BHQ15 v Minister for Immigration
[2018] FCCA 181
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHQ15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 181 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Iranian citizen – Muslim converting to Christianity – complementary protection claim – whether error in misapplying test as to whether there is a real risk of significant harm if the applicant returns to Iran – whether jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 474, 476 |
| Cases cited: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 |
| Applicant: | BHQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 309 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 20 May 2016 and 29 July 2016 |
| Date of Last Submission: | 29 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) on 20 May 2016, and Mr RS Jahnke (of Counsel) on 29 July 2016 |
| Solicitors for the Applicant: | Reuben Saul Jahnke (from 30 June 2016) |
| Counsel for the First Respondent: | Mr P Macliver (on 20 May 2016) and Mr P Corbould (on 29 July 2016) |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 12 June 2015.
That a writ of mandamus issue requiring the second respondent to rehear the application for review made by the applicant on 21 March 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 309 of 2015
| BHQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 8 July 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 12 June 2015 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) dated 14 March 2014. The Delegate’s Decision was to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) under s.65 of the Migration Act. A copy of the Tribunal Decision is at Court Book (“CB”) 200-222.
Background prior to the Tribunal Decision
The background prior to the Tribunal Decision is as follows:
a)the applicant is a citizen of Iran born on 17 April 1987, who arrived in Australia at Christmas Island as an illegal maritime arrival on 10 August 2012: CB 1, 26 and 129;
b)on 12 November 2012 the applicant applied to the former Department of Immigration and Citizenship, now the Department of Immigration and Border Protection, (“Department”) for the Protection Visa: CB 26;
c)the applicant was interviewed by the Delegate on 26 March 2013, and on 14 March 2014 the Delegate’s Decision was to refuse to grant the Protection Visa to the applicant: CB 106 and 128-142;
d)on 21 March 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 157-159. The applicant was invited to, and attended, a hearing before the Tribunal on 1 April 2015 to give evidence and present arguments, together with his migration agent representative, and with the assistance of an interpreter: CB 172-173, 194-196 and 201 at [3]; and
e)on 12 June 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 200-222. The applicant was advised of the Delegate’s Decision by letter dated 16 June 2015: CB 223-224.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that the applicant claimed to fear returning to Iran principally because of his conversion to Christianity: CB 202 at [9]; and
b)observed that, in response to questions from the Tribunal, the applicant indicated that he:
i)feared returning to Iran because he had been blacklisted, because it was claimed that he had been promoting Christianity and that he was of interest to the authorities; and
ii)was also scared because he had travelled outside of Iran and the authorities were not aware of his whereabouts: CB 215 at [79].
In relation to the applicant's claims and evidence the Tribunal:
a)found that the applicant was not a credible witness. As a result of cumulative concerns arising from inconsistencies, his inability to provide convincing or credible explanations for aspects of his claims and gaps in his claims, the Tribunal formed the view that he had not been truthful as to his reasons for departing Iran: CB 208 at [46];
b)did not accept that the applicant's friend was a Muslim who converted to Christianity in Iran and attended church on a weekly basis, and did not accept that the applicant went to church in Tehran with his friend: CB 210 at [53][54];
c)did not accept that the applicant converted to Christianity, or converted in his heart to Christianity, while in Iran, or that the Iranian authorities or secret police or the Etilaat had visited his father or taken an adverse interest in the applicant for any reason: CB 211 at [56];
d)was not satisfied that the applicant was in fact a genuine convert to Christianity, but rather, had advanced his conversion claim for the purposes of securing a permanent visa to remain in Australia: CB 213 at [63];
e)was not satisfied that the applicant’s baptism and church attendance since arriving in Australia was engaged in otherwise than for the purpose of strengthening his claim to be a refugee, a conclusion arrived at because (amongst other reasons) of the applicant’s lack of any pre-existing interest in Christianity, and lack of research into other religions or aspects of Christianity once in Australia: CB 215 at [74];
f)did not accept that the applicant’s baptism and church attendance would be known in Iran, and given the Tribunal had found that the applicant’s baptism and church attendance had been done for the sole purpose of strengthening his claim to be a refugee, did not accept that he would have told anybody in Iran that he had converted and therefore did not accept that anybody would know of his conversion in Iran: CB 215 at [75];
g)did not accept the applicant had abandoned Islam or would be imputed to have done so, or that he was a genuine convert to Christianity, or would be imputed as being a convert: CB 215 at [77];
h)said at CB 215 at [78] as follows:
78. The Tribunal rejects the proposition that the applicant would practise as a Christian worshipper if he returns to Tehran. As the Tribunal finds the applicant is not a genuine Christian convert, it is satisfied he would not be perceived or regarded as one if he returns to Iran, and therefore there is no real chance he would be persecuted for reasons of Christian religious beliefs. His fear of harm in respect of Christian conversion is therefore not well founded.
