FNH18 v Minister for Immigration
[2020] FCCA 643
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FNH18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 643 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – whether the Authority failed to deal lawfully with an integer of the applicant’s claims or made an unreasonable finding considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.65 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | FNH18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2944 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | South West Migration and Legal Services |
| Counsel for the Respondents: | Ms K Hooper |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as further amended on 17 March 2020 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2944 of 2018
| FNH18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 September 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Iran. He arrived in Australia at Christmas Island as an unauthorised maritime arrival on 24 June 2013. On 18 July 2013 the applicant participated in an “Irregular Maritime Arrival and Entry Interview”.[1] Some of the applicant’s claims are recorded at CB 9.
[1] Court Book (CB) 1-14
Following the lifting of a bar notified to the applicant by letter dated 23 August 2016,[2] on 19 October 2016[3] the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).[4] The application included a detailed statutory declaration of the applicant setting out his claims.[5] The applicant claimed to fear harm in Iran, in summary, because of his anti-government and anti-Islam social media activities and his being an atheist.[6]
[2] CB 23
[3] CB 28, 91
[4] CB 27-84
[5] CB 63-69
[6] CB 65
On 2 March 2018 the applicant attended an interview with the Minister’s delegate.[7]
[7] CB 99
On 7 November 2016 the applicant’s agent provided a post-interview submission to the Minister’s Department.[8]
[8] CB 113-130
On 19 March 2018 the delegate refused the applicant’s SHEV application. The delegate’s factual findings are summarised at CB 134-135.
The delegate’s decision was referred to the Authority for review. On 13 April 2018, the applicant provided the Authority with a written submission and new information.[9]
[9] CB 168-172
As noted above, the Authority made its decision on 21 September 2018.[10] The Authority set out the applicant’s claims at [6].[11]
[10] CB 208
[11] CB 211
The Authority accepted that:
a)the applicant is an atheist and was for some time, prior to his leaving Iran;[12]
b)the applicant held anti-government views, and had held such views for some time before he left Iran;[13] and
c)the applicant posted views on religion and the government on social media in Iran, and the applicant would continue to communicate his views in this manner on his return to Iran.[14]
[12] CB 213[20]
[13] CB 214[28]
[14] CB 214-215[30]
The Authority noted that the applicant departed Iran on his own passport, suggesting that at the time of his departure he was not of interest to the authorities.[15]
[15] CB 216[36]
The Authority referred at [41][16] to the applicant’s evidence that, while the applicant was in Australia, his younger sister had died in a car accident which had turned his life upside down. The Authority considered the applicant’s evidence that he was advised that he could ask for “special leave” on compassionate grounds to return to Iran for his sister’s funeral, however he stated he did not return to Iran because if he did, he would not be able to return to Australia alive.
[16] CB 216
The Authority considered a letter from the applicant’s partner to the Minister’s Department, providing a reference for the applicant, and referring to matters including the death of the applicant’s sister.[17]
[17] CB 216[42]
The Authority found at [43]:[18]
I acknowledge that the applicant and his family are close and I accept the significant impact his sister's death has had on him, especially being in Australia. However, I consider there could be a number of reasons as to why the applicant decided not to seek compassionate leave to return for his sister's funeral.
