BGR15 v Minister for Immigration

[2015] FCCA 2849

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGR15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2849

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claims – procedural fairness – whether the Tribunal failed to put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152

Applicant: BGR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1864 of 2015

Judgment of: Judge Street

Hearing date: 22 October 2015

Date of Last Submission: 22 October 2015

Delivered at: Sydney

Delivered on: 30 October 2015

REPRESENTATION

Counsel for the Applicant: Mr B Mostafa

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6000. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1864 of 2015

BGR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of the decision of the Tribunal dated 30 May 2015, affirming that a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Iran and his claims were assessed against that country. The applicant claimed to fear persecution in Iran for the reason of his Khawari (Hazara) ethnicity, imputed political opinion and membership of an alleged social group of returnees from a western country.

2. The applicant claimed the Khawaris were discriminated against in Iran.  The applicant claimed that he had consistently been asked to confirm his nationality by Iranian authorities despite being born in Iran, and had a number of meetings with Iranian officials.  The applicant claimed that after he threatened to take the matter to international organisations about six months before his departure from Iran for Australia, he was taken from his home by officers of the Ministry of Intelligence and National Security, held overnight and handcuffed, punched and threatened, that if he complained about Iran he would be harmed.

3. The applicant claimed he would be killed if he returned to Iran because they would know he had complained about Iran.  The applicant also claimed that he had been accused of fraudulently obtaining Iranian citizenship.  The Tribunal found that the applicant was generally credible but had exaggerated some aspects of his claim, particularly in relation to his detention by the Ministry of Intelligence and National Security (MISIRI).  Relevantly, the Tribunal said:

   30. … While the Tribunal had concerns about the applicant’s evidence at the beginning of the hearing after listening to the recording of the hearing, the Tribunal considers that the applicant’s claims and evidence have been generally consistent from his entry interview dated 27 May 2012 to hearing. From time to time the Tribunal considers the applicant exaggerated his evidence, particularly in relation to the incident where he claims to have been detained by MISIRI but that did not detract from his overall credibility.

4. In relation to the incident involving the MISIRI, relevantly the Tribunal said:

   23. The applicant claimed that he has consistently been asked to attend official meetings to confirm his nationality. Present at the meetings were several people including intelligence people and he indicated he was provided with an official advocate who was an Iranian citizen and a delegate of the prosecutor. He asserted that 5 years ago he was taken by intelligence officers, asked about his family origins then released and had no further issues until about 6 months prior to his departure from Iran. At the last meeting he threatened to seek assistance from international organisations and 3 days later was taken from his home, held overnight and questioned and threatened that if he sought assistance from the international community, the Iranian authorities would deal with him harshly and he would be taken to the Revolutionary Court. The delegate had concerns about the veracity of the applicant’s claim in that he claims to have struggled with this problem for 20 years and it seems that the only time he was personally questioned and detained was when he threatened to go to the international community to complain about his treatment. The delegate gave the applicant the benefit of the doubt on the basis that he had been credible in his overall testimony and that the country information indicates that these kind of detainments are common in Iran and accepted that his detention and questioning may have been true.

5. There is a reference to the following heading and passage as follows (CB169):

   Claims have been threatened by intelligence officers after the applicant threatened he would seek help from the international community

   …

   I have some doubt about the veracity of the applicant’s claim to have been detained as described above. By the applicant’s own assertion he has been struggling with this problem for twenty years and it seems the only time he has been personally questioned and detained is after he ‘spoke out’ and threatened to go to an international organisation to complain about his treatment.  Even though this claim may have been embellished to strengthen his claims, on the basis that the applicant has been overall credible in his testimony and that country information supports that these kind of detainments by intelligence officers are common in Iran, I will afford the applicant the benefit of the doubt and accept it as true. 

6. Continuing the delegate summarised the claims of the applicant and, relevantly, in this regard at CB164-165 said:

   The applicant claimed that six months before he fled Iran, two men from the MISIRI came to his home; he was blindfolded and taken to what he believed was the MISIRI office in Marshhad.  He claimed he was held overnight and questioned and threatened that if he sought assistance from the international community, the Iranian authorities would deal with him harshly and he would be taken to the Revolutionary Court.

7. At the time of making the application for a protection visa in Part C the applicant had said, relevantly (CB15):

   1. Why did you leave your country of nationality (country of residence)?

   I left Iran because about 20 years there is huge discrimination against people like us. There is not enough democracy in Iran.  The Iranian authorities took all documents from us.  My daughter who is 11 years has no document.  We went on holidays and we could not take her along.  Everyday they throw my younger daughter from school and she was humiliated among other students.  She asked me where are we from?  I have my father’s documents which show he was Iranian and my documents but there is a Council in Marshhad of 7 members.  They asked my questions.  I told them I was born in Iran and done a lot for the country and they said these are not important for us.  The 7 members come from different government organizations.  I told them these documents if you don’t believe me I will go to international humanitarian organizations and tell them the situation in Iran.  They kept me for one night.  They said if you proceed, we will introduce you to the revolutionary court.  Now they don’t know I have passport. If they know I have passport, they will question me how I got one. We have not still confirmed your citizenship.  They will recognise it as a crime.  This issue made me crazy.  My father passed away because of this issue all his issue all his life.  I have struggling with this issue for 20 years.  I have a lot for Iran and after working for 40 years, still I’m not sure where I am from.  That was the reason why I let for Australia.  Australia being a country which respect human beings. 

