AUA18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 432

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AUA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 432

File number(s): MLG 440 of 2018
Judgment of: JUDGE SYMONS
Date of judgment: 25 May 2023
Catchwords: MIGRATION – decision of the Immigration Assessment Authority – whether the Authority failed to consider a claim or integers of a claim  – whether claim was squarely articulated or arose on the materials – where applicants had been represented before the delegate and the Authority – whether applicants’ claim comprehended repetition of anti-Islamic conduct or was concerned with an isolated event – Authority correctly understood and considered the applicants’ claim – no jurisdictional error – application dismissed with costs
Legislation: Migration Act 1958 (Cth) s 476
Cases cited: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609
Division: Division 2 General Federal Law
Number of paragraphs: 37
Date of last submission/s: 16 May 2023
Date of hearing: 16 May 2023
Place: Melbourne
Counsel for the Applicant: Mr M Kenneally
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the Respondent: Ms K McInnes
Solicitor for the Respondent: Mills Oakley

ORDERS

MLG 440 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AUA18
First Applicant

AUB18
Second Applicant

AUC18
Third Applicant

AUD18
Fourth Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

order made by:

JUDGE SYMONS

DATE OF ORDER:

25 May 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, and Multicultural Affairs”.

2.The amended application filed on 18 November 2022 be dismissed.

3.The applicants pay the first respondent’s costs in the fixed amount of $8371.30

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE SYMONS:

INTRODUCTION

  1. By an amended application filed on 18 November 2022, the applicants seek judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 24 January 2018, pursuant to s 476 of the Migration Act 1958 (Cth). The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicants a Safe Haven Enterprise (subclass 790) visa (protection visa).  The Minister opposes the application.  The Authority enters a submitting appearance and has not participated in the proceeding.

    BACKGROUND

  2. The applicants are a family unit from Iran who arrived in Australia as unauthorised maritime arrivals on 1 September 2012. The first and second applicants are husband and wife and the parents of a son (the third applicant) and a daughter (the fourth applicant).

  3. On 16 August 2015 the applicants made a valid application for protection visas.

  4. On 5 January 2017, the applicants attended an interview with a delegate of the Minister in support of that application (SHEV interview).

  5. On 28 March 2017, a delegate of the Minister refused the applicants’ application for a protection visa.

  6. On 24 January 2018, the Authority affirmed the delegate’s decision and produced a written decision and reasons.

    JUDICIAL REVIEW APPLICATION

  7. The applicants rely on an amended application and written submissions filed on 18 November 2022 and an affidavit of Lawson Bayly affirmed on 18 November 2022 that attaches a transcript of the SHEV interview.

  8. The Minister relies on written submissions filed on 28 April 2023.

  9. The amended application identifies three grounds of alleged jurisdictional error.  However at the hearing on 15 May 2023 the applicants’ counsel informed the Court that the applicants no longer pressed grounds one and two.  This decision is concerned with the remaining ground three.

    GROUND THREE

  10. Ground three is formulated as follows:

    3.The Authority failed to consider a claim or integers of a claim that clearly emerged from the material.

    Particulars

    a.A claim clearly emerged from the material that the first and second applicants faced a real chance of persecution for reason of their membership of a social group being persons that engaged in western social practices or perceived un-Islamic behaviour including:

    i.the second applicant was a tattooist;

    ii.the first and second applicant drank alcohol;

    iii.the first and second applicant held or attended mixed gender parties that included dancing; and

    iv.the risk to the first and second applicants of being targeted for engaging in such behaviours in the future was greater as they were returnees from the west.

    b.Alternatively, the first and second applicants expressly claimed to face a real chance of serious harm as returnees and/or failed asylum seekers from a western country, and the claim included the following integers:

    i.        the second applicant was a tattooist;

    ii.        the first and second applicant drank alcohol;

    iii.the first and second applicant held or attended mixed gender parties that included dancing; and

    iv.the risk to the first and second applicants of being targeted for engaging in such behaviours in the future was greater as they were returnees from the west.

    c.The Authority failed to consider either the claims or integers of the claims at (a) or (b).

