AEP16 v Minister for Immigration and Border Protection
[2018] FCA 328
•5 March 2018
FEDERAL COURT OF AUSTRALIA
AEP16 v Minister for Immigration and Border Protection [2018] FCA 328
Appeal from: AEP16 v Minister for Immigration & Anor [2017] FCCA 1840 File number(s): NSD 1639 of 2017 Judge: BROMWICH J Date of judgment: 5 March 2018 Legislation: Migration Act 1958 (Cth) ss 424A, 424AA, 425 Cases cited: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609
VAF v Minister for Immigration and Indigenous Affairs [2004] FCAFC 23; 236 FCR 549
Date of hearing: 5 March 2018 Registry: New South Wales Division: General National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 28 Counsel for the Appellant: Mr J Williams Counsel for the First Respondent: Mr A Markus Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1639 of 2017 BETWEEN: AEP16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
5 MARCH 2018
THE COURT ORDERS THAT:
1.Leave be refused to rely upon ground 2 in the amended notice of appeal.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of and incidental to the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Revised from transcriptBROMWICH J:
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal that affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a Protection (Class XA) visa to the appellant.
The appellant is from Iran. On 16 July 2012, he departed Iran and flew to Indonesia via the United Arab Emirates. Less than a week later, he boarded a boat for Australia. That boat was intercepted by Australian authorities and he was taken to Christmas Island, arriving there on 23 July 2012.
The appellant applied for a protection visa on 4 December 2012. He was interviewed on 31 May 2013. On 11 October 2013, the delegate refused to grant him a protection visa.
On 16 October 2013, the appellant applied to the then Refugee Review Tribunal (RRT) for merits review of his protection visa application. The RRT held a hearing on 2 April 2014.
On 1 July 2015, the RRT merged with and became part of the Migration and Refugee Division of the Administrative Appeals Tribunal. The former RRT member conducting the matter was no longer available to complete the merits review. A new member constituting the Tribunal conducted a further hearing on 30 November 2015. On 7 January 2016, the Tribunal affirmed the delegate’s decision.
On 29 January 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The judicial review challenge was ultimately conducted upon the basis of a further amended application dated 22 June 2016, which was in the form of a rather discursive and poorly focused set of claims and allegations. The appellant was represented by counsel, who also represented him in this appeal.
A hearing before the primary judge took place on 22 June 2017. On 30 August 2017, his Honour dismissed the application with costs.
The appellant’s initial claims in support of his protection visa application were summarised by the Tribunal as follows:
5.The applicant was an Iranian citizen with no religion who was told that he had to serve in the Basij to fulfil his military service obligation. He saw many terrible things there, including people being beaten and tortured. Just after the 2009 election he saw many political opponents being brought in.
6.He and one other person were guarding the local Sepah base that was also used by the Basij. It also served as a checkpoint where people who were passing could be searched for alcohol and the like. People were also interrogated and tortured there. One detainee was brought in suffering badly from inhaling tear gas and the applicant assisted him, which made others suspicious of him.
7.He was then transferred to the Ghods Division in Janatabad, which was a high level within Sepah. There were many records kept here about people whose names were given to higher Sepah headquarters. After his previous service he was upset at what the Basij were doing and he decided to destroy some of the people’s files in order to save them. That night he took a handful of files and took them to the yard and burnt them. He was so upset that he didn’t care if anyone saw him but no one did as nobody usually came at night.
8.The missing files were noticed and the applicant was asked whether he knew where they were. He sometimes had to transfer files from one place to another and he told the manager that he had taken the files to transfer them but wasn’t sure what had happened to them and they had been lost by mistake.
9.The manager was angry and the applicant was referred to a higher authority; he was accused of being negligent and disobeying orders and the files had been lost. He was told to write a letter outlining what he had done and take it to the Ghods office. He did this and an hour later someone called Talari came to see him and told him to come to his office.
10.He was questioned and was told that there were concerns about the files that had disappeared. Talari’s deputy knew the applicant and vouched for him, so his explanation was accepted and he was only given two weeks’ detention. After his detention he was sent to work in the Garargah division which was responsible for security. After his security he was unemployed and went to the gym a lot before he found a job at a food production company. He left after a year and remained unemployed but went to the gym.
