ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 809
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 809
File number(s): SYG 711 of 2024 Judgment of: JUDGE VASTA Date of judgment: 30 August 2024 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 473 DC, s 473DD, s 5J(4)(c), s 36(2B)(c)
Cases cited: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129
Division: Division 2 General Federal Law Number of paragraphs: 149 Date of last submission/s: 26 August 2024 Date of hearing: 8 August 2024 Place: Brisbane Counsel for the Applicant: Mr Widjaja of Counsel Solicitor for the Applicant: Human Rights for All Counsel for the First Respondent: Mr Kaplan of Counsel Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 711 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ERO20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application filed on 16 April 2024 is dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 15 March 2024, the Immigration Assessment Authority (“the IAA/Tribunal”) affirmed a decision not to grant the Applicant, ERO20, a protection Visa. On 16 April 2024, the Applicant asked this Court to review the decision of the IAA.
This decision is the second time that the IAA has considered the application of the Applicant. On 29 August 2018, a differently constituted IAA affirmed the decision not to grant the Applicant a protection Visa. On 20 October 2023, this Court found that decision to have been infected by jurisdictional error and remitted the matter to the IAA for reconsideration.
The present IAA considered the material given to it by the Secretary, as well as the information that the Applicant gave to it. Considering that much of the new material was not able to be considered by the original delegate (who made their decision on 6 July 2018), the IAA decided to invite the Applicant to an interview with the IAA. This interview took place on 17 January 2024.
After the IAA interview, the Applicant was invited to provide more material to the IAA.
The IAA thoroughly considered whether the new material met the criteria in s 473DD of the Migration Act 1958 (Cth) (“the Act”), and, once it was satisfied that it only had the proper material before it, the IAA set about considering all of the claims of the Applicant.
The Claims
The Applicant is a citizen of Iran. He was born a Shia Muslim. He said that, whilst in Iran, he began a relationship with a woman which could have been deemed “unlawful”. He said that this is what prompted him leaving Iran.
The Applicant left Iran lawfully but arrived in Australia in February 2013 as an unauthorised maritime arrival. He lodged his protection Visa application on 27 May 2016.
On 6 October 2017, Australian Border Force officers intercepted a container which purportedly contained two scissor lifts. Packed inside those scissor lifts were 11 packages which contained 73.72kg of opium. This consignment was sent to the Applicant and another person. The Applicant made a number of arrangements to have the consignment delivered to him. The police were monitoring his moves and, once the consignment was delivered to him, the Applicant was arrested.
He told the police that he had no idea that the consignment contained drugs. Investigations showed that the Applicant was in contact with people from Iran who had arranged for the consignment to be shipped to Australia.
The Applicant was sentenced to 8 years imprisonment which was to commence on 27 October 2017. His sentence would expire on 26 October 2025, but he was eligible for parole from 26 October 2022. The Applicant is currently in immigration detention.
The Applicant claims that, whilst on remand in 2017 or 2018, he was interrogated by an official from the Iranian Embassy seeking details of his criminal activities. He was sentenced by the New South Wales District Court in 2019 and his sentence was retroactively determined to commence on the date of 27 October 2017.
The Applicant claims that officials from the Iranian Embassy attempted to visit him in prison in mid-2020. He said that he refused this visit, and a prison officer then provided him with a copy of correspondence between the Iranian Embassy and the Australian Government.
The Applicant claims that in 2021, whilst serving his sentence, he converted to Christianity. The Applicant claims that he experiences symptoms of anxiety and depression and is undergoing counselling.
The Applicant claims that if he is returned to Iran, he fears that he will face harm due to the past events in Iran as well as his conversion to Christianity. He also fears that he would face re-prosecution, or other harm, due to his drug importation offences in Australia. He was also concerned about the affordability of mental health treatment in Iran.
Relationship in Iran
The claim of the Applicant was that he was in a relationship with a woman, who was not his wife. The Applicant said that this is considered to be a crime in Tehran. However, his accounts of this relationship were inconsistent. The Applicant had written about this relationship in his statement and had been interviewed by the delegate and by the IAA.
The discrepancies about how he met the girl, when he met the girl, what his occupation was when he met the girl, how long the relationship lasted and when he found out that the girl was engaged to someone else, were all matters that negatively affected the credibility of this tale. There was also a very real question as to whether the applicant truly faced any risk of harm because of this relationship.
In the end, after an extremely thorough consideration of all of the relevant matters, the IAA was not satisfied that the applicant was a credible witness or that he had provided a truthful account of past events in Iran involving his claimed relationship with a girl. The IAA said, at paragraph 65 of their reasons, that:
…while it is possible that the applicant did have a girlfriend in Iran, I am not satisfied that it led to the issues he claims or that the girl’s family became aware leading to him to face adverse attention from her family, the police or any other arm of the Iranian security services. It follows that I do not accept that the applicant was ever threatened, attacked or issued a summons by the police
Conversion to Christianity
The Applicant provided information that he was baptised on 15 November 2021, whilst in prison. The Applicant, in his 2023 statement, said that he was introduced to Christianity at the beginning of 2021 by hearing stories from fellow inmates who “were helped by Jesus”. The Applicant said that one inmate who had struggled with drug addiction told him that faith in Jesus enabled him to turn his life around. Another inmate told him that he had nearly died in a car accident and that Jesus appeared before him and brought him back to life.
The Applicant, in that same statement, contrasted the “awful things” that he had seen occurring prison amongst the Muslim inmates (which included fighting and drug use). The Applicant said that these experiences “pushed him away from Islam and towards faith in Jesus”.
The IAA noted that, in his 2016 application for a Visa, the Applicant had stated that he had “no religion”. When the Applicant made that application, he had not yet indulged in the criminal enterprise and had never been imprisoned. This discrepancy (that he was pushed away from Islam towards Christianity when he had already renounced faith in Islam) was not fully addressed by the Applicant, even though he had been given an opportunity to do so.
The Applicant, in the 2023 statement, said that he practised Christianity and intended to continue doing so if he were returned to Iran. He described his relationship with the Bible becoming a Christian in 2021. He also described running a Bible study group for several months at the immigration detention centre as well is participating in monthly Bible study sessions.
The Applicant said that the Bible had significantly helped him a lot over the last couple of years and he intended to run Bible study groups in Iran if he returned. In his IAA interview, the Applicant confirmed that he read a Persian Bible. He said that it showed him the way of life.
When asked to provide a specific passage or section of the Bible that had assisted him in these ways, the Applicant could not give a single example. He said that he was “still studying”. He told the IAA that he read other Christian related books titled “Daily Bread”. When he was asked how he would practise his faith in Iran, the Applicant said that he would get together with a small group and read the Bible.
The IAA noted that the Applicant had demonstrated some basic knowledge of Christianity. The Applicant described Jesus as being the “Son of God” who was sent to help people. He said that the teachings of Jesus, that impacted upon him, were “hopefulness” and “forgiveness”. He said that attending church was important because it allowed Christians to get closer to God, refrain from sinning and maintain hope.