i)found that the applicant had never been involved in any political or religious activities within Iran and did not fit the profile of those persons who appear to be at risk on return to Iran: CB 216 at [84];
j)did not accept that the applicant was on any blacklist with the Iranian authorities, and did not accept that as a result of seeking asylum in Australia or being a returnee from a Western country that the applicant would be imputed with a political opinion of being opposed to the Iranian regime: CB 216 at [84];
k)accepted that there was a real chance the applicant would be questioned and monitored on return to Iran, but found that this treatment did not amount to serious harm and persecution within the meaning of the Refugees Convention: CB 216 at [85];
l)found that the applicant did not have a well-founded fear of persecution for reason of his membership of the particular social group of a failed asylum seeker, failed asylum seeker from a Western country, or a person who has spent time in a Western country, or for reason of an imputed political opinion of being against the Iranian regime as a result of seeking asylum in a Western country: CB 217 at [86];
m)having considered the applicant's claims individually and cumulatively, was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention, and found that the applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act: CB 217 at [87]; and
n)in its assessment of the applicant's claims under the complementary protection criterion in s.36(2)(aa) of the Migration Act, having regard to its earlier findings, did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant would suffer significant harm as defined in s.36(2A) of the Migration Act: CB 217-218 at [88]-[95]. In particular, the Tribunal did not accept that the applicant had genuinely converted to Christianity or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware, that the applicant had any interest in Christianity or had been baptised or attended church, and was therefore not satisfied that there were substantial grounds for believing that there was a real risk that the applicant will suffer significant harm on his return to Iran, and consequently did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm on the basis of his claims: CB 217 at [89].
The Amended Judicial Review Application
Pursuant to orders made by the Court on 20 May 2016 the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) on 30 June 2016 containing a single ground of application as follows:
1. The Second Respondent erred in law by misapplying the test of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk he will suffer significant harm.
Particulars
a) The Applicant raised a claim under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), that as a necessary and foreseeable consequence of him being removed from Australia to Iran, he 'is likely to suffer cruel, inhuman and degrading treatment perpetrated by agents of the Iranian government'.
b) The Second Respondent accepted ‘that there is a real risk the applicant would be questioned and monitored on returned to Iran' but did not accept that 'anyone in Iran is or was aware, or is likely to become aware that [the Applicant] has any interest in Christianity or been baptised or attended Church' [emphasis added].
c) Consequently, the Second Respondent was 'not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm on his return to Iran.'
d) The Applicant may still face a 'real risk' of significant harm even if such harm is not 'likely' to occur.
e) In finding that the Applicant would not face a 'real risk' of significant harm because such harm was not 'likely', the Second Respondent made an error of law.
Consideration
Jurisdictional error required
The Tribunal Decision is only judicially reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
No merit review
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s Protection Visa claim: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 (“Quin”); CLR at 35-36 per Brennan J.
