particular in his protection visa application, despite that particular not being a convention ground
d.the Applicant failed to repeat the Basij Particular during his protection visa interview. despite that particular not being raised by the First Respondent
e.in light of (b), the Second Respondent failed to give proper, genuine and realistic consideration whether the First Respondent's failure to make enquiries on the Basij Particular should lead to an adverse inference against the Applicant
f.in light of (c) and (d). the Second Respondent failed to give proper, genuine and realistic consideration as to the reason why the Applicant’s failure to repeat the Basij Particular should lead to an adverse inference against the Applicant
g.the Basij Particular was material to whether the Applicant faces a real chance of harm because his risk profile is different to that of an ordinary person in Iran
The only evidence I have before me is the court book lodged on 16 January 2020. Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their representatives at the trial on 29 July 2020. I have been assisted by those submissions.
Consideration
Applicant’s contentions
Ground 1
Relevant principles concerning s.5J(3) of the Migration Act
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[36] Mason J stated at 39:
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
[36] (1986) 162 CLR 24.
Section 5J of the Migration Act provides that a person has a well-founded fear of persecution if the person fears being persecuted for a convention reason unless the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution.
However a person is not required to modify their behaviour to the extent that it would conceal his or her religious beliefs.[37]
[37] section 5J(3).
The Authority errs if it makes a finding that a person does not have a well-founded fear of persecution merely because they can conceal some aspect of their character. In Appellant S395/2002 v Minister for Immigration,[38] Gummow and Hayne JJ expressed it at [82]-[83] as follows:
No less importantly, if the Tribunal makes such a requirement [an impermissible modification], it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right.
[38] (2003) 216 CLR 473.
Accordingly, if the Authority were to find that a person might conceal their religious belief if returned to their receiving country, it must necessarily consider whether the concealment is voluntary or because of a fear of persecution.
Relevant findings of the Authority as to the applicant’s criticisms of Islam as a religion of “violence and terror”
At [29],[39] the Authority records that:
The applicant did not directly articulate any fear of harm in his PV application because of his Christianity but did claim Islam to be a religion of violence and terror and that he was deprived of his basic human right of practicing his preferred religion. Furthermore he claimed that religious freedom should be available to all Iranian citizens and Sharia law did not allow conversion from Islam to another religion.
[39] CB 162.
The Authority made the following further findings:
a)the applicant is attracted to Christianity and its kindness;
b)Christianity brings the applicant a sense of calm and that he may have taken friends to church and there has been an element of social engagement in attending church and being baptised;[40]
c)the applicant no longer follows or practices Islam;[41]
d)the applicant has not spoken out critically of Islam whilst in Iran and will not do so on his return.[42]
[40] CB 163-164 at [35].
[41] CB 164 at [36].
[42] CB 165 at [38], [40].
This case is analogous to Appellant S395/2002. In that case the impermissible finding was that the applicant for a protection visa did engage in homosexual lifestyle practice while in Bangladesh where it was a criminal offence to do so[43] and the Tribunal erred in making a finding that if returned to Bangladesh the applicant would not resume practising homosexuality without asking itself whether the behaviour modification would infringe on the applicant’s freedom of expressing his homosexual identity.
[43] Appellant S395/2002 at [12].
Understandably, if an applicant were beaten and tortured by their father for the purposes of encouraging him to practice Islam, they may well, rightly or wrongly, consider that Islam were a religion of violence and terror.
The Authority had, at least, constructive knowledge of the reason why the applicant did not speak critically of Islam while in Iran. At [37][44] the Authority found that under Iranian law a person of any religion may be charged with the crime of “swearing at the Prophet” (blasphemy) if he or she makes utterances that are deemed derogatory towards the Prophet Mohammed, other Shi’a holy figures, or other divine prophets. Presumably connoting that Islam is a religion of violence and terror would have caused the applicant to fall foul of the blasphemy law of the Iranian Republic.
[44] CB 164
For that reason, it is said not to be the point that the applicant might have, presumably out of self-preservation, restrained himself from speaking his true belief as to Islam whilst in Iran, or that the applicant might restrain himself once more if returned to Iran.
