ANZ16 v Minister for Immigration

[2016] FCCA 3015

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANZ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3015

Catchwords:
MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – whether Tribunal asked the wrong question – whether Tribunal’s findings open on the evidence – no jurisdictional error shown – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.36(2)(aa), 91R(1)(b)

Applicant: ANZ16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 75 of 2016

Judgment of: Judge Burchardt

Hearing date: 10 October 2016

Date of Last Submission: 10 October 2016

Delivered at: Dandenong

Delivered on: 5 December 2016

REPRESENTATION

Counsel for the Applicant: Mr S. Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the First Respondent: Ms N. Milutinovic

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 15 March 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 75 of 2016

ANZ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant, by an amended application filed 19 July 2016 seeks judicial review of a decision of the Administrative Appeals Tribunal dated 11 February 2016.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection visa.

2. The applicant has abandoned grounds 1, 4, and 5 of the amended application, and sought to add a further ground 6.  The first respondent has not objected to the additional ground.

3. Thus, the three asserted errors of the Tribunal, as now put, are that the Tribunal committed jurisdictional error in failing to ask itself the correct question about the applicant’s willingness to wear clothing that offended Iranian public morality laws, that the Tribunal committed jurisdictional error in not asking itself the right question about whether the applicant held a political opinion that was adverse to the government, and finally on the basis that the Tribunal’s finding arising from country information about risk of harm, as a failed asylum seeker, was simply not open on the country information in fact relied upon by the Tribunal.

4. For the reasons that follow, I do not think that any of the criticisms are made out, and it follows that the application must be dismissed with costs.

The Materials in the Court Book

1. The submissions made on behalf of the applicant turn largely on a very detailed consideration of the Tribunal’s decision, both by reference to what the applicant’s case was as disclosed by the materials in the Court Book (“CB”) and, further, in the country information documentation.  In the circumstances it is, in my opinion, appropriate to commence by looking at what it was the applicant said from time to time, and what the Tribunal made of it.

2. The applicant’s irregular maritime arrival interview is at CB1 - 16.  At CB11 the applicant explained why he had left Iran.  He explained, “Well basically it is the pressure that every young person in Iran has been under and the lack of justice and the pressure.”

3. He went on to give details of the day on which he was dressing up for after work at the coffee shop where he worked.  Officers of the Amalken came into the shop and started to pick on him about his clothes and the cologne he was wearing.  He went on to say,

   “He did not tell me to leave that job but he started picking on me and asking why I did not dress appropriately.  I realised I could not work there any more.  Then there was another incident that happened during one of the celebrations for Iranian New Year.  The reason I left the shop was that I had set up the shop and I did not want to cause any problems for the shop.”

4. The applicant confirmed by ticking the relevant box that neither he nor his family had been associated or involved with any political group or organisation, but also ticked the box to say that he had been involved in protests against the government.  The details were that in 2009, “it was a gathering just showing our protest, and as it was close to my place of work, I just attended to show my disapproval of what was going on.”  He affirmed that he attended at least five or six times, and his nose was broken in the last protest he attended by the Basij.

5. The applicant ticked the box to confirm that he was not a member of any particular social or religious group, but did confirm that he was arrested just before the elections in 2009 and taken to a police station where he stayed for one day.  The application did not otherwise reveal anything of any moment.

6. The applicant applied for a Protection visa with the assistance of a representative.  The relevant part of the application is his statutory declaration at CB75 - 78.  He deposed to working for Ali Haeri, and other people who had links in the politics of Iran, and observed how corrupt they were.  He deposed that he decided to leave his workplace, but Ali Haeri would not allow him to leave, because Mr Haeri was wary of the fact that the applicant knew too much about him and his team.

7. The applicant deposed to being arrested before the 2009 presidential election.  A police officer saw a tattoo on his arm and interrogated him about what it represented.  He was detained overnight, but the next day was acquitted by the judge.  Nonetheless, he had to return to the police station daily for some 10 days or so.

8. The applicant further deposed that he participated in post election protest and was beaten by security agents, having his nose broken during one demonstration, but was not arrested.