    The applicants’ submissions

  11. The applicants submit that on the material that was before the Authority and on the findings that the Authority recorded, a claim was either clearly articulated or clearly emerged, that the applicant husband and wife would face a real chance of harm in the future because they engaged in a collection of “western” or prohibited activities – they drank alcohol, attended mixed gender parties and the applicant wife was a tattooist - for which they had been punished in the past and in respect of which, if repeated, they might come to the attention of authorities in Iran again.

  12. The applicants identified the claim as emerging from a combination of:

  13. The first and second applicants’ joint statement of claim and the first applicant’s statutory declaration, in which the husband and wife explained that they had hosted a birthday party for the first applicant in March 2011.  The party was mixed gender, involved music and dance and alcohol was served.  The Basij had raided the party and confiscated the applicant wife’s hairdressing journals and tattoo equipment.  The applicant husband had been detained, interrogated, and beaten by the Basij and released only after a bribe was paid by his father-in-law.  The applicant husband lost his taxi licence because of his conduct in throwing the party.  After he came to Australia, he realised that the Revolutionary Court had sentenced him in absentia to three years and 84 lashes on allegations of insulting the supreme leader and Islam, possession of alcohol and setting up a debauchery house.

  14. The evidence given by the applicant husband during the SHEV interview which had included an acknowledgement that he drank alcohol, that his brother had supplied his alcohol (by making it at home) and that 20 guests at the party hosted by the first and second applicants had been arrested because the Basij had smelt alcohol on their breath.

  15. The country information supplied by the applicants’ representative to the Authority and the written submission which explained its significance to the review.  The applicants described the material as including media articles reporting raids by the Basij and Iranian authorities of private parties.  It was noteworthy, according to the applicants, that the first of these reports did not mention alcohol at all and suggested that parties where there was music, dancing and mixing of genders was of concern to the authorities.  The applicants submitted that this material was contemporary and recorded that there had been a recent spike in arrests in Iran for throwing parties.  The natural inference was that the applicants would themselves be at risk due to engaging in similar conduct in the future.

  16. The applicants’ emphasised the following passages from the written submissions given to the Authority which introduced the media articles as “new information” (CB 506):

    40.We ask the IAA to have regard to the attached country information, confirming a recent spike in arrests of Iranians for holding parties…

    41.We ask the IAA to consider that these articles identify both that there has been a very recent intensification of police activity in relation to birthday parties, and the involvement, in at least some cases, of the Revolutionary Courts in prosecution of these offences.  This information is of direct relevance to the Applicant’s claims: he would be returning to Iran as a person already investigated and tortured for his role in hosting a birthday party (accepted by the Delegate) and sentenced in the Revolutionary, not Criminal Courts, and returning from a Western country.  The country information confirms that recent arrests have involved dual nationals and others who can be more easily accused of Western ties and is relevant to an assessment of the Applicant’s profile as a person returning from the West, previously arrested and tortured by the authorities for hosting a large party (applicants’ emphasis).

  17. It was also said to be significant that the applicants’ representative had made a submission on behalf of the second applicant, that the applicants would have a profile as failed asylum seekers on return to Iran (CB 854 [12]).

  18. The applicants’ complaint was that the Authority had made an assessment of risk to the first and second applicant that focused only on the events of March 2011 and the impact of these events on their respective profiles.  The Authority had failed to consider the prospect that the first and second applicant might repeat these behaviours and conduct on a return to Iran and to make related inquiries such as whether these behaviours would make the applicants part of a cognisable social group and/or whether the applicants could modify their behaviour.

  19. The applicants submitted that the error in focus revealed itself in [36] (CB 1061) of the Authority’s written statement where, in evaluating the risk of future harm from the 50th birthday party, the Authority said:

    I have considered the media reports submitted to the IAA regarding recent arrests for holding or attending parties, including of a US-Iranian.  It seems that the applicants remained in Iran for some time after these events.  I accept the first applicant may have been monitored following his release.  However, I am not satisfied that the authorities otherwise showed any interest in him or the second applicant or approached either of them in that period.  I do not accept the first applicant has a conviction or that there is any outstanding legal action against either of the applicants.  I find they were no longer persons of any interest or suspicion at the time they departed Iran.  The first applicant gave evidence that they had not previously held a party of that size or which had come to the attention of the authorities and the second applicant does not claim to have previously or subsequently following the events in question experienced any adverse interest because of her tattooing work or tattoo, other than an officer visiting her while she was in hospital immediately after the events.  I consider it remote that the applicants would face harm in the future in relation to parties, alcohol or tattooing (applicants’ emphasis).

