AJK17 v Minister for Immigration

[2019] FCCA 2062

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJK17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2062

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal failed to comply with its obligations under s.414 of the Migration Act 1958 (Cth) – ground not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.414, 476

Cases cited:

SZUHX v Minister for Immigration & Anor [2016] FCCA 2169
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2013) 77 ALJR 1088; (2013) 197 ALR 389; (2013) 73 ALD 321

Applicant: AJK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 270 of 2017

Judgment of: Judge Nicholls

Hearing date: 2 May 2019

Date of Last Submission: 2 May 2019

Delivered at: Sydney

Delivered on: 30 July 2019

REPRESENTATION

Counsel for the Applicant: Mr N. Poynder

Solicitors for the Applicant: Davityan Lawyers

Counsel for the Respondents: Mr G. Johnsnon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 30 January 2017 and amended on 20 July 2017 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 270 of 2017

AJK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 January 2017 and amended on 20 July 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 January 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) made on 27 September 2013 to refuse to grant the applicant a protection visa.

2. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE1”, the affidavit of Shahen Davityan solicitor affirmed on 20 July 2017 (annexing a transcript (“T”) of the Tribunal hearing) and the affidavit of Shahen Davityan affirmed on 12 March 2019 (annexing a transcript of and a USB containing, video clips; during the Court hearing the reliance on the two video clips was not subsequently pressed). 

Background

1. The applicant is a citizen of Iran (item 20 CB 6). He arrived in Australia on 22 January 2011 (item 28 CB 7). On 26 February 2013 his application for the visa was received by the Minister’s department (CB 5-CB 52). The delegate refused the grant of the visa on 27 September 2013 (CB109-CB124). On 30 October 2013 he sought review by the Tribunal (CB 125-CB 130). The Tribunal affirmed the decision of the delegate on 8 April 2014 (CB 165-CB 178).

2. However, orders made by this Court in the matter of SZUHX v Minister for Immigration & Anor [2016] FCCA 2169, quashed the decision of the Tribunal and directed that the decision be reconsidered. The matter was remitted from this Court to the Tribunal for review. The Tribunal (differently constituted) affirmed the decision of the delegate to not grant the applicant a protection visa on 3 January 2017 (CB 273-CB 283).

3. The applicant claimed to fear harm on the following basis, as outlined at [2]-[3] of the Minister’s written submissions:

   “2. …He claimed to fear harm if returned to Iran on the basis that he had converted to Christianity. He claimed that in 2012 he met an Iranian man at work…and that [he] spoke to the applicant about his Christian faith and invited him to attend the Lighthouse Baptist Church. The applicant was from a Muslim family but had not practised Islam since being in Australia. The applicant attended the Lighthouse Baptist Church, attending an evening ceremony, and he enjoyed it. He claimed that [his colleague] introduced him to the pastor, Pastor Mark Tossell. The pastor encouraged the applicant to attended classes. The applicant did so and became fully convinced and prepared to convert to Christianity. He claimed that he was ‘saved’ in March 2012 and was baptised on 26 August 2012.

3. The applicant claimed that having converted to Christianity he would be subject to persecution in Iran including torture and imprisonment for being an apostate.”

The Application to the Court

1. Before the Court, the applicant proceeded on the amended application. However, the applicant only relied on ground two of the application. Ground one was not pressed. Ground two of the amended application is in the following terms:

   “2. The second respondent failed to comply with its obligation under s 414 of the Act to review the decision of the first respondent by failing to consider or to make any findings in relation to the applicant’s claim that he had been or would be discovered by the Iranian authorities to have converted to Christianity, by reason of his identification in a publicly available YouTube video, thereby raising a claim that he was owed complementary protection under s 36(2)(aa) of the Act.”

The Tribunal’s Decision

1. The Minister’s written submissions at [6]-[9], filed on 26 February 2019, outline in short form, a summary of the Tribunal’s decision which provides background to the following consideration:

   “6. The Tribunal did not accept the applicant had genuinely converted to Christianity: [43]; CB 279. It found his claim as to his initial introduction to Christianity appeared to be ‘extremely coincidental’. The Tribunal was further concerned over the timing of the applicant’s protection visa application, occurring a month before his student visa was due to expire notwithstanding that he had claimed to have converted in March 2012: [45]; CB 279. The Tribunal did not accept the applicant’s explanations for the delay in lodging his protection visa application. The Tribunal was also concerned that the applicant, notwithstanding his apparent conversion, had displayed a lack of knowledge about any characteristic of the Baptist faith in Iran: [47]; CB 279.