The applicant contends that the Authority erred by failing to ask whether if the applicant were to become silent once more on his belief that Islam were a religion of violence and terror, would that abstinence be because he genuinely recanted his contentious objection to Islam or because he would have to do so out of fear of persecution?
Nowhere in the Authority’s reasons does it consider whether its proposed modification to the applicant’s behaviour would, within the language of the statute, “require the person to… conceal his or her true religious beliefs”.
The Authority’s failure to ask itself a mandatory relevant question is said to have deprived the applicant of “a realistic possibility that the Authority’s decision could have been different if it had taken the document or information into account”.[45] The error is said therefore to be jurisdictional.
[45] Minister for Immigration v SZMTA; CQZ15 v Minister for Immigration; BEG15 v Minister for Immigration (2019) 264 CLR 421 (SZMTA) at [48] (per Bell, Gageler and Keane JJ).
Ground 2
Principles concerning the permissible and impermissible methods of reasoning available to the Authority to qualify an applicant’s religious conscience
The dissenting judgment of Jacobson J in Minister for Immigration v SZOCT[46] helpfully recites the law in relation to claims involving religious conversion at [7]-[10]:
First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45].
Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [38] (SZLSP).
Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know: SZLSP at [39].
Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one: SZLSP at [39]. … the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
[46] (2010) 189 FCR 577.
Buchanan J, in the majority in SZOCT, held as follows at [50]:
there must be a satisfactorily disclosed foundation from which any conclusion, that adequate knowledge is not held, may proceed. There must also be a sufficient and proper foundation for any conclusion that inadequacy or defects in apparent knowledge falsify a claim to religious conviction and the likelihood of consequent persecution.
In all of this, what the Full Federal Court stated in WALT v Minister for Immigration[47] at [28] should be kept in mind:
The degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
[47] [2007] FCAFC 2.
In Wang v Minister for Immigration[48] Merkel J stated at [81]:
it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community.
The Authority erred by postulating a standard of conviction necessary in order for a person to be committed to or identify with the Christian faith
[48] (2000) 105 FCR 548.
Although the Authority apparently found at [35][49] and [38][50] that the applicant is not a Christian and has not genuinely converted to Christianity, it had also found that at [35][51] that:
the applicant is attracted to Christianity, its kindness and that it brings him a sense of calm and that he may have taken friends to church and there has been an element of social engagement in attending church and being baptised and to that extent I do not consider his involvement with Christianity in Australia was solely for the purpose of strengthening his claims for protection.
[49] CB 163-164.
[50] CB 165.
[51] CB 163-164.
Further at [36][52] the Authority found that the applicant was born a Muslim but no longer follows or practices Islam.
[52] CB 164.
The applicant submits that, for the purposes of the Migration Act, a person’s engagement with religion is binary; either they genuinely engage or they do not. Whilst there may be degrees of engagement, some prefer private observation and others could be vocal proselytisers, that is not to say however that those in the latter group are “more Christian” than those in the former.
The applicant submits that, so long as he has manifested a degree of genuine practice of personal faith and seeks to do that in a community of other Christians, then he satisfies the test set out in Wang at [81].
The error is said to be that, instead of asking itself whether the applicant has a well-founded fear of persecution because there is a real chance that if returned to Iran, the applicant would be persecuted for reasons of religion, the Authority has substituted the question with whether the applicant is “Christian enough”.
Even private observation of Christianity or a genuine social engagement with Christianity could have been sufficient to give a person a well‑founded fear of persecution. As Burchett J stated in Ram v Minister for Immigration[53] at 568-9:
[53] (1995) 57 FCR 565.
People are persecuted for something perceived about them or attributed to them by their persecutors.
…
In this area, perception is important. A social group may be identified, in a particular case, by the perceptions of its persecutors rather than by the reality. The words “persecuted for reasons of” look to their motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken
So much follows from the principle that it is not for the Authority to be the arbiter of doctrine. All the Authority is permitted to ask is whether the religious practice that the applicant genuinely holds, however meek or humble, would give rise to a well-founded fear of persecution if returned to the receiving country.
