ATM15 v Minister for Immigration

[2016] FCCA 1910

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATM15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1910

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – review of Tribunal decision made out of time – whether the Tribunal properly dealt with the claim of being a failed asylum seeker – Tribunal did not refer to country information upon which it drew its conclusions – constructively failed to review the decision of the Minister’s delegate – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 477

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14
SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146

Applicant: ATM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1329 of 2015

Judgment of: Judge Smith

Hearing date: 7 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Sydney

Delivered on: 29 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Ms N. Blake, Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Administrative Appeals Tribunal quashing the decision of the Tribunal dated 27 February 2015.

2. A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 15 August 2013 in accordance with the law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1329 of 2015

ATM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of the decision of the Refugee Review Tribunal[1] made on 27 February 2015. Any application for review had to be made by 3 April 2015: s.477(1) Migration Act 1958 (Cth). However, the Court has power under s.477(2) to make an order to extend the time for making the application if:

   a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. There is no dispute that the first of these conditions has been satisfied. On the date of the hearing before the Court I made an order extending the period within which the applicant may make an application for review of the Tribunal’s decision. The matter was listed for hearing on the basis that, if an extension of time were granted, the Court would proceed to determine the substantive application without further hearing. In light of that, I have proceeded to determine the substantive matter and decided that the application will be allowed and that the matter will be remitted to the Tribunal for further determination according to law.

Extension of time

1. In considering whether it is necessary in the interests of the administration of justice to make an order extending the time under s.477(2), the Court must take into account all relevant matters. Generally speaking, these will include the extent of the delay and the explanation for the delay, the merits of the substantive application, any prejudice to the respondent, any impact upon the applicant, and the interests of the public at large.

2. In this case, there was no prejudice to the Minister or to the Tribunal and the general interests of the public do not weigh against the extension of time where, as I will explain, there is a clear error in the Tribunal’s decision.

3. The delay in this case is not insignificant. The applicant was required to file any application for review by 3 April 2015 and did not do so until 14 May 2015, which was 42 days late. The applicant explained in the application that he was sick and that his adviser, the Refugee and Casework Service, let him know on 27 March 2015 that the Tribunal had rejected his application. In light of the fact that the applicant was unrepresented and because he had not sworn any affidavit in support of his application for an extension, I invited him to give sworn evidence at the hearing to explain his failure to lodge an application for review within the required time: see SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146.

4. In his oral evidence, the applicant said that he had a cold with lots of pain in his body and on the day that he found out about the Tribunal decision he was sick at home all day. He said that the decision felt like a mental shock. The applicant said that he was sick for a period of time, between 10 to 12 days, that he was using Panadol and flu tablets purchased from Woolworths. The applicant said that he gets a sickness like that about twice a year; however, it was not serious enough to see a doctor. The applicant explained that he rang his lawyer who told him that he was not representing the applicant anymore and suggested that he seek legal aid. In effect, the applicant’s evidence was that there were three reasons for the delay in filing his application: first, he was sick, secondly, he was notified late and thirdly, he did not know what to do.

5. The applicant’s evidence provides some, but not a complete excuse for his delay in filing the application. For example, although he was sick, it was not sufficiently serious for him to see a doctor. While he was notified of the decision on 27 March 2015, it still took the applicant six weeks to file the application. In my view, the unexplained period of approximately one month weighed against the grant of an extension.

6. On the other hand, the merits of the application weigh heavily in favour of an extension of time, and it is essentially for that reason that an extension was granted to the applicant. Ordinarily, for the purposes of assessing the strengths of the grounds for an application for review in the context of an application for extension of time, it is unnecessary to come to a final view as to whether there is jurisdictional error in the Tribunal’s decision. However, in this case, I have determined that there is a jurisdictional error in the Tribunal’s decision and as that will be the basis for the final determination of the application, as well as the extension of time, I will express my reasons in more absolute terms.

7. In order to understand the error made by the Tribunal, it is necessary first to briefly outline the claims made by the applicant in the course of his application for a protection visa as well as the review before the Tribunal.