7. The Tribunal took into account the applicant’s supporting documents, including statements from witnesses, including [a person who had previously applied for a protection visa], Pastor Tossell and other parishioners: [48]; CB 279. It gave the statements little weight. It also gave little weight to the evidence of Pastor Keith Piper who accepted at face value the applicant’s claim of genuine conversion: [49]; CB 280. The Tribunal found that the applicant had increased his efforts to learn about the bible and to try to speak to other Iranians and Afghans about Christianity after he was refused the visa by the Minister’s delegate: [51]; CB 280.

8. The Tribunal considered that the applicant’s conduct in Australia comprising his attendance at church and religious activities, his attendance at religious education activities and his baptism were done for the sole purpose of improving his refugee claims. It therefore disregarded that conduct as required under s.91R(3) of the Act (as it then was): [53]; CB 280.

9. The Tribunal was not satisfied that the applicant had protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Act. The Tribunal expressly took into account the applicant’s religious conduct in Australia in determining whether the applicant was owed complementary protection under s.36(2)(aa) of the Act: [58]; CB 281.”

The Argument Before The Court

1. The essence of the applicant’s ground is that in considering the complementary protection criterion for the grant of the protection visa, the Tribunal failed to consider a particular link to a YouTube video, which supported the applicant’s claim that his conversion to Christianity, from Islam, in Australia would be discovered by the Iranian authorities.

2. To make good this contention the applicant’s argument before the Court was as follows.

3. In a statement provided at about the time of the making of his protection visa application the applicant set out that he was an Iranian national of former Muslim background who had been living in Australia since either 2006 or 2007.  In 2012 he met an Iranian in his workplace who had converted to Christianity in Australia.

4. He commenced attending at the church introduced to him by his work colleague (the Lighthouse Baptist Church).  He subsequently converted to Christianity (CB 1–CB 3).

5. There was evidence in the form of letters from various persons before the Tribunal that the conversion was genuine (CB 76, CB 80-CB 81).  The applicant now argues that the central issue in the application, and in the review before the Tribunal, was the genuineness of his conversion to Christianity, and the harm he would face on return to Iran as an apostate.

6. The delegate found that the applicant’s conversion was not genuine, and that he had undertaken his religious activities and conversion for the purpose of strengthening his claims to protection (CB 120.9). 

7. The Tribunal, as previously constituted, recorded that at a hearing before that Tribunal member, the applicant gave the following evidence ([35] at CB 170):

   “35. The applicant told me that his mother in Iran knew he had converted but his father and brother did not. No one else in Iran knew. As to if there was any way in which anyone in Iran apart from the applicant’s mother might know of his conversion, the applicant said that before his baptism the pastor had introduced him to the congregation. A clip of this was on Youtube. However to protect the applicant the pastor had intentionally not named him, and at the hearing the applicant readily agreed that Iranian authorities would be highly unlikely to know it existed.”

8. In relation to the linked YouTube video the Tribunal, as previously constituted, found ([68] at CB 174):

   “68. However I have considered whether his conduct in Australia in being baptised, attending the church and doorknocking, might bring him within the Complementary Protection criterion. There is no evidence that anyone from the church, or anyone else he knows, has reported those activities to the Iranian authorities. He gave evidence that his sister in Australia knows of his baptism but does not claim she passed on that information to anyone in Iran. He does not claim that anyone at the church might have passed on that information, and agreed that it was highly unlikely that the Iranian authorities would know of the Youtube clip of him at the church in which, in any case, he was not named. On that basis I am satisfied that no one in Iran knows, or might inadvertently come to know, of the applicant’s religious activities in Australia.”

9. Following the remittal of that decision (on a matter not connected with the linked YouTube video) the applicant’s representative wrote to the Tribunal.  (CB 211).  The letter sent under cover of another letter (CB 209) referred to a number of documents in support of the applicant’s claim (CB 211):

   “Please note that the following documents have been uploaded in support of the review application:

   1.Letter from the Applicant’s Pastor
   2.Certificates of the Applicant’s church activities
   3.Two videos of the Applicant’s church activities

   The uploaded documents and videos provide evidence of the Applicant’s participation in his church community and in particular, of his volunteer work as a translator for his pastor in the evangelical church. This proves beyond any doubt, the Applicant’s conviction in Evangelical Christian tenants and certain harm of persecution that he will experience if he returns to Iran.”