  20. The applicants submitted that when the Authority came to consider their risk of facing serious harm as failed asylum seekers from the west, the vice was repeated.  This was because (according to the applicants), the analysis focused only on the applicants’ risk of harm on arrival at the airport.  The Authority failed to engage in an analysis as to whether the applicants, as people who engaged in western social practices and were returning from Australia, would be at additional risk from the Basij or authorities in the future.

    The Minister’s submissions

  21. The Minister submitted that the claim that was before the Authority and which it was required to consider, was a claim that concerned the risk profile of the applicants as a consequence of the party they had hosted in March 2011.

  22. The Minister noted that in his statutory declaration made on 16 August 2015 in support of his application for the visa, the first applicant had made no reference to other parties, to drinking, or to engaging generally in what might be described as “anti-Islamic behaviours”.

  23. The Minister submitted that the same singular focus was applied to the applicants’ subsequent articulation of their protection claims.  This was said to be evident from the responses provided by the first applicant during the SHEV interview.  The Minister relied in particular on the following exchanges:

    …

    TRIBUNAL:And I mean you had parties before, maybe smaller ones but, you know, had you done this before? Had your alcohol for private guests in your own home?

    INTERPRETER:        To serve alcohol in?

    INTERVIEWER:        

    Q.35  In their own home.

    A(Through interpreter) No, this was the first time.  He says as a result of this event he said I was detained, they took me to detention.  First to Vozara and then later on to Sepah centre for a few days.  I was beaten up really badly. I got very sick.  They had me in solitary confinement.  My wife became very sick and she was hospitalised.[1]

    …

    TRIBUNAL:Yeah, that’s not.  Yeah. No, the point is only that yeah, I just – I would have thought if you’re having a big party with 80 people you probably had parties before with smaller amounts, where you’ve had alcohol and you had people, especially if your brother’s making it?

    AHe says I myself drink, I just drink just enough to get a bit happy but he says in Iran for people who drink it but just like here, there is a limit to it and not to drink and go and drive it because then that’s – that is illegal, as it is here.  So it’s – in many ways it is like here.[2]

    [1] See transcript of SHEV interview dated 8.11.22 page 7.

    [2] See transcript of SHEV interview dated 8.11.22 page 10.

  24. The Minister submitted that there was no evidence before the Authority that the applicants had supplied alcohol to others or that they had held parties beyond the one held in celebration of the first applicant’s 50th birthday.

  25. As far as the country information provided to the Authority was concerned, the Minister noted that in the submission explaining its significance, the applicants’ representative had identified the media reports as providing context to the first applicant’s fears (CB 506).  It was said that this reinforced the centrality of the first and second applicants’ claim to apprehend harm as a result of the party held in March 2011 and did not convey an invitation to inquire into whether any of the applicants would (in the future) engage in conduct of the kind referred to in the country information.

  26. The Minister also placed importance on the fact that the applicants had been represented before the delegate and before the Authority and that their representatives had put on comprehensive submissions and articulated the applicants’ claims through their various communications.  The Minister submitted that the Court could be more circumspect in determining whether an unarticulated claim had been “squarely raised” or “clearly emerged” from the materials in those circumstances (referring to Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609 at [21]).

  27. The Minister submitted that the Authority gave consideration to the applicants’ circumstances as a whole and that this consideration comprehended both an element of past and prospective reasoning.  This was evident from [36] (CB 1061) where the Authority stated that it had “considered the media reports submitted to the IAA regarding recent arrests for holding or attending parties, including of a US-Iranian” and had then proceeded to consider whether the applicants would face harm in the future in relation to parties, alcohol or tattooing.  It was said that nothing in this paragraph indicated that the Authority was confining its consideration of any harm related only to historical parties.