Background

1. The applicant is a citizen of Iran who arrived in Australia on 12 August 2012 and lodged an application for a protection visa on 24 December 2012. The following summary of his claims are taken from the written submissions for the Minister:

   a)he [the applicant] wanted to change his religion and hated Islam;

   b)he was harassed by the Basij a number of times. In particular, he was detained in a basement, locked up for many hours and kicked;

   c)he wished to convert to Christianity and attended a church with a friend but the church would not accept him. Following this incident, the police would arrest and take him away. He was forced to sign a document and while detained was embarrassed and humiliated;

   d)he felt he was being watched and followed by the Basij and police always knew when he was at home and would go and get him. The Basij and police questioned a guard and the applicant’s neighbours in the community building in which the applicant’s family lived;

   e)he believes he was taken by the police because of his visit to the Christian church. At the beginning, he was detained by police once a month but that gradually increased to once or twice a week;

   f)since coming to Australia he has decided that he does not want to have any religion;

   g)the police have asked about the applicant at his father’s house;

   h)he fears that on return to Iran he will be arrested and harmed by the Iranian intelligence and security services. He fears that there is an open file with the authorities in Iran because of his interest in Christianity;

   i)his name may be on a black list at the airport;

   j)he attended demonstrations after the 2009 elections; and

   k)he has commented on a BBC website about religious issues.

2. On 15 August 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

3. The applicant was invited by the Tribunal to attend a hearing to be conducted on 1 December 2014. Prior to that hearing, the applicant’s representatives sent written submissions to the Tribunal in support of his claims together with a Court Summons requiring the applicant to appear before the judiciary of the Islamic Republic of Iran on 24 November 2014. After the hearing, the applicant’s advisers sent a further written submission to the Tribunal addressing issues that had been raised by the Tribunal at the hearing including issues relating to the applicant’s credibility.

4. On 27 February 2015 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

5. The Tribunal found that the applicant had fabricated some of his claims for the purpose of obtaining a protection visa and that he was not a credible witness.

6. The Tribunal accepted that the applicant was born into a Shia Muslim family and practised Islam as a child but had since stopped practising Islam after he returned to Iran from the Netherlands in 2002. The Tribunal accepted that the applicant disliked the restrictions imposed upon him by Islam and that he did not wish to remain a Muslim. However, the Tribunal also found that he had no problems with the Iranian authorities after he had stopped practising that religion.

7. The Tribunal also accepted that the applicant had an Armenian friend who was a Christian and that they had discussed religion but the Tribunal did not accept that he went to church, spoke to a priest and told him that he wished to become a Christian, and was told that he could not do so because it was too risky for the church. The Tribunal found in the alternative, that the applicant had not been to a church in Iran a few times and that the people there did not feel comfortable when he visited the church.

8. The Tribunal did not accept that the police went to the applicant’s home, arrested him, took him to the station where he was sworn at and forced to sign a number of documents which he was prevented from reading. The Tribunal did not accept that the applicant was taken to an enclosed place and kept there until 2:00am or that such things happened again and continued to happen every month. In the alternative, the Tribunal found that the applicant was not arrested about a month, or a month and a half, before he departed Iran.

9. The Tribunal did not accept that the applicant was told by security guards in the building where he lived that they and his neighbours had been questioned by the Iranian authorities, or that he had been told that the police later went to his home and asked for him. The Tribunal did not accept that the police now only telephoned his family and asked them to tell the applicant to report to the police station.

10. The Tribunal also did not accept that a summons was issued by the Iranian Court or that the document presented as that summons was authentic. It found that the applicant had not committed any offences.

11. The Tribunal did not accept that the applicant had any adverse profile in Iran as a Christian convert, an imputed Christian convert or an apostate. It did accept that the applicant did not wish to convert to Christianity and that he is either an atheist or agnostic and does not wish to have a religion but did not accept that the applicant had expressed his views on religion on a BBC website or on Facebook.

12. The Tribunal was not satisfied that the applicant has any desire to publicise his views on religion in Iran upon return there and that he would not be required to modify his behaviour or to be discrete in his behaviour on his return to Iran to maintain his beliefs on religion and that he could do so without risk of coming to any adverse attention of the Iranian authorities.

13. For those reasons, the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm by reason of his religion or political opinion if he returns to Iran now or in the reasonably foreseeable future.

14. The Tribunal then went on to consider the issues arising from the applicant’s claim to have been involved in protest actions in Iran after the 2009 elections. It accepted that the applicant had attended one or two protests at that time and that he did not have any problems with the Iranian authorities as a result of those attendances. The Tribunal found that he had not been involved in any other political activities either in Iran or in Australia and repeated its finding that it did not accept that the applicant had made any comments on a BBC website or on Facebook. For those reasons, the Tribunal did not accept that the applicant was of adverse interest to the Iranian authorities and did not accept that his name was on a blacklist in Iran. For that reason, the Tribunal was not satisfied there was a real chance that the applicant would face serious harm for reason of his actual or imputed political opinion if he returned to Iran.