10. Before the Court the applicant referred to parts of the letter provided by the applicant’s religious pastor (CB 212–CB 213) and in particular the assurances that the applicant had “become a true Christian”, and “has a special interest in helping Muslims see the error of Islam and to become Christians”.

11. It must be said it was difficult to see how any of this related specifically (other than as general background) to the ground as stated. The ground specifically identifies the claimed error as being that the Tribunal did not consider the applicant’s claim that he would be identified by the Iranian authorities because of his appearance in a publicly available YouTube video.

12. Before the Court the applicant sought, and was granted leave, to play two video clips.  The evidence of his solicitor (see the affidavit of Mr Davityan affirmed on 12 March 2019) is that these were the two videos which he sent to the Tribunal and as referred to in his letter of 13 October 2016 (CB 220).

13. Also on 13 October 2016 the applicant’s representative sent another letter to the Tribunal (CB 222).  With this letter further “documents” were sent to the Tribunal.  These included (CB 222):

    “3. Mark Tossell – Update on Church and New Convert (please see below link)

    note the above enumerated documents clearly reflect on the good character of the Applicant. Furthermore the imbedded link demonstrates the vis [sic: visa] Applicant’s initial conversion to the evangelical Christianity.”

1. Before the Court the link to the web address was accessed and the linked YouTube video was shown. The video showed the applicant participating in what appeared to be some sort of a religious event.

2. It is to be noted that the applicant’s ground, as stated, and on which he confirmed at the beginning of the hearing he sought to press, makes reference only to one video. That is, the video which is the subject of the YouTube link as referred to in the applicant’s representative’s letter (with reference to what is set out at CB 222).

3. The applicant sought leave to further amend his ground during the course of the hearing before the Court, to include reference to the other two video clips. I adjourned to allow the applicant’s counsel to prepare a form of words to identify the proposed amendment. On resumption the applicant confirmed that he was no longer seeking the amendment to the ground.

4. The applicant’s argument therefore proceeded as follows.  One, there was no reference to the linked YouTube video at the hearing before the Tribunal (as constituted for current purposes). Two, further there was no reference to it in the Tribunal’s summary of the applicant’s claims in its decision record. Three, nor is there any reference to the linked YouTube video in the Tribunal’s subsequent analysis.

5. The gravamen of the applicant’s case before the Court was as follows. The applicant had converted to Christianity in Australia. There was evidence to support the genuineness of this conversion before the Tribunal.

6. Following his conversion the applicant participated in certain church activities.  One of those was recorded on the video accessed by the YouTube link provided by the applicant’s representative to the Tribunal.

7. The Tribunal found adversely to the applicant’s credit, and further found that he had fabricated his claim so as to be granted a protection visa ([42] at CB 279).

8. No reference was made to the linked YouTube video in the Tribunal’s reasons as to why it did not accept the conversion to be genuine.

9. Nor in the applicant’s submission, with reference to the ground as pleaded, was there any reference to it when the Tribunal came to consider the applicant’s claims against the complementary protection criterion.

10. The applicant submitted that the linked YouTube video was relevant to his claim that he had converted to Christianity, and that through the linked YouTube video, he may be identified by the Iranian authorities as having converted to Christianity.

11. The applicant agreed that the Tribunal (as earlier constituted) had addressed the matter of the linked YouTube video clip ([68] at CB 174):

    “68. However I have considered whether his conduct in Australia in being baptised, attending the church and doorknocking, might bring him within the Complementary Protection criterion. There is no evidence that anyone from the church, or anyone else he knows, has reported those activities to the Iranian authorities. He gave evidence that his sister in Australia knows of his baptism but does not claim she has passed on that information to anyone in Iran. He does not claim that anyone at the church might have passed on that information, and agreed that it was highly unlikely that the Iranian authorities would know of the Youtube clip of him at the church in which, in any case, he was not named. On that basis I am satisfied that no one in Iran knows, or might inadvertently come to know, of the applicant’s religious activities in Australia.”

12. Before the Court the applicant argued that the linked YouTube video referred to by the earlier constituted Tribunal was the same video referred to in the representative’s subsequent letter to the Tribunal as differently constituted.  That is the “second” Tribunal (see further below).

13. In essence the Minister’s response was that when proper regard is had to what the applicant actually claimed, and how his claims were variously presented, then the “claim” on which he now relies was not made, or in the circumstances the Tribunal (as secondly constituted) was not required to explicitly address in its decision record.

