FIG17 v Minister for Immigration

[2018] FCCA 3751

FEDERAL CIRCUIT COURT OF AUSTRALIA

FIG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3751

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the reasoning of the Authority was irrational – whether the Authority erred finding what constitutes new information – whether the Authority failed to give proper and realistic consideration to an integer of the applicant’s claims – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 473CB, 473DD, 476

Applicant: FIG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 668 of 2017

Judgment of: Judge Street

Hearing date: 6 December 2018

Date of Last Submission: 6 December 2018

Delivered at: Perth

Delivered on: 6 December 2018

REPRESENTATION

Counsel for the Applicant: Mr A McBeth

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Mr P Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 6 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 668 of 2017

FIG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 23 November 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a national of Iran and his claims were assessed against that country. The applicant was found to have been born in a Muslim family but claims he had never accepted the religion and that he was an atheist and the applicant had claimed he would been harmed by reason of his atheism, apostasy and/or being a failed asylum seeker.

3. On 4 May 2017, the delegate found the applicant failed to meet eligibility criteria for the grant of a Safe Haven Enterprise visa.

4. On 5 May 2017, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on submissions and new information. The applicant did put on submissions and new information dated 26 May 2017, and they were expressly referred to in the reasons of the Authority.

5. The submissions included content addressing four supporting statutory declarations in respect of which it was submitted that they should be considered to be new information under s 473DD of the Act. The submissions also referred to the applicant being a member of a particular social group of persons being failed asylum seekers. It was advanced that, as a failed asylum seeker, the applicant would be interrogated and persecuted upon his return. Reference was made to the proposition that the applicant’s return will trigger a process of questioning and interrogations as to why he left the country and his religious views, which would result in his arrest and torture and persecution and that he might be executed.

6. The Authority in its reasons summarised the background to the visa application. The Authority had regard to the material provided by the Secretary under s 473CB of the Act. The Authority expressly referred to the statutory declarations and it expressly referred to the submissions and insofar as it engaged with the delegate’s decision and the Authority had regard to the same. The Authority referred to the applicant’s statutory declaration and identified the statements containing argument why the delegate’s decision was wrong.

7. The Authority referred to the applicant claiming that he had talked to many friends and publicised his views as to Atheism on social media like Facebook and that he had freely announced his beliefs in Australia and fears persecution because of this. It was also alleged that the applicant is a member of groups on Facebook like “Iranian Atheists and Agnostics” and shares their posts on Facebook. The Authority identified that this was information that had not been provided to the delegate and that the applicant also provided seven pages of Facebook posts to demonstrate his activity in promoting his atheist beliefs. The Authority correctly identified that some of the material pre-dated the delegate’s decision and some of the material post-dated the delegate’s decision in respect of those Facebook posts.

8. The Authority referred to the applicant’s new claim as to his Facebook activity in Australia in support of his atheist activity and referred to the information that was advanced in the submissions as to his lack of understanding of the full meaning of refugee and his agent’s failure to properly advise him. This is clearly a reference to the second page of the submissions on the last paragraph on page 171 of the Court Book dated 26 May 2017, provided to the Authority.

9. The Authority referred to what occurred at the interview with the delegate in respect to the applicant’s claims and that the Authority would have expected the applicant to raise the issue of Facebook activity if he had in fact a fear in relation to it. The Authority referred to the opportunity that was given to the applicant to put forward his claims and did not accept the applicant was unaware of the need to put forward this claim. The Authority was not satisfied that the claim itself and the supporting documents that pre-date the decision could not have been provided prior to the decision being made. The Authority did not accept the applicant was in imminent fear of harm on that basis. The Authority referred to there being no supporting country information having been provided to substantiate such a claim, nor has the applicant explained how these or more recent posts would be monitored by the authorities, how they could come to the attention of authorities, or if known why the authorities would be concerned with such posts. It was in those circumstances the Authority found there were no exceptional circumstances to justify considering the Facebook posts and the imminent Facebook claim.

