FDQ18 v Minister for Immigration
[2020] FCCA 83
•17 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FDQ18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 83 |
| Catchwords: MIGRATION – Application for judicial review – Safe Haven Enterprise Visa refused by the Immigration Assessment Authority – whether IAA failed to consider an integer of the applicant’s claim in not considering separately whether he was a Christian and an apostate from Islam – whether irrational and/or illogical decision with respect to applicant’s real risk of serious harm and/or a real chance of significant harm – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J(6), 414. |
| Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 DWR16 v Minister for Immigration and Border Protection [2019] FCA 2021 |
| Applicant: | FDQ18 |
| First Respondent: | MINISTERFOR IMMIGRATION & ANOR |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | DNG 33 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 15 November 2019 |
| Date of Last Submission: | 15 November 2019 |
| Delivered at: | Darwin |
| Delivered on: | 17 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Counsel for the First Respondent: | Mr Liveris |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr Liveris |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs as agreed or, failing agreement, as taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG33/2018
| FDQ18 |
Applicant
And
| MINISTERFOR IMMIGRATION & ANOR |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 19 September 2018 to affirm a decision of the Minister’s delegate made on 16 April 2018 to refuse the applicant a Safe Haven Enterprise Visa (“SHEV”).
The applicant is a citizen of Iran. He arrived in Australia in 2013. He is 41 years old.
The applicant’s protection claims can be summarised as follows:
·He was a convicted drug user in Iran and prisoner which constantly brought him to the adverse attention of the Iranian authorities.
·He has seven or eight tattoos, including an image on his right forearm which he claims displays Christian iconography. He said he was lashed by the Iranian authorities when they discovered this tattoo seven or eight months before he left Iran.
·Before leaving Iran he was required to report to a police station every month as a result of his drug convictions. After his departure he claimed the Iranian “intelligence” went to his house questioning his disappearance and whereabouts.
·Shortly after arriving in Australia the applicant was diagnosed with HIV. If he returns to Iran he fears being imputed with homosexuality which will lead to a real chance of serious and significant harm at the hands of the Iranian authorities.
·The applicant also fears harm due to the stigma attached to HIV and homosexuality. He fears that treatment would not be available, especially in prison, or would be too expensive and his health would deteriorate and affect his ability to subsist.
·The applicant converted to Christianity after his arrival in Australia and claims to fear harm in Iran for being a “Christian convert (apostate) who proselytises”.
·He fears harm for his imputed political opinion as a failed asylum seeker returning from the Western country. He fears harm because the cumulative elements of his claims, including his tattoos, his status as a former drug user and prisoner, his Christian conversion and his HIV, will bring him to the attention of the Iranians authorities. His profile has been increased by his failure to comply with monthly reporting obligations and the Department’s “data breach”.
The Authority accepted that the applicant had begun using drugs around 20 years of age and had his first encounter with the police for drug possession soon after. It accepted that he was detained for 45 days in a drug rehabilitation centre and on additional occasions when he was forced to work and not fed properly. It accepted that he was convicted in Iran of drug offences in 2005 and subsequently imprisoned for three and half years in poor conditions where prisoners were often beaten by the guards, denied access to bathroom facilities and subjected to suspended family contact. It accepted that before the applicant left Iran he had been arrested and jailed for five times in total for using and possessing drugs. It also accepted that the applicant had not used drugs since his arrival in Australia in 2013.
The Authority did not accept that the applicant was subject to a monthly reporting obligation prior to his departure from Iran or that Iranian “intelligence” authorities visited his home to question his disappearance and whereabouts as a result of failing to report to the police. The Authority noted that the applicant had departed Iran lawfully with a passport in his name and there was no suggestion that the authorities had any interest in him. Further, the applicant’s claims about the visits to his family home by the “intelligence” authorities were inconsistent, on one occasion claiming that his brother was questioned and on another occasion that it was his mother and sisters. The Authority did not accept the applicant’s claims that he had an existing profile with the Iranian authorities because of his previous drug use and criminal history.
