FZJ18 v Minister for Home Affairs
[2019] FCCA 2806
•3 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FZJ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2806 |
| Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – principles for an extension of time – significant delay – insufficient merit in proposed grounds of review – extension of time application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3. ss.5, 5H, 36, 46A, 473CA, 473CB, 473DC, 473DD, 473GA, 473GB, 477 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | FZJ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 619 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 27 September 2019 |
| Date of Last Submission: | 27 September 2019 |
| Delivered at: | Perth |
| Delivered on: | 3 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 619 of 2018
| FZJ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 19 November 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 14 August 2018.
The IAA affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Temporary Protection (Subclass 785) visa (the “visa”).
The application for judicial review was filed 62 days outside the statutory time limit imposed by s.477 of the Migration Act 1958 (Cth) (the “Act”). In order to obtain assistance from this Court, the applicant must obtain an order extending the time in which to bring his application. Without such an order, the application for judicial review is incompetent and must be dismissed
This matter was heard on 27 September 2019. The Court had before it a Court Book (“CB”) numbering 204 pages (marked as Exhibit 1), the application for judicial review as filed by the applicant and his supporting affidavit sworn on 19 November 2018. An outline of written submissions was filed by the Minister on 19 September 2019.
Background
The Minister’s written outline of submissions (at [3]-[9]) accurately summarises the factual background to this matter. The Court adopts the summary provided as its own. It provides as follows.
The applicant is an Iranian national who arrived in Australia (Christmas Island) as an unauthorised maritime arrival on 28 September 2012 (CB 1-21).
On 12 September 2017 (the bar, pursuant to s.46A of the Act, having been lifted (CB 27-28)), the applicant lodged an application for the visa (CB 37-107).
In a statutory declaration (dated 7 September 2017) provided with his visa application (CB 66-71), the applicant claimed to fear harm from the Iranian government on the basis of his ethnicity, religion and imputed political opinion. In summary, the applicant claimed that:
a)although born in Iran, he had only lived there for seven years and had lived in the United Arab Emirates (“UAE”) for 30 years. He does not understand Iranian culture or speak Arabic. In June 2012, he was told by the UAE government that his visa was not going to be renewed and he had ten days to leave with his family;
b)his ethnicity is mixed Indian and Persian. When he faced expulsion from the UAE, he made inquiries at the Indian Embassy as to whether he would be eligible for Indian citizenship or any Indian rights through his father, but has been told Indian rights are not given to Iranians, Pakistanis or Bangladeshis;
c)when he returned to Iran, he was detained and questioned by Sepah officers at the airport. Two weeks later, on 22 August 2012, the same two Sepah officers attended at the house where he was staying, and questioned him and his wife. The same officers returned again on 30 August 2012, and seized the applicant’s computer. He thought the Sepah officers may have believed that he was an agent from the UAE sent to spy on Iran or commit acts against the government of Iran; and
d)he did not follow any specific religion and did not consider himself to be Muslim. However, he later claimed at the visa interview that he had converted to Christianity and was baptised into the Seventh-day Adventist Church on 30 December 2017 (see CB 186).
On 21 February 2018, the applicant attended an interview with the delegate (CB 121-123) and provided further information in support of his visa application (CB 124-132).
On 11 April 2018, the delegate refused to grant the visa (CB 152-168).
On 16 April 2018, the matter was referred to the IAA (CB 169-170). On 2 May 2018, the applicant provided further submissions to the IAA (CB 171-175). The IAA had regard to the submissions received from the applicant. The IAA was satisfied that this was not ‘new information’ (CB 184 at [4]).
On 14 August 2018, the IAA affirmed the delegate’s decision to deny the applicant the visa (CB 181-198).
The IAA’s Decision
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. Further, he is not an “excluded fast track review applicant” as that term is defined in the Act. This is important in relation to allegations of jurisdictional error as the Act limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”, in respect of each fast track reviewable decision referred to the IAA under s.473CA. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made. The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1).
An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. This imposes strict limitations on the evidence an applicant can advance in IAA proceedings.
The IAA’s decision in this matter is 16 pages long. It numbers 39 paragraphs and contains 4 pages of relevant legislative provisions.
