BAB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-04-14|Before: Besanko J

The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an appeal from orders made by the Federal Circuit Court of Australia on 26 June 2020. On that day, the Federal Circuit Court made an order dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 13 November 2018 and an order for costs (BAB19 v Minister for Immigration & Anor [2020] FCCA 1710). The appellant contends that the Federal Circuit Court erred in not finding that the Authority had made a jurisdictional error and, therefore, in not issuing constitutional writs directed to the Authority and its decision. 2 The appellant is a national of Iran. He arrived in Australia as an unauthorised maritime arrival in 2013. On 21 September 2017, he applied for a Safe Haven Enterprise (Class XE) visa (Protection visa). His claims for protection were set out in a statutory declaration that accompanied his application. On 8 June 2018, the appellant was interviewed by a delegate of the Minister and, on 20 July 2018, the appellant's representative provided a submission containing, among other documents, written submissions, statements from the appellant, his sisters and partner, country information and other documents. On 28 August 2018, the delegate refused the appellant's application for a Protection visa. On 31 August 2018, the delegate's decision was referred to the Authority for review. On 23 September 2018, the appellant's representative provided further written submissions, a further statement from the appellant and other documents in support of the submission. As I have said, on 13 November 2018, the Authority decided to affirm the delegate's decision not to grant a Protection visa to the appellant.

The Grounds of Appeal 3 There are two grounds of appeal in the Notice of appeal to this Court. There appears to be an error in each ground in that there is reference to non-existent grounds of appeal, but the nature of the grounds were made clear in the appellant's submissions. The grounds of appeal are as follows: 1. The Federal Circuit Court was wrong not to accept that the decision of the IAA is affected by jurisdictional error for the reasons set out in ground 3 below. That is because the IAA failed to assess important evidence that the appellant had not engaged in more anti-regime activity in Iran was his fear of punishment therefor. 2. The Federal Circuit Court was wrong not to accept that the decision of the IAA is affected by jurisdictional error for the reasons set out in ground 4 below. That is because the IAA failed to assess an important element of the appellant's case, being there was a difference between adverse attention or punishment on account of a tattoo of a Christian symbol per se or simpliciter, and the imputation of apostasy by dint of having such a tattoo. The IAA had accepted that actual or imputed apostasy may result in persecution (Reasons [25.2]), and completely failed to evaluate the claim on its proper import.

The Decision of the Authority 4 The context for Ground 1 of the appeal is the appellant's claim for protection on the basis that he has an adverse political profile with the authorities in Iran. The appellant claimed that that adverse political profile arose because of his attendance at protests in Ahvaz in 2009, problems while the appellant was undertaking his military service, the appellant's family background and religious beliefs in Iran and in Australia. The Authority dealt with each of those matters in its reasons from paragraphs 33 to 41 and concluded that the chances of the appellant facing harm in Iran for reasons of his actual or imputed political opinion were remote whether the appellant's claims were considered individually and cumulatively. 5 The particular matter of his participation in protests in 2009 was dealt with in the Authority's reasons at [38]-[39]. The Authority said: 38. In light of the country information before me, I accept that the applicant participated in the large scale 2009 demonstrations, also known as the Green Movement, that he participated by marching and chanting slogans and was arrested and detained for two days following which he was released and told not to partake in such activities. The information indicates that thousands of Green Movement demonstrators rallied on the streets of the major cities chanting slogans, and that many were detained, beaten and harassed by security forces. However, the information before me indicates that while high profile activists and members of the Green Movement continue to face monitoring and harassment, most lower profile activists who were arrested in the 2009 and 2010 protests were subsequently released and are able to go about their daily lives. The applicant's evidence does not indicate that the he remained involved in any further demonstrations or political activities or that apart from being detained for two days and given a warning, he faced any further repercussions. I note that the applicant was at the time working at the National Petroleum company, which he continued to do so until 2012. 