   (Emphasis added)

8. The applicant also provided a statutory declaration which relevantly said (CB85-86):

   14.  My daughter has no identification documents.  We were unable to take her with us whenever we travelled to another country.  My daughter’s school sent her back home every day.  She was humiliated among other students.

   15. I told them that if they could not resolve the matter I would go to international organisations to seek assistance. 

   16. After two nights, two men from MISIRI came to my home at night.

   17. I was blindfolded and was taken to a place I believe is the MISIRI Office in Marshhad.  I was detained overnight where I was questioned.  They threatened me and said that if I were to say that I would seek assistance from international organisations again, they would deal with me harshly and take me to the Revolutionary Court.

   18. They do not know that I had a passport.  If they knew I would be seriously punished. 

   19.  I have struggling with this problem for around 20 years and feel as if I have no identity.  I still do not know where I am from. 

   20.  I decided to flee Iran.  I travelled using my genuine passport to Qatar and Malaysia.  I then found a smuggler to assist with my travels to Australia. 

9. Relevantly, in that statutory declaration underneath the heading “What I fear may happen if I return to that country”, the applicant said:

   22. I fear I will be arrested and imprisoned if I return to Iran.

10. Under the heading “Why I think I will be harmed / mistreated if I return to that country”, the applicant said relevantly:

    25. I will be harmed and persecuted because I am Hazara. I will be investigated and authorities will insist that I am not a citizen of Iran.  I will be accused of having obtained fraudulent documents in Iran.

11. The Tribunal found that the applicant left Iran legally and was in possession of a valid Iranian passport issued in his name.  The Tribunal in its reasons under a bold heading “Assessment of claims”, and a subheading “Summary application and delegate’s decision”, relevantly said:

    23. The applicant claimed that he has consistently been asked to attend official meetings to confirm his nationality. Present at the meetings were several people including intelligence people and he indicated he was provided with an official advocate who was an Iranian citizen and a delegate of the prosecutor. He asserted that 5 years ago he was taken by intelligence officers, asked about his family origins then released and had no further issues until about 6 months prior to his departure from Iran. At the last meeting he threatened to seek assistance from international organisations and 3 days later was taken from his home, held overnight and questioned and threatened that if he sought assistance from the international community, the Iranian authorities would deal with him harshly and he would be taken to the Revolutionary Court. The delegate had concerns about the veracity of the applicant’s claim in that he claims to have struggled with this problem for 20 years and it seems that the only time he was personally questioned and detained was when he threatened to go to the international community to complain about his treatment. The delegate gave the applicant the benefit of the doubt on the basis that he had been credible in his overall testimony and that the country information indicates that these kind of detainments are common in Iran and accepted that his detention and questioning may have been true.

12. The delegate also referred to whether there was a well-founded fear of persecution and relevantly said (CB172):

    Finding on well-foundedness

    I am not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason.  I therefore find the applicant’s fear of persecution, as defined under the Refugee Convention, is not well-founded.

13. In relation to whether the claim of harm amounted to significant harm, the delegate said (CB171-172):

    During his oral testimony the applicant described what occurred when he was detained by intelligence officers.  When the applicant was asked whether he was harmed during his overnight detainment by intelligence officers, he responded that; they opened a case against him and while ‘they were not polite, they did not hurt him.’ In addition, his description of what was said to him was rather informal and there was no evidence that it was anything more than a discussion of what they ‘had heard that he said during a meeting’.  He was released the next morning without being charged, nor was there any official arrest of summons.  In addition, the applicant was able to leave Iran after this incident on his genuine Iranian passport without incident. 

    Therefore I am not satisfied that the applicant is currently of any interest to the Iranian authorities.  However, the applicant stated at interview that should he be returned to Iran, he will continue to fight for his and his daughter’s rights.  Notwithstanding this, it has been demonstrated by the applicant that his actions in seeking his daughter’s identity documents have occurred in an official capacity in his local province.  He has been invited to attend formal meetings by official correspondence, the meetings were held in the presence of officials including members of the MISIRI and importantly he has been represented by an official advocate supplied by the government. 

    I acknowledge that these meetings have occurred over a long period of time, particularly since his daughter’s birth in 2000 and without results in favour of the applicant.  However, apart from one occasion of detainment that cannot be described as anything other than questioning and threats to stop, there is no evidence to suggest the applicant would suffer severe harm for these reasons if he was to return to Iran and continue to attend these meetings.

14. The applicant appeared before the Tribunal on 2 December 2014 to give evidence and present arguments, and was assisted by an interpreter and was also represented by his registered migration agent.  Prior to the hearing, detailed submissions were provided by the applicant’s representative to the Tribunal dated 28 February 2014, which referred to in para.25 of the Tribunal’s reasons.  I these submissions under the heading “Does the applicant have a well-founded fear of persecution on the basis of his race/nationality?”, para.60 provided:

    60. An October 2005 report from the Afghanistan Research and Evaluation Unit (AREU)12 also provides background information on Khawari, particularly those residing in Marshhad, where the applicant and his family live, stating that the citizenship of Khawari had been disputed and referred to ‘many’ Khawari having been issued with amayesh or refugee registration cards. The report indicated that many had migrated to Iran from Afghanistan in the previous century, integrated and became naturalised Iranians and were now having their citizenship disputed.