15. The Tribunal then dealt with the applicant’s claim that he might suffer harm as a failed asylum seeker or returnee from the West. The Tribunal noted that information available to it indicated that it was unlikely that all failed asylum seekers would be perceived as anti-regime and/or mistreated upon their return to Iran. Sources suggested that the risk of mistreatment was proportionate to an individual’s political profile in Iran and/or engagement in political activity while abroad.

16. The Tribunal then noted that the applicant was not a political activist and that he had left Iran legally on his own passport. However, it found the fact that his new passport travel document would not have an exit stamp on it, may bring the applicant to the attention of the Iranian authorities.

17. The Tribunal accepted that “failed asylum seekers” and “returnees from the West” are particular social groups within the meaning of the Refugees Convention as interpreted by the Courts. The Tribunal then expressed its conclusions in the following paragraphs:

    [61]In view of the above findings, the Tribunal does not accept that the applicant left Iran for the reasons he claims. The Tribunal does not accept that he is of adverse interest to the Iranian authorities. The Tribunal does not accept that his name is on a Blacklist. Therefore, the Tribunal does not accept that on his return to Iran he will face problems because of his adverse profile in Iran or because his name is on the Blacklist.

    [62]The Tribunal accepts that the Iranian authorities may suspect that the applicant has sought asylum in Australia in view of his long absence from Iran. However, the Tribunal does not accept that the Iranian authorities would necessarily impute him with an adverse profile or opinion and subject him to serious harm for reason of his membership of the particular social groups of failed asylum seekers or returnees from the West.

    [63]In view of the above country information, the Tribunal accepts that the applicant may be detained for a short period and questioned at the airport. The Tribunal is satisfied that Iran’s laws in relation to entry and exit procedures are for the purpose of achieving a legitimate national objective of Iran and apply to all persons who depart and enter Iran. The Tribunal is satisfied that the laws do not have a discriminatory intent or impact and that it is not being applied selectively or enforced in a discriminatory manner for a Convention reason. The Tribunal does not accept, as required by s.91R(1)(a), that one or more of the five Refugees Convention reasons will be the essential and significant reason for the applicant being detained for questioning at the airport. The Tribunal is satisfied that the applicant’s detention at the airport for the purpose of questioning is appropriate and adapted to achieving a legitimate national objective of Iran and does not constitute a threat to liberty within s.91R(2)(a). It is part of the enforcement of a law of general application and does not give rise to persecution under the Refugees Convention.

    [64]Having considered the above claims and evidence, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his membership of a particular social group being failed asylum seekers or returnees from the West if he returns to Iran now or in the reasonably foreseeable future.

    (Emphasis added)

18. For those reasons, the Tribunal found that the applicant did not satisfy the criterion in sub-s.36(2)(a).

19. The Tribunal then considered the criterion in sub-s.36(2)(aa) and found that the applicant did not satisfy that either. In particular, the Tribunal found that any treatment of the applicant during his detention at the airport in Iran, for the purpose of questioning, would not amount to significant harm within the meaning of the Act.

20. For those reasons, the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate of the Minister.

Consideration

1. In his application for judicial review the applicant simply states that the Tribunal did not pay attention to details. At the hearing, the applicant explained that what he told the Tribunal was the truth. While that may be so, that does not give rise to any jurisdictional error in the Tribunal’s decision and I leave it to one side.

2. At the hearing, I raised with the solicitor for the Minister, the question whether the Tribunal had properly dealt with the claim concerning the applicant being a failed asylum seeker. My concern arose in particular from the words emphasised in [62] “would necessarily impute” which is set out above.. The short point is that the Tribunal was required to determine whether the applicant’s fear of persecution was “well-founded”. In light of that, the degree of probability of an event occurring is relevant to the issue to be determined by the Tribunal: Abebe v The Commonwealth (1999) 197 CLR 510 at 544-545 [83]; [1999] HCA 14 (Gleeson CJ and McHugh J). Thus, the conclusion that something would not necessarily occur is not a complete answer to the question posed for the Tribunal.

3. As the issue had not been raised by the applicant, I gave the Minister leave to file written submissions addressing it. In those further submissions, the Minister accepted that, when read in isolation, [62] of the Tribunal’s decision did not dispose of the applicant’s claim concerning his return as an asylum seeker. However, he submitted that the immediate context of that paragraph revealed that the Tribunal had in fact properly dealt with that claim.

4. First, the Minister pointed out that the Tribunal's reasoning in [62]-[64] followed its consideration of the applicant's claims to fear harm by reason of his political opinion in [46]-[52] of its decision. As already noted, the Tribunal concluded that the applicant was not of adverse interest to the authorities. The Tribunal also rejected his claim to be on a "blacklist" such that he would be taken away at the airport, and found that he would not face a real chance of serious harm "for reason of his actual or imputed political opinion if he returns to Iran": [50]-[52].