39. The applicant's representative in providing two newspaper articles to the delegate submits that there is an increase in anti-regime protests in Iran and that the applicant has every right to participate in future protests, which will place him at risk of arrest and serious harm. While I accept that the applicant was told not to partake in further protests in Iran, he does not claim to have been involved in any political activity prior to 2009 protests, or have partaken in any political activities in Australia. Given the applicant's very limited participation in protests in 2009 and lack of any further engagement in political activities in Iran and in Australia, I am not satisfied that he has any intention or genuine desire to partake in any political activity in Iran beyond protests akin to the 2009 protests or to express his dissatisfaction with the regime more forcefully than he has in the past. While I acknowledge the applicant's past arrest, given his lack of political profile, I find the chances of the applicant suffering any harm for reasons of partaking in this kind of mass protest to be no more than remote. (Footnotes omitted.) 6 The context for Ground 2 of the appeal is the appellant's claim that he faced persecution for reasons of his religion. The Authority dealt with this claim at paragraphs 18 to 32 of its reasons and concluded that it was not satisfied that the appellant came to the attention of the authorities in Iran for reasons of his actual or imputed conversion to Christianity or non-practice and rejection of Islam. The Authority accepted that the appellant had engaged in some Christian activities in Australia, including sharing of Facebook posts, but nevertheless found that the chances of the appellant facing any harm from the authorities or any other person for reasons of religion in the reasonably foreseeable future were remote. The Authority said (at [32]): 32. In light of my reasons set out above, I am not satisfied that the applicant came to the attention of the authorities for reasons of his actual or imputed conversion to Christianity or non-practise and rejection of Islam in Iran. While I accept that the applicant has engaged in some Christian activities in Australia, including sharing of Facebook posts which I will deal with below, I find the chances of him facing any harm from the authorities or any other person for reasons of religion in the reasonably foreseeable future to be remote. 7 The Authority dealt with the topic of tattoos separately in paragraphs 47 to 49 of its reasons. The Authority's findings were as follows: 47. The applicant claims, and I accept, that he has a tattoo of a cross on his upper arm. The delegate sighted the tattoo at the interview and was also provided with a photo. The applicant claims that he got the tattoo in Iran because it is symbol of Christianity and he liked it. When he was asked given his interactions with the Harasat and whether he was concerned about the Harasat seeing the tattoo, the applicant stated that the tattoo is sort of hidden and even though he was detained for hours and interrogated, Harasat did not see his tattoo. The applicant's representative submits that whilst tattoos are not controversial to the regime and one may attract lower level harassment or higher level abuse from some authority figures, the applicant's tattoo of a cross will impute the applicant with apostasy and conversion to Christianity. It is also submitted that the applicant returning as an involuntary returnee, will be subjected to search and interrogation and his tattoo will be revealed. 48. On account of the applicant's evidence, I accept that he got the tattoo in Iran, during the period that he was exploring Christianity and that he did not come to the attention of the authorities for this reason. DFAT reports that tattoos are increasingly common in Iran, particularly amongst youth, and that it is unware of any recent reports of people being targeted by security forces solely for having tattoos. However it is possible that people with visible tattoos may experience low-level harassment and it is likely for any penalties imposed to be similar to those imposed for dress or hairstyles that are deemed improper, such as a warning or a fine. Further, DFAT also reports that it is not aware of any reports of harassment or detention specifically for displaying tattoos with Christian symbols or words. 49. While I accept that the applicant may come to the attention of the authorities for reasons of his tattoo, given the country information before me, I find that any repercussions for him would be low level harassment, a warning or possibly a fine. I find that this does not amount to serious harm within the meaning of s.5J of the Act. I do not accept there is a real chance that he will be imputed with apostasy or conversion to Christianity or experience any harm beyond this. (Footnotes omitted.)

