SZVZH v Minister for Immigration
[2017] FCCA 2648
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVZH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2648 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied incorrect tests, in particular, a standard of particular religious knowledge. |
| Legislation: Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 |
| Applicant: | SZVZH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 69 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 21 August 2017 |
| Date of Last Submission: | 21 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Williams |
| Solicitors for the Respondents: | Mr A. Markus of Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 69 of 2015
| SZVZH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iran who arrived in Australia on 23 July 2012 as an irregular maritime arrival. On 3 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Iran. On 15 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
Claims before the Department
The applicant’s protection visa application was submitted under cover of a letter dated 30 November 2012. In that letter, the applicant submitted that he had a well-founded fear of persecution in Iran because of:
a)his actual or imputed political opinion;
b)his religion, or lack of it, as a non-observant Muslim; and
c)his membership of the particular social group “young Iranian male who favours western culture and lifestyle and does not follow an Islamic approach to life” [sic] and “failed asylum seeker imputed with political opinion as a result of his attempt to gain protection from the Iranian state”.
The applicant’s written claims for protection were set out in a statement lodged with his application form and in a letter provided to the delegate on 9 May 2013. Relevantly, he made the following claims:
a)he was a Shia Muslim;
b)he completed his military service in 2003. He was unemployed for a period thereafter, but then found work as a cleaner. He was dismissed from this role a few years later because he did not have the right connections;
c)after he was dismissed, he used his savings to buy a car and worked as a driver. However, the car was old and often broke down and he was not able to earn very much. It was also hard for him to find work as he did not know the right people;
d)he lived close to the headquarters of the Basij and Sepah and was frequently a victim of their physical and verbal harassment. Once, the Basij detained him for two days for no reason;
e)his (younger) brother was killed in a car accident (in 2005). The person who caused the accident was well-connected to the Basij and in subsequent court proceedings was released without charge. When the verdict was delivered, the applicant protested and swore at the judge at which point he was informed by his lawyer and a court representative that he would never get justice for his brother as his brother had been politically active and had plotted against the government;
f)he believed the Iranian militia plotted the car accident that killed his brother;
g)his mother became depressed following his brother’s death and died a few months later. As a result of these tragedies, all the members of his family, the applicant included, began suffering psychological problems;
h)although he tried to avoid the Basij by working in suburbs away from his home, they were always aware of his whereabouts and continued to harass him for the next six years. They would inspect his car, interrogate him and his passengers, tow his car away and detain him;
i)he was being followed by the Basij in the period before he left Iran;
j)some of his friends were active in a political group and he feared being associated with them;
k)he had no freedom in Iran and could not survive there in the way that he wanted to. The Basij controlled the things he did;
l)many of his friends had committed suicide. He, too, had attempted to commit suicide on a number of occasions; and
m)although he was opposed to the government, he had never had the courage to protest.
The applicant attended a departmental interview on 9 May 2013.
On 6 June 2013 the applicant provided the Department with various documents and extracts of online conversations said to have been between him and his contacts in Iran. It was submitted that the documents supported the applicant’s claim (made at his interview) that he had been politically active, and demonstrated that he was associated with a group perceived by the Iranian authorities to be a significant security threat.
Claims before the Tribunal
In a “Submission Letter” dated 14 November 2014 the applicant also made the following claims:
a)he liked to drink alcohol, wear western clothing and listen to western music, all of which were banned under Iranian and Islamic rules;
b)he was targeted by the Basij and Sepah after his brother’s death (in 2005). He was detained many times, including for two days in 2009;
c)some of his friends were active in a political group called “Yaran Kaman”. He became involved with the group as a driver, delivering letters and transporting members to seminars. However, after the leader of the group disappeared, he decided to cease his activities because he feared for his family;
d)because he was being monitored by the Basij and Sepah he was unable to get a job in the public sector;
e)he attempted suicide once. After a long battle, he decided to leave Iran and come to Australia, arriving in July 2012;
f)his absence from Iran was noticed by the authorities who questioned his brother and father about his whereabouts and intentions;
g)he became suicidal after his protection visa application was refused in August 2013. At his friend’s suggestion, he visited a church and was impressed by its spirituality. After some further research, he decided to become a Christian and for about a year attended church weekly;
h)he “offered Christianity” to his family and friends in Iran, particularly to his elder brother, and spoke openly to them about his conversion;
i)on 26 November 2013 his (elder) brother was stopped by the authorities. When the authorities checked his phone, they found text messages from the applicant which mentioned that he was attending church (in Australia), as well as a picture of the church. His brother was immediately arrested and the following day a summons was sent to their father telling him to attend the police station;
j)upon his attendance at the police station, his father was advised that the applicant’s conversion was being investigated by the intelligence agency. He was also told that the applicant’s younger brother had been killed because “he was against Islam and was promoting Christianity”; and
k)the applicant’s elder brother was detained for three days, during which time he was tortured for information. His brother and father were made to sign a pledge that they would not leave Tehran and would inform the authorities of the applicant’s activities.
