ACZ16 v Minister for Immigration

[2018] FCCA 1498

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACZ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1498

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – Iranian national – tribunal’s obligation to consider ‘implied claims’ – whether the tribunal erred in considering whether the applicant had a well-founded fear of persecution – whether the tribunal failed to consider the risk of harm to the applicant given his activity on social media – application dismissed.

Cases cited:
Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

SZSGA v Minister for Immigration and Citizenship [2013] FMCA 162

Applicant: ACZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 82 of 2016

Judgment of: Judge Mercuri

Hearing date: 12 February 2018

Date of last submission: 12 February 2018

Delivered at: Melbourne

Delivered on: 27 June 2018

REPRESENTATION

Counsel for the applicant: Mr A Aleksov

Solicitors for the applicant: Clothier Anderson & Associates

Counsel for the respondents: Mr N Wood

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The applicant’s application for judicial review filed on 14 January 2016 and as amended by the applicant’s written submissions filed on

   
   

   18 January 2018, be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 82 of 2016

ACZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal

   
   

   (“the tribunal”) on 10 December 2015.  In that decision, the tribunal affirmed a decision of a delegate of the first respondent, the

   
   

   Minister for Immigration and Border Protection (“the Minister”) made on 26 March 2014 not to grant the applicant a protection

   
   

   (class XA) visa (“the visa”). 

2. The tribunal’s decision is found in the Court Book at pages 193 to 204.

Summary

1. For the reasons that follow, there was no implied claim arising from the material before the tribunal which the tribunal failed to consider. It follows that there was no jurisdictional error by the tribunal. This application for judicial review therefore fails.

2. I make orders dismissing these proceedings and order the applicant to pay the Minister’s costs.

The applicant’s claims

1. The applicant is an Iranian national.  He applied for a protection

   
   

   (class XA) visa on 11 January 2013.[1]

   [1] Court book at pages 27 to 92.

2. The applicant claimed to fear that he would ‘be subjected to ongoing physical and psychological abuse, tortured and killed’ if he returned to Iran.  He also claimed to fear harm from the Iranian authorities and particularly SEPAH (“Army of the Guardians of the Islamic Revolution”). 

3. The applicant further stated in his statutory declaration[2] that he feared he would be harmed or mistreated because of:

   a)his imputed and actual political opinion, as being opposed to the government; and

   b)his membership of a particular social group, namely ‘failed Iranian asylum seekers’.

   [2] Court book at pages 84 to 87.

4. In particular, the applicant claimed that:

   a)in late 2009, he inadvertently participated in a demonstration in Azadi Square in Tehran, which related to the outcome of the presidential election that had occurred a week or so prior;

   b)he tried to escape by motorbike but fell and was grabbed and beaten by Basij[3];

   c)he was taken to the police station by Basij, blindfolded and some hours later transported to a couple of other locations, interrogated and beaten;

   d)he was then left by the side of the road and although he could barely walk, he managed to go home and then to the doctor;

   e)some two or three days later, some SEPAH members took him from his home in the early morning and accused him and his family of being anti-government and of collaborating with the Mujahedeen.  He claimed that he was then beaten and psychologically tortured;

   f)he was told that if he wanted to live he had to work for them as an informer and was asked to monitor Facebook and to tell them if he knew of anyone who had participated in the protests;

   g)he was also asked to inform on anyone who insulted the leader, was anti-revolution, watched satellite TV about politics or discussed political views;

   h)he was also told to monitor SMS messages used to organise protests;

   i)although he hated himself for doing so, he in fact did pass on whatever information he had as he felt he had no choice as the authorities pressured and threatened him;

   j)he said that the authorities threatened that if he did not provide the information they asked for, they would do a lot of things to him including leaving drugs in his car or sending him to a terrible place; and

   k)the applicant was frightened and ultimately fled to Nashtarod, a town in the north for some time and then ultimately fled Iran and sought asylum.

   [3] Basij are voluntary revolutionary guard militia.

5. The applicant was represented throughout the review process.  Relevantly, his application for a protection visa was filed on his behalf by a person who identified himself as a solicitor and registered migration agent. 

6. The applicant was invited to attend an interview with the delegate on 14 October 2013[4] and it appears from correspondence from the applicant’s representative[5] and the delegate’s decision record[6] that the applicant attended this interview.  In the course of that interview, the applicant further stated:

   Since being in Australia, he has been posting things on Facebook and on news agencies.  He stated ‘the subject I mention in my posts on Facebook, are about people who I knew, and about their actions, sometimes I talk about my political opinion, and religion in Iran.’[7]

   [4] Court book at page 97.