The Minister’s submissions (at [10]-[13]) accurately summarise the IAA’s key findings. The Court adopts these submissions as its own. With some additions they provide as follows.
For the purposes of the review, the IAA had regard to:
a)the material referred to it by the Secretary pursuant to section 473CB of the Act (CB 184 at [3]);
b)a submission provided by the applicant’s representative dated 2 May 2018. The IAA noted that the representative’s submission addressed the delegate’s decision and findings. The IAA was satisfied this was essentially argument about matters that were before the delegate and therefore not “new information” (CB 184 at [4]);
c)‘new information’ obtained by the IAA – specifically, information regarding Iranians who do not follow Islam and Iranians returning to Iran who have claimed asylum overseas, as contained in the then most recent country report by the Department of Foreign Affairs and Trade in relation to Iran, which was published on 7 June 2018 (CB 184 at [5]). The IAA noted that the report was published after the delegate’s decision and was satisfied that there were exceptional circumstances to justify considering this information (CB 184 at [5]).
At [6], the IAA comprehensively set out the applicant’s claims for protection.
At [7]-[8] and [33]-[34], the IAA summarised the legislative principles applicable to the refugee assessment and complementary protection assessment that would be applied to the applicant’s claims and circumstances.
At [9], the IAA accepted that the applicant’s identity was as he had claimed and that Iran was his receiving country. The IAA also accepted that the applicant was of mixed Indian and Persian ethnicity.
The IAA noted that the applicant had claimed to have converted to Christianity while he was in Australia and maintained that this was a genuine conversion. It was noted that the applicant said that he had taken his time to make this step and had not converted for the purpose of enhancing his protection claims.
In relation to the applicant’s conversion to Christianity, the IAA summarised the applicant’s position as follows at [10]:
The applicant claims to have converted to Christianity in Australia and has provided evidence of his baptism. The letter from Pastor [name omitted], Senior Minister from the Seventh-day Adventist church, dated 21 February 2018 refers to the applicant’s relationship with the church over the past four years and Pastor [name omitted] endorses the applicant as being a genuine Christian convert. Letters from other congregation members attest to the applicant’s involvement as a volunteer with the church and that “recently he has committed his life to God and been baptised” and is attending church regularly. The applicant claims that this conversion is not fake and that he has not undertaken this step to enhance his protection claims. He stated that this has been a considered step and he has taken his time to take this step.
(Identifiers omitted)
The IAA had significant concerns that the applicant’s claimed conversion to Christianity was not genuine:
11.I accept that the applicant has attended Bible classes and been baptised and that Pastor [name omitted] and other church members have accepted him into the congregation. However I have significant concerns that the applicant’s claimed conversion to Christianity is genuine; s5J(6) requires that any conduct engaged in by a person Australia is to be disregarded unless the applicant satisfies me that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.
12.I place significant weight on claims made in his TPV application and accompanying Statutory Declaration which were completed in August 2017 and lodged in September 2017. In response to the question “Your religion” in the application form the applicant responded “I no longer follow any religion” and in his Statutory Declaration he declared, “I no longer follow any specific religion. I do not consider myself to be a Moslem or the follower of any particular religion. I believe in God but not in a formal religion” and that if he returned to Iran he would “have to hide the fact that I no longer believe in any formal religion”. At his TPV interview the applicant stated that he commenced religious studies in September 2017 and I find it difficult to accept that only one month earlier the applicant had made these statements about not following a religion, yet in September 2017 he was taking steps to adopt Christianity.
13.In a post-interview submission his representative asserted that the applicant’s reasons for conversion are manifold and complex but that it is clear this was not a recent or spur of the moment decision but one which had been a long time in the making. The representative further states that the applicant had taken a significant amount of time to learn about Christianity before making the commitment to be baptised and that the evidence of fellow church members should be accepted as true. The post-interview submission puts forward that the applicant has been attending church since 2013 and has slowly increased his involvement in the church and his study of the Christian faith. But I am not satisfied that the applicant’s own account bears this out; at his TPV interview he stated that he had not attended church services before commencing Bible studies in September 2017 and this is supported by his statements in his application that he does not follow a religion. Other information before me indicates that the applicant volunteered his manual labour and “does whatever he can to assist” although it became “impractical for him attend” but that despite that he “remained interested in what” the church does; while this supports a practical link with the church since 2013 I am not satisfied that this information supports a finding of an interest in the Christian religion itself since that time. Furthermore I am not satisfied his step to baptism after three months of Bible classes indicates a slowly increased involvement and study of the faith.