[18] CB 217
The Authority had regard to the fact that, at the arrival interview, the applicant did not mention that he was wanted by the authorities in Iran for his views against religion and the government. Instead, he said he had left Iran because he wanted to work and to have a good life.[19] It considered the applicant’s explanation for these omissions at [45] and the circumstances of the arrival interview, but ultimately regarded this as a matter adverse to the credibility of the applicant’s claims at [46]. The Authority also had regard to the fact that, although the applicant said he was wanted by the authorities in 2007/2008, he was not contacted by them until 2013 when he received a threatening text message. He immediately deleted his Facebook posts and did not receive any more threats between then and when he left Iran.[20]
[19] CB 217[44]
[20] CB 217[47]
The Authority found that there was no evidence that the applicant was wanted by the authorities when he left Iran via the airport in Tehran. The Authority did not accept that the applicant’s family had been approached by the authorities since he left Iran. It observed that the applicant, by his own assertion, was not part of a political party or organisation and other than posting on Facebook, which he stopped doing prior to leaving Iran, the only other manner in which the applicant expressed his atheist and anti-government views in Iran was by speaking to family and friends at gatherings. The Authority did not consider this behaviour would have brought the applicant to the attention of the authorities. It did not accept that the applicant was a person of interest to the authorities when he left Iran.[21]
[21] CB 217[47]
The Authority accepted that on his return to Iran, the applicant would continue to discuss his views on social media and with friends and family.[22] It considered whether this would bring the applicant to the attention of the authorities.[23] The Authority did not accept, based on the current widespread use of Instagram and Facebook in Iran, and the advice of the Department of Foreign Affairs and Trade (DFAT), that the applicant faced a real chance of harm should he continue to post his anti-Islam and anti-Iranian views on social media in Iran.[24] The Authority concluded that, overall, having regard to the applicant’s behaviour and country information, the chance that the applicant’s views on religion and the Iranian government would come to the attention of the Iranian authorities was remote.[25]
[22] CB 218[48]
[23] CB 221[70]
[24] CB 223[81]
[25] CB 223[82]
The current proceedings
These proceedings began with a show cause application filed on 19 October 2018. That application was amended on 19 February 2020 and was further amended on 17 March 2020. The Minister did not object to the applicant relying on the further amended application. There are two grounds in that application:
1.The IAA at [47] found that the applicant was not of interest to the Iranian authorities at the time he left Iran. The IAA fell into jurisdictional error in making this finding for the following reasons:
a)An integer of the applicant's claims was that, although his sister in Iran died in a motor vehicle accident while the applicant was in Australia, the applicant feared returning to Iran for the funeral and to console his mother. The IAA failed to properly deal with this integer of the applicant's claims, which is a jurisdictional error. Further or alternatively, the IAA failed to take into account the possibility that the applicant chose not to return to Iran for his sister's funeral for fear of being caught and killed by the authorities. This error involved a breach of the principle of fact-finding explained in Minister v Rajalingam (1999) 93 FCR 220.
b)The IAA overlooked corroborative evidence from the applicant's Australian partner at CB 84.
2.The IAA accepted that the applicant held, and would post on social media on return to Iran, views critical of the Iranian government and views critical of Islam. The IAA concluded at [81] that "I do not consider that the applicant faces a real chance of harm should he continue to post his antiIslam and anti-Iranian views on social media in Iran". The IAA fell into jurisdictional error in making this finding in relation to the applicant's conduct in posting anti-Islamic views. While country information on which the IAA relied indicated that "Iranians are able to criticise the government of the day robustly" (IAA at [77]), this country information is limited in its application to criticism of the Iranian government and does not apply to the publication of views critical of Islam. The IAA’s finding at [81] was legally unreasonable or otherwise involved jurisdictional error.
I have before me as evidence the court book filed on 6 February 2019 and the affidavit of Nicola Johnson made on 16 March 2020, to which is annexed two country reports on Iran from DFAT published in 2016[26] (DFAT 2016 Report) and 2018 (DFAT 2018 Report).[27]
[26] DFAT Country Information Report on Iran published on 21 April 2016
[27] DFAT Country Information Report on Iran published on 7 June 2018
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 20 March 2020. I have been assisted by those submissions.
Consideration
Ground 1 – did the Authority fail to deal with an integer or element of the applicant’s claims or did the Authority overlook corroborative evidence?
The applicant claimed he was a person of interest to the authorities in Iran when he left Iran in April 2013.[28] For example, the applicant stated in his SHEV application at CB 59:
Since my departure from Iran, my family have constantly been harassed by both local and government police, indicating and threatening, upon my return, I will be detained and dealt with under Sharia law.
[28] CB 59
The applicant added in a statement accompanying the SHEV application at CB 67:
Since I left the country my family home in Abadan is consistently visited by the local authorities searching for me to have me detained. My mother, father and siblings have been harassed by the local authorities constantly at home, at work and on the streets and they have threatened my family that, upon my return to the country, I will be arrested … The local government authorities have advised my family that they are still after me …
The Authority at [29] commenced considering the question “Was the applicant a person of interest to the authorities for his expression of his religious and political views?”. The Authority, after considering a number of matters at [29]-[47], concluded at [47]:
Although the applicant has been consistent in his claim that his family has been approached by the authorities since he left, I do not accept that this is the case … Overall I do not accept that the applicant was a person of interest to the authorities when he left Iran.
The applicant has two complaints about the Authority’s reasoning process leading up to this finding as follows.
