AXU15 v Minister for Immigration

[2016] FCCA 2646

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2646

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether Tribunal failed to consider clearly articulated claim – alternatively whether claim arose clearly from the materials before the Tribunal – whether Tribunal erred in failing to consider risks to applicant if involuntarily returned to Iran – on materials considered fairly, no failure to consider applicant’s claims – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Applicant: AXU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 199 of 2015

Judgment of: Judge Burchardt

Hearing date: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Adelaide

Delivered on: 20 October 2016

REPRESENTATION

Counsel for the Applicant: Mr S McDonald

Solicitors for the Applicant: Legal Projects

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application filed 3 June 2015 is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 199 of 2015

AXU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an Amended Application filed 23 November 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (then the Refugee Review Tribunal) dated 22 May 2015.  The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa.

2. Because of the extremely helpful and economical way in which both counsel formulated their cases and addressed the Court, it is both possible and appropriate to move immediately to the grounds of application relied upon.

3. Grounds one and two, which were dealt with essentially together by both counsel, relate to the applicant’s claims arising from Facebook entries.  Ground one is essentially an assertion of a denial of procedural fairness in that the Tribunal failed to consider that the applicant’s photographs of his Baptism in Australia had been posted on Facebook and were known to his friends and family, and a lot of other people, in Iran, and/or declined to accept the photographs.  Ground two asserts that the Tribunal failed to consider a claim that arose squarely on the material and submissions put to it, namely that the applicant faced a real risk of having apostasy imputed to him by reason of the publication of the Facebook images with information about his Baptism.

4. Counsel for the applicant took the Court to the transcript of the proceeding, which is annexure CG-1 to the Affidavit of Caroline Merle George, affirmed 15 December 2015.  At entry 11:01, there is an extract which is worth setting out in full:

   “Okay.  Before get started, is there anything new that has happened or anything that’s happened since you signed this declaration that you think I should know about, that is relevant to your claim for protection in Australia?”

   No I guess that covers it all other than the fact that I’ve got some photos of my baptism ceremony and if you require them, I can disclose them to you.

   Is that the baptism ceremony of September 2013 that you’re referring to?

   That’s right.

   I can indicate to you that I’m prepared to accept you participated in a baptism ceremony in September 2013 so I don’t need any further evidence about that.  Is there any other purpose for providing me copies of photos of that service?

   No the only intention behind this is that I didn’t realise there were any photos of the ceremony and I found them on Facebook and social media and this is why my family and my friends back in Iran also know about this happening which I didn’t intend to disclose to anyone.  I preferred it to stay secret but now it’s not the case anymore, so that’s why I brought the photos for you to consider.

   They’re photos taken from Facebook are they?

   That’s true, the photos are downloaded from Facebook and they were uploaded by different people and because of the “like” procedure in Facebook, a lot of people know about it including my family which I preferred to keep it secret from them.

   Okay well I think what might be best is if you just give me evidence about that when we come to that topic and I’ll decide then whether I actually need to see the photographs.  It’s more important that you tell me what’s happened rather than just looking at photographs. …”

5. Counsel for the applicant asserted before the Court, and counsel for the first respondent did not take issue, that there is nothing further in the remainder of the transcript of the hearing on that day, 26 March 2015, or the further hearing on 20 April 2015, in which either the Tribunal or the applicant said even one word more about the Facebook photographs.  The applicant was legally represented at both hearings. 

6. It is common cause between counsel that a failure by the Tribunal to address a sufficiently clearly articulated argument, or one that emerges sufficiently clearly of itself from the materials, may give rise to jurisdictional error.  Both counsel referred me to Dranichnikov v Minister for Immigration and Multicultural Affairs[1], where Gummow and Callinan JJ said:

   “To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.  …”

   [1] (2003) 197 ALR 389 at [24].

7. The question that arises is whether the claim was sufficiently clearly made, or arose sufficiently clearly on the materials that the Tribunal’s failure to deal with it constituted jurisdictional error.

