AHB16 v Minister for Immigration - [2018] FCCA 1646

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHB16 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1646

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application for extension of time – application filed three years out of time – extension of time allowed – 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 arising from an imputation that he had converted from Islam to Christianity – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.417, 477

Cases cited:
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352; 347 ALR 173
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 295 ALR 198
DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA 489
Hunter Valley Developments v Cohen [1984] FCA 176
M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520
MAYLJ v Minister for Immigration and Citizenship [2012] FCA 335
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262
NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1
Re Commonwealth; ex parte Marks (2000) 177 ALR 491
Taulahi v Minister for Immigration and Border Protection (2017) 347 ALR 173
WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; (2003) 236 FCR 593
WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334

Applicant:

AHB16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 245 of 2016

Judgment of:

Judge Mercuri

Hearing date:

14 February 2018

Date of last submission:

14 February 2018

Delivered at:

Melbourne

Delivered on:

29 June 2018

REPRESENTATION

Counsel for the applicant:

Mr A Aleksov

Solicitors for the applicant:

WLW Migration Lawyers

Counsel for the respondents:

Mr W Mosley

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The application for an extension of time filed on 10 February 2016 be granted.
The applicant’s application for judicial review filed 10 February 2016 be dismissed.
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 245 of 2016

AHB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time under section 477 of the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks to challenge the decision of the second respondent, the

Administrative Appeals Tribunal (“the tribunal”) made on

15 February 2013. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on 22 October 2012 not to grant the applicant a protection visa.
By order of Registrar Buljan, the application was listed for hearing before me regarding the extension of time, and as necessary, the substantive application.
The tribunal’s decision is found in the Court Book at pages 232 to 257.

Summary

For the reasons that follow, this application for an extension of time is granted. However, for the reasons set out at paragraphs 34 to 65 below, the substantive application for review is dismissed and the applicant is ordered to pay the Minister’s costs in a sum to be fixed.

The applicant’s claims and the tribunal’s findings and reasons

The applicant is an Iranian national, who arrived in Australia as an unauthorised maritime arrival. The applicant applied for a protection (class XA) visa (“the visa”) on 17 September 2012. A delegate of the Minister refused to grant the visa on 22 October 2012. That decision was affirmed by the tribunal on 15 February 2013.
Upon arrival in Australia, the applicant initially claimed to be Muslim and a minor. He later retracted these claims as he was not a minor and claimed that had renounced Islam and had developed an interest in Christianity.
One of the central issues in this application arose from the fact that the applicant had obtained a tattoo of a cross on his arm. When initially interviewed by the Department of Immigration and Border Protection
[1] Court book at page 240 at paragraph [45].
[2] Court book at page 238 at paragraphs [38] to [39].
(“the Department”), he stated he obtained the tattoo in Indonesia after having left Iran.[1] He later told the Department that he previously lied, and in fact obtained the tattoo in Iran in 2009 or 2010.[2]
The applicant also claimed that five months before he left Iran for Australia, he was stopped by the Bisaj in Iran and detained and mistreated for three days because they found his tattoo.[3] The applicant stated that after this incident, he became depressed and his father, seeing his situation, decided to send him overseas.
[3] Court book at page 238 at paragraph [38].
The applicant claimed that in Iran, both prior to leaving and on arrival in Australia, he had developed an interest in Christianity and had made some inquiries about that religion. The applicant also claimed that he departed Iran using a false passport.
The tribunal accepted some of the applicant’s claims. In particular, it accepted that:
a)the applicant had obtained a tattoo of a cross on his arm and left Iran on a false passport;[4] and
b)the applicant participated in some religious activities in Australia but did not accept that this was done for genuine reasons; rather, the applicant engaged in these activities to strengthen his refugee claims.[5]
[4] Court book at page 250 at paragraph [85].
[5] Court book at page 251 at paragraph [89].
The tribunal found that the applicant had fabricated his religious claims[6] and in particular, after considering the various claims that the applicant made in relation to religion, did not accept that the applicant had a genuine interest in Christianity.
[6] Court book at page 251 at paragraphs [87] to [88].
Ultimately, the tribunal did not accept that the applicant faced a risk of persecution for a convention reason.[7] Nor did the tribunal conclude that the applicant faced a real risk of significant harm in Iran under the complementary protection provisions of the Act.[8]
[7] Court book at pages 254 to 255 at paragraph [99].
[8] Court book at page 255 at paragraphs [100] to [106].