Consideration

1. It is clear that in his application for the visa, and before the delegate, the applicant’s claim to fear harm on return to Iran, and the basis for his claim to protection in Australia, was that he was a genuine convert to Christianity and would suffer harm for this reason in circumstances where he was a former Muslim.

2. No other claim to fear harm, or iteration of that claim, was advanced.  As the delegate found: “…he requests the Australian government to protect his life because he converted from Islam to Christianity” (CB 113.4).

3. The applicant’s own submission, in writing, to the Tribunal when making his application for review made this clear (CB 153.3 and CB 155.5):

   (1)“During my time in Australia I came to be influence and convinced by the Christian faith. With the Pastoral guidance of my church I became a Christian. It is now my faith of choice and it is in my heart.

   When my family and friends heard of this they pointed out the terrible persecution I could face when returning to Iran. I am afraid of going back to my home country because of being persecuted by the Islamic Republic of Iran. Therefore I have applied for a Protection Visa from the Australian Government on 26/2/2013 which was refused on 30/9/2013.”

   (2)“I hope that the Australian government can protect me from persecution and the danger of death that I may encounter by the Islamic Regime of Iran in case I return, just because I have converted from Islam to Christianity. I would like to request the Australian government to allow me to serve God and be a valuable person for others in my future life by granting a protection visa.”

1. The basis of the applicant’s current ground relies on what the Tribunal (as earlier constituted) reported had occurred at a hearing with the applicant.  There is no transcript of that hearing in evidence before the Court.  Neither party raised any question about the Tribunal’s (as earlier constituted) report of what had occurred.

2. As set out above the applicant now relies on [35] of the earlier constituted Tribunal’s decision (see [14] above).

3. What emerges from this paragraph is that the applicant gave evidence that only his mother, and no one else in Iran, knew of his conversion.

4. It appears that this prompted the Tribunal member to ask if there was any way that anyone else might know of the conversion.  I pause here to note that this does not appear to logically follow from the applicant’s own evidence.  If the applicant’s evidence was that no one else knew of the conversion, then the reason for the Tribunal’s subsequent question is difficult to understand.

1. In any event what follows in [35] was not satisfactorily addressed, or explained, by the applicant, before the Court now.

2. The applicant’s evidence to the Tribunal (as earlier constituted) was that his pastor had introduced him to the congregation, and a “clip” of this was available on YouTube.

3. What is of immediate relevance, and what was not satisfactorily addressed now, was the applicant’s evidence that to protect him the pastor did not name him in the video, and importantly:

   “…the applicant readily agreed that Iranian authorities would be highly unlikely to know it existed.”

1. Given that evidence, and at that point, the Tribunal (as presently constituted) was subsequently reasonably entitled to take the view that the applicant had not made any claim that the Iranian authorities might know of his conversion, because of the linked YouTube video, given his clear evidence to the contrary (see also further below).

2. Plainly the Tribunal (as earlier constituted) did go on to further consider the matter of whether the Iranian authorities might know, or could know, of the linked YouTube video ([63] at CB 174):

   “63.The applicant has claimed that the only person in Iran who knows of his conversion is his mother. As I do not accept he has converted I am not satisfied that he has told his mother that he has. It has not been claimed by him that anyone in Iran has become aware inadvertently of his religious activities in Australia. Therefore I am satisfied that no one in Iran considers him to be a convert to Christianity. Nor, in the absence of any evidence to the contrary, am I satisfied that anyone in Iran might perceive him to be a convert to Christianity in the reasonably foreseeable future.”

1. With specific reference to complementary protection the earlier constituted Tribunal stated [68] at CB 174:

   “68. However I have considered whether his conduct in Australia in being baptised, attending the church and doorknocking, might bring him within the Complementary Protection criterion. There is no evidence that anyone from the church, or anyone else he knows, has reported those activities to the Iranian authorities. He gave evidence that his sister in Australia knows of his baptism but does not claim she passed on that information to anyone in Iran. He does not claim that anyone at the church might have passed on that information, and agreed that it was highly unlikely that the Iranian authorities would know of the Youtube clip of him at the church in which, in any case, he was not named. On that basis I am satisfied that no one in Iran knows, or might inadvertently come to know, of the applicant’s religious activities in Australia.”

1. Notwithstanding the Tribunal’s (as earlier constituted) consideration and findings in this regard, what still remains at the conclusion of the earlier constituted Tribunal’s consideration, is the applicant’s evidence, given in response to the Tribunal’s question, as set out above at [43] above.