Ground 1 – submissions
Applicant’s submissions
The applicant’s submissions were as follows:
a)the Tribunal erred in law by misapplying the test of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk he will suffer significant harm;
b)in assessing the applicant’s claims under s.36(2)(a) of the Migration Act, the Tribunal considered the relevance of the applicant’s conduct in Australia, namely his Christian “baptism and Church attendance”. After considering that conduct, the Tribunal was “not satisfied that the applicant’s baptism and Church attendance since arriving in Australia was engaged in otherwise than for the purpose of strengthening his claim to be a refugee”: CB 215 at [74];
c)the Tribunal was required to, and correctly did, disregard the applicant’s conduct in Australia when making its assessment of the well foundedness of the applicant’s claims for protection under s.36(2)(a) of the Migration Act. The Tribunal stated in the Tribunal Decision that “s.91R(3) [of the Migration Act] requires the Tribunal to disregard this conduct in determining whether the claimant has a well-founded fear of persecution if it finds that it was carried out for the sole purpose of strengthening his refugee claim”: CB 215 at [76];
d)when considering the applicant’s complementary protection claims under s.36(2)(aa) of the Migration Act, the Tribunal was required to consider the applicant’s conduct in Australia (namely, his Christian “baptism and Church attendance”), which it previously disregarded in its assessment under s.36(2)(a) of the Migration Act;
e)the Tribunal accepted “that there is a real risk the applicant would be questioned and monitored on return to Iran”: CB 218 [93], but did not accept that “anyone in Iran is or was aware, or is likely to become aware that [the applicant] has any interest in Christianity or [has] been baptised or attended Church”: CB 217 at [89];
f)based on its finding that it was not “likely” that anyone in Iran would become aware of the applicant’s conduct in Australia (that is, his baptism and church attendance), the Tribunal concluded that there was not a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Iran, and said at CB 217 at [89]:
As a consequence the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm on the basis of these claims. [emphasis added]
g)in finding that the applicant would not face a “real risk” of significant harm because the risk of occurrence was not “likely”, the Minister made an error of law for the reasons that follow:
i)firstly, the “real risk” test prescribed by s.36(2)(aa) of the Migration Act imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” under s.36(2)(a) of the Migration Act: Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 (“SZQRB”) at [246] per Lander and Gordon JJ. In this case, their Honours found that the threshold of “‘more likely than not’” … “was not the appropriate standard”: SZQRB at [247] per Lander and Gordon JJ; and
ii)secondly, the language used by the Tribunal indicates that it approached its assessment on the balance of probabilities – which is a significantly higher standard than is required by the “real chance” and “real risk” tests. An applicant may still face a “real risk” of significant harm even if such harm is “unlikely” to occur. In Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”); CLR at 429 per McHugh J it was stated:
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purposes of the Convention and Protocol.
h)by describing a standard of risk as not “likely”, the Minister has used language akin to “unlikely” – a term described in SZSKC v Minister for Immigration & Anor [2014] FCCA 938 (“SZSKC”) at [39] per Judge Lloyd-Jones as “infelicitous language when the test to be satisfied need more precise selection of wording”;
i)in SZSKC at [82] per Judge Lloyd-Jones, this Court found that the Independent Merits Reviewer fell into jurisdictional error when assessing “real risk”, and observed as follows:
The resolution of this matter is within a relatively narrow compass that it depends upon the correct test that was applied by the Reviewer in determining whether the applicant was entitled to the operation of the complementary protection criteria. On a fair reading of the Reviewer’s reasons it does not disclose what precise test was applied in the reasoning process, however, in an assessment of the language used it appears that the balance of probability test was the approach adopted, although the words “balance of probabilities” does not appear on the face of the Decision Record. The language used is “unlikely” which means not generally and the language leaves open that there is a real possibility that the applicant will be imprisoned on his return to Iran. That language is consistent with the High Court decisions in Chan (supra) and Guo (supra). It is also consistent with his Honour Flick J in the decision of SZRCI where he stated you need not show that it is probable that it will occur. It simply needs to be a real risk, not negligible and not insignificant… Further assistance is found in the decision of SRBB (supra) where Mansfield J considered the phrase “extremely unlikely” which he found was consistent with the application of a real chance test. That form of description makes it clear that the Reviewer was not applying the balance of probabilities test.
j)the applicant may still face a “real risk” of significant harm even if such harm is not “likely” to occur, and the description of the risk as not “likely” left open the real possibility that the applicant will suffer significant harm.