   [5] Court book at page 108.

   [6] Court book at page 152.

   [7] Court book at page 154.

7. In addition after the applicant’s interview with the delegate, the applicant, through his representative, provided further information in the form of copies of some of the applicant’s Facebook comments and further information which it was submitted supported the proposition that ‘Iranian authorities maintain surveillance on Facebook and threaten dissidents’.[8] The correspondence from the applicant’s representative under cover of which this further information was provided, relevantly concluded as follows:

   [8] Court book at pages 111 to 118.

   ‘4.         The above demonstrates that:

   (a)    the applicant has an anti-regime political opinion;

   (b)    the applicant has posted anti-regime commentary on Facebook (and other social media platforms); and

   (c)    the Iranian authorities monitor social media platforms to identity (sic) dissidents.

   5. This adds weights (sic) to the applicant’s assertion that he has been identified as holding an anti-regime political opinion and will be persecuted on this basis.

8. The delegate refused the application on 26 March 2014.[9] 

   [9] Court book at pages 146 to 171.

9. On 30 April 2014, the applicant filed an application for review with the second respondent.  The applicant appears to have changed legal representation and was represented at this stage by

   
   

   Australian Migration Options, who identified themselves as a registered migration agent.[10]

   [10] Court book at page 173.

10. The applicant, through his representative, was invited to a hearing initially on 21 October 2015.  That initial hearing was cancelled and the applicant was invited to a rescheduled hearing on

    
    

    9 December 2015.  Correspondence in relation to both scheduled hearings was sent to the applicant via his nominated representative.[11]

    [11] Court book at pages 178 to 185.

11. On 26 October 2015, the applicant’s representative emailed the second respondent in the following terms:

    We have been trying to contact our client regarding invitation to hearing but have been unsuccessful in our attempt to contact him for quite sometime (sic) now.  We will continue to attempt to contact him and then provide response to hearing form to you as soon as we speak to him.[12]

    [12] Court book at page 186.

12. The case notes also indicate that an SMS hearing reminder was sent to the applicant’s mobile telephone directly on 2 December 2015 and again on 8 December 2015.[13]

    [13] Court book at page 188.

13. The applicant did not attend the hearing either personally or through a representative. 

The Tribunal’s reasons

1. In its reasons, the tribunal considered each of the claims expressly made by the applicant and also a number of other claims which the tribunal found, although not expressly made, arose from the applicant’s material.  For example, although the applicant made no express claims on the basis of his religion or his use of alcohol, the tribunal considered whether the applicant had a well-founded fear of persecution on either of these bases.[14] 

   [14] Court book at page 202 at paragraphs [44] to [47].

2. The tribunal concluded that it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution on any of these grounds.

3. In relation to the applicant’s activity on social media since his arrival in Australia, the tribunal considered the available evidence and noted:

   The comments were made in response to articles posted on Facebook.  One article was posted on 2 May 2013 and the applicant responded the same day.  Apparently, 116,976 people had ‘liked’ the news article posted.  A second article was posted on 6 May 2013 and the applicant responded the same day.  Apparently 116,975 had ‘liked’ the news article posted.  A third article was posted on 2 October 2013 and the applicant responded the same day.  Apparently, 113,923 people had ‘liked’ the news article posted.  The comments of the applicant were 1 to 3 lines in length.[15]

   [15] Court book at page 200 at paragraph [33].

4. The tribunal then went on to explain why it was not satisfied that the applicant’s comments would attract adverse attention of the Iranian authorities.  The tribunal relevantly stated:

   The applicant further claims to have made statements contrary to the government after coming to Australia on Facebook…

   Considering the opinions expressed on their own, absent the claim of being a forced informant, I note that the opinions expressed are likely to be considered anti-government.  However, given the number of persons ‘liking’ or commenting on the articles, given the minimal content made by the applicant and given reasonably moderate nature of his comment, I am not satisfied that the applicant’s profile would be such to attract the adverse attention of the Iranian authorities.  Had the applicant appeared at the hearing, I would have queried further comment or activity he has undertaken whilst being onshore. 

   …

   … While I accept that since being in Australia, he has made a few relatively innocuous comments of an anti-regime nature on Facebook, I do not accept that the comments are sufficient to give the applicant an adequately high profile to attract the adverse attention of the Iranian authorities. 

   On the evidence before me, I am not satisfied that the applicant faces a real chance of being persecuted on the basis of his actual or imputed political opinion.[16]

   [16] Court book at pages 202 at paragraph [52] to 203 at paragraph [56].

