FTQ18 v Minister for Home Affairs

[2019] FCCA 1406

FEDERAL CIRCUIT COURT OF AUSTRALIA

FTQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1406

Catchwords:
MIGRATION – Application for temporary protection visa – country information contrary to claims of applicant – inconsistencies in applicant’s claims – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DC, 473DD, 473DE

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] 216 CLR 473
SZVZL v Minister for Immigration and Border Protection [2018] FCA 1299
CNN15 v Minister for Immigration and Border Protection [2017] FCA 579
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: FTQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1136 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

Solicitors for the Applicant: Mr A. Francis of Angus Francis Lawyers

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

IT IS ORDERED THAT:

1. The amended application for review filed on 6 March 2019 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 1136 of 2018

FTQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran who arrived in Australia on 14 July 2013 as an unauthorised maritime arrival. 

2. On 21 March 2017 the applicant applied for a temporary protection visa (subclass 785). 

3. On 9 March 2018 a delegate of the Minister refused to grant to the applicant the TPV.  On 14 March 2018 the delegate’s decision was referred by the Minister to the Immigration Assessment Authority (‘the Authority’) for review. 

4. On 10 October 2018 the Authority affirmed the delegate’s decision.

5. On 6 March 2019 the applicant filed an amended application for review of the decision of the Authority.  The grounds for review, which appear on page 3 of the amended application for review, are as follows:

   “1. The IAA misapplied the test in s 5J of the Migration Act 1958 (Cth).

   Particulars:

   a. The applicant claimed that he would face persecution in Iran because of his non-belief in Islam

   b. The IAA accepted that the applicant had anti-Islamic views and had refrained from making his views publicly known so as not to come to the further attention of the authorities.

   c. The IAA found that the applicant’s fear of persecution on the basis of his anti-Islamic views was not well-founded because of his lack of public comment in relation to his religious opinion and his ability to continue to privately adhere to his religious views if he were to return to Iran.

   d. The IAA was required to, but did not, turn its mind to the reason for its finding that the applicant would not publicly profess his anti-Islamic views, and did not consider whether the reason that the applicant would remain silent was because he feared persecution.”

6. The applicant’s claims for protection were recorded by the Authority at [15] of its reasons as follows:

   ·“He was born in Broujerd, Lorestan Province, Iran to a Shia Muslim family.

   ·He is an Iranian citizen and does not have a right to reside in any country other than Iran.

   ·He departed Iran legally via the Khomeini International Airport on 16 June 2013 using a genuine passport and arrived in Australia on 13 July 2013.

   ·At around the age of 22 (in around 2006) he stopped believing in Islam. He does not currently practise any religion. He fears that if he is returned to Iran he may be subjected to harm, including death, as the punishment for non-believers is death.

   ·In June 2012 he was questioned by the Ettela’at about a birthday party that he had held in his fast food shop; he was asked why men and women were together and accused of having alcohol at the party. The Ettela’at accused him of being a non-believer of Islam, promoting ideas contrary to Islam and distributing anti-Islam pamphlets to customers. Ettela’at officers took his laptop and searched through it. They also searched his home. He believes that the Ettela’at had been keeping track of him for some time and had recorded his conversations.

   ·The greatest harm he experienced in Iran was the closure of his business. The Ettela’at prevented him from being able to continue to operate his fast food shop and he had to sell everything and close the business.

   ·He did not seek help in response to the harm he experienced because there were no other authorities that he could seek help from.

   ·He was forced to leave Iran because he was being persecuted by the Ettela’at for having ideas that were contrary to Islam and for being a non-believer.

   ·He fears return to Iran and believes he will be killed by the Ettela’at because the punishment for non-believers in Iran is death.

   ·He does not believe that he will be able to seek help from anyone in Iran if he is returned, as it is the authorities who are trying to harm him.

   ·He would not be able to relocate to another part of Iran because the Ettela’at is very well-connected throughout Iran and they would be able to find him and continue to persecute him.”

7. At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

8. At [5] – [14] of its reasons, the Authority closely examined the claims of the applicant relating not only to the alleged circumstances surrounding the death of his sister when she was about 19 years of age, but also the involvement of a group called Ettela’at. 

9. At [10] of its reasons, the Authority considered the alleged circumstances surrounding the death of the applicant’s sister, and her alleged imprisonment and mistreatment, considering that such information constituted new information. It had already made similar findings in relation to information concerning the alleged posting of bail to allow the applicant to be released from prison in 2012. The Authority found that such information was new information pursuant to the provisions of s 473DC(1)(a) of the Act, although the Authority finding that the provisions of section 473DD(b) of the Act had not been satisfied in relation to such new information.