The Authority accepted that the applicant’s tattoo on his right forearm represented his Christian faith. The tattoo bears the image of a blindfolded woman kneeling at the foot of a cross, with her hands tied behind her back and an arrow embedded in her left shoulder. The tattoo was done in Iran when the applicant was about 25 years old, some 10 years before the applicant’s departure for Australia. The Authority accepted country information that the Iranian authorities would be unlikely to maintain interest in the applicant merely because of this tattoo or his other tattoos. The Authority also rejected the applicant’s claims that he had been lashed because of the tattoo, observing that he had made no reference to the tattoo in his arrival interview but had raised only claims revolving around his drug addiction.
The applicant’s claims in relation to his conversion to Christianity and/or apostasy were that he had converted to Christianity after his arrival in Australia. The Authority accepted the applicant was baptised on 19 October 2014. He provided a baptismal certificate issued by St Luke’s Anglican Church in Palmerston. He claimed to have publicly renounced Islam and to have been proselytising through Facebook since 2017. Screen shots were submitted in support of his claim. He also said that Iranians were present at his baptism and may have reported that to other Iranians, including in Iran, thereby increasing his chances of coming to the adverse attention of the Iranian authorities. He claimed that he would continue to practise Christianity if he were to return to Iran.
The Authority did not accept that the applicant had any real and ongoing interest in or commitment to Christianity. While acknowledging there is no minimum knowledge required to be a Christian the Authority observed that the applicant had a very limited understanding of Christianity. The applicant was unable to offer any meaningful explanation of what Christianity meant to him, he could not explain the significance of baptism or the basic principles of Christianity, he could not recall any of the miracles of Jesus or explain the significance of Easter or Christmas, he could not recall his particular denomination of Christianity and did not know who Mary and Joseph were when questioned by the delegate. His responses about these matters were “vague and unconvincing” according to the Authority.
The Authority said that it did not consider a baptismal certificate, on its own, sufficient to establish the fact of a genuine conversion to Christianity. The applicant stopped attending church seven or eight months before his SHEV interview (in or around July 2017) and did not indicate an intention to resume attendance. The Authority was satisfied the applicant was not currently an active member of any Christian church in Australia.
The Authority did not accept the applicant’s assertion that he had stopped attending church because of his HIV diagnosis and related health issues. The Authority pointed out that this explanation was “incongruous” with the fact that he was baptised more than a year after he became aware of his diagnosis. The Authority observed that the applicant said he had obtained a Bible shortly before the SHEV interview but had not read it because he was attending to his health issues. The Authority did not accept that the applicant’s conversion to Christianity was genuine.
The Authority also discussed the applicant’s Facebook activities. Four screen shots were provided by the applicant showing images from a Facebook profile. The images depicted a Christian cross on a chain, a man bowing before the foot of a cross, a Christian cross with wings, another image of a man bowing before a cross and a photograph of a tattoo on the chest of an unidentified male bearing the image of a pair of hands holding a Christian cross on chain.
The Authority found there was no evidence to support the applicant’s claims that he had posted “overtly religious posts on his Facebook wall over the past year” or that his Facebook page is “easily identifiable due to his name”. The Authority observed that none of the screenshots were properly dated, none of them show the applicant’s face or provided “any corroborative evidence that the Facebook profile does in fact belong to the applicant”. Presumably the Authority did not consider the name on the profile, which was the same as the applicant’s, to be corroborative.
The Authority noted that the screenshots lacked “any religious text and merely contain images as opposed to actual postings on his wall”. The Authority also observed that the applicant began “proselytising through Facebook” three years after his baptism and two months before his SHEV application.
The Authority was not satisfied that the applicant’s conduct in Australia (church attendance, baptism and activities on Facebook) was for any purpose other than to strengthen his claims for protection. In determining the applicant’s claims for protection the Authority therefore disregarded his conduct in Australia with respect to his Christian conversion pursuant to section 5J(6) of the Migration Act.
The grounds of review
The (second) amended grounds of review were as follows:
1. The Second Respondent’s decision to disregard the applicant’s conduct in Australia was legally unreasonable or illogical amounting to jurisdictional error and gave rise to a practical injustice.
