AXU15 v Minister for Immigration and Border Protection
[2017] FCA 850
•28 July 2017
FEDERAL COURT OF AUSTRALIA
AXU15 v Minister for Immigration and Border Protection [2017] FCA 850
Appeal from: AXU15 v Minister for Immigration & Anor [2016] FCCA 2646 File number: SAD 330 of 2016 Judge: BESANKO J Date of judgment: 28 July 2017 Catchwords: MIGRATION – consideration of an application seeking an extension of time to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) – where delay is in the order of 25 days – where proper explanation for the delay – where Minister will not suffer any prejudice should the extension of time be granted – whether the proposed appeal lacks merit.
MIGRATION – consideration of an appeal from a decision of the Federal Circuit Court dismissing the applicant’s application for judicial review – whether the applicant articulated a claim or a claim clearly arose on what the applicant said at the Tribunal hearing – where applicant was represented at the hearing before the Tribunal – where the applicant had not mentioned the particular claim in extensive submissions to the Tribunal – where the relevant evidence was considered by the Tribunal on an existing claim – whether there was a real chance that government policy would change such that there were involuntary returnees to Iran – where argument not raised before the Tribunal or in the Federal Circuit Court – where not clear the real chance test would apply to government policy – where no evidence on the point.
Legislation: Migration Act 1958 (Cth) s 91R Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 2003 HCA 26; (2003) 77 ALJR 1088
Minister for Immigration and Border Protection v SZSCA and Another (2014) 254 CLR 317
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Date of hearing: 4 May 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: Mr P Charman Solicitor for the Applicant: Kvinta International Migration & Visa Services Counsel for the First Respondent: Mr K Tredrea Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent entered a submitting notice, save as to costs ORDERS
SAD 330 of 2016 BETWEEN: AXU15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
28 JULY 2017
THE COURT ORDERS THAT:
1.The applicant be granted an extension of time within which to appeal from the orders made by the Federal Circuit Court on 20 October 2016 up to and including 4 December 2016.
2.The appeal be dismissed.
3.The applicant pay the first respondent’s costs of the application and appeal to be agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is an application by an unsuccessful applicant for judicial review for an extension of time within which to appeal from orders made by the Federal Circuit Court of Australia on 20 October 2016. The applicant applied for a Protection (Class XA) visa, but his application was refused by a delegate of the Minister and, on review to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), the Tribunal affirmed the decision of the delegate. The Federal Circuit Court dismissed the applicant’s application for judicial review (AXU15 v Minister for Immigration & Anor [2016] FCCA 2646).
The delay in filing the appeal is in the order of 25 days. The applicant has filed an affidavit providing an explanation for the delay which indicates that the applicant was not at fault. In my opinion, there is a proper explanation for the delay. The Minister accepts that that is the case. The Minister also accepts that he will not suffer any prejudice should an extension of time be granted. The point which the Minister does raise in opposition to the application for an extension of time is that the proposed appeal lacks merit and he contends an extension of time should be refused on that ground. I heard submissions on both the application for an extension of time and on the appeal.
The Facts
The applicant is a citizen of Iran. He arrived in Australia as an irregular maritime arrival on 23 July 2012. He applied for a Protection visa on 26 November 2012 and his application was refused by a delegate of the Minister on 19 March 2014.
The applicant had a registered migration agent, who was also a barrister and solicitor, acting for him during his review before the Tribunal. The agent articulated the applicant’s claims to refugee status in a written submission to the Tribunal dated 17 March 2015. That is a convenient source for describing, in a general way, the claims made by the applicant.
The applicant was born in Iran and at the time of the written submission he was 25 years old. He is not married and his parents and siblings live in Iran.
The applicant claimed refugee status on the basis of religion, imputed political opinion and membership of a particular social group, being failed asylum seekers/returnees from the West.
The applicant’s agent claimed that the applicant operated a successful hairdressing business in Iran. The business grew when the applicant began to offer Western style haircuts and colourings to clients. Most of his clients were young men who preferred what the Iranian authorities considered “radical” hairstyles. The applicant experimented with hairstyles. Three or four months into the growth phase of his business, the applicant was visited by the Basij which thereafter became relentless in their pursuit of the applicant. He gave evidence about a number of incidents which he claimed had occurred. He said that he was forced to flee from Iran and seek refuge in Australia.
The applicant fears persecution should he return to Iran. The Basij has previously threatened him and he fears arrest, imprisonment and even death as he now has a file against him and he has converted to Christianity. He claims that he was baptised in the Christian faith in September 2013. Christians are persecuted in Iran and the applicant’s fear of persecution is objectively well-founded. The applicant is unlikely to receive State protection and relocation is not a viable option.