15. Under the heading “Does the applicant have a well-founded fear of persecution on the basis of his imputed political opinion?”, the submissions provided relevantly (CB207):

    70. In her decision, the Delegate was not satisfied that the Applicant is currently of any interest to the Iranian authorities and he would not suffer severe harm if he continued to try to obtain his and his daughter’s birth certificates through meetings with the local council. 

    71. Notwithstanding this finding, the Delegate also noted that ‘apart from one occasion of detainment that cannot be described as anything other than questioning and threats to stop, there is no evidence to suggest the applicant would suffer sever harm for these reasons’. This statement is internally contradictory. 

    72. The Applicant was threatened that if he were to continue trying to obtain his and his daughter’s birth certificates, he would suffer harsh consequences which would amount to a threat to the Applicant’s life or liberty and thus persecution.  After this threat, the Applicant departed Iran to ensure that he did not suffer the harm that was threatened by the MISIRI officers. This therefore is evidence that there is a real risk that the Applicant would suffer serious harm were he to return to Iran.

    73. Furthermore, as the Applicant sought asylum in Australia, we will be considered to have acted on his threats to seek international help. 

16. Relevantly, the Tribunal found

    69. The applicant’s evidence to the Tribunal was not consistent in relation to his daughter’s access to education. The initial evidence was that it was only his younger daughter who had difficulty enrolling in school because he was unable to provide his original birth certificate [AA] but his wife obtained a letter of support from the committee and she was able to be enrolled. He told the Tribunal that his daughters were not attending school and when asked when his older daughter stopped attending school, he responded about 5 years ago. When the applicant was questioned further by the Tribunal, he stated that they attend school but do not get any of their records because they do not have any identity documents. The delegate found based on the applicant’s evidence that his daughter was able to attend school after his wife provided a letter of support from the education department and that it was that she had difficulties enrolling like other children. Based on the inconsistent evidence provided because they are Khawari or considered to be Afghanis.

    70. The Tribunal has considered the applicant’s claims that without identification documents he will be given limited access to welfare and medical services. The tribunal finds that the applicant has copies of his documents which he has used in the past to access these services and does not accept that he does not have identification documents sufficient to continue to access these services.

    71. The Tribunal has considered the applicant’s claims in relation to his employment in that he claims to have worked illegally and that it was only when he held identity documents that he was able to work for the Iran Bank. The Tribunal notes from his work history provided in his Form 866 application for protection that the applicant has been employed in a number of jobs including a taxi driver, working in the family shop and that he has also been self-employed working as an exporter and as a retailer and wholesaler. The Tribunal does not accept that he has suffered such harm in relation to his income and finances as to constitute serious harm. The applicant has been able to earn an income and provide for his family and indicates that he owns his home and other property which he rents. The Tribunal does not accept that he has been denied the ability to earn an income or that he has to work illegally to earn that income because of his ethnicity Khawari or because he was considered to be Afghani . In making its findings, the Tribunal has had regard to the instances of serious harm that are set out in s.91R(2), although it is conscious that these are not exhaustive. It finds to be remote them chance that the applicant would suffer serious harm in the form, for instance, of significant economic hardship that threatens his capacity to subsist or denial of capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist. The Tribunal is not satisfied, looking to the reasonably foreseeable future, that there is a real chance that he will be persecuted in this regard for reason of his ethnicity or any other Convention reason. It is not satisfied that there is a real risk that he will suffer significant harm in this regard.

    72. The applicant has claimed that he is called names, such as “Afghani” and that his daughters have been accused of being Afghans. The Tribunal accepts based on the country information that there is some hostility towards people perceived to be Afghans. However, it does not accept that this amounts to serious harm or significant harm. Looking to the reasonably foreseeable future, the Tribunal is not satisfied that there is any real chance that the applicant will suffer serious harm at the hands of other Iranians for reason of his Khavari/Hazara ethnicity, imputed Afghan nationality, being a person who is perceived to be of Afghan origin or for any Convention reason. Nor is it satisfied that there are substantial grounds for believing that there is a real risk that he will suffer significant harm at the hands of other Iranians for these reasons.

    …

    76. Having regard to the independent information, the Tribunal accepts that the applicant may attract some attention as a person of Khavari ethnicity and Afghan/ Hazara. It accepts that the applicant may face being stopped on a regular basis and asked for documentation. However, as noted above, the Tribunal finds that the applicant is in a position to demonstrate that he is in fact an Iranian citizen. It may be that he regularly comes to the attention of the authorities and that he suffers some harassment in the form of regular checking because of his Afghan/ Hazara appearance, which is consistent with the country information. It accepts that, in the course of checking, he has suffered some harassment. However, the Tribunal does not accept that such instances of checking, even considered cumulatively and even accepting that they involved some harassment, constitute serious harm or significant harm.