First, an integer of the applicant’s claims was that, although his sister in Iran died in a motor vehicle accident while the applicant was in Australia, the applicant feared returning to Iran for the funeral and to console his mother. The applicant explained the point as follows:[29]
During my time in Australia … my younger sister … tragically passed away in a horror car accident. This incident has turned my life upside down … I was advised I could ask the Australian government to grant me a special leave on compassionate grounds to return to Iran to attend my sister’s funeral and see her for the last time … However, I could not return to Iran as I know if I returned to Iran I would not be able to return to Australia alive as the authorities have already threatened my family of this to occur upon my return … I have lost my sister, unable to hold her or say my family goodbye .. I could not be at my mother’s side to help her with anything apart from hear her crying voice from the end of the phone each night while I am here in Australia.
[29] at CB 68
The Authority stated at [43]:
I acknowledge that the applicant and his family are close and I accept the significant impact his sister’s death has had on him … However, I consider there could be a number of reasons as to why the applicant decided not to seek compassionate leave to return for his sister’s funeral.
In Minister for Immigration v Rajalingam[30] Sackville J stated at [60], [62], [63] and [67]:
[60]It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
[62] In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution ...
[63] … The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
[67]In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred ... If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[30] (1999) 93 FCR 220
The principle explained in Rajalingam in considering claims for a protection visa also applies to the Authority.
The principle explained in Rajalingam focused on the approach the decision-maker must take in considering “whether [or not] alleged past events have occurred”.[31] The applicant contends that the principle also applies to other aspects of fact-finding by the decision-maker concerning past events, in particular a person’s motivation for undertaking or not undertaking an act in the past. There is no reason why the principle explained in Rajalingam should not also so apply.
[31] at [62]
In the present matter, in circumstances where the Authority accepted that the applicant’s sister in Iran died while the applicant was in Australia and the applicant decided not to return to Iran for the funeral, a relevant question for the Authority is said to have been the motivation for the applicant’s decision not to return to Iran for the funeral. The applicant expressly claimed that he chose not to return for fear of being caught and killed by the authorities and killed. If this was the applicant’s genuine belief, this would support his claim that the Iranian authorities had approached the applicant’s family in Iran while the applicant was in Australia and threatened to arrest and detain the applicant. Alternatively, if the applicant had a different motivation for not returning to Iran (eg he could not afford the plane ticket, or he did not want to leave his Australian partner), this would undermine the applicant’s claims concerning whether the Iranian authorities were interested in arresting and detaining him.
The applicant contends that the Authority at [43]:
a)did not reject the applicant’s claim that he chose not to return for fear of being caught and killed by the authorities and killed; and
b)avoided making a finding concerning the applicant’s motivation for not returning to Iran by stating that “there could be a number of reasons as to why the applicant decided not to … return for his sister’s funeral”.
The applicant contends that the Authority at [47] did not accept the applicant’s claim “that his family has been approached by the authorities since he left” Iran. He submits that on a fair reading of the Authority reasons at [29]-[47]:
a)some matters supported a conclusion that the applicant may be of interest to the authorities at the time he left Iran (such as the Authority’s finding at [30] that “I accept that the applicant posted views on religion and government on social media in Iran”, and the Authority’s finding at [35] that “a text message was received by the applicant and that he deleted all Facebook statuses and posts after he received the message”, while other matters did not support such a conclusion; and
b)the Authority’s finding at [47] not to accept the applicant’s claim “that his family has been approached by the authorities since he left” Iran was made on the balance of probabilities. The Authority had some doubt about the finding.
The applicant submits that, if the Authority had taken into account the possibility that he chose not to return to Iran for his sister’s funeral for fear of being caught and killed by the authorities, and that this was his genuine belief, this may have affected an assessment of the Authority’s view as to whether the applicant’s family was approached by the authorities while the applicant was in Australia.
In the circumstances, the Authority is said to have fallen into jurisdictional error in the manner explained in Rajalingam.