The Applicant said that, since his conversion, he is more tolerant and forgiving and that he now seeks to help others. When asked why he needed religion to act in this way, the Applicant said that Christianity was a religion that helped people who sought to be on the right path. The IAA asked the Applicant if there were any specific verses or teachings from the Bible that had a significant impact on him. The Applicant replied that he could not recall specific pages or verses but mentioned stories of curing of blindness and the resurrection of the dead as examples of what was possible.
The IAA said
Overall I found the applicant’s knowledge of the Bible during the IAA interview irreconcilable with his written claims of leading Bible study groups at the detention centre, participating in monthly Bible study sessions and the impact he stated that it had on his life. This discrepancy raises doubts about his genuine intention to run Bible study groups in Iran.
The Applicant, in his 2023 statement, said that the main way practised his faith was by helping people struggling with drugs and “giving back” to those around him. The IAA asked about the assistance that he had given those people. The Applicant said that he encouraged them to set goals for themselves, advocated for physical activity and engaged in walks and conversations with them to alleviate their sense of isolation.
The IAA noted that the Applicant did not suggest that he relied on teachings from the Bible or any other aspect of Christianity to assist these detainees. The IAA again asked the Applicant how he practised his faith to which he replied, “by praying, reading the Bible and advising other detainees to keep their faith in God”.
The Applicant presented a letter from a Pastor from the Hillsong Church who said that the Applicant had been regularly attending church services since March 2023 at the detention centre. The Applicant also had a letter from a person known as “CT” who spoke of the Applicant’s conversion to Christianity.
The Applicant was asked about how people in Iran would know about his conversion from Islam. The Applicant said that, firstly, he mentioned that he had informed several friends about his conversion so that “everyone” now knows. Secondly, the Applicant pointed out his chest tattoo which features a cross. Thirdly, the Applicant referred to his activity on Facebook where he shared Christian material.
After more thorough consideration, the IAA concluded:
77.Although I have concerns about the applicant’s inability during the IAA interview to recall the name of the church that baptised him, I accept the submission by the applicant’s representative that nothing he said during the IAA interview regarding Christianity was inconsistent with Christian teachings. As previously mentioned, he did demonstrate some basic knowledge of Christianity. However, I found other aspects of his evidence unconvincing. Particularly, his assertion in his 2023 statement that his experiences in prison had pushed him away from Islam, despite clearly indicating that he was not a believer in Islam or religiously inclined at that time. The information from Pastor Waininau, the psychologist, and CT all indicates that the applicant told them that he considered himself a Muslim or a follower of Islam at the time he became a Christian. It is also significant that he was unable to refer to a single passage or verse in the Bible during the IAA interview, despite claiming it had ‘helped him a lot’ and had shown him “the way of life”, and that if he returned to Iran, he would seek to run Bible study groups. I note the Facebook screenshots show the applicant sharing a Bible verse and other content from a Facebook group called ‘Bible verses’. Additionally, the applicant’s knowledge of Christianity, as demonstrated during the IAA interview, did not seem commensurate with someone who had genuinely explored the faith or made a genuine commitment to convert to it. While the applicant’s representative argues in the 2024 submission that he has had limited opportunity to learn about Christianity due to his detention status and that religious gatherings have only been regularly permitted since March 2023, I note the applicant’s own direct evidence regarding his practise within Villawood that he is running and participating in Bible study groups and reading a Persian Bible. I also note the evidence that suggests he has regular access to the phone, video calling, and the internet in detention. I disagree with the representative’s suggestion that my questions during the IAA interview were an attempt to elicit specific responses or to guide the applicant to answer in a ‘particular’ way. I also reject the assertion that I ‘stopped asking questions’ or implied to the applicant that my questions were “too hard”. The interaction during the IAA interview to which the representative refers, involved my asking the applicant why he believed religion was necessary to be kind and help others. I found his response, generally citing that Christianity helped those seeking the right path, to not directly address my question. Giving the applicant the benefit of the doubt, I rephrased the question, asking if there were any specific Christian values, beliefs, or principles guiding his interactions with others. When he proved unable or unprepared to answer, it appeared he lacked the capacity to address such matters, based on his oral evidence up to that point. This also formed part of the reason why I decided to write to the applicant following the interview to give him a further opportunity to provide a response. Following this specific interaction, I continued to pose open-ended questions, including about the Bible, Christian rituals and traditions, his religious practise, his assistance to other detainees, and how he would practice Christianity in Iran. Additionally, I find the applicant’s suggestion during the IAA interview and in the 2024 submissions that his tattoo, inked prior to 2018, symbolises his conversion to Christianity unpersuasive. I note the applicant did not raise any claims before the Minister, prior to his conversion, that he feared being perceived as a Christian in Iran due to his tattoo. Having reviewed the image of the tattoo, I agree it depicts a crown (accompanied by the word ‘Family’). Although the fleur-de-lis may have been featured on the French coat of arms before the French Revolution, its significance within the tattoo is subject to interpretation, as this symbol is also commonly associated with royalty or other forms of emblems, carrying diverse meanings across different eras, cultures, and organisations. Moreover, considering the applicant obtained the tattoo in or around 2017, several years before he was ‘introduced to Christianity’ in ‘2021’, I am not satisfied that his decision to get this crown tattoo, alongside the word ‘Family’, was motivated by religious reasons. I am not satisfied that if the applicant’s chest tattoo became known in Iran, it would be interpreted or perceived as a Christian symbol.
78. I accept the information provided by Pastor Waininau of the Hillsong Church that the applicant has been attending church services in Villawood since the end of March 2023. I also accept the applicant brought three to four friends to a service on 4 February 2024, which coincides with the date of the Pastor’s letter and the day prior to the response to the invitation to comment being provided to the IAA. Additionally, I note the undated correspondence provided by the VIDC Religious Liaison Officer stating that the applicant conducts self-lead Bible studies in the centre. However, despite this information, I maintain real concerns about the applicant’s claim to have participated in any Bible-related studies. While I accept the possibility that the applicant may have conducted self-lead Bible studies at the VIDC, given his evidence is not commensurate with doing such an activity, I have concerns that his doing so was genuine. In her letter, CT states that it was not easy for the applicant to ‘convert’ to Christianity and that he continues to learn and progress in his knowledge of Christianity. This letter is provided as a character reference from a close friend, and I accept that CT may believe in the applicant’s commitment to Christianity. While I accept that both Pastor Waininau and CT appear generally supportive of the applicant’s claims to have genuinely converted to the Christian faith and his protection application, their statements do little to overcome the concerns I have previously highlighted regarding the applicant’s evidence.
79. As previously noted, although the applicant demonstrated some basic knowledge of the Christian faith in the IAA interview, this does not outweigh my other concerns with the evidence discussed and ultimately, I am not satisfied that his conversion to Christianity is genuine. While I accept the evidence indicating that the applicant is kind, helpful, and motivated to assist others, including those experiencing drug addiction, I am not satisfied that these characteristics and traits stem from his interest in or knowledge of the Bible, or his practise of the Christian faith. For all these reasons, I am not satisfied that the applicant’s baptism, participation in Bible study and church services in Villawood, bringing others to a church service, and his activity on Facebook are genuine.
