ARI17 v Minister for Immigration
[2019] FCCA 958
•11 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARI17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 958 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa – visa application rejected by the Minister for Immigration and Border Protection – decision of the Minister affirmed by the IAA – application for judicial review – decision of the IAA affirmed. |
| Legislation: Federal Circuit Court Rules 2001, r.44.12 Migration Act 1958 (Cth), ss.5, 473CB, 473DC, Part 7AA |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 BEL18 v Minister for Home Affairs [2018] FCA 2013 CLS15 v Federal Circuit Court of Australia, The Minister for Border Protection and Administrative Appeals Tribunal [2017] FCA 577 Minister for Home Affairs v EWP17 [2019] FCA 205 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Border Protection [2004] FCAFC 263 NAVK v Minister for Immigration and Border Protection [2004] FCA 1695 |
| Applicant: | ARI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 321 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 12 February 2019 |
| Date of Last Submission: | 2 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Welcome Legal |
| Advocate for the First Respondent: | Mr Yuile |
| Solicitor for the First Respondent: | Australian Government Solicitor | |
| Counsel for the Second Respondent: | None | |
| Solicitor for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 20 February 2017, amended on 14 January 2019 and further amended on 24 January 2019 be dismissed.
The applicant pay the First Respondent’s costs in the amount of $7,467
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 321 of 2017
| ARI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 20 January 2017. In its decision, the IAA affirmed a decision of a delegate of the First Respondent to refuse the Applicant a protection visa.
The Applicant is an Ahwazi Arab male from Iran. On 20 July 2016, he applied for a Safe Haven Enterprise Visa (Visa).
The application for the Visa was referred to a delegate of the First Respondent. On 14 November 2016, the delegate found, among other things, that the Applicant was not a refugee as defined by section 5H(1) of the Migration Act 1958 (Act) and was therefore not entitled to the Visa.
The decision of the delegate was referred to the IAA in accordance with the terms of the Act. On 20 January 2017, the IAA affirmed the decision of the delegate not to grant the Applicant a Visa (Decision).
On 20 February 2017, the Applicant filed an application in this Court seeking judicial review of the decision of the IAA. The Applicant filed an affidavit in support of his application, sworn on 17 February 2017.
The Applicant subsequently amended his application on two occasions. The grounds on which the application is based are currently set out in a Further Amended Application filed by the Applicant and dated 24 January 2019. The Further Amended Application sets out four grounds of review.
On 12 February 2019, the application for judicial review was heard in this Court.
The Application for judicial review
Ground 1
The first ground of review is as follows:
‘The Second Respondent erred in assessing the claim that a voluntary returnee would not be at real risk of harm because there was no such claim made, or alternatively, that it was not open on the evidence to find that the Applicant would return voluntarily.’
This ground of review engages the following paragraphs of the Decision:
‘[33] Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranians. Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran. Officials provide assistance to Iranians who wish to voluntarily return to Iran, even if they left irregularly. Strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee largely because most failed asylum seekers leave Iran legally.
[34] From DFAT’s anecdotal observation at airports, a voluntary returnee does not attract much interest from the authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Iman Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of the authorities and then released after one or two hours.
[35] The applicant departed Iran lawfully and there is no credible evidence before me to indicate he has an ongoing adverse profile with the Iranian authorities. While the applicant has had negative interactions with the authorities in Ahwaz due to his hairstyle, an illicit relationship and driving infringements I note he was released after each incident, he has not been convicted of any offence and, as discussed above, I am satisfied the authorities hold no ongoing interest in him.
[36] Based on the country information cited above, the applicant may be questioned upon return to Iran however I am not satisfied that the applicant will face any harm on the basis of seeking asylum or for an extended stay in Australia, a western country.’
The Applicant submitted that paragraphs [33] and [34] of the Decision made findings that he would voluntarily return to Iran. The Applicant submits there was no evidence before the IAA that he would voluntarily return to Iran.
The Applicant also submitted that if the reasoning of the IAA could be strained to suggest that the IAA contemplated what might happen to the Applicant if he was involuntarily returned to Iran, there was no evidence upon which the IAA could have accepted that the Iranian authorities might be ‘persuaded’ that the Applicant was Iranian.