14.In part the applicant said he was drawn to Christianity because of the support he received from the congregation members at the time of and throughout the separation from his wife. However the applicant separated from his wife around July 2015, some two years earlier than his claimed adoption of the faith. Similarly the applicant stated that he felt welcomed by church members when he first made contact with them in 2013 yet he took no steps in the more than three years since that time to join the church or investigate Christianity further. I find it significant that the applicant did not take steps to adopt Christianity until September 2017, at the time of lodging his TPV application. I also take into account that the applicant was baptised within only three months of first commencing Bible studies. He stated that he took his time to make a decision to adopt Christianity yet his actions belie this claim; in August 2017 he made statements to not believe in organised religion, one month later September 2017 he was undertaking Bible studies and by December 2017 he had been baptised.
15.I have considered the letters of support and I accept that the writers are genuine in their endorsement of the applicant, but these do not overcome my grave concerns that the applicant has adopted Christianity for the sole purpose of enhancing his refugee claims.
16.The High Court held that an applicant seeking to rely on conduct engaged in while in Australia, must satisfy the decision maker that the conduct was not engaged in for the sole purpose of strengthening their claim to be a refugee and places an onus on the applicant to show that their conduct was not for the sole purpose of strengthening their claim to be a refugee (that is, it was for purposes other than solely strengthening their refugee claim). The applicant has failed to so satisfy me. I am not satisfied that the applicant has engaged in Christianity otherwise than for the purpose of strengthening his refugee claims. I have taken into account his Bible studies and baptism, his knowledge of the Christian faith and rituals, the support of members of the church community, but this does not negate my very serious concern that his involvement in the church and his conversion to Christianity has been contrived to strength his refugee claims. I am not satisfied that he is a genuine adherent of the Christian faith. I have therefore not considered this conduct in assessing whether he has a well-founded fear of persecution in Iran.
(Identifiers and footnotes omitted)
On the basis of the above, the IAA disregarded the conduct engaged in in Australia by the applicant relating to his claimed conversion to Christianity (CB 192 at [27]).
The IAA then turned to consider the other claims the applicant raised. Specifically, the IAA:
a)accepted that the applicant was not required to observe Islamic practices growing up and that he is not aware of these practices and does not follow Islam (CB 188-189 at [17]). However, having regard to country information, the IAA was not satisfied that the applicant would experience harm on return to Iran “for reason of not practising Islam” (CB 188-189 at [17]);
b)accepted that the applicant and his wife had been expelled from the UAE (CB 189 at [18]) and had come to the attention of Iranian authorities upon his return to Iran due to his absence from Iran for an extended period (CB 189 at [19]). However the IAA was not satisfied that the applicant had been detained as claimed. Rather, the incident (on the applicant’s own account) had only involved questioning (CB 189 at [19]). The IAA placed significant weight on the fact that the applicant had been allowed to leave the airport with his family and live openly in Teheran as indicating that the applicant was not considered a security risk requiring removal from the community and detention (CB 189 at [20]). The applicant speculated that the photograph of the woman who appeared on his records may be linked to his sister-in-law’s involvement in the Green Movement. However, the IAA found that there was no indication that the applicant or his wife were ever questioned about his sister-in-law’s activities or the Green Movement and was not satisfied that there was a real chance that the applicant would experience any harm as a result of this matter. Whilst the IAA accepted the applicant may have a subjective fear of harm, it was not satisfied that he was of any adverse interest to the authorities in 2012 when he was expelled from UAE (CB 190 at [22]);
c)accepted that the applicant had largely lived and grown up outside of Iran, was not literate in Farsi or familiar with Iranian culture and would find re-establishing himself in Iran difficult (CB 190-191 at [23]). However, the IAA was not satisfied that any harm the applicant might experience would result in serious harm (CB 190-191 at [23]);
d)was not satisfied that the applicant’s claims to fear harm by members of his wife’s family was well-founded, noting that there was no information before it to indicate that any threats had been made in the past (CB 191 at [24]);
e)noted that the applicant’s upbringing had instilled a belief in tolerance and freedom of religion and speech and that, as such, he may find Iranian culture frustrating. The IAA accepted that the applicant had made critical social media posts concerning Iran. However, referring to country information, the IAA was satisfied that the applicant would not be harmed because of these posts. Nor would he be imputed with an anti-regime opinion if he continued to make such posts or as a result of his belief in tolerance and freedom of religion (CB 191 at [25]).