Extension of time

The applicant filed his application on 10 February 2016. The tribunal’s decision was made on 15 February 2013 (almost three years earlier). The applicant seeks an extension of time under section 477 of the Act in which to file this application.
In support of his application for an extension of time, the applicant filed an affidavit sworn by him on 5 February 2016. In that affidavit, he explains that following the decision of the tribunal on
15 February 2013:
a)he received a letter and he believes a telephone call, from his previous lawyers advising of the tribunal’s adverse decision;
b)he was provided with the contact number for Victoria Legal Aid (“VLA”) and some other agencies who might be able to assist and he was told that he needed to “find a lawyer to process my case quickly”;
c)he also received a telephone call from the Red Cross advising him that given the adverse finding made by the tribunal, they could no longer support him and advised him to seek assistance from the Asylum Seeker Resource Centre (“ASRC”);
d)he spoke with someone at VLA who told him that they could assist if he dropped his file off to them in the city which he did, although he could not recall the exact date and he was told they would assess his case and be in contact with him;
e)he received a call from the VLA about eight months later and was told, “they did not think my case was very good and they could not help me”;
f)the applicant then sought assistance from the ASRC who put him on a waiting list for an appointment which again, took some time although the applicant could not remember exactly how long;
g)the ASRC eventually gave the applicant some advice and he attended a meeting with his pastor at the time – he was told that he could go to court although this would cost $6,500;
h)the applicant asked if there were any other options as he did not have that money and was told that another option was to write to the Minister and ask for him to intervene;
i)in or about October 2014, the applicant submitted his request to the Minister with associated documents and then waited “to see if the Minister was going to intervene in (his) case”;
j)on 10 September 2015, he received a letter from the Minister advising that he would not intervene in his case;
k)the applicant, with the assistance of his pastor, sought legal representation when in early November 2015 he had an appointment with his current lawyers and he says that it was only at this meeting that he became aware of the ‘28 day’[9] time limit to file this application; and
l)the applicant stated that he was at no time before this occasion, made aware that there was a time limit on filing an application for review.
[9] This should be 35 days as required by section 477 of the Act.
It is common ground that an application for judicial review is required to be made within 35 days from the date of the decision. The applicant conceded that the delay in the filing of this claim is significant and counsel for the applicant conceded that in his experience, a claim for an extension of time of this magnitude is, “one of the longest”.[10]
[10] Transcript page 6 at line 14.
Section 477 of the Act relevantly provides:
(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the Court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is in the interests of the administration of justice to make the order.
As noted by her Honour Justice Mortimer in
MZABP v Minister for Immigration and Border Protection [2015]
FCA 1391 (“MZABP”), whilst the principles enunciated in
[11] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [41].
[12] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [43].
Hunter Valley Developments v Cohen [1984] FCA 176 (“Hunter”) “have become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time”[11] they do not prescribe an exhaustive list of the relevant factors.[12]
In Hunter, Wilcox J identified the following relevant factors in determining the court’s discretion to extend time (albeit under a different statutory regime):
a)the extent of the delay;
b)the explanation for the delay;
c)any prejudice to the respondents;
d)the impact on the applicant;
e)the interests of the public at large; and
f)the merits of the substantive application.
In MZABP, after considering the history of section 477 of the Act,
her Honour Justice Mortimer noted:
The phrase “in the interests of the administration of justice” is deliberately broad, and as the relevant parts of Wilcox J’s judgement in Hunter Valley Developments reveal, factors which can be described as forming part of the content of the interests of the administration of justice have always been factors courts have turned to in determining how to exercise such a discretion.[13]
[13] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [52].
Her Honour went on to say however, that:
In my opinion, the statutory precondition in s 477(2) of the “interests of the administration of justice” does not import any necessarily different set of factors to those which have been identified as relevant, in a permissive rather than a mandatory sense, under regimes such as that established by s11 of the AD(JR) Act. The presence of that phrase in the context of the Migration Act may afford a basis for other factors to be taken into account – such as the nature of the visa decision sought to be reviewed. It is a phrase broad enough to encompass factors such as the fact that without a favourable exercise of discretion, a litigant is deprived of an appeal as of right to this Court from any substantive decision made by the Federal Circuit Court. Other factors, such as case management considerations in busy jurisdictions such as the Federal Circuit Court where the interests of other litigants in the efficient and orderly progress of their own proceedings may be affected by the extension of time, may also be comprehended. What factors are taken into account, and how they are weighted, must be the subject of individual consideration in each case. (emphasis added)[14]