The Applicant submitted that, in respect of this ground of review, the Court was required to follow the decision of CLS15 v Federal Circuit Court of Australia, The Minister for Immigration and Border Protection and Administrative Appeals Tribunal [2017] FCA 577 (CLS15).
The First Respondent submitted that this matter could be distinguished from the decision in CLS15. The First Respondent submitted that the Federal Court in CLS15 was concerned with the failure of the Administrative Appeals Tribunal (Tribunal) to deal with an ‘express claim’ by the Applicant in that matter that he would suffer serious harm if he returned as a failed asylum seeker. The First Respondent submitted that in this case, there was no evidence of the Applicant making an express claim that he would suffer serious harm if he returned to Iran. The First Respondent submitted that in the circumstances where no express claim was made as to voluntary or involuntary return, it was appropriate for the IAA to deal with the risks associated with either option (among others) and this is what the IAA ultimately did in the paragraphs set out above.
CLS15 concerned a citizen of Iran. He claimed, among other things, that he would be persecuted in the event he were forcibly returned to Iran because he would come to the attention of Iranian authorities as a person who had made a failed claim for asylum in Australia. His notice of appeal, among other things, asserted error made by the Tribunal. The particulars to his second ground of appeal were as follows:
‘The Tribunal appeared to deal with the Applicant’s claims on the basis that he would be a voluntary returnee in circumstances where the country information clearly indicated that failed asylum seekers would only be returned if they volunteered but failed to deal with the claim that if he was forced in the future to return as an involuntary returnee he would come to the attention of the authorities.’[1]
[1] CLS15 v Federal Circuit Court of Australia, The Minister for Immigration and Border Protection and Administrative Appeals Tribunal [2017] FCA 577 at [42].
In CLS15, it was argued by the Second Respondent in that matter that the Tribunal did in fact consider and determine the appellant’s claims of fear of persecution or significant harm because of his status as an involuntary returnee. The Second Respondent submitted that the Tribunal considered and determined the appellant’s claim and that the Tribunal’s reasons disclosed an implicit finding that the appellant would not and could not be returned to Iran involuntarily at all.
In considering the matter of CLS15, Charlesworth J set out the reasons of the Tribunal at paragraph [48]. At paragraph [49], she set out the reasons of the primary judge. The settled legal principles in respect of which inferences may be drawn were then considered in light of the decision of the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, from which Charlesworth J extracted the following at paragraph [54]:
‘47. 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 the contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’
Having set out the extract above, Her Honour then stated, at paragraph [56]:
‘The admonition that the reasons of an administrative decision-maker not be read with an eye keenly attuned to error does not require a court exercising powers on judicial review (or on a subsequent appeal) to adopt a strained reading of the reasons so as to save the decision from the vitiable error. In circumstances where the reasons of a decision-maker may be fairly amenable to different meanings, one of which might demonstrate error, the principles stated in WAEE and Wu Shan Liang may of course require that the reasons be interpreted beneficially, that is, in favour of validity. However, not all kinds of ambiguity are suitable for resolution by preferring one or two alternative meanings. The ambiguity may be such as to evidence confused thinking on the part of the Tribunal or to fairly indicate that the Tribunal has asked itself the wrong question. In such cases, the ambiguity should not be resolved by attributing to the Tribunal implied findings that do not naturally arise from the text of the reasons for the decision, considered in light of all of the surrounding circumstances. In some cases, the very nature of the ambiguity may prevent such an implication being made. I consider this to be such a case.’
Having set out the relevant principles above, Her Honour then concluded as follows:
‘[57] The circumstance that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important. No occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily.
[58] The country information to which the Tribunal referred in its reasons did not permit of any circumstance in which the appellant might be issued valid travel documents so as to enable his forcible return to Iran. If the Tribunal uncritically adopted that portion of the country information, then it would have been unnecessary for it to continue, as it did, to consider the likelihood that the appellant would be persecuted or suffer significant harm “on return to Iran”. The appellant could either be forcibly returned to Iran or he could not. The appellant’s claims, and the evidence before the Tribunal, were such that the Tribunal was obliged not only to consider which scenario would apply but to supply an unambiguous answer to the question.’