f)accepted that the applicant’s details were released in the data breach and that it could not be discounted that the Iranian authorities may be aware of his asylum claim (CB 191-192, [26]). However, again relying on country information, the IAA did not accept that there was a real chance that the applicant would face harm as a result of the data breach or as a returning failed asylum seeker (CB 191- 192 at [26] and CB 192 at [28]-[29]);
Having considered the applicant’s circumstances as a whole, the IAA was not satisfied that there was a real chance that the applicant would suffer persecution in the reasonably foreseeable future in Iran (CB 192 at [30]). As such, the applicant did not meet the requirements of the definition of refugee in s.5H(1) or the requirements of s.36(2)(a) (CB 192 at [30]-[31]).
In considering the applicant’s claims under the complementary protection criterion, and in particular the Applicant’s purported conversation to Christianity, the IAA placed significant weight on country information to the effect that Iranians who had converted to Christianity whilst abroad were unlikely to face harm on return, although public practice of the religion may attract attention (CB 193 at [36]). The IAA was not satisfied that the applicant would have an actual or perceived profile as an apostate, or that he would continue to pursue Christianity if he were returned. Further, the IAA was not satisfied that there was a real risk that he would face significant harm as a result of activities in Australia pertaining to his conversion to Christianity (CB 193 at [36]).
The IAA otherwise relied on its anterior findings in concluding that there was not a real risk that the applicant would face significant harm if returned to Iran.
Proceedings in this Court
As indicated above, the applicant requires an extension of time in which to bring his judicial review application.
In his affidavit sworn 19 November 2018, the applicant states as follows in relation to his need for an extension of time:
2 When I received this decision, I was informed by my migration agent Nabeel Lang that I had been unsuccessful at the Immigration Assessment Authority. However, he informed me that he would be seeking advice from a lawyer as to whether to appeal this matter in the Federal Court. See attached and marked “B” email communication from my migration agent. Therefore, I awaited him contacting me with this information. When he did contact me, he informed me that the lawyer required $1500 for an opinion. I could not afford this money.
3. I then proceeded to contact a number of agencies to seek assistance. I contacted the Humanitarian Group, WA, The Refugee Advice and Casework Service, NSW, Law Access, WA, Legal Aid, WA. None of these were able to provide me with assistance.
4. I work night shift at an IGA Store as an assistant and so I had limited day time to obtain assistance. Eventually I attended at the Registry at the Federal Court and was referred to the Self Represented Litigant Service at the Federal Court. I attended there and have received some assistance in preparing this application.
In relation to the substantive application for judicial review, the applicant’s affidavit arguably contains 29 “grounds” of review. The Court will address these grounds of review below.
The applicant was afforded an opportunity by a Registrar of this to file an amended application, any affidavits and a written outline of submissions. No materials were filed by the applicant.
The applicant was unrepresented before this Court. He appeared without the assistance of an interpreter. Nor had one been requested.
At the hearing, the Court assisted the applicant by explaining what he needed to address in order to obtain an extension of time.
It was explained that the factors to be considered in relation to the question of the extension of time are not exhaustive. However, in determining whether the Court will grant an extension of time, the Court will generally look at the following factors:
a)length of delay and prejudice;
b)whether the explanation for the delay is adequate; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
Delay and Explanation
The length of the delay here is significant. It is 62 days. In circumstances where the Parliament has prescribed 35 days as the time limit in which to bring and application, this weighs against granting an extension of time.
The applicant’s explanation for what is a considerable delay appears to be that he was unable to obtain assistance to file the substantive application. The applicant’s affidavit evidence, which was unchallenged, was that he had made attempts to obtain legal assistance.
An inability to obtain assistance or a lack of legal representation does not, alone, warrant an extension of time: Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17].
The Court does not consider the explanation for the delay in filing the application to be satisfactory or sufficient. This also weighs against granting an extension of time.