Minister’s submissions
The Minister’s submissions were as follows:
a)the sole basis on which the applicant contends that the Tribunal failed to apply the correct test is the Tribunal’s use of the word “likely” in the Tribunal Decision at CB 217 at [89]:
as the Tribunal does not accept that the applicant has genuinely converted to Christianity though [sic] baptism or Church attendance, has or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in Christianity or been baptised or attended Church, the Tribunal is not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm on his return to Iran. [Emphasis added]
b)it needs to be borne is mind that the Tribunal Decision must be read as a whole and be beneficially construed, not construed minutely in search of error, and that it is erroneous to adopt a narrow approach, searching the Tribunal Decision for a verbal slip said to warrant an error of law being inferred: Wu Shan Liang, CLR at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J;
c)the Tribunal’s failure to accept that an event was “likely” to occur does not demonstrate that it misapplied the “real risk” test. In the Tribunal Decision, the Tribunal repeatedly referred to the “real risk” test at CB 201 at [4], CB 217 at [89] (twice), [90], [91] and [92], CB 218 at [93], [94] and [95], CB 220 at [111] and [113] (4 times). The term “balance of probabilities” appears nowhere within the Tribunal Decision;
d)too long a leap is required to conclude that the Tribunal was, in fact, applying a balance of probabilities assessment when the proper role of a court undertaking judicial review is taken into account: Wu Shan Liang, CLR at 280 per Brennan CJ, Toohey, McHugh and Gummow JJ. This is particularly so where, as here, the Tribunal, in the same sentence in which it uses the word “likely”, also correctly refers to the “real risk” test;
e)in any event, the Tribunal’s reference to “likely” at CB 217 at [89], is not inconsistent with the correct application of the “real risk” or “real chance” test; and
f)the Tribunal’s statement that it did not accept “that anyone in Iran is or was aware, or is likely to become aware that [the applicant] has any interest in Christianity or been baptised or attended Church”: CB 217 at [89], should not be equated with a finding that there was a real possibility that someone in Iran would become aware that the applicant had an interest in Christianity or been baptised or attended Church. Even if the Tribunal did consider that as a real possibility, there is nothing to suggest that it failed to take that into account in reaching its conclusion that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there was a real risk that he would suffer significant harm.
Ground 1 – consideration
The Tribunal Decision is lengthy, running, with attachments, to 23 pages and 119 paragraphs. The Tribunal’s examination of the claims and factual material and submissions of the application is detailed: see the Tribunal Decision at CB 201-207 at [8]-[42]. The Tribunal findings in the Tribunal Decision are also lengthy and detailed, and examine all the claims made by the applicant, and the factual material in relation thereto, plus relevant country information, and various Federal Court authorities in relation to the assessment of the genuineness of religious beliefs: CB 208-218 at [43]-[95]. These attributes of the Tribunal Decision require that the Court give careful and cautious consideration to the Tribunal’s ultimate determination in relation to the applicant’s complementary protection claims.
The Tribunal’s findings in relation to complementary protection in their entirety were as follows:
88. Having concluded the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative (complementary protection) criterion in s.36(2)(aa).
89. As the Tribunal does not accept that the applicant has genuinely converted to Christianity through baptism or Church attendance, has or would seek to practise or promote Christianity in Iran, or that anyone in Iran is or was aware, or is likely to become aware that he has any interest in Christianity or been baptised or attended Church, the Tribunal is not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm on his return to Iran. As a consequence the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that he will suffer significant harm on the basis of these claims.
90. For the reasons as discussed above, the Tribunal finds that the applicant has not come to the adverse attention of the Iranian authorities because he attended a Church in Iran or took photos of himself inside a Church in Iran or promoted Christianity in Iran. After considering the available evidence the Tribunal is satisfied that the applicant is not a religious activist nor will he be a religious activist in the future. The Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk that he will suffer significant harm on the basis of these claims.
91. For the reasons as discussed above, the Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk that he will suffer significant harm for seeking asylum in a western country or being a returnee from the west or for the reason of an imputed political opinion of being against the Iranian regime for seeking asylum in a western country or as a returnee from the west.
92. For the reasons as discussed above, the Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk that he will suffer significant harm from the Iranian authorities for any political opinion or anti-Islamic stance (actual or imputed), his membership of any particular social group (of a failed asylum seeker, failed asylum seeker from a western country or person who has spent time in a wester country or any combination thereof).
93. The Tribunal accepts that there is a real risk the applicant would be questioned and monitored on return to Iran. He may be questioned about why he was away and why he left but the Tribunal finds that this treatment does not amount to significant harm within the meaning of s5 and s36(2A) of the Act.