In summary, the applicant claimed a well-founded fear of persecution and that there is a real chance that he would be persecuted in Iran for one or more Convention reasons: “persecution arising from religion (converting to Christianity), persecution arising from imputed political opinion (radical Western anti-Islamic hairstyling) and persecution arising from membership of a particular social group (failed asylum seekers)”.
On 22 May 2015, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa.
As I have said, the applicant’s application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court by order made on 20 October 2016.
The Key Conclusions of the Tribunal
The key conclusions of the Tribunal were as follows.
First, the Tribunal addressed the applicant’s credibility. It did not accept the applicant as a credible witness concerning his fears and experiences in Iran. It considered that the applicant had exaggerated his claims as to these matters and also as to the genuineness of his adoption of Christianity in Australia. The Tribunal gave reasons for reaching that conclusion which I do not need to summarise. The Tribunal accepted that the applicant had worked as a hairdresser in Iran and that there are reports of restrictions on hairdressers to conform with Iranian morality laws relating to appearance. The Tribunal said that it did not accept any other material particular of the applicant’s narrative relating to circumstances in Iran. The Tribunal said that, in addition to its findings about the applicant’s narrative, it had formed an adverse view of his reliability in terms of the evidence he gave about his involvement in Christianity, his genuine commitment to Christianity, and his engagement in conduct in this regard for any reason other than strengthening his claims to be recognised as a refugee.
After addressing the applicant’s credibility and reliability, the Tribunal considered each of the applicant’s grounds for refugee status (i.e., religion, political opinion and membership of a particular social group and harm arising from the occupation as a hairdresser; and membership of a particular social group of failed asylum seekers).
With respect to the applicant’s claim based on religion, the Tribunal discussed the applicant’s conduct in Australia involving his conversion to Christianity. The Tribunal referred to s 91R(3) of the Migration Act 1958 (Cth) (the Act) which provides that any conduct engaged in by an applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more Convention reasons unless the applicant satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. After reviewing the evidence and setting out its findings, the Tribunal said that the applicant had not satisfied the Tribunal of the matter referred to in s 91R(3). In fact, the Tribunal went further and said that it was “positively” satisfied that the applicant’s interest in Christianity has been contrived to strengthen his claim to be a refugee. The Tribunal did accept that the applicant had “gone through” a baptism ceremony and that he had been in attendance at activities undertaken by a group convened by a Mr Fred Salehi. Mr Salehi described himself as a minister of the Adelaide Persian/Iranian fellowship. The Tribunal considered that the applicant had exaggerated the extent of his activities related to Christianity in Australia and it found that the applicant was not “genuinely interested” in Christianity.
With respect to the applicant’s claim based on political opinion and membership of a particular social group and harm arising from the applicant’s occupation as a hairdresser, the Tribunal said that it had some difficulty in accepting that a sub-group of hairdressers who perform stylish or un-Islamic haircuts would constitute a cognisable social group in Iran, but in any event, it did not accept that any such group would be “targeted harm by reason of their membership of such a social group”. The Tribunal said that the low level harassment of those who do not conform with Islamic dress codes would not be for a Convention reason, but rather was a response to conduct that is in breach of laws that apply generally to the Iranian population. Furthermore, the low level harassment was not serious harm for the purposes of s 91R(1)(b) of the Act.
With respect to the applicant’s claim based on membership of a particular social group of failed asylum seekers, the Tribunal accepted that the applicant might be suspected of being a failed asylum seeker, but it did not accept that he would face harm by reason of being so identified. As this third claim is raised in the application and appeal, some further elaboration of the Tribunal’s reasoning is necessary. First, the Tribunal found that the applicant left Iran legally on his own passport. Secondly, the Tribunal had before it country information, including a Department of Foreign Affairs and Trade report dated 29 November 2013 (DFAT report). Based on that report, the Tribunal concluded that voluntary returnees are unlikely to attract much interest from authorities amongst the large regular international movement of Iranians. Thirdly, the Tribunal said that there might be a qualification to the previous proposition for persons with a political profile in Iran or abroad, but the applicant did not fall into that category because he did not have an adverse political or religious profile.
The Proceeding in the Federal Circuit Court
The applicant’s grounds of judicial review were as follows:
1.The Tribunal denied the Applicant procedural fairness in that it:
1.1 failed to consider the applicant’s claim that photographs of his Baptism in the Christian religion in Australia (which the Tribunal accepted had in fact occurred) had been posted on Facebook and were known to his friends and family and “all other people” in Iran; and/or
1.2 declined to accept (as evidence for consideration) the photographs which the Applicant attempted to provide at the hearing, which were relevant not only to the question of whether the Applicant was baptised in Australia (as the Tribunal seems to have thought) but also whether he would be at risk of serious harm by reason of imputed religious affiliation / apostasy.
