WZAVD v Minister for Immigration
[2019] FCCA 2645
•3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAVD v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2645 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – factors for consideration. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Federal Circuit Court Rules 2001 (Cth), r.3.05 Migration Act 1958 (Cth), Pts.5, 7, ss.36, 46A, 91R, 195A, 476, 477 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003); 236 FCR 593; (2003) 75 ALD 630 The Concise Oxford Dictionary of Current English, 6th Edition (Oxford: Oxford University Press, 1976) CG Vaught, The Sermon on the Mount. A Theological Interpretation (Albany: State University Press of New York, 1986) |
| Applicant: | WZAVD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | PEG 393 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 May 2015 |
| Date of Last Submission: | 1 September 2015 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 3 October 2019 (and delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr G.M.G McIntyre SC |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Mr B Dube |
| For the Second Respondent | Submitting appearance save as to costs |
| Solicitors for the First Respondents: | Sparke Helmore |
DECLARATION
The Court declares that the second respondent, in his capacity as an Independent Protection Assessor, did not make his recommendation of 4 October 2012 according to law in that the second respondent finding that the applicant had not converted to Christianity was unreasonable.
ORDERS
That pursuant to r.3.05 of the Federal Circuit Court Rules 2001 (Cth) the applicant be granted an extension of time to 30 April 2015 in which to file any amended originating application.
The first respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying on the Second Respondent’s recommendation of 4 October 2012.
The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 393 of 2014
| WZAVD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has filed an application seeking judicial review (“Judicial Review Application”) of an Independent Protection Assessment (“IPA”) made by an Independent Protections Assessor (“Assessor”) on 4 October 2012. The outcome of the IPA was to uphold the finding of an officer of the first respondent, the Minister for Immigration & Border Protection (“Minister”), undertaking a Protections Obligation Determination (“POD”) that the applicant was not a person in respect of whom Australia has protection obligations under the Migration Act1958 (Cth) (“Migration Act”). The effect of the IPA was that the applicant was found to not meet the criteria to be granted a Protection (Class XA) visa (“Protection Visa”).
The Court acknowledges that these Reasons for Judgment have been very significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers, including:
a)the originating application filed 5 December 2014, and an amended originating application filed 30 April 2015;
b)the response filed 22 December 2014;
c)the Court Book (“CB”) of relevant materials including the IPA at CB 333-444;
d)an unsworn affidavit of Nathan Draper dated 25 February 2015 (“Unsworn Draper Affidavit”);
e)the Minister’s outline of submissions filed on 13 May 2015;
f)the applicant’s affidavit filed 18 May 2015 (Applicant’s Affidavit”);
g)the applicant’s outlines of submissions filed 18 May 2015 and 1 September 2015;
h)a transcript of the hearing from 20 May 2015 (“Transcript”).
Further, there was no oral witness evidence or examination at the final hearing of the matter. In the above circumstances, the delay, which the Court very much regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reason for Judgment are being delivered by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
In relation to the applicant’s outline of submissions filed 1 September 2015 the Court notes that those submissions, which commence essentially in the same terms as the applicant’s outline of submission filed 18 May 2015, then go on to address a different case related to an applicant for protection from the Democratic Republic of the Congo. It follows, therefore, that the Court has ultimately disregarded the applicant’s submissions filed 1 September 2015.
Background
The background to the matter is as follows:
a)the applicant is an Iranian citizen who arrived in Australia by boat as an unauthorised maritime arrival on 4 March 2011: CB 10;
b)on 22 April 2011 the applicant made a request for a POD, and made the following claims in support of his application to be owed protection obligations:
i)in 1978 and 1979 he was stopped in the street by the Basij and was punished and humiliated by having his arms and feet painted because he was wearing a short sleeved shirt and thongs: CB 84;
ii)the applicant was attacked a short period after this again by the Basij after being wrongly accused of eating during Ramadan, and as a result of the attack he sustained hearing difficulties in his ear which now constantly makes a ringing noise: CB 84; and
iii)in 1996 the applicant was driving during a religious festival and the Basij pulled him from his car and attacked and injured him as he was beeping his horn in the traffic. and the result of being beaten was that he had developed a cataract: CB 84; and
iv)as he is older he is offered no assistance from the government and specifically fears the “E’teillat” will imprison him if he returns to Iran as he will return without a passport and will be suspected of something, and while he is not quite sure what he will be suspected of, as he does not know how the E’teillat think, he has heard of many Iranians returning to Iran without a passport being seriously harmed by the authorities: CB 85;
c)on 23 May 2011 a file note (“May 2011 File Note”) authored by a Mr Daniel Lea (“Mr Lea”), the applicant’s case manager at the then Department of Immigration and Citizenship (“Department”) detailed that the applicant had indicated he wished to convert to Christianity as he had always wanted to do so, and his sister and nephew in the United States had done so, however, he wished to keep this confidential as he feared reprisals from Muslims: CB 105;
d)on 7 June 2011 the applicant was notified that the POD had been unsuccessful and the matter was subsequently referred for an IPA: CB 106-115;
e)on 17 September 2011 a representative of the applicant provided the Assessor with further information to add to the applicant’s “already existing claims for protection”, namely:
i)his fear of persecution is also based on his religion as a Christian, not as a Muslim Shia, as both his father and sister converted years ago and whilst his connection to Christianity surfaced while he was in Iran, he could not make it known given the resultant consequences of such behaviour under Sharia law so he felt forced to keep it a secret: CB 117;
ii)during his previous interviews he was too scared to say the "extra things" he had to say as they involved his religious conversion to Christianity, which he asserts is his main claim for protection, but given the strict laws surrounding conversion away from the Islamic faith in Iran he was unable to make his feelings and beliefs known, and only gradually since his arrival in Australia has he become more comfortable with the notion of confidentiality, and he believes that Australia will protect him: CB 117; and
iii)he was baptised in a private ceremony whilst in Iran but is unable to provide evidence as strict rules apply in Iran with regards to religion, but he has been attending bible classes whilst in immigration detention in Australia and has intentions of converting by being formally baptised as he no longer considers himself a Muslim, and, therefore, if he is forced to return to Iran he will eventually be executed by the authorities: CB 117;
f)further submissions of some 35 pages in length were provided to the Assessor on 13 October 2011: CB 123-157, summarising the applicant’s claims for protection status as follows:
i)a fear of persecution based on his membership of a particular social group, namely a person in Iran openly demonstrating affluence and seen to have Western views and a lack of respect for the Islamic culture: CB 124;
ii)a fear of persecution based on his imputed political opinion having fled to a Western country and seeking asylum which will lead to him being imputed by the Iranian authorities to be a non-supporter of the Iranian government and having anti-government views: CB 124;
iii)a fear of persecution based on his religious practice as a Christian and not as a Muslim: CB 124; and
iv)a fear that he will be harassed in the airport on his return to Iran as he will be considered a spy and a traitor for having travelled overseas and for seeking to live in a Western country: CB 125;
g)the applicant was interviewed by an assessor (“Prior Assessor”) on 1 December 2011: CB 172-173;
h)on 25 January 2012 the Prior Assessor recommended that the applicant not be recognised as a person to whom Australia owed protection obligations (“Prior IPA”): CB 181-199;
i)the applicant sought judicial review of the Prior IPA (in proceedings known as DNG17/2012), and on 9 August 2012 this Court declared that the Prior IPA had failed to afford the applicant procedural fairness, with no reasons delivered because the orders were made by consent with a note that the “second respondent failed to properly consider a claim made by the applicant to fear persecution as a failed asylum seeker”: CB 265-266;
j)written submissions, this time 54 pages in length, from the applicant’s representative were forwarded to the Assessor on 19 September 2012. Those submissions expanded on the previous claims as follows:
i)the applicant attempted to commit suicide in 2009 after taking 10 to 12 tablets of medication that his mother left behind before she passed away as he had no family, was not married, did not have any children, his sister was overseas and other people had families but he did not, as a result he fainted before being taken to hospital by his Christian friend and thereafter he started to attend Christian meetings where he became involved with Christian families and he was delighted with how they behaved: CB 278;
ii)when the applicant went on a holiday to India with his aunty in November or December 2010 the air-conditioning at his house had broken down, and the applicant's step-mother and her relatives had broken down the door of his living quarters in order to get to the roof where the air-conditioner was located and in doing so his step-mother discovered a picture of Jesus Christ hanging on his wall and a Bible, and upon this being told to the Basij the applicant's step-brother was told he was entitled to kill the applicant, so his father advised the applicant not to return home, and to flee somewhere safe: CB 278; and
iii)in addition to a vast array of country information on the apostasy the applicant may be deemed to have committed and the present situation in Iran, submissions were also made responding to the observations and findings made by the Prior Assessor;
k)a further IPA interview was conducted on 21 September 2012 and the applicant was accompanied by his migration agent and had the assistance of a Farsi interpreter: CB 268-274; and
l)on 4 October 2012 the Assessor determined that the applicant was not a person in respect of whom Australia has protection obligations: CB 333-444.
The IPA
In the IPA the Assessor:
a)referred to the provisions of the Migration Act and the case law that was relevant to the determination of the IPA: CB 334-336 at [1]-[19];
b)noted the materials before the Assessor, copied verbatim the applicant’s claims made in his request for a POD, and transcribed verbatim exchanges from:
i)the unauthorised maritime arrival interview on 30 March 2011: CB 337 at [23];
ii)an interview with an officer of the Department on 24 April 2011;
iii)an interview with the previous assessor on 5 December 2011; and
iv)the May 2011 File Note.