Ground 3
Relevant principles concerning the requirement for the Authority to give proper, genuine and realistic consideration
The Authority must give the claims before it “proper, genuine and realistic consideration”; that is, the decision-maker must engage in an “active intellectual process” directed at the matter.[54]
[54] Carrascalao v Minister for Immigration (2017) 252 FCR 352 at [45].
The Authority may fall into jurisdictional error if it fails to engage in an active intellectual process or give proper, genuine and realistic consideration to a substantial, clearly articulated argument relying upon established facts; a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review; a matter that is an essential integer to an applicant’s claim or that would be dispositive of the review.[55]
Principles relevant to the Authority’s inquisitorial fact finding function
[55] See also Singh v Minister for Home Affairs [2019] FCAFC 3 at [34].
In Minister for Immigration v SZIAI,[56] a majority of the High Court observed at [18] that proceedings before a migration merits review tribunal are inquisitorial, rather than adversarial in their general character. The majority then continued at [25]:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[56] (2009) 259 ALR 429.
Although the High Court was concerned with the position of a merits review tribunal, the applicant submits that the inquisitorial nature of administrative decision making by the Minister’s delegate and by the Authority applies with equal force.
The failure of the Minister’s delegate to perform that inquisitorial task may infect the Authority’s review function. By s.473CB of the Migration Act, the Secretary is required to give the Authority all review material before them, and, subject to the Authority’s power to consider new information, any error that infects the process before the delegate could affect the procedure on review before the Authority.
The Authority failed to give proper, genuine and realistic consideration to the applicant’s claims that his father was a member of the Basij
In the applicant’s arrival interview, he stated that:
a)his father’s occupation was in government and defence;[57]
b)his father was working in the military;[58]
c)his father was a member of the “Baseeg Group” and in the military and he never stopped being a member;[59]
d)his father was part of the government.[60]
[57] CB 7.
[58] CB 10.
[59] CB 10.
[60] CB 10.
At [27],[61] the Authority made an adverse finding on the basis of the applicant’s failure to repeat the allegation that his father was a member of the Basij. The silent minor premise of the Authority’s reasoning is said to be that, if the applicant were truthful about his father’s membership in the Basij, the applicant would have repeated that claim in his protection visa interview or at least during his protection visa application.
[61] CB 162.
The applicant submits that it is not clear why he was expected to raise his father’s membership of the Basij in his protection visa interview application as it did not form a discrete Convention reason.
The applicant contends that the Authority did not consider why the applicant might have failed to repeat his father’s membership of the Basij in his protection visa application or interview. The Authority did not consider whether the procedure before the delegate should affect its assessment of credibility on this point. It merely postulated the failure to make a contemporaneous complaint test, apropos of nothing, and applied it adversely to the applicant.
The applicant contends that, given the significance which the presence of the applicant’s father loomed large in the narrative of fear and violence experienced by the applicant, it being relevant to his experiences of violence and a major source of his rejection of Islam, the applicant submits that it could be expected that the Authority would have given proper, genuine and realistic consideration as to the reasons for the applicant’s failure to repeat the allegation before making an adverse credibility finding against the applicant.
Resolution
The issues before this Court are as follows:
a)did the Authority fail to consider whether if the applicant were returned to Iran and he were to hide his genuine belief that “Islam is a religion of violence and terror”, the applicant’s behaviour modification would be a prohibited modification pursuant to s.5J(3)(c)(i) of the Migration Act (Ground 1);
b)did the Authority ask itself the wrong question by asking whether the applicant possessed a true identity as a Christian beyond a genuine attraction to Christianity’s preaching of kindness which brings him a sense of calm (Ground 2);
c)did the Authority fail to give proper, genuine and realistic consideration to the applicant’s claim that his father was a member of the Basij (Ground 3).
As far as the Authority’s background findings go, the following passages are relevant:[62]
[62] at CB 159, 162, 163-164.
[20] I have read the transcript of the applicant’s arrival interview and listened to the recording. … The applicant also stated he believed in Christianity and did not like Islam. The applicant became particularly emotional in discussing his father who worked for the military and recalled an incident of his father bashing him and for a month he could not eat and had to use a straw for soup. He also stated that he was forced to do his military service and after this he saw a psychiatrist for a year and a half and was taking medication. The applicant also stated his father was a member of the Basij. This interview was paused for the applicant to recover himself emotionally and a mental health team was called.