Grounds of application

1. In his initial application filed on 14 January 2016, the applicant set out the following under the heading ‘Grounds of Application’:

   1.The Tribunal committed jurisdictional error by made (sic) a finding, or findings, for which there was no evidence.

   Particulars

   (a)At several points in the decision record, the Tribunal reaches findings by reference to ‘country information’ (see for example paras [42], [46], [54] and [58]);

   (b)However, nowhere in the decision record is the ‘country information’ referred to in the above paragraphs specifically excerpted or cited;

   (c)The lack of citation and specific reference to the ‘country information’ referred to in the above paragraphs gives rise to the inference that the findings in those paragraphs were made without evidence.

2. The applicant advanced a single ground of review in his written submissions filed in these proceedings as follows:

   The Tribunal failed to perform its statutory task in not assessing whether the applicant faced had (sic) a well-founded fear of persecution in the reasonably foreseeable future if returned to Iran by reason of the potential for him to continue to further engage in anti-regime activities there.[17]

   [17] Paragraph 2 of the applicant’s written submissions filed 18 January 2018.

3. This was the only ground pressed at the hearing and the applicant’s application is taken to have been amended accordingly.  No objection was taken to this approach and the Minister’s written and oral submissions were made in response to this single ground.

4. It was submitted on behalf of the applicant that the tribunal recognised that the applicant claimed to have made public statements contrary to the interests of the Iranian regime whilst in Australia and accepted both that he had made these statements and that they would be perceived as anti-government.[18] 

   [18] Paragraph 3 of the applicant’s written submissions filed 18 January 2018.

5. It was further submitted that whilst the tribunal quite properly assessed whether these comments would give rise to a sufficient ‘profile’ to attract adverse attention from the Iranian authorities and accepted that it was open to the tribunal to conclude, as it did, that they would not be sufficient to give rise to such a profile, the tribunal failed to evaluate whether the anti-government conduct in which the applicant had engaged in Australia, may continue upon his return to Iran and whether this might give rise to a well-founded fear of persecution.[19]

   [19] Paragraph 5 of the applicant’s written submissions filed 18 January 2018.

6. The applicant submitted that the possibility of the applicant continuing to engage in such conduct which could give rise to a well-founded fear of persecution was plainly a claim arising on the materials, and the tribunal’s failure to consider that claim amounts to a jurisdictional error in that the tribunal failed to perform their statutory task.

7. The legal principles that apply to this case are not in dispute. 

8. Put simply, the issue in dispute is whether the claim as now characterised by the applicant, arose from the materials before the tribunal such that the tribunal had an obligation to consider that claim. 

9. The decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 (“NABE”) and the cases referred to therein are apposite. I particularly note the full court’s comments in NABE as follows:

   Where the Tribunal fails to make a finding on “…a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and constructive failure to exercise jurisdiction… The constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.[20]

   [20] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [55].

10. The full court further stated:

    The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it… There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated… It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it… The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.[21]

    [21] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58].

11. The full court went on to say:

    It is plain enough, in light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error… The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.  Every case must be considered according to its own circumstances…[22]

    [22] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [63].

12. So much is not in dispute.  The issue is how these principles are to be applied to the facts in this case.

13. In NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, his Honour Justice Allsop as he then was, referred to the full court’s decision in NABE and noted:

    [That case] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated… From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it… As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.[23]

    [23] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15].

14. Again so much is not in dispute between the parties as a statement of principle.

15. It was agreed by both counsel for the applicant and counsel for the Minister that, in applying the principles in NABE and related cases, all relevant circumstances had to be considered. 

16. The Minister submitted that one such relevant circumstance was the fact that the applicant was, at all relevant times, legally represented.  So much as a matter of principle was conceded by the applicant.  The difference between the parties was the weight which ought to be given to that factor by this court in determining whether the tribunal exercised its powers according to law. 

17. Whilst conceding that the fact that the applicant was represented throughout the process is not of itself a bar to the tribunal having an obligation to consider an ‘implied claim’ as contended for in this case, the Minister did argue that where, as in this case, the applicant was legally represented and therefore could be expected to properly articulate the basis for his claims, it is more difficult to contend that an ‘implied claim’ has been made.[24]

    [24]

1. This may be so, but in this case, I note that the tribunal, quite properly did in fact consider a number of claims which clearly arose from the material before it which were not expressly made by the applicant. 

2. Counsel for the applicant also submitted that whilst the fact that the applicant had legal representation is a relevant factor, the absence of any submissions by the applicant’s new legal representative before the tribunal is a competing and equally relevant factor to be weighed in the balance. 