10. At [11] of its reasons, the Authority noted that the applicant had not put forward information concerning his sister to the delegate, notwithstanding that he had had an opportunity to do so. 

11. At [12] of its reasons, the Authority noted that the applicant’s sister had died in 2005, some 12 years before the applicant’s protection interview. The Authority stated that it was not clear why the applicant had waited so long to provide such information concerning his sister, and why he did not do so when he lodged his protection visa application in March 2017, or otherwise during his interview with the delegate in January 2018. The Authority found that it was difficult to see the relevance of information about the nature of the applicant’s sister’s death to the then current assessment of the applicant’s claims. The Authority accordingly found that it was not satisfied that there were exceptional circumstances justifying consideration of such new material for the purposes of section 473DE(a) of the Act.

12. At [13] of its reasons, the Authority also found that it was not satisfied that there were exceptional circumstances justifying consideration of the new information for the purposes of section 473DD(a) of the Act because of the length of time which had expired between the death of the applicant’s sister and the provision of such information. At [14] of its reasons, the Authority referred to a DFAT report issued on 7 June 2018 which had updated an earlier country report from DFAT dated 21 April 2016, stating that it was satisfied that there were exceptional circumstances to justify considering the new information contained in such report.

13. At paragraph 16 and 17 of the Authority’s reasons, the Authority set out the relevant refugee assessment and well founded fear of persecution criteria as respectively provided for in section 5H(1) and section 5J of the Act.

14. At [18] – [25] of its reasons, the Authority dealt in detail with the allegation made in the applicant’s entry interview on 8 August 2013, that one of the reasons he left Iran was because he was in prison for four days in June 2012 “for no good reason”.  The applicant had asserted that he had been accused of being with the green movement when he wasn’t.  It was noted that as the applicant had not raised such accusation about being part of the green movement in his protection visa application or the interview, the delegate had not accepted that the accusation was made and did not consider it further.  At [21] of its reasons, the Authority recorded that during the protection visa interview the applicant had claimed that he was interrogated by the Ettela’at three times and then sent to prison for four days for having served alcohol at a party.  At [22] of its reasons, it was recorded that the delegate expressed concern about the credibility of some of the applicant’s claims in relation to Ettela’at’s alleged interest in him. 

15. Questions arose as to the circumstances surrounding the closure of the applicant’s shop and whether such closure was related to the intervention or involvement of some Iranian authority, but the delegate was unable to make any definitive findings in that regard.  At [23] of its reasons, it was noted that the applicant had not provided any legal or court documents to support his claims of imprisonment.  Though the applicant had asserted that he was detained because he had served alcohol, it was noted at [24] of its reasons by the Authority that according to the most recent DFAT country information report, article 265 of the Penal Code provided that the penalty for the use of alcohol was 80 lashes.  It was noted that the applicant had made no claims about having received any lashes as a result of being accused of having alcohol at a party, the Authority noting that that lack of punishment detracted from the applicant’s claim that any alcohol related offence had been involved.  At [25] of its reasons, the Authority found that it was not persuaded that the applicant had been interrogated by Ettela’at or imprisoned in June 2012.  It was also noted that even if the applicant had been interrogated by Ettela’at and imprisoned for four days, that did not prevent him from obtaining an Iranian passport approximately a year before he departed the country, a departure which was legal. 

16. At [26] of its reasons, the Authority found that such legal departure suggested that the applicant was not a person of interest to the Authorities at that time, nor that the applicant was in a rush to leave the country after having been allegedly released from prison in 2012 – the period of time between the alleged release from prison and the applicant’s alleged departure suggesting that he would not have been of interest to the authorities in any event. 

17. At [28] of its reasons, the Authority did not accept that the applicant had been interrogated and imprisoned by Ettela’at in June 2012 or that his laptop and home had been searched.  Nor was it accepted that Ettela’at had been keeping track of the applicant and had recorded his conversations, there being no plausible reason why the Authority would have any interest in him.  At [29] of its reasons, the Authority found that it was not satisfied that the applicant was or would be a person of interest to the Ettela’at for reasons relating to the serving of alcohol at a party, promoting ideas contrary to Islam, or distributing anti-Islamic pamphlets to customers.  It found that he would not face a real chance of harm by the Ettela’at for those reasons if he was returned to Iran.