9. The applicant deposed that in May 2011 he started up his coffee shop and juice bar in partnership with a friend, Hamid.  In February 2013 an Amaken officer came to his shop.  The officer started picking on the applicant, accusing him of wearing tight jeans, inappropriate attire and wearing perfume.  After about 20 minutes the applicant responded to the officer, who did not like his answers, and took his notes and left the shop.  About three weeks later he received a notice from Amaken effectively to cease the shop forthwith, but Hamid and he went to Amaken straightaway.  Hamid knew very influential people, and following several phone calls by Hamid the file was closed.

10. The applicant did not receive any further notices from Amaken, but the applicant asserted,

    “I, however, could not continue my job in the shop.  I left the business.”

    “After losing my job for the second time, I decided to flee Iran and seek protection in a country where I would not lose my work and be humiliated because of non-conformity to Islamic standards.”

11. The applicant went on to depose,

    “I believe that if I return to Iran, the rest of my life would go wasted.  I was threatened by Ali Haeri, and I am afraid that he would cause me difficulties if I returned to Iran…… Ali Haeri is the grandson of Ayatollah Haeri.  They have a lot of power and influence in Iranian politics.  No authority would protect me against Ali…… I have not lived anywhere else in Iran.  I do not have any relatives, friends or family members in the other parts of the country.  I would face serious difficulties to sustain myself whilst Ali’s threats could extend to me anywhere in Iran.”

12. The decision of the delegate is at CB95 - 115.  The delegate set out the applicant’s statutory declaration in full at CB99 - 100, and then recorded matters revealed in interview at CB100 - 101.  The applicant told the delegate that there was a big difference in Tehran as to how you were treated, depending on where you live and work.  The area where he worked was a wealthy area where people can generally get away with dressing more fashionably.  He did not know why the Amaken officer picked on him definitively.  He suspected Ali, but that was only one possibility.

13. The applicant’s agent asserted, “If the applicant is going to live the way he would like to live, this kind of thing is likely to occur inevitably whether Ali is involved or not.”  The applicant said his only option would be to keep his head down and dress conventionally.  The applicant’s agent also said that the applicant has a track record, and if picked up it will resurface and be a danger for him.  The agent said “the reason for fleeing Iran might at times sound trivial it is often the accumulation of trivia at which stage the applicant can’t put up with it any longer and leaves”.

14. The delegate found at CB102 that the applicant’s answers regarding his work as the manager of the coffee shop/juice bar were internally consistent.  The delegate accepted these claims, and that the Amaken visited and made notes about the applicant’s dress and the like.  The delegate accepted that the owner of the business was the son-in-law of the former Iranian wrestling coach, and had influence, and was able to get the decision to close the shop reversed.  The delegate noted that the applicant chose to leave the business after the event, and was not dismissed by the owner directly.

15. The delegate accepted that the applicant had been involved in the 2009 protests at a low level, this assessment being based on the applicant’s age and the vast number of young people involved.  He accepted that the applicant suffered physical harm at the time.  The delegate also accepted that the applicant might have had trouble with Basij previously for having a tattoo and for no apparent reason while riding his motorbike, but did not accept that these events related to his involvement in 2009 protests, or because he had a prior profile.

16. The delegate noted that the applicant’s tattoo was not visible at interview, and appeared to be easily covered.  The delegate did not accept that Mr Ali Haeri was responsible for the applicant’s prior problems with the Basij, because they occurred before he worked at Ali’s establishment.  Likewise, the delegate did not accept that the difficulty with the Amaken was sourced from Mr Ali.

17. At CB104 the delegate summarised conclusions which effectively accepted most of the applicant’s claims as to his prior difficulties, but did not accept that he had previously worked for and had continuing issues with powerful Muslim cleric Ayatollah Haeri’s grandson, Ali Haeri.

18. The delegate referred to country information at CB107 and following.  This included a report from DFAT in November 2013 (CB 108) that

    “Authorities can take a heavy-handed approach when they periodically enforce standards of Islamic conduct in the community, including Islamic dress and public appearances with non-family members of the opposite sex.  ...  However, it is relatively common for youth that do not wear traditional Islamic dress to experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour”.