In support of his claims, the applicant provided:
a)a “Summons to Attend” dated 26 November 2013 directing the applicant’s father to attend a police station;
b)the applicant’s baptismal certificate dated “Sunday 26 October”; and
c)a screenshot from the applicant’s mobile phone of a text conversation between him and his brother on 24 November 2013, with the applicant relevantly stating that he could not talk as he was “at church right now”. The screenshot also shows that the applicant sent his brother a photograph with the comment “[l]ook how the [sic] big and beautiful our church is”.
The applicant appeared at a hearing before the Tribunal on 24 November 2014.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that he is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was a generally credible witness;
b)given that he had been in fairly regular employment since 2001 and had earned sufficient income to afford to travel to three countries (and then return to Iran) prior to his travel to Australia, the Tribunal did not accept that the applicant’s claimed difficulties in finding work in Iran gave rise to protection obligations in Australia. It did not accept that the applicant had been denied work commensurate with his skills in Iran;
c)the Tribunal did not accept that the applicant’s younger brother was politically or religiously active prior to his death because it did not accept as plausible that he would have been able to engage in such activities – to the extent that he was targeted in a motor vehicle accident – without his family’s knowledge or that he would have been targeted in such an indiscreet manner where the identity and connections of the perpetrator were clearly known. The Tribunal was satisfied that the applicant’s brother’s death was simply an accident;
d)nevertheless, the Tribunal accepted that the person driving the vehicle that killed the applicant’s brother was connected to the Basij and may have used those connections to influence court proceedings. However, the Tribunal also accepted that after court proceedings were finalised, neither the applicant nor his family made any further complaints or inquiries;
e)the Tribunal did not accept that the applicant was ever knowingly involved in a political group in Iran and was satisfied that this claim was fabricated, noting that:
i)the applicant raised this claim for the first time at his departmental interview;
ii)the applicant provided inconsistent evidence relating to the group’s name;
iii)in the materials provided by the applicant to the Department, no reference was made to any group to which the applicant claimed to belong;
iv)the applicant claimed that the group requested his assistance after he arrived Australia but this claim was not corroborated by any of the material he provided;
v)the applicant claimed that when he joined Yaran Kaman he thought that the group was purely focussed on sport. Later, he found out that it was a political group. In the Tribunal’s view, if the applicant was friendly with persons in a sporting group he may well have assisted the group by delivering letters and carrying passengers. The Tribunal noted that this was not necessarily indicative of any political engagement on his part; rather, such activity might appear to be merely part of his paid work as a driver; and
vi)if the applicant did in fact assist a group in Iran that had two purposes (sporting and political), the Tribunal was satisfied that he had only been engaged in the sporting purpose. The Tribunal found that the applicant would not have been imputed with any political opinion arising from this involvement as, if he had, he would have made this claim well before his departmental interview;
f)in light of these findings, the Tribunal also found that the applicant would not engage in any political activity upon his return to Iran, and had not done so previously because he had no genuine wish to do so, not because he feared harm were he to engage in it;
g)while the Tribunal was not satisfied that the applicant had ever been of any interest to Sepah (because country information indicated that it was a high level security agency), it did accept that he had had contact with the Basij. In particular, given that the Basij were known to act in a brutal and arbitrary manner and with a degree of impunity, the Tribunal accepted that the applicant had been detained on two occasions, first for 24 hours (around six years earlier) and later for 48 hours (around five years earlier). However, it was not satisfied that the applicant was of more interest to the Basij than other members of his immediate family who, the Tribunal noted, continued to reside safely in Tehran. In this regard, the Tribunal noted that:
i)the applicant’s second detention appeared to be no more than a random incident;
ii)as the applicant only referred to two specific detentions, and given that the Tribunal was not satisfied that he was a reliable witness, the Tribunal did not accept that he had been detained at any other time;