At paragraph [60], Her Honour continued:
‘If the premise underlying the Tribunal’s reasoning in paragraph 32 is that of a voluntary return, then it has erroneously assessed a claim the appellant had not in fact made. If the premise underlying its reasoning is that of an involuntary return, then that premise is not only inconsistent with the inference the Minister seeks to have drawn from paragraph 31, but gives rise to an alternative error: the Tribunal has not dealt with the claim that the appellant would necessarily come to the attention of the authorities, not merely after his forcible return but because of the forcible return. In my opinion, neither assumed premise can be safely attributed to the Tribunal. The proper inference is that the Tribunal has engaged in confused thinking resulting in a failure to make factual findings concerning the appellant’s particular circumstances and a failure to apply the statutory criteria to the facts as found, particularly the criterion in s 36(2)(aa).’
A close examination of the facts, claims and reasons of the Federal Court in CLS15 discloses the following:
a)‘…the appellant claimed that he would suffer serious harm or persecution if he were returned to Iran as a failed asylum seeker. His claim was clearly articulated as one based on a premise that he would be “forced” to return to Iran if he were not granted a protection visa’ (at [41]) (emphasis added);
b)the appellant’s claim was that ‘upon his return he would have the status of the person who had made a failed claim for asylum in Australia founded in part on a claim that he had so converted’ (to Christianity). His failed claim for asylum, based as it was on a claim to have converted to Christianity, would come to the authorities’ attention because of his forcible removal from Australia (at [41]);
c)the appellant’s amended notice of appeal at ground 2 raised squarely the alleged failure of the Tribunal to deal with the appellant’s claim as to what would occur if he were to be returned. An integer of that claim was that ‘The Tribunal appeared to deal with the Applicant’s claims on the basis that he would be a voluntary returnee in circumstances where the country information clearly indicated that failed asylum seekers would only be returned if they volunteered but failed to deal with the claim that if he was forced in the future to return as an involuntary returnee he would come to the attention of the authorities’ (at [42]);
d)the Court was satisfied that the appellant had a ‘clearly articulated argument’ that he would suffer harm because of his forced removal (at [46]);
e)‘The circumstance that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important. No occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily’ (at [57]) (emphasis added); and
f)‘The country information to which the Tribunal referred in its reasons did not permit of any circumstance in which the appellant might be issued valid travel documents so as to enable his forcible return to to Iran….The appellant’s claims, and the evidence before the Tribunal, were such that the Tribunal was obliged not only to consider which scenario would apply but to supply an unambiguous answer to the question’ (at [58]) (emphasis added).
It was on the basis set out above that the Court in CLS15 allowed the appeal and found at [60] that the Tribunal had ‘erroneously assessed’ the claim the appellant had not in fact made.
The circumstances in this case are not the same as those which led to the finding in CLS15. In the present matter:
a)there is not an express claim based on forced removal;
b)there is not an express claim in relation to voluntary return to Iran; and
c)the highest that the claim is put by the Applicant is that he ‘just wanted to get out of Iran’ (Court Book 22, q.17) and that he feared harm if he were to return (Court Book 73, q.94).
In the circumstances above, there is not in this matter, in the sense described by Charlesworth J in CLS15, a ‘clearly articulated argument’ that the Applicant would suffer harm because of his forced return. It is also not accurate to say, in the circumstances of this case that ‘no occasion arose’ for the IAA to consider voluntary return. The occasion clearly arose here because on the facts of this matter, the mode of the Applicant’s return was left open ended. The Applicant did not put the mode of his return in issue. No claim was expressly made in terms of there being a forced return to Iran or a voluntary return to Iran.
Subsequent to the hearing of this matter, Logan J handed down a decision in Minister for Home Affairs v EWP17 [2019] FCA 205 (EWP17). EWP17 was an appeal from a decision of this Court that relied on the decision in CLS15 and found for the Applicant. The Minister appealed and Logan J allowed the appeal.