11.In the gym there were discussions about politics and on one occasion someone claimed that talk about the Basij and torture was all made up. The applicant became angry and told the person that he had seen this torture with his own eyes. This man then reported the applicant to the Basij. He didn’t go to the gym for a few days but he had left his military service card there as security as he didn’t always have money to pay to get in. The Basij came to the gym and found the card at reception but it had his military service, rather than his home address on it.
12.A friend told him that the Basij had visited the gym looking for him and the applicant became very afraid because of his past record. He didn’t return home but stayed with a friend for three or four days until he worked out what to do. His uncle then arranged for the applicant to leave Iran with one of his uncle’s friends who was doing the same. His departure was arranged by an agent and he left Imam Khomeini Airport without difficulty.
13. He claimed that he is not religious at all and he could get into trouble with the Basij in Iran because of this. Since he had been in Australia his mother had told him that a man had come to their house looking for the applicant. His mother said that he looked like a Basij because of his beard and clothes.
The appellant’s claims turned on what he initially alleged was compulsory military service in an Iranian paramilitary militia concerned with enforcement of public morality, known as the Basij. Before the Tribunal, after some close questioning, he modified this claim to refer to service with another body, being the Islamic Revolutionary Guard Corps, known as the Sepah. The two organisations were not entirely unrelated. The appellant ultimately said that he provided guard services for the Sepah at a Basij base. However, this change in the appellant’s account of what he had done and for whom was found by the Tribunal to be a significant factor going to his credibility and the credibility of his claims.
The Tribunal summarised in some detail what took place at the two Tribunal hearings, one before the RRT and one before the Tribunal, listening to a tape of the first hearing before the prior RRT member.
In considering the appellant’s claims and evidence, the Tribunal found that his evidence regarding his claims lacked credibility, for reasons that were set out in some considerable detail and in a variety of ways. This was not a case of a blanket adverse credit finding being applied in a blanket way to all claims, although the appellant’s shifting position as to whether he was working for the Basij or the Sepah was undoubtedly important and was clearly canvassed with him.
The Tribunal’s decision was usefully summarised by the primary judge as follows:
Tribunal decision
9.The Tribunal did not find the applicant to be a reliable, credible or truthful witness, and concluded that he fabricated his claims in order to be granted a protection visa.
10.In relation to the applicant’s claims concerning his military service, the Tribunal did not accept that the applicant served in the Basij, but found that he was conscripted into the Sepah. The fact that the applicant claimed that he had to serve in the Basij to fulfil his military obligations was considered to be a significant factor in determining the applicant’s credibility and the credibility of his claims.
11.The Tribunal identified several instances where the applicant insisted that he was serving in the Basij, before eventually admitting during the second hearing that he was a Sepah member serving at a Basij base as a guard.
12.While the Tribunal was prepared to accept that the applicant served at a Basij base undertaking guard duties, it found the applicant’s account of his time there to lack credibility, including his claims relating to:
(a)being able to access sensitive personal files, and burn them in the courtyard;
(b)being able to claim that he may have lost the files when transferring them;
(c)being privy to torture sessions conducted by Basijis; and
(d)assisting a detainee who was questioned by the Basij and suffered from tear gas inhalation.
13.Because the Tribunal did not accept that the applicant served in the Basij or witnessed torture while serving in the Sepah, it also did not accept that the applicant got into an argument with an unknown person in a gym, as a consequence of which the Basij came looking for him.
14.The applicant’s claim that the Basij visited his home after he left Iran was also rejected on the basis that, given the earlier findings, the Tribunal did not accept that the Basij had any interest in the applicant.
15.The Tribunal noted the evidence of the applicant’s brother, but gave it little weight in view of the lack of the credibility of the applicant’s claims, and the fact that the brother was not considered by the Tribunal to be a disinterested or objective witness.
16.In relation to the applicant’s claims based on religion, the Tribunal was prepared to accept that he may be a non-observant Muslim, but it did not accept that he is an atheist.
17.The Tribunal noted that, while it is difficult to determine whether someone is non-observant, agnostic or atheist, given the credibility issues already established in relation to the applicant and his claims his actions appeared to the Tribunal to be “deliberate and targeted but not those of someone with a real fear based on a religious conviction (or in this case, the lack thereof).
18.The Tribunal noted that the only time the applicant chose to interact with atheists was when he joined an atheist Facebook page. While the Tribunal accepted this fact, it found that the applicant was not active on this site. It did not accept that the reasons for this were because the applicant did not yet have sufficient knowledge “to go public or because he had corresponded with someone on “Viper” (sic) and became scared once he didn’t hear back from them.”