8. I accept the submission of counsel for the applicant, that the Tribunal seems to have been more focused during the conduct of the hearing to the question of whether the applicant had undertaken his Baptism ceremony, and otherwise purported to adopt Christian beliefs, in an endeavour to promote a sur place claim.  The Tribunal decided that matter decisively against the applicant in terms of which no criticism is now presently advanced.  I accept that the Tribunal made no findings about the Facebook photographs, or the knowledge of those in Iran of the applicant’s Baptism.  As the applicant’s written submissions assert, the Tribunal did not record any findings as to:

   a)whether the pictures of the applicant undergoing Baptism were posted on Facebook;

   b)whether the pictures were able to be accessed in Iran;

   c)who, if anyone in Iran might have accessed the pictures, or might otherwise know that the applicant had undergone a Christian Baptism; or

   d)what consequences that such knowledge or believe might have for the applicant were he to return to Iran.

9. The applicant submitted that apostasy is a crime regarded very seriously in Iran and it is clear that the Tribunal was aware that the applicant claimed that his Baptism made him fearful of returning to Iran.[2]  The applicant’s agent had expressed a clear fear that the applicant would suffer serious harm as a result of his conversion to Christianity were he to be returned to Iran.  Whether the evidence goes so far as to establish that apostasy was regarded as a serious crime does not perhaps matter. 

   [2]     Court Book (‘CB’), p 364 at [14].

10. The first respondent, by way of contrast, asserts at paragraph 17 of the written submissions, that there is simply no evidence before the Tribunal, or the Court, that the applicant was asserting, even impliedly, that anybody who had seen the Facebook pictures would inform upon him to the authorities leading to persecutory conduct, or that any such person would themselves harm the applicant.  So much is clearly correct as far as it goes.  Counsel submitted that there was no expression of fear by the applicant arising from such matters and that his information to the Tribunal could just as easily be explained by embarrassment.

11. I do not accept this latter point.  There would have been no utility to seeking to produce the photographs merely to explain away embarrassment that I can see.

12. In the end, my view can be stated shortly.  Had the applicant pressed the Tribunal, either himself or through his representative, at any later stage of the hearing to return to the question of Facebook, articulated the matters now sought to be pressed, and the Tribunal failed to address them, it would clearly in my view have amounted to jurisdictional error, whether through lack of procedural fairness and/or a failure to address a sufficiently clearly articulated argument.  Nonetheless, the Facebook issue had not been raised in any of the prior submissions (which were very extensive) made to the Tribunal.  Indeed the applicant himself said these were new materials. 

13. The Tribunal, contrary to the submissions of counsel for the applicant, did not refuse to accept the photographs.  What the Tribunal said was:

    “What might be best is you just give me evidence about that when we come to that topic and I’ll decide then whether I actually need to see the photographs.”

14. On any reasonable interpretation, this was not a refusal to accept the documents but a deferral of the issue to a point when the matter was going to be re-visited.  At one level of analysis it might be thought that that made it incumbent on the Tribunal to return to the matter.  Nonetheless, the applicant was at the hearing and was represented.  He never sought to tender the photographs at any stage, either in the two oral hearings or by way of any post hearing submission.  I note that on 4 May 2015, the applicant’s lawyer sent an email message to the Tribunal[3] which relevantly asserts: “We write by way of courtesy advising our client has not provided instructions in respect of further submissions”.  Although the email goes on to assert: “In this regard Sir we note your direction that you will be deciding the case based on submissions inclusive of witness evidence provided on 30 April 2015”, the tenor of the email as a whole suggests that it was open to the applicant to seek to file further submissions had he been so inclined.

    [3]     CB p 276.

15. The question of the Facebook photographs was raised very early in the proceedings.  The applicant did not state in terms any fear arising from the Facebook posts, although with the benefit of hindsight, for my part I would say that it would perhaps be easy to infer that they were raised because of his apostasy fears on return.  As the authorities make clear, however, the question is whether the claim was one that was sufficiently clearly articulated or arose with sufficient clarity from the materials.  In circumstances where the applicant never actually articulated any fear, either himself or through his advisors, and made no further effort to return to an issue which is now said to be so important, I simply do not think that the Tribunal fell into jurisdictional error in failing to have further regard to it.