10. The Authority referred to the other three statutory declarations provided in relation to the applicant’s atheist views. The Authority referred to the nature of the information and referred to the material having been made at the applicant’s behest in the context of the ability to have it before the delegate’s decision. The Authority was of the view that the applicant could have provided this type of information prior to the decision being made. The Authority did not accept the applicant was unaware of the need to provide information to support his claims. The Authority noted that the delegate had accepted the applicant was an atheist. The Authority found it was not satisfied by the applicant that this is credible personal information which was not previously known and had it been know may have affected the consideration of the applicant’s claims. The Authority further found that it was not satisfied that exceptional circumstances exist to justify considering the new information.

11. The Authority summarised the applicant’s claims. The Authority accepted the applicant had attended university, but did not accept his evidence to resigning because of a controversial article given the lack of consistency between his arrival interview and his claims for protection. The Authority identified having concerns about the applicant’s credibility in respect of that claim.

12. The Authority referred to the applicant’s statement on his arrival interview that he had no religion. The Authority accepted the applicant was not religious and considers himself to be an atheist. The Authority was not satisfied the applicant was involved in an atheist group and attended regular meetings. The Authority found it implausible that both the applicants’ parents would go to all the effort of selling their house to avoid further harassment when they had only moved 10 to 15 kilometres away. The Authority found the applicant had embellished his claims and had fabricated his claim of threats against him from his wife’s family and a cousin, the car crash and the raids on the family house.

13. The Authority was of the view that the applicant had exaggerated the conflict resulting from him not being religious. The Authority referred to the information before the delegate indicating that there is a great diversity of attitudes and treatment of persons who hold non-mainstream religious views, depending on the level of education and other factors. The Authority accepted the applicant is an atheist and the Authority accepted that the applicant may have participated in a protest following the 2009 election in Iran, but otherwise the Authority found there is no evidence that the applicant is politically active or outspoken against the government.

14. The Authority referred to a 2016 report that atheists usually do not express their views in public and would lead normal lives in Iran without facing any further restrictions. The Authority accepted that the applicant was an atheist, but was not satisfied that he would be persecuted on this basis on return to Iran. The Authority found the applicant was not a political opponent. The Authority referred to DFAT country information concerning a person who is charged with apostasy. The Authority referred to DFAT considering it would be highly unlikely individuals would be persecuted on charges of apostasy and that DFAT considers it highly unlikely that the government would monitor religious observance by Iranians. The Authority found atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views.

15. The Authority was not satisfied on the evidence that the applicant would publicise his views, or has any desire to do so, on his return to Iran. The Authority was not satisfied the applicant faces a real chance of harm from his lack of religious beliefs.

16. The Authority referred to the applicant being a failed asylum seeker returning from a Western country. The Authority identified that the applicant could only be returned as a voluntary returnee. The Authority referred to DFAT country information that voluntary returnees do not attract much interest from the authorities. The Authority referred to DFAT country information supporting that the voluntary returnees can only be questioned if they had done something to attract specific attention of the authorities.

17. It was in those circumstances that the Authority was satisfied the applicant would not attract the adverse attention of Iranian authorities. The Authority accepted that the applicant may be questioned and even detained for a brief period of time as a returnee. The Authority was not satisfied this treatment of being questioned or detained briefly would amount to serious harm.

18. The Authority found the applicant did not meet the requirements of the definition of “refugee” in s 5H(1) of the Act. The Authority found the applicant did not meet the criteria in s 36(2)(a) of the Act.

19. The Authority referred to the requirements in respect of complementary protection and referred to accepting that the applicant may no longer practice Islam on his return to Iran and is an atheist. The Authority expressly referred to the country information referred to above by the Authority and found it was not satisfied that the applicant would be viewed as an apostate or that his non-observance of Islamic practices would give rise to a real risk of harm on his return. The Authority accepted the applicant may be questioned on his return.

20. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Iran from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not met the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The grounds in the amended application are as follows:

   1. The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error in that the satisfaction of the IAA was based on an irrational finding.

   Particulars

   a. The IAA found at [52] that the applicant was an atheist and no longer practised Islam.

   b. In the same paragraph, the IAA reviewer found “I am not satisfied he would be viewed as an apostate.”

   c. The finding that the applicant would not be viewed as an apostate was irrational in that it is irreconcilable with the earlier finding in the same paragraphs.

   d. The irrational finding was dispositive of the applicant’s claim to face a real risk of significant harm as an apostate.