19.The Tribunal also disbelieved as not credible the applicant’s claim that he forwarded a debate between Richard Dawkins and a Muslim to be translated on Viber, and that the person may have been an Iranian security authority, given the previous finding concerning the applicant’s credibility and the absence of a record of exchange, although it took place on Viber.
20.In relation to the applicant having posted his name on an atheist Facebook page, the Tribunal found that he did so for the sole purpose of strengthening his protection claims, and that in those circumstances s.91R(3) required it to disregard this conduct in determining whether the applicant has a well-founded fear of persecution.
21.The Tribunal was not satisfied that the applicant feared serious harm from Iranian authorities for being either an atheist or a non-observant Muslim. Based on country information, the Tribunal found that non-observant Muslims and atheists are able to live in Iran without coming to the attention of the authorities, and that the applicant will not come to such attention. As such, the Tribunal found that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future if he were to return to Iran.
22.The Tribunal then went on to consider whether the applicant would be harmed on return to Iran for being a failed asylum seeker.
23.In light of country information, and given its findings that the applicant had no political or criminal profile, the Tribunal concluded that he would be of no interest to authorities as anyone other than an individual returning on a different passport than that on which they left Iran. The Tribunal noted that the applicant may be questioned, but that this would occur as part of the normal immigration process, and would not amount to serious harm.
24.The Tribunal concluded that, having regard to all the evidence, and the applicant’s claims both in isolation and cumulatively, the applicant did not have a well-founded fear of persecution for any Convention reason then or in the reasonably foreseeable future.
25.The Tribunal noted that, although (for the purposes of assessing the applicant’s Convention related claims) it had disregarded the applicant’s claims regarding his atheist Facebook entry and having forwarded a Dawkins video via Viber to an unknown person, it did have regard to these claims in assessing his complementary protection claims. The Tribunal nevertheless did not accept that the applicant has any interest in atheism, has or would seek to promote it in Iran, or that anyone in Iran is or was aware, or is likely to become aware, that he has any interest in atheism. The Tribunal also did not accept that the applicant has or will come to the attention of the authorities for not believing in any religion.
26.The Tribunal also rejected the applicant’s claims relating to his alleged involvement in the Basij on the basis of factual findings already made in respect of his Convention related claims and was, in the circumstances, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there was a real risk that the applicant would suffer significant harm on the basis of any of his claims.
Before the primary judge, the appellant ultimately relied upon the following ground of review (omitting 14 particulars set out over two and half pages in single-spaced text):
Ground 1: Insufficient logical or evidentiary basis for the Tribunal Decision
1.The Second Respondent (Tribunal) failed to give proper, genuine or realistic consideration to the independent country information regarding allegations of torture, inhuman or degrading treatment by the Basij, according to the Freedom House Report 2012, at page 21 of the Court Book or the further country information at page 139 [5] of the Court Book. As a consequence, the adverse credibility finding by the Tribunal at [95] of the decision record was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
The appellant before the primary judge thus took aim at the adverse credit findings made by the Tribunal. His Honour said the following about the general nature of the appellant’s approach:
31.An immediate difficulty with the ground of review is that an alleged failure to give proper, genuine and realistic consideration is a somewhat obscure basis of legal challenge to a Tribunal decision. At one extreme it probably merges with the concept of bad faith. That is not alleged here. At its base it may mean nothing more than a failure to have regard to the merits of a particular case.1 The space in between those two bases of challenge is probably coextensive with the concept of a failure to bring an active intellectual process to a review.
1 See Minister for Immigration v SZJSS (2010) 243 CLR 164 at [23]-[30]
The primary judge was, in substance, politely pointing out the ultimately flawed approach in challenging the Tribunal’s reasons with such a scattergun and largely merits review-based approach. His Honour found at [32] that none of the particulars relied upon, which do not warrant reproduction, established any jurisdictional error. His Honour then said (omitting footnotes):
33.More specifically, the substance of the applicant’s complaint appears to be an alleged failure by the Tribunal to have regard to certain country information which, it is claimed, provides independent confirmation of the applicant’s account of having been privy to torture sessions conducted by the Basijis. This assertion appears to be based on a misunderstanding of the Tribunal’s reasons.
