FEDERAL COURT OF AUSTRALIA

BGZ16 v Minister for Immigration and Border Protection [2018] FCA 1685

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant is to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) to affirm the Minister's delegate's decision to refuse to grant the appellant a protection visa: BGZ16 v Minister for Immigration and Border Protection [2018] FCCA 774.

Background

2    The appellant, a citizen of Iran, arrived in Australia as an irregular maritime arrival in July 2012. He applied for a Protection (Class XA) visa in December 2012.

3    In January 2014 a delegate of the Minister refused to grant the visa.

4    The appellant sought review of that decision and in April 2016 the Tribunal affirmed the delegate's decision.

5    The appellant sought review of the Tribunal's decision from the Federal Circuit Court, which dismissed the application in March 2018. The Federal Circuit Court's decision is the subject of this appeal.

Protection claims before the Tribunal

6    The appellant claimed to have a well-founded fear of persecution for reasons of his religion.

7    The appellant was represented by a migration agent before the Tribunal, who provided detailed written submissions on his behalf both before and after the hearing.

8    The appellant had claimed in his protection visa application to be agnostic and to have rejected Islam. He claimed he had never been interested in Islam and opposed organised religion.

9    He said that he has been reprimanded by his uncle, a strict Shia Muslim, and his extended family for his views and no longer has anything to do with them.

10    In August 2009, he had obtained employment at an airport near Tehran, where it became known among his colleagues that he had rejected Islam. He said that about one year later, he chose not to fast during Ramadan. He said that someone must have observed him and reported him to Herasat (described by the Tribunal as part of the Iranian government and responsible for the enforcement of Islamic codes). He claimed that Herasat questioned him and said that if he broke the rules of Ramadan again, he would be reported to senior management. He said he refused to attend prayers during Ramadan and was then reported to management. Management informed his uncle, and shortly after the appellant was forced by his uncle to go on an Islamic pilgrimage to Karbala (Iraq).

11    The appellant claimed that in July and August 2011 he was interviewed by Herasat who informed him that he had been under surveillance and the authorities had noticed he had not been practising Islam, and he was considered an enemy of God.

12    The appellant claimed to have kept a low profile for six to eight months following this incident but that in April 2012 his uncle reported him to Herasat for not acting like a true Muslim. He left Iran for Australia in May 2012.

Tribunal's decision

13    The Tribunal essentially rejected all of the appellant's claims about his religious views.

14    The Tribunal found that the appellant was not a witness of truth and found that he fabricated all of his claims of past harm and made up his religious views.

15    In forming that view it took into account the following:

(a)    there was inconsistency in the appellant's claim to have lied about his religious views (saying he was Shia Islam) in order to have obtained employment at the airport, and his claim that he openly did not observe Islamic practices at work - such a course would immediately have put his employment in jeopardy;

(b)    the job at the airport was an excellent job and highly sought after, and it was implausible that he would jeopardise that job by speaking against Islam;

(c)    there was inconsistency in the appellant's claims that he discussed his religious views, but hid the fact that he was breaking the Ramadan fast;

(d)    the appellant was able to maintain his job at the airport despite allegedly airing his views and being absent from prayer sessions, although he was working for a government employer where people took notice of such matters;

(e)    the appellant's claim that he was openly discussing his religious views conflicted with his evidence that he was trying to keep the fact he was breaking the Ramadan fast a secret;

(f)    claims that his employer forced him to cut his hair were implausible as he had work identification photos which clearly showed him with long hair;

(g)    it was far-fetched that his uncle would have forced him to go on a religious pilgrimage to Karbala and so potentially spoil the uncle's religious experience;

(h)    the appellant gave confusing evidence about his religious views, saying that he was not an atheist, but also claiming to be an agnostic and to positively believe in the existence of God.

16    The Tribunal had regard to all of those credibility concerns in rejecting the appellant's claims and found that he was not an atheist or agnostic, but in fact observed Ramadan, prayed and did not express anti-religious views. The Tribunal found this explained why the appellant went on the pilgrimage to Iraq, and the story with respect to his uncle requiring him to participate was a fabrication to explain why he had attended.

17    The Tribunal found that the appellant's claims regarding Herasat were a subsequent fabrication, taking into account the appellant's failure to mention the claims during his entry interview. It formed this view even having regard to the caution that should be exercised with respect to omissions in entry interviews (citing MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [56] (North, Bromberg and Mortimer JJ)).

18    The Tribunal rejected the appellant's claims in their entirety, finding that the appellant never had any problems in Iran with his uncle, his brother or any other relatives, and never had any problems with the authorities at work or outside of work for reasons of his appearance or for any other reason.

19    The Tribunal found that the appellant was never suspected of any anti-religious or anti-government views.

20    The Tribunal did not accept that the appellant was genuinely committed to atheist, agnostic or anti-Islamic beliefs.

21    Accordingly, the Tribunal did not accept that the appellant had a well-founded fear of persecution on the basis of actual or imputed atheist, agnostic or anti-Islamic beliefs if he returned to Iran.

22    In relation to the risk that the appellant would face harm as a returnee, failed asylum seeker or person who spent time in a Western country, the Tribunal referred to country information to the effect that of the Iranian asylum seekers that had returned from Australia, Manus Island and Nauru in 2013-2014, there were no reports of any harm inflicted on them, and other country information suggested that a returnee will be stopped, asked questions, may have to surrender their travel documents and may have to report to police. The Tribunal did not consider such steps constitute serious harm capable of amounting to persecution, having regard to the relevant guidelines, and found that any questioning or confiscation of the appellant's travel documents would not constitute serious harm. Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution for reasons of being a returnee, a failed asylum seeker or because he is a person who has been outside of Iran or in a Western Country for a prolonged period of time.