80.Given the matters discussed above, I consider that the applicant does not have a genuine ongoing interest in Christianity and will not practise Christianity on return to Iran. I am not satisfied that his 2021 baptism, participation in or leading of Bible studies, attendance or participation at church services in Villawood, bringing others to a church service, and his activity on Facebook were undertaken otherwise than for the purpose of strengthening his claims for protection. I consider they were all undertaken solely for that purpose. Therefore, pursuant to s.5J(6) of the Act I have disregarded this conduct. Further, I am not satisfied that the applicant has informed friends or family in Iran about his religious activities in Australia.
Non- practising Muslim
The IAA noted that the Applicant had said, upon arrival in Australia, that he identified as a Shia Muslim. As previously noted, in 2016, the Applicant said he had “no religion”. The IAA, as part of their thorough analysis, looked at the situation of the Applicant returning to Iran on as someone who did not identify as a Muslim or as someone who did not believe in any religion.
The IAA relied upon country information.
The IAA was not satisfied that the applicant would widely publicise his beliefs (either anti-Muslim or atheist) if he were returned to Iran. Even though the Applicant had not claimed that he would face harm upon return because of those beliefs, the IAA found that they were not satisfied that the Applicant faced a real chance of harm for those reasons.
Mental Health
The Applicant underwent a psychological assessment, in December 2023, which was conducted by telephone. The report of that psychologist was that the Applicant was experiencing symptoms of anxiety and depression. The Applicant is currently receiving counselling from a psychologist at the detention centre.
The country information was that mental health services were provided as part of mainstream health services in Iran. Mental health services are also accessible privately. The IAA said that they informed the Applicant that there was nothing to suggest that he would be denied access to mental health treatment if he returned to Iran. The IAA also told the Applicant that there was nothing to suggest that he would be denied access to mental health treatment for systematic or discriminatory reasons. When asked to respond to this, the Applicant said that “the cost of mental health treatment was very high”.
The IAA quoted from some country information that stigma is a significant barrier to seeking treatment for mental health. However, the country information indicated that there were signs that this was changing, at least in the more progressive parts of Iran.
The IAA accepted that the Applicant does have symptoms of anxiety and depression and that he may require treatment, in the form of counselling, in the reasonably foreseeable future. The IAA found that the Applicant would not be denied health treatment in Iran and any limitations were not for discriminatory reasons.
The IAA noted that whilst there may be a stigma that discouraged people in Iran to seek mental health treatment, the Applicant had sought such treatment in Australia, and he encouraged others to do the same. The report from the psychologist did not indicate that stigma would be a barrier to him seeking treatment.
Based on this evidence, the IAA was not satisfied that the Applicant faced a real chance of harm in relation to any mental health condition.
Iranian Embassy prison visits
In his 2023 statement, the Applicant claimed that an Iranian Embassy officials visited him in prison in the late 2017. The Applicant claimed that he was interrogated, for about 30 minutes, and he refused to answer the officials’ questions about his criminal activity.
The IAA invited the Applicant to provide a copy of the relevant visitor log. The Applicant did provide the log, but it did not identify, directly, indirectly or inferentially, that any Embassy official visited the Applicant.
When complying with this request, the Applicant added that Iranian Embassy officials attempted a second visit in mid-2020 which the Applicant refused. He said that a prison officer handed him correspondence between the Embassy and the Australian Government. The Applicant claims that this correspondence corroborates his claim.
The correspondence instead shows that the Embassy stated that they wish to “provide legal and consular support to Iranian nationals”. The correspondence said that the Embassy needed to be aware of the latest situation of Iranians who are likely to serve their sentences in Australian prisons for different reasons. The Embassy said that “it would be highly appreciated if (DFAT) could kindly take necessary measures through the relevant authorities in Australia to provide this Embassy with a complete list of Iranians who are in custody in Australian prisons”. The DFAT response was that the Embassy would need to contact the relevant State Corrective Services to obtain details of Iranian prisoners and it noted that Australian privacy laws apply to such requests.
The IAA found that the evidence of the Applicant was “unconvincing”. The IAA considered that if the Applicant had undergone the kind of interrogation he claims, he would have mentioned this during his interview with the delegate. Whilst the representative of the Applicant has claimed that the Applicant was experiencing mental health issues and that this could be a reason why he did not mention the visit, the IAA was not satisfied that this would be a reason for not mentioning the visit and noted that the Applicant himself did not make this claim.
The IAA did not accept that the correspondence corroborated the claim of the Applicant. The IAA noted that there was nothing on the correspondence to indicate that it had been received by the prison. The IAA found it difficult to accept that an Embassy official would be permitted to visit the Applicant in prison without the Applicant specifically requesting consular assistance (which the Applicant did not claim).
The IAA was also concerned that the Applicant, in his 2023 statement, mentioned a visit in late 2017 but made no mention of the attempted visit in 2020, nor did that statement mention the diplomatic correspondence. The failure to mention this in the 2023 statement was not addressed by the Applicant.
The IAA concluded, at paragraph 97 of their reasons:-
When I consider all the evidence in its entirety, I am not satisfied that the applicant was visited by an Iranian Embassy official while he was in prison in 2017, 2018, or at any other time. I am also not satisfied there was an attempt by Embassy officials to visit him in 2020 or that he was handed the 2020 Embassy request and 2020 DFAT response by the prison officer.
Re-prosecution
The IAA accepted that the Applicant had served his full sentence for the importation of 73 kg of opium. The sentence was wholly served in Australia. The Applicant claims that he fears re-prosecution of this offence if he is returned to Iran. He said that, if he is convicted, he would face the death penalty.
The IAA spoke of the description of crimes that are punishable by taz’ir and crimes that are hadd crimes. According to country information, which was provided by the applicant and is found at CB 555, the hadd is said to be this:-
The hadd (literal meaning “limit” or “restriction”) is a punishment fixed in the Quran and hadith for crimes considered to be against the rights of God.
In the glossary to a Norwegian report (country information which was also provided by the Applicant at CB 832), the terms “hadd” and “taz’ir” are respectively defined as:-
fixed corporal punishment (category of Islamic/Islamic Penal Code punishment
discretionary punishments (category of Islamic/Islamic Penal Code punishment
In another country report, also provided by the Applicant at CB 854, this was written about crimes punished by hadd punishments:-
These crimes are referred to as “fixed corporal punishments”. Hadd punishments include the death penalty, stoning, crucifixion, flogging, imputation (of hand and foot), life imprisonment and banishment. The type and scope of these punishments are determined by Islamic law, and are regarded as being fixed by God, and therefore cannot be commuted or pardoned by a judge.
Hadd crimes include fornication/adultery, sodomy, lesbian relationship, procuring a prostitution, false accusation of fornication/sodomy, defamation of the profit, consumption of alcohol, robbery/theft, waging war against God, corruption on earth and rebellion.