The IPA sets out the detail of the interview on 21 September 2012 in which the Assessor:
a)confirmed the applicant did not have any problems leaving Iran via the airport on his genuine passport: CB 339 at [29];
b)put to the applicant that in one of his representative’s submissions it was claimed that he was part of the Green Movement, and the applicant disagreed saying the submission was wrong, however he confirmed the events he referred to in his POD request had occurred: CB 339 at [30]-[31];
c)noted that when asked if he had abandoned Islam he responded “yes”, and that his interest in Christianity started in 1996, and when put to him that his adviser said that he started attending Christian ceremonies every 15 days to once a month he stated he did not say that, rather he knew a Christian family and went to their celebrations in their Church a few times: CB 340 at [32];
d)further stated that when the applicant was asked what he was currently doing to practice his Christianity he responded that he wanted to go to Church but he could not go because he was working in a Persian restaurant on Fridays, Saturdays and Sundays, and they were very busy and he was needed, but every night he read some part of the Bible which was called Matthew, though since his release from detention four months earlier he had not been to Church: CB 340-341 at [33];
e)asked the applicant what happened the Friday before Easter and noted he stated he did know the answer “but not at that moment”, and the Assessor then put to him that Christ died on that day and he agreed, and was then when asked to tell two stories that Jesus told he stated “Jesus said well is it those who are humble and those who are poor because they are the owners of the earth” and “when Jesus was on the cross he asked God to forgive those who were involved in killing him because they were not aware of what they were doing”. The applicant was asked to recite stories Jesus told and not just anything that Jesus said to which the applicant gave some examples but stated he could not remember anything else at the moment because he was stressed: CB 341 at [35];
f)put to the applicant that he had stated up until 5 December 2011 that he was Shia, but the applicant stated that he had said previously he was a Christian but it was not interpreted properly, and when he was in Perth there were Afghans and Arabs in the area where he lived and they would humiliate him if they knew he was going to Church, so Serco itself would take him to Church in hiding and not openly, and he told Serco twice that these people were laughing at him and also he was scared of them because the look they gave was scary: CB 341 at [36];
g)referred to 24 April 2011 where the applicant was asked if he understood the interpreter and he said “yes”, but the applicant now stated that he understood the interpreter, but apparently the interpreter did not understand him, as the interpreter was Afghan and spoke Dari and no one informed him he could have another interpreter: CB 341 at [37];
h)put to the applicant that on 5 December 2011 he stated he did not talk to his step-mother or say that she had seen pictures of Jesus in his room and had also found a Bible, and he responded that when he was in India his step-mother and her brothers found those things in his room and his emphasis was not on his Christianity but was on their reasons to kill him and get his father's wealth, and he did not want to say he was a good or true Christian which was in his heart, but his problem was his step-mother: CB 341 at [37];
i)put to the applicant that on 24 April 2011 he told the Department he talked to his step-mother one week prior, to which he agreed, but stated his step-mother did not pick the phone up and he talked to his maternal aunty, and the reason he called her was that he wanted to talk to her and wanted her to feel that she could not reach him anymore, he was not interested in his father's wealth but he wanted to live in freedom and they used his Christianity to get to his father's wealth and they wanted to get rid of him because according to Islam, if his father died he would inherit his father's wealth and they were very religious and his step-mother’s brother was working for the government: CB 341 at [37];
j)put to the applicant that on 24 April 2011 he also stated that no one was looking for him, which he explained as it not being the government directly who were looking for him, but it was his step-mother's brothers, who were not different from the government, that were after him to kill him: CB 342 at [38];
k)further noted that the question put to the applicant had been “is anyone looking for you” and his answer was “no, if that was the case, they would not give me a passport, Iran has high intelligence”, and the applicant again sought to explain that that was in his first interview, and he said he had not told things that he wanted to say, however, his interpreter was Afghan and said to the applicant “I'm going back to Masshad do you have any message” and he got scared because he thought the interpreter was a spy for the intelligence services: CB 342 at [38];
l)put to the applicant that having listened to the 30 March 2011 interview, at that interview he had been asked “Is there anything else you need to tell me?” and he had said “No I have said everything I have tried to be honest and I didn't lie about anything but there are rare incidents in my life that I cannot discuss they wouldn't be very much related to my case”, to which the applicant responded that he told the “judge” he did not want things written, but would leave the room to talk privately about them, however, this would not be in the recording as the recorder was turned off: CB 342 at [38];
m)referred to the earliest mention of Christianity on the applicant’s file being dated 19 May 2011, that being after he put in his request to be considered as a refugee and after the Department had interviewed him but before its POD, and the applicant agreed with this: CB 342 at [38];
n)when further put to the applicant that a file note indicated he talked to Serco about how he could convert to Christianity and that he wanted the information kept from others as he feared reprisals from other Muslims, the applicant responded he did not ask how he could convert to Christianity but rather he asked how he could go to church more comfortably without anyone knowing about it: CB 342 at [38];
o)put to the applicant that having raised the issue of Christianity late in the process the Assessor may find that:
i)she did not believe that any of the events the applicant said had happened to him in Iran as a result of his alleged Christianity had occurred;
ii)while the events in his statement may have occurred, it may not accept that he had been exposed to Christianity in Iran, nor that his step-mother had found the Bible nor the picture of Jesus; and
iii)he was not a Christian as if he had genuinely converted he may be able to tell two stories Jesus told and what happened on the Friday before Easter Sunday: CB 343 at [39];
p)put to the applicant that he had not been attending Church, and therefore the Assessor may not accept that this behaviour or his knowledge was consistent with someone who had converted to Christianity, and that he “had done the things he had done for the purposes of the Protection Visa application only and the conduct would be disregarded”: CB 343 at [39];
q)the Assessor would have to think about his behaviour in relation to complementary protection, however, it occurred to the Assessor that it would only cause the applicant a problem if the Iranian authorities knew about his conduct in Australia and she may not be satisfied that they did: CB 343 at [39];
r)information from the Department of Foreign Affairs and Trade (“DFAT”) dated April 2011 meant that the Assessor may not be satisfied that all failed Iranian asylum seekers would be persecuted, and that only those who had a political profile would be targeted: CB 343 at [39]; and
s)noted the applicant stated that if he had said he was going to church then the Assessor may have said he was not being honest, that if other Christians had been asked the same questions then he did not know if they were able to answer them, and if he had answered really well then the Assessor may have said he would have memorised them in order to obtain the Protection Visa, and that if he went back to Iran he would be killed and his emphasis was not on Christianity it was on his father's wealth and they would find any reason to kill him: CB 343 at [39].
Following a break, the interview continued, and the IPA records that:
a)the applicant’s representative stated that:
i)the applicant did not claim to be a devout Christian but did believe in God;
ii)as to the applicant turning his back on Islam, the applicant’s representative referred to the unauthorised maritime arrival entry interview that occurred on the 30 March 2011 where it was recorded that the applicant states “that the client left Iran and did not feel safe and felt he was at risk of serious harm”, that being because he will return without a passport and will be suspected of something and he had heard of returning Iranians been seriously harmed; and
iii)the applicant had not claimed on the grounds of converting to Christianity: CB 343 at [41];
b)the applicant was seeking asylum because he did not feel safe and was at serious risk because when his mother died, his father remarried and his step-mother and her brother started to pressure his father about his money, and how could he leave it to someone who is not practising Islam, and when the applicant went to India and his step-mother allegedly found out he was not a practising Muslim, practising Christianity was an excuse to accuse the applicant of a crime for which he could then be detained and his wealth and money could be taken, or he may just disappear as the Basij will do something to him and he could not defend it, therefore, once his father died there was nothing stopping the Basij or his step-mother from having him arrested or killed for his wealth: CB 343 at [41];
c)the applicant’s representative said the applicant had not previously declared he was a devoted Christian, and had only brought the issue up because his step-mother had made accusations that had led to the applicant having a fear of being killed or arbitrarily deprived of life: thus while the applicant, per se, did not meet the criterion for protection for a Convention reason there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia there was a real risk that he would suffer significant harm, that is the applicant satisfied the complementary protection criterion: CB 344 at [41];
d)noted it was stated that while the applicant believed in God, did not necessarily go to church, was not able to tell stories that Jesus said, had undertaken some Bible study, tried to interpret the Bible himself, and had contacted people in Australia and apologised for not being able to go to church because of his work, he still believed in God in his heart and in the way of Christianity and prayed at night, and in response to the Assessor stating that Islam and Christianity have the same God, the applicant agreed but stated in Christianity it was shown through love but in Islam it was shown by force: CB 344 at [41]-[42]; and
e)the applicant’s representative raised a claim that the applicant’s shop was taken away from him by the step-mother who stated that he was a non-believer in Islam as he was not going to the mosque, and this religious belief was imputed to him and he feared harm as a result, and the Assessor then put to the applicant that his representative had said that he had not attended mosque and that was held against him, and that there was information before the Assessor in the form of studies that said that many Iranians including devout Shia Muslims did not attend mosque to which he stated very devoted Shiites should go to the mosque but if they did not go they had to practise at home and they did not see the applicant doing that: CB 345 at [47].
The IPA then referred to the documents and materials that were before it, including:
a)a submission dated 17 September 2011 and a supporting document from the Prison Fellowship Group pertaining to the applicant’s Christian practices while in immigration detention, accompanied by a Baptism Certificate dated 20 October 2011: CB 346 at [49]-[51];
b)a letter in support of the applicant’s Protection Visa application dated 18 October 2011 from Robert Stankovic from the Seventh-Day Adventist Church: CB 346 at [52];
c)another submission dated 13 October 2011: CB 346-379 at [53];
d)another submission dated 28 February 2012, in substantially the same terms as the submission dated 17 September 2011: CB 379-429 at [54]; and
e)an array of country information from a variety of sources including information particular to religious participation among Muslims and the treatment of failed asylum seekers: CB 429-438 at [54]-[78].