A close examination of the decision in EWP17 reveals the following:
a)In a statutory declaration, the applicant for the Visa stated ‘I will not go back to Iran voluntarily because I fear that the Ettela’at would punish me’ (at [6]);
b)A judge of this Court found the circumstances in the matter were ‘not materially distinguishable’ (at [8]) from those in CLS15. The primary judge found that a comment about the Applicant’s likely return on a temporary travel document said nothing about whether his return was forced or voluntary and that as a consequence, the implications of the Applicant being forcibly returned were not considered by the Second Respondent and the Second Respondent’s reasons about the nature of the Applicant’s return were, at best, ambiguous;
c)His Honour Justice Logan considered that because the IAA in its reasons referred to the Applicant’s return being one that would be ‘facilitated by both the Australian and Iranian governments’, and because the IAA had then gone on to state that the Iranian authorities would likely question the Applicant on his return, the claim had been addressed and there was no error of the type identified by Charlesworth J in CLS15 (at [13]), particularly when the decision of the IAA was read in context.
In reaching the conclusion that he did, Logan J did two important things. Firstly, he stated that it was not necessary for him to decide that CLS15 was incorrectly decided. He distinguished the matter before him on the facts. Secondly, he considered that the matter before him called for a principled application of the often quoted statement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that an administrator’s reasons must not be scrutinised narrowly and with an eye for error.
There are some important considerations emanating from EWP17 insofar as they concern this matter. First, as in CLS15, the Court in EWP17 was dealing with an express claim that an Applicant would not return voluntarily. As previously observed, that is not the case here.
Secondly, in EWP17, Logan J quoted the decision of the IAA in CLS15 at paragraph [14], where it was accepted that:
‘Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport… they will generally only be questioned if they had done something to attract the specific attention of the authorities and then released after one or 2 hours’.
The IAA in EWP17 then went on to find that the applicant did not have a profile to attract adverse attention from the authorities. These findings are very similar to those made by the IAA in this matter. In EWP17, those two findings were sufficient to deal with the express claim that the Applicant had raised.
It can be seen from both CLS15 and EWP17 that no broad statement of principle emerges in relation to claims concerning forcible returns to Iran. Each case fell to be determined on its facts and the claims made by the Applicants, and on the reasons given for the relevant decision.
The Applicant here takes issues with the IAA’s assessment of risk based on a voluntary return. He also says that there was no basis for a finding that he would ever return involuntarily. A review of the Decision and the material before the IAA discloses the following. The Applicant did not make an express claim based on forced removal. The IAA did not make a finding that the Applicant would return voluntarily. In circumstances where the mode of return was left open ended, the IAA considered the risks associated with both a voluntary return and then an involuntary return. To not do so would have left it open to the error identified by Charlesworth J in CLS15. That is, it would not have addressed each scenario and the risk relating to each scenario, in circumstances where whether the Applicant could return voluntarily or involuntarily was not clearly articulated. The Applicant says he never made a claim that he would be a voluntary returnee. That is so, but nor did he claim that he would only be forcibly returned.
Further, if it is not already clear from what I have stated above, I am satisfied that the IAA was apprised of the Applicant’s circumstances and dealt with them. The claim (which was not that he would not return voluntarily or that he feared harm because of involuntary return, but rather was a claim that he ‘just wanted to get out of Iran’ and that he feared harm) was considered (Court Book 22, q.17). The IAA accepted, without making a finding as to the express mode of return, that the Applicant would come to the attention of authorities and may be questioned upon return to Iran. Having made that finding, the IAA then found that the Applicant would not be persecuted.