    “I also note that many Iranians still fail to observe the Islamic dress code, with one report saying that only 37% of women and 41% of men observe hijab.  Given that there are over 76 million people living in Iran, I find that the applicant does not face a higher risk of being stopped by the Basij than any other person in Iran.  I also find that even if he were to be found in breach of morality laws in the future, the treatment he would face would not amount to persecution”. 

    Country information from DFAT states that: 

    “Tattoos are becoming increasingly common in Iran, particularly among youth.”  And that “DFAT is unaware of any recent, specific report of people being targeted by security forces solely for having a tattoo and that DFAT believes it unlikely that authorities would maintain an interest in someone who had previously come to their attention for having a tattoo.” 

    The delegate, therefore, did not accept that the applicant faced a risk of persecution on the basis of his dress or tattoo.

19. The delegate did not accept that the applicant was at risk of persecution by the Amaken, not least because the business that the Amaken closed and then permitted to be reopened was not that of the applicant.  The delegate concluded as a result that the applicant did not face risk of persecution for a Convention reason, and also dismissed the claim, having considered the complimentary protection regime in section 36(2aa) of the Migration Act 1958.

20. The applicant applied for review to the Tribunal, but no further material relevant for these purposes was forwarded to the Tribunal.

The Decision of the Tribunal

1. The Tribunal set out the application for review and the relevant law at CB139-142, and counsel for the applicant expressly disdained any criticism of those parts of the judgment.  Likewise, the Tribunal’s analysis of the likelihood of persecution by the Amaken or other authorities acting at the behest of one or both Haeri brothers, or Mostafa Pourmohammadi was not the subject of challenge (paragraphs 71 - 80).

2. The Tribunal set out the background and claims (paragraphs 26 - 56).  I do not understand this recitation itself to be the subject of criticism,  and it seems to me correctly enough to paraphrase the applicant’s claims.  Accordingly, it is the passages that deal with the applicant’s claims of possible persecution because of his manner of dress or his tattoo, or his risk of persecution as a failed asylum seeker returned to Iran that require attention.

3. The Tribunal considered the question of the applicant’s dress and tattoo at paragraphs 81 – 90 (CB148-150). The Tribunal noted that the ordinary shirt the applicant wore to the hearing did not expose his tattoo, which the applicant had changed from a skeleton into a tiger because the authorities had earlier asserted it had an association with a street gang.  The Tribunal noted the Amaken visit in 2013 had focused on the applicant’s hair, clothing and cologne.  At paragraph 83 (CB148), the Tribunal said “the Tribunal therefore turns its mind to whether the applicant faces a well founded fear of persecution by reasons of his tattoos or style of dress or hairstyle (whatever nexus to the convention may be ascribed).”

4. The Tribunal turned its mind to the principal that asylum seekers are not required, and nor can they be expected, to take reasonable steps to avoid persecutory harm.  The Tribunal noted that it could not impose an expectation of discreet behaviour on the applicant in order to avoid the attention and harassment described.  At paragraphs 85 - 86 the Tribunal said:

   For the Tribunal, however, the question of whether the applicant faces a well founded fear of persecution by reason of his tattoos or style of dress or hairstyle (whatever nexus to the convention may be ascribed) is not a question of the applicant being required to behave in any particular way, other than to be dressed in accordance with the rules which apply to all people within the territory of Iran.  In this regard, the Tribunal considers that if the applicant were to obey Islamic dress codes (hijab) which apply universally in Iran, his tattoos are not visible and there is no real chance that he would face harm in connection with having them.  Similarly, he would be attired in a manner consistent with those dress codes.  There is no evidence before me to indicate that they are enforced selectively against particular groups, or in a discriminatory manner.  Such rules apply to everyone in Iran.  I find that in his circumstances, complying with these rules means that his fear of harm in connection with attire and displaying tattoos in public is not well founded. 