Alternatively, the applicant submits that the Authority failed to properly deal with and make a finding concerning an integer of his claims, being the reason he chose not to return to Iran for his sister’s funeral. Where a decision-maker fails to deal with an integer of an applicant’s claims for a protection visa, this is a jurisdictional error.[32]
[32] NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at [55]-[63]; and Htun v Minister for Immigration (2001) 233 FCR 136 at [42]
The applicant further asserts that another item of evidence in support of his claims that his family in Iran had been approached by the authorities while the applicant was in Australia was from his Australian partner. She wrote in a statement provided to the Minister’s Department:[33]
I understand that Iranian authorities are threatening his family in Iran to detain him as he has spoken out against Islam and exercised his freedom of speech whilst in Iran …
[33] CB 84
Although this evidence is hearsay and, where rules of evidence in the Evidence Act 1995 (Cth) apply, would not be admissible to prove that the Iranian authorities were threatening the applicant’s family in Iran, the rules of evidence do not apply to evidence before the Authority. The evidence from the applicant’s Australian partner indicates that the applicant had told his partner that the Iranian authorities were threatening his family in Iran.
The applicant’s complaint is that the Authority did not have regard to this aspect of the partner’s evidence. In relation to this complaint:
a)a first question is whether or not the Authority had regard to this aspect of the partner’s evidence. It is accepted that a mere failure by a decision-maker to refer to an item of evidence does not mean that the decision-maker failed to consider the evidence. However, where a decision-maker fails to refer to a material item of evidence, it is open to a court on a judicial review application to conclude that the decision-maker failed to consider the evidence;
b)if the Court accepts that the Authority failed to consider the evidence, a second question is whether this is a jurisdictional error. Where a decision-maker ignores or overlooks important evidence concerning a material issue, this may be a jurisdictional error;[34]
[34] see for example VAAD v Minister for Immigration [2005] FCAFC 117 at [77] – “the Tribunal failed to consider a document, the UNP Letter, which was … arguably of critical importance to the claims of all the appellants …” and WAFP v Minister for Immigration [2003] FCAFC 319 at [21] - “The failure by the RRT to refer to the interview … and to take it into account … did amount to an error of law because it constituted a failure to have regard to relevant material which was so fundamental that it goes to jurisdiction”; Minister for Immigration v SZRKT (2013) 212 FCR 99 at [72]
I prefer the Minister’s submissions concerning these two complaints about the Authority’s reasoning.
The first concerns the applicant’s evidence as to his sister’s death. This was not an integer of a claim, namely, a factual matter that if accepted, may form the basis of a finding that the applicant has a well-founded fear of future persecution, or faces a real risk of significant harm.[35] Rather, the information about the sister’s death was evidence said to bolster or corroborate the applicant’s claimed subjective fear of harm were he to return to Iran. The Authority considered this evidence. It is dealt with at [41] and [42] of its reasons.
[35] see Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
This applicant relies on the principle articulated by Sackville J in Rajalingam. His Honour there summarised the circumstances when a decision-maker (in that instance the Refugee Review Tribunal) will have a duty to take account of the chance that a past event might have occurred, even though the decision-maker thinks that it probably did not:[36]
In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271– 72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[36] at [67]
In Rajalingam, the analysis undertaken by the Full Federal Court was concerned with whether certain events did or did not occur. It was in this context that the Court held that:
a)a decision-maker may fall into error if he or she fails to consider whether an alleged event may have occurred;[37]
b)there is nothing, as a matter of principle that requires a decision-maker to express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct;[38]
c)a reviewing court should not impute to a decision-maker a lack of conviction or confidence in its findings of fact so as to warrant holding that the decision-maker should not or could not have relied on such findings to hold that a fear of persecution was not well-founded;[39] and
d)if there is “no real doubt” about a finding then there is no warrant for holding that a decision-maker “should have considered the possibility that its findings were wrong.[40]
[37] at [62] and [66]
[38] at [64]
[39] at [65]
[40] at [67]
In this case, unlike Rajalingam, there was no event which the Authority had concluded had not taken place, but could have, as would engage the principles in Rajalingam. There was thus no requirement on the part of the Authority to consider whether it was wrong.