Prejudice
The Minister does not claim any specific prejudice (beyond being unable to enjoy the benefit of finality of administrative decisions).
This weighs in favour of granting an extension of time.
Merits
Ultimately, the determinative factor here will be whether the applicant’s grounds of review have merit. That is, is there at least an arguable case that jurisdictional error arises here in the IAA’s decision?
The Court is mindful that it should, in circumstances where an applicant is unrepresented, be astute to the possibility of legal error in the IAA’s decision and mindful that any ground not yet be fully developed may in any event be found to be “arguable”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. The grounds need only avert to an error which on a “reasonably impressionistic level” may be successful.
As noted, the “grounds” of the application for judicial review were set out in the applicant’s affidavit. There were 29 grounds as follows:
1. A friend who teaches English, has helped me with my appeal due to my difficulties in compiling an official document such as this in English.
2. The delegate from the IAA, [omitted], was not satisfied that I would face a real chance of serious harm or persecution should I return to Iran. [Omitted] provided a number of reasons for her decision.
3. [The IAA] makes a number of errors in her account including the following.
a. Even though it has been said that I spoke of being “detained” in Iran. I do not recall saying “detained” but that I was questioned. This may be, however, how my words were interpreted.
b. The IAA speaks of my “mental health plan” of 2015. I have never had a mental health plan. It was my then wife who had a mental health plan.
4. [The IAA] admits the very real difficulties I have faced prior to my seeking asylum in Australia, with my then wife and children, in 2012. These experiences included being expelled by a Muslim majority country (UAE) in 2012 for political reasons, being interrogated and intimidated by the Sepah Iranian officials in Iran, being told by Immigration Department that India would not accept my right to stay in India despite my father’s nationality, having to go through an acrimonious separation which I did not choose, being denied access to my children, and not having the funds and the mental strength to keep fighting for them in the family court.
5. [The IAA] admits the possibility of persecution when she states, “While apostates can be punished under sharia law for leaving the Muslim faith prosecution of cases is rare”. Rare punishments are nonetheless real threats.
6. The IAA acknowledges the following, that:
a. A 21-year-old man was threatened with a death sentence for apostasy following his arrest for social media comments critical of Islam, as I have also done, expressing criticism about the regime in Iran;
b. “apostates may come to the attention of the authorities through public manifestation of a new faith” but still presumes that I will not come to any harm almost as a certainty;
c. 1 have already been questioned in Iran when expelled from Abu Dhabi and that this was a traumatic experience for me.
7. This experience was a very real threat to me, enough to uproot my whole family and face an unknown future by leaving Iran and seeking refuge Australia.
8. I believe the seriousness of the February 2014 data breach should be taken into account, as it is not known whether or not the Iranian authorities have access to my personal information, which could potentially be a catalyst for persecution should I return to Iran.
9. The basis of [the IAA’s] decision rests on her belief that my conversion to Christianity is not genuine. In doing so, [the IAA] makes a number of assumptions about my faith and my story.
10. [The IAA] cites my TPV application in which I indicated that I did not belong to any formal religion and sees this as contradictory to the timing of my Baptism.
11. She accepts the testimony of witnesses that affirm that I had been attending their Church since 2013.
12. As I had been involved in the Seventh Day Adventist Church community since 2013, it would have been natural for me to indicate that I was Christian at the time of the TPV if I were only using my time in the Church as leverage for asylum. Instead, I responded honestly to the question with regards to my faith at that time, that I believed in God but did not follow any particular religion. My faith was indeed already present but my understanding of God was still formation.
13. Therefore, I was not lying when I claimed in my post interview submission that my decision to become a Christian was a long time in the making. I had always had a faith in a God.
14. It was because of the influence of Pastor [name omitted] (a senior member of the Church) that I began to attend Bible studies. He saw the agony I was experiencing due to family issues and my extended time away from my children, and encouraged me to deepen my faith.
15. After I began the bible study with Mr [name omitted], l felt stronger and better about my life and decided that this was the religion for me. During these studies I was touched by a teaching about Jesus’ promise, that if one accepts him then one will be saved. I was buoyed by his promise that he would be there for us always.