Under the heading “Findings and Reasons” the IPA:
a)found the applicant was not an impressive witness as evidence and submissions in relation to what the applicant fears in Iran had continually changed, and included the following:
i)the applicant stating that incidents that had occurred around 1978 and 1979 and again in 1996 that led him to feel he was not safe in Iran;
ii)in subsequent interviews, submissions, claims and evidence claimed to fear harm on the basis of conversion to Christianity, though the applicant maintained he did not want to say he was a good or true Christian, but that what was what was in his heart;
iii)then claiming, that he has problems with his step-mother, and that his emphasis was not on Christianity, but was on his father's inheritance as his step-mother would find any reason to kill him;
iv)claiming that he was not claiming protection on the ground of converting to Christianity, but that he will be imputed to be a non-believer because of his non-attendance at mosque; and
v)that he will be perceived to oppose the Iranian regime because of his support for the Green movement: CB 439 at [80]-[81];
b)noted that the applicant has not provided consistent testimony in relation to his religion, and that if he had converted to Christianity in Iran he would have mentioned it in his written statement of claims or in either of the two interviews prior to the interview on 5 November 2011 when he first raised the issue: CB 439 at [82];
c)did not accept the applicant’s claims that at the pre-5 November 2011 interview he mentioned that he had not told some things, and that those things were about his Christianity, as the Assessor had listened to the applicant’s comments at the end of that interview and he stated that he “had said everything but that there were some incidents that he could not discuss which would not be related to his case”: CB 439 at [82];
d)given the failure of the applicant to mention his claimed Christianity prior to December 2011, and the inconsistent testimony in relation to whether he spoke to his step-mother after he arrived in Australia, did not accept that:
i)the applicant had attended Christian ceremonies in Iran;
ii)the applicant attended something that resembled a Baptism in Iran; and
iii)his step-mother or her relatives found a picture of Jesus on the wall or a Bible, or that following the discovery, the step-mother’s brothers stated that they were entitled to kill the applicant: CB 440 at [84];
e)accepting that the applicant’s sister may have converted to Christianity, did not accept that this impacted on the applicant in any way, and did not accept that the applicant’s father had converted to Christianity as was claimed at one stage as there was no evidence before the Assessor of that conversion: CB 440 at [84];
f)accepted that the applicant had engaged in Bible study classes after May 2011 and was baptised, but was not satisfied that the applicant had done it other than for the purposes of his refugee claim and therefore the Assessor:
i)disregarded the conduct under s.91R(3) of the Migration Act;
ii)did not accept that the applicant abandoned Islam in Iran or would be imputed with any sort of religious or political opinion because of this;
iii)was not satisfied that the applicant had converted to Christianity whilst in Australia; and
iv)was not satisfied that he would engage in Christian activities if returned to Iran: CB 441 at [85]-[87];
g)was not satisfied that whilst the applicant may not have gone to the mosque whilst in Iran that he will be imputed with any sort of negative religious or political opinion because of this given that studies suggest that mosque attendance in Iran is surprisingly low: CB 440-441 at [87];
h)although the applicant claims his step-mother has held his non-attendance at the mosque and his alleged non-practice at home against him, the Assessor was “simply not satisfied” that the applicant has not continued to talk to his step-mother in a meaningful way after his arrival in Australia given his recitation of their conversation at the interview on 24 April 2011: CB 440-441 at [87];
i)accepted that the applicant was punished in 1978 and 1979 in relation to his clothing, was wrongly accused of eating during Ramadan and was pulled from his car in 1996, however, did not accept that the applicant had behaved in a way that had incurred harm since at least 1996, and further did not accept that the applicant had a well-founded fear of persecution for a Convention ground due to those past incidents or because of his affluence or wealth: CB 441 at [89];
j)noting that it accepted that there may be a dispute over the applicant’s father’s wealth and inheritance, that this was a private matter, and the Assessor did not accept that any serious harm had resulted to the applicant in Iran in the past in relation to this issue and accordingly, there was no real chance that, should he return, he would suffer any serious harm in the future: CB 441 at [90];
k)the applicant having left Iran lawfully, having never been involved in any political activities in the past, and having been found not to have been imputed with any anti-government opinion, the Assessor was not satisfied that the applicant would be imputed with an anti-Iranian regime opinion in the reasonably foreseeable future merely for seeking asylum in Australia or returning from a Western country, and while it accepted that the applicant may be questioned and may even be monitored, on return to Iran, the Assessor did not consider that that treatment would amount to serious harm: CB 442 at [92]-[93];
l)considered that the circumstances of the applicant’s claims surrounding his religious conversion did not amount to substantial grounds for believing that there was a real risk that the applicant would suffer significant harm, as the Assessor found that this will only be a problem for him upon return if the Iranian authorities are aware of the applicant’s behaviour, and as the applicant stated at the interview that when attending church in Australia Serco would not openly take the applicant to the church because of the risk of Afghans and Arabs in detention humiliating the applicant if they knew he was attending church, but even if other detainees were aware that the applicant was attending church the Assessor was not satisfied that this meant that the Iranian authorities would know of his behaviour or that he would be at risk of significant harm if returned to Iran: CB 442 at [97];
m)was not satisfied the claims concerning significant harm as a result of the applicant’s political activity, inheritance issues and for being a failed asylum seeker were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran there is a real risk that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out, or that the applicant will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment: CB 442-443 at [96]-[101]; and
n)concluded that the applicant did not satisfy s.36(2)(a) or (aa) of the Migration Act and recommended that the applicant not be recognised as a person in respect of whom Australia has protection obligations.
Judicial Review Application
The applicant filed the Judicial Review Application in this Court under s.476 of the Migration Act seeking an injunctive order restraining the Minister from removing the applicant and relying upon the recommendation of the Assessor and a declaration that the IPA was not made in accordance with law. The Minister originally raised objection as to the Court having jurisdiction to hear the matter where the Judicial Review Application was filed 26 months after the IPA and therefore not within the time limit ascribed by s.477 of the Migration Act. The Minister ultimately withdrew this contention, correctly, because the time limit of s.477 does not apply to an application for judicial review of a recommendation made in the IPA: SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26; (2012) 200 FCR 207; (2012) 286 ALR 331; (2012) 126 ALD 63.
Orders were made by a Registrar of the Court on 18 February 2015 (“Registrar’s Orders”) permitting the applicant to file and serve any amended Judicial Review applicant and any affidavit evidence by 1 April 2015. On 19 February 2015 the applicant’s legal representatives filed a notice of withdrawal of lawyer. On 30 April 2015 the applicant filed, out of time, an amended Judicial Review Application (“Amended Judicial Review Application”) prepared by newly obtained legal representatives. No leave was sought to rely on the Amended Application and no materials were filed by the applicant in compliance with the Registrar’s Orders. In the absence of any explanation for the delay in complying with the Registrar’s Orders and in view of the applicant failing to file his Judicial Review Application until some 26 months after the IPA the Minister objected to the Court granting leave for the applicant to rely on the Amended Judicial Review Application should not be granted. Notwithstanding that the Minister objected to the Amended Judicial Review Application, as a model litigant the Minister nonetheless addressed the grounds of review in the Amended Judicial Review Application.
Pursuant to r.3.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), the Court may extend or shorten a time fixed by an order of the Court, and may do so even after that time has passed. It is now well accepted that in determining whether an extension of time should be granted under r.3.05 of the FCC Rules, the Court should look at:
a)the length of and reasons for the delay;
b)any prejudice suffered by the parties;
c)the merits of the claim generally: Hunter ValleyDevelopments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315.
The Court notes that there is no material, evidentiary or otherwise, before the Court to explain the delay in filing the Amended Judicial Review Application, and the fact that there is no explanation may, of itself, provide sufficient reason for the Court to not make an order extending time: SZMWH v Minister for Immigration and Citizenship [2009] FCA 879 at [7] per Stone J. In this case the failure to explain the delay in filing the Amended Judicial Review Application weighs against the ground of an extension of time to do so. Likewise, in the Court’s view, there would have been prejudice to the Minister if the amendment were to be granted at such a late stage, if not for the fact that the Minister addressed the grounds of review in the course of the hearing. That, however, is not a factor which the Court intends to afford any significant weight in determining whether or not an extension of time ought to be granted. In relation to the merits of the Amended Judicial Review Application, because the parties argued these merits fully, the Court has dealt with then fully at below. For the purposes of the extension of time application slightly different considerations arise however.
The Court should not exercise its discretion to extend time, even for a short period, if the Judicial Review Application (and now the Amended Judicial Review Application) has no prospect of success: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [39] per Foster J, and it is not in the interests of the administration of justice to use the resources of the Court where there is no real prospect of success were an extension of time to be granted: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J.
It is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J. The Court need only examine the grounds of review in the Judicial Review Application (and now the Amended Judicial Review Application) and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J. Success in this context is to be measured by reference to the fact that the IPA may be liable to be set aside on judicial review where it is found to be affected by legal error.
In this case the Court is of the view that it is reasonably arguable, even at first blush, that there is legal error in the IPA insofar as particular (e) of ground 1 is concerned because there is arbitrariness and lack of common sense in the treatment by the IPA of the applicant’s recounting of stories told by Jesus, and that that the IPA’s conclusions in relation thereto have no transparent or intelligible justification.
Where the above particular of ground 1 is plainly arguable, this factor weighs in favour of an extension of time.
In relation to the extension of time application under r.3.05 of the FCC Rules the delay is not a lengthy one, although it is not insignificant. In the Court’s view some explanation for the delay can be inferred from the change of solicitors, albeit there is no otherwise explanation for the delay in evidence before the Court. There would be prejudice to the applicant if the extension of time were not granted, particular in circumstances where at least some arguable grounds of review exist, and in those circumstances, albeit on a very fine balance, the Court is of the view that the applicant’s application for an extension of time in which to file the Amended Judicial Review Application ought to be granted. Ultimately, the Court has determined to deal with both grounds 1 and 2, and not just that particular of ground 1 which it found to be arguable, lest its conclusions as to arguability be wrong, but in any event because both the applicant (represented by Senior Counsel) and the Minister fully argued both grounds.