According to Article 45 of the Anti-Narcotics Law (which is reproduced at CB 533, the following is the law in Iran:-
If the perpetrators of the crimes, who are punishable by death or life
imprisonment in this law, meet one of the following conditions, these perpetrators are
considered “corrupting the earth” and are sentenced to death penalty and confiscation of their property caused by narcotic drugs or psychotropic substances. Otherwise, and on a case by- case basis, those who are "subject to execution” will receive a first-degree imprisonment of up to thirty years and first-degree fine or twice the amount; and those perpetrators who are “subject to life imprisonment" will receive a sentence of a second-degree imprisonment and fine, and in both cases to confiscation of property resulting from drug and psychotropic crimes:
A)Cases where the master of the crime or at least one of the accomplices drew a weapon during the commission of the crime or carried firearms or hunting weapons with the intention of confronting the officers. Weapons in this clause are cold weapons and weapons and ammunition subject to the Law on Punishment of Arms and Ammunition Trafficking and Possessors of Illegal Weapons and Ammunition approved on 28/9/2011.
B) If the perpetrator has the role of leader [the subject of Article (130)]of the Islamic Penal Code approved 21/4/2013) or has a financial supporter or investor, or has used children and adolescents under eighteen years of age or insane persons to commit a crime on his behalf.
C)Cases where the perpetrator has a record of a definite sentence of death or life imprisonment or imprisonment for more than fifteen years due to committing the crimes that are the subject of this law.
D)All the crimes under article (4) of this law provided that it is more than fifty kilograms and the substances under article (8) of this law provided that it is more than two kilograms and regarding other crimes under article (8) if it is more than three kilograms. The implementation of this clause towards the perpetrators, defendants and criminals before this article becomes effective depends on having one of the conditions of clauses (a), (b) or (c).
Note - In the case of the crimes subject to this law, which are punishable by imprisonment for more than five years, in the event that the minimum legal punishment is issued, except for the cases in the note of Article (38), the perpetrator is suspended from the execution of the sentence, parole and other institutions of friendship, with the exception of the pardon of the supreme authority. The leadership mentioned in Clause (11) of Article One Hundred and Ten (110) of the Constitution will not benefit, and if the sentence is more than the minimum legal punishment, the court can impose a part of the prison sentence after serving the minimum legal punishment for five to ten years. to suspend. The above law containing a single article was approved by the Parliament of the Islamic Republic of Iran in a public session on Wednesday, 4/10/2017, and was approved by the Guardian Council on 18/10/2017.
According to Article 7 of the Islamic Penal Code (reproduced as part of paragraph 107 of the IAA’s reasons, the following is the law in Iran:-
In addition to the cases mentioned in the articles above, any Iranian national who commits a crime outside Iran and is found in, or extradited to, Iran shall be prosecuted and punished in accordance with the laws of the Islamic Republic of Iran, provided that:
a.The committed conduct is deemed an offense under the law of the Islamic Republic of Iran.
b.If the committed crime is punishable by ta’zir, the accused person is not tried and acquitted in the place of the commission of the crime, or in the case of conviction the punishment is not, wholly or partly, carried out against him. (my emphasis)
c.According to Iranian laws there is no basis for removal or discontinuation of prosecution or discontinuation or cancellation of execution of the punishment.37
The Applicant argued that, according to the law, he would be re-prosecuted for the crime that he committed in Australia. He claims that such a crime would be considered as equating to “corruption of the earth” and this would mean that his crime would be considered a hadd crime. This means that he would face the death penalty.
As part of his claim, the Applicant gave the IAA a letter from an Iranian lawyer. This letter is reproduced at CB 1001. The relevant parts of the letter are as follows:-
According to article 7 of that law, any Iranian citizen who commits a crime abroad, if found in Iran or return to Iran, will be tried and punished according to Iranians laws.
Article 45 of the anti-narcotics Law in four clauses, states that conditions under which the perpetrator will be sentenced to “destroying the land” and the punishment of “hadd” (death) will be implemented against him.
And paragraph 4 of article 45 includes the crimes of article 4 provided that it is more than 50 kg.
This means that a person who has committed the export of more than 50 kg of “opium” from Iran, if it is discovered in Iran that he has committed such a crime, unfortunately, he will be executed.
The IAA referred to country information which indicated that drug trafficking was punishable by taz’ir and that re-prosecution of hadd crimes appears to only occur in circumstances not relevant to the applicant’s case.
The IAA said this about the letter from the Iranian lawyer at paragraph 104 of its reasons.
I have carefully considered the very brief legal opinion from Iran dated 16 February 2024. The writer identifies themselves as an ‘Iranian Lawyer’ from Tehran, although no information is provided regarding their qualifications or expertise regarding Anti-Narcotics Law or the Iranian Penal Code. It is not evident to me that this lawyer is qualified to give a legal opinion on such matters, nor is it apparent that they are aware of all of the applicant’s relevant circumstances. The lawyer states their opinion is in response to questions outlined in the representative’s letter dated 12 February 2024, which has not been provided to the IAA. The lawyer refers to Article 7 of the penal code, which states that citizens who commit crimes abroad will be tried and punished in Iran. However, they do not make reference to the exceptions to re-prosecution as outlined in the country information and ERO20. Their analyss of Article 45 is extremely brief and does not address the concerns outlined in the IAA’s invitation to comment. Additionally, they refer to hadd as meaning death, whereas other information before me overwhelmingly indicates that hadd is a type of crime under Islamic law. The lawyer also mentions the risk facing the applicant if he were to be ‘extradited to Iran’. It is not apparent whether they are aware or have been informed that the applicant has already been convicted in Australia and served his sentence. Having carefully considered this letter, I give it no weight.
The IAA referred to the country information that it had, and concluded, at paragraph 113 of its reasons, that they were not satisfied that the Applicant faced a real chance of re-prosecution, or any harm in Iran, in connection with his drug charges, imprisonment and/or conviction now, or in the foreseeable future.
Failed asylum seeker
Notwithstanding that the Applicant did not make a claim that he feared harm if returned to Iran as a failed asylum seeker from a western country, the IAA, nevertheless, looked at this aspect. Having regard to country information, the IAA was not satisfied that the Applicant faced a real chance of harm as a failed asylum seeker, or because he had spent time in a western country like Australia.
Complementary protection
Having found that the Applicant did not meet the criteria for refugee protection, the IAA then looked at whether the Applicant met the criteria for complementary protection. In looking at this aspect, the IAA revisited the issue of the Applicant’s purported Christianity and his need for counselling services due to his mental health.
Using the same analysis that had previously been applied to these issues, the IAA concluded that the Applicant did not meet the criteria for complementary protection.
Having come to all of those conclusions, the IAA affirmed the decision of the delegate.
The proceedings in this Court
The matter was heard by me on Thursday, 8 August 2024. Because of a novel argument espoused by Counsel for the Minister (of which there had been no previous notice), I heard all of the submissions regarding the application but gave Counsel for the Applicant some time to provide further written submissions to answer the point raised by Counsel for the Minister during oral argument.
I put counsel on strict timelines for the provision of further submissions because the Applicant is in immigration detention. I have strived to deliver this judgement in a timely manner because of that fact.
By 28 August 2024, I had received all submissions by both Counsel. I will proceed seriatim through the grounds of this application.
Ground One
Ground One is framed as follows:
The IAA fell into jurisdictional error on the ground of irrationality or illogicality by concluding that the legal opinion of Ms Nastaran Zamanipour (Legal Opinion) should be given no weight.