94. Having regard to its findings of fact above and in respect to the specific claims he made as to the factual basis on which he claimed to fear harm as well as considering the applicant’s claims cumulatively, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Iran, there is a real risk he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined.
95. Accordingly the Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal is therefore not satisfied he is a person to whom Australia has protection obligations under s.36(2)(aa).
CB 217-218 at [88]-[95].
The Tribunal also set out in Attachment A to the Tribunal Decision the relevant law: CB 219-222 at [100]-[119], including:
a)an explanation as to the Tribunal’s understanding of what constitutes a “well-founded fear of persecution” at CB 220 at [108] as follows:
108. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
b)the law in relation to the complementary protection criterion which it set out at CB 220 at [111]-[113] as follows:
111. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
112. 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
113. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
The basis on which the applicant contends that the Tribunal failed to apply the correct test is the Tribunal’s use of the word “likely” at CB 217 at [89], which is set out above: see [9(a)] and [11] above.
The relevant passage from Chan is set out at 8(g)(ii) above, and shows that in order for there to be a real chance or real risk of persecution a 10 per cent chance of such persecution might suffice, and thus a well-founded fear of persecution might exist “even though persecution is unlikely to occur”: Chan, CLR at 418 per McHugh J. It is evident from a reading of the relevant paragraph at CB 217 at [89] that the Tribunal did not accept that it was likely that anyone in Iran would become aware of the applicant’s interest in Christianity or his baptism or church attendance whilst in Australia. The Court finds that the use of the phrase “does not accept” in conjunction with the word “likely” equates to a finding of “not likely” or “unlikely” for relevant purposes.
The importance of Chan was recognised in Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743, (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where the High Court said that:
… A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. …
In SRBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1387; (2003) 79 ALD 723 (“SRBB”) at [31] per Mansfield J it was held that a Tribunal’s finding “that it is ‘extremely unlikely’ that the Eritrean Government might be aware of his application for a protection visa is consistent with a proper consideration of the real chance test.” In SRBB the Federal Court went on to find jurisdictional error by reason of the misapplication of the real chance test because the Tribunal had elsewhere “expressed itself in terms not consistent with the High Court’s views, but in terms of likelihood”: SRBB at [32] per Mansfield J.
In SZMKK v Minister for Immigration & Citizenship [2009] FCA 1340; (2009) 112 ALD 278 (“SZMKK (No 1)”) the Federal Court allowed an application for an extension of time to file a notice of appeal against a judgment of the then Federal Magistrates Court, and in so doing observed at [16] per Jagot J that:
Although the Federal Magistrate considered this issue of the potential misapplication of the real chance test with great care, his Honour was also careful to record the difficulty he had in resolving it. This issue involves the drawing of an inference from the tribunal’s reasons. Inferences of this nature are inherently contestable.
On the hearing of the appeal for which an extension of time had been granted in SZMKK (No 1) the Federal Court dismissed the appeal, but did so in circumstances where there was “no plausible evidence” to show that the appellant would suffer significant harm in the reasonably foreseeable future if returned to his country of origin, and expressly found that “the evidence has not established that there is a real chance” that persecution would be suffered: SZMKK v Minister for Immigration & Citizenship [2010] FCA 436; (2010) 114 ALD 634 at [54] per Barker J (“SZMKK (No 2)”). It does not appear that there were any findings made in SZMKK (No 2) on the basis of the likelihood of certain events occurring in the event that the applicant there was returned to his country of origin. The fact that the Federal Court referred to there being “no plausible evidence” and that “the evidence has not established that there is a real chance”: SZMKK (No 2) at [54] per Barker J means that there were findings in the Tribunal decision in that case which were equivalent to a finding of “extremely unlikely” as referred to in SRBB at [31] per Mansfield J, and consistent with that view in both SZMKK (No 2) and SRBB those comments were said not to give rise to a misapplication of the real chance test.
In SZGTS v Minister for Immigration & Citizenship [2009] FCA 1353; (2009) 112 ALD 443 (“SZGTS”) the Federal Court dealt with an appeal from a decision of then Federal Magistrates Court which alleged that the Federal Magistrates Court had misconstrued the criterion for the grant of a protection visa in s.36(2)(a) of the Migration Act and thereby constructively failed to exercise its discretion: SZGTS at [14] per Tracey J.