…
[27]The applicant claimed that he escaped the horror of psychological tortures by his own abusive and aggressive father who always beat him up and forced him to practice Islam. He claimed he would be in danger of being tortured again by his father. As noted above the applicant was distraught when talking about his father in his arrival interview, that he bashed him a lot. He also stated in this interview that his father would wake him and kick him in the morning to undertake his prayers. I also note in his arrival interview the applicant stated his father was a member of the Basij. The applicant did not claim this in his PV application nor state so at his PV interview. Given his failure to pursue this claim I am not satisfied the applicant’s father was a member of the Basij.
…
[35]I accept that the applicant is attracted to Christianity, its kindness and that it brings him a sense of calm and that he may have taken friends to church and there has been an element of social engagement in attending church and being baptised and to that extent I do not consider his involvement with Christianity in Australia was solely for the purpose of strengthening his claims for protection.
I prefer the Minister’s submissions in relation to the issues raised by the grounds of review.
Ground 1
It is hard to reconcile insulting another religion with a Christian value of kindness. It is also doubtful that the applicant’s assertion that Islam is a religion of violence and terror would be a protected statement of belief under clause 42 of the Religious Discrimination Bill 2019. If that Bill is enacted the applicant could be expected to modify his behaviour in Australia. In any event, I accept the Minister’s submission that Ground 1 misconstrues the applicant’s claims.
The applicant claimed in his temporary protection visa application and interview before the delegate that he had been forced to follow Islam because of his father but, as he became older, he became disaffected with Islam and no longer followed or practiced the faith.[63] Contrary to the applicant’s submission, he did not claim or provide any evidence that while in Iran he had refrained from expressing his views of Islam.[64]
[63] CB 61–62, CB 124.
[64] CB 165 at [38].
The applicant seeks to draw an inference from his temporary protection visa application and country information relied upon by the Authority that, because he considered Islam to be a religion of violence and terror and blasphemy is a crime in Iran, he “restrained himself” or was “silent” about his views of Islam before departing Iran.[65]
[65] see applicant’s submissions filed 29 June 2020 at [14]–[17].
Such an inference is unavailable because of the country information before the Authority. At [39] of its reasons, the Authority expressly referred to country information before it that there was a great diversity of attitudes and treatments of persons who held non-mainstream religious views and many in Iran held secular attitudes and were ashamed or embarrassed of religious discrimination and persecution.[66] It also does not squarely or clearly arise from the applicant’s claim that he considered Islam was a “religion of violence and terror” that the applicant wanted to publicise his views, but could not do so.[67]
[66] CB 165 at [39].
[67] see NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [60] per curium (and the authorities cited).
On the material and evidence before the Authority, it was open to the Authority to find that, the applicant would not, nor have any desire to, publicise his anti-Islamic views.[68] As the Authority did not find that the applicant could take reasonable steps to avoid harm by modifying his behaviour, contrary to the applicant’s submissions, s.5J(3)(c) of the Migration Act had no application.[69]
[68] CB 165 at [40].
[69] Cf Appellant S395/2002.
Ground 2
Ground 2 and the accompanying submissions advance two propositions that the Authority:
a)asked itself the wrong question;[70] and
b)acted as an arbiter of religion.
[70] see SZMTA at [81] per Nettle and Gordon JJ (and the authority cited there).
I accept the Minister’s submission that both propositions must be rejected.
The applicant contends that the Authority wrongly asked itself “whether the Applicant is ‘Christian enough’”. This submission rests on the contention that the Authority’s findings at [35] of its decision record do not reconcile. That is, that the Authority found that the applicant was attracted to Christianity and that the church provided a level of social engagement for the applicant, however, the Authority was not satisfied that the applicant was genuinely committed to the Christian faith, or identified as Christian.
Such a finding, however, is not illogical or irrational,[71] nor does it indicate that the Authority misdirected itself from its statutory function of determining whether the applicant satisfied the requirements for a temporary protection visa.