Particulars
a. The applicant has been convicted of serious drug trafficking charges and claimed in the IAA that he may be subject to reprosecution if he was returned to Iran.
b. The applicant provided an opinion from Ms Zamanipour, a practising lawyer in Iran which outlined the relevant law and the possibility of execution.
c. At [104] of the IAA’s Reasons, the IAA gave the Legal Opinion no weight on the basis that:
i.the Legal Opinion did not address the concerns outlined by the IAA in the invitation to comment;
ii.concluded that the Legal Opinion erroneously stated that Hadd crimes meant “death”;
iii.there was no evidence that the lawyer is qualified to give a legal opinion on such matters;
iv.it was not apparent that the lawyer was aware of the applicant’s circumstances.
d. the IAA’s findings in (c) above are irrational/illogical in circumstances where:
i.in the context which the legal opinion was given, Hadd crimes result in punishment by death penalty;
ii.the document identified that Ms Zamanipour was an ‘Attorney at Law’ and member of the Iran Central Bar Association, and that she represents criminals in Tehran;
iii.Ms Zamanipour refers to the “high volume” of exports done and the fact of a crime committed abroad, which can only be understood as applying to the applicant’s circumstances.
Because of the claim of the Applicant, the IAA was required to consider those aspects of the Iranian Penal Code that I have already reproduced in these reasons. The consideration by the Tribunal was a factual one rather than a legal one.
The IAA needed to consider whether the Applicant was liable to re-prosecution. To consider this question, the IAA needed to look at quite a deal of country information. Part of that information included the letter from the Iranian lawyer. The weight to be assigned to that information was a matter for the IAA. The IAA gave the letter no weight as per paragraph 104 of its reasons. The Applicant argues that it was unreasonable for the IAA to give the letter no weight.
The Applicant argues that, on an analysis of Article 45 of the Iranian penal code, the Applicant has dealt with more than 50 kg of opium. The Applicant argues that this enlivens Clause D of the article. The applicant argues that an Iranian Court would find him to be a “financial supporter or investor” which would enliven Clause B of the article.
If both those clauses are enlivened, the Applicant argues that his crime becomes a hadd crime because he will be deemed to have “corrupted the earth” and therefore he is liable to execution. The Applicant argues that the letter of the lawyer corroborates this assertion.
The Applicant argues that, on the face of the document, the lawyer was qualified. She claims that she is an “attorney at law” at the “Iran Central Bar Association”. The Applicant argues that the lawyer was obviously aware of the circumstances of the Applicant. Whilst the IAA had asked the Applicant to address a specific concern, and the letter of the lawyer did not address that specific concern, the Applicant argues that the letter was still relevant to the claim of re-prosecution. The Applicant also argues that the lawyer, in equating “hadd” with “death”, was being consistent with other country information.
In all of those circumstances, the Applicant argues that it was illogical, irrational and unreasonable for the IAA to ascribe no weight to this letter.
The argument of the Applicant that the IAA had treated the letter as being “irrelevant to the claim of re-prosecution” is not a proper characterisation of what the IAA had done. The IAA obviously treated the letter has been relevant to that claim. The IAA carefully considered the letter but, in the end, gave it no weight.
The IAA expressed that it was not evident to the IAA that the lawyer was qualified to give a legal opinion on such matters. The mere fact of someone being an “attorney at law” or being “an Iranian lawyer who represents in Tehran” does not automatically give them qualification to give a legal opinion. If there were other evidence, such as the lawyer being a criminal lawyer who has represented a certain number of people on charges involving drug trafficking or representing persons who have committed crimes in a foreign country and then been re-prosecuted in Iran, then the qualification to give such a legal opinion would have been well and truly established.
The IAA said that it was not apparent that the lawyer was aware of all the Applicant’s relevant circumstances. The lawyer speaks of the risk facing a criminal who is “extradited” to Iran. The Applicant is not someone who would be “extradited”; he is a person who has been convicted and served the whole of his sentence in Australia.
While the Counsel for the Applicant argued that the use of the word “extradited” should be taken to mean something different to what the usual meaning ascribed to “extradited” is, that argument does not hold weight when one considers that the word “extradited” is used in Article 7 where the usual meaning ascribed to “extradited” fits the meaning of the word in Article 7.
This is compounded by the fact that the letter speaks of answering questions of the legal representative of the Applicant that were asked on 12 February 2024. The Applicant did not provide the letter sent to the lawyer so that her opinion had context. There has been no explanation from the Applicant as to why this was not done.
It seems to me then that the reasoning of the IAA (that it was not evident that the lawyer was qualified to give an opinion and that it was not apparent that the lawyer had been apprised of all of the circumstances of the Applicant) was not illogical, irrational or unreasonable; the reasoning of the IAA was well and truly open to it.
The opinion itself does equate the term “hadd” with “death”. There is no other country information which supports the equating of those terms. I have already recited the country information that defines the term “hadd”. That country information was provided by the Applicant. It does not support the equating of “hadd” with “death”. There is nothing illogical, irrational or unreasonable in what the IAA has said regarding this topic.
In the end, the IAA has acknowledged the relevance of such a letter to the claim of the applicant. The IAA has carefully considered the letter. The IAA has decided to give the letter no weight as is well within the power of the IAA to do. Having looked at the reasoning for such a decision, it was well and truly open for the IAA to decide as they had.
Ground One therefore fails.
I should add that Counsel for the Minister submitted that, even if there had been a jurisdictional error regarding the letter of the lawyer, such an error would only have gone to the consideration of the claim regarding “re-prosecution”. Such a claim was not one that is covered by s 5J(4)(c) or s 36(2B)(c) of the Act, because it was a general law that was non-discriminatory. The Applicant did not claim that the law would be used in a discriminatory way towards him. Therefore, the application of this law is not one that is covered by the relevant provisions of the Act.
As this was an argument that seemingly came to Counsel while they “were on their virtual feet” (this hearing having been conducted through Microsoft Teams), it was not an argument about which Counsel for the Applicant had been given notice. For that reason, the matter was adjourned for submissions on this point.
Having read those submissions, I am of the view that the answer may not be as cut and dried as Counsel for the Minister has claimed. I have some disquiet about whether, if the IAA had accepted that the Applicant could be re-prosecuted for a hadd crime, the mandatory death penalty could be said to be a risk faced by the population of the country generally. However, disquiet does not replace principle and it is not unusual for Judges in this jurisdiction to have disquiet about the decisions that they must make.
But it is not a matter that I have needed to decide. I have not found that the decision, to give the letter from the lawyer no weight, was infected by jurisdictional error. This means, consequently, that the finding of the IAA, that this crime was a crime punishable by taz’ir, and not by hadd, was also not infected by jurisdictional error. That is sufficient to dispose of Ground One.
Ground Two
Ground Two is framed in these terms.
Further, and in the alternative, the IAA fell into jurisdictional error by engaging in legal unreasonableness by failing to obtain the applicant’s briefing letter to Ms Zamanipour.
