Avn15 v Minister for Immigration
[2018] FCCA 2553
•6 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVN15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2553 |
| Catchwords: ADMINISTRATIVE LAW – The Tribunal can operate on the presumption that if a represented applicant wished to rely on particular evidence referred to but not tendered, the evidence would have been tendered; and to infer from the representative’s inaction on that point, that reliance was not placed on the evidence which had been referred to but not tendered. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 91R, 424, 441F, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZULW v Minister for Immigration & Border Protection [2018] FCA 1335 |
| Applicant: | AVN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1418 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 6 August 2018 |
| Date of Last Submission: | 6 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Chia |
| Counsel for the First Respondent: | Mr M.J Smith |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1418 of 2015
| AVN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Iran who arrived in Australia as an irregular maritime arrival on 12 August 2012. On 10 December 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Iran because of his religion. On 9 December 2013 the applicant’s visa application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has sought judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
Protection visa claims
The facts alleged in support of the applicant’s claim for a protection visa were set out in his statutory declaration of 30 November 2012. Relevantly, the applicant made the following claims:
a)he was born into an Islamic family but witnessed atrocities being committed in the name of Islam which led him to question his faith;
b)he and his brother (“B”) were introduced to Christianity by a friend of B’s wife. The friend tried to take them to church but when they saw how heavily the churches were being watched by the authorities they realised that it was too dangerous;
c)he eventually converted to Christianity while in Iran;
d)he had an uncle who was Christian. His uncle had a church in his home and he and his brother went there for prayer sessions;
e)in 2012, after Persian New Year, B and he were on their way to their uncle’s house when they saw him and others being arrested by the authorities. They immediately fled the scene and went into hiding;
f)whilst in hiding, the authorities raided their home in order to find information about his and B’s association with Christianity;
g)with their family’s assistance, B and he fled Iran and travelled to Australia;
h)he had further developed his Christian faith while in Australia;
i)if he returned to Iran he would be killed, presumably on the basis of being an apostate; and
j)he would also be at risk of harm because he had travelled to and claimed asylum in Australia, would be imputed with anti-Islamic sentiments arising from the authorities’ association of Christianity with the West, and would also be imputed with anti-government sentiments given the strong link between religion and state in Iran.
Before the Tribunal, the applicant also claimed that he (and B) had been attending the World Mission Society Church of God in Australia. He claimed to have been baptized into that church.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal considered significant aspects of the applicant’s evidence to be lacking in credibility and, as a consequence, formed the view that certain aspects of his evidence were not to be accepted;
b)the applicant’s evidence as to his experiences in Iran as a result of his religious activities was vague and inconsistent. For example:
i)in his statutory declaration the applicant claimed that he had converted to Christianity in Iran whereas at the hearing he said that he had not converted but, rather, had been researching the faith with B;
ii)the applicant stated at the hearing that B and he had been prevented from entering their friend’s church by officers of the Information Ministry who did not recognise them and told them to leave. This was different to the account the applicant had given in his written claims;
iii)the applicant gave evidence at the hearing that he did not see anyone other than his uncle being arrested, which was again different to the account which had been provided in his written claims; and
iv)the applicant’s evidence concerning the events said to have caused him to leave Iran was vague as to both timing and detail. He was unable to tell the Tribunal when his uncle had been arrested (stating only that it had occurred after Persian New Year) or when the authorities had searched his home;
c)in light of these matters, and given that the Tribunal did not consider the applicant’s religious activities in Australia to be consistent with a genuine and committed interest in Christianity, the Tribunal found that the applicant had entirely manufactured his claims relating to his Christianity in Iran;
d)the Tribunal did not accept that the applicant’s conduct in Australia reflected a continuation of any interest in Christianity, noting the following matters in this regard:
i)the Korean-based World Mission Society Church of God was reported to hold beliefs far outside mainstream Christian beliefs and the Tribunal had difficulty accepting that the applicant would join such an unusual church given that he had fled Iran to pursue his Christian faith;
ii)given its concerns about the applicant’s credibility, the Tribunal gave little weight to the oral evidence provided by two of the applicant’s witnesses, who said that he had changed his religion and attended church regularly although they had never attended church with him;
iii)no-one from the World Mission Society Church of God attended the Tribunal hearing to give evidence in support of the applicant’s claims;
iv)while the applicant produced three letters purporting to be from members of the church who described themselves as his and B’s church friends, those letters made broad statements about the applicant’s religious practices and activities but provided little as to the circumstances in which B and he joined the church, the regularity and duration of their activities and the reasons they were accepted to be genuine converts by members of the church; and
v)the Tribunal’s broad concerns about the applicant’s credibility were not outweighed by the contents of those letters and the Tribunal gave them little weight;
e)for those reasons, and given that it had rejected the applicant’s account of events in Iran, the Tribunal did not accept that the applicant had genuinely converted to the World Mission Society Church of God or that he would seek to practise that faith if he returned to Iran. The Tribunal found that the applicant’s activities in Australia had been undertaken for the sole purpose of strengthening his refugee claims and therefore, in the context of the applicant’s Convention-related claims, disregarded this conduct pursuant to what was at the time s.91R(3) of the Act;
f)furthermore, the Tribunal did not accept that there was a real chance that the applicant’s activities in Australia would come to the attention of the Iranian authorities;
g)the Tribunal did not accept, in light of its findings, that the applicant would seek to practise Christianity if he returned to Iran. As such, the Tribunal did not accept that the applicant had, or would be imputed as having, political views which were anti-Islamic or anti-regime on the basis of his Christian activities in Iran or Australia; and
h)nor did the Tribunal accept that the applicant would face persecution in Iran on the basis that he was a member of the particular social group “failed asylum seekers returning from a western country”, or any group comprising an alternative formulation of those characteristics, as this claim was not supported by independent sources.