The Applicant also takes issue with the IAA’s reference to the Iranian authorities needing to be ‘persuaded’ that involuntary returnees are Iranian (at [33] of the Decision). The Applicant says that there is no evidence upon which the authorities might be persuaded that the Applicant was Iranian. An analysis of this issue needs to begin with an appreciation that the opening three sentences of paragraph [33] of the Decision deal with involuntary returnees. The IAA is saying, in the second sentence, that even Iranians without documentation who return involuntarily will be accepted if the Iranian authorities are satisfied they are Iranian. The First Respondent says that the Applicant may satisfy the Iranian authorities that he is in fact Iranian given the existence of his driver’s licence and his birth certificate. Whether in fact the Applicant chooses to produce those documents when the time comes is a matter for him and is not the point. The Applicant is in a position to satisfy the Iranian authorities that he is Iranian and as such, in practice, the country information indicates that the authorities may accept him back. Furthermore, it is clear that within this paragraph, the IAA is once again contemplating the risks associated with an involuntary return of the applicant to Iran.
When the Decision is read contextually, it is clear that the IAA has addressed possible risk in both scenarios. This was the sensible course given the possibility of the Applicant deciding to return voluntarily, which may have occurred after an unsuccessful visa application in order to avoid extended detention, or the possibility of the Applicant being returned without travel documents but with identifying documents.
For the reasons set out above, I dismiss the first ground of review.
Ground 2
Ground 2 is in the following terms:
‘It was legally unreasonable for the Second Respondent to not get new information from the Applicant under s473 DC before making a decision adverse to the Applicant, or alternatively, the Second Respondent failed to complete its statutory task of reviewing the decision.
Particulars
(a) The Applicant attended an interview with the department on 7 November 2016. The department’s recording of that interview released under a FOI request is incomplete, cutting off after1h:21mins. The Second Respondent wrote to the department on 14 December 2016 noting that the version of the interview recording provided to the Second Respondent cuts out even earlier at 47 minutes. In circumstances where the Second Respondent did not have the benefit of listening to the entirety of the Applicant’s protection interview which had been conducted by the department, it should have exercised its discretion to invite the Applicant to give further information under s 473DC(3)(b).
(b) Alternatively, the Second Respondent was disabled from completing its review by reason of the Secretary of the First Respondent failing to provide to it a full copy of the delegates interview.’
This ground relates to an issue that arose in respect of the Applicant’s Visa Interview (the Interview). On 7 November 2016, the Applicant attended an interview with the delegate of the First Respondent. The interview was recorded.
Following this, on 17 November 2016, the Applicant’s solicitor requested the IAA’s file for the Applicant and the documents provided to the IAA by the Department. In response to this request, the Applicant’s solicitor received the interview recording. The interview recording stopped at 1 hour and 21 minutes.
Contemporaneously with this, the decision of the Delegate was referred to the IAA for review. On 14 December 2016, the IAA wrote to the Department of Immigration and Border Protection and requested that the Department provide a complete recording of the Applicant’s Interview. The letter noted that the recording provided to the IAA cut out after 47 minutes.
The Applicant submits that the IAA did not have before it the full interview. He submits that it should be concluded that there was information before the delegate prior to the making of the delegate’s decision, which was not provided to the IAA. The Applicant says that two things flow from this. First, the IAA ought to have exercised its power under section 473DC of the Act to obtain new information from the Applicant, and that it was legally unreasonable for the IAA not to do so. Second, the failure to provide the complete interview to the IAA meant that the IAA was disabled from exercising its jurisdiction under Part 7AA of the Act. Both of these are said to constitute jurisdictional error.
Both integers of this ground of review depend upon a finding of fact that the IAA did not have before it the complete interview recording.
The First Respondent sought to meet this ground of challenge by seeking to adduce evidence that the IAA had before it a complete copy or recording of the Interview. An affidavit was received from Joshua Contin. Mr Contin is the Assistant Director of the National Allocations and Finalisations Section in the Humanitarian Program Operations Branch of the Department of Home Affairs.
Mr Contin gave evidence that the IAA had requested on
14 December 2016 that the Department provide a complete copy of the audio recording of the Interview. Mr Contin deposed that, by email on 14 December 2016 at 4:01pm, an officer of the Department advised the IAA that the complete and full audio recording of the Interview had been uploaded in accordance with the IAA request. Mr Contin also annexed to his affidavit (marked ‘JC3’) an electronic receipt said to be received through the STS system. The receipt contains the following notation: ‘Additional DIPB file documents received through STS on 14/12/2016.’ The STS system is the system used by the Department to transfer files to the IAA by electronic means. Finally, Mr Contin deposed that he had listened to the audio recording in the Department’s TRIM database and that the length of the recording he had listened to was 2 hours and 41 minutes. Mr Contin annexed to his affidavit a screenshot of the Applicant’s electronic file with the audio file listed amongst the other documents.