The Decision of the Federal Circuit Court 8 There were two grounds of judicial review before the Federal Circuit Court. 9 The first ground of review was in the following terms: The decision of the IAA is affected by legal unreasonableness because its analysis at Reasons [38]-[39] altogether fails to deal with the accepted possibility that the applicant may participate in further political protests in Iran and might again be arrested and detained as a result, or alternatively, the IAA failed to consider this claim in the manner in which it was advanced and according to law. 10 The primary judge said that there were two aspects to this ground of review. First, the appellant claimed that there had been a failure by the Authority to consider s 5J(3) of the Migration Act 1958 (Cth) (the Act). That subsection is set out below (at [28]). Secondly, the appellant claimed that the Authority determined the issue of whether he would partake in further political activities without engaging with important evidence submitted by the appellant to the delegate. 11 With respect to the first aspect, the primary judge set out the terms of s 5J and then referred to three authorities (Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 (SZSCA), SZVZL v Minister for Immigration and Border Protection [2018] FCA 1299; FTQ18 v Minister for Home Affairs [2019] FCA 2025). 12 The primary judge referred to the submission made by the appellant that the Authority did not engage with what was said to be critical evidence in respect of the appellant's claims about his partaking in further political protests or demonstrations. In that regard, the primary judge noted a submission sent to the Department by the appellant's representatives on 20 July 2018 and, in particular, that part of the submission which was as follows: 4. Religion and politics are the same in Iran. When was young I was stopped by religious police and harassed for wearing a T shirt with freedom on it. I had to take it off and all of my details were taken down. I ran away from military service several times because I disagreed with how I was treated and what I was being made to do. I was forced to pray and follow Islam which I also hated. I was punished with 86 lashes which made me even more angry. I was detained in 2009 during the election protests. I was beaten, abused and not fed properly. In Iran I would want to join demonstrations and to speak out against the Clerics and about the lack of human rights and freedoms in my country, but it is so dangerous because protestors and people who speak out are sent to jail and are beaten and tortured. The primary judge noted that the appellant had the burden of persuading the Court to draw an inference of a failure to deal with, or consider, a claim. 13 The appellant referred to those aspects of this statement which indicated what he wished to do and submitted that the Authority had erred in paragraphs 38 and 39 of its reasons because what the Authority had done was assess the claim by reference to the appellant's past conduct. 14 The primary judge said that it was important to understand how the claim had been developed. He noted that in support of his application for a Protection visa, the appellant completed a statutory declaration on 21 September 2017 and in that statutory declaration stated that he would protest again about the Iranian government if it was safe for him to do so and if he did, he would be in even more danger. Secondly, in a further statement submitted on 21 September 2018, the appellant stated that he did attend the 2009 protest and was detained as he had explained. He had strong views against the Iranian Islamic Regime. 15 The primary judge said that there were five reasons why the first ground of judicial review should be rejected. Those reasons were as follows: (1) The Authority did not fail to deal with the accepted possibility that the appellant may participate in further political activity. The Authority, in fact, made an express finding as to the extent of the appellant's genuine desire and intention to partake in political activity in Iran. (2) To the extent that issue was taken as to whether the Authority's finding was one that was open to it, a fair reading of the Authority's reasons indicate that the finding was open to it, particularly when regard is had to the following matters: (a) the appellant had not been involved in any political activity in Iran before 2009; (b) the appellant had not been involved in any further protests or political activity between 2009 and the time he left Iran; (c) the appellant had secure employment in Iran until his departure from Iran in 2012; and (d) the appellant had not been involved in any political activities during the period he was in Australia. (3) The Authority had directed itself to the critical issue which was the question of the reason(s) the appellant may refrain from engaging in political activities and had answered that question by concluding that it was not satisfied that the appellant had any intention or genuine desire to partake in any political activity in Iran. (4) When the development of the appellant's claims are properly understood, it is clear that they disclose that the appellant would protest again in demonstrations similar to those which he engaged in the past. Those demonstrations are mass demonstrations or mass protests. The primary judge concluded that there was nothing he could see in the history of the appellant's claims that indicated that he was going to engage in any other type of protest activity; and (5) The Authority's findings are, in fact, nuanced. This is not a case where the Authority concluded that the appellant would not engage in any further political protests, but rather, the Authority found that the appellant would not engage in a kind of political activity beyond those activities which he had already engaged. That finding addressed the way in which the claim had been articulated. (Primary Judge's reasons at [31]-[37].) 