   For completeness, the Tribunal also does not consider that being subject to those particular laws of general application regarding hijab per se is either ‘persecution’ or, indeed, ‘persecution for a convention reason’ in this case. Section 91R(1)(b) of the Migration Act provides that ‘persecution’ must involve ‘serious harm’. Non-exhaustive examples of serious harm are provided for in subsection 91R(2). Without setting out the examples of instances of serious harm provided for in that subsection, I do not consider that being subject to public morality laws and mandatory hijab are of sufficient gravity to constitute serious harm. In reaching this view, I have considered all of the applicant’s circumstances as known to me. I accept that enforcement of a law of general application can amount to persecution if it is implemented or enforced in a discriminatory manner, but in the case of enforcement of hijab and public morality laws in Iran, I do not consider that being subject to those laws constitutes serious harm.

5. The Tribunal went on to consider the issue in the context of the punishment inflicted on people who break public morality laws or are identified in public with bad hijab.  The Tribunal noted country information about the penalties for bad hijab in public, which included (paragraph 88) (CB 149):  fines, warnings and “women getting stuffed into one of their ubiquitous vans” or manhandled into a car.  The Tribunal went on to say at paragraph 89:

   Accepting that the punishment for such ‘offences’ can range from fines through to more severe punishment, I do not consider that any harm is inflicted by reason of a convention ground, as I am not satisfied that there is a discriminatory impact of enforcement of these laws.  Rather, the harm is inflicted as a punishment for what the Tribunal has found to be a law of general application. 

6. The Tribunal went on at paragraph 90 to find that the applicant did not have a well founded fear of persecution for any Convention reason arising out of his claims and evidence relying on this tattoo or attire. 

7. The Tribunal went on to deal, at paragraphs 90 - 95 (CB 150), with the chance of persecution on the basis of the applicant’s involvement in protests in 2009.  The Tribunal accepted that the applicant might have been involved in such protests, as were many thousands of other Iranians in 2009, but noted at paragraph 91:

   He says that in 2009 he participated in protests and that his nose was broken.  He was neither arrested nor detained during this incident.  He was able to get away from the scene and get to a doctor, who was able to provide medical assistance.  He has not indicated that he has been involved in any further protests or that he has experienced any further harassment from the authorities based on his one-off involvement in 2009. 

8. The Tribunal found as a result that the applicant had not come to the adverse attention of the government due to his actual or imputed political opinion and was not of interest to the government at the time of his departure.  The Tribunal accordingly dismissed this aspect of the claim.

9. The Tribunal dealt with the question of risk as a returned asylum seeker at paragraphs 96 - 112, CB 150 - 154.  The Tribunal noted that the applicant obtained and departed Iran on a genuine passport via the usual legal channels.  The Tribunal noted that it had had regard to a certain amount of country information in relation to the applicant’s likelihood of risk upon return.  I will return to that matter in more detail when dealing with the submissions made.  The Tribunal accepted (paragraph 101) that the applicant “may be asked questions both in Australia at the time when their departure is being organised (voluntary or involuntary) and upon his return to Iran.  The Tribunal has assessed the applicant’s case on the basis that he may be stopped, interviewed and have his case ‘examined in detail’.

10. The Tribunal noted that as of August 2014 about 770 Iranian asylum seekers had returned from Australia, Manus Island and Nauru to Iran in the preceding year and that there were no reports of any harm inflicted on any of these returnees (paragraph 102), but noted (paragraph 103) that the absence of evidence of harm is nothing more than that – the Tribunal is not satisfied that there is any probative and reliable evidence on which it can make a finding in the applicant’s favour.  The absence of such favourable country information does not constitute evidence that the Iranian Government has covered up all cases of harm of returned asylum seekers. In the absence of evidence that returnees without a particular profile are at risk of harm, the Tribunal cannot accept that every Iranian who returns from Australia faces a real chance of persecution for the reason that they have been to Australia and/or sought asylum in Australia. 