[71] see Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130]-[131], [135] per Crennan and Bell JJ.
The Authority noted that at the interview with the delegate, the applicant claimed he had bought a copy of the Bible from a named suburb, but had read “nothing in particular”,[72] and that the applicant had suggested that he could obtain a reference from his local church pastor, however, no supporting documentation relating to any of his church activities had been subsequently provided to the delegate.[73] The Authority also noted that the applicant had intermittently attended church and was unable to recall names of the churches he had attended or the name of his current local pastor.[74] Subsequently, it was open to the Authority to find on the material and evidence before it that the applicant had not genuinely converted to Christianity.
[72] CB 159 at [19], CB 160 at [22].
[73] CB 163 at [32], [35].
[74] CB 162 at [30], CB 163 at [31], [33], [35].
In circumstances where the applicant claimed that he had become attracted to the Christian faith while in Iran because his Christian friends showed kindness, helpfulness and love,[75] it was open to the Authority to find that the applicant continued to be attracted to those matters while in Australia and had taken his friends along with him to church.[76] It was also open to the Authority to find that the applicant’s attendance at church had provided a level of social engagement in circumstances where the applicant claimed he had been baptised, attended church services and attended functions where he would help out by cleaning and serving food.[77]
[75] CB 158 at [11] – [12].
[76] CB 160 at [21], CB 163 at [35].
[77] CB 162 at [30], CB 163 at [31], [33] – [34].
The applicant’s submission that the Authority was acting as an arbiter of religion, is not made on the basis that the Authority applied some standardised or assumed knowledge of the Christian faith to be expected of the applicant,[78] but rather on the contention that the Authority required a particular level of engagement with the Christian faith.[79]
[78] see Minister for Immigration v SZLSP (2010) 187 FCR 362 at [34]-[38] per Kenny J.
[79] applicant’s submissions at [28].
The applicant propounds that such a course was not open to the Authority in circumstances where “for the purposes of the Act, a person’s engagement with religion is binary - either they genuinely engage or they do not.” To the extent that the applicant submits that private observation or a genuine social engagement with Christianity demonstrates a well-founded fear of persecution, the applicant seeks impermissible merits review.[80]
[80] see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Contrary to the applicant’s contention, the Authority did not require the applicant to demonstrate a particular level of engagement with the Christian faith but, rather, assessed whether the applicant’s claim that he had converted to Christianity was genuine and whether the applicant would face persecution for the purpose of the Migration Act for that conversion or his attendance at church events in Australia.[81] Those findings of the Authority were open to it to make on the material and evidence before it and for the reasons it gave.
[81] CB 164 at [35].
Ground 3
To the extent that Ground 3 seeks to impugn the delegate’s decision:
a)the Court does not have jurisdiction to review that decision;[82] and
b)any jurisdictional error by the delegate does not affect the Authority’s power and obligation under the Migration Act.[83]
[82] see s.476(2)(a), (4)(c) of the Migration Act.
[83] see Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 at [52], [70] per Gageler, Keane and Nettle JJ.
Part 7AA of the Migration Act sets out the scheme to be followed by the Authority when reviewing a “fast track reviewable decision”. Relevantly, s.473CB(1) requires the Secretary of the Department to provide “review material” to the Authority. Pursuant to s.473DC(2), the Authority does not have a duty to get, request or accept any new information and any new information cannot be considered unless the Authority is satisfied that the new information could not have been provided to the Minister before the original decision was made, or is credible personal information, which was not previously known, but which may have affected consideration of the applicant’s claims.[84]
[84] see generally Minister for Immigration v CED16 [2020] HCA 24; CYN17 v Minister for Immigration (2019) 375 ALR 47; Plaintiff M174/2016.
Contrary to the applicant’s submissions, the Full Federal Court has observed that it is questionable whether the duty to make an obvious inquiry about a critical fact easily ascertained as described in SZIAI,[85] is a duty imposed by Part 7AA of the Migration Act.[86] In any event, the applicant has not identified the circumstances that give rise to an obvious inquiry about a critical fact easily ascertained.
[85] SZIAI.
[86] see DYK16 v Minister for Immigration (2018) 267 FCR 69 at [72] per curium (referring to DJF16 v Minister for Home Affairs [2018] FCA 1285).
