Fsa18 v Minister for Home Affairs

[2019] FCCA 1465

FEDERAL CIRCUIT COURT OF AUSTRALIA

FSA18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1465

Catchwords:
MIGRATION – Application for safe haven enterprise visa – adverse credibility findings against applicant – no jurisdictional error established – application dismissed.

Legislation:

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

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: FSA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY  

File Number: BRG 1105 of 2018

Judgment of: Judge Egan

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Brisbane

Delivered on: 22 May 2019

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Mr A. Gardner of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on 29 October 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1105 of 2018

FSA18

Applicant

And

MINISTER FOR HOME AFFAIRS & ANOTHER

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia as an unauthorised maritime arrival on 26 June 2013. On 7 October 2016 the applicant applied for a Safe Haven Enterprise Visa (SHEV).

2. On 25 October 2017 the applicant attended a protection interview with a delegate of the Minister. On 17 April 2018 the delegate refused the applicant’s application for a SHEV.  The delegate’s decision was then referred to the Immigration Assessment Authority (‘the Authority’) for review. 

3. On 26 April 2018 the Authority advised the applicant of the Authority referral.   On 15 May 2018 the applicant provided written submissions to the Authority as well as a letter of support. On 18 October 2018 the Authority affirmed the decision of the delegate not to grant the applicant a SHEV.

4. On 29 October 2018 the applicant filed an application for review of the decision of the Authority pursuant to the provisions of s.476 of the Migration Act 1958 (Cth) (‘the Act’). The one ground of review contained in the originating application is as follows:

   “1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.”

5. The applicant’s claims for protection were set out in [7] of the reasons of the Authority as follows:

   ·“While growing up in Iran the applicant had a number of Christian friends. He became interested in that faith and converted to Christianity. On occasions he would wear a crucifix necklace and ring, and he also wore t-shirts depicting Jesus.

   ·A particular police officer harassed him on numerous occasions. On the first incident he stopped the applicant while he was driving his car and impounded the vehicle after falsely accusing the applicant of drinking alcohol.

   ·On the second occasion the police officer ordered the applicant to pull over and again accused him of drinking alcohol. This time he saw that the applicant was wearing a ring with a cross on it. He was taken to the police station and severely beaten. The applicant was detained for two days and taken to court. He was not charged and no offence was recorded but he had to pay a fine to secure the release of his vehicle. After this the police officer also came to his shop regularly and threatened him.

   ·The final incident was when the applicant was a passenger in his friend’s car. They were stopped at a police roadblock, where the same police officer was present and spotted the applicant. The applicant was wearing a necklace with a cross, which the police officer ripped off his neck. The police officer and his colleagues attacked the applicant. He managed to escape and ran to a friend who was approaching the roadblock from the other direction on his motorbike. He fled the scene on the back of the motorbike.

   ·After the road block incident he hid at a friend’s house until he was able to arrange to depart the country, after around five or six days.

   ·Since arriving in Australia he has been baptised and has attended church.

   ·Should he return to Iran he fears being harmed by the authorities because of his conversion to Christianity, for being considered an apostate, and because of the vendetta with the police officer. He also fears harm for being a returning asylum seeker from a western country.”

6. At [2] of the reasons of the Authority it was recorded that the Authority had had regard to the material provided to it by the Secretary pursuant to the provisions of s 473CB of the Act.

7. At [4] of its reasons the Authority referred to the receipt of new information, being a letter of support from a pastor at Potter’s House Church dated 11 May 2018.  Such letter was considered new information.  At [5] of its reasons the Authority found that no exceptional circumstances existed so as to justify consideration of that letter.  Nevertheless, the Authority was not satisfied that there were exceptional circumstances justifying such letter’s consideration.

8. At [6] of its reasons, it was noted by the Authority that on 7 June 2018 the Australian Department of Foreign Affairs and Trade (DFAT) released an updated Country Information Report on Iran.  The Authority was satisfied that exceptional circumstances did exist which justified consideration of that report.  At [10]-[22] of its reasons the Authority discussed in detail the applicant’s claims relating to his having experienced problems over the years with police in Iran because of his religion, specifically his conversion to Christianity.  He stated that he had “converted in his heart” whilst in Iran.

9. Various explanations were sought from the applicant as to what types of problems he alleged he had suffered as a result of his belief in Christianity whilst in Iran.  There were conflicting stories advanced by the applicant about the reasons for such alleged problems.  One was that the applicant had had T-shirts with the pictures of Jesus on him.  When questioned whether the applicant was looking for trouble from the authorities by wearing such a T-shirt, the applicant stated that he was not trying to provoke anyone and not trying to show off.

10. The applicant also clarified that he only wore the Jesus T-shirt two or three times when he went to see Christian friends.  The applicant said that no one of sound mind would take the risk of wearing T-shirts in a populated area.  The Authority recorded that it was a crime for a non-Muslim to convert Muslims.  The Authority doubted whether the applicant wore any Jesus T-shirt in public, even if it was to only less populated areas, because in doing so the applicant and his friends would have been exposing themselves to considerable risk.

11. The claims advanced by the applicant were found to be vague and unresponsive.  The applicant was unable to be specific about the names of people with whom he had prayed in Iran in circumstances where it would have been expected that he would have been able to remember the names of such fellow worshippers.  The Authority did not accept that the applicant had converted to, or practised Christianity, whilst in Iran, either in his heart or otherwise.

12. At [17] of its reasons, it was recorded by the Authority that the applicant was unable to recall details about when he was first allegedly targeted and threatened by police because of his having converted to Christianity.   The applicant couldn’t remember the time of year when he was allegedly threatened.  It was found that the applicant lacked detail and failed to exhibit spontaneity when responding to questions on that topic. 