Particulars
a. At [104] of the IAA’s Reasons, the IAA states that it was not provided the applicant’s briefing letter to Ms Zamanipour;
b. The IAA noted concern about whether Ms Zamanipour was aware or informed of all of the applicant’s relevant circumstances and that the applicant had been convicted and served his sentence;
c. The above concerns at (b) were significant to concluding the Ms Zamanipour’s opinion should be given no weight.
d. The briefing letter would have filled the gap in the IAA’s knowledge and alleviated the concerns of the IAA stated in (b) above);
e. In the premises, the IAA was legally unreasonably in failing to consider exercising its discretionary powers under s 473DC of the Migration Act 1958 to obtain the briefing letter.
The basic claim is that the IAA unreasonably failed to consider exercising the power under s 473DC to request the information that the Applicant should have put before the IAA in the first place. The IAA had already exercised its power, under this section, on at least two occasions. It actually requested information regarding the Iranian penal code and, whilst not answering that information, the Applicant gave the IAA the letter from the lawyer.
The Applicant obviously had every opportunity to put the information (that is the letter of instruction) before the IAA. As previously noted, there was no explanation as to why the Applicant had not put this information before the IAA when it obviously had both the means and the opportunity to do so. For the Applicant to now turn it around and say that the IAA committed a jurisdictional error because it did not seek to correct what was a very obvious decision made by the Applicant to not provide such a letter, is quite preposterous.
As the Minister points out, the Applicant’s proposition needs only to be stated, to be rejected. This is a case that is just totally different to all of the authorities that have spoken about the IAA unreasonably refusing to use their statutory power to plug an informational gap in the evidence.
Not exercising the power under s 473DC, in the circumstances, could never be said to be legally unreasonable.
Ground Two therefore fails.
Ground Three
Ground Three was framed in these terms.
The IAA’s decision was infected by serious irrationality or illogicality in finding that the applicant’s conversion to Christianity was not genuine.
a. The applicant claimed a serious risk of harm by reason of his conversion to Christianity.
b. The IAA concludes that the applicant’s conversion to Christianity was not genuine and solely for the purpose of strengthening his claim for protection (at [79] to [80) on the basis of:
i.a speculative conclusion (at [75]) that the applicant’s posting of Christian related content on the day submissions were provided to the IAA was for the purpose of advancing his claim for protection.
ii.that the applicant was unable to recite a single passage or verse of the Bible (at [77]);
iii.the applicant’s tattoo was a ‘fleur de lis’ symbol which may have been featured on the French coat of arms prior to the French revolution and was also commonly attributed with royalty has diverse meanings across different eras and cultures (at [77]).
c. The IAA’s findings are irrational or illogical in circumstances where:
i.the IAA accepted that the applicant had some knowledge of Christianity and that he had been attending church services at Villawood Immigration Detention Centre since March 2023;
ii.that on 4 February 2024, the applicant had brought others to attend church services and engaged in bible studies (at [78]);
iii.the IAA accepted that nothing the applicant had said in his interview with the IAA was inconsistent with Christianity and its teachings (at [77]);
iv.the IAA recognised it was asking questions of the applicant’s faith that were “too hard” but then treated, as significant, the inability of the applicant to recite a verse or passage of the Bible, when that is not prerequisite to the conclusion of a person’s identification as a practising Christian;
v.the IAA concluded applicant’s knowledge of the Bible was irreconcilable with his claim to lead Bible study groups and participation in monthly Bible sessions (at [70]), where the practice in Christianity does not mandate that a person have a memory recall of passages of the bible;
vi.in relation to the Applicant’s chest tattoo:
1. there was no evidence about the use of the ‘fleur de lis’ being on the French Coat of Arms before the French Revolution (contrary to [77]);
2. there is no apparent relevance on its use in the French Coat of Arms to the applicant’s claim of its identification as being Christian on return to Iran, and his broader claim relating to his conversion to Christianity;
3. there was no evidence about the different eras, cultures, and organisations, the IAA refers to in [77], nor does the IAA suggest that any cultures it has in mind are Islamic;
4. that the IAA was not satisfied the tattoo would be considered a Christian symbol, in circumstances where the tattoo comprises of a Crown with two Christian crosses on it.
The reasoning of the IAA to find that the Applicant’s conversion to Christianity was not genuine has been spelled-out in my recitation of the decision of the IAA. The Applicant claims that this reasoning was irrational and illogical.
The Applicant submits that the IAA accepted that there was nothing that the Applicant had said that was inconsistent with Christian teachings. The IAA had also accepted that the Applicant “did demonstrate basic knowledge of Christianity”. The IAA accepted that the Applicant had attended church services. The IAA accepted that the person, CT, supported the claims of the Applicant to have converted to Christianity.
The Applicant claims that the illogicality of the reasoning stems from the IAA having a negative view as to the timing of postings on Facebook and also from the failure of the Applicant to “recite a passage of the Bible”.
The second aspect referred to is a misstatement of what the IAA had said. The IAA had said that the Applicant was unable “to refer to a single passage or verse in the Bible during the IAA interview”. There is quite a difference between the IAA looking at whether the Applicant could “recite” a passage as opposed to being able to “refer” to a passage.
The history of the jurisprudence in this area is quite instructive.
In SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129, the Full Court was dealing with an applicant from China who stated that he was a follower of the Falun Gong religion. In that case, the AAT had concluded that the particular applicant before them was not a genuine Falun Gong practitioner and had engaged in Falun Gong activities in Australia solely to strengthen his refugee claim.
The Full Court said that the second ground of appeal in that matter was said to go to: “the apparent imposition by the AAT of a standard that it imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status”. The argument was that there was no evidence before the AAT to indicate any “cut off” point for an acceptable minimum level of knowledge for a Falun Gong practitioner.
The Full Court said that:
…the short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement, or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim.
The Full Court also noted that the ground of appeal was formulated upon an assumption that the AAT held that “every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion”. The Full Court said that this was not a proposition enunciated or implied in the reasons of the Tribunal.
In Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108, the Full Court was also dealing with an applicant from China who claimed to be a practitioner of Falun Gong. The AAT did not accept the claim saying that “they did not believe that the applicant is a Falun Gong practitioner; his inability to answer correctly my questions about basic elements of Falun Gong belief causes me to discount any possibility that he has practiced Falun Gong in China as he claims”.
Kenny and Rares JJ noted that there was no reference in the Tribunal’s reasons as to any material against which the applicant’s knowledge of Falun Gong could rationally be evaluated. All that was said by the Tribunal was “at hearing, I first asked the applicant a series of questions about Falun Gong. He answered none of them correctly”.
At paragraphs 37 -39 of the decision, Kenny J said
37.These authorities indicate that the question whether applying an “arbitrary standard” of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that “every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion” may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between:(a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
38.Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
39.If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
Her Honour concluded that:
… the conclusion of the AAT, that the applicant’s answers were not correct, was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision maker could have evaluated the answers of the applicant; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding.
In MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436, the Full Court was dealing with an applicant from Iran who claimed that he was no longer a follower of Islam and have become agnostic. At paragraph 47, the Full Court said
47.The holding of a religious belief, or adherence to a particular religion (whether organised or not) is a fundamental aspect of individual identity. Although some might see religious adherence and belief as of a more profound nature than the holding of a particular political opinion, its character is no different for the purposes of the Convention, in the sense that it is an attribute held internally and manifested (or not) depending on choice, culture and custom. For the purposes of applying Art 1A of the Convention as implemented in s 36 of the Migration Act, a decision-maker must ascertain whether a person in fact holds a particular religious belief or adheres to a particular religion as she or he claims. In some cases this may be obvious, and the genuineness of the belief may be readily apparent. In others, less so. An evaluation of an internally held attribute — such as an opinion or a belief — is likely to involve questions about how the individual understands that belief, what it means to that individual, how she or he manifests that belief. Testing a claim to hold a particular political opinion may need to be undertaken in this way and the same is true of a claim to hold a religious belief. There is no immunity from scrutiny simply because the Convention ground is religious belief. What the authorities have pointed to, however, is a need for the questioning to be rationally capable of assisting a decision whether the person’s claim to hold the belief is genuine or not. Importantly, what must be undertaken is questioning of that particular individual’s belief rather than the application of some standardised or assumed level of knowledge.
I do not find any inconsistency in the reasoning of those three Full Courts. On a factual level, the reason that SZLSP (Supra) was successful, in establishing jurisdictional error, was that the AAT had expressed the answers given by the applicant (in relation to his religion) as being “right” or “wrong”. Whether questions as to religion can ever be “right” or “wrong” is a road upon which this Court need not traverse. However, as a matter of common sense, an answer can only be described as being “right or wrong” when compared to an authoritative standard. In SZLSP (Supra), this authoritative standard was never identified.
In SBCC (Supra), the AAT made an objective assessment as to the knowledge and belief as to the core principles of the particular applicant and used that assessment as the basis for a conclusion as to whether the applicant was a genuine adherent to the religion or whether that claim was being used to strengthen the overall claim for protection.
The standard for such assessments, seems to me, to be the one adopted by the Full Court in MZZJO (Supra).
When applying these principles to the present matter, there cannot be any criticism of the IAA in their questioning of the Applicant. The enquiry made was done in accordance with the principles in MZZJO.
The IAA did not set out to “test” or “quiz” the Applicant on his knowledge of the Bible or of Christian dogma. Instead, the IAA asked him open-ended questions about what he had told the IAA regarding his faith in Christianity. When asked about whether there were specific verses or teachings that had a significant impact on him, the Applicant referred to the curing of blindness and the resurrection of the dead. The Applicant said that he could not recall specific pages or verses.
However, given that the Applicant was leading a Bible discussion group and that he had said that the Bible had “helped him a lot” and it shown him “the way of life”, the fact that he could not refer to anything other than two stories in general terms (and nothing that was directly specific to “helping” the Applicant or “showing him the way of life” during the whole of the interview), could justly be described as being “significant”.
The Applicant has attempted to paint the IAA as requiring the Applicant to be able to “recite” passages or verses in the Bible. The IAA has done nothing of the sort, and it well may be that the Applicant has “overreached” in its description of what the IAA has done so as to fit within the conduct that was deprecated by Kenny J in SZLSP (Supra).
In regard to the tattoo, the evidence is that the Applicant has had this tattoo for at least four years before he was even introduced to Christianity. According to his contemporaneous statements, the Applicant had no religion at the time he got the tattoo. If it did have religious significance, it is incongruous with his beliefs at that time. If it did have religious significance, the IAA logically points out that the Applicant, when he first spoke to the delegate, may have claimed that the tattoo would be something that could cause him harm if he were returned to Iran.
Having regard to these matters, it cannot be said that the conclusion, that was arrived at by the IAA, was not open to it. Realistically, this ground is no more than the Applicant expressing disagreement with the conclusion of the IAA. This does not illustrate any jurisdictional error.
For those reasons, Ground Three fails.
Ground Four
Ground Four is framed in this way.
The IAA fell into jurisdictional error by concluding that new information advanced by the applicant of threats due to failed drug importation could not, pursuant to s 473DD(b)(i) of the Migration Act 1958, have been provided to the Minister before a decision being made.
a. The applicant claimed that he was threatened for the failed drug importation (at [29]).
b. The IAA treated the claim as “new information” pursuant to s 473DD of the Migration Act 1958, and declined to consider it.
c. At the time of the applicant’s SHEV interview, he was on remand in relation to drug importation charges.
d. The applicant had pleaded not guilty to the charges.
e. If the applicant had told the delegate that he had been threated, this would have been an admission, and would have prejudiced his ability to defend his criminal proceedings.
f. In the circumstances, the IAA acted irrationally, illogically and/or legally reasonably.
When this ground was argued during the hearing before me, it was not vigorously pressed. This was because the reasoning, behind the claim that there is a jurisdictional error, is that “if the Applicant had told the delegate that he had been threatened, this would have been an admission and would have prejudiced his ability to defend his criminal proceedings”. There is simply no evidence of this.
If the Applicant had actually given evidence to the IAA (in the statements and the interview) as to why it was that he did not tell the delegate that he had been threatened, then the IAA would have been obliged to consider whether that was a reason that satisfied s 473DD(b)(i). But there was no such evidence.
The Applicant is only speculating that this could have been a reason.
I agree with the submission of the Minister who says that
…in the absence of the submission explaining why the information could not have been provided, it was open for the authority to find that it could not be satisfied that s 473DD(b)(i) was not satisfied. The applicant cannot, in an application for judicial review, seek to provide an explanation, for the first time, for not having complied with his duty in s 5AAA of the Act.
For this reason, Ground Four also fails.
Ground Five
Ground Five was framed in this way.
The IAA fell into jurisdictional error by engaging in irrational or illogical reasoning in finding that the applicant does not face a real chance of harm due to his mental health conditions.
a. The IAA considered the effect of the applicant’s mental health conditions should he be returned to Iran.
b. The IAA concluded (at [90]) that it was not satisfied that the applicant faces a real chance of harm in relation to his mental health conditions because:
i.the Applicant had not claimed he would be denied mental health treatment in Iran;
ii.the Applicant had no shown concern about being socially stigmatised for his mental health issues;
iii.the Applicant would not be concerned with stigma in Iran associated with seeking treatment for mental health conditions because he had sought treatment in Australia.
c. The IAA’s reasoning is irrational, illogical and/or legally unreasonable on the basis that:
i.the absence of the applicant specifically claiming a concern for being denied mental health treatment in Iran or that he may be socially stigmatised is not a basis for concluding that the applicant does not face a real chance of harm;
ii.the IAA was required to objectively assess any implied claim, regardless of the applicant’s belief or silence on the issue;
iii.the IAA draws a direct comparison of the applicant’s actions in Australia (where mental health stigma is less) to what he would do in Iran, which is a different culture and less accepting of mental health issues.
The Applicant has impliedly claimed that he has a well-founded fear of persecution by reason of his membership of a particular social group, namely persons suffering from mental illness. The IAA needed to decide whether any fear of persecution was “well-founded” and whether the persecution would cause serious harm to the Applicant (which would include denial of access to basic services where that denial threatens the Applicant’s capacity to subsist).