[14] MZABP v Minister for Immigration and Border Protection [2015] at paragraph [58].
In WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334, his Honour Justice Farrell noted that:
Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits for conduct of litigation are not to be ignored. Action taken by the applicant other than by way of making an application for review is relevant to consideration of the question whether an acceptable explanation for the delay has been furnished, albeit that the Court may exercise some leniency where the liberty of the individual is at stake…[15]
[15] WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334 at paragraph [32].
It was submitted on behalf of the Minister that the explanation for the delay in this case as set out in the applicant’s affidavit of
[16] Noting that the advice should have been a time limit of 35 days.
5 February 2016 was unsatisfactory. Moreover, counsel for the Minister also pointed to the fact that even once the applicant was made aware that the Minister had refused to intervene in September 2015, it took him a further two months to engage with his current lawyers and then a further three months to file his application. This is notwithstanding that he was informed about the 28 day time limit.[16] There was no explanation for this further delay in the applicant’s material.
Counsel for the Minister directed the court to various cases in which the following principles were applied:
a)an applicant’s choice to pursue Ministerial intervention under section 417 of the Act, is not a satisfactory explanation for the delay in seeking a review of the tribunal’s decision;[17] and
b)to the extent that the applicant’s access to funds to pursue this application was in issue, he failed to put any evidence before the Court as to this mater other than a bald assertion to that effect in his affidavit. As noted in Plaintiff M90/2009 v
Minister for Immigration and Citizenship & Anor
[2009] HCATrans 262 (“Plaintiff M90/2009”) by her Honour Justice Crennan:
As regards the plaintiff’s second reason, the plaintiff has asserted that he lacked the necessary funds to institute proceedings within time. No particulars of the plaintiff’s financial position are provided so there is no basis upon which to assess the assertion made. These considerations are not a sufficient explanation of the delay in bringing the application to this court. (emphasis added)[18]
[17] See for example: WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334 at [33]; Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262, High Court, Crennan J Transcript of proceedings 16 October 2009 in M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 at [21]-[24]; see also Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; MAYLJ v Minister for Immigration and Citizenship [2012] FCA 335 at [8] and DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA 489 at [11].
[18] Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262; see also DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA 489 at [12] and similarly Re Commonwealth; ex parte Marks (2000) 177 ALR 491 at [495].
In response, the applicant’s counsel conceded that “there was no adequate explanation for the delay”.[19] Notwithstanding this concession however, the applicant’s counsel argued that the absence of an adequate explanation for the delay is not fatal to the applicant’s claim for an extension of time. Relevantly, counsel for the applicant said:
…it is always a discretion and a balance of competing considerations. Two are the length and the explanation for the delay and two others are the merit and the prejudice of the matter. In refugee cases, where there is an incapacity of the court to simply say, ‘No, this case has no merit’, the price of a refusal of an extension of time might be an applicant’s life. That is too serious a matter to stand on, in my respectful submission, difficulties that persons such as the applicant face in taking litigation in Australia.[20]
[19] Transcript page 15 at line 7.
[20] Transcript page 15 at lines 31 to 41.
Counsel for the Minister referred to Re Commonwealth; ex parte Marks (2000) 177 ALR 491 (“Marks”) in which the Court noted:
…independently of the merits of the case, I find it difficult to see how a person with knowledge of the decisions, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent… had brought about the delay…[21]
[21] Re Commonwealth; ex parte Marks (2000) 177 ALR 491 at [16].
In response, counsel for the applicant noted that Marks’ case was an application for judicial review from a decision of the
Australian Industrial Relations Commission and said:
The stakes are vastly different from the stakes at issue here… At stake is, potentially, a person’s life.[22]
…where an applicant has, perhaps, behaved contumeliously, lodging applications, then withdrawing them, gaming the system, done things which make it abundantly clear that he or she has no interest in challenging the lawfulness of a decision, but pursues other interest…In those sort of situations, clearly the time limits click in. The length of time also matters. So three years, I accept is a very long time and it’s about as long as one might ever expect to get an extension on. 10 years might be a situation where a court says, look, no. Whatever the merit, no.
Because the stakes are such a weighty factor, in cases where there’s a bona fide attempt to engage the court’s jurisdiction, I do submit that it would be rare – perhaps even exceptional – where an extension of time wouldn’t be granted, if a case had merit.[23]
[22] Transcript page 16 at lines 25 to 31 and see Re Commonwealth; ex parte Marks (2000) 177 ALR 491 at [13].
[23] Transcript page 16 at lines 37 to 45 and at page 17 at lines 1 to 4.
There is some weight to these submissions. The consequences for the applicant if an extension of time is not granted is a relevant factor which must be considered in determining whether the interests of justice require an extension of time to be granted.