16 For these reasons, the primary judge said that he was not persuaded that the Authority failed to consider, or incorrectly applied, s 5J(3) of the Act. The primary judge was satisfied that the Authority had properly considered and engaged with the appellant's claims. 17 The second ground of judicial review was in the following terms: The IAA failed to determine a submission of substance, or determine a claim to protection, based on the imputation of an adverse profile by dint of having a tattoo of a cross (as opposed to having a tattoo simpliciter) at Reasons [47]-[49] (see AHB16 v Minister for Immigration [2018] FCA 2006). 18 The primary judge set out paragraph 32 and paragraphs 47 to 49 of the Authority's reasons. 19 He noted that the challenge to the Authority's reasons by the appellant was on two grounds. First, it was said that the Authority fell into error in failing to accept that the appellant would be imputed with Christian beliefs. It was argued that the Authority had dealt with a claim of the appellant in relation to his apostasy or his conversion to Christianity. It dealt with the appellant's claim in relation to the tattoo and whether he might be persecuted for that. What the Authority had failed to deal with was whether the appellant's tattoo of a cross would leave the Iranian authorities to believe he is apostate, or has converted to Christianity. 20 Secondly, the appellant claimed that the Authority fell into error in the way in which it dealt with the Department of Foreign Affairs and Trade (DFAT) country information reports. The Authority had relied on the 2016 DFAT Report in relation to the way in which it analysed the appellant's claims in respect of his tattoo. That was an error because the later 2018 DFAT Report replaced the 2016 DFAT Report and the later report made no reference to tattoos or the material in the 2016 DFAT Report relied on by the Authority. In other words, the appellant claimed that the Authority had relied on outdated and redundant material. 21 The primary judge rejected the claim that the Authority had failed to deal with whether the appellant's tattoo of a cross may lead to the Iranian authorities to believe he is apostate or has converted to Christianity. 22 The primary judge reviewed paragraphs 47 to 49 of the Authority's reasons and concluded that the Authority had dealt with the claim. In any event, the primary judge said that in light of the material to which he was referred and paragraph 32 of the Authority's reasons, he would not draw the inference that the Authority had failed to deal with the matter, having regard to the manner in which it dealt with the issue of the cross and what it symbolised. The primary judge concluded that the Authority had, in fact, identified the issue and considered the subject matter comprehensively. 23 The primary judge then turned to deal with the argument in relation to the Authority's reliance on the 2016 DFAT Report. He rejected that argument by reference to a number of matters. First, he noted that it is well accepted that the Authority may consider country information, that the weight to be given to different country information is a matter for the Authority itself and that the question of the accuracy of country information is one for the Authority. In that context, he referred to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [63]. Secondly, he said that he did not consider that the information in the 2018 DFAT Report was contrary to or inconsistent with the information in the 2016 DFAT Report. The 2018 DFAT Report was silent on the question of tattoos and that left the Authority in the position of not having any information before it that was specific to the claim that it was required to deal with. The primary judge considered that in that situation the Authority was entitled to go back to the most recent information that it had in dealing with the particular issue. The primary judge referred to the decision of the Full Court of this Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 and noted that, in that case, the Tribunal had failed to consider updated country information. His Honour said that in this case the Authority had considered the later country information and that could be seen from the footnotes that attached to paragraph 48 of the Authority's reasons. Having done that, it was open to the Authority to assess the competing pieces of country information to assess the accuracy of the information and decide the weight to be placed on it. 24 Finally, the primary judge noted that, on one view, what the appellant appeared to be inviting the Court to do was to construe the absence of information in the 2018 DFAT Report as a positive indication that DFAT was aware of reports of harassment or detention specifically for displaying tattoos with Christian symbols. The primary judge rejected the view that that was the only inference that could be drawn from the material. He was satisfied that it was open to the Authority "to regard the 2016 DFAT Report to decide how best to use the country information and how much weight ought to be attributed to it" (Primary Judge's reasons at [57]).