   2. The IAA erred in its application of the test for considering new information under s 43DD of the Migration Act 1958 (Cth) (Act) in relation to the statutory declarations from the applicant’s girlfriend and friends.

   Particulars

   a. The IAA erred in its interpretation of “credible personal information which was not previously known” under s 473DD(b)(ii).

   b. Further and alternatively, the IAA erred in its interpretation of “could not have been provided to the Minister” in s 473DD(b)(i).

   c. The IAA applied an unduly narrow approach to exceptional circumstances.

   3. The IAA erred in its application of the test for considering new information under s 473DD of the Act in relation to the applicant’s Facebook posts in that the IAA proceeded from a false premise.

   Particulars

   a. The IAA at [8] accepted that the Facebook posts concerned the applicant and genuinely came from his Facebook account, but did not accept that he genuinely feared harm on that basis because no supporting country information had been provided to substantiate such a claim or explain how the posts would be monitored by the authorities or why the authorities would be concerned by them.

   b. The IAA had before it the Department of Foreign Affairs and Trade (DFAT) Country Information Report – Iran, dated 21 April 2016, which noted that Iranian officials monitored Facebook accounts and that people including “bloggers who only have a handful of readers” had been arrested and imprisoned for comments posted on Facebook and that one blogger had been sentenced to death for insulting the Prophet Mohammed for comments posted on Facebook.

   c. The applicant’s statutory declaration dated 26 May 2017, provided to the IAA at the same time as the Facebook posts, explained the substance of the claim to fear harm because his activities, including his Facebook posts, may have been reported to Iranian authorities or may be reported in the future.

   4. The IAA failed to give proper, genuine and realistic consideration to an integer of the claim made by the applicant or arising from the material before the IAA, namely that being returned to Iran as a returning failed asylum seeker would give rise to scrutiny regarding his atheism that would not otherwise occur.

Ground 1

1. In relation to ground 1, Mr McBeth of counsel on behalf of the applicant took the Court to the Authority’s reasoning in paragraph 52 that sought to contend that there was an inconsistency or a logicality in the context of the applicant having been found to be an atheist and not being at risk of a real risk of harm or a real chance of significant harm because of apostasy.

2. The Authority’s reasons make clear reference to the risk of persecution on grounds of apostasy on the country information referred to in paragraph 14 above. The country information, as the Court has summarised above, considered apostasy and the Authority expressly identified the fear of harm on grounds of atheism and apostasy. In those circumstances, the Authority’s reasoning in paragraph 52 cannot be said to lack an evident and intelligent justification. The finding that the applicant would not be viewed as an apostille was open to the Authority. The Authority’s reasoning in relation to the applicant not facing a real risk or a real chance of harm or significant harm were not irreconcilable and were not irrational or otherwise unreasonable. No jurisdictional error alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr McBeth submitted that the Authority’s consideration of the statutory declarations in paragraphs 9 and 10 were affected by an alleged error in respect of s 473DD(b)(ii) of the Act by assuming that the personal information is something that must be not previously known by the applicant.

2. The Authority’s reasons do not support any such assumption on an ordinary and fair reading of the Authority’s reasons. The Authority was clearly referring to the whole of the content of s 473DD(b)(ii) of the Act in the second-last sentence of paragraph 10. I do not accept that the Authority was erroneously assuming that the new information was something which had to be not previously known to the applicant. The reasoning does not say so.

3. Mr McBeth submitted that the reasoning in paragraphs 9 and 10 supported the inference of an erroneous narrow meaning. The reference by the Authority to what the applicant was aware of was a reference in response to the submissions that had been advanced and does not support the inference or conclusion that the Authority engaged in any such error.

4. On the face of the Authority’s reasons, the Authority took into account the whole of s 473DD of the Act. On the face of the Authority’s reasons, the Authority did not adopt an unduly narrow meaning of s 473DD of the Act in the consideration of the requirements of the provision. On the face of the Authority’s reasons the Authority did not err in the application of the test in considering new information under s 473DD of the Act in respect of the three statutory declarations.