Mr Contin was cross-examined about the matters in his affidavit. Under cross examination, Mr Contin conceded that he was not the officer who had uploaded the file to STS. He said he had not used the STS system before and that he was uncertain whether the exhibit marked ‘JC 3’ was generated from the Department or from the IAA (he also acknowledged that the receipt in ‘JC3’ did not expressly reference any particular audio file). Mr Contin also appeared to concede that there was not any formal acknowledgement that the complete audio recording had in fact been received or downloaded by the IAA.
In respect of this issue, the Decision itself fails to make any reference to which audio recording the IAA had before it, or whether it obtained the complete recording. The Decision merely notes that the IAA had regard to the material referred to it by the Secretary under s. 473CB of the Act.
I have considered carefully the evidence given by Mr Contin in his affidavit and also on cross examination. I find, on the balance of probabilities, that the IAA had before it the complete audio recording at the time that it made the Decision. It is clear from the correspondence that the IAA was concerned to obtain a complete copy of the recording. Mr Contin produced evidence that the file was sent following that request from the IAA. That evidence included a receipt. No further query was raised by the IAA following the sending of that file, and no mention was made by the IAA of an incomplete audio recording in the Decision.
Further, Mr Contin has deposed to listening to the complete audio recording, which was clearly in existence at the time he composed his affidavit. His evidence in this respect is not challenged.
Having made the finding above, it is not necessary for me to consider this ground any further as the factual basis for the submission no longer exists.
However, had I been required to consider the issue further, I would have accepted the submission of the Minister and applied the decision and reasoning of Justice Middleton in BEL18 v Minister for Home Affairs [2018] FCA 2013 (‘BEL18’) to this matter, in particular paragraphs [80] to [81]. Had the IAA not had the complete recording, Justice Middleton’s comments in BEL18 would apply with equal force here. While the allegation made here is that the complete interview was not before the IAA, the statement of reasons of the delegate was before the IAA, the Minister’s delegate was present at the interview and heard everything, and the Applicant has not particularised any information omitted from the recording which he says is of significance. Further, in this matter, it was open to the Applicant, knowing a complete recording was in existence, to seek an adjournment in order to listen to the complete recording, to then particularise what was alleged to be omitted. That course of action was not adopted.
For the reasons above, I dismiss the second ground of review.
Ground 3
The third ground of review is as follows:
‘The Second Respondent failed to consider the claim or integer of the claim, that the Applicant would be at risk of harm due to his open expression of his Ahwazi Arab ethnicity and culture.’
The relevant paragraphs of the Decision that are engaged by this ground of review include the following:
‘[20] In 2015, the government reportedly arrested at least 78 people suspected of playing leadership roles in mobilising local protests in Khuzestan Province, and human rights organisations have expressed concern that some may have been arrested merely on the basis of an imputed opinion, for peacefully expressing dissent or openly exhibiting Arab identity and culture. Expressions of Ahawzi Arab culture have been targeted by the Iranian authorities with increasing severity in recent years, and those arrested tend to be charged with crimes relating to national security. Elements of Arab cultural identity said to be especially sensitive to the authorities include holiday celebrations, and the authorities conflate cultural activity with political activism, leading to arrest and detention and in extreme cases, even death sentences. According to DFAT, the risk of Ahwazi Arabs attracting the interest of the authorities is dependent upon being perceived as a threat to the Islamic Republic’s constitutional underpinnings or territorial integrity.
..