2. Before the Court the applicant relied on his representative’s email (letter) to the Tribunal of 13 October 2016 (CB 222 – and see [20] above).

3. As set out above the email made reference to the YouTube video and provided a link to it.  Before the Court the applicant argued that it could be inferred that this was the same YouTube video that was referred to in the earlier Tribunal’s decision.

4. There is no conclusive evidence before the Court that this is the case.  Mr Davityan’s evidence before the Court, in which he makes reference to two videos, is that he identified these as videos he sent to the Tribunal on 13 October 2016 (see at [2]). That is after the decision made by the earlier constituted Tribunal.

5. Relevantly, the applicant’s representative sent two emails to the Tribunal on 13 October 2016 (see CB 220 and CB 222 respectively).  The first email makes reference to “two videos” (at item 4 – CB 220).  The second refers to the linked YouTube video (item 3 at CB 222).  It is the linked YouTube video to which the applicant’s ground refers. This is the evidence on which he now relies. These references postdate the earlier constituted Tribunal decision.

6. For the sake of completeness I note that the earlier constituted Tribunal (at [35] CB 170, and see [63] and [68] at CB 174 on which the applicant now otherwise relies) made reference only to “A clip… on YouTube”.  No reference is made to any other videos by the earlier constituted Tribunal in relation to the matter of who may have known about his conversion in Iran.

7. The email in which the reference to the YouTube link is made (CB 222) makes clear the purpose for submitting the YouTube link as being (CB 222.7):

   “I note the above enumerated documents clearly reflect on the good character of the Applicant. Furthermore the imbedded link demonstrates the vis [sic: visa] Applicant’s initial conversion to the evangelical Christianity”. 

1. The following relevantly emerges from this.  One, the applicant made no claim through the representative’s email submitting the YouTube link, that the purpose of the submission was to corroborate any claim relating to what the Iranian authorities might possibly know about his Christian activities in Australia.

2. Two, as the Minister submitted, had the applicant wished to make such a claim then clearly this was his opportunity to do so.  No such claim was made in the email.  As the Minister’s counsel submitted any such claim, and any explanation for it is “conspicuously absent” from the email.

3. Three, it is to be noted, as set out above that at the conclusion of the earlier constituted Tribunal’s conduct of the review, no such claim emerged from the applicant, either expressly, or clearly arising from the circumstances presented.  To the contrary the applicant’s reported position was that it was highly unlikely the Iranian authorities would know of his activities.

4. Four, nor did the applicant point to any other document, submission, or evidence where any such claim emerged, either expressly, or clearly, in the circumstances presented.

5. In his submissions before the Court the Minister referred to parts of the transcript of the Tribunal hearing conducted by the Tribunal (as presently constituted).

6. In particular the Minister referred to T 7–T 8 where the Tribunal member set out for the applicant the material before the Tribunal:

   “Rodger Shanahan: … So I’ll just go through your files to make sure I have everything that I should have.  I’ve got your previous file, which contained your original application and (14:47) your statement in support of that; the original decision record from the Refugee Review Tribunal and also a CD that contained the interview you had with the Immigration Department, and which I have listened to; a series of submissions that contain some country information dated September this year; a number of references, written references, also from October this year; documents from Pastor Keith Piper at the Liberty Baptist Church from October this year; photos about church activities and a photocopy of a character reference from November this year.  Some more references from November this year and … three references from November this year.

   Male Speaker:  Member, if I may (16:22)?

Rodger Shanahan: Yes mate.

Male Speaker: Have you had the opportunity to get the letters of support and reason for the absence for the brother-in-law of [the applicant]?

Rodger Shanahan:  Sorry, who’s the brother-in-law? What’s the name?

Male Speaker: It was Max, Max (16:38). And a copy of his passport. And he … has he explained the reason for why he couldn’t attend the hearing?

Rodger Shanahan: I’ve got the one from (16:46) as to why he won’t be attending.

Male Speaker: That’s right. And his phone number and email addresses if you need to have any access to him. And … but this one is before it (16:57).

Rodger Shanahan:  Yeah, I’m still, still going through stuff, mate.

Male Speaker:  All right.

Rodger Shanahan:  (17:01) gone through them all and I’ll give you an opportunity to see if I’ve missed anything.

Male Speaker:  Good.