5. I do not accept that there was any error in the interpretation of the application by the Authority of s 473DD(b)(i) or s 473DD(b)(ii) of the Act. The reasoning of the Authority as to which could not have been provided to the Minister reveals no error. The Authority’s reasons are not to be read with keen eye for error.

6. In relation to ground 2 above, even if a construction were to be placed upon the Authority’s reasons that the Authority had misunderstood the requirements of s 473DD(ii) of the Act, it was to be read as referring to credible and personal information that had not been previously known by the applicant it would not give rise to a jurisdictional error in the circumstances in the present case. This is because I accept the submissions of the first respondent that there was an independent finding by the Authority. The finding that the legal requirements for exceptional circumstances under s 473DD(a) of the Act were not met was an independent finding by the Authority. That finding I accept was not infected by the alleged error on the face of the Authority’s reasons. Accordingly, no jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr McBeth submitted that the Authority erred in its application of s 473DD of the Act in relation to the applicant’s Facebook posts. The submission advanced by McBeth was that the Authority, in referring to there being no country information having been provided to substantiate the claims, had allegedly overlooked material that was in the DFAT country information. The Authority’s reference to no supporting country information having been provided was in the context of considering new information and on a fair reading was a reference to what was provided by the applicant. I do not accept the Authority’s reasons should be read as referring to there being no country information at all before the Authority.

1. Mr McBeth’s submitted that it would be illogical and unreasonable for the Authority’s reasons to only refer to what was provided by the applicant. On the contrary, given the terms of s 473DD of the Act, it is understandable that the Authority was focussing on what had been provided by the applicant and then considering whether, in all the circumstances, the requirements of s 473DD of the Act had been met. I do not accept that there was any error as advanced in the contention that the Authority had failed to take into account other information before it in the context of its reasoning at the end of paragraph 8 as explained above. The reasoning as to country information in paragraph 8 was referring to what the applicant had provided.

2. Mr McBeth also submitted that the Authority had erred in the proposition that the applicant had not explained how these or more recent Facebook posts would be monitored by the authorities. Attention was drawn to content of the applicant’s statutory declaration. It is apparent that the Authority took into account, in the Authority’s reasons, the content of the statutory declaration and the applicant’s Facebook activity, as summarised above by the Court. It was not necessary for the Authority to set out the whole of the applicant’s information provided in respect of Facebook activity. That Facebook activity does not, however, on its face give rise to any inconsistency or illogicality in respect of the proposition that the applicant had not explained how these posts would be monitored by the authorities or how they would come to the authorities attention, or why the authorities would be concerned with such posts. That reasoning was not legally unreasonable.

3. The applicant’s expressed fear that it would come to the attention of the authorities were propositions addressed by the Authority and the Authority’s reasons as summarised above are logical and consistent. The proposition that the Authority’s consideration of the Facebook posts was the subject of a false premises is not made out. The Authority took into account the whole of s 473DD of the Act in considering whether or not there were exceptional circumstances that permitted consideration of new information in the nature of the Facebook posts. No jurisdictional error as alleged in ground 3 is made out on the face of the material before the Court.

Ground 4

1. In relation to ground 4, Mr McBeth took the Court to the submissions that were advanced and asserted the integers in the applicant’s claims that had not been the subject of findings made by the Authority. Mr McBeth sought to focus on the content under the heading ‘Membership of a particular social group of Failed asylum seekers’ upon the process on return to which the applicant may be subject.

2. I do not accept that there was an integer of the applicant’s claim in respect of his atheism in the context of being a failed asylum seeker that was not taken into account by the Authority in its findings. The Authority expressly referred to and accepted that the applicant was an atheist.

3. The Authority expressly found that the process to which the applicant may be subjected on return, included the questioning by the authorities, as referred to in both paragraphs 46 and 47, was not treatment that gives rise to a real risk of serious harm. Given the reference to not meeting s 5H(1) of the Act of the definition of refugee and the criteria under s 36(2)(a) of the Act, this clearly reflects a dispositive finding in respect of the applicant’s claim to fear harm as a failed asylum seeker in the circumstances of the applicant, which included the applicant being a person who the Authority found is an atheist. No jurisdictional error as alleged in ground 4 is made out.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  16 January 2019