    77. The Tribunal accepts that the applicant may continue to face a degree of discrimination and harassment from the Iranian authorities in the form of regular checking. Nevertheless, looking to the reasonably foreseeable future, it finds to be remote the chance that the applicant would suffer persecution at the hands of the Iranian authorities for reason of his Khawari ethnicity or imputed Afghan nationality or for reason of being a person perceived to be of Afghan origin. The Tribunal is not satisfied that the applicant’s Khawari ethnicity and Afghan/ Hazara appearance give rise to substantial grounds for believing that the applicant will suffer significant harm at the hands of the Iranian authorities, including the Basij. In making these findings, the Tribunal has taken account of DFAT’s statement that it is “possible that individual members of the Basij discriminate against ethnic and religious minorities” and that there is an element of unpredictability in their behaviour.

    78. The applicant is fearful that if returned to Iran he will face harm because they will accuse him of following up on his threat to report the Iranian Government to the international community because of their discrimination against him. It was submitted that the fact that the applicant had sought asylum in the West would imply that they had made comments against the regime, that he had complained to the international organisations about his treatment as a Hazara in Iran and they would harm him on his return as he was told that if they ever hear that he has complained they will kill him and he signed an undertaking not to complain. The applicant claims that despite leaving Iran on his valid Iranian passport, he made his exit illegal as they would put him in the system and they will know he left and how he obtained his passport.

    …

    81. The applicant claimed at hearing that he was tortured when he was taken by the MISIRI from his house after stating at the last meeting that he would complain to the international community. The delegate when considering his evidence on this point had doubt about the veracity of his claim and stated that it may have been embellished to strengthen his claims. However, the delegate gave the applicant the benefit of the doubt on the basis that he had been credible in his overall testimony and that the country information indicates that these kinds of detainments are common in Iran and accepted that his detention and questioning may have been true. The Tribunal finds that the applicant’s evidence as to his detention was not consistent with his evidence to the delegate, in that to the delegate he indicates that while they were not polite, they did not hurt him, yet to the Tribunal he indicates they punched him and there was pain. His evidence was consistent in that he was asked about his life. While the Tribunal accepts that the applicant made a comment about taking the matter to the international community, he was detained a few days later and questioned further, the Tribunal does not accept that this has given him a profile as a person in opposition to the Iranian Government. The Tribunal finds that the applicant has exaggerated his claims to have been told that if he complains it would be like digging his grave with his hands and they would take him to the Revolutionary Court for the purposes of enhancing his application. The Tribunal does not accept after a number of years of following up on his documents, he would suddenly be of interest to the Iranian authorities that they would suddenly place his house under observation and continually ask where he was or tell the shop keeper to inform them if they see him. The applicant departed Iran on his valid passport and there would be records of his departure. The Tribunal does not accept that the applicant has a profile or is of any interest to the Iranian authorities because he has continually followed up on his family’s identity documents or because on one occasion he threatened to complain to the international community.

    …

    83. The Tribunal discussed the gist of such information with the applicant at the hearing. The Tribunal has found that the applicant has never been of adverse interest to the Iranian authorities in the past and is not of any current adverse interest. It is not satisfied that the fact that the applicant has been in a Western country and applied for asylum here gives rise to a real chance that he will be persecuted for reason of an imputed political opinion, for reason of being returnees who have unsuccessfully sought asylum in the west or for any Convention reason. Nor is it satisfied that these factors give rise to substantial grounds for believing that the applicants will suffer significant harm. In making these findings, the Tribunal has taken account of the applicants’ Khavari/ Hazara ethnicity.

    84. The Tribunal has carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively. However, looking to the reasonably foreseeable future, it is not satisfied that there is a real chance that the applicant will suffer persecution in Iran for reason of Khawari ethnicity, imputed Afghan nationality, an imputed political opinion or any other Convention reason. Nor is it satisfied that there are substantial grounds for believing that he will suffer significant harm. Having carefully considered all of the evidence, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Iran, there is a real risk that he will suffer significant harm in the form of being arbitrarily deprived of his life, having the death penalty carried out, or being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

1. The grounds of the amended application are as follows:

   1. The Tribunal failed to comply with s 414 of the Act because it failed to consider a component integer of the applicant’s claims for protection on the basis of his race, imputed political opinion or under s 36(2)(aa) of the Act.