[31] While there is country information to support a finding that Ahwazi Arabs have faced varying degrees of harm by the authorities in Iran, country information cited in the delegate’s decision refers to incidents where the individuals were either religiously or politically active or openly expressed their opposition to the government. During the TPV interview the applicant stated that neither he nor any of his family members were members of any political groups nor were they politically or religiously active. There is no credible evidence before me to indicate that the applicant would be imputed to be politically or religiously active. In the applicant’s case, apart from wearing his traditional dishdasha on important family or tribal occasions, such as funerals, I note he has not claimed to be involved in any activities, either in Iran or Australia, which may be viewed as political. I am satisfied there is no real chance the applicant would suffer serious harm should he return to Iran on account of any real or imputed anti-Iranian government political opinion.’
The argument advanced by the Applicant in respect of this ground is as follows. At paragraph [20] of its reasons, the IAA referred to DFAT country information that persons who had been ‘openly exhibiting Arab identity and culture’ had a tendency to be ‘charged with crimes relating to national security’, and that Iranian authorities conflated ‘cultural activity with political activism, leading to arrest and detention and in extreme cases, even death sentences’. At paragraph [31], the IAA then dealt with the fact that there was no claim from the Applicant that he was politically or religiously active. In respect of these findings, the Applicant says that the IAA then failed to consider a claim that the Applicant did openly exhibit his Arab identity and culture through the wearing of his traditional Arab ‘dishdasha’ and consequently failed to consider whether the open exhibition of Arab identity and culture could result in a real chance of serious harm.
I have reviewed the materials in the Court Book, particularly with regard to the claims that have been made by the Applicant. In his application for the Visa, the claim made by the Applicant was that he feared harm due to his Ahwazi Arab ethnicity and that he was generally recognisable as such from his complexion, his accent and his name. No claim was made in respect of political or religious activity. No claim was made relating to the expression of his culture or even in respect of his wearing of the ‘dishdasha’.
In NAVK v Minister for Immigration and Multicultural and Indigenous affairs [2004] FCA 1695, Allsop J, as he then was, considered the question of what claims must be dealt with by a Tribunal to complete its statutory task, even though those claims may not be expressly articulated. At paragraph [15], Allsop J, in referring to the Full Court decision in NABE v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 263, commented as follows:
‘From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63], much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all of the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.’
The IAA dealt with the claims that were before it. Those claims, as far as they centred around the Applicant being an Ahwazi Arab, focused on him being identified as such by his complexion, his accent, and his Arab name. The IAA dealt with these claims at paragraphs [19] to [30]. There was no claim, certainly not a ‘tolerably clear’ one, that the Applicant may suffer harm on the basis of his wearing of the ‘dishdasha’.
Further, the IAA, in dealing with the claim before it, did so on the basis that the Applicant was identifiable as an Ahwazi Arab. For an example of this, see the following paragraphs of the Decision:
a)paragraph [9], where the IAA accepted the Applicant’s identity,
b)paragraph [13], where the IAA found it plausible that the Applicant’s former girlfriend’s father was allowed to beat the Applicant because the Applicant is an Ahwazi Arab,
c)paragraph [24], where the IAA was satisfied that the Applicant’s race was an element of his poor treatment by the Basij, and
d)paragraph [36], where the IAA finds that the Applicant’s racial status would not lead to any differential treatment on re-entry.
It is clear from these paragraphs that the Applicant is identifiable as an Ahwazi Arab. That being the case, his wearing of the ‘dishdasha’, which the IAA noted he wore on important family or tribal occasions or at funerals, was not likely to make a difference to his risk profile, as he was already identified as an Ahwazi Arab.
I also observe that the wearing of the ‘dishdasha’, based on the statements made by the IAA, would seem to occur not frequently. This is consistent with the Applicant’s stated preference for Western dress.
Finally, I note that the IAA considered and determined at paragraph [31] of the Decision that there was no real chance that the Applicant would suffer serious harm should he return to Iran on account of him holding any real or imputed anti-Iranian government political opinion. That conclusion follows almost immediately from the IAA referring to the Applicant wearing his ‘dishdasha’ on important family or tribal occasions, or at funerals. In light of this, in my view it cannot be said that the IAA failed to consider the risks of serious harm being suffered by the Applicant if he were to openly express his ethnicity or culture through the wearing of the ‘dishdasha’.