The Authority’s reasoning in the present case was that the applicant was not of adverse interest to the authorities when he left Iran.[41] It found there “could be a number of reasons as to why the applicant decided not to seek compassionate leave to return for his sister’s funeral”.[42] That merely reflected that the Authority, having rejected the applicant’s claims concerning his receipt of any more than one threatening message, his having any pending charges against him, his family being approached by the authorities after the applicant’s departure, and his being of adverse interest to the Iranian authorities, was unable to make a finding as to the particular reason(s) the applicant had decided not to return to Iran and there was no necessity for it to do so. The relevant assessment to be made by the Authority is “one which can be made on the basis of probative material, without extending into guesswork”.[43]
[41] CB 218[47]
[42] CB 217[43]
[43] CPE15 v Minister for Immigration [2017] FCA 591 at [60]
The Authority is under no obligation to address each and every possible “question” raised by its findings to finality in order that the Authority can complete the exercise of its jurisdiction.[44] As Judge Smith held in DAT17 v Minister for Immigration & Anor[45] at [31],[46] there is no obligation imposed by the Migration Act 1958 (Cth) (Migration Act) on the Authority to make findings explicitly accepting or rejecting an applicant’s claims. Pursuant to s.65 of the Migration Act, the Authority is required to be affirmatively satisfied that the applicant meets the statutory criteria for the grant of the visa. Findings of fact are not always necessary to support a state of non-satisfaction. Where the evidence before the decision-maker is insufficient or inadequate to establish relevant facts there is no error in failing to make a finding.[47]
[44] EYP17 v Minister for Immigration & Anor [2019] FCCA 1583 at [35]-[37]
[45] [2018] FCCA 3750
[46] appeal dismissed in DAT17 v Minister for Immigration [2019] FCA 1548
[47] citing Minister for Immigration v VSAF of 2003 [2005] FCAFC 73 at [16]- [17] and the cases referred to therein
No jurisdictional error is demonstrated by the first of the applicant’s complaints.
The second of the applicant’s complaints concerns the letter from his partner. The applicant says that the Authority did not have regard to that part of her letter extracted at [36] above.
The Authority expressly referred to the partner’s letter. The applicant cannot discharge his onus of proving that the letter, or any part of it, was overlooked.[48] A decision-maker, including the Authority, does not have to refer to all items of evidence before it,[49] let alone set out each sentence of every item of evidence. Further, even if the impugned sentence was overlooked, the evidence was not sufficiently cogent, nor was it independently corroborative, such that any failure to consider it would not go to jurisdiction.[50]
[48] SZRKT; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67]-[68]; [91]-[92]
[49] See, eg, NAHI v Minister for Immigration [2004] FCAFC 10 at [14]; Applicant WAEE at [46]
[50] SZRKT at [112]; Minister for Immigration v SZSRS(2014) 309 ALR 67 at [56]; Hossain v Minister for Immigration (2018) 264 CLR 123 at [30]-[31] per Kiefel CJ, Gageler and Keane JJ, [72] per Edelman J; Minister for Immigration v SZMTA (2019) 264 CLR 421 at [4], [44]-[46], [49] per Bell, Gageler and Keane JJ
Further, even if the Authority erred in relation to the purportedly corroborative evidence of the applicant’s partner, it was not in my view material to the outcome. This is because that evidence bore on the genuineness of the applicant’s fear of returning to Iran, rather than the well foundedness of the fear.
The applicant might, hypothetically, have made other claims arising out of his partner’s statement or in relation to his family connections in Australia. He might, for example, have asserted that his partner’s evidence establishes the importance of family connections to the applicant which, in relation to his Australian family, would be severed if he is required to return to Iran without them. The applicant did not, however, make any claim of psychological harm if he is required to separate from his Australian partner and, assuming their child has now been born, their child.
The partner’s statement also refers to their mutual intention to apply for a partner visa. I have no information concerning that issue.
Ground 2 – did the Authority err by conflating the applicant’s political opinion with his atheism?
The applicant claimed:
a)to be atheist and hold opinions and beliefs critical of Islam; and
b)to hold opinions and beliefs critical of the Iranian government.
Further, the applicant claimed to have, in the past in both Iran and Australia, communicated his views to friends and family and posted his views on social media.
The Authority accepted these claims:
a)at [20] “accept[ed] that the applicant is an atheist and was an atheist some time before he left Iran”;
b)at [28] “accept[ed] that he holds anti-government views and held these views for some time before he left Iran”;
c)at [30] “accept[ed] that he also spoke about his views on religion and the government at gatherings with family and friends, that “the applicant posted views on religion and government on social media in Iran” and “the applicant considers it his duty to talk about these things and that he will continue to communicate his views in this manner upon his return to Iran”;
d)at [70] repeated its finding that “I accept that the applicant may continue to post his [religious] views on social media upon his return to Iran”.
In light of the Authority’s finding at [30], a question is whether the applicant’s conduct, on return to Iran, would bring him to the attention of the Iranian authorities. The Authority addressed this question in its decision at [65]-[82]. It concluded at [81] that “I do not consider that the applicant faces a real chance of harm should he continue to post his anti-Islam and anti-Iranian views on social media in Iran”. The applicant has a complaint about this finding as follows.