The IAA referred to country information that suggested that “in many countries, stigma is a barrier to treatment”. The IAA accepted that the Applicant suffers from anxiety and depression. The IAA accepted that the Applicant may require ongoing treatment in the form of counselling. The IAA noted that the Applicant had sought mental health treatment in Australia and that he has not indicated that stigma is a barrier to him seeking treatment.
The Applicant claims that the way in which this issue was framed by the IAA was illogical and irrational. The Applicant claims that the IAA’s reasoning is that any stigma as to accessing mental health services in Australia can be equated to the stigma in accessing mental health services in Iran. The Applicant claims that the IAA failed to assess the effect of stigma upon the Applicant on the basis of him being in Iran and being subject to Iranian societal norms.
What can be seen in reading the reasons of the IAA, is that the IAA put to the Applicant what the country information was regarding mental health services in Iran. The Applicant was invited to respond during, or after, the interview to what the IAA had said about mental health services in Iran. He was also specifically invited to respond as to any concerns he may have about accessing mental health treatment in Iran. His only response was that the cost of mental health treatment was very high.
It was the IAA who then spoke of the country information regarding stigma.
The IAA noted that the Applicant didn’t claim that he would be denied mental health treatment in Iran, nor did he speak of his mental health condition giving him a risk profile or that he would be limited in receiving treatment for a systematic or discriminatory reason.
The Applicant submits that the Applicant would not make such claims because the IAA had already told the Applicant what the country information was before asking for any comment. The Applicant claims that such actions are not likely to induce a negative comment because a person would assume that the questioner’s mind had already been made up.
But this is not what happened. The IAA told the Applicant what the country information was. The Applicant was free to check, or verify, this information after the interview and was also free to make further comments as to the veracity of the country information. The Applicant did not have to accept it. In a similar way, the Applicant did not accept the country information about re-prosecution and presented more evidence in the aftermath of the interview.
With respect to the question regarding mental health accessibility, the Applicant only commented on the expense of it. He didn’t make any other claim. The IAA was correct when they said that he had not made any claim.
The IAA looked at the question of stigma as this was an issue identified in the country information. Given that the Applicant made no claim about stigma and given the other factors identified by the IAA (such as his encouraging others to access these services), the conclusions made by the IAA were well and truly open to it.
Ground Five does not illustrate jurisdictional error and it also fails.
Ground Six
Ground Six is framed in this way.
The IAA fell into jurisdictional error by engaging in irrational or illogical reasoning in finding it was not satisfied that an Iranian Embassy Official had visited the applicant in prison (at [95]).
a. The IAA found that the DFAT Letter informed the Iranian Embassy that a detained person must be informed of their rights for consular assistance but that a consular official cannot visit, converse with, or correspond with a detainee if expressly opposed by the detainee.
b. The IAA then reasoned that having regard to the DFAT Letter, it would be difficult to accept that an Iranian Embassy official would be permitted to visit the applicant in prison without the applicant specifical requesting consular assistance.
c. The IAA ultimately concludes that the applicant was not visited by Iranian Embassy official.
d. The IAA finding in (b) above is illogical or irrational as it relies on a misapprehension of the DFAT Letter as visitation being permitted only when consular assistance has been requested, when properly understood the DFAT Letter states that an official cannot visit if expressly opposed by the detainee.
The Applicant claims that one of the integral reasons for the rejection of his claim regarding the visits of Iranian Embassy officials is the letter from DFAT caused the IAA to “find it difficult to accept that an Iranian Embassy official would be permitted to visit the applicant imprisoned without the Applicant specifically requesting consular assistance, which is not claimed”.
The Applicant claims that the actual DFAT letter could not support what the IAA has said.
The letter, itself, is reproduced at CB 972. Relevantly, the letter reads as follows:-
The Department has the honour to advise there is no federal prison system in Australia, and no national system of prisoner records. Records of prisoners are managed by individual State or Territory Corrective Services. To obtain records of Iranian prisoners, the Embassy would need to make a request to each individual State or Territory Corrective Services (contact details attached), while noting that relevant Australian privacy laws apply.
Under the Vienna Convention on Consular Relations (VCCR), detaining authorities in Australia are required to inform, without delay, the detained person of their rights to have the relevant consular post, or embassy, informed on their detention and to request consular assistance. Authorities must allow access for consular officials to visit, converse, correspond and to arrange legal representation for the detainee, unless expressly opposed by the detainee.
The Applicant submits that there is a stark difference between the obligation to allow consular officials visitation and correspondence with the detainee, unless expressly opposed, and the IAA’s non-acceptance that an official did attend because the applicant did not specifically request consular assistance. The two are diametrically opposed, according to the Applicant. This is because a person in the Applicant’s position must “expressly oppose” the interaction with Embassy officials rather than “specifically request” consular assistance.
The Applicant submits that because this reasoning was integral to the non-acceptance of the Applicant’s claim regarding Embassy officials interrogating him, the finding of the IAA is therefore tainted by illogicality and irrationality.
The claim of the Applicant was that he was visited, and interrogated, by an Embassy official whilst in jail in 2017. He also claims that there was an attempted visit in mid-2020. After he refused the visit, he said he was given documents which included the DFAT letter.
The evidence is that the DFAT letter was not written about the Applicant but written about Iranian prisoners generally. There was no evidence that suggested that Iranian Embassy officials knew that the Applicant was imprisoned.
Taking the contents of the letter on face value, it could be inferred that, when the Applicant was first remanded in custody, he was informed that he had the right to have the Iranian Embassy informed about the fact that he was in prison. It could also be inferred that he was told that he was permitted to request consular assistance. It could be inferred that the authorities would allow access for those Embassy officials to visit, converse or correspond with the Applicant and to arrange legal representation for the Applicant, unless the Applicant expressly opposed such a course.
Having regard to those matters, it was open for the IAA to find it difficult to accept that an Iranian Embassy official would be allowed to visit the Applicant unless the Applicant wished that to happen. The Applicant claimed, regarding the attempted 2020 visit, that he refused the visit and, therefore, it did not happen.
In the end, this aspect was only one of a number of aspects that caused the IAA not to accept the claim. Those other aspects were that the claim itself was unconvincing; the Applicant had not made such a claim in the interview with the delegate and had not given a credible excuse as to why he did not; the visitor log did not corroborate the claim; the Applicant had never requested consular assistance; and, there was no publicly available information about the Applicant which indicated that he had been sentenced to a term of imprisonment.
Finding that it was difficult to accept that an Embassy official would be permitted to visit the Applicant in prison without the Applicant specifically requesting consular assistance, was not a definitive finding. It was certainly not an acceptance, but it was not a definitive non-acceptance either. It was a statement that it was “difficult” to accept. In the end, the IAA did not accept the claim because of the aspects already noted and so did not have to definitively either “accept” or “not accept” what was said; it could leave the matter as being something that could be described as being “difficult to accept”.
For those reasons, Ground Six does not illustrate jurisdictional error. It therefore fails.
Conclusion and orders
I have not found that any jurisdictional error has been established. I dismiss the application with costs in the scale amount of $8,371.30.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 30 August 2024
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