34.As noted above, the Tribunal found that the applicant’s claims lacked credibility, and that he was not a reliable, credible or truthful witness. These findings were based on a number of issues discussed in the Tribunal’s decision, the most significant being the applicant’s claim that he was conscripted to, and served with, the Basij, which he ultimately admitted was not the case, acknowledging that he was conscripted into the Sepah and had undertaken guard duties at a Basij base.
35.The Tribunal also rejected as lacking in credibility a number of other claims made by the applicant concerning alleged events during his military service.
36.Significantly for the purposes of this application, the Tribunal did not find at [103] of its decision that the Basijis did not engage in the type of conduct the applicant claimed to have witnessed. In view of its findings concerning the applicant’s credibility, and in the absence of any corroboration, the Tribunal simply did not believe that the applicant witnessed such events (or that he had to transfer detainees to the operations manager, or attended to a detainee who had been attacked with mace spray).
37.This was a finding open to the Tribunal on the basis of the totality of the evidence before it.
38.The fact that the Tribunal’s factual findings were not entirely consistent with those of the delegate is not in itself a proper basis for an allegation of jurisdictional error on the Tribunal’s part. In reviewing the delegate’s decision, the Tribunal is duty bound to consider the applicant’s claims for itself, to reach findings of fact, and to apply the relevant law to those facts.
39.The applicant’s protection claims were confusing and inconsistent. His written claims which accompanied his protection visa application claimed both that he had served in the Basij and that he was one of two guards at a checkpoint which was used both by the Basij and the Sepah. In a submission to the delegate, the applicant maintained his claim that he served in the Basij. In a submission to the Tribunal, the applicant maintained that the delegate had mistakenly taken the view that the applicant had served with the Sepah in the Qods division and asserted that he had served in a Qods unit of the Basij. Under questioning before the Tribunal, however, the applicant changed his account and asserted that he was a conscript with the Sepah serving with the Basij at a Basij and Sepah base. He claimed that the two forces were complementary to each other. Later in the hearing the applicant reverted to his original claim and asserted that there had been a “big misunderstanding”.
40.The material relied upon by the applicant did not establish that he was a member of the Basij. It was open to the Tribunal to conclude that the applicant was a serving member of the Sepah who performed guard duties at a Basij base. It was also open to the Tribunal to conclude that the applicant had not witnessed or complained about human rights abuses by the Basij. Plainly, the Tribunal had regard to the merits of the applicant’s claims and engaged in an active intellectual process in dealing with those claims. There was no irrationality in the Tribunal’s reasoning, and the conclusions reached by the Tribunal were matter [sic] about which reasonable minds might differ. It follows, and I find, that the various particulars in the ground of review cannot be sustained.
There does not appear to be any error or flaw in the primary judge’s reasoning set out above. In particular, his Honour pointed out that the country information was not disputed by the Tribunal, but, rather, was found to have no application. That was because the appellant was not believed, within a thorough but conventional process of credibility assessment, when he said that he was present for events of the kind traversed by the country information.
The notice of appeal in this Court asserts two grounds, with five pages of particulars that are largely confused and more in the nature of submissions in any event. Each ground of appeal is reproduced in turn below without particulars.
Ground 1
There was an insufficient logical or evidentiary basis for the adverse credibility finding by the Tribunal, given the Tribunal failed to give proper, genuine or realistic consideration to the country information or the photographic material of the appellant’s military service.
This ground, in substance, seems to be a re-run of the ground of review before the primary judge. No leave was sought, let alone granted, to traverse anything more than was advanced below.
The Minister’s written submissions pithily describe this ground of appeal as lacking substance. The Minister accurately pointed to the hazards inherent in the ground of “proper, genuine and realistic consideration”, lest this Court slip into impermissible merits review. Reliance was placed on the cautionary comments by the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [23]-[30], addressing the very different legislative context in which the phrase initially arose and its limitations in being applied to a context such as the present. It was submitted that the substance of the appellant’s submissions did not rise above merits review, taking issue with the fact-finding and reasoning processes of the Tribunal, while failing to show how it was that the conclusions reached were not fairly open to the Tribunal.