The remaining part of Ground 3 contends that the Authority failed to give “proper, genuine and realistic consideration” to the reason why the applicant did not “repeat” the claim that his father was a member of the Basij and whether this failure should lead to an adverse inference against the applicant.[87]
[87] amended application, Ground 3, particular (f).
It is not clear whether the applicant contends that the Authority failed to consider the applicant’s claim that his father was a member of the Basij or that the Authority’s lack of satisfaction that the applicant’s father was a member of the Basij was unreasonable or constituted the basis on which the Authority rejected the entirety of the applicant’s claims and evidence.[88]
[88] see generally CXS18 v Minister for Home Affairs [2020] FCAFC 18 at [35] per curium (and the authorities cited); see also Carrascalao at [47]-[48] per curium.
If it is the former, the applicant appears to have eschewed what is contended at particular (g). That is, the applicant did not claim to fear serious harm if returned to Iran for reason of his father’s claimed membership of the Basij. In these circumstances, the Authority has not failed to consider a claim and evidence before it to determine whether the applicant met the criteria for a temporary protection visa.
If it is the latter, the Authority’s finding in the last sentence at [27] of its decision record was open to it to make.
It was recorded at the applicant’s entry interview that the applicant claimed his father “was working for the Military”, “was a member of the Baseeg Group… and never stopped being a member”, “was part of them” and “was part of the Basij in our suburb”.[89] The Full Federal Court has observed that great caution should be applied to holding applicants to what they say at an entry interview given the timing and circumstances in which they are conducted.[90]
[89] CB 10 - 11.
[90] see MZZJO v Minister for Immigration (2014) 239 FCR 436 at [56] per curium; see also DWA17 v Minister for Immigration [2019] FCAFC 160 at [32] per curium.
As noted above, the applicant subsequently applied for a temporary protection visa at which time he set out in the application his claims for protection.[91] The applicant was assisted in making that application by a registered migration agent. The applicant also attended an interview before the delegate, where he continued to be represented, and at which time he made further claims for protection.[92] At no time during the temporary protection visa application process or review by the delegate did the applicant claim, either expressly or arising from the material, that he feared persecutory harm if returned to Iran for reason of the applicant’s father’s claimed membership of the Basij.[93] Indeed, at the interview before the delegate the applicant did not know if his father “was still alive, retired or working,… he didn’t ask and he didn’t know”,[94] and when asked what his father did for work the applicant said “arms and defence”.[95] The applicant was also given an opportunity to provide the Authority with any submissions regarding the delegate’s decision including “any claim or matter that you presented to the Department that was overlooked”,[96] however, this opportunity was not taken by the applicant.
[91] see [3]–[4] above.
[92] see [5]–[6] above.
[93] see generally AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] per curium.
[94] CB 157 at [11].
[95] CB 158 at [11].
[96] CB 149 at [23].
In the circumstances it was not unreasonable, in the legal sense, for the Authority to ultimately find at [27] of its reasons that it was not satisfied that the applicant’s father was a member of the Basij.[97] Contrary to the applicant’s submissions, it is not sufficient to found jurisdictional error on the assertion that a different conclusion may have been reached on the same material.[98]
[97] see SZMDS at [132] - [135] per Crennan and Bell JJ; see also Minister for Immigration v SZVFW (2018) 357 ALR 408 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ (and the authority cited).
[98] see SZMDS at [131] - [132] per Crennan and Bell J; see also SZOOR v Minister for Immigration (2012) 202 FCR 1 at [84] per McKerracher J (with whom Reeves J agreed).
Further, the Authority’s finding at [27] only formed a part of the its overall credibility findings for which separate, independent bases were provided.[99] Such that, even if the finding at [27] was defective, the finding did not prevent the Authority from exercising its jurisdiction.[100]
[99] Cf Minister for Immigration v SZRKT (2013) 212 FCR 99 at [78] per Robertson J; CB 160 at [22] – [23], CB 161 at [25] – [26], CB 163 at [35].
[100] see Hossain v Minister for Immigration (2018) 264 CLR 123 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 August 2020
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