iii)the Tribunal accepted that the applicant had been questioned by the Basij or on other occasions by the police, particularly during the course of his work as a driver. However, given the poor condition of his car (which the applicant conceded), in the Tribunal’s view it was very likely that he had been stopped for legitimate reasons; and
iv)if the applicant had been subject to constant harassment of the type and severity claimed, he would have left Iran sooner than he did. However, as the applicant stayed in Iran until mid-2012, the Tribunal was not satisfied that he had been subjected to serious or significant harm at the hands of the Basij;
h)the Tribunal referred to country information which indicated that many Iranian Muslims did not attend mosque or perform daily prayers and did not experience any kind of backlash from the local authorities as a result. Based on this evidence, the Tribunal did not accept that the applicant’s lack of religious observance in Iran had caused or would cause him any problem;
i)the Tribunal noted that the applicant’s knowledge of Christianity was very limited and, in the circumstances, was not satisfied that he understood what he was purportedly prepared to risk persecution for. Consequently, and because the Tribunal did not accept that the applicant was generally credible, it was satisfied that his conversion to Christianity was not genuine;
j)the Tribunal did not consider it plausible that the applicant would be suspected of genuinely converting to Christianity in Australia based purely on the text messages to his brother, or that those messages were sufficiently incriminating to warrant his brother or father being more than questioned, if that. Further, the Tribunal was not satisfied that those messages would have motivated the Basij to expend resources to detain and/or torture the applicant’s elder brother. The Tribunal therefore did not accept that the applicant’s brother’s phone was checked by the Basij, although it accepted that the messages were sent. It therefore rejected as false the applicant’s claim that his brother and father had come to the adverse attention of anyone in Iran for the reasons claimed. In light of its findings, the Tribunal did not accept that the applicant’s profile, however described, was such that he warranted being sought by anyone after he departed Iran;
k)the Tribunal noted that country information indicated that fraudulent documents were readily available in Iran. In light of this, and given the Tribunal’s previous findings as to the applicant’s credibility and claims, it gave no weight to the “Summons to Attend”;
l)the applicant gave evidence at the hearing that he had travelled to Turkey in December 2011. He claimed that he went there on holiday and had had no intention of remaining. The Tribunal found that the applicant returned to Iran from Turkey in 2011/2012 because he did not fear serious or significant harm in Iran;
m)the Tribunal noted that the applicant remained in Iran until mid-2012, well after his un-Islamic interests allegedly brought him to the adverse attention of the Iranian authorities. The Tribunal noted that whatever harm he may have suffered as a result of any alleged suppression of his behavioural preferences, it was not sufficient to motivate him to “flee” Iran earlier than he did. Consequently, the Tribunal did not accept that the alleged suppression of the applicant’s behavioural preferences amounted to serious or significant harm; and
n)as the Tribunal did not accept that the applicant had been of any adverse interest to the Basij or anyone else since fairly shortly after the finalisation of the court proceedings concerning his younger brother’s accident in around 2009, it did not accept, having regard to country information, that he would be persecuted for any reason should he be involuntarily returned to Iran as a failed asylum seeker. The Tribunal was not satisfied that he had any profile with the authorities prior to his departure or had engaged in any activity in Australia such that he might have developed an adverse profile should he return to Iran.
PROCEEDINGS IN THIS COURT
The further amended application alleged the following grounds:
Ground 4(a)[23]: Misapplication of law or failure to ask the correct question
The second respondent (Tribunal) erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the applicant's conversion from Shia Islam to Christianity with regard to the complementary criterion. The correct question before the Tribunal was not whether or not the applicant’s conversion from Shia Islam to Christianity was “genuine” or “disingenuous” for the purposes of the complementary criterion. Rather, the correct question before the Tribunal was strictly whether the applicant faced a real risk of harm under the complementary criterion, given apostasy is punishable by death in Iran, irrespective of whether the applicant’s conversion from Shia Islam to Christianity was genuine or disingenuous.