The following submissions for the Minister should be accepted as providing a complete answer to the first ground of appeal and the submissions for the appellant (omitting court book references):
37.As the primary judge observed, the substance of the appellant’s complaint related to an alleged failure by the Tribunal to have regard to certain country information which, it was claimed, provided independent confirmation of the appellant’s account of having been privy to torture sessions conducted by the Basijis. It is true that, by a late amendment on the day of the hearing, the appellant also referred to photographs as corroborating his claims. But the reference to photos did not add at all to the substance of the argument, which, as his Honour correctly held, was based on a misunderstanding of the Tribunal’s reasons.
38.Based on a series of issues detailed in the Tribunal’s decision, the Tribunal found that the appellant’s claims lacked credibility and that he was not a reliable, credible or truthful witness.
39.Relevantly, some of the findings related to the appellant’s claims to have witnessed torture sessions conducted by the Basijis. It should be emphasised that these findings were limited to the appellant’s claims to have been witness to such conduct, not whether the Basijis did or did not engage in that type of conduct more generally. Contrary to what appears to be the appellant’s argument, neither the country information material nor the photographs, which showed no more than the appellant in uniform with access to weapons, directly impacted on the findings of the Tribunal (which accepted that the appellant served in the military, but found that he was conscripted into the Sepah, not the Basij).
40.The primary judge was correct to hold that, on the totality of the evidence before it, it was open to the Tribunal to reject the appellant’s claims to have witnessed torture sessions (or that he had to transfer detainees to the operations manager, or that he attended to a detainee who had been attacked with mace spray). To the extent that the appellant asserts legal unreasonableness in the Tribunal reaching such findings, there is no substance to, or basis for, such an allegation.
41.The appellant also asserts that the primary judge erred in holding that the fact that Tribunal’s factual findings were not entirely consistent with that of the delegate is not in itself a proper basis for an allegation of jurisdictional error on the Tribunal’s part. This allegation is not explained and, in any event, is plainly wrong. In reviewing the delegate’s decision, the Tribunal is duty bound to consider the appellant’s claims for itself, to reach findings of fact, and to apply the relevant law to those facts.
Repeated attempts to encourage counsel for the appellant to move beyond bare assertion and demonstrate error were to no avail. Error was repeatedly asserted, but never made good. Nor was any attempt made to address, much less meet, the Minister’s submissions.
As no error on the part of the primary judge has been established, this ground must fail.
Ground 2
The Tribunal denied the appellant procedural fairness by failing to place the appellant on notice that the Tribunal may reach a different conclusion from the delegate with regard to the country information on the role of torture by the Basij, the appellant’s claims that he participated in the detention and torture of protester’s [sic] and the photographic material of the appellant’s military service.
The Minister opposed the appellant relying on this ground of appeal upon the basis that it had not been advanced in the Court below. Counsel for the appellant failed to identify where this ground had been raised with the primary judge. In these circumstances, a compelling reason must be advanced for being permitted to raise the issues sought to be relied upon for the first time on appeal.
The essence of the proposed ground of appeal was that the Tribunal failed to put the appellant on notice that it would take a different view to that taken by the delegate. That argument goes well beyond the obligations identified by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [35]. The obligation articulated in that paragraph is to identify any dispositive issue over which a different view might be taken to that taken by a delegate, so that the visa applicant is able to address that issue. Contrary to repeated submissions by counsel for the appellant, there is no obligation to identify specific departures from what a delegate might have found.
The Minister’s written submissions identified two fundamental difficulties in seeking leave. First, while the delegate was prepared to accept as true some claims that the Tribunal did not accept, it is incorrect to say that the Tribunal reached a different view to the delegate about the effect of the country information the appellant relied upon. Secondly, the appellant’s reliance on ss 424A or 424AA of the Migration Act 1958 (Cth) was misplaced, because the Tribunal’s mental processes in assessing the material before it is not itself “information” for the purposes of those provisions: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18], which, in substance, endorsed VAF v Minister for Immigration and Indigenous Affairs [2004] FCAFC 23; 236 FCR 549 at [24]-[27].
In any event, as the Minister pointed out, to the extent that s 425 of the Migration Act required the Tribunal to alert the appellant to issues not considered dispositive by the delegate that might be relied upon to determine the merits review application adversely to him, there was no room for there to be any doubt that his credit was squarely in issue. Thus the proposed ground has no serious prospect of success.
No proper basis has been advanced to permit the appellant leave to rely upon ground 2 for the first time in this Court and, accordingly, leave is refused.
Conclusion
The appeal must therefore be dismissed. The appellant must pay the Minister’s costs as assessed or agreed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 14 March 2018
5
1