1. The Tribunal noted a number of examples of failed asylum seekers experiencing serious harm on arrival in Iran at paragraphs 105 - 108, but the persons referred appear to have a higher profile than the applicant.  The Tribunal found at paragraphs 111 – 112 (CB 154):

   The Tribunal considers, based on the country information set out below, that unless a person has an anti government profile before they leave Iran, or they engage in perceived or actual anti-government or anti-Islamic activities while abroad, a returned asylum seeker is not at risk of harm on return. 

   The Tribunal finds that on return to Iran, after some questioning, the applicant will be able to resume his former life without any harassment or problems from the authorities, his closer extended family, friends, neighbours, or people of the market. He can continue not to participate in organised religious activities as millions or Iranians.  He can go back to doing the sort of work he did before.  He is not of adverse interest to anybody in Iran.

Ground 2

The Second Respondent committed jurisdictional error in that the Second Respondent did not ask itself the right question about the applicant’s willingness to wear clothing that offended Iranian public morality laws (paragraph 89 of decision).  The Second Respondent should have determined whether the applicant was a member of a particular social group before considering whether punishment for the offence (of not wearing proper clothing) was punishment for a conventional reason.

1. The sustained criticisms of the Tribunal’s decision under this ground are perhaps encapsulated at paragraph 6 of the written submissions as follows:

   The Tribunal’s findings in respect of the issue of the applicant’s manner of dress or his tattoo gives rise to an inference that it misunderstood the proper question or, in some manner, relied upon the irrelevant material in respect of it, and thereby committed jurisdictional error.  There are four bases for such an inference, which are set out below.

2. It was submitted that this raised the issue of how persecution could arise and at whose behest, and involves determination of the following matters (paragraph 9, written submissions):

   a)Whether there is a law.

   b)Whether the law is enforced by agents of the State or others.

   c)Whether the punishment faced in respect of a contravention of the law is persecution (and therefore serious harm) for the purposes of s 91R.

   d)Whether the law is, in truth, a law of general application.

   e)If so, whether it is nevertheless enforced in a discriminatory fashion.

3. It was submitted that “the Tribunal considered the matter in an abstract manner, concluding that unstated laws in respect of the issue “apply universally in Iran” and “are not enforced selectively against particular groups or in a discriminatory manner.”

4. It was strongly submitted that at the point where the Tribunal made this finding, it had made no finding about the existence of the law at all, and that no country information concerning such a law was considered (paragraph 12 written submissions).

5. It was submitted that the Tribunal’s specific findings were contradictory in as much that the finding that punishment could be severe contradicts the finding that being subject to the laws was not serious harm.  No finding was made as to who would be enforcing the law.

6. Finally, criticism was made of the use of the phrase “whatever nexus to the convention may be ascribed.”  It was submitted that the Tribunal should ordinarily start with the issue of the convention basis for the fear asserted.  Put together, it was submitted that all these matters meant the Tribunal (in some way) had not really understood the manner in which it was supposed to consider the issue, but, rather, just made a grab bag of contradictory findings.  In oral submissions these matters were expounded upon at some length, and it was submitted further that the findings were unclear as a whole.  The Court should infer that the Tribunal had misunderstood the test.

7. Counsel for the first respondent was largely content to rely upon the written submissions filed.  It was submitted that the Tribunal was aware of the task that confronted it, and was clearly aware of the applicant’s claims. 

8. It was submitted that the Tribunal’s decision should be read fairly and as a whole.  The gravamen of the submissions is at paragraph 26 of the written submissions and is to the effect that the applicant was not required to behave in any particular way other than to be dressed in accordance with the rules which apply to all people within the territory of Iran, that the Islamic dress hijab code is universally applied and is not enforced in discriminatory manner.

9. It should be noted that the Tribunal had asserted, correctly in my view, at paragraph 66 “the issue in this case is whether Australia has protection obligations in respect of the applicant.”  While that is, of course, an observation put at a considerable level of generality, it shows that the Tribunal was starting from a clear and accurate perception of what its task was. 

10. It is, as the applicant submits, the case that the Tribunal did not commence by seeking to define what, if any, particular social group the applicant belonged to.  In part, of course, this was because the applicant had not asserted that he belonged to any particular social group.  Furthermore, although the Tribunal observed at paragraph 84 that it was not for the applicant to take reasonable steps to avoid harm, the findings at paragraph 85 appeared, in part, to make the assumption that this is what he would do without assessing whether that would involve persecution in the meaning of the Convention.