18. As to the question of apostasy and agnosticism, the Authority dealt at length with such claims at [30] – [39] of its reasons.  Mr Francis, on behalf of the applicant, referred the court to the particulars of the grounds of the application for review and specifically asserted that the Authority had posed the incorrect question concerning whether the applicant would not publicly profess his anti-Islamic views, further asserting that the Authority did not consider whether the reason that the applicant would remain silent was because he feared persecution.  Mr Francis referred the court to the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [1] per Gummow and Hayne JJ where it was said:

    “88. This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live ‘‘discreetly’’. It did not ask whether the appellants would live ‘‘discreetly’’ because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to ‘‘live openly as a homosexual in Bangladesh’’; secondly, that ‘‘[t]o attempt to [live openly] would mean to face problems’’; and, thirdly, that ‘‘Bangladeshi men can have homosexual affairs or relationships, provided they are discreet’’. Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants’ fears well founded. All that was said was that they would live discreetly.”

    [1] [2003] 216 CLR 473 at 503 [88].

19. The applicant further referred to the joint judgment of McHugh and Kirby JJ at [51] – [54] where it was found that the tribunal had constructively failed to exercise its jurisdiction, and that the decision of the tribunal ought to be set aside based on the proposition that the tribunal had misdirected itself as to the correct question which ought to have been posed by the tribunal. 

20. The relevant paragraphs of the Authority’s reasons for consideration concerning whether the Authority had correctly addressed the question of whether the applicant faced a real chance of harm on being returned to Iran on the basis of his apostasy and agnosticism are [33] – [38] inclusive, which are as follows:

    “33. During the protection interview the applicant stated that he did not grow up in a particularly religious family. When asked by the delegate if he had renounced his Islamic faith or whether he was just a non-practising Muslim the applicant said that he largely considers all religions and faiths as a control over people and that he did not consider himself to be an advocate of any religion and specifically not Islam. When asked by the delegate whether he believes there is a God the applicant said that he did not see God in terms of “Hell and Paradise” but rather “a figure who is a source of internal energy” that is perceived “negatively or positively inside you as interior conscience”. The delegate noted that the applicant had commented earlier in the interview that he found himself an apostate at age 22. She asked if that was a title he had given to himself or given to him by others. The applicant said that apostate is a term given to those who have renounced their faith but he would actually call himself a secular humanist and believes in liberty of expression of faith. He said that when living in Iran he became fed up and disenchanted with religion, especially Islam, and its propaganda and promotion. The applicant said that he saw no reason to propagate and promote what he believed in and push his views on to others, although he did speak with immediate family members and close friends about his views. The applicant explained that he was also careful about making comments on his views about religion in public because his mother had asked him not to discuss his views as she was his only remaining child and did not want him to come to the attention of authorities.

    34. I found the applicant’s explanation of his religious views and anti-Islam sentiment to be consistent and genuine and his explanation for not making his views publicly known to be plausible. I accept that he does not follow the Shia Muslim faith or any other faith, and that his belief system is best described as agnostic.

    35. The applicant has not been part of any anti-Muslim groups in Iran or Australia and he has not provided any information that indicates he has made his lack of support for religion publicly known or that he wishes to do so. On his own account, the applicant has largely been able to incorporate his agnosticism and non-adherence to Islam into his daily life in Iran without coming to the ongoing attention of authorities for not following the Muslim faith. He has never acted in a way to deliberately bring attention to his views in a public setting. The applicant has not provided any evidence that suggests he intends or wishes to publicly express his views regarding religion in either Australia or Iran more than he has in the past. On the contrary, he has intentionally kept his views about religion private.

    36. As stated earlier in this decision, based on the evidence before me I am not persuaded that the applicant was interrogated by the Ettela’at and imprisoned in June 2012 due to accusations of serving alcohol during a party, promoting ideas contrary to Islam or distributing anti-Islamic pamphlets to customers. Given his longstanding tendency to keep his religion views private, I am also not satisfied that the applicant was interrogated and imprisoned by the Ettela’at during this period due to his religious views, including his nonbelief in Islam.

    37. The applicant has not provided any evidence that he is of ongoing interest to any religious groups or authorities in Iran as a result of his religious views. He was able to obtain a passport in approximately June 2012 and depart Iran legally in June 2013 without being questioned by authorities or religious groups about a year after his claimed interrogation and imprisonment by the Ettela’at. I consider that authorities would have been able to track and locate the applicant prior to his departure if he was a person of ongoing interest to them.

    38. The applicant’s concerns about fearing harm by authorities in Iran due to his agnosticism are not supported by the current DFAT report, especially given his lack of activism and public comment in relation to religious opinion. I find the applicant would be able to continue to privately adhere to his agnosticism and non-support of Islam if he were to return to Iran and that he does not face a real chance of harm for being agnostic. I am not satisfied that the applicant is a person of interest to Iranian authorities or religious groups due to his agnosticism.”