The Federal Court noted in SZGTS at [18] per Tracey J that:
The Tribunal directed itself that:
“… an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent”.
It was not contended that the Tribunal misdirected itself in the above quoted passage which the Federal Court acknowledged was consistent with authority in both Chan and Guo: SZGTS at [19] per Tracey J. The impugned passage in the Tribunal decision under consideration in SZGTS was set out by the Federal Court in SZGTS at [20] per Tracey J as follows:
The appellant’s case is that, despite these correct statements of principle, the Tribunal applied a balance of probabilities test when it rejected her claim to have a well-founded fear of persecution. This error, she submitted, can be discerned from a passage which appears under the heading “Future harm” on the last page of the Tribunal’s reasons for decision. The Tribunal there said:
“As noted, I am not satisfied that the Applicant was a Falun Gong practitioner in China or that she or that members of her family ever suffered any harm for this reason. There is no reason to believe that she would face harm if she were to return to China because of anything that occurred prior to her departure. I accept that since arriving in Australia she has involved herself to some degree with Falun Gong practitioners and activities but I am not satisfied that her reason for doing so was other than to strengthen her claim to be a refugee. I am not satisfied that she would seek to practise Falun Gong or involve herself in Falun Gong activities if she returned to China and I am not satisfied that this would flow from any fear on her part of the consequences of doing so. Having regard to the nature of her Falun Gong activities in Australia I am not satisfied she would be targeted by the Chinese authorities for anything that she has done here”.
The Federal Court isolated the Tribunal’s findings as being as follows, as set out in SZGTS at [24] per Tracey J:
· It was “not satisfied that she would seek to practise Falun Gong or involve herself in Falun Gong activities if she returned to China”;
· It was “not satisfied that this would flow from any fear on her part of the consequences of doing so”; and
· It was “not satisfied she would be targeted by the Chinese authorities for anything she has done here”.
In SZGTS the Federal Court concluded as follows at [25]-[26] per Tracey J:
25 When read in context, these findings amount to predictions which flow logically from the conclusion that she was not a dedicated and committed Falun Gong practitioner while in Australia: she had embraced the movement only for the purpose of assisting her application for a protection visa. The first two predictions relate only, indirectly, to the question of whether the appellant had an objectively well-founded fear of persecution should she return to China. In substance, the Tribunal reasoned that, because the appellant was not a committed Falun Gong practitioner, she would not practise in China and that her failure to do so would be the result of that lack of commitment, not any fear of the consequences. For these reasons, it was not satisfied that there was a “real chance” that the appellant “would suffer harm in China because of involvement with Falun Gong … in … Australia …”.
26 The third finding deals directly with the question of whether the appellant had a “well-founded fear” of persecution by reason of her activities in Australia. In this context, the use of the word “would” is open to the criticism that it is suggestive of the application of a “balance of probabilities” test. It is, however, possible to reconcile the use of the word with the application of the “real chance” test. Having regard to the reasons as a whole and, in particular, to the ultimate findings which follow a few lines later, I am not persuaded that the Tribunal applied the wrong test.
The Court observes that the findings in SZGTS included the fact that the Tribunal considered that there was “no reason to believe” that the applicant in that case would face harm if she were to return to China: SZGTS at [20] per Tracey J. This is language which is analogous to the language used in SRBB where the Tribunal decision had said that it was “extremely unlikely” that the government of the applicant’s home country might be aware of his application for a protection visa: SRBB at [31] per Mansfield J.
In SZRCI v Minister for Immigration & Citizenship & Anor [2012] FCA 965; (2012) 214 FCR 584 (“SZRCI”) at [38] per Flick J it was observed that the meaning of “a well-founded fear of being persecuted” “is now settled”. Having referred to Chan, including the passage cited at [8(g)(ii)] above, the Federal Court in SZRCI at [39] per Flick J observed as follows:
A claimant need not therefore positively prove that he will be persecuted or even that such an event is probable: SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 at [25] per Barker J. A remote chance is not a “real chance”: SZQGN v Minister for Immigration and Citizenship (2012) 127 ALD 299 at [4] per Katzmann J.