Particulars
(i) The Second Respondent made a decision pursuant to s 5J(6) of the Migration Act to disregard the applicant’s conduct in Australia (“the decision”) and therefore did not take into account material information in considering whether or not the applicant was a refugee. The decision is recorded at paragraph 35 of the Second Respondent’s reasons for decision (“the reasons”);
(ii) In making the decision the Second Respondent relied upon (inter alia) the following conclusions or findings(a) A finding that there was no evidence to substantiate the applicant’s claim that he posted overtly religious posts on his Facebook wall over the past year (at paragraph 34 of the reasons);
(b) A finding that there was no evidence to substantiate the applicant’s claim that his Facebook page is easily identifiable due to his name (at paragraph 34 of the reasons)
(c) A finding that none of the screenshots provide corroborative evidence that the Facebook profile does in fact belong to the applicant (at paragraph 34 of the reasons)
(d) A finding that the screenshots provide no evidence of the applicant’s identity, lack any religious text and merely contain images as opposed to actual postings on his wall (at paragraph 34 of the reasons)
(e) A finding that there is no evidence to support the claim that Iranians have been informed of the applicant’s baptism (at paragraph 34 of the reasons)
(f) A finding that the applicant’s explanation as to why he stopped attending church was incongruous having regard to the fact that he was baptised more than a year after he became aware of his (HIV) diagnosis and that the applicant did not include that explanation in his SHEV application lodged 2 months after he stopped attending church (at paragraph 34 of the reasons)
(g) A finding that there was no evidence that indicates that the applicant was seeking or undertaking any treatment for a mental health issue at the time he stopped attending church, or at any other time in Australia(iii) The findings or conclusions set out at (ii) above were erroneous in the sense that they were contrary to the evidence and/or were illogical
(iv) The erroneous or illogical findings or conclusions led to a legally unreasonable or illogical decision to disregard the applicant’s conduct in Australia
(v) The applicant’s conduct in Australia that was disregarded formed the substantial evidentiary basis for an integer of his claim that he was a refugee, namely that he had been engaged in apostasy and proselytising.2. The Second Respondent erred by failing to lawfully carry out their statutory task to determine whether the Applicant faced a real risk of serious harm and/or that there was a real chance that the Applicant would suffer significant harm as a result of the cumulative impact of his claims, including: criminal history, history of drug use, HIV status, Christianity/apostasy (real or perceived), tattoos and/or ‘returnee’ status.
3. The Second Respondent made a decision which no rational and/or logical decision maker could make with respect to the question as to whether the Applicant faced a real risk of serious harm and/or that there was a real chance that the Applicant would suffer significant harm on the basis of his claimed Christianity and apostasy.
Particulars
a. The Second Respondent gave too much weight to its own finding that the Applicant was not a genuine practising Christian;
b. The Second Respondent failed to draw a reasonable inference that was open to it to draw on the evidence submitted by the Applicant, namely, that the Applicant had been active on Facebook whilst residing in Australia and that such activity evidenced his Christianity and his apostasy and was accessible to the Iranian authorities, particularly having regard to the admitted data breach;
c. The Second Respondent failed to take into account that even if the Applicant’s claimed Christianity and/or apostasy was not genuine, it may be perceived as genuine by the Iranian authorities, particularly given his long-standing tattoo.
d. The Second Respondent failed to take into account that the Applicant renounced Islam and the views of the Iranian authorities with respect to this fact.
4. The Second Respondent erred making a decision which no rational and/or logical decision maker could make.
Particulars
a. The interview with the Applicant conducted by the delegate of the First Respondent was conducted with the assistance of a Farsi speaking interpreter.
b. The audio recording of the interview was a document before the Second Respondent;
c. The audio recording of the interview on its face demonstrates that the interpreting services which were provided were inadequate.
d. The second respondent was able to take reasonable action to rectify the situation that existed namely by having the recording fully translated or by re-interviewing the applicant;
e. It was legally unreasonably for the Second Respondent to have made critical findings against the Applicant relying upon the interview.
Consideration
The applicant’s filed written submissions prepared by his solicitor made detailed submissions in relation to ground 1, essentially taking issue with the Authority’s factual findings. In a second set of written submissions filed by the applicant (evidently prepared by counsel) the applicant said that “no further submissions” were made in relation to that ground. The written submissions also said that the applicant did “not press” ground 4. In oral submissions counsel said that the Authority’s conclusion or conclusions described in ground 1 was “in error” but that ground 1 was “not pressed further”. I was left in a state of uncertainty about whether the court was expected to make a ruling on this ground. Having regard to the conduct of the applicant I consider that I am justified in treating ground 1 as not pressed, without qualification.