2.The Tribunal failed to consider a claim that squarely arose on the material and submissions put to it, namely whether there was a real risk the Applicant would have imputed to him religious affiliation / apostasy by reason of the publication on Facebook of images of and information about his Baptism.
3.The Tribunal failed to consider an integer of the applicants claim namely that of a member of the social group of involuntary returnee failed asylum seekers, in that:
3.1 the Tribunal conflated two fundamentally different situations namely that of voluntary and involuntary failed asylum seekers and did not address specifically the claim as an involuntary returnee.
3.2 the Country Information relied upon by the Tribunal dealt with voluntary returnees and, to the extent that it addressed the position of involuntary returnees it recorded only that DFAT was not aware of any studies.
3.3 the Tribunal failed to make any finding concerning the claim of the applicant as an involuntary returning failed asylum seeker.
The Federal Circuit Court judge (the primary judge) dealt with grounds 1 and 2 together and counsel before him had approached the matter in that way. He described ground 1 as 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” (at [3]). He described ground 2 as an assertion that the Tribunal failed to consider a claim that arose squarely on the materials 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” (at [3]).
The events at the hearings before the Tribunal were relevant to grounds 1 and 2 and a transcript of the hearings before the Tribunal was put before the primary judge. There were two hearings, a short hearing on 26 March 2015 and a longer hearing on 20 April 2015. Early in the hearing on 26 March 2015, the following exchange between the applicant and the Tribunal took place:
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. …
The primary judge noted that neither the applicant, who was legally represented at both hearings, nor the Tribunal said “even one word more about the Facebook photographs”.
The primary judge referred to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Dranichnikov) and said that the question was 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 (at [6]).
The primary judge accepted that the Tribunal seems to have been more focussed during the conduct of the hearing on the question of whether the applicant had undertaken his baptism ceremony, and otherwise purported to adopt Christianity, in an endeavour to promote a sur place claim. The primary judge said that the Tribunal made no findings about the Facebook photographs, or the knowledge of those in Iran of the applicant’s baptism.
The primary judge said (at [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.
The primary judge said that the Tribunal did not refuse to accept the photographs. He said that the issue was deferred to a point when the matter was going to be revisited. The primary judge noted that the applicant and his advisers did not seek “to tender the photographs at any stage, either in the two oral hearings or by way of any post hearing submission” (at [14]).
The primary judge expressed his conclusion with respect to grounds 1 and 2 of the application for judicial review as follows (at [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.
The primary judge described ground 3 in the application for judicial review as 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. The applicant submitted that the Tribunal conflated two different situations: voluntary failed asylum seekers and involuntary failed asylum seekers.
The essence of the primary judge’s reasons was that it was open to the Tribunal to find that the applicant had left Iran legally, that is to say, on his own legally issued passport. Furthermore, it was open to the Tribunal to rely on the DFAT report and to find that voluntary returnees were unlikely to attract much interest from the authorities amongst the large regular international movements by Iranians. It was open to the Tribunal in those circumstances to 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. Critically for the purposes of the application and appeal, the primary judge said that the Tribunal did not err in law in focusing on voluntary returnees because “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” (at [23]).
The Draft Notice of Appeal
The Draft Notice of Appeal contains the following grounds:
1.The Learned Federal Circuit Court Judge erred in finding that the Tribunal did not fail to consider a claim that squarely arose on the material and submissions put to it, namely whether there was a real risk the Applicant would have imputed to him religious affiliation / apostasy by reason of the publication on Facebook of images of and information about his Baptism.
2.The Learned Federal [Circuit] Court Judge erred in failing to find that the Tribunal had committed jurisdictional error by failing to consider an integer of the applicants claim namely that of a member of the social group of involuntary returnee failed asylum seekers, in that:
Particulars
a. the Tribunal conflated two fundamentally different situations namely that of voluntary and involuntary failed asylum seekers and did not address specifically the claim as an involuntary returnee.
b. the Country Information relied upon by the Tribunal dealt with voluntary returnees and, to the extent that it addressed the position of involuntary returnees it recorded only that DFAT was not aware of any studies.
c. the Tribunal failed to make any finding concerning the claim of the applicant as an involuntary returning failed asylum seeker.
3.The Learned Federal [Circuit] Court Judge erred in failing to find that the Tribunal had committed jurisdictional error by its misapplication of the real chance test as to whether the Applicant would suffer from persecution should he at some stage in the future be forced to return home as an involuntary returned failed asylum seeker.
Particulars
a. The test upon [sic] applied by the Tribunal and passages referred to indicate that a person in the Applicant’s position may suffer harm.
b. The real chance test does not require a finding that a person would suffer harm on the balance of probabilities and the passage that suggested he may find harm is sufficient to make out and meet the real chance test.