   Particulars

   a. The applicant claimed to have a well-founded fear of persecution on the basis of his race (Khawari): submission to Tribunal dated 28 February 2014 (Submission) at [58]; Tribunal’s Decision at [7].

   b. The applicant claimed that, following his father’s death in 1995, his family began having difficulties with their citizenship, and that the applicant’s original birth certificate was confiscated in 2000 when his youngest daughter, whom he was unable to register, was born: Tribunal’s Decision at [63]-[64]; Submission at [24]-[25]. The applicant claimed that the investigation of the applicant’s family was carried out by the Ministry of Intelligence and National Security of the Islamic Republic of Iran (MISIRI): Tribunal’s Decision at [26].

   c. The applicant claimed to have attended the offices of the MISIRI about 8 times from 2000 onwards: Tribunal’s Decision at [12].

   d. The applicant claimed that the problems he and his family faced in relation to identification documents were on account of being (Khawari): statutory declaration dated 31 July 2012 at [5], [13].

   e. The Tribunal accepted that the applicant was “generally credible in his evidence”: Tribunal’s Decision at [30].

   f. The Tribunal accepted that the “evidence before the Tribunal indicates that the applicant’s birth certificate and other identity documents along with the identity documents of other family members were confiscated and he consistently sought to have the documents returned and the questions over his citizenship resolved, attending and giving evidence to the committee on a regular basis”: Tribunal’s Decision at [68].

   g. The applicant claimed that, despite the meetings he had attended since 2000, he was “still unable to register his daughter” and that he was “threatened that if he were to continue trying to obtain his and his daughter’s birth certificates, he would suffer harsh consequences which would amount to a threat to the Applicant’s life or liberty”: Submission at [60], [72].

   h. The Tribunal rejected claims made by the applicant regarding his daughters being denied education (at [69]), but failed to consider:

   i. whether the applicant would continue to try and obtain a birth certificate for his youngest daughter if returned to Iran; and

   ii. whether, on that basis, he satisfied ss 36(2)(a) or (aa) of the Act.

   i. As a result of the failures outlined in the preceding particular, the Tribunal committed a jurisdictional error: see HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (Htun).

   2. The Tribunal failed in a second way to comply with s 414 of the Act because it failed to consider a component integer of the applicant’s claims for protection on the basis of his race, imputed political opinion or under s 36(2)(aa) of the Act.

   Particulars

   a. The applicant repeats particular 1(a) to (e).

   b. The applicant claimed to be at risk of harm on the basis of his imputed political opinion: Tribunal’s Decision at [26].

   c. The Tribunal accepted that “that the Iranian authorities have investigated the applicant’s Iranian citizenship and that they investigated his father before him, and that he has become frustrated such that he threatened to complain to international bodies”: at [80].

   d. The Tribunal accepted that, after making the threat referred to in the preceding particular, the applicant “was detained a few days later and questioned further”: at [81]. The applicant claimed that he was threatened that “if he continued to pursue seeking help from international organisations, he would face harsh consequences”: Submission at [41].

   e. The Tribunal accepted that it may be that the applicant “regularly comes to the attention of the authorities and that he suffers some harassment in the form of regular checking because of his Afghan/ Hazara appearance, which is consistent with the country information” and that “in the course of checking, he has suffered some harassment” (at [76]). The Tribunal also accepted that “the applicant may continue to face a degree of discrimination and harassment from the Iranian authorities in the form of regular checking”: at [77].

   f. Although the Tribunal found that applicant’s threat to complain to international bodies was not, of itself, such as to give him a profile of a person in opposition to the Iranian Government (at [81]), especially in light of the Tribunal’s findings in the preceding particular and the applicant’s claim in particular 2(d), the Tribunal needed to consider whether, if the applicant was returned to Iran, he:

   i. might carry out his threat to complain to international bodies and whether on that basis, he satisfied ss 36(2)(a) or (aa) of the Act; and

   ii. might refrain from carrying out his threat to complain to international bodies because of the harm he might fear if he carried out that threat, and whether, on that basis, he satisfied ss 36(2)(a) or (aa) of the Act.

   g. As a result failing to consider the matters outlined in the preceding particular, the Tribunal committed a jurisdictional error: see Htun.

   3. The Tribunal failed to comply with s 425(1) of the Act in assessing the applicant’s claim for protection on the basis of his race, imputed political opinion and complementary protection.

   Particulars

   a. The applicant claimed that, following his father’s death in 1995, his family began having difficulties with their citizenship, and that the applicant’s original birth certificate was confiscated in 2000 when his youngest daughter, whom he was unable to register, was born: Tribunal’s Decision at [63]-[64]; Submission at [24]-[25]. The applicant claimed that the investigation of the applicant’s family was carried out by MISIRI: Tribunal’s Decision at [26].

   b. The applicant claimed to have attended the offices of the MISIRI about 8 times from 2000 onwards: Tribunal’s Decision at [12].

   c. The Tribunal accepted that “that the Iranian authorities have investigated the applicant’s Iranian citizenship and that they investigated his father before him, and that he has become frustrated such that he threatened to complain to international bodies”: at [80].

   d. The Tribunal accepted that, after making the threat referred to in the preceding particular, the applicant “was detained a few days later and questioned further”: at [81].

   e. The applicant claimed that he was threatened that “if he threatened to take the matter to the international organisations again they would deal with him harshly and take him to the Revolutionary Court”: at [13].

   f. The Delegate accepted that the applicant was threatened as set out in the preceding particular: CB 169.

   g. The Tribunal did not accept that the applicant had received the threat to take him to the Revolutionary Court: at [81].

   h. The Tribunal failed to give the applicant any notice that the question of whether the applicant had been threatened in this manner was an issue arising in relation to the decision under review, and thereby failed to comply with s 425(1) of the Act: SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at [32].