In any event the ground does not appear to have merit because, in substance, it merely takes issue with an adverse credibility assessment of the applicant’s motivations for engaging in conduct in Australia associated with what were said to be his Christian beliefs. There is one exception to that characterisation which was the subject of discussion during submissions. The basis of the Authority’s conclusion that the name on the Facebook profile, being the same as the applicant’s, is not corroborative of the applicant’s claim that the Facebook profile was his is not apparent to me and might accordingly be said to have been made without an evident and intelligible basis. However, in my view the Authority’s error in relation to that is a minor and inessential element of its failure to be satisfied that the applicant’s Christian conversion and related conduct in Australia was not conduct engaged in for the purpose of strengthening the applicant’s refugee claims. The precise finding, even if erroneous, was not jurisdictional error because it was subsumed in findings of greater generality. In my view, that more general assessment was open to the Authority and, accordingly, the Authority was precluded from taking that conduct in Australia into account in determining whether the applicant had a well-founded fear of persecution: s. 5J(6) Migration Act.
In relation to ground 2, the applicant’s written submissions filed after the filing of the second amended application departed substantially from the ground described in the second amended application. I consider that in fact it constituted a new ground. The written submissions focussed on the way the Authority dealt with the HIV issue. In particular, it was submitted that the Authority failed to properly consider the applicant’s complementary protection claims. It was said that country information showed that “66,000 people were living with HIV in Iran and among these only 14% were receiving antiretroviral treatment and 8% had suppressed viral loads”. This was a reference to a statement contained in the applicant’s submission to the delegate. According to the relevant footnote in the submissions the statement was contained in a document titled “UNAids, Islamic Republic of Iran”. An internet URL was cited but no date was given. There is no evidence that the material was provided to the delegate in any other form. It was submitted that in the face of this information the Authority could only reach the conclusion it reached that “there is not a real chance the applicant would suffer serious harm because of his HIV status” if it was satisfied the applicant would have access to proper treatment for HIV in Iran. It was submitted that the information considered by the Authority, said to be principally a Department of Foreign Affairs and Trade country report, did not include any analysis of whether care for HIV patients is readily available and was an inadequate basis for the Authority’s conclusion.
The document referred to by the applicant, “UNAids Islamic Republic of Iran”, was not referred to by the delegate although the delegate referred in detail to other country information on Iran and its response to HIV. This information suggested that the number of clinics providing antiretroviral medicines had risen dramatically and the number of people receiving such treatment had increased tenfold since 2005.
The Authority gave reasonably detailed attention to the availability of treatment for those with HIV in Iran. It observed that some of the information provided by the applicant to the delegate was “outdated” (although there is no evidence one way or the other that the document referred to by applicant was provided to the Authority by the Secretary). The Authority said it “placed more weight on recent country information” relied on by the delegate. Like the delegate, the Authority observed that the Iranian government had taken major steps towards treating HIV in the population and treatment is provided free of charge. Although the Authority did not make an express finding that the applicant will be able to receive proper treatment in Iran for HIV it is implicit, in my view, in the findings that the Authority was so satisfied.
The first respondent submitted that the applicant, in relying on the document in this application for review, was attempting to rely on different country information or fresh evidence to impugn the Authority’s decision and this was impermissible: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, [8].
I accept that submission as far as it goes but it is unclear whether it is a case of fresh evidence or not. It may be that the information was included in the Authority’s general reference to the “outdated” information given by the applicant to the delegate. In that case the Authority would be justified in preferring one piece of country information over another and it provided a reason for doing so: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11]. In either case, this ground, as advanced in oral argument, does not succeed.
For the sake of completeness, I should say that I also consider the ground appearing in the written ground is not made out. The Authority expressly referred to having considered the applicant’s claims individually and cumulatively at paragraph [52] of its reasons as part of its consideration of the applicant’s refugee claims. It was submitted that the Authority was in error in failing to engage in the same process as part of its consideration of the applicant’s complementary protection claims. As part of that process the Authority repeated, in an abbreviated form, its consideration of the applicant’s individual claims but did not expressly refer to considering the claims “cumulatively”. As the claims in both cases were the same this would seem to involve an identical process. I am not satisfied that this constitutes jurisdictional error. Further, the first respondent submits that where each of the individual claims is dismissed, as is the case here, then no amount of cumulative consideration is capable of producing a different result: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, [32] – [34]. I accept that submission.