Ground 1 reflects the substance of the issues raised in grounds 1 and 2 of the applicant’s application for judicial review and ground 2 does likewise in the case of ground 3. Ground 3 in the Draft Notice of Appeal seems, at least in its terms, to be new because it is not in the application for judicial review and nor was it dealt with by the primary judge.
Analysis
Ground 1
With respect to ground 1, the applicant submitted that the primary judge erred in failing to hold that the Tribunal failed to respond to a substantial clearly articulated argument before it, namely, that there was a real risk that the applicant would have imputed to him religious affiliation or apostasy because of the publication on Facebook of images of and information about his baptism. The applicant emphasised those parts of his exchange with the Tribunal where he said that he preferred his baptism to “stay secret” and a “lot of people” know about his baptism. The applicant said that when these comments are considered in the context of the case he advanced to the Tribunal, they were sufficient to alert the Tribunal to a clearly articulated claim that there was a real chance that he would suffer persecution should he be forced to return to Iran on the basis that the photographs could be available to authorities in Iran upon his return. That context included the applicant’s claim of conversion to Christianity, evidence that Christians in Iran face a real risk of persecution and evidence that the applicant’s return to Iran would come to the attention of authorities. The applicant submitted that his claim was “substantial” and referred to the fact that persecution by reason of an imputed political opinion or imputed religion is sufficient (Minister for Immigration and Border Protection v SZSCA and Another (2014) 254 CLR 317 at 323 [9]) and the evidence would satisfy the real chance test as explained in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan).
The Minister referred to Dranichnikov and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58] and submitted that the conclusion of the primary judge (at [15]) was correct.
The relevant principles are not in doubt and it is their application which is in issue in this case. In Dranichnikov, Gummow and Callinan JJ (Hayne J agreeing at [95]) said (at [24]):
To fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord Mr Dranichnikov natural justice.
The issue was considered at some length by the Full Court of this Court in NABE. The Court said at [55], [58] and [60]:
55… Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. …
58… It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
60… This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
The issue is whether the applicant articulated a claim or a claim clearly arose on what the applicant said at the Tribunal hearing to the effect that there was a real chance of persecution if he was returned to Iran because the authorities would impute to the applicant an apostasy or an affiliation with Christianity. Reading the passage as a whole, I do not think that the Tribunal appreciated that such a claim was made. The Tribunal considered that the photographs were being adduced to prove the baptism ceremony in September 2013 and told the applicant that it was prepared to accept that the applicant had participated in a baptism ceremony in September 2013.
Having regard to the following matters, I am not satisfied that the Tribunal failed to respond to a substantial, clearly articulated argument or claim. First, the applicant was represented at the hearing before the Tribunal by a registered migration agent who was also a qualified lawyer. Secondly, prior to the hearing, the applicant had, through his agent, made extensive submissions to the Tribunal in which there was no mention of this claim. Thirdly, the photographs of the applicant’s baptism were relevant to an aspect of an existing claim (i.e., his conversion to Christianity in Australia) and indeed, as I have said, the Tribunal seems to have considered that the applicant wished to put them forward for that purpose. Finally, the applicant never actually said that he feared persecution if he was returned to Iran because of imputed apostasy or religious affiliation following the posting of the photographs of his baptism on Facebook.
I reject ground 1.
Grounds 2 and 3
The applicant addressed grounds 2 and 3 together on the basis that they are related.
The applicant referred to country information provided to the Tribunal by his agent on 28 March 2014. The applicant submitted that this information was not referred to by the Tribunal and yet it showed that some returned failed asylum seekers had been mistreated upon their return. The applicant submitted that the DFAT report was equivocal as to the treatment of voluntary and involuntary returnees. The applicant submitted that the Tribunal failed to consider properly whether there was a real chance of persecution (applying Chan) should he be forced to return to Iran i.e., as an involuntary failed asylum seeker. The applicant submitted that the primary judge erred because he considered the applicant’s claim to be that of a voluntary returnee and “not that of an involuntary returnee being considered in light of the real chance test”.
I have referred to how the Tribunal and then the primary judge dealt with this claim (at [17] and [27-28]). The primary judge rejected the applicant’s argument saying that there was no evidence that there are any involuntary returnees to Iran. I do not think there is any error in his analysis. Counsel reformulated the argument in oral submissions to be that the Tribunal erred in not addressing whether there was a real chance (as per Chan) that government policy would change such that there were involuntary returnees to Iran. That argument must be rejected. It was not raised in the Tribunal or in the Court below. Furthermore, first, it is not clear to me that the real chance test would apply to government policy in the way suggested by the applicant, and secondly and in any event, there is no evidence on the point.
I reject grounds 2 and 3.
Conclusion
The grounds of appeal are sufficiently arguable to warrant an extension of time. However, for the reasons I have given, the appeal should be dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 28 July 2017
0