16. The third ground relied upon by the applicant is an assertion that the Tribunal failed to consider an integer of the applicant’s claim, namely that he was a member of a particular social group of involuntarily returned asylum seekers.  It is put that the Tribunal conflated to fundamentally different situations, namely that of voluntarily returned failed asylum seekers and did not address specifically the claim as an involuntarily returnee.

17. The claim as actually articulated by the applicant’s lawyer’s submissions[4] was as follows:

    “We submit that the applicant may face persecution due to his membership as (sic) a particular social group, namely as a returnee from a Western Country or as a failed asylum seeker.”

    [4]     CB p 148.

18. In the Court Book at page 150, there is reference to two Iranians forcibly returned home to Iran from Australia, and other materials showing persons who had been returned involuntarily and suffered harm.

19. Counsel also took the Court to the country information at Court Book pages 302-303 referred by the Tribunal.  It was submitted that this only dealt with voluntary return.  Counsel for the first respondent took the Court to extracts from the materials which show that it is clear that the applicant had destroyed his Iranian passport, but had left Iran on that passport.  It was submitted that there was simply no evidence before the Tribunal of any involuntarily returnees to Iran.

20. The Tribunal noted that the applicant had left on his legally issued Iranian passport.[5]

    [5] CB p 375 at [96].

21. The Tribunal accepted that it was possible that the applicant might be suspected of being a failed asylum seeker regardless of whether he returned on his own passport, or on a travel document issued by the Iranian Embassy in Canberra, or the Australian Government.  The Tribunal did not however accept that there was a real chance the applicant would face harm as a result.[6]  The Tribunal went on to say:

    “In this regard, I rely on and accept the country information provided by DFAT to the effect that Iranian officials do not attempt to prosecute voluntary returnees and it is unlikely that a voluntary returnee will attract much interest from the authorities amongst the large regular international movements of Iranians.

    Noting other sources, have suggested that the risk of ill treatment as a returnee is proportionate to an individual’s political profile in Iran, or engagement in political activity abroad, I find for the reasons already expressed that the applicant has no adverse political or religious profile.  I find the ordinary situation described by DFAT to be applicable to the applicant, and find that there is no real chance that the applicant will be harmed because he may be perceived to be a member of a particular social group of failed asylum seekers.”

    [6]     CB p 375 at [98]-[99].

22. The DFAT material,[7] notes at paragraph 5.23 that while Iranian border authorities accept regularly Iranians with valid Iranian travel documents returned involuntarily to Iran, Iranian overseas missions will not issue travel documents to an Iranian that a foreign government wishes to return involuntarily.  The country information suggests that those who return voluntarily are not prosecuted.  Country information notes that DFAT was not aware of any studies concerning the treatment of voluntarily or involuntarily returnees but “a voluntarily returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians”.  The tenor of the extract as a whole would suggest that returnees from Western countries who are failed asylum seekers are not likely to face Convention or complimentary protection harm.

    [7]     CB pp 302-303 at [5.18]-[5.24].

23. In the ultimate, I accept the submission of the first respondent.  It should be noted that I have paid no regard to the submissions made from the bar table as to the status of Iranians in Australia who do not wish to return more generally.  Nonetheless, the fact is that the DFAT extract taken on its face at the very lowest would say that there is no evidence that there are any involuntarily returnees to Iran.  It is scarcely surprising therefore that the Tribunal dealt with the matter in the light of such material as was before it.

24. I do not think that the Tribunal fell into jurisdictional error in dealing with this matter in the way that it did.

25. The applicant’s grounds of application not being made out, the application will be dismissed with costs.  The first respondent indicated that the figure of fees sought in the event of a successful outcome was below scale at $5,800 and counsel for the applicant was content to accept this figure without further hearing.

26. I will dismiss the application and order the applicant to pay the first respondent’s costs fixed at $5,800.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 20 October 2016