The oral submissions advanced in support of ground 3 also involved a significant departure from the written ground. The nub of the submission as outlined in oral argument was that the Authority failed to consider the applicant’s apostasy claims in relation to complementary protection. It was said that, while the Authority focussed on the genuineness of the applicant’s Christian belief, it failed to consider, as a separate issue, whether the applicant is an apostate from Islam and at real risk of significant harm on that basis were he to return to Iran.
The applicant asserted that this ground was described in ground 2. Possibly he meant to refer to ground 3. In either case, I do not accept that assertion although it might be said that the submission bore some resemblance to particulars 3(c) and/or (d). The notable difference is that the written grounds do not make any functional distinction, in the factual context of this case, between conversion to Christianity and apostasy. The applicant’s two sets of written submissions did not make the distinction and the “Outline of Applicant’s Oral Submissions” provided at the hearing went no further than claiming that “The Christianity issue is not necessarily the same as the apostasy issue”.
This failure to clearly articulate a ground of review no doubt explains the first respondent’s failure to address this issue in his written submissions. He did not have notice of it until the applicant’s oral submissions were made. Nevertheless, no objection was taken.
It may be readily accepted that conversion to Christianity and apostasy from Islam are conceptually and linguistically distinct. The Macquarie Concise Dictionary defines apostasy as “a total desertion of, or departure from, one’s religion, principles, party, cause, etc.”. It is etymologically derived from a Greek word, apostasis, meaning defection or revolt. Thus, a member of a religious community, the Islamic for example, might engage in apostasy by embracing atheism or by embracing Christianity (or some other beliefs). The conduct constituting apostasy may be identical to the conduct constituting adoption of Christianity, but not necessarily.
The principles relating to the Authority’s obligation to consider relevant claims have recently been helpfully summarised by Perry J in DWR16 v Minister for Immigration and Border Protection [2019] FCA 2021:
79It is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or claims that are apparent on the material before the decision-maker: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42] (Allsop J, as his Honour then was).
80These principles were considered in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE). In that case, the Full Court (French, Sackville and Hely JJ) at [45] identified two elements as key to demonstrating whether a Tribunal has failed in the discharge of its duty under s 414 of the Act to conduct a review of the decision, namely:
If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material …
81Their Honours emphasised that “[t]his is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision” (at [45]).
82A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason: Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] (the Court); see also e.g. NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J). It follows that a conclusion that a decision-maker has failed to consider a claim not expressly advanced is “not lightly to be made”: NABE at [68].
The applicant’s written submission to the delegate dated 8 February 2018 summarised his claims and described the relevant claim as “His apostasy (conversion from Islam to Christianity)”. The submission expanded on this summary in the following manner:
Persecution of apostates
3.11Muslims, or people previously perceived as professing the Islamic faith, will be persecuted in Iran if they abandon their Islamic faith or convert to another religion. Muslims who converted to Christianity face particularly severe risks. As such, we submit that the Applicant would be at risk of persecution or significant harm due to his conversion to Christianity and public renouncement of Islam is illustrated through the post on his Facebook account, him telling his family in Iran of his conversion and his Christian cross tattoo. The Applicant has also instructed us that he will continue to explore, follow and practice (sic) his Christian faith on return to Iran.
The submission went on to refer to country information, focusing almost wholly, but not completely, on the position of converts to Christianity in Iran.
In my view, the applicant’s apostasy claim was advanced only as a facet of his claim to have converted to Christianity or, put another way, his apostasy was constituted by his claim to have converted to Christianity. His claim to be an apostate from Islam was not advanced as a separate integer of claim and, as such, any claim was not a “substantial, clearly articulated argument” nor was it apparent on the face of the material before the Authority as a separate claim. In these circumstances the Authority’s failure to separately consider the applicant’s claim to be an apostate, whether as part of the consideration of his refugee claims or his complementary protection claims does not amount to jurisdictional error.
As noted, ground 4 was not pressed.
The application will be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 17 January 2020
Corrections – 30.01.2020
Paragraph 29 – (3.11) - line 6 – delete “pronouncement” insert “renouncement”
Citation (coversheet and footer) – delete “& Border Protection”
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