On the question of merit, in MZABP, her Honour Justice Mortimer made it clear that in an extension of time application, the merit of the claim is to be determined at an ‘impressionistic level’ rather than by descending into the detail of the claim and the response to that claim. Her Honour noted:
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level… into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).[24]
[24] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62].
…
The correct approach may be expressed by the use of language such as whether a ground is ‘arguable’, ‘reasonably arguable’, sufficiently arguable’ or has ‘reasonable prospects of success’. Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right.[25]
[25] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63].
It was put on behalf of the applicant that whilst the tribunal was aware that the applicant had a tattoo of a cross on his arm, it did not consider any claim based on the applicant’s possible ‘imputed or perceived’ Christianity irrespective of whether he actually held any Christian beliefs.
In response, counsel for the Minister submitted that in fact a
‘fair reading’ of the tribunal’s judgment would lead the court to the conclusion that it had considered this claim in addition to the applicant’s claim of persecution on the basis that he had a tattoo per se.
To finally determine this issue, the court must conduct an analysis of the tribunal’s decision and reasons. I am satisfied that at an impressionistic level, the claim being pressed by the applicant may have some merit.
This, together with the serious consequences to the applicant if the tribunal’s decision is in fact infected with jurisdictional error, weigh against the delay in bringing these proceedings and the absence of any reasonable explanations for that delay, both factors which are of concern to the court.
On balance however, I conclude that it is in the interests of the administration of justice in this instance to extend the time for filing of the applicant’s application. In coming to this view, I have also had regard to the fact that the Minister conceded that there was no prejudice to the respondents if an extension of time were granted, and more importantly, that the question of the applicant’s religion and the risk he would face upon return to Iran arising from his religion was a central plank to his claims for the visa.