16. I was touched by the way I had been treated by Christians compared to the treatment received from Muslims (including being expelled from a Muslim country simply due to politics). From this comparison, I knew which religion I wished to associate with.
17. I ask how anyone can truly make a decision as important as one regarding asylum based on their understanding of one’s personal faith and the complex reasons that lead to such a faith.
18. My Christian faith is true and I do not wish to be a situation where I cannot freely and publicly practise that faith without fear of persecution, especially in a country when I cannot defend myself neither in speech or in writing, and in which strong prejudices are present against both my Christian faith and my Indian heritage.
19. I did not state at the TPV interview, as the IAA contends, that I had not “attended church services before commencing Bible studies in September 2017. Prior to my Baptism, I attended monthly.
20. My reasons for not attending each week included changing address, separation, court issues, facing falsely attained restraining orders, and my shift work (which were from l0pm to 7am, mostly on weekends, including Saturday night). Attending the 10am service at the Church on a Saturday was therefore difficult.
21. After Baptism, I made a special effort to not sleep until the 10am service had been completed. This continued until I stopped my Friday night shift. Now, I have no difficulty at all attending the 10am service on Saturdays.
22. [The IAA] has stated that she does not accept that I would have “any desire to practise Christianity in Iran should [I] return.” This is simply not true.
23. As a practising Seventh Day Adventist Christian, my faith would be even more obvious as we worship on Saturdays.
24. The United Nations Human Rights Office of the High Commissioner published an article on the United Nations website on 2 February 2018 outlining the concern of lJN experts about persecution of the Christian minority, that the three cases mentioned were not isolated, that there was a “disturbing pattern of individuals being targeted” especially those who had “converted to the {Christian} faith”, who faced “severe discrimination and religious persecution.”
25. I am a father of 4 children, one of whom was born here in 2014, whom I have not seen since 2017.
26. I tried fighting for them in court, even though it may seem I have not. I also could not afford a lawyer anymore.
27. As per paragraph 21 above, I have been overwhelmed by the constant pressure associated with separation and the family court process and was unable to continue fighting.
28. Fighting for my children became even more difficult and traumatic for me as I have also been dealing with my asylum application.
29. I will never leave my children and I intend to recommence my application through the Family Court once I have dealt with my current asylum issue.
Noting the comments of Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], the Court gave the applicant an opportunity to explain orally the matters that are said to give rise to his review grounds and invited him to explain more broadly, in his own words, what he felt the IAA “did wrong”.
To assist the applicant, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicant that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It cannot grant him the visa he seeks. Rather, the Court can only undertake an analysis of whether the IAA engaged in jurisdictional error of the sort outlined above.
Unfortunately, the applicant’s oral submissions did not assist him in relation to the issue of jurisdictional error and whether his application had merit. In effect, he simply disagreed with the IAA’s decision, stressing that he would face considerable harm if he returned to Iran.
The Minister’s written submissions were brief. In effect, they stressed that the grounds of review simply appeal to the merits of the IAA’s decision. In effect, each “ground” is a plea for merits review. Further, it cannot be contended that there was anything irrational or unreasonable in the IAA’s decision overall.
The Court agrees with the Minister’s submissions. The applicant’s grounds of review simply indicate emphatic disagreement with the IAA’s decision. The Court’s reasoning in this regard is provided below in relation to each ground of review.
Grounds 1-8 and 24-29
Ground 1 is not a ground of review.
Ground 2 simply summarises the IAA’s finding that the applicant did not face a real chance of serious harm or persecution.
Ground 3(a) fails on a factual level. The applicant expressly states in his statutory declaration that he was “detained” (CB 67 at [5.12]).
Ground 3(b) also fails on a factual level. The IAA was in possession of a mental health plan dated 20 July 2015 in relation to the applicant which was signed by the applicant (CB 22-25).
Ground 4 appears to be referring to [6] of the IAA’s decision. The IAA is not “agreeing” with these matters. Rather, it is summarising the applicant’s claims.
Ground 5 relates to [17] of the IAA’s decision where the IAA refers to and summarises various sources of country information relating to apostasy and non-practise of Islam. Read as a whole, it is clear that the IAA was satisfied that the “threat” of harm arising from apostasy did not rise to a real chance. Relevantly in this regard, the IAA states at the conclusion of [17]:
Overall the country information does not point to the applicant experiencing harm on return to Iran for reason of not practising Islam.