  28. Equally, while the Authority did not accept that persons who have spent time in a country such as Australia, including those who have claimed asylum, have an adverse profile with the Iranian government ([60] CB 1065), this finding should be read as a whole and in context of the Authority having earlier accepted that the first and second applicants were involved in parties, alcohol and tattooing.  A failure by the Authority to expressly reference the applicants’ claims about their profile as people who may engage in un-Islamic practices did not preclude an inference that it had been considered.

    CONSIDERATION

  29. I am not persuaded that the applicants have established error in the Authority’s consideration of their claims.  I have arrived at this conclusion for the following reasons.

  30. It seems plain from the comprehensive material that was provided to the delegate and then, on referral, to the Authority, that the claim squarely articulated had at its core the first and second applicants’ participation in the birthday party held to celebrate the first applicant’s 50th birthday.  While the party involved the first and second applicant engaging in conduct and behaviour that had an anti-Islamic or Western element to it, nowhere in the many hundreds of pages of material produced in support of the applicants’ claims was a claim made expressly that these behaviours coalesced in the applicants (or any one of them) being members of a particular social group of persons who engaged in Western social practices or perceived anti-Islamic behaviour.

  31. The evidence given by the first applicant during the SHEV interview did not alter this analysis.  Indeed, as the exchanges relied upon by the Minister tend to illustrate, the first applicant by his responses confirmed that the party was an isolated event and that while he (the first applicant) engaged in drinking on occasion, he denied the delegate’s suggestion that the first and second applicants had hosted parties, even smaller ones, in their home before.  In this regard, I do not accept the applicants’ submission that the Authority was in error when it recorded at [36] (CB 1061) that the first applicant gave evidence that they had not previously held a party of that size.  That is precisely what the first applicant told the Authority.

  32. The centrality of the birthday party claim was reinforced by the submissions provided to the Authority that introduced the new country information. In particular, paragraph [41] of those submissions (reproduced at [16] above) framed the first applicant’s profile by reference to him being a person who had (in the past) been investigated for his role in hosting a party. The submission did not, in its terms, suggest that the first applicant would repeat these behaviours that had brought him to the adverse attention of authorities in 2011. While the submission did also identify the first applicant as being a person who would be returning from the West, it did so as a distinct element of the first applicant’s risk profile – i.e. that he was returning from the West and he had previously been arrested and tortured by the authorities for hosting a large party.

  1. The Authority understood and responded to this claim.  This is evident from paragraphs [36], [60] and [62] of its statement of reasons.

  2. It is apparent from [36] (reproduced at [23] above) that the Authority satisfied itself that the behaviours that had raised the interest of the authorities in 2011(comprehending parties, alcohol and tattooing) were not likely to be repeated or to have ongoing consequences for the applicants. The Authority’s conclusion that it “was remote that the applicants would face harm in relation to parties, alcohol or tattooing” involved an assessment of future risk that reflected the view taken by the Authority that the conduct engaged in by the first and second applicants had not engendered enduring interest. The element of the applicants’ risk profile that related to anti-Islamic behaviour was effectively extinguished at this point of the analysis as is made clear by the Authority’s reference (at [61] CB 1066) to its earlier conclusion “that the first and second applicant were no longer of interest to the Iranian authorities at the time they departed Iran”.

  3. To the extent that the applicants’ claim required the Authority to consider the cumulative impact of the various risk profiles attributed to the applicants (or some of them), it did so at [62] (CB 1066) in the following terms:

    62.Considering the applicants’ circumstances as a whole, I am not satisfied there is a real chance of any of the applicants being seriously harmed in the reasonably foreseeable future in relation to the events that occurred in Iran, the third applicant’s beliefs or his involvement with the Baha’i community in Australia, their application for asylum in Australia or the fact of their having spent time in a Western country, release of their personal details, disclosure of information to their agents or any combination of these matters or other matters.  The applicants do not have a well-founded fear of persecution within the meaning of s 5J.

  4. There was no residual aspect of the applicants’ claims that the Authority was required to consider given its earlier findings.

    DISMISSAL

  5. For the reasons set out above I will make orders that the applicants’ application (as amended on 18 November 2022) be dismissed and that the applicants pay the first respondent’s costs in the fixed amount of $8371.30.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .

Associate:

Dated:       25 May 2023


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Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609