Substantive issues

Having determined that it is appropriate to make an order extending the time for the applicant’s application to allow the applicant’s application to proceed, I now turn to consider the substantive application on its merits.
In the interests of efficiency, the parties argued the merits of the claim at the conclusion of their submissions in respect of the extension of time application on the basis that I would consider those submissions only if I determined that an extension of time ought to be granted.
The applicant, by his application filed 10 February 2016 sought:
a)an order that the decision of the tribunal be quashed;
b)a writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law; and
c)that the first respondent pay the applicant’s costs.

Ground of application

The only ground of review sought in the applicant’s application filed on 10 February 2016 is:
The Tribunal failed to consider a claim that arose on the materials, being that the applicant faced a real chance of persecution by reason of the fact that his tattoo would create the impression that he is a Muslim Iranian who converted to Christianity.
In his written submissions, the applicant stated that in light of its findings that “Muslim Iranians converting to Christianity may be at risk of harm”,[26] a claim arose on the materials before the tribunal which was not expressly made to it but which still required considerations, namely “that the applicant may be persecuted or suffer significant harm if returned to Iran by reason of him being imputed or perceived to be a Christian.”[27]
[26] Court book at page 247 at paragraph [76]; see also paragraphs 8 and 9 of the applicant’s written submissions.
[27] Court book at page 247 at paragraph [76].
The principles in NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1 (“NABE”) are applicable in this case; namely, that a failure by the tribunal to consider a claim raised on the material before it can constitute jurisdictional error.
Having said that, counsel for the Minister also referred to the comments made by the court in WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 in which it was observed:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected…[28]
[28] WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630; (2003) 236 FCR 593 at [47].
In any event, the Minister’s case was that a fair reading of the tribunal’s reasons reveal that the tribunal did in fact consider whether the applicant faced a well-founded fear of persecution by reason of the fact that his tattoo would create the impression that he is a Muslim Iranian who converted to Christianity. The Minister refers specifically to the following aspects of the tribunal’s reasons:
a)the tribunal recorded the applicant’s claim that he was at risk of persecution, “because he intends to become a Christian, he has rejected Islam, he has expressed views against Islam, he has a tattoo of a cross…”;[29]
b)moreover, the tribunal records that the applicant, “will be considered a Christian convert because of his tattoo”;[30]
c)having made these observations of the nature of his claims, it was submitted by counsel for the Minister that the tribunal dealt with this claim; and
d)the tribunal rejected the applicant’s claims said to have arisen because of the applicant’s tattoo[31] and addressed the claim of a future fear arising from the authorities discovering it. Importantly, the tribunal said:
The Tribunal has rejected the claim that the applicant was targeted for having a tattoo, nevertheless it has considered whether having a tattoo will place the applicant at risk of harm in Iran.[32]
[29] Court book at page 250 at paragraph [84].
[30] Court book at page 250 at paragraph [84].
[31] Court book at page 257 at paragraph [90].
[32] Court book at page 253 at paragraph [95].
In conclusion, it was submitted on behalf of the Minister that the tribunal’s reasons demonstrate that “the tribunal did consider whether the applicant may be harmed as a consequence of the discovery of his tattoo creating the impression that he is a Christian convert.”[33]
[33] Transcript page 25 at lines 1 to 8.
It was further submitted that in considering the tribunal’s reasons, this court ought not construe them ‘minutely and finely with an eye keenly attuned to the perception of error’ in reference to the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