Further, it was an irrelevant consideration as to whether the applicant’s conversion from Shia Islam to Christianity was genuine or disingenuous for the purposes of the complementary criterion. The Tribunal therefore erred by failing to take into account relevantly that the applicant faces a real risk of harm under the complementary criterion, irrespective of whether the applicant’s conversation from Shia Islam to Christianity was genuine or disingenuous, given apostasy per se is punishable by death in Iran.
As a consequence, the Tribunal failed to provide adequate reasoning regarding its finding at [50] that the applicant was not a “genuine” Christian in relation to the grounds of protection under the complementary criterion from [84]-[90] of the decision record.
…
Ground 4(a)[30]: There was an insufficient logical or evidentiary basis for the Tribunal to conclude that the applicant was ignorant of the elements an adherent to the religion might reasonably know
There was not a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant, are elements that an adherent to the religion might reasonably be expected to know.
…
Ground 4(a)[31]: There was an insufficient logical or evidentiary basis for the Tribunal to find the applicant was not a “genuine” Christian after finding the applicant was baptised, attended bible classes and church services
There was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant was not a ‘genuine’ Christian at [50] and [71] (bullet point 14), after accepting the applicant was baptized at [47] and attended church at [49] and in light of the evidence presented by the applicant below.
…
Each of those allegations was accompanied by lengthy particulars which need not be reproduced.
Ground 1 (Ground 4(a)[23])
In the first ground of the further amended application the applicant alleged that:
a)the Tribunal had erred by considering whether the applicant’s claimed conversion to Christianity was genuine – and thus whether he faced a real risk of significant harm – when it should have considered whether he faced such a risk because of his apparent conversion to Christianity, regardless of whether or not it was genuine; and
b)consequently, the Tribunal failed to provide adequate reasoning regarding its finding at para.50 of its decision record that he was not a genuine Christian.
The second contention does not follow from the first. In any event, failure to provide reasons in accordance with the Act does not amount to jurisdictional error: Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362.
As to the first element of the allegation, the applicant submitted that his conduct in converting to Christianity, or his having conducted himself in such a way as to suggest that he had, put him at risk of harm.
It is true to say that the Tribunal did not give separate consideration, in the context of the complementary protection criteria, to the applicant’s claims of apostasy. However, earlier in its reasons and in the context of the applicant’s Convention-related claims, it had rejected not only the genuineness of the applicant’s claimed conversion to Christianity (in para.50) but also the possibility that in Iran he would be perceived to have become a Christian (in para.71).
Although the applicant argued that the genuineness of his conversion was not relevant to the Tribunal’s consideration, that is not correct. An applicant’s likely future conduct in his or her country of nationality is very relevant to a claim to fear future harm. As far as this case was concerned, the possibility that the applicant would wish to practise Christianity in Iran would have been relevant to whether he faced a risk of harm in Iran on that account. However, as the purported conversion was found not to have been genuine, the focus of the Tribunal’s attention turned to how the applicant’s conduct in Australia might be received in Iran, were it to be known there.
In that regard, the applicant’s allegations concerning the depth of the Tribunal’s reasoning failed to take account of the paucity of the evidence he relied on in support of his claim to fear harm in Iran because of his alleged conversion to Christianity in Australia. The only evidence of his apostasy apparently available to the Iranian authorities was the information contained in text messages which the applicant had allegedly exchanged with his elder brother in Iran. In that regard, the applicant’s evidence to the Tribunal had been that when the Iranian authorities had checked his brother’s mobile telephone, they saw messages referring to his involvement with Christianity. At its hearing the Tribunal advised the applicant that it was sceptical that he would have sent such the messages given that he claimed to have come from a conservative Shia family and because he presumably knew that such communications might be monitored. Relevantly, because it did not believe the applicant’s account of the mistreatment said to have befallen his brother and father after the Basij had allegedly seen the messages in question, because it did not believe the messages would have warranted such mistreatment of them, it did not believe the applicant’s evidence that his brother’s telephone had been checked by the Basij.