3. I have had regard to the fact that the applicant was legally represented throughout the appeal process.  Whilst this is a relevant factor, I do not find it to be a determinative one in this case.  This is particularly so given that the tribunal gave consideration to a range of claims which were not expressly raised by the applicant but which the tribunal was satisfied were squarely raised by the material before it.  The fact that the applicant was legally represented did not limit the tribunal’s consideration of claims which it felt were raised by the evidence and material before it. 

4. The applicant conceded that the tribunal dealt with the applicant’s express claims that he would be at risk of harm from the Iranian authorities on the basis of his activity on social media whilst in Australia. 

5. Moreover, the applicant also quite properly conceded that he did not attend the hearing before the tribunal and did not expressly say that if he were to be sent back to Iran, he would or may continue to post comments online along the lines of those that were put before the tribunal.  However, it was submitted on behalf of the applicant that it was obvious that a person who had commenced making

   
   

   anti-government comments may continue to do so in future and therefore the claim as now framed by the applicant was raised on the material before the tribunal and needed to be considered and addressed. 

6. The Minister submitted that:

   There was no basis whatsoever for the Tribunal to consider that the applicant, if he was to return to Iran, would engage in any more substantial ‘anti-regime’ activity than that which he had engaged in on social media in Australia (which the Tribunal did not consider would give rise to a real chance of harm). The applicant did not make any such claim expressly.  Nor did any such claim arise ‘squarely’ or ‘clearly’ on the material.[25]

   [25] Paragraph 27 of the first respondent’s written submissions filed 31 January 2018.

7. The relevant material before the tribunal regarding the applicant’s comments on social media are set out below. 

8. The delegate’s decision contained the following:

   The applicant confirmed at interview that he had a Facebook account that he used for this purpose.  Later in the interview, he also mentioned that he was using Facebook to write political and religious comments.  After the interview, he sent screenshots of what he claims are some of these comments.  I note that these comments were posted in the name of ‘Soren Ghalandari’.  When viewing the profile of Soren Ghalandari, it displays a photo which I accept is of the applicant.  The applicant has provided no explanation as to why the Facebook profile is in a different name.[26]

   The applicant applied for, and was given, a passport and was able to depart Iran legally without any problems.  I put to the applicant that the fact that he was able to leave Iran on his own passport, with no trouble, indicates he was not of interest to authorities.  He replied that maybe at the beginning, when he left Iran, he was not of interest, but that interest gets created.  The applicant is sure they are interested in him, and that they blame him for other things, like that he is a member of political groups.  He mentioned that since he left Iran he ‘hasn’t been quiet’ and has posted comments on different news agencies.

   I asked the applicant if he has become involved in any activities, or spoken publicly, or done anything to bring attention to himself since leaving Iran.  The applicant replied that on Facebook, he mentions subjects about people he knew and their actions; sometimes he talks about his political opinion and religion in Iran.  In support of this, the applicant provided screenshots allegedly of comments posted by himself under the name ‘Soren Ghalendari.

   I am unable to fully verify whether this profile belongs to the applicant, although I accept the photograph on the profile picture is of the applicant.  I therefore accept that the applicant uses this profile and has made several comments in relation to Iranian news items and figures of interest.  The translations of the comments are somewhat unclear, and I feel that they have been not fully translated or lack context.  For example, one of the comments is: ‘Sheik Ebramark has got a collection of keys in his underwear.[27]

   [26] Court book at page 158.

   [27] Court book at pages 159 to 160 (and the documents referred to therein at pages 111 to 118).

9. Whilst the tribunal is required to be future focused insofar as it is required to consider whether an applicant has a well-founded fear of persecution on a specified ground, this does not extend to requiring the tribunal to speculate about what the applicant may or may not do at some point in the future. 

10. I also note that not every conceivable claim which might be said to arise from the material before the tribunal needs to be considered.  As noted by the full court in NABE:

    Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov.  A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.[28]

    [28] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [68].

11. I am not persuaded that a claim as now articulated ‘emerges clearly’ from the material before the tribunal.  To the extent that the material disclosed a possible fear of persecution arising from the comments posted by the applicant on social media, I find that this was considered by the tribunal.

Conclusion

1. For the reasons set out above, I am not satisfied that the tribunal has made a jurisdictional error as alleged.  The applicant’s ground of judicial review is therefore not made out and the application is dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:       27 June 2018

Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609 at [21] (Flick J) and
[2013] FMCA 162 at [36] upheld on appeal SGSZA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774.

SZSGA v Minister for Immigration and Citizenship