For the above reasons, this ground of review must fail.
Ground 4
The fourth ground of review is as follows:
‘The Second Respondent failed to consider the claim, or the integer of the claim, that the Applicant would be at risk of harm due to his ethnicity upon coming to the attention of Iranian authorities for westernised dress or listening to Western music.’
This claim is based on the Applicant’s claimed predisposition for wearing Western dress or listening to Western music, and on the Applicant continuing to listen to Western music or wear Western dress in Iran. It is said that these features of the Applicant’s behaviour may bring him to the attention of Iranian authorities. It is then said that once the authorities have him in their sights, he is at greater risk of harm because of his ethnicity.
The IAA dealt with this issue at two levels. Firstly, the IAA did not accept that the Applicant would come to the attention of the authorities for his Western predilections.
In respect of Western dress, behaviour or tastes, the IAA had this to say at paragraph [26]:
‘DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled “westernised” Iranians. The term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to live what could be called a modern lifestyle. Many poorer Iranians also aspire to such a lifestyle but live more traditionally. Young men and women can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks, verbal warnings for dress or behaviour. The information before me does not indicate Ahwazi youth, who may exhibit western tastes or behaviour, are being targeted by local authorities.’
Further, in respect of Western music, the IAA noted at paragraph [28] that there was no evidence to indicate there was a real chance that the Applicant would come to the attention of authorities for listening to Western music. Indeed, the IAA noted that there was a growing acceptance in Iran of Western music being played in public.
The IAA in dealing with this issue also observed that irrespective of whether the Applicant had come to the attention of the authorities, he had in fact interacted with the authorities in the weeks before his legal departure from Iran, without incident. At [30], the IAA stated:
‘I note from the SHEV interview the applicant was willing to approach the authorities when his utility vehicle was stolen, as well as to seek an exemption from military service (on the basis his three older brothers had completed theirs) and he was successful in this application. The applicant interacted with the Iranian authorities to sit at an examination for his driver’s licence several weeks before his legal departure from Iran, further indicating he is not of interest to them.’
In short, as can be seen from the paragraphs above, the IAA did not consider that the Applicant would come to the attention of Iranian authorities for westernised dress or for listening to Western music, or alternatively, that the Applicant was of any interest to the authorities.
The IAA also dealt with this issue in the following way. It considered and dismissed the risk that the Applicant would suffer serious harm on the basis of his ethnicity. The IAA accepted that the Applicant would suffer some degree of societal discrimination because of his ethnicity, but was not satisfied that this amounted to serious harm. That these matters were considered by the IAA can be seen from the following in the Decision:
a)at [11] the IAA accepted there was a ‘racial element’ to the Applicant’s treatment during an incident at age 13 when he was slapped by the police;
b)at [13] the IAA found it plausible that an ex-girlfriend’s father was allowed to beat the Applicant because of his ethnicity;
c)at [22] the IAA accepted that persons of the Applicant’s ethnicity can face discrimination, however noted that the Applicant had not claimed to face any discrimination in respect of housing and other services in Iran;
d)at [26] the IAA indicated the information that it had before it did not indicate Ahwazi youth who may exhibit Western tastes or behaviour will be targeted by local authorities;
e)at [27] the IAA noted the DFAT observations reporting that the Basij were less assertive and generally becoming ‘more respectful in their interactions with Iranians’; and
f)finally at [30] the IAA stated that ‘while I have found the applicant has suffered a degree of societal discrimination previously I am satisfied this did not amount to serious harm. I’m also satisfied that the applicant would not face serious harm for any of the other reasons discussed above should he return to his home in the future.’
Further, it is notable that there was no suggestion before the IAA that the Applicant would do any of the things that are likely to bring him to the attention of the authorities again. The IAA noted that the Applicant had not expressed a desire to wear his hair again in the future, in a manner that would bring him to the authorities’ attention.
Having regard to the above, the fourth ground of review must also fail.
For the reasons set out above, I will make an order dismissing the application for review, with costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Blake
Date: 11 April 2019
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