As noted above the Court has before it the Unsworn Draper Affidavit. The Minister indicated that a copy had not been served and the Minister had not seen the content of the Unsworn Draper Affidavit, however following a brief adjournment the Court was advised the Minister did not object to the Unsworn Draper Affidavit being read and the Court observed the content of the Unsworn Draper Affidavit goes to questions of chronology and appeared to be made in support of an application for an extension of time which the Court has already indicated, and the Minister has conceded is, unnecessary. Nonetheless, it was indicated at hearing it was sought to be relied upon and the Court indicated it would be “taken as being read and in evidence, subject to a signed and witnessed copy being filed by the applicant at a later time”: Transcript, p.3 at [39]-[40]. The Unsworn Draper Affidavit was never filed by the applicant, and furthermore the copy provided to the Court at the hearing did not contain Annexures ND1, ND2 and ND3 all of which are referred to in the Unsworn Draper Affidavit. The applicant has not satisfied the conditions the Court indicated for the Unsworn Draper Affidavit to be read into evidence and it will therefore not be read into this evidence.
An affidavit of the applicant sworn 18 May 2015 (“Applicant’s Affidavit”) was also sought to be relied upon. For the reasons set out below at [23]-[27] the Court agreed with the Minister’s objections to the Court reading the Applicant’s Affidavit and the Court did not have regard to the Applicant’s Affidavit.
The Minister filed submissions in accordance with the Registrar’s Orders addressing the grounds of the Amended Judicial Review Application, notwithstanding the objections raised to the applicant relying on the Amended Judicial Review Application and the further failure of the applicant to file written submissions in accordance with the timeframes in the Registrar’s Orders. The applicant filed his written submissions two days prior to the hearing.
The Applicant’s Affidavit
The Applicant’s Affidavit comprises 8 pages of untranslated Arab text and what appears to be the translation of that text, comprising 3 pages and 26 paragraphs. The content is largely factual material concerning the applicant’s passage to Australia and contained some assertions as to the treatment of the applicant by the Australian Navy when rescued from the sinking vessel in which he was seeking to reach Australia. The applicant then details what occurred upon arriving in Australia and the various interviews he undertook, and specifically a number of statements he agrees he made and what occurred at some of those interviews including the applicant requesting that he be transported privately to Church and bible study classes.
The applicant made the following arguments in seeking to have the Court read the Applicant’s Affidavit into evidence:
a)in the latter paragraphs the applicant deposes to what he says happened in his interchange with his case manager and the Assessor made a decision based on reading a memorandum of this case manager detailing what occurred at a particular meeting and the Assessor has concluded that he requested to convert to Christianity at that meeting and the applicant says that he did not: Transcript, p.4 at [1]-[7]; and
b)there is nothing in the IPA, which suggests that the memorandum was put to the applicant and while it is clearly among the documents which are in the Court Book and was taken into account in determining what occurred at that event, the applicant has not had any prior opportunity to put an explanation as to his version of what occurred which contradicts what is recorded in the memorandum that the Assessor has relied upon: Transcript, p.4 at [14]-[21].
The Minister objected to the Court reading the Applicant’s Affidavit on the following grounds:
a)the memorandum was put to the applicant as noted at CB: 342-343 at [38] of the IPA as follows:
The assessor indicated that there was a file note saying that he talked to Serco about how he could convert to Christianity and that he wanted the information kept from others as he feared reprisals from other Muslims. He stated he did not ask how he could convert to Christianity, he asked how he could go to church more comfortably without anyone knowing about it and at the same time he had Bible study going but did not go to Church at that time but afterwards he went with the help of Serco;
b)the Applicant’s Affidavit, in particular at [21]-[23], is inconsistent with the particulars that are pleaded in ground 1(b) of the Amended Application which states there was a misinterpretation regarding what eventually was written in the memorandum; and
c)in any event, there is no transcript of the hearing with the Assessor, and it has not been suggested in any written pleadings or submissions that the issues sought to be raised in the Applicant’s Affidavit were put to the Assessor.
The Court indicated at hearing that for the reasons put forward by the Minister the Applicant’s Affidavit would not be read. The Applicant’s Affidavit sought to put factual matters which were in contest before the Assessor before the Court, and clearly it is not the Court’s role to delve into the factual findings of the Assessor as to do so would entail the Court engaging in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In relation to the specific paragraphs of the Applicant’s Affidavit the Court also notes as follows:
a)[3] is unclear and asserts that the “Respondents must prove why it cannot be resolved (amended) and why the Court's powers may not be used for the resolution (amendment) of my case in respect of the migration ruling”. It is not for the Minister to prove the Court should not exercise the powers to, assumedly, remit the matters for reconsideration, rather it is for the applicant to prove his case of jurisdictional error: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 242 at [15] per Jagot J;
b)[4]-[7], recounting the applicant’s journey to Australia, are irrelevant to the question before the Court;
c)[8]-[11] and [14]-[18] are matters of fact and of no relevance to the role of the Court exercising jurisdiction on judicial review;
d)[12]-[13] are opinion evidence, and, are again irrelevant as it is not in dispute whether Iran is a religious society, and the Court need not trouble itself with variances between Australian and Iranian culture;
e)[21]-[26] contain assertions that do not appear to have been in issue before the Assessor and therefore can be considered “fresh evidence”, which it is inappropriate for the Court to consider: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J; and
f)to engage with the assertions of fact in [21]-[26] would be to engage in fact-finding in circumstances where the applicant has given no indication as to how the Court admitting the impugned paragraphs into evidence would assist to establish jurisdictional error: rather the applicant is simply seeking to rely upon the impugned paragraphs to invite the Court to make a different factual finding than that of the Assessor, and to therefore engage in impermissible merits review: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8] per Nicholson J; Wu Shan Liang, CLR at 272 and 281-282 per Bennan CJ, Toohey, McHugh and Gummow JJ.
The Applicant’s Affidavit was therefore not read into evidence. As a result of the Court not reading into evidence the Applicant’s Affidavit grounds 1(b) and 1(c) were effectively untenable as they were based upon the Court having regard to the Applicant’s Affidavit.
IPA and the requirement for error
In Plaintiff M61/2010E v The Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 (“Plaintiff M61”) at [8] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ the High Court stated as follows:
… in conducting a review, the reviewer was bound to afford procedural fairness to the person whose claim was being reviewed, and was bound to act according to law by applying relevant provisions of the Migration Act and decided cases.
In Minister for Immigration & Border Protection v SZSNW [2014] FCAFC 145; (2014) 229 FCR 197 (“SZSNW”) at [86] per Buchanan J the role of an Independent Merits Reviewer, the equivalent of the Assessor in the present case, was described thus:
… the nature of the role of the [Independent Merits Reviewer] must be borne in mind. The IMR is an appointee of the Minister… performs no direct statutory role but he does provide a foundation for the exercise of Ministerial discretion under the Migration Act. It is consonant with that function (and would otherwise be contrary to the purposes of the Migration Act) that neither the recommendation of the IMR, nor any subsequent decision of the Minister be based on an error of law.
In Plaintiff M61 at [77] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ the High Court said that what was being considered in the independent assessment was if the power under either or both of ss.46A and 195A of the Migration Act should be exercised, and therefore even if there be a positive IPA the applicant had no right to have the Minister decide to exercise the power in their favour to “lift the bar” to enable the applicant to be granted a Protection Visa. There is no doubt that the decision-making process of an independent assessor is subject to the requirements of procedural fairness: Plaintiff M61. However, given the absence of a statutory scheme by which the IPA is governed, the procedural fairness issues raised by an applicant must be answered by reference to the general law: SZQLZ v Minister for Immigration & Citizenship [2012] FMCA 1 at [37]-[38] per Driver FM.
The relief this Court can grant to the applicant should he establish that the Assessor fell into jurisdictional error is more limited than that which can be offered in judicial review of a decision made under Parts 5 or 7 of the Migration Act as there is no duty to exercise the power under s.46A of the Migration Act. Therefore, writs of mandamus are unavailable and there is no utility in granting certiorari to quash the IPA, but rather, if relief is appropriate, a declaration should be made that the Assessor made the error of law that has been identified and that the applicant was not afforded procedural fairness in the conduct of that review: Plaintiff M61 at [99]-[104] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Ground 1 – unreasonableness and illogicality
Ground 1 of the Amended Judicial Review Application is as follows:
(1) The second respondent's decision on 4 October 2012 that the applicant is not a person in respect of whom Australia has protection obligations under the Refugees based on the conclusion that he had not converted to Christianity was not reasonable.
Each particular of ground 1 will be considered individually, however the Court notes that the general tenet of the particulars are that the Assessor was unreasonable in coming to the finding that the applicant had not converted to Christianity as he claimed. At hearing the applicant noted the issue on which ground 1 is focussed upon is the irrational, illogical or arbitrary basis on which the Assessor came to the finding that the applicant had not converted to Christianity: Transcript, p.6 at [10]-[12].
The Minister made some preliminary observations on the tenability of the ground 1 in circumstances where there is some authority to suggest that there may be room to question whether the principles identified in Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) and subsequent cases relating to legal unreasonableness can be fully applicable in the non-statutory realm of decision-making by an Assessor. The Minister also noted that in essence, what is being suggested is that the findings are illogical or irrational, as discussed in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”), and that at most the applicant makes an argument that a different view might have been reached on the evidence before the Assessor.
The Minister contended that grounds based on unreasonableness, which the applicant stated the grounds were based upon: Transcript, p.5 at lines 40-41, only apply and have application in circumstances involving the exercise of a discretion and the Assessor is not exercising a statutory discretion. The applicant’s position was that the IPA was a discretionary decision, and referred to Li at [27]-[28] per French CJ and Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [37]-[38] per Gummow and Hayne JJ, as suggesting that grounds of unreasonableness extend beyond the context of discretionary considerations. With respect to the passages the applicant drew the Court’s attention to, they do little to assist the applicant’s position and in some respects are contrary to what the applicant asserts, in particular in Li at [28] per French CJ noting:
That limiting case can be derived from the framework of rationality imposed by the statute.