In SZQRB at [242] and [246] per Lander and Gordon JJ it was said that:
[242] The proper test, SZQRB contended, is whether there is a real risk that if SZQRB were to be returned to Afghanistan he would be arbitrarily deprived of his life. The question of “real chance” is, of course, the test to be applied on an application for a protection visa under s 36(2)(a) [of the Migration Act] when considering whether the applicant has a well-founded fear that the applicant will face persecution for a Convention reason if returned to the applicant’s country of nationality: Chan … per McHugh J at CLR 429; … Mason CJ at CLR 389; … Dawson J at CLR 398; Toohey J at CLR 407.
[246] In our opinion, the test is as for s 36(2)(a) [of the Migration Act] and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A) [of the Migration Act]) were he to be returned to Afghanistan.
An application for special leave to appeal to the High Court from SZQRB was refused in Minister for Immigration & Citizenship v SZQRB [2013] HCATrans 323.
In SZSKC the issue arose as to whether an Independent Merits Reviewer erred by misapplying the complementary protection test. The applicant had claimed to fear harm on account of his Faili Kurd ethnicity and his status as a stateless person, and as a failed asylum seeker returning to Iran, the latter giving rise to a claim that he faced a real risk of significant harm on account of prison conditions that he would face upon return to Iran: SZSKC at [7]-[10] per Judge Lloyd-Jones.
In summary in SZSKC, the Independent Merits Reviewer:
a)referred to material from authoritative sources that suggested that persons imprisoned in Iran may face significant harm;
b)considered it “unlikely” that the applicant would be imprisoned upon his return; and
c)concluded that because it was “unlikely” that the applicant will be imprisoned, that there were not substantial grounds for believing that the applicant would suffer significant harm as a direct and foreseeable consequence of being returned to Iran: SZSKC at [12] per Judge Lloyd-Jones.
In SZSKC the Court reviewed the authorities including Chan, SZQRB, SZRCI and SRBB. The Court also referred to SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 (“SZCBT”) where the Federal Court dealt with the argument that the Tribunal decision, there of the then Refugee Review Tribunal, should be given a beneficial construction consistent with Wu Shan Liang, CLR at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and where the Federal Court observed, SZCBT at [26] per Stone J, that:
a)giving a Tribunal decision a beneficial construction as that phrase was used in Wu Shan Liang was not intended to mean that any ambiguity in a Tribunal decision ought to be resolved in the Tribunal’s favour; and
b)rather, the construction of the Tribunal’s decision ought to be beneficial in the sense that the Tribunal decision ought not be over-zealously scrutinised in search of error.
In SZSKC at [39] per Judge Lloyd-Jones the Court:
a)described the use of the term “unlikely” as “infelicitous language”; and
b)said that “the test to be satisfied needs more precise selection of wording”.
In SZSKC at [82] per Judge Lloyd-Jones the Court went on to observe that:
a)the Independent Merits Reviewer’s reasons did not disclose the “precise test [that] was applied in the reasoning process”;
b)on an assessment of the language it appeared that the balance of probabilities test had been applied even though that did not appear on the face of the Tribunal’s decision; and
c)the use of “unlikely”, which means “not generally” leaves open the “real possibility that the applicant will be imprisoned on his return to Iran”.
The Court in SZSKC went on to contrast the language used by the Independent Merits Reviewer with the language of the Tribunal decision considered in SRBB where the phrase “extremely unlikely” was found to be consistent with the application of a real chance test: SZSKC at [82] per Judge Lloyd-Jones.
The Court does not accept the Minister’s argument that the applicant has over-zealously scrutinised the Tribunal Decision to find the use of the word “likely” at CB 217 at [89], and to use that as the foundation for the assertion of jurisdictional error. With respect, and given the nature of the various judgments of the High Court, Full Court of the Federal Court, Federal Court and this Court in relation to similar issues over a period of almost 30 years since Chan was decided, the alleged error is one which might be said to stand out, and thus be readily observable, by a legal practitioner with some experience of judicial review proceedings under the Migration Act acting for an applicant (as is the case here).
In circumstances where the Tribunal Decision:
a)is not to be read searching for error, that is narrowly, and ought to be construed beneficially;
b)does not expressly refer to a balance of probabilities test; and
c)is otherwise comprehensive and thorough,
the Court must be careful in its consideration as to whether the infelicitous use (if that be what it is) of a single word – “likely” – in a single sentence in the Tribunal Decision at CB 217 at [89] indicates that the Tribunal did not properly apply the “real risk” test.