At [29] and [38] the IAA specifically concludes that the applicant’s non-practise of religion would not give rise to a real chance of serious harm or a real risk of significant harm respectively. The applicant is seeking to isolate one reference in the IAA’s decision and overlooks the IAA’s evaluative assessment of that one piece of information and other sources of information to come to a conclusion that the chance of “rare prosecution” was not a “real threat”.
Accordingly, ground 5 also fails.
The Court has assessed ground 6 and ground 7 together. It appears the applicant is alleging that the IAA has referred to certain matters and that his circumstances are similar. As such, the IAA’s findings are “illogical”. In this context, the Court finds:
a)in relation to ground 6(a), the IAA acknowledged that the applicant had expressed criticism of the Iranian regime online (noting that he did not use a Facebook account in his own name) but found that, on the basis of country information, the applicant would not suffer serious harm for reason of apostasy or social media comments critical of Iran and advocating for freedom of religion (see [19] and [25]). There was nothing illogical in that reasoning. It was based, soundly, on the country information before the IAA. In effect, ground 6(a) seeks merits review;
b)ground 6(b) again isolates one part of the IAA’s decision. For the same reasons as provided above in relation to ground 5, this ground must fail. Read as a whole, [17] indicates that the IAA did not presume that the applicant would not come to harm as an apostate. The IAA acknowledged this information, along with other information, and concluded that the applicant would not suffer a real chance or risk of harm. The IAA gave logical and cogent reasons for the finding it made in this regard. Ground 6(b), accordingly, fails; and
c)in relation to ground 6(c), the IAA (having accepted that the experience the applicant refers was confronting) went on to give comprehensive reasons at [22] as to why, notwithstanding this experience, it would not give rise to a well-founded fear of persecution. While the applicant was previously questioned and might fear being re-questioned on arrival, the IAA was not satisfied that if he was questioned upon return this process would give rise to a real chance of harm. There is nothing illogical in this reasoning.
While sympathetic to the applicant’s previous experiences, the IAA correctly assessed the applicant’s personal claims and circumstances against the country information to determine if there was a well-founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future upon return to Iran. The IAA found that no such harm arose here. That finding was open to it.
Ground 6 and 7, accordingly, fail.
In relation to ground 8, the IAA addressed this claim at [26].
The IAA accepted that the applicant’s details were released in the data breach and that it could not be discounted that the Iranian authorities may be aware of his asylum claim. The IAA addressed the data breach – which was, in effect, a claim to be harmed on the basis of seeking asylum in Australia at [26]. The IAA noted that the country information indicated that the Iranian authorities paid little attention to returning asylum seekers and that the applicant may be questioned but this would not amount to serious harm.
When one reads the IAA’s decision as a whole, including the findings that the applicant did not have an anti-regime opinion, that the applicant was not of interest to authorities in 2012 when he left, that returned asylum seekers who had been critical on social media were not harmed and that those arrested by Iranian authorities on return were high profile political activists (which the applicant was not), it is clear that the IAA addressed the implications of the data breach. Again, the IAA’s findings were open to it.
Ground 8 fails to disclose any error capable of having any prospect of success.
Ground 24 refers to an article published on the United Nations website on 2 February 2018. This article was published prior to the delegate’s decision and the IAA’s decision. If the applicant wanted this taken into account, he ought to have provided it to the delegate or provided it to the IAA with an explanation as to why it met the requirements of s.473DD of the Act. Ground 24, accordingly, has no merit.
Grounds 25-29 are irrelevant to the Court’s task on judicial review as they do not refer to or concern the IAA’s decision. While the Court is sympathetic to the applicant’s position and what has occurred in relation to his children (and accepting that this has undoubtedly been extraordinarily stressful for the applicant), these matters, as expressed, do not identify jurisdictional error.
For the reasons outlined above, grounds 1-8 and 24-29 have no merit.
Grounds 9-23
Grounds 9-23 concern the IAA’s findings that the applicant was not a genuine convert to Christianity and that his conversion was for the purposes of bolstering his protection claims.