11. Similarly, the reference to “whatever nexus as to the Convention may be ascribed” is slightly unusual, but it is understandable in this case.  That is because the Tribunal found that the hijab requirement is a law of universal application in Iran and is not applied in a discriminatory manner.  It is well established that being required to comply with a law of general application is not persecution for a Convention reason unless it involves serious harm.  The Tribunal found that being required to comply with the hijab was not of sufficient gravity to constitute serious harm.  In this latter regard, I think the finding was open to the Tribunal to make.

12. The real question is whether there was evidence that grounded such findings. 

13. In a sense, in my opinion, the submissions made by the applicant about this aspect of the matter are somewhat disingenuous.  The entire tenor of the applicant’s evidence was that he faced difficulties with the Amaken precisely because of such requirements.  The findings of the delegate at CB108 note “strict Islamic practices” and that the authorities “periodically enforce standards of Islamic conduct in the community, including Islamic dress and public appearances with non-family members of the opposite sex”.  The delegate also noted at CB110 “the Amaken were also responsible for a major crackdown in 2007 aimed at enforcing Islamic dress codes among young Iranians”.

14. The Tribunal itself referred at CB149, paragraph 87:

    During the year, vigilantes continued to attack young persons considered unIslamic in their dress or activities … In May, according to press reports, authorities launched an intensified campaign to enforce the mandatory hijab and issued a list of acceptable men’s hairstyles.  

15. Leaving aside the fact that the imposition of strict hijab requirements in Iran is sufficiently notorious, almost as to the attract the characteristics of something that the court could take judicial notice of, it is reasonable also in the circumstances to suppose that the Tribunal member might be expected to have detailed knowledge from their own experience of the state of the law in Iran in any event. 

16. While the formal references to a mandatory hijab are fleeting, they are, nonetheless, contained in the materials.  It cannot be said that the assumption the Tribunal made that this was a law of general application was not a finding open to be made. 

17. Once that finding was made, the question becomes whether the Tribunal fell into error in its reference to severe punishment.   Read fairly and a whole, however, I think all the Tribunal meant was that the penalties for non-compliance referred to in paragraph 88 “ranged from fines to being manhandled into a cop car or stuffed into one of their ubiquitous vans”.  There is nothing, reading the decision fairly and a whole, to suggest that the Tribunal misunderstood its calibration of the effects of mandatory hijab.  Furthermore, at worst, this would be an error within jurisdiction as a mistake of fact is an error within jurisdiction. 

18. The reality is that the Tribunal well understood what its task was, namely, to see if the applicant was likely to face persecution for a Convention reason.  While perhaps some of the reasoning is not entirely well expressed (something I am conscious could be said of these reasons for judgment also given the rather scattergun way in which the submissions have been made), I do not think that the Tribunal fell into jurisdictional error in this regard.

Ground 3

The Second Respondent committed jurisdictional error in that the Second Respondent did not ask itself the right questions (paragraphs 91 - 93 of the decision) about whether the applicant held a political opinion that was adverse to the Government, whether the Iranian Government had maintained a record of the applicant’s involvement in the political protests, and whether the applicant’s involvement in protests in 2009 could have been behind the persecution of the applicant immediately prior to his departure from Iran. 

1. The essence of what was put here is that while the Tribunal was aware of the applicant’s involvement in protests and his broken nose, there was no consideration of what the applicant would do if he returned to Iran. 

2. It is correct, of course, to say that the Tribunal did not state in terms any findings as to what the applicant would be likely to do if he returned to Iran.  However, given the findings the Tribunal made, this is scarcely surprising.  The Tribunal did accept that the applicant, together with many thousands of others, had been involved in protests in 2009, but did not accept he had any significant level of involvement and was not of interest to the Government at the time of his departure. 