21. The following matters are of note when considering the above quoted paragraphs:

    a)At [33] it was apparent that at a time well before the applicant left Iran, and at a time when he had renounced the Islamic faith and had become apostate, the applicant had not sought to propagate or promote what he believed in, nor did he otherwise push his views onto others.  It is apparent that the applicant was not making any public comment about his religious beliefs or lack of religious beliefs.

    b)The applicant had not been part of any anti-Muslim group in Iran or Australia and had not provided any information which indicated that he had made his lack of support for religion publicly known or that he wished to do so in the future.  The applicant had carried on his life in Iran after his renunciation of faith in circumstances where he was able to continue with his daily life without coming to the attention of authorities for not following the Muslim faith. No evidence was provided by the applicant that he intended to, or wished to, publicly express his views regarding religion, either in Australia or Iran.  To the contrary, it was noted that the applicant had intentionally kept his views about religion private.

    c)It was clear that the applicant had not been harassed or detained by any Iranian Authority due to this renunciation of faith prior to his departure from Iran in 2013. 

    d)Country information contained in a DFAT report suggested that there was no reasonable fear of harm being inflicted by authorities in Iran upon the applicant due to the applicant’s lack of activism and public comment in relation to religious opinion.

    e)The Authority had found that the applicant would be able to continue as he had in the past, namely privately adhering to his agnosticism and non-support of Islam, and that he did not face a real chance of harm for doing so.

1. Mr Gardner, on behalf of the first respondent, referred the court to the case of SZVZL v Minister for Immigration and Border Protection[2] where Rangiah J, when dealing with an assertion that the tribunal had misdirected itself as to the correct question which it ought to have asked concerning an applicant’s real chance of persecution if returned to Iran based upon his political views, said at [19] and [20] as follows:

   [19]. In the present case, the Tribunal’s finding that it was not satisfied that the appellant faced any real chance of persecution in Iran was not based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups.  Instead, the Tribunal was satisfied that the appellant “would not wish to continue to engage in such groups should he return to Iran”. That finding was based upon the Tribunal’s satisfaction that the appellant “lacks any real interest” in Kurdish political organisations and its lack of satisfaction that he had “any political (or other) convictions, that would give rise to a real chance of persecution in Iran”.  Those matters, in turn, reflected the Tribunal’s earlier findings that the appellant’s involvement in protests in Australia had been limited and that he had not been truthful in his claims to have been involved with the KDP in Iran. 

   [20] The Tribunal did not suggest that the appellant was not at risk of harm because he could avoid persecution by being discreet in the expression of his political opinions. Rather, the Tribunal found that the appellant would voluntarily choose to not engage in political protests in Iran, not because of fear, but because he had no interest in doing so. The Tribunal considered what might happen to the appellant if he returned to Iran, as it was required to do, as part of its consideration of whether the appellant faced a well-founded fear of persecution. The primary judge was correct to hold that the Tribunal had made no error in its consideration and application of Appellant S395/2002.

   [2] [2018] FCA 1299.

2. The present case is not one where, as in S395, the tribunal improperly dealt with the factual questions before it.  In the present case, the Authority has properly identified that there was no reason to believe that the applicant, if returned to Iran, would do anything differently from what he did either prior to his departure from Iran, or since his arrival in Australia, relating to his agnosticism.  The Authority found at [39] of its reasons that the applicant did not face a real chance of harm on return to Iran on the basis of such agnosticism, and it was entitled to do so. 

3. At [40] – [43] of its reasons, the Authority found, based on DFAT country information, that the applicant would not face a real chance of persecution due to his having been a failed asylum seeker who had spent time in a western country.  It was noted that DFAT information suggested that Iranian authorities paid little attention to failed asylum seekers on their return to Iran unless they had a high profile and were political activists. 

4. At [45] of its reasons, the Authority found that it was not satisfied that there was a real chance of the applicant facing any harm then, or in the reasonably foreseeable future, if he was to return to Iran, including due to his apostasy and agnosticism, his being a failed asylum seeker from a western country, or as a result of the combination of any such factors. 

5. It was 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 criteria in section 36(2)(a) of the Act. For the same reasons as set out in its findings in relation to protection, there being no protection visa obligations owed to the applicant, the Authority found that it was not satisfied that there was a real risk that the applicant would suffer significant harm if returned to Iran. It found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Iran, that there was a real risk that the applicant would suffer significant harm. It therefore found that the applicant did not meet the relevant section 36(2)(aa) criteria.

6. The Authority did not fail to particularise any ground for review, [3] nor did the Authority fail to make any obvious inquiry about a critical fact [4].

   [3]        CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] – [22].

   [4]        Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27].

7. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as did 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.”

8. 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.”

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

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

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  6 June 2019