PROCEEDINGS IN THIS COURT
The applicant pleaded the following grounds in his further amended application:
1.The second respondent (Tribunal) failed to have regard to corroborative evidence of the applicant’s brother.
2.In the alternative, the Tribunal denied the applicant a reasonable opportunity to give evidence and present arguments and thereby failed to comply with the requirements of section 425 of the Migration Act 1958 (Act).
3.[Not pressed]
This application turns on the fact that the applicant and B had similar claims which were determined by the Tribunal, constituted on each occasion by the same member, close in time to each other.
Ground 1
The first ground contends that the statutory declaration which B made on 28 November 2012 in support of his own visa application ought to have been part of the evidence before the Tribunal for the purposes of the applicant’s review.
The applicant referred to written submissions filed before the Tribunal’s hearing, in which the applicant’s adviser relevantly said:
Further, we note the applicant and his brother both provided consistent evidence about this aspect of his case.
Significantly, the adviser did not identify which parts of B’s evidence were being referred to or the extent of the corroboration ostensibly relied on.
In this case, the applicant’s contention was that that submission sufficed to put the Tribunal on notice that B’s statutory declaration was important to the applicant’s review and was relied on. It is important to note at this point that the applicant’s adviser never actually said so in so many words, including at the Tribunal hearing, or sought to give the documents in question to the Tribunal in accordance with s.441F of the Act.
Essentially, the applicant was arguing that the Tribunal should have appreciated the significance of the point and, of its own motion, sought out the information for the purposes of the review, utilising its power to do so provided by s.424. However, as the Tribunal was not asked to do that, and as there is no evidence that it turned its mind to doing so, no jurisdictional error based on a miscarriage of the discretion provided by s.424 is apparent.
It is well understood that the Tribunal does not need to seek to elicit from an applicant an argument which that applicant does not choose to make. Further, the fact that a party is represented before the Tribunal is relevant when considering whether an argument, which might have been articulated but was not, was one which should nevertheless have been considered by the Tribunal: SZULW v Minister for Immigration & Border Protection [2018] FCA 1335 at [80]-[81]. By analogy, it would have been reasonable of the Tribunal in this case to operate on the presumption that if the applicant had wished to rely upon B’s statutory declaration then the applicant’s adviser would have said so clearly, and to infer from her silence on the point, or from what was at most her vague allusion to the document, that she did not rely on it. Absent evidence from B having been placed before the Tribunal, the passage from the written submissions to the Tribunal now referred to by the applicant was no more than a submission without evidentiary foundation.
Ground 2
The second ground alleged that it might be inferred that the Tribunal had lulled the applicant’s adviser, who it might be said at this point appeared both for the applicant and B, into a false sense of security such that she did not think she had to give B’s statutory declaration to the Tribunal in a formal way in order for it to be taken into account. This alleged misleading of the applicant’s adviser is said to arise out of the following passage in the Tribunal hearing relating to B’s review:
ADVISER: … I also note the applicant’s brother’s [i.e. the present applicant] case is before the Tribunal and constituted by a different Member.
TRIBUNAL:Right.
ADVISER: And the evidence that his brother has given is very consistent to the evidence that the applicant has given which strengthens the claims of what happened.
TRIBUNAL:It’s not before me, is it before you?
ADVISER: Well I can provide his statement as well.
TRIBUNAL:Yeah, it’s not actually at any point before me, the delegate has made no reference to it. It’s not constituted to me. So if there [sic] anything you think I should have in regard to.
ADVISER: I can provide that, that’s fine.
My understanding of what the Tribunal said in that passage is that if B wanted to rely on the applicant’s evidence, he had to give it to the Tribunal. It is a big stretch to say that the applicant’s adviser could reasonably have inferred that the Tribunal was also saying that if the member in question had had access to the file for the applicant’s review, the information in it could have been sourced from there instead of it being provided by B in support of his own review.
However, even if the adviser had been under such an illusion, the following exchange in the applicant’s own review hearing ought to have disabused her of it. It seems that by this time the same member had been allocated to both reviews.
APPLICANT: Well they said that the rules of the Church of God doesn’t allow interference in political affairs and what they provided that letter which my brother I think provided to you about the history of how long we have been attending the church and I think my lawyer has these documents as well.
TRIBUNAL:Miss [A] I am just checking the Tribunal file, I don’t think those documents have been submitted in this particular case, is that correct?
APPLICANT: Well I’ve got a letter here and the other two are with my lawyer and this lady is the second person in charge after the Church Pastor in terms of giving reference letters.
TRIBUNAL:I will give you that one back. Ms [A] do you want to submit those documents in respect of … so that they end up on the Tribunal file in respect of this particular case?
ADVISER: Yeah not a problem.
APPLICANT: Have they sent you the letter yet?
TRIBUNAL: Ah Miss [A] will, I have seen them in respect of your brother’s case, Miss [A] will provide them to the Tribunal for your file as well.
It appears that the applicant’s adviser was indeed disabused of any such illusion because she subsequently did go on, albeit after the Tribunal made its decision, to provide to the Tribunal a written submission enclosing the letters in question. She learned from the exchange just quoted that if she wanted to rely on particular evidence, she had to ensure it was before the Tribunal.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 13 September 2018
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