2. In relation to ground 1, I accept the first respondent’s submission that there was no clearly articulated claim that the applicant would try and obtain a birth certificate for his youngest daughter if he returned to Iran.  Whilst I accept that there is a reference in the delegate’s decision at CB172 and repeated in CB174 to the applicant continuing to fight for his and his daughter’s rights, that does not mean that there was a claim that the Tribunal was required to address, as alleged in ground 1, in respect of the obtaining of a birth certificate for the applicant’s youngest daughter.

3. I accept the first respondent’s submission that it cannot be said that there is a substantial, clearly articulated argument relying upon established facts to the effect that the applicant claimed he feared harm if he returned to Iran “because he would continue to try to obtain a birth certificate for his youngest daughter”.  Further, I do not accept that this was a claim that can be said to have clearly arisen or to have been sufficiently identified, that it should have been addressed by the Tribunal.  Accordingly, ground 1 fails to make out any jurisdictional error.

4. In relation to ground 2, I accept the first respondent’s submission that this again was not a claim, that was clearly articulated, that the applicant might carry out his threat to complain to international bodies if the applicant returned to Iran or that he might refrain to carry out his threat to complain to international bodies because of harm he might fear if he carried out that threat.  In my opinion, no such claim clearly arises or was sufficiently raised on material before the Tribunal and the Tribunal was not required to address the matter raised in ground 2.  Accordingly, ground 2 failed to make out any jurisdictional error.

5. In relation to ground 3, the transcript reveals that the delegate said at 3:

   MEMBER: We're here today because you have applied for an application for protection which was refused by the delegate.

   You are not happy with that decision so you have sort to have it reviewed under refugee review tribunal.

   INTERPRETER: Yes exactly

   MEMBER: It's my task today to conduct an independent review on that decision.

   I'm having a fresh look at it which means I am taking a new look at your application.

6. The Tribunal also said at pp.4-5:

   MEMBER: …

   So as I said to you earlier my job is to try and take an independent review of the decision the decision by the delegate.

   The purpose of this hearing is for you to give evidence and present arguments in support of your application.

   And for me to ask you questions ah about matters in relation to your situation

   …

   MEMBER: …

   Now it's very important that you tell me the truth.

   This means if you do not know the answer to a question it is better to simple say so rather than guess.

   The reason you should not guess is because it becomes apparent that you have not told the truth it may affect my assessment of your credibility on important aspects of your case.

7. At p.11 the applicant told the Tribunal:

   INTERPRETER: …

   Um so they told me that um you're Hazara you came from Afghanistan I said yes that's right all of the Hazara people they came from Afghanistan and I said that my grandfather was Hazara and he came from Afghanistan but they said no your father was Hazara and I didn't accept it

   So with all of the service that I did in that country like I went to um army after Iran for two years like the service that people do it's the rule that people who turn 18 ah and ah with all of the service that I did so I just ignored that and they told they told me that I am Hazara and I said that if you don't answer or_ this matter so I will ah complain ah to the

   Ah to all of the services which are about the human rights and different from human rights so I will complain then. And then-then after that was the two people from the ah information_ around they came and now I go to explain the paragraph 40.

   And two days after those people who came to my home So after two days when those two people came behind my house and I opened the door maybe at that time so they didn't ask me this question or I didn't explain it.

   So at that time those people who ah knock on my home and-and I opened the door and I said who are you so they just entered the house and one of those people ah did two punch on my face and my wife and ah so this So it was very obvious ah because of their_ or there gun or things that they had with them _so it was obvious that they were from the information people or the Iran so it's called_ and ah but they were ah out of there uniform.

   And then they handcuff my hands and they took me in the car and they closed my eyes as well.

   I guess about one and a half hours we just_ I don't know where it was

   And at that time we arrived there so we got off and it was an obvious from his voice

   So

   Then that person had a punch in my head that I see that I feel the pain

   And just member told me this exactly that just with a swearing the Afghan just got off.

   Which means that you been_ Afghan guy just get off

   So when we were up in that centre sorry I don't know how many states it had

   So they opened my eyes

   At that stage

   But my

   I was handcuffed and the questioning started

   And then they started questioning from the first stage of my life my life time

   From the beginning of my life

   And it took several hours

   So with ah_ so you want to complain against Iran?

   And some of the papers that they didn't show me they just got signature and fingerprint off me on those papers they didn't show me what was on those documents.

   And

   And they told me if one more time you repeat this so it's like you are digging your grave with your hands.

   I will never forget this_

   So

   So in answer anyone who wants to go against Government or Iran so they hand them to the court of Enqelab and um ah recognising that person who is a person who is against the Government of Islam and Iran

   And

   And they just hang that person easily and they have hanged many people like just as easy as that.

   And I think that in a different paragraph so I just ah refer to this part um not as much as_

   I just had to refer to that ah very short and briefly

   So

   They would

   They would have you will be digging your grave with your hands so that means they 100% of getting killed

   And another matter is that another few times that that I was in contact with my family

   And my wife said ah several time that people come and they said that they are your friend and they ask where-where is the husband whereabouts they ask where is he and the wife is saying that I just __ _

   So the wife was_ maybe they were somebody from the information of the Iran and they ah man who has got a sharp edges in front in beginning of our street enter in our street so he told my wife that some people they are asking questions about your husband so is there any problems happening?