Ground 1 25 The appellant submits that he made a clearly articulated claim that in Iran, religion and politics are the same thing and that he would wish to protest against the religious authorities in that country, but that he was afraid to do so on account of the punishment meted out for such conduct. The appellant submits that this claim required assessment against s 5J(3) of the Act and that the Authority had failed to do that. He further submits that the Authority rejected his claim that he would be involved in future protest activity in Iran (other than mass protests) essentially because he had not protested much in the past. He submits that the Authority did not engage with his evidence that the reason why he had not engaged in more anti-regime activity in Iran in the past was his fear of punishment, which was a well-founded fear given his experiences during the Green Revolution, that is, the large scale demonstration in 2009. He submits that had the Authority assessed this important evidence, it might realistically have accepted his evidence about an intention to engage in future protest activity which would bring s 5J(3) into play in relation to whether the fear of persecution was the reason for his limited political activity in the past. 26 As I have said, in the Court below the appellant referred to his claim that he would want to join demonstrations and speak out against the clerics in Iran, but that it would be very dangerous to do so (at [12] above). In fact, on the appeal, the Minister provided the following additional references in the appellant's statements and submissions: (1) his involvement in the protest in Ahwaz in 2009 (Appeal Book (AB) 159, 161, 242 and 443); (2) his desire to protest again if it was safe to do so, but it is not safe (AB 162); and (3) if he was returned to Iran, he would be compelled to conceal his political and religious views because otherwise he would face serious harm and the decision-maker should not proceed on the basis that whether there was a well-founded fear of persecution was to be assessed on the basis of such modified behaviour having regard to the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395/2002) and s 5J(3) of the Act (AB 240, 301, 358 and 436-437). 27 The approach taken by the Authority means that I do not need to say a great deal about s 5J(3) and cases such as Appellant S395/2002, SZSCA and, most recently, DQU16 v Minister for Home Affairs [2021] HCA 10 (DQU16). 28 Section 5J(3) is in the following terms: (3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: (a) conflict with a characteristic that is fundamental to the person's identity or conscience; or (b) conceal an innate or immutable characteristic of the person; or (c) without limiting paragraph (a) or (b), require the person to do any of the following: (i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith; (ii) conceal his or her true race, ethnicity, nationality or country of origin; (iii) alter his or her political beliefs or conceal his or her true political beliefs; (iv) conceal a physical, psychological or intellectual disability; (v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child; (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status. 29 In DQU16, the issue before the High Court was whether the principle in Appellant S395/2002 applied to a complementary protection assessment under s 36(2)(aa). The Court held that it did not. In the course of its reasons, the Court said (at [10] and [26]): 10 … Section 5J(3) provides exceptions to what constitutes a well-founded fear of persecution. It provides that a person does not have a well-founded fear of persecution "if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country", unless the modification, among other things, relates to fundamental, innate or immutable characteristics. The qualification has the effect that s 5J(3) is not inconsistent with the principle in Appellant S395. 26 … For the reasons stated, the principle in Appellant S395 has no application to the assessment of a complementary protection claim under s 36(2)(aa). In any event, the appellants' contention misunderstands the effect of s 5J(3). The sub-section provides that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid persecution, other than modifications of the kind listed in s 5J(3)(a) to (c), which are modifications relating to characteristics protected by the Convention: that is, innate or immutable characteristics of the person, such as identity, disability, race, ethnicity, religious beliefs, sexual orientation and so on. As the Explanatory Memorandum to the Bill that introduced s 5J(3) expressly noted, the sub-section is consistent with the principle stated in Appellant S395 and its rationale. It preserves the protection that the Convention intended to secure, and ensures that the principle articulated in Appellant S395 is not "extended beyond its rationale". The principle will therefore not apply where a person may be expected to modify behaviour that is not a manifestation of a Convention characteristic. (Footnotes omitted.) 30 In essence, the appellant claims that he had modified his political and religious protest activity in the past because of a fear of serious harm, but the Authority failed to recognise that in approaching its assessment of what was likely to happen in the future. 31 In my opinion, the appellant's submission does not recognise correctly the nature of the Authority's reasoning. No issue as to the application of s 5J(3) arose. 32 The key to the Authority's reasoning is its finding of fact that the appellant did not have any intention or genuine desire to partake in any political activity in Iran beyond protests akin to the protest in 2009 or to express his dissatisfaction with the regime more forcefully than he had in the past (emphasis added). That finding of fact was open to the Authority for the reasons given by the primary judge and summarised above (at 15). The Authority's approach was justified having regard to that finding, when coupled with the Authority's further important finding that the chances of the appellant, a "lower profile activist" arrested in the course of the protest in 2009, suffering any harm for reasons of participating in a similar kind of mass protest, were no more than remote. In other words, even if the appellant did not participate in a protest like the protest in 2009 between that date and 2012 because of his experience in 2009, that did not assist the appellant's case because that kind of participation did not give rise to a chance, other than a remote one, of the appellant suffering serious harm. 33 I reject Ground 1 of the appeal.