3. Given that the applicant had not any involvement in Iranian politics between 2009 and 2013 when he left the country, in my view there is nothing untoward about the Tribunal finding that the applicant was not of interest to the authorities.  Indeed, the applicant left Iran lawfully on a lawfully obtained passport.  The Tribunal’s finding that the applicant did not face risk of harm upon return to Iran by virtue of his actual and/or imputed political opinion was one plainly open to it.  It is implicit, in my view, and sufficiently so, that the Tribunal did not think that the applicant would in the future engage in any kind of political activity.  The applicant had not said he would.  Indeed, as earlier recorded, he indicated that he had not been involved with any political party.

4. The Tribunal did not, in my view, fall into error in not examining a claim that the applicant had not articulated and which did not arise on the materials. 

Ground 6

The finding that a returned asylum seeker is not at risk of harm on return unless a person has an anti-government profile before they leave Iran or they engaged in perceived or actual anti-government or anti-Islamic activities while abroad was rationally or logically open to it by reference to materials upon which relied, and/or was made by ignoring relevant and important material before it and the Second Respondent thereby constituted jurisdictional error (applicant’s supplementary outline of submissions, paragraph 4).

1. It is immediately apparent that the word “not” has been accidentally omitted from that ground. 

2. The applicant’s written and oral submissions note that the applicant had destroyed his passport on the way to Australia and that the Iranian authorities would inevitably come to know that he had been in Australia.  A detailed examination has been made by the applicant of the country information referred to in the Tribunal’s decision.  Looked at fairly what is really put is there was simply nothing in those materials that supported the Tribunal’s conclusion at paragraph 111:

   The Tribunal considers, based on the country information set out below, that unless a person has an anti-government profile before they leave Iran or they engage in perceived or actual anti-government or anti-Islamic activities while abroad, a returned asylum seeker is not at risk of harm on return.

3. It is, of course, trite that it is for the Tribunal to select the country information upon which it determines to rely.  The question, therefore, becomes whether there was anything before the Tribunal which might have justified the finding made.

4. In exhibit A1 being a DFAT Department of Immigration and Border Protection Issues Paper Iran:  Returnees, with a review date of December 2014, it is asserted on page 1 of 28 under the heading Treatment of Failed Asylum Seekers Returned from the Western Country to Iran:

   Available information indicates it is unlikely that all failed asylum seekers would be perceived as anti-regime, and/or mistreated upon their return to Iran.  The sources suggest that the risk of mistreatment is proportionate to an individual’s political profile in Iran and/or engagement in political activity while abroad.  That is, returnees who have been critical of the Government while abroad or have a political profile are more likely to experience interrogation and possible detention upon their return to Iran.

5. At page 2 of 28, the report extracted a quotation of an unnamed judge by Amnesty International as follows:

   Asylum seekers are interrogated on return, whether or not they have been political activists in Iran or abroad.  If they have tried to conduct propaganda against Iran, then they are culpable and detained until a judge decides the sentence.  In recent years, many people have tried to destroy the reputation of Iran and this must be stopped.  Such people help the opposition groups and their culpability is plain.  Returnees will, therefore, be held for a few days until it is clear to the police, that they have been involved in political activity.  If the police can prove that the person was not active and has not done or said anything that could damage the reputation of the Islamic Republic, then they are released.  If the person was either politically active in Iran before leaving, or has been active abroad, they must be tried and receive a punishment appropriate to their activities. 

6. Immediately after this extract, the report goes on:

   “A DFAT report, dated 19 April 2011, stated that ‘it is unlikely Iranian authorities would prosecute an individual simply for claiming asylum overseas’, but noted that it is possible that a known dissident may be prosecuted in this way.”

7. Having read all of the tendered material carefully, it is clear that there are different perceptions as to what risks may arise for a person who is a returned fail asylum seeker.  Nonetheless, the general tenor of the information, including the British materials tendered as exhibit A4 supports the proposition set out in the first DFAT advice to which I have referred above.

8. Put shortly, there was material before the Tribunal which justified the critical finding at paragraph 111.  This being the case, this ground must fail.

Conclusion

1. None of the grounds of application having been made out, the application must be dismissed with costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 December 2016