Most of these grounds attempt to provide further explanations or evidence as to why the applicant is a genuine Christian and how he came to decide to convert (grounds 12-17 and 20-21). Unfortunately, the Court cannot consider these matters. They seek an impermissible merits review.
On one view, grounds 9-23 largely express disagreement with the way the IAA determined that the applicant was not a genuine convert and its determination that he would not continue to practise in the Christian faith if he returned to Iran.
The Court has considered whether it was open to the IAA to form the conclusion it did and can find no evidence of irrationality, illogicality or unreasonableness in the conclusions reached or the approach taken to get there.
The Court did has considered whether (given that the delegate had accepted that the applicant was a genuine Christian convert) the IAA ought to have considered exercising the power under s.473DC to invite the applicant to comment. The applicant could then have provided explanations to the IAA of the sort that have provided to this Court via grounds 12-17 and 20-21.
The Court is satisfied that it was not unreasonable for the IAA to not consider exercising, or not exercise, the power under s.473DC of the Act in the circumstances of this case. Here, the applicant’s representative made submissions to the IAA in relation to the “genuineness” of the applicant’s conversion (CB 173). It cannot be said that the applicant in these circumstances was denied an opportunity to address the issue. Further, as noted in DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [72]-[76], it is open for the IAA to come to a different conclusion to the delegate on the basis of the materials that are before it without affording the applicant an opportunity to comment.
In relation to the logicality and/or reasonableness of the IAA’s conclusions (which arguably is what the applicant is averting to in grounds 9-11), the Court is satisfied that there was no error in the reasoning of the IAA on this point. The IAA did not make “assumptions”. It assessed and considered the evidence that was provided and made findings that were entirely open to it. While the IAA accepted the evidence in the form of the letters of “endorsement” as genuine, the IAA explained that these letters did not outweigh the grave concerns it had in relation to the applicant adopting Christianity for the sole purpose of enhancing his refugee claims. The weight the IAA affords the evidence before it is a matter entirely for the IAA: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 467 at [10].
The Court also notes the concerns the IAA expressed in relation to the applicant’s conversion to Christianity. These were reasoned and detailed. The IAA did not use one apparent inconsistency to impugn the entire basis for the applicant’s claim to be a genuine convert: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [41] (“CQG15”). Rather, the IAA noted that it had a number of concerns in relation to the timing of the applicant’s conversion and the reasons he gave for his claimed conversion.
The Court is satisfied that the IAA’s reasons for finding the applicant’s claimed conversion to Christianity was not genuine and therefore excluded from consideration under the refugee assessment were open to the IAA and were not arbitrary or capricious.
In relation to the other discrete matters, the Court notes in respect of ground 18:
a)the IAA had rejected that the applicant was a genuine convert or would practise Christianity if he returned to Iran. Hence, the need to consider persecution on this basis did not arise;
b)the IAA notes, in any event, at [36], when considering the complementary protection provisions, that even genuine converts to Christianity are unlikely to face harm on return;
c)the IAA was not satisfied that the applicant would face harm on the basis of his expressing his views about tolerance and freedom of religion online (hence, the applicant could express his views) (at [25]); and
d)the IAA addressed prejudice against the applicant because of his Indian heritage and was not satisfied that this would amount to significant or serious harm.
In relation to ground 19, there is no transcript of the delegate’s interview before the Court. At its highest, an error of this sort would amount to no more than a misstatement of the evidence. Further, this was only one matter (of a number of concerns) that the IAA relied on to determine that the applicant was not a genuine convert. It cannot be said here that it was the critical determinant in the IAA’s finding or undermined the entirety of the applicant’s claims to be Christian: CQG15.
In relation to ground 22 and 23 this is, in effect, a disagreement with the IAA’s findings about the applicant’s intention to practise as a Christian in Iran. The finding that the applicant would not continue to practise as a Christian was reasonably open to the IAA in circumstances where the IAA had rejected that the applicant was a genuine convert to Christianity.
Grounds 9-23, accordingly, have insufficient merit and fail to disclose any error that is reasonably arguable.
Conclusion
Overall, the lengthy delay, inadequate explanation and insufficient merit in the application for judicial review lead the Court to conclude that it would not be in the interests of the administration of justice to extend time under s.477(2) of the Act.
The application for an extension of time is, accordingly, refused.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 3 October 2019
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