Ground 2 34 There are two aspects to this ground. The first aspect was abandoned in the course of the appellant's oral submissions to the Court when counsel said he did not press the submissions in paragraph 8 of the appellant's written outline. That paragraph was in the following terms: 8. Further still, the IAA altogether fails to appreciate that there was a difference between adverse attention or punishment on account of a tattoo of a Christian symbol per se or simpliciter, and the imputation of apostasy by dint of having such a tattoo. The IAA had accepted that actual or imputed apostasy may result in persecution (Reasons [25.2]), and completely failed to evaluate the claim on its proper import. (Footnote omitted.) 35 This approach by the appellant was correct. The Authority clearly understood and addressed the difference between merely having a tattoo and having a tattoo with Christian symbols and words. This can be seen in the paragraphs of its reasons set out above (at [7]), particularly paragraph 48 of the Authority's reasons. 36 That leaves for consideration the so-called "error" by the Authority in relying on the 2016 DFAT Report. The precise error being alleged is not entirely clear to me. The submission appeared to be that the Authority should have inferred from the 2018 DFAT Report that the following statement in the 2016 DFAT Report was no longer valid: 3.50 DFAT is not aware of reports of harassment or detention specifically for displaying tattoos with Christian symbols or words (e.g. "Mary" or "Maryam" - see also "Westernised" Iranians and "Immoral Behaviour", below). That was said by the appellant to be the proper inference, particularly having regard to the statement in the 2018 DFAT Report that the "updated Country Information Report replaces the previous DFAT report on Iran published on 21 April 2016". 37 The submission appeared to be that, in failing to consider this difference, the Authority failed to consider important evidence in the review, being the evidence of DFAT's revision of its opinion, or the Authority failed to act on the basis of the most current material available to it. 38 I do not accept these submissions. As to the first, it is not clear what is meant by the contention that a statement in a report is "no longer valid". It might be one thing to say that there is no evidence for a statement either way, but it is another to say that the evidence is now to the contrary. As to the second submission, in light of the references to the 2018 DFAT Report in the Authority's reasons, it has not been established that the Authority failed to consider the 2018 DFAT Report or to notice the difference between the two Reports. As to the third submission, I do not consider that the Authority erred in failing to act on the most current material available to it. Again, it is not clear precisely what that means in the context of this case. The way in which the 2018 DFAT Report dealt with various subject matters was quite different from how they were dealt with in the 2016 DFAT Report and there was no statement in the 2018 DFAT Report which was inconsistent with the relevant statement in the 2016 DFAT Report. In my opinion, the Authority was entitled to rely on the statement in the 2016 DFAT Report. 39 I reject Ground 2 of the appeal.

Conclusion 40 The appeal must be dismissed. I will hear the parties as to costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.

Migration Act 1958(Cth)ss 5J, 36

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