The Minister drew attention to SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 (“SZOOR”) at [83] per McKerracher J who found that unreasonableness in decision-making applies only to determining the validity of discretionary decisions, rather than the fact-finding leading to those decisions.
In SZSNW the members of the Full Court of the Federal Court made various observations concerning the Independent Merits Review (“IMR”) being considered including the following:
a)having regard to the judgment in Plaintiff M61 there is no reason why the principle or standard of reasonableness referred to and applied in Li should not also apply to the decision-making of the IMR: SZSNW at [14] per Mansfield J;
b)Li stands for the principle that a standard of reasonableness generally applies to decisions made under the Migration Act, but is not confined to discretionary decisions, as when one considers the observations in Li at [26]-[30] per French CJ they are of more general application and some illustrations referred to by French CJ do not relate to discretionary judgments: SZSNW at [15] per Mansfield J;
c)difficulties arise in challenging an IPA within the particular rubric of legal unreasonableness as espoused in Li and Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50: SZSNW at [81] per Buchanan J;
d)if the Minister were to decide not to lift the bar in reliance upon an IPA that decision would be unreasonable in the sense that it can be concluded that the Parliament cannot have intended the power in s.46A of the Migration Act to be exercised in such circumstances: SZSNW at [108] per Perram J; and
e)at first blush, there is no statutory discretion to which the reasoning in Li appears able readily to attach to a case involving an IPA (in SZSNW this was an IMR), however, a close reading of Plaintiff M61 shows that the declaratory relief granted in such cases pertains to the Minister’s future discretion to lift the bar under s.46A of the Migration Act, thus the discretionary power required by Li is supplied by that provision and the declaration is to be framed accordingly: SZSNW at [109] per Perram J.
In SZSNW at [16] per Mansfield J and in Li at [30] per French CJ it was found to be unnecessary to explore the boundaries of rationality and logicality and reasonableness and determine if these concepts differ in principle. While the applicant contended that the grounds of review were couched in terms of unreasonableness, use of the language “arbitrary” and “capricious” also compels the Court to consider whether the applicant is basing his argument on the illogicality and irrationality of the findings made by the Assessor, and as noted in SZMDS at [128]-[130] per Crennan and Bell JJ where an applicant asserts that factual findings of a decision-maker are “legally unreasonable” the issue is better characterised as whether the decision is illogical or irrational.
When considering if the Tribunal acted illogically the following principles must be borne in mind:
a)to recognize irrationality or illogicality in the Tribunal Decision, more must be shown than simply the fact that reasonable minds may differ on the conclusion reached: SZMDS at [131] per Crennan and Bell JJ;
b)the Tribunal Decision may be illogical or irrational if only one conclusion was open on the evidence, and the Tribunal did not come to that conclusion, or if the there is no logical connection between the evidence and the inferences or conclusions drawn by the Tribunal: SZMDS at [135] per Crennan and Bell JJ;
c)the illogicality must be shown to have affected the Tribunal Decision, such that the error is material to the Tribunal Decision: SZOOR at [85] per Rares J; Yusuf at [82] per McHugh, Gummow and Hayne JJ.
The essence of the error that is legal unreasonableness was described in Li at [76] per Hayne, Kiefel and Bell JJ where it was stated that:
‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.’
When determining if the Tribunal has acted unreasonably, the Court must give close attention to the scope and purpose of the statutory functions conferred upon the Tribunal: Li at [74] per Hayne, Kiefel and Bell JJ; Ministerfor Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 at [9] per Allsop CJ. The following guidance was provided by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Eden [2013] FCAFC 28; (2016) 240 FCR 158 (“Eden”) at [65] per Allsop CJ, Griffiths and Wigney JJ:
…consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
Particular (a)
Particular (a) is as follows:
The Assessor unreasonably found that the applicant had not converted to Christianity because of statements up until 5 December 2011 that his religion was Shia because the Assessor unreasonably failed to accept the explanation for the applicant stating that his religion was Shia:
(i) at his unauthorised entry interview on 30 March 2011, being that he was told that he was obliged to record as his religion the religion recorded in his birth certificate and the religion with which he is identified because of his family upbringing; and
(ii) at his DIAC Protection Obligations Determination (POD) interview on 24 April 2011 being because he was uncomfortable with the interpreter who was an Afghani who, during a break in the interview, said he was going back to Mashhad in Iran on a pilgrimage and the applicant was consequently scared that the was a spy for the Iranian government and was scared that revealing his Christianity would result in that being conveyed to that government and he feared a breach of confidentiality, including because he believed a Serco officer had previously breached his security and he waited outside after the interview to speak to the DIAC officer about his Christian beliefs, but was unable to do so;
Applicant’s submissions
It was put in support of ground 1(a) that the Assessor concluded that the applicant had not converted to Christianity based on adverse credibility findings, which were based upon inconsistencies between statements made at different times as to his religion and that the conclusion was arrived at arbitrarily as:
a)the Assessor failed to provide any explanation for failing to accord any weight to, or accept, the explanation for the applicant stating that his religion was Shia, those explanations being:
i)that at his unauthorised entry interview on 30 March 2011 where the applicant was told that he was obliged to record as his religion the religion recorded on his birth certificate and the religion with which he identified with because of his family upbringing;
ii)at the POD interview on 24 April 2011 the applicant was uncomfortable with the interpreter who was an Afghani and during a break in the interview, said he was going back to Mashhad in Iran on a pilgrimage and the applicant was consequently scared that the interpreter was a spy for the Iranian government and was scared that revealing his Christianity would result in that being conveyed to that government; and
iii)he feared a breach of confidentiality, including because he believed a Serco officer had previously breached his security; and he waited outside after the interview to speak to a Department officer about his Christian beliefs, but was unable to do so;
b)whilst what was said by the applicant in earlier interviews was inconsistent with him being a Christian, including his describing himself as of the Shia religion, where the error has occurred in the reasoning process of the Assessor is to not take into account at all the explanation which he gave for those inconsistencies;
c)it is one thing to conclude the applicant’s veracity based on a lack of consistency, but the Assessor was not entitled to reach that conclusion by disregarding facts which would provide an explanation for that inconsistency, and to completely disregard them;
d)the Assessor gives no weight to the explanation at [a](i) above and does not explain why it should be accorded no weight, thus to find that the applicant is a witness who cannot be believed on that topic because of the inconsistency the Assessor has to have a reason as to why that explanation ought to be rejected however in this case the Assessor does not descend to that process;
e)similarly, with the interview at [a](ii)-(iii) above the applicant explained why it was that he failed to reveal his Christianity, in the circumstances where he has recently arrived in the country from a regime where one can’t be certain as to how officials are going to deal with you, and the explanation for why he failed to reveal his Christianity at the time was reasonable in those circumstances; and
f)there is reference to the applicant waiting outside after the POD interview in the Prior IPA but it does not appear in the IPA which goes further to the point that an explanation was provided but was not taken into account.
Minister’s submissions
The Minister referred to the information before the Assessor, and acknowledged by the Assessor, in relation to the assertions made by the applicant in respect of his religion including:
a)the applicant’s unauthorised entry interview stated that that the applicant had identified in that interview that his religion was ‘Islam Shia’: CB 337 at [23];
b)the POD, dated 22 April 2011, stated that the applicant’s religion was Muslim Shia: CB 336 at [21];
c)the applicant had stated in submissions dated 17 September 2011 that “during his previous interviews he had extra things to say but was too scared to say them”: CB 345 at [49] and in submissions dated 13 October 2011 it was stated, “the applicant instructs that during his previous interviews he had ‘extra things’ to say but was too scared to say them. He instructs that these ‘extra things’ involved his religion and his conversion thereof”: CB 349;
d)in submissions dated 17 September 2012 it was stated ‘our client maintains the genuineness of his conversion, has given reasons for same based on his experiences in Iran firstly, and secondly on the freedom allowing him to finalise his conversion in Australia. Any early reluctance to discuss such matters is not unusual given that our client has grown up in an environment which is intolerant and barbaric towards religious freedom’: CB 392; and
e)the applicant advised at the hearing on 21 September 2012 that he had put his religion as Shia because he had been told that it had to be the same as what was on his birth certificate and that in the interview ‘he told them but they were not interpreted properly’: CB 341 at [36] and that in the first interview his interpreter was Afghan and said that he was going back to Masshad and asked if the applicant had any message so the applicant got scared and thought the interpreter was a spy for the intelligence service: CB 342 at [38].
The Minister submitted that the Assessor ultimately found that if the applicant had converted to Christianity in Iran he would have mentioned this in his written statement of claims or at an earlier interview and in reaching that finding the IPA reveals that the Assessor considered the information set out above in addition to the applicant’s further claim that he did not consider that his alleged conversion to Christianity was related to his case at the unauthorised entry interview stage: CB 439 at [82] and as it was for the Assessor to identify such material as it found relevant to the reasoning and to give it appropriate weight, and there is no error in the finding as it was clearly open on the evidence before the Assessors: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ at [46] per per French, Sackville and Hely JJ (“Applicant WAEE”).
At hearing the Minister emphasised to the Court that the Assessor discussed at some length the applicant’s evidence in the context of putting various issues to him and then asking him what his responses were: CB 336-346 at [20]-[52] and the Court should read those paragraphs closely in conjunction with the findings of the assessor which then commence CB 438 at [79] of the IPA.