As stated above, as accepted by the Authority, the applicant holds views critical of Islam and views critical of the Iranian government. In Iran there is a distinction between views critical of Islam and views critical of the Iranian government. For example, section 3 of the DFAT 2018 Report (on which the Authority expressly relies), which section is titled “Refugee Convention Claims”, has separate sections on “Religion” (paragraphs 3.17-3.45, and “Political opinion” (paragraphs 3.46-3.57). The DFAT 2016 Report, on which the Authority also relies, contains the same structure.
The section on “Political opinion” in each report contains the sentence:
Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media.
The section on “Religion” in each report contains no similar sentence. The DFAT 2018 Report, to the contrary, at 3.44 refers to an incident in 2017 where the Supreme Court upheld a lower court decision sentencing a man to death for apostasy “after he made social media posts considered critical of Islam”, and that “the court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison”.
The Authority’s discussion at [65]-[82] appears to initially acknowledge the distinction between views critical of Islam and views critical of the Iranian government. The applicant submits that, on a fair reading of the Authority’s discussion at [65]-[82]:
a)at [65]-[74] the Authority focuses on the applicant’s views critical of Islam;
b)at [75]-[80] the Authority considers country information on use by people in Iran of the internet and social media, and the ability of people in Iran to criticize the government of the day; and
c)at [81]-[82] the Authority makes its ultimate findings.
The Authority also refers to the separate sections on “Religion” and “Political opinion”. For example:
a)at [69] it refers to the incident in 2017 where the Supreme Court upheld a lower court decision sentencing a man to death for apostasy; and
b)at [77] it quotes the sentence “that Iranians are able to criticise the government of the day robustly both in public conversation and online”.
In relation to the applicant’s views critical of Islam:
a)the Authority notes at [67] that “DFAT also considers that atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views”;
b)the Authority states at [70] “I accept that the applicant may continue to post his views [on religion] on social media upon his return to Iran and I have considered whether this would bring the applicant to the attention of the authorities”;
c)the Authority states at [74] that “I do not accept that the applicant seeks to actively publicise his views [on religion] other than by … posting views on social media”; and
d)the Authority then moves to a conclusion at [81] that “I do not consider that the applicant faces a real chance of harm should he continue to post his anti-Islam and anti-Iranian views on social media in Iran”.
The applicant’s complaint is that, in light of the Authority’s findings at [67], [70] and [74], it is unclear how the Authority arrives at its conclusion at [81]. The alleged error appears to be that it has confused or merged the separate country information concerning “Religion” and “Political opinion”. For example:
a)the Authority at [77] stated, with reference to the DFAT reports, “Iranians are able to criticize the government of the day robustly, both in public conversation and online”; and
b)the Authority then appears at [81] to have applied this country information to the applicant’s criticism of Islam. However, as explained above, country information indicates that, while Iranians can robustly criticise the government of the day on social media, they face greater risks of serious harm if they post anti-Islamic comments on social media.
Alternatively, the applicant submits, in light of the country information and the Authority’s findings at [67], [70] and [74], the Authority’s conclusion at [81] was legally unreasonable.
In Singh v Minister for Immigration[51] at [61] the Full Federal Court stated:
The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 ; Minister for Immigration & Border Protection v SZVFW (2018) 357 ALR 408 at [54]–[60] (Gageler J); [78]–[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:
(1)is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);
(2)“lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);
is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration & Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).
[51] [2019] FCAFC 3
I also prefer the Minister’s submissions in relation to this ground.
This ground takes issue with the Authority’s conclusion at [81].[52] Essentially, the applicant’s complaint is that the Authority has misused certain DFAT country information by taking parts of that information that concern the expression of political opinion and applied them to criticism of Islam.
[52] CB 223
The Authority’s reasons relevant to this ground of review are at [65]- [82].[53] The Authority accepted the applicant was an atheist, and that he did not promote Islamophobia or hate towards any religion of any kind because of his beliefs and atheism. It found at [65] that the applicant was not wanted by the authorities in Iran for his views on, relevantly, religion, when he left Iran in 2013.