   And they told the shop owner um and said if any one ah sees this gentleman just contact a number_.

   To inform them and ah this is what my wife told me and I think this um_ haven't been mentioned in my application.

   So Ms Member I served this that in Iran this regime of_ so they if they want to hang anyone _so it is very easy for them to just to hang or kill someone.

   So and I think this ah very-very important I didn't mean to_ so I just mentioned them so that you member I am under who would know about this.

   May I explain more?

   MEMBER: Yes you can

   INTERPRETER: so it's very good that they a member here and the interpreter both are females', ladies

   And when I got married from my marriage I've got two daughters and I can show you picture of my daughters

   So here are my two daughters um with all of the service that I've done it Iran Government two years going to the army someone defends that country so they ignored all of those and they said that I am Afghan and because of that this my two daughters they can study other schools and ah my younger daughter that she can't go to school because we are Afghan so they don't enrol afghan people in these schools so day and night she is crying and you can see that emotionally how it affects a thirteen years old girl and ah many time ah other girls at this school has told my daughter because you are afghan you can't come to school and you can't study so I think that from human rights it is not right thing and emotionally it affects a thirteen years old girl very badly.

   And ah my ah 13 years old d-ah girl tells me that my friends tell me that ah you_ like afghan people

   So now you respected judge you can make the decision on all this.

   MEMBER: you just said that both your daughters cant study is that true?

   INTERPRETER: Yes

   MEMBER: So both your daughters can't study in Iran

   INTERPRETER: at the time they took off our ah ID Documents no they can't

   MEMBER: they have taken your ID Documents?

   INTERPRETER: What do you mean? So everything so maybe I have to make it clearer so or maybe I just didn't interpret well so like passport that we have in Australia that we have the ID's in Iranian they've got a passport so that's called_ so that's what he meant so he said that they took that one and all of their ID's

   MEMBER: Did they take all the ID's for all of your family members

   INTERPRETER: Yes all of them

   So they've got so the Government got ...

   MEMBER: So when did they take it?

   INTERPRETER: so I can't remember the dates exactly but after_ years ...

   After that my father died

   Um so about twenty years ago when my father died so the Government of Iran they started investigating or questioning us and they took all of the families information_ so it's called_ so infor- that meaning information part_ took all of the families started questioning and interviewing us at that time my mother was alive as well so it's been two years here in Australia but I think about 11 years ago

   Yeah that's all

   So I am saying it was about 11 years ago that they took ah the documents from us the Iran Government

   So all of my family like my brothers and their children my niece and nephew

   Um daughters of my brothers ah anyone who they wanted to study so they couldn't continue studying

   So I have to mention this the importance of the_ the Iranian um ID so its real important so my daughter ah daughter of my brother she couldn't get married because of she didn't have this ID so the marriage can't get registered.

   And ah like boys ah when they don't have there_ like their Iranian ID like their passport so they can't ah_ ah t the service of_ which is_ two years' service for army and they can't get

   aha there drivers licence or so they can't ah register marriage

   Or they can't get any of the ID cards that they have to get them so they are just disconnected from all of this and they can't get those things_ affecting them.

   MEMBER: So you're telling me your daughters don't have JD Cards?

   INTERPRETER: So they've got a photo copy of their ID's but the original documentation has been taken by the government.

   It's the_ saying like passports sorry

   MEMBER: That's not consistent with what you've actually said earlier in relation to the ID documents you provided to the department.

   INTERPRETER: Sorry can you please repeat it?

   MEMBER: that's not consistent with the information the evidence he has previously given to the department.

   INTERPRETER: he has given to which?

   MEMBER: with the department.

   INTERPRETER: The Department of Immigration?

   MEMBER: MmmHmm

   INTERPRETER: so you mean it's not connected with that?

   MEMBER: well you've provided you have provided identity documents.

   For your family members

   Your previous evidence was that your eldest daughter had been attending school

   And that your youngest daughter had been attending school but there were difficulties with her enrolment.

   INTERPRETER: so it was that in that session of those 7 people so everywhere we just were getting a letter then we just can't enrol them to school and ah it was saying that the process 10 of investigating the passport ID's was just in process and you can temporarily enrol them in a school that at the end they came to the final decision that we are not Iranian.

   MEMBER: that so when did they decide that you were not Iranian?

   INTERPRETER: Last session

   The date is given there I can't remember exactly that date

   So now they g-the Government they've got all of my ah got all of our id's

   MEMBER: I mentioned to you earlier about the importance of telling me the truth so that I do not draw adverse credibility concerns

   About ...

   INTERPRETER: sorry.

   MEMBER: I am having some issues already with some inconsistencies in your statements in your file submissions made on your behalf by your representative and now as to what you were telling me right now is different I would like you to have a think about your evidence to me because right now I'm not feeling that you are telling you are being truthful to me about your circumstance ...

   INTERPRETER: so just before you said please_ your statement now I'm just...

   So you mean that this_ ah contradicting?