It is plain that the Tribunal understood the “real chance” test, the nature of which it set out and described in the Tribunal Decision: CB 201 at [4] and 220 at [108]. Mere recitation of the correct test is not however a substitute for its proper application no matter how lengthy and detailed the Tribunal Decision might be: SRBB at [28]-[30] per Mansfield J; SZGTS at [23] per Tracey J. It can be accepted that the “real chance” test is the same as the “real risk” test: SZQRB at [242] and [246] per Lander and Gordon JJ. It is not so readily apparent however that the Tribunal appreciated this, and whilst a court might ordinarily infer this having regard to the nature and frequency of the functions carried out by the Tribunal, the Court notes that nowhere is the equivalence between the “real risk” and “real chance” tests referred to in the Tribunal Decision.
The Court notes that the Tribunal accepted that there was a real risk that the applicant would be “questioned” and “monitored” on return to Iran: CB 218 at [93]. The Tribunal went on to find that the applicant would be questioned about why he was away and why he left, and to further find that that did not constitute significant harm within the meaning of ss.5 and 36(2A) of the Migration Act. The Tribunal, however, said nothing about the nature of any monitoring of the applicant on Iran, despite having accepted that the applicant being monitored was a real risk upon his return to Iran: CB 218 at [93].
The fact that there was a real risk that the applicant would be monitored on his return to Iran was not considered by the Tribunal having regard to country information set out earlier in the Tribunal Decision (albeit in relation to the applicant’s Muslim friend who was said to have converted to Christianity) that:
The Tribunal also has regard to the DFAT report that perceived apostates are likely to come to the attention of the Iranian authorities in any event through public manifestations of their new faith, attendance at Church or informants and that there are also allegations that the authorities monitor attendances at Church on religious holidays to ensure no Muslim is present.
CB 210 at [53].
Although the Tribunal did not accept that the applicant would seek to practise Christianity in Iran or that anyone was “likely” to become aware that he was interested in Christianity or had been baptised or attended church in Australia, the use of “likely” in that context leaves open the real possibility that his activities in Australia might come to the attention of the Iranian authorities, particularly in circumstances where it is possible that he would be monitored by the Iranian authorities or be informed upon by informants and be exposed to “the penalties for apostasy” in Iran: CB 210-211 at [55], which, according to country information which was available to the Tribunal, included the death penalty: see CB 119 (Freedom House report); CB 123 (The Guardian) and CB 127 (Amnesty International). That possibility is exposed in a passage in which the precise test applied is not set out, and the likelihood of someone in Iran becoming aware that the applicant had an interest in Christianity or had been baptised or attended church in Australia, is not couched in language, particularly against a factual background of informants and monitoring acknowledged by the Tribunal, that makes that possibility (or likelihood) far-fetched, or remote. In the circumstances, that is sufficient to indicate that there was a real ground for the applicant having a well-founded fear of persecution which was not considered by the Tribunal because it did not properly apply the real risk test.
The Court further notes that a finding that the applicant is not a Christian does not suffice to exclude the possibility that the activities of baptism and church attendance in Australia might be matters brought to the attention of the Iranian authorities, and which would not preclude the applicant having a well-founded fear of persecution on the basis that he had engaged in those activities in Australia, even if, as found by the Tribunal he is not a Christian or will not or does not intend to practise Christianity if returned to Iran.
In all of the above circumstances, the Court has concluded that the Tribunal did not apply the real risk test to the applicant for the purposes of assessing the applicant’s complementary protection claim in relation to whether anyone in Iran might become aware that the applicant had any interest in Christianity, or had been baptised or attended church whilst in Australia, and whether that gave rise to a well-founded fear of persecution upon the part of the applicant. That suffices to establish jurisdictional error in the Tribunal Decision as alleged by the sole ground of the Amended Judicial Review Application.
Conclusion and orders
The Court has concluded that the sole ground in the Amended Judicial Review Application has been made out and there is therefore jurisdictional error in the Tribunal Decision, and that prerogative relief should be afforded to the applicant by way of writs certiorari and mandamus.
The Court will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 26 February 2018
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