(“Wu Shan Liang”).[34]
[34] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
In Wu Shan Liang, the majority considered the role of a reviewing court in a judicial review application. In this context, the majority, in considering the reasoning of the court below, said:
It was said that a court should not be ‘concerned with looseness in the language… nor with unhappy phrasing” of the reasons of an administrative decision maker.’ The Court continued: “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[35]
[35] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
In Wu Shan Liang, his Honour Justice Kirby helpfully set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[36]
[36] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [291].
The applicant acknowledged the tribunal’s knowledge of the applicant’s tattoo of a cross. It is clear from the tribunal’s reasons[37] that there is a distinction between the applicant’s claim that he will be considered a Christian convert or an opponent of the Iranian regime because of the tattoo on the one hand and the concerns about coming to harm because of a tattoo per se on the other.
[37] Court book at page 250 at paragraph [84].
The applicant submitted that although the tribunal accepted that the applicant has a tattoo,[38] the tribunal did not consider the imputation that the applicant may face a well-founded fear of persecution if returned to Iran because of the imputation that he was a convert to Christianity arising from the tattoo of a cross on his arm.[39]
[38] Court book at page 253 at paragraph [94].
[39] Court book at page 253 at paragraph [95].
Rather, the applicant said that the tribunal’s reasoning in paragraph 95[40] reflected a discussion of its assessment of risk arising from the fact that the applicant has a tattoo at large, rather than a tattoo which might reasonably give rise to an imputation as stated above.[41]
[40] Court book at page 253 at paragraph [95].
[41] Transcript page 30 at lines 28 to 31.
Moreover, it was put on behalf of the applicant that:
…the claim we’re discussing now is imputation of religion. The tribunal has dealt with the rest of the religious issues, but the particular kind of imputation could not have been dealt with through those adverse credibility findings…it’s not an adverse credibility issue…[42]
[42] Transcript page 30 at lines 39 to 43.
Counsel for the applicant also referred the court to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352; 347 ALR 173 (“Carrascalao”) and Taulahi v Minister for Immigration and Border Protection (2017) 347 ALR 173. In Carrascalao, the full court of the Federal Court (Griffiths, White and Bromwich JJ) discussed what the term ‘consider’ required in the context of a decision maker being required to consider certain matters before making a decision.
That case did not involve a protection visa application; however, one of the grounds of judicial review was based on whether the Minister in that case had ‘considered’ various matters as required by the Act before making a determination to cancel the applicants’ visas. After reviewing some of the authorities in which this issue had been dealt with, the court stated:
Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria. … This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”.[43]
[43] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352; 347 ALR 173 at [45].
In this case it is clear from the tribunal’s reasons, and conceded by the applicant, that the tribunal was aware of the fact that the applicant had a cross tattooed on his arm. Counsel for the applicant however, submitted:
…the only fair way to read that aspect of 95 is that the tribunal is referring to the circumstances of persons in Iran with tattoos, and does not have in mind and is not responding to an argument about potential religious or anti-regime imputation from the tattoo[44].
[44] Transcript page 31 at lines 17 to 20.
It was conceded on behalf of the applicant that this was a ‘fine distinction’ but not an ‘unimportant’ one.
As stated above, it was put on behalf of the Minister that the tribunal did in fact deal with the claim now framed by the applicant; namely, that he faced a well-founded fear of persecution because of an imputation that he had converted to Christianity because of his tattoo.
In particular, the Minister relied upon:
a)the fact that the tribunal was aware of the tattoo;
b)the fact that it was a cross;
c)the claim that the applicant had come to the attention of the authorities prior to his departure from Iran because of the tattoo; and
d)the claim that the applicant was detained and subjected to beatings and questioned about why he had a cross tattooed on his arm.
I am satisfied that there is a distinction between a claim that the applicant would be at risk upon his return to Iran because he had a tattoo per se and a risk arising from the fact that he had a tattoo of a cross, being a Christian symbol which may give rise to an imputation that he had converted to Christianity, had turned his back on Islam or was otherwise anti-regime.