   MEMBER: Yep

1. The applicant also said:

   INTERPRETER: as I said in the last session of the seven people it ah when they invalid all of my ID and I said that Iran there is no democracy and there is no human rights so I will complain against discrimination in Iran to other outside ah human rights ah nation or officers and ah because of this that I said so they threatened me and they took a signature off me and they told me if we hear that you have talked about this matter to anyone ah it's like just you have a dig your grave with your hands and your death will be for sure and they threatened me and ah tortured me and they told me if we hear something about this matter we just hand you to a court of Enqelab and ah you will be recognized as someone against the Iranian Government and the Iranian Islamic and they we will hang you and your death will be for sure and because all of this ah I'm afraid to go back to Iran um and I am one hundred percent sure if I would go back so my death would be for sure.

2. Counsel for the applicant contended that the finding at para.81 was a rejection by the Tribunal that the applicant had received a threat to take him to the Revolutionary Court.  Counsel for the applicant read an affidavit that identified that the applicant had referred to the Revolutionary Court where, on p.13, there was a reference to the “Court of Enqelab” in the interpretation to the Tribunal and that there was a further reference to the Revolutionary Court in the reference to Court of Enqelab in the interpretation version before the Tribunal.  It is clear the Tribunal understood the references to Court as being the Revolutionary Court. 

3. It is clear from the Tribunal’s identification of the claims, to which I have referred, that the Tribunal was well alive to the incident to which the applicant had referred and the threat that he would be taken to the Revolutionary Court as referred to in para.23 quoted above.  Materially, in the evidence before the Tribunal in describing that incident, the applicant included in the evidence before the Tribunal:

   And they told me if one more time you repeat this so it's like you are digging your grave with your hands.

   I will never forget this

4. That assertion immediately proceeded the reference to being taken to the Revolutionary Court.  The applicant later in evidence to the Tribunal repeated that same assertion:

   and they told me if we hear something about this matter we just hand you to a court of Enqelab and ah you will be recognized as someone against the Iranian Government and the Iranian Islamic and they we will hang you and your death will be for sure.

5. Again, following that assertion by the applicant is a reference to the Revolutionary Court.  Nowhere had the applicant earlier suggested that he was told that it is like digging your grave with your own hands and the statement “I will never forget this” was linked to the threat that he would be handed to the Revolutionary Court.  It is clear in that regard that the applicant’s evidence in this respect was inconsistent with his earlier statement to which the Tribunal was referring when it raised the issue of concern about the inconsistencies in the applicant’s statement in evidence at p.16 quoted above.

6. Contrary to the applicant’s submission, the Tribunal did not say that it did not accept that the applicant had received a threat to take him to the Revolutionary Court, rather the Tribunal identified in its assessment of credibility that the applicant had exaggerated his claims linking the assertion that he was told that it would be like digging his grave with his hands, to him being taken to the Revolutionary Court “for the purpose of enhancing his application”.

7. It is clear from the Tribunal’s assessment of the applicant’s credit that the Tribunal recognised the applicant had been generally consistent, as referred to in para.30, but it was a matter for the Tribunal to make findings of credit and the observation of having exaggerated his claims by reference to being told it would be like digging his grave with his hands referable to being taken to the Revolutionary Court, was clearly an observation on credit that was open on the material before the Tribunal.

8. I do not accept the applicant’s contention that the credibility finding by the Tribunal in that regard falls within the principle identified in SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at [32]. Materially, the delegate had not accepted without equivocation the veracity of the applicant and expressed doubt relevant to the recounting by the applicant that he threatened to go to an international organisation to complain about his treatment and the delegate said:

   Even though this claim may have been embellished to strengthen his claims, on the basis that the applicant has been overall credible in his testimony and that country information supports that these kind of detainments by intelligence officers are common in Iran, I will afford the applicant the benefit of the doubt and accept it as true.

9. It is clear from the applicant’s reference to the delegate’s finding about being threatened that the issue of embellishment was raised by the delegate and, in my opinion, this is not a case where it can be said that the Tribunal did not give the applicant a sufficient opportunity to give evidence or make submissions about the incident.  I accept the force of the submission of the first respondent that the Tribunal in this case had raised the issue of whether the applicant was embellishing the account in relation to the incident involving the threat to take the applicant to the Revolutionary Court.

10. Further, it cannot be said that the reference to having exaggerated the claim relating to digging his grave with his hands referable to being taken to the Revolutionary Court was a dispositive issue or should have been considered a dispositive issue of the kind identified in SZBEL at [35]. The Tribunal’s reasons are to be read as a whole and without a keen eye for error and, in that regard, the use of the conjunction in the reasons in para.81 to the incident involving being told it would be like digging his grave with his hands in reference to him being taken to the Revolutionary Court, was clearly the one incident.

11. This is not a case where there was a finding by the Tribunal that it did not accept that there had been no threat to take the applicant to the Revolutionary Court, and it is clear that the threat was part of the matters taken into account in the adverse findings in para.84 and also in para.72 on a fair reading of the Tribunal’s reasons as a whole.  Accordingly, ground 3 fails to make out any jurisdictional error.  The amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Original handed down on date: 30 October 2015

Corrected reasons handed down on date: 27 November 2015

Corrections

Certification date amended to reflect date of original handing down and add date of correction.