23    As the Tribunal did not accept that the appellant is genuinely committed to atheist, agnostic or anti-Islamic beliefs, the Tribunal did not accept that he would do or say anything upon his return to Iran to cause the authorities to impute to him religious beliefs or force him to modify his behaviour. It did not consider there was a real chance he would be viewed or perceived as a person who has rejected Islam.

24    The Tribunal did not accept that the appellant has a well-founded fear of persecution for reasons of religion, political opinion or any Convention reasons if he returns to Iran.

25    In considering the appellant's claims under the complementary protection provisions, the Tribunal relied on its same findings in concluding that the appellant did not satisfy the criteria set out in s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Before the Federal Circuit Court

26    The appellant relied on one ground of review, being that the Tribunal failed to comply with s 425 of the Act by not alerting the appellant that whether he had rejected the Islamic faith was in issue.

27    The primary judge had regard to the transcript of the hearing before the Tribunal, the submissions provided by the appellant's agent and the Tribunal's reasons and found that the Tribunal:

(a)    discussed with the appellant, and made it clear to him, that the determinative issue in the case was his religion or lack thereof;

(b)    expressed doubts as to the appellant's claims;

(c)    engaged in discussion with the appellant as to his own views; what other people knew of his views; and what the authorities allegedly knew of his rejection of Islam; and

(d)    tested the issue of whether the appellant had fabricated his claims, both generally and in relation to his religion.

28    By way of example, the primary judge referred to the appellant's submissions of 25 May 2015 and 9 March 2016 that clearly stated that one of the issues arising in the review was, 'Does the appellant have a well-founded fear of persecution for reasons of his religion?'. The submissions then addressed that question. The primary judge set out in detail extracts from the transcript that indicate that the Tribunal engaged with the appellant in some considerable discussion of his views, including what other people knew of his views and his alleged rejection of Islam. The primary judge also referred to extracts that indicate that the issue of fabrication of his claims was also directly raised with him during the hearing.

29    The primary judge found that the Tribunal's findings concerning the appellant's claim to have rejected Islam and to be an agnostic were obviously open on the known material and that the appellant was clearly notified of the critical issues in the case by the Tribunal's direct questioning.

The notice of appeal

30    The notice of appeal advances a single ground of review, expressed as follows:

Did not properly apply the evidence of the effect of renouncing Islam if returned to Iran.

31    Such a ground was not advanced before the primary judge and the appellant therefore requires leave to raise it for the first time on appeal.

Determination

32    The Minister submits that leave should not be granted for three reasons:

(1)    the appellant was represented before the primary judge and had the benefit of legal advice and assistance;

(2)    there is no evidence before the Court to explain why the appellant's legal representative did not advance the argument now sought to be raised; and

(3)    for the reasons set out below, the new argument is not sufficiently meritorious so as to justify the grant of leave.

33    As to submissions (1) and (2), the fact that an appellant had the benefit of being represented by counsel at first instance is relevant to whether or not it is expedient in the interests of justice to allow the appellant to raise new grounds on appeal. However, in this case, the appeal is determined in any event by reference to the third submission.

34    The Minister contends that the ground is expressed in terms of error committed on the part of the Tribunal rather than any error said to have been committed by the primary judge, and that such an approach is to be rejected as reducing the proceeding before the Federal Circuit Court to a 'preliminary skirmish': VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [47]-[48] (Kiefel, Weinberg and Stone JJ). Whilst that submission is well-founded, I have also considered the ground as if it were more properly expressed as a complaint of error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal.

35    Even dealing with the ground in that manner, the appeal must fail.

36    Because the Tribunal did not accept that the appellant held atheist, agnostic or anti-Islamic beliefs or that he would be imputed with such religious views, the Tribunal was not required to assess the evidence concerning the risk of harm to persons who did hold such views. No error in any lack of consideration of whether the appellant had a well-founded fear of persecution for reasons of an actual or imputed anti-Islamic belief is therefore established. Consideration of that issue would have made no difference to the outcome. The Tribunal also expressly considered whether or not there was a well-founded fear of persecution for reasons of religion, political opinion or any Convention reason if he were returned to Iran and its reasoning process does not disclose jurisdictional error.

37    I invited the appellant to make submissions before me in support of his appeal and those submissions were to the effect that he is a practising Catholic and that he should have been believed by the Tribunal when he told it that he renounced Islam.

38    Those submissions do not assist the appellant. Even if there were evidence (rather than simply submission) in support of his contention that he is a practising Catholic, there is no suggestion such evidence was before the Tribunal or before the primary judge. The appellant is seeking by such submissions to challenge the factual finding of the Tribunal that it did not accept that the appellant held atheist, agnostic or anti-Islamic beliefs. It is not open to this Court to consider new evidence for the purpose of inviting the Court to disagree with that factual finding unless it bears on a jurisdictional error: see, for example, Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27] (Perry J); MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J). There is nothing to support a claim of jurisdictional error on the part of the Tribunal, and the primary judge did not err in failing to find such error.

39    As I do not consider the proposed fresh ground to have any merit, I would decline leave for it to be raised and accordingly the appeal is to be dismissed.

Orders

40    The appeal is to be dismissed with the usual costs order to follow the event.

Associate:    

Dated:    8 November 2018