Rodger Shanahan:  (17:06) file, which (17:21) bit out of order, but this is from February 2014, which also contained a statement from you, that is the applicant, a statutory declaration and some letters of support.  And when was that letter of the brother-in-law that you (17:45)?

Male Speaker:  Twenty-seventh of November at 6:00pm.  Contains a copy of his passport.

Rodger Shanahan:  Yes, thanks (17:58)?  Yep.  Yes, I have it (18:05).

Male Speaker:  (18:05).

Rodger   Shanahan:  Now out of all that, are there any documents, which I should have, which I haven’t mentioned?

[The Applicant]: No.”

1. As the Minister submitted there is no mention by the applicant’s representative, or for that matter the applicant himself, of the YouTube video, or the link to it. The Tribunal’s references to the “series of submissions” and “a number of references…from October this year”, must include a reference to the document containing the YouTube link reference (dated 13 October 2016 – the hearing was held on 8 December 2016).

2. In these circumstances it cannot reasonably be said, or inferred, that the Tribunal member overlooked the link to the YouTube video.

3. Nor, relevant to the ground as stated, that the Tribunal failed to consider a claim made by the applicant.  That claim, as described now, was not made by the applicant in the circumstances set out above, nor did it clearly arise from the circumstances presented.

4. The possibility, as to what the Iranian authorities knew of his Christian activities was raised by the Tribunal as earlier constituted, and was refuted by the applicant’s own evidence.  Nor, despite opportunity, was the matter ever raised by him before the Tribunal as currently constituted.

5. What remains therefore, is that contrary to what is asserted in the applicant’s ground now, the applicant (for the reasons, and in the circumstances, set out above) made no claim to fear harm because the Iranian authorities knew of his church activities in Australia through the YouTube video.  That is sufficient to dispose of the applicant’s ground.

6. For the sake of completeness I note that the applicant’s claim to fear harm on return to Iran was that as a Muslim he had engaged in Christian church activities in Australia and had been baptised in a Christian church.

7. The Tribunal considered this claim.  In the context of complementary protection, it found that the applicant had not ([58] at CB 281):

   “…genuinely converted to Christianity, has or would seek to practise or promote Christianity in Iran, or that the applicant will be imputed with being a Christian and/or apostate through his church attendance…”.

1. The applicant submitted before the Court that the YouTube claim (as expressed in the ground) did arise from the circumstances presented.  For the reasons given above I do not accept this submission. Given the absence of any specific claim, either expressly made by the applicant, or clearly arising from the circumstances presented, as to the YouTube video, it was reasonably open to the Tribunal to find, for the reasons otherwise given, that ([56] at CB 280-CB 281):

   “…he does so I do not accept that the applicant will be harmed simply for being a failed asylum seeker. Country information indicates that a voluntary returnee is ‘..unlikely to attract much interest from authorities amongst the large regular movements of Iranians.’² and that Iranian officials do not attempt to prosecute a voluntary returnee.³ This was reinforced by a February 2011 UK Upper Tribunal decision found that those (Iranians) ‘merely returning from Britain’ are not at real risk of mistreatment’⁴.”

[Footnotes omitted.]

1. In this case, for the purposes of complementary protection the Tribunal was aware that it needed to consider the applicant’s conduct in Australia.  It found that the applicant would not “be imputed with being a Christian and/or apostate through his church attendance” (at [58] CB 281).

2. At its highest this was the claim made by the applicant.  This was the claim considered, and for reasons given, probative of the evidence, rejected by the Tribunal.

3. I note also that before the Court the applicant made reference to such authorities as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) for the proposition that the Tribunal overlooked the YouTube link, and that the video to which it led was material to its decision.

4. The applicant referred to [34] of SZSRS:

   “The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all:  SZGUR at [31].  The Tribunal may have considered the matter but found it not to be material.  Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked.  The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact.  But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all.  The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material.  In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight:  MZYTS at [52].”

1. Before the Court the applicant submitted that there was “no need” for the applicant to raise the claim (relating to the YouTube video) himself.  That is, in the sense of making any such express claim.  I agree that the Tribunal is also required to deal with a claim that clearly arises in the circumstances presented.

2. In the current case however, for the reasons set out above, no such claim as expressed in the ground before the Court can be said to have clearly arisen from the circumstances presented. Nor relevantly in the circumstances can it be said that the YouTube link or the video to which it referred gave rise to a “clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).

Conclusion

1. The sole ground of the application is not made out.  It is appropriate to dismiss the application as amended.  I will make that order. 

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  30 July 2019