Consideration – particular (a)
The Assessor was not required to accept uncritically any or all claims by the applicant: Minister for Immigration & Ethnic Affairs v Guo [1997] FCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567, CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 FCR at 451 per Beaumont CJ, and the Tribunal was entitled to accept, reject, or give such weight to the evidence before it as it thought appropriate in all of the circumstances, and matters of weight, are, generally speaking, for the Tribunal to determine: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J; Wu Shan Liang CLR at 272 and 281-282 per Bennan CJ, Toohey, McHugh and Gummow JJ. Further, the Assessor was not bound to refer to every item of material relied upon by the Applicant: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [65] per McHugh J; Applicant WAEE at [46] per French, Sackville and Hely JJ, and a failure to take into account a particular piece of evidence does not necessarily give rise to error: Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed). Moreover, as the Full Court of the Federal Court observed, in Applicant WAEE at [47] per French, Sackville and Hely JJ, an inference that the Assessor has failed to consider an issue may be drawn from a failure to expressly deal with that issue in the IPA, but is not an inference readily to be drawn where the reasons are otherwise comprehensive and the issue at least identified at some point. The Court notes that the IPA at CB 333-444 is 112 pages long.
In this case, the Assessor dealt with the issue of the applicant’s conversion to Christianity and referred to the relevant evidence. The Assessor also identified the material it found relevant, and gave that material appropriate weight. In the circumstances, all the applicant seeks this Court to do is in fact revisit the Assessor’s fact-finding in the IPA, which is merits review, which is not the function of this Court: Wu Shan Liang CLR at 272 per Bennan CJ, Toohey, McHugh and Gummow JJ. Particular (a) does not establish error in the IPA.
Particular (b)
Particular (b) reads as follows:
The Assessor unreasonably concluded that the applicant, in a conversation with Daniel Lea on 19 May 2011, sought to convert to Christianity rather than sought to attend worship as a converted Christian because of a misinterpretation of the conversation between the applicant and Daniel Lee by an interpreter [name deleted] who required an electronic dictionary to assist her with translations into English;
Applicant’s submissions
As already referred to above, the applicant largely relied upon the Applicant’s Affidavit at [17]-[26] in establishing this ground, and arguably the applicant was limited in taking this particular matter any further in light of the Court not reading the Applicant’s Affidavit. The written submissions asserted that the Assessor unreasonably concluded the applicant sought to convert to Christianity when meeting with Mr Lea, but rather the applicant was only seeking to attend worship as a converted Christian and there was a mistranslation between Mr Lea and the applicant by the interpreter.
While the applicant did refer to the Applicant’s Affidavit to support this ground, the written submissions also referred to [36] and [82] of the IPA and May 2011 File Note detailing what occurred at the meeting between the applicant and Mr Lea: CB 105.
Minister’s submissions
The Minister again referred to the references made by the Assessor to the materials before the Assessor in relation to this issue, including the May 2011 File Note which clearly stated that the applicant wanted to convert to Christianity: CB 339 at [26], and at the interview, the Assessor having put to the applicant his “earliest mention of Christianity” and that if he sought to convert to Christianity after arrival in Australia it may conclude he was not a Christian prior to that time: CB 342-343 at [38]-[39]. The Minister then submitted that as there is no evidence that there was a misinterpretation of the conversation by an interpreter, and the Assessor was accordingly not required to have considered any such issue now raised by the applicant, nor was it, in the absence of an interpretation, unreasonable for the Assessor to accept what was stated in the May 2011 File Note.
Consideration – particular (b)
The File Note May 2011 reads as follows: CB 105:
Client asked for the discussion to be kept private. Client asked how he can convert to Christianity. Client stated that he has always wanted to convert and that his sister and nephew, who live in the US, were also christians, I told the client that he needed to speak to Serco regarding this request I told the client I would speak to Serco for him and then they would reply to him.
Client stated that he wanted to keep this information from other clients as he feared reprisals from other Muslims. I told the client that he had our confidence and it would be kept.
It is well accepted that where the standard of interpretation is impugned, it may be that the applicant has not had an opportunity to participate in a real and meaningful hearing: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 at [45] per Flick J it was stated that a party:
… must be provided with a standard of interpretation such that he is afforded a meaningful opportunity to communicate his claims, evidence and submissions to a decision-maker and a meaningful opportunity to respond to that which a decision-maker may wish to say.
This particular plainly fails on the basis there is no evidence to establish any error in interpretation, and in particular the assertion that the interpreter was required to use an electronic dictionary. There is no statutory requirement in the Migration Act that an interpreter possess particular qualifications or not be able to resort to extrinsic aids to assist in interpretation: Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172; (2000) 106 FCR 183 at [51] per Mansfield J. It then follows that the only evidence upon which the Assessor could act was the May 2011 File Note, and that, in its terms, provides, notwithstanding its brevity, an evident and intelligible justification for the conclusion reached in the IPA: Li at [76] per Hayne, Kiefel and Bell JJ.
Particular (c)
Particular (c) of ground 1 states:
The Assessor unreasonably failed to take into account that during the interview on 21 September 2012 the applicant confirmed that he had abandoned Islam and commenced his interest in Islam on 1966 and that from 2009 (1388 by the Persian calendar) he considered himself baptised and officially converted to Christianity.
Applicant’s submissions
In the IPA at CB 340 at [32] it is stated that:
The assessor asked if he had abandoned Islam. He stated yes. The assessor asked when he abandoned Islam. He stated his interest in Christianity started in 1375 (1996) which was the time he started to abandon Islam… He confirmed he abandoned Islam whilst in Iran. The assessor asked if he took up Christianity whilst he was in Iran. He stated no… The assessor put to him that his adviser has also stated that he attended something which he said resembled a baptism where he was asked if he accepted Jesus Christ to which he answered yes... The friend had told him that you have to believe in Jesus and Christianity in your heart and the rest of it was just formality. The claimant stated he had done this in his own house as they could not do it in the church. The assessor stated that if he was saying he went through a baptism but did not convert she was finding it hard to understand. He stated he thought the assessor meant officially, he stated in 1388 officially he converted and his stepmother found all the documentation and papers in his room and that was why they wanted to kill him to get to his father's wealth.
It was submitted that all the Assessor has appeared to have done is record the facts and evidence of the applicant, but did not refer to these any further when making findings and that these were relevant considerations that should have been taken into account, were not taken into account and if they were taken into account it ought to have affected the IPA outcome.
Minister’s Submissions
The Minister submitted that in the IPA, the Assessor noted that in the interview on 21 September 2012 the applicant stated that he had abandoned Islam, his interest in Christianity started in 1375 and he officially converted in ‘1388’. Further, the Minister submitted that in submissions dated 17 September 2011 the applicant contended that he was baptised in a private ceremony whilst in Iran but was unable to prove it due to the strict laws there in relation to religion. It was further submitted that in those circumstances, and given that the applicant had failed to mention his claimed conversion to Christianity prior to December 2011, the Assessor found that the applicant had ‘not told the truth about his attendance at Christian ceremonies in Iran or that he attended something that resembled a Baptism’ and the Court should be slow to infer that the claim was entirely ignored.
Consideration – particular (c)
In considering whether the Assessor unreasonably failed to take into account the matters referred to in particular (c) the Court notes that the whilst it can infer a failure to consider a claim if the Tribunal did not expressly mention the claim in the Tribunal Decision, it must read the Tribunal Decision as a whole: In Applicant WAEE at [47] per French, Sackville and Healy JJ, the Full Court of the Federal Court observed as follows:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Assessor has referred to the relevant facts, before arriving at a conclusion with respect to the applicant’s purported baptism (and by extension therefore his official conversion to Christianity), and in those circumstances it cannot be properly inferred that the Assessor ignored the claim as to the abandonment of Islam, the commencement of entrust of Islam and baptism and official baptism, particularly when those matters are set out at CB 340 at [32] at CB 440 at [84] the Assessor made a specific finding that the applicant “has not told the truth about his attendance at Christian ceremonies in Iran or that he attended something that resembled a Baptism”. The Assessor having referred to the relevant evidence, had made a specific finding relating to that evidence about whether or not the applicant has told the truth about those claims, it cannot be said that the Assessor ignored those claims, and it cannot be inferred that the Assessor did so in any event.
In the above circumstances, particular (c) does not establish error in the IPA.
Particulars (d), (e) and (f)
Particulars (d) and (e) are as follows:
d) The Assessor unreasonably found that the applicant had not converted to Christianity because the Assessor unreasonably took into account that the applicant in his interview by the assessor did not initiate any detail about what happened on the Friday before Easter, without taking into account that it was possible to confuse whether the question was directed to events occurring during recent Easter holidays or the event of Christ's death which Easter celebrations commemorate on Good Friday;
e) The Assessor unreasonably found that the applicant had not converted to Christianity because the Assessor unreasonably took into account that the applicant did not repeat two stories that Jesus told, but, instead, referred to stories about the teachings of Jesus;
Particular (f)(ii), which is similar in nature to particulars (d) and (e) is as follows:
The Assessor unreasonably found that the applicant had not converted to Christianity because the Assessor unreasonably:
(ii) accorded no weight to the applicant recounting things which Jesus said when asked to recount stories Jesus had told;
Applicant’s Submissions
The applicant submitted that:
a)the Assessor unreasonably, in the sense of arbitrarily or capriciously, found that the applicant had not converted to Christianity because the Assessor took into account that the applicant in did not elicit any detail about what happened on the Friday before Easter;
b)the Assessor did not take into account that it was possible the applicant was confused whether the question was directed to events occurring during recent Easter holidays or the event of Christ's death which Easter celebrations commemorate;
c)the Assessor unreasonably found that the applicant had not converted to Christianity because the Assessor arbitrarily or capriciously took into account that the applicant did not repeat two stories that Jesus told, but, instead, referred to stories about the teachings of Jesus when it was obvious that with the limitations of the “interrogations process” through an interpreter, the distinction between a story and a teaching is too subtle to be drawn;
d)the Assessor sought to test the applicant on his knowledge of Christianity, and went in two directions:
i)first, the Assessor asked him about what happened on the Friday before Easter, and expected him to say that that was the day that Christ died, but the applicant says he was confused about that and he was not sure whether the inquirer was talking about the previous Friday before Easter, being the year before the interview took place, or whether he was talking about what the event is which is commemorated on the Friday before Easter; and
ii)second, a related type of question was that the interviewer then asked him to recount some stories which Jesus had told and criticised him for not telling stories, but for providing sayings of Jesus, and that is too technical a distinction and one that deluded the applicant as to what he was being asked;
e)the questions put are not that simple a concept where a person who is culturally and linguistically in a different place from the interviewer, and thus it is unsurprising that the applicant was confused and did not provide a satisfactory answer to the interviewer, and therefore it ought not to have been the basis upon which to reject the credibility of the applicant, reach a conclusion that he had not converted to Christianity, or reject the application; and
f)given how the Assessor dealt with the matter, it was unsurprising that the applicant was confused.