[53] CB 221- 223
The Authority observed, at [67], that DFAT considered that atheists were unlikely to come to the attention of the security authorities unless they sought to publicise their views.[54] It found, at [74], that the applicant did not seek to actively publicise his (religious) views other than in the limited ways it had there identified. The Authority expressly considered the case of the individual reported on by DFAT in 2018, [55] at [69] of its reasons. The Authority found that DFAT considered it unlikely that individuals would be prosecuted on charges of apostasy and that perceived apostates were only likely to come to the attention of the Iranian authorities through public manifestation of their new faith, attempts at proselytisation, attendance at a house church or via informants.[56] The Authority’s factual findings, and the applicant’s claims, were such that the applicant did not fall within any of these identified categories.[57]
[54] DFAT 2016 Report at 3.57
[55] DFAT 2018 Report at 3.44
[56] DFAT 2016 Report at 3.55
[57] see the Authority decision at [71]
The Authority considered at [70] whether the applicant’s continuing to post his views on social media on his return to Iran would bring the applicant to the authorities’ attention. In so finding, it permissibly had regard to information in the 2016 DFAT Report concerning the use of the Internet in Iran including social media at [75].[58] It also considered similar information in the 2018 DFAT Report at [76].[59]
[58] DFAT 2016 Report at 3.106
[59] DFAT 2018 Report at 3.71
The Authority observed, at [77], that DFAT in 2016[60] had indicated that[61] “within limits well known to Iranians, daily life is vibrant and sophisticated. It stated that Iranians are able to criticise the government of the day robustly, both in public conversation and online (for example, in social media). …” The Authority considered information about Instagram and Facebook usage at [79]-[80].
[60] at 3.60
[61] See DFAT 2018 Report at 3.48
At [81]-[82], the Authority found:
Based on the current widespread use of Instagram and Facebook in Iran and based on DFAT’s advice that Iranians are able to criticise the government of the day robustly, both in public conversation and online in social media, I do not consider that the applicant faces a real chance of harm should he continue to post his anti-Islam and anti-Iranian views on social media in Iran.
Overall, having regard to the applicant’s behaviour and the country information I consider the chance that the applicant’s views on religion and the Iranian government will come to the attention of the Iranian authorities is remote. I accept that when the applicant was in Iran he received a threatening message on his phone regarding his social media activity. I have also accepted that the applicant’s activities on social media may continue upon his return to Iran and although I consider that it is possible that he may receive similar messages or comments on social media in the future, I do not consider that they would amount to anything more than low-level harassment. As such, I am not satisfied that the applicant faces a real chance of serious harm now, or in the reasonably foreseeable future, for these reasons.
Contrary to the applicant’s submissions, it is artificial to attempt to draw any rigid distinction between the expression of views critical of Islam and of the Iranian government. The 2018 DFAT report at 3.18 makes plain the mixed nature of religion and state in Iran. The DFAT reports deal separately with religion and political opinion, but that is because they use headings that reflect the Refugees Convention grounds. The connection between religion and the state is similarly reflected in the nature of the applicant’s claims. As the Authority correctly stated at [24]:[62]
The applicant’s claims regarding his views on religion are closely tied to his claims relating to his views on the Islamic Republic of Iran. In the SHEV interview the applicant also claimed to have views that are against the Iranian regime, and that he has spoken about human rights, womens’ [sic] rights and animal rights in Iran. He said he considers it his “duty” to talk about these things.
[62] CB 214
The Authority’s reasons as summarised above were open to it and do not reveal any impermissible use of or misunderstanding of the 2016 and 2018 DFAT Reports. The Authority dealt together with the applicant’s expression of his views about religion, and his views about the Iranian government. Given the overlap in Iranian society between matters of religion and state, and the way the applicant presented his claims concerning his expression of his views (that is, he himself did not attempt to delineate between the two), it was open for the Authority to deal with this claim as essentially comprising of one “integer” and to place weight upon the 2016 and 2018 DFAT Reports in the manner that it did.
I am fortified in this view because of the applicant’s inability to provide the Authority with examples of his social media posts. Without examples, it was difficult for the Authority to make a reliable assessment of how dangerous the posts might have been if the applicant were in Iran. The applicant might also have made more of his tattoo which was rather dismissively dealt with by the Authority at [72]. The applicant in these proceedings, however, has made no complaint about the manner in which the Authority dealt with his tattoo.
Conclusion
I conclude that the applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
The parties also made submissions as to costs at the trial. I will order, consistently with the Minister’s submissions on costs, that the applicant pay the first respondent’s costs, fixed in the sum of $6,500.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 April 2020
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