1. The Minister next argued that, from [53]-[64] of its reasons, the Tribunal specifically considered against country information what may happen to the applicant as a failed asylum seeker from Australia. The Minister argued, in particular:

   (a)…information to the effect that failed asylum seekers were not likely to be perceived as anti-regime or mistreated based upon their status as failed asylum seekers alone. Rather, “the risk of mistreatment is proportionate to an individual's political profile in Iran and/or engagement in political activity whilst abroad”. [54]-[57];

   (b)the Tribunal then considered the above country information against the applicant's position. Having concluded earlier that the applicant lacked an adverse political profile in Iran, it considered whether he may have developed such a profile “whilst abroad” and found that he was not a political activist and was not of adverse interest to the Iranian authorities: [58];

   (c)the Tribunal accepted that the authorities may suspect that the applicant has sought asylum in Australia. However, it did not accept that the authorities would “necessarily” impute him with an adverse profile “for reason of” his being failed asylum seeker returning from the West: [62]. When read with the preceding paragraphs at [53]-[61] summarised above, it is tolerably clear that by “necessarily” the Tribunal was referring to the concept: ‘by reason of this characteristic alone’. In other words, there needed to be something more for the applicant to be at risk. That ‘something more’ was specified earlier in the Tribunal's reasoning, in which it had observed that asylum seekers were not perceived as anti-regime simply by reason of having sought asylum, and that the risk faced by a failed asylum seeker was “proportionate to” the extent of their otherwise possessing some kind of adverse political profile. The Tribunal had found the applicant possessed no such profile: [50]-[51], [58] and [61];

   (d)it is these preceding paragraphs that informed the Tribunal's conclusory paragraphs at [63] - [66] (and [67]-[72]). At [63], the Tribunal found that the applicant's treatment as a failed asylum seeker on return would be pursuant to a non-discriminatory law of general application. At [64], the Tribunal additionally found that there was not was not a “real chance” that the applicant would face “serious harm” by reason of his being a failed asylum seeker or returnee from the West.

2. The Minister then argued that the issues referred to in [62] were matters that the Tribunal was not persuaded would occur, and were assessed in its conclusory paragraphs at [63]-[64]. Put simply, he said, after considering the factual issues and richer fabric of matters faced by the applicant, the Tribunal concluded that the applicant would not face a real chance of persecution (or a real risk of significant harm).

3. There are a number of difficulties with these arguments. The first is the characterisation of the country information as being to the effect that failed asylum seekers were not likely to be perceived as anti-regime or mistreated based upon their status as failed asylum seekers alone. One piece of information was that “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”: [54]. Other information was not to that effect.

4. The DFAT report referred to at [55] for instance, said nothing about the risk faced by involuntary returnees.

5. The next piece of information referred to was the Amnesty International report which concerned two returnees who had criticized the Iranian government while overseas and who were detained and imprisoned on return to Iran. That said nothing about people who had returned without having been involved in such activities.

6. Finally, the Tribunal referred to a Danish report that concerned assisted voluntary returns. As the applicant was not going to be returning voluntarily, that information did not apply to him.

7. The Tribunal accepted the possibility that the applicant’s lack of a passport would bring him to the attention of the Iranian authorities ([58]) and that those authorities may suspect that he had sought asylum in Australia in view of his long absence from Iran ([62]). In the immediate context of those findings, as well as all of the country information referred to by the Tribunal, I am not satisfied that the Tribunal actually found that there had to be more than a claim for asylum before there was a risk that the applicant would be imputed with an adverse opinion. Rather, I find that the Tribunal meant what it said, namely, that it did not accept that the Iranian authorities would “necessarily impute him with an adverse profile” for having sought asylum.

8. The paragraphs following this statement do not assist the Minister’s argument. That is because they do not deal in any way with the degree of probability of the applicant being suspected of anti-regime opinions, but only with the law pursuant to which the applicant would be questioned at the airport.

9. I also have some difficulty with the conclusions drawn by the Tribunal at [63] in respect of those laws. It states that it is satisfied that those laws did not have a discriminatory intent or impact and was not being applied selectively or enforced in a discriminatory manner but it did not refer to any information upon which those conclusions were based. Certainly, there was nothing in the material set out earlier in its reasons that might have supported those conclusions. However, I do not express any concluded view about that issue as it was not ventilated at the hearing and the Minister has not had the opportunity to respond to it.

10. I conclude that the Tribunal constructively failed to review the decision of the Minister’s delegate and, for that reason, in addition to an order extending the time for making this application, there will issue writs of certiorari and mandamus.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 29 July 2016