13. At [18] of its reasons, the Authority referred to the applicant’s claims that he had twice been stopped by police in his car because of the accusation that he had been drinking alcohol.  Though stating that his car had been impounded after the first incident, and though he was only able to secure the release of his car after the occurrence of the second incident, the applicant nonetheless contended that he was still in his car on the occasion of the second incident, when such vehicle was then impounded. 

14. The Authority at [19] of its reasons pointed to such irregularities in the evidence of the applicant, pointing to the obvious inconsistencies in the accounts, giving rise to doubts as to the veracity of such evidence.  At [21] of its reasons the Authority found that it had concerns in relation to the applicant’s narrative concerning his escape from a roadblock, the Authority not being prepared to accept the applicant’s version of events in relation to same. 

15. At [22] of its reasons, the Authority found that it was not satisfied that the applicant had been truthful in relation to the problems he claimed to experience in Iran from any police officer for any reason, considering such claims as made by the applicant to have been fabricated.  At [23] of its reasons the Authority found that it did not accept that the applicant was of any adverse interest to the Iranian authorities for any reason at the time of his departure from Iran.  The Authority noted, in that regard, that the applicant had lawfully left Iran via a major international airport using an Iranian passport issued in his name.

16. As to the applicant’s assertions that should he be returned to Iran he feared being harmed by the authorities because of his conversion to Christianity, the Authority dealt in detail with such issues at [24-37] of its reasons.  At [29] of its reasons, when referring to earlier questioning of the applicant concerning his attendance at Christian church ceremonies, the Authority found that the applicant’s attendance, such as it was, was infrequent and did not support a conclusion that the applicant was a genuine adherent to the Christian faith.

17. The applicant said that he read the Bible only at church.  At [31] of its reasons it was noted by the Authority that for a person who claimed to have had an interest in Christianity since a young age and who fled the country allegedly in fear of harassment due to his interest in that faith, it was striking that the applicant had not demonstrated much in the way of a desire to develop his understanding of Christianity since arriving in Australia in circumstances where he had an ability and the freedom to do so. 

18. The Authority at [33] of its reasons did not accept that the applicant was a genuine follower of Christianity, nor was it satisfied that the applicant would seek to practise the Christian faith in Iran in the reasonably foreseeable future if returned to that country.  At [36] of its reasons the Authority otherwise found that the applicant had not provided detail as to how, when or why he purportedly renounced Islam before travelling to Australia.  The Authority was not satisfied that the applicant had done so, and did not accept that the applicant had abandoned Islam. 

19. In terms of the applicant being a returning asylum seeker, it was noted in [38] of the Authority’s reasons that the Australian Government had reached an agreement with the Iranian authorities to facilitate the return of Iranians who arrived in Australia after March 2018.  Though the applicant had arrived in Australia in 2013, such that those arrangements did not apply to him, the Authority was not satisfied that the applicant would be involuntarily returned to Iran from Australia, finding that any return would be on a voluntary basis. 

20. At [39] and [40] of the reasons of the Authority, reference was made to the refugee assessment and well-founded fear of persecution criteria as set out in section 5H(1) of the Act and section 5J of the Act.

21. At [42] of its reasons, the Authority found that the applicant had not converted to Christianity or that he had renounced Islam.  As to any state of apostasy, there was no suggestion that the applicant was ever adversely treated for not being strictly inherent to the Islamic faith whilst in Iran.  DFAT country information suggested that it was unlikely that the government of Iran would monitor religious observations such as whether a person regularly attended a mosque or participated in religious occasions. 

22. The Authority was not satisfied that there was a real chance that the applicant would experience harm for reasons of religion in Iran in the foreseeable future.  Similarly, it was not satisfied that there was any real chance of harm to the applicant were he to return to Iran in the foreseeable future in his capacity as a returning asylum seeker.  DFAT country information confirmed that Iranian authorities had little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims as well as converting to Christianity. 

23. The Authority found that the applicant did not meet the requirements of the definition of refugee in section 5H(1) of the Act, nor that the applicant met the relevant section 36(2)(a) criteria. As to complementary protection considerations, the Authority found that, in the light of its having concluded that the applicant did not face a real chance of any harm for being a returning asylum seeker and having spent time in the west, the Authority was also not satisfied that there was a real risk that the applicant would face harm, including significant harm, for any reason, if he was to be returned to Iran.

24. At [55] of its reasons, it was found that the Authority did not accept that the applicant had genuinely converted to Christianity and that in the light of such finding, as well as the country information, the Authority was not satisfied that the applicant’s church attendance in Australia, and any participation in a baptism ceremony, would constitute conduct that would be of any interest to Iranian authorities. 

25. At [56] of its reasons the Authority noted that international observers had advised DFAT that the Iranian authorities had little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including for converting to Christianity.  The Authority also did not accept that the applicant would seek to practise the Christian faith were he to return to Iran, nor did it accept that the applicant would engage in any Christian-related activities should he do so.  It was not satisfied that the applicant faced the real risk of significant harm in Iran for reasons of religion.

26. At [58] of its reasons the Authority found that the applicant did not meet the relevant complementary protection criteria as set out in section 36(2)(aa) of the Act. The Authority has not failed to make any obvious inquiry about a critical fact. It closely examined all of the claims made by the applicant and dealt in detail with each such claim. [1]

    [1]        Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25-27].

27. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

28. Neither could the decision be considered as legally unreasonable or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

29. No jurisdictional error has been demonstrated on the part of the Authority. 

30. The application for review is without merit and is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 6 June 2019