Minister’s submissions
The Minister submitted that:
a)there is no suggestion on the face of the record that the Assessor was referring to the events of the recent Easter holidays given that it was some five months after that period, nor that the applicant was confused by the questioning;
b)the applicant has not provided any evidence to support the contention that his inability to adequately answer the question put to him was as a result of confusion despite the applicant having the opportunity to comment on the issue at the time the question was asked as well as when it was put to the applicant that “if he had genuinely converted he may be able to tell two stories Jesus told and what happened on the Friday before Easter Sunday”;
c)given that the applicant’s evidence and ability to recount stories about Jesus were discussed in the IPA it should not be inferred that the evidence was not considered, and furthermore, it was for the IPA to identify such material it found relevant to its reasoning and to give it appropriate weight; and
d)the Assessor has put in the IPA the discussion that took place between the applicant and the Assessor and when one considers the content of that discussion these grounds cannot be sustained.
Consideration – particulars (d), (e) and (f)(ii)
At CB 341 at [35] the Assessor said as follows:
The assessor asked the claimant about Easter. He stated it was one of the biggest events for Christians and was one of the first big things that Jesus did. He stated Jesus promised that after he died he would come back after three days and go to the realm. The assessor asked what happened the Friday before Easter. He stated he did know but not at the moment. The assessor put to him that Christ died on that day. He agreed. The assessor asked the claimant to tell two stories that Jesus told. He stated in one of his speeches, Jesus said well is it those who are humble and those who are poor because they are the owners of the earth. He also stated when Jesus was on the cross he asked God to forgive those who were involved in killing him because they were not aware of what they were doing. He also stated those who were being persecuted because of Jesus should not have problems because the kingdom of the worlds belonged to them. The assessor put to the claimant that she wanted to hear stories Jesus told and not just anything that Jesus said. He stated he could tell all the things he had read. He also stated there were stories, for example when he wanted to describe how his words would grow in a believer's heart he symbolised it as a farmer who would plant seeds on stone or in good soil. He stated he could not remember anything else at the moment because he was stressed.
At CB 343 at [39] the Assessor indicates that if the applicant “had genuinely converted he may be able to tell two stories Jesus told and what happened on the Friday before Easter Sunday”.
At CB 439 at [82] the Assessor found that the applicant “did not provide consistent testimony in relation to his religion and that “when… asked… questions about his Christianity, he was unable to initiate any detail about the Friday before Easter and he was unable to repeat two stories that Jesus told”.
It is perhaps tenable, as the applicant claimed, that he was unable to recall what happened on the Friday before Easter because he was under stress, but the Court notes that he agreed with the Assessor that this was the day on which Jesus died when the Assessor put that to him. It might regarded as surprising that someone who had converted to Christianity was not able to immediately say wat happened on the Friday before Easter, but, as indicated above, the Court is prepared to accept that under the stress of the Assessor’s interview that that matter might have temporarily been forgotten by the applicant.
The Court then turns to the issue of whether or not it was unreasonable to conclude that the applicant was unable to repeat two stories that Jesus told.
The Court is troubled by what appears at CB 341 at [35] where the Assessor purports to draw a distinction between wanting to hear stories that Jesus told and not just anything that Jesus said. That distinction is one which is, quite literally, apt to be lost in translation. The applicant did not have English as first language, or possibly at all, he had to use an interpreter to communicate with the Tribunal, and to draw a distinction between stories that Jesus told and what Jesus had merely said is, with respect, both mystifying and pedantic. The object here would seemingly have been to give the applicant an opportunity to demonstrate his knowledge of the life of Jesus, or some aspect or aspects of it, which he did, only to have his credibility in issue because he was “unable to repeat two stories that Jesus told”, with the Assessor distinguishing between “stories” and things that Jesus “just said”. It must also be remembered that the applicant is a recent, and seemingly non-English speaking, convert, and not a seminarian able to explain the importance of the matters about which he was telling the Assessor.
The Court notes that it is also not correct to describe what the applicant said as not being a story. Relevantly, a “story” is:
Piece of narrative, tale, of any length told or printed in prose or verse printed in actual or fictitious events, legend, myth, anecdote, novel, romance…: Narrative or descriptive item of news;
The Concise Oxford Dictionary of Current English, 6th Edition (Oxford: Oxford University Press, 1976) page 1136.
Plainly what the applicant told the Assessor meets the literal definition of a story.
In the King James Version of the Bible the phrase to which the applicant was evidently referring is in Matthew 5:5 and is “Blessed are the meek, for they will inherit the earth”. In the Greek literature of the time of Jesus “meek” most often meant gentle or soft, or could be more adequately interpreted as powerless: J Nolland, The Gospel of Matthew: a commentary on the Greek Text (William B Eerdmans Publishing , 2005), page 201. Notably, the applicant used the word “gentle” in his description of the passage from Matthew 5:5. Notably also, the applicant had said that, as it is recounted in the IPA “he truly believed in Christianity and every night he read some part of the Bible which was called Matthew”: CB 340-341 at [33]. The Assessor has not overtly linked the applicant’s study and his subsequent recitation of the passage from Matthew 5:5. The Assessor dismissed the applicant’s lay description of Matthew 5:5, which the applicant had also said was one of Jesus’s “speeches”: CB 341 at [35] under the rubric of “just anything that Jesus said”: CB 341 at [35].
Matthew 5:5 appears in chapters 5-7 of the King James Version of the Bible. Those chapters are commonly known as The Sermon on the Mount. The Sermon on the Mount is not “just anything Jesus said”, and has rather been described as follows:
a)“[t]hrough Christian history the Sermon on the Mount has been regarded as the quintessence of Jesus’ teaching: J Bowden (ed), Encyclopedia of Christianity (New York: Oxford University Press, 2005), p.385; and
b)[w]ith the possible exception of John 3:16, no Biblical text is more widely known or widely quoted than the Sermon on the Mount. Who has not heard the words, “Blessed are the meek, for they shall inherit the earth,” … Indeed a strong defense could be made for the thesis that phrases like these reflect the essence of Christian faith and that the Sermon on the Mount is the locus classicus of the teachings of Jesus”: CG Vaught, The Sermon on the Mount. A Theological Interpretation (Albany: State University Press of New York, 1986), p.ix
Thus to dismiss what the applicant said as not a “story” and as “just anything that Jesus said”: CB 341 at [35], is not just wrong, but is also arbitrary, without common sense and lacking in a transparent and intelligible justification: Eden at [65] per Allsop CJ, Griffiths and Wigney JJ. There may be other justifications upon which the Assessor might have relied in relation to what the applicant said, but to dismiss it in the way that the Assessor did was plainly unreasonable. It therefore follows that particular (e) is made out, and the IPA was therefore affected by legal error. In the circumstances it is unnecessary to consider particular (f)(ii).
Particular (f) (except for (f)(ii))
Particular (f) is as follows, save for particular (f)(ii) which is addressed above:
(f) The Assessor unreasonably found that the applicant had not converted to Christianity because the Assessor unreasonably:
(i) concluded that the applicant had not attended Church since he had been released from detention four months before 4 October 2012 without taking into account that he was working in a Persian restaurant which was very busy on Fridays, Saturdays and Sundays and if he did not work on those days he would not have a job, so that prevented him from attending religious services, but that he studied his Farsi and English Bibles and was in contact with a Christian family;
…
(iii) accorded no weight to the memorandum from Lorraine and David Shaw dated 10 October 2011 advising that the applicant attended Bible studies with them on a weekly basis on a Wednesday night from May 2011, confirming that he also attended Bible studies on Friday with two Seventh Day Adventist pastors, requested he be allowed and attended Livingstone Seventh Day Adventist church on Saturday for worship and their belief that the studied with a literature evangelist from the Seventh Day Adventist church in Darwin;
(iv) accorded no weight to the memorandum from the Pastor of the Seventh-day Adventist Church of the applicant's participation in Bible studies and conversion to Christianity dated 18 October 2011;
(v) accorded no weight to the Certificate of Church attendance from the Casuarina Baptist Church dated 20 October 2011, and the Baptismal Certificate dated 23 October 2011;
(vi) concluded that the applicant had not difficulty in communicating through interpreters because he said that he understood the interpreters, without taking into account that he said that the interpreters had difficulty understanding him, and that he had not been informed that he had an option of changing interpreters.
Applicant’s submissions
The applicant’s written submissions did no more than copy verbatim the particulars and provide reference to the paragraph of the IPA where it appears the claim or evidence is referred to. The applicant explained at the hearing in oral submissions that the issue of whether or not the applicant converted to Christianity is a multifaceted factual conclusion to reach, and the Assessor reaches that conclusion in this case on the basis of a range of facts for which there are range of criticisms of the way in which that logical process was undertaken, which are sufficient to render it open to being overturned:
a)first, the conclusion that the applicant had not attended church since he had been released from detention was made without taking into account the explanation and undertaking a process of reasoning to demonstrate why that explanation was rejected, instead all that the Assessor did was to blandly take into account the fact without explanation for why it would or would not reach the conclusion that it demonstrates a failure to convert to Christianity;
b)second, a failure to accord any weight to the memoranda from members of Christian churches which indicated that the applicant had converted to Christianity; and
c)third, the Assessor also failed to take into account that the applicant had advised the Assessor that there was difficulty communicating with interpreters on the basis that he had said that in the course of the interview that he was having difficulty understanding the interpreter, and he was not informed that he could change interpreters.