A fair reading of the reasons of the tribunal as contemplated by the High Court’s reasons in Wu Shan Liang leads to the conclusion that the tribunal was alerted to the latter imputation and did in fact give it consideration in the sense contemplated by the reasoning in Carrascalao, namely that the tribunal ‘engaged in an active intellectual process’.
The tribunal’s reasons must be read as a whole. When this approach is taken, it is clear that the tribunal not only considered the fact that the applicant had a tattoo of a cross on his arm, but also considered the fact that this could give rise to an imputation that he would be considered to be a convert to Christianity with the attendant risks.
The tribunal’s reference in paragraph 95 to ‘the applicant claims that in 2011 he was targeted and mistreated by the authorities in Iran because he had a tattoo’[45] must, in my view, be read in light of the earlier statement by the tribunal where it said:
[45] Court book at page 253 at paragraph [95].
He claims that in 2011, he was detained by the authorities in Iran for three days and accused of changing his religion and proselytising about Christianity.
…
He claims that he will be considered a Christian convert because of his tattoo and perceived as an opponent of the Iranian regime because of his religion, his rejection of Islam, his tattoo…[46]
[46] Court book at page 250 at paragraph [84].
In reading paragraph 95, regard must also be had to:
a)paragraph 80, where the tribunal summarises correspondence received on behalf of the applicant following the hearing but before its decision. The tribunal noted that in its written response of 7 February 2013, the applicant’s advisor:
…repeated the applicant’s claims relating to the difficulties he had with the authorities in Iran relating to his tattoo… He repeated the applicant’s claim that he was attacked by Basijis and his tattoo was exposed. He stated that the applicant was accused by the authorities of ‘trying to proselytise about his religion (Christianity)’[47];
b)paragraph 57 where the tribunal further recorded the following:
The applicant stated that when he was beaten by the authorities in Iran he had to tell them that he was a devout Muslim because he faced life-threatening harm. He stated that as a person suspected of being an infidel he could have been killed by the authorities [48];
c)paragraph 58 where the tribunal added:
…asked the applicant if there were any other reasons he did not wish to return to Iran. The applicant stated that the only reason he did not wish to return to Iran was that he would be mistreated by the government and the authorities for being an infidel. The Tribunal referred to the applicant’s claim that he will be identified as an infidel because of his tattoo. The applicant stated that this was correct. (emphasis added)[49];
d)paragraphs 59 and 60 where the tribunal summarised the applicant’s information as to how his tattoo came to the attention of the authorities in Iran;[50] and
e)paragraph 61 where the tribunal said:
The Tribunal referred to the applicant’s claim that he anticipated further harm from the same people in the future. He asked if this was the main reason he did not wish to return to Iran. He stated that this was the main reason.[51]
[47] Court book at page 249 at paragraph [80].
[48] Court book at page 242 at paragraph [57].
[49] Court book at page 242 at paragraph [58].
[50] Court book at page 242 at paragraphs [59] and [60].
[51] Court book at page 243 at paragraph [61].
It is in this context that the tribunal’s findings at paragraph 95 must be read. The tribunal says that it “…considered whether having a tattoo will place the applicant at risk of harm in Iran” [52] and found:
that the applicant’s tattoo would not have been a matter of particular interest or concern to the authorities in Iran. It finds that a similar situation will continue for the applicant in the reasonably foreseeable future. (emphasis added)[53]
[52] Court book at page 253 at paragraph [95].
[53] Court books at page 251 at paragraphs [90] and page 253 at paragraph [95].
Whilst it is the case that the tribunal referred to information from external sources which applied in respect of risks to people in Iran with tattoos per se as opposed to a tattoo which could give rise to the imputation now contended for,[54] the tribunal linked its reasoning back to the applicant’s actual tattoo of a cross and his concerns about being targeted as a result of having such a tattoo and it identifying him as someone who has converted to Christianity or is anti-regime. So much is clear from the use of the words ‘the applicant’s tattoo’ highlighted in the extract of paragraph 95 set out above.
[54] Court book at page 253 at paragraph [95].
A fair reading of the tribunal’s reasons requires that the term ‘tattoo’ be read as “a tattoo of a cross which could give rise to an imputation that the applicant was a convert to Christianity” not a tattoo per se.

Conclusion

For these reasons, the ground of review is not made out.
I therefore dismiss the applicant’s application with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 29 June 2018