That reasoning, which was expressed in the context of the applicant’s Convention-related claims, was open to the Tribunal and led to the findings in para.71 of the Tribunal’s reasons that the applicant was of no particular interest to the Basij and would not be perceived in Iran to have converted to Christianity. Those factual claims having been rejected in the context of the applicant’s Convention-related claims, no further consideration of them was necessary in that part of the Tribunal’s reasons dealing with complementary protection questions.
Ground 2 (Ground 4(a)[30])
The applicant submitted in relation to the further amended application’s second allegation that, although he had been baptised in 2014 and claimed to have attended church weekly, the Tribunal asked “just two questions” concerning his knowledge of Christianity. He referred in that regard to what the Tribunal said at para.48 of its decision record:
At hearing, when then asked why he converted to Christianity, the applicant said he was suicidal after being refused by the delegate and a Christian friend had introduced him to Christianity. He said that after becoming a Christian he became ‘calm’. He said he had a dream where a Messiah figure appeared and this gave him hope. When asked what he knew about Christianity, he said Christians are polite, kind and have a good attitude. When asked again, he said as a Christian he may drink alcohol and have a friendship with a female. He said that now he ‘knows Jesus’, he will be protected. He said that in Islam, people may be stoned to death. He said his spirit had become ‘fresh’ since he converted to Christianity. (Emphasis included)
The applicant also referred to the Tribunal’s conclusion at para.49 of its reasons that his knowledge of Christianity was “very limited” and to its further findings at para.50 of its reasons, which were clearly based on the evidence it had set out earlier, that:
In the circumstances, I am not satisfied the applicant knows sufficient about Christianity such that he even understands what it is he is purportedly prepared to risk persecution for. For all the reasons set out herein, neither do I accept the applicant is generally credible. I am therefore satisfied the applicant’s conversion is not genuine, and any benefits arising from his ongoing engagement in the Christian church in Australia (which I believe is more akin to temporary therapy), are readily available in Iran in a range of non-sectarian alternatives that will not bring him to any adverse attention.
The applicant submitted that it had not been logically or evidentially open to the Tribunal to make such findings on his religious beliefs based only on the two questions which para.48 of its reasons recorded it had posed. He argued that the Tribunal should have been more probing and provided itself with a substantive basis for reaching a conclusion on the issue. He submitted that he had been asked a generic question about Christianity but had not been tested on any of its fundamental tenets with the consequence that the Tribunal had been in no position to conclude that he lacked essential knowledge of the religion.
It was open to the Tribunal to be more probing in its questioning of the applicant but it was under no obligation to seek from him an elaboration which he was not inclined to make: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at 451 [58], Gleeson CJ agreeing at 438 [1]. It asked him what he knew about Christianity and it received an insubstantial response. When pressed by a repetition of the question he again made no reference to any essential element of the religion he claimed to profess and focussed instead on social behaviours which, by implication, were different from those associated with his experience of Islam. If those were the answers the applicant wished to give to those questions after having on his own account been to church weekly for a year, then the Tribunal was entitled to rely on them and to find the applicant’s knowledge of his new religion to be materially deficient and his claim to conversion correspondingly unpersuasive.
Ground 3 (Ground 4(a)[31])
The third ground of the further amended application was closely related to the second. The substance of it was that the Tribunal had wrongly imposed an arbitrary standard of religious knowledge which he had had to satisfy before his claims of conversion to Christianity would be accepted.
The matters to which the applicant referred in the particulars of this allegation and in his written submissions were, in substance, arguments that the evidence supported a conclusion different from the one which the Tribunal reached and that it should have reached such a conclusion. That was an invitation to undertake impermissible merits review. At no point did the applicant identify any arbitrariness on the part of the Tribunal or the application of an impermissible test. To conclude that a person does not hold particular claimed religious beliefs does not necessarily mean that an impermissible test has been applied. As Kenny J said in Minister for Immigration & Citizenship v SZLSP at 375 [39]:
Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
It is fair to say that, although provided with an opportunity to do so, the applicant failed to provide the Tribunal with evidence of any real knowledge or understanding of even the most basic and essential Christian beliefs.
CONCLUSION
The applicant’s allegations of jurisdictional error have not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 31 October 2017
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