Minister’s submissions
The Minister submits that the evidence given by the applicant in reference to his being unable to attend church was referenced in the IPA and therefore it should not be inferred that the issue was not considered. And furthermore it was not contested that the applicant did not attend church since his release as the applicant expressly admitted to such: CB 341 at [34]. The Minister thereafter stated that:
a)each of those documents listed in particular (f) were referred to by the Assessor and it cannot be said that the Assessor failed to accord the documents any weight in circumstances where it made reference to, and effectively accepted, the content of the documents;
b)whilst the Assessor accepted that the applicant had, since May 2011 attended Bible study classes and church and was baptised, this cannot be divorced from the Assessor finding that this was done for the purpose of the claim and disregarded the conduct under s.91R(3) of the Migration Act and correctly recognised that, although the Christian activities in Australia were to be disregarded under s.91R(3) of the Migration Act, for the purposes of determining the applicant’s refugee claims, such activities had to be brought into account when determining the applicant’s complementary protection claims;
c)in the interview on 21 September 2012 the applicant stated that his previous evidence had not been interpreted properly, specifically that “he understood the interpreter but apparently the interpreter did not understand him…the interpreter was Afghan and spoke Dari and no one informed him he could have another interpreter…he stated Dari and Farsi were close to each other but the interpreter had not understood the [applicant]”, and whilst no formal finding appears to have been made in relation to the applicant’s ability to communicate through interpreters the Assessor can be seen to have implicitly made a finding in that regard in the finding of a higher level of generality that the applicant did not mention Christianity in the Department interviews prior to December 2011;
d)in reaching that finding, it must be noted that the Assessor took into account that the applicant had stated in the relevant interviews that he understood the interpreters as well as the submission that although he could understand the interpreter it was clear that the interpreter had misunderstood him thus such finding was open on the available evidence.
Consideration – particular (f) (except for (f)(ii))
The assessor having made reference to each of the documents referred to by the applicant the Court does not consider that it can be said that the Assessor did not have regard to those documents in the IPA: Applicant WAEE at [46]-[47] per French, Sackville and Healy JJ. It follows that to the extent that the applicant complains about the weight attached or not attached to particular documents and issues, weight was a matter for the Assessor and is not a matter for the Court: Lee at [27] per French J; Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
To the extent that the applicant complains of difficulties in relation to understanding the interpreter this plainly fails on the basis there is no evidence to establish any error in interpretation, or any difficulty with the interpreter, there being no transcript of the hearing before the Assessor before the Court.
Particular (f)(except for (f)(ii)) does not therefore establish error in the IPA.
Ground 2
Ground 2 is as follows:
(2) The Second Respondent's decision on 4 October 2012 that the applicant is not a person in respect to whom, as a necessary and foreseeable consequence of him being removed from Australia to Iran, there is a real risk that he will suffer significant harm was not reasonable.
The particulars of ground 2 are as follows:
(a) The Assessor unreasonably failed to consider whether the applicant may suffer significant harm as a consequence of person seeking his father's wealth:
(i) for the erroneous reason that the Assessor considered that a dispute over the father's wealth and who may inherit it was a private issue; and/or
(ii) The Assessor erroneously considered whether the applicant may suffer serious harm, rather than significant harm.
(b) The Assessor unreasonably failed to consider whether threats of the applicant’s stepmother and her family to kill him in relation to the inheritance dispute were sufficient to evidence a real risk of significant harm;
(c) The Assessor unreasonably failed to consider whether the making of threats of the applicant's stepmother and her family to kill him constituted degrading treatment or punishment comprising significant harm for the purposes of section 36(2)(aa) of the Migration Act 1958.
Applicant’s submissions
The applicant’s written submissions mostly repeated the particulars, though noted additionally:
a)the Assessor further, and illogically, based the conclusion on a finding that it was not accepted that any serious harm had befallen the applicant in the past;
b)the Assessor illogically failed to take into account as evidence of a real risk of significant harm that the applicant’s stepmother and her brothers had found pictures of Jesus and a bible in his room that provided a reason to kill him and get his father's wealth which he would otherwise inherit;
c)the Assessor unreasonably failed to consider whether there was a foreseeable risk of significant harm for the purposes of s.36(2)(aa) of the Migration Act, and instead capriciously or illogically based the conclusion on a finding that the applicant did not accept that any serious harm had befallen the applicant in the past;
d)at CB 441 at [90] of the IPA which suggests that the Assessor had misunderstood the source of the harm the applicant was claiming to fear, and the Assessor dismissed the claim regarding the dispute over who will inherit the applicant’s father’s wealth as a “private issue” which was not the question the Assessor was to ask itself as it does not really help to answer the real question of whether there is a real risk the applicant will face significant harm by placing undue focus on what the source of that harm might be, whether public or private;
e)the threat to the applicant for the purpose of complementary protection was a threat that he will be killed by his in-laws for their financial advantage and the Assessor dismissed the claim partially on the basis that nothing has happened to him in the past and therefore there was no basis for including it in the future;
f)the issue for the Assessor was whether the applicant was likely to suffer serious harm, and it did not matter what the source of the harm was, public or private, as this does not affect the foreseeability of the harm, and what the Assessor was called upon to conclude is whether or not the harm is significant rather than serious;
g)the past in this case does not necessarily provide any insight as to what is going to happen in the future as the fact that the applicant has not been killed so far is blatantly obvious, but that does not necessarily mean that that risk is not something which is foreseeable for the future;
h)the evidence that the stepmother and the brothers had found pictures of Jesus and the Bible in the applicant’s room goes to providing the reasons for them to find an excuse to kill him and to therefore obtain the wealth of the father and that evidence was not taken into account at all by the Assessor; and
i)the conclusion that credibility is to be based on the applicant not mentioning Christianity at the earlier interviews arises because of a failure to take into account the explanations offered by the applicant and the Assessor cannot logically use this as a “starting point for concluding” that the applicant is not an impressive witness and on that basis alone discounting everything claimed to have ever happened in Iran which essentially underpins the conclusions that the Assessor makes in relation to complementary protection.
Minister’s submissions
The Minister submits that:
a)there is no error in relation to the Assessor accepting that there may be some dispute over the applicant’s father’s wealth and finding that that was a private issue given that the Assessor had already rejected the claim that the applicant’s step mother and brothers had found a picture of Jesus on his wall and a Bible and threatened to kill him as a result;
b)whilst the Assessor did refer to serious harm in the IPA at CB 443 at [100] it cannot be inferred that the Assessor did not consider the specific integers of significant harm as it clearly recounted the integers of s.36(2A) of the Migration Act and while the Assessor is using the expression from the definition in s.91R of the Migration Act it is clear that the Assessor is doing so for the purposes of assessing the test with respect to complementary protection;
c)the applicant’s claim in relation to the dispute was clearly that the applicant had suffered harm in the past as a result of his Christianity being used against him in relation to the dispute and the finding in relation to the complementary protection criteria was clearly based upon the Assessor’s previous findings and consideration of the applicant’s inconsistent evidence in relation to that claim;
d)furthermore, the claim that the Assessor failed to consider that the threats constituted degrading treatment or punishment cannot be maintained given that the claim could not survive the earlier finding of fact whereby the Assessor did not accept that the applicant’s step mother’s brothers stated that they were entitled to kill the applicant and there is no jurisdictional error in referring to a previous finding of fact under the complementary protection provisions where:
i)those claims could not survive earlier findings of fact; and
ii)the criterion is addressed by reference to the language of the statute and its particular findings of fact which led to the conclusion that the applicant’s claims were not accepted; and
e)the Assessor has already made a finding of fact at CB440 at [84] that it did not accept that the stepmother found a picture of Jesus on the wall, or a Bible in, the applicant’s room or his apartment, or that the stepmother’s brothers said that they were going to kill the applicant, going on to note one of the reasons for reaching that conclusion is that there is an inconsistency with respect to the applicant as to whether or not he had been continuing to speak to his stepmother since he had arrived in Australia. This was inconsistent with someone who was of the view that the stepmother and her brothers were of a mind to kill the applicant. Because this aspect of the complementary protection claim is based on the applicant saying he is seeking complementary protection because of a fear that if he returns to Iran he will be killed because of the issues with his stepmother and her brothers, the Assessor has therefore found that there was not any previous threat to the applicant’s safety, and as a result of that conclusion the further conclusion that it is not foreseeable that there would be any significant harm in the future was open to the Assessor.
Consideration – ground 2
Ground 2 related to the, albeit brief, consideration of the complementary protection provision of s.36(2)(aa) of the Migration Act contained in the IPA at CB 442-443 at [96]-[101].
The Assessor made factual findings in relation to the circumstances of the applicant, his step-mother and her brothers, and what occurred on the visit to India. The Assessor use those findings to draw conclusions as to the likelihood of future conduct and future harm from past conduct. That is an acceptable and not unusual approach to determining whether there is a likelihood of future harm: in MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [94] per Keane CJ, Perram and Yates JJ, the Full Court of the Federal Court noted that the real chance test “requires a decision-maker to engage in a degree of speculation about future events.” Otherwise, the nature of the findings made by the Assessor were of such breadth and generality that the claims now made in ground 2 cannot be made out.
Ground 2 does not therefore establish error in the IPA.
Conclusions and relief
The Court has concluded that:
a)grounds 1 and 2 are not made out, save in respect of particular (e) of ground 1;
b)particular (e) of ground 1 is made out, and establishes error in the IPA.
There will be appropriate declaratory relief and an order restraining the Minister from relying on the IPA.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 3 October 2019
0
48
4