BJY15 v Minister for Immigration

[2017] FCCA 479

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJY15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 479

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal failed to comply with its statutory requirements – whether the Tribunal failed to take into account relevant considerations – the Tribunal gave proper, genuine and realistic consideration to the applicant’s claims – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2), 91R, 476

Applicant: BJY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1966 of 2015

Judgment of: Judge Street

Hearing date: 15 March 2017

Date of Last Submission: 15 March 2017

Delivered at: Sydney

Delivered on: 15 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Williams

By direct access

Solicitors for the Respondents:

Ms N Blake

Clayton Utz

ORDERS

1. Leave is granted to the Applicant to rely upon the further amended application in the form that was emailed to the Registry on 1 March 2017 and the Court dispenses with the need for the filing of that document.

2. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the Court dispenses with the need to file any further document.

3. The further amended application is dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1966 of 2015

BJY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 June 2015 affirming the decision of the delegate not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Iran. The applicant spent most of his life in Iran but had travelled to Turkey for a holiday for approximately one week in 2005 and to Thailand for a holiday for one week in 2007. The applicant used his own passport on both of those occasions. The applicant departed Iran on 22 April 2012 and transited through Qatar, Singapore, Indonesia en route to Australia. The applicant arrived without a valid visa on 12 August 2012. The applicant made an application for a protection visa on 15 January 2013 following which he was the subject of an interview on 5 September 2013. 

The Delegate

1. The applicant was found to be a Shia Muslim born in Tehran and claimed to fear harm as a result of his past activities in June 2009 when he attended a political demonstration as he was seeking to locate his brother and brother-in-law. The applicant alleged that he was chased by Basij members and they pulled off his number plate from his motorbike. The applicant alleged that his brother and brother-in-law were arrested, detained and beaten by the Basij but that his uncle arranged their release. 

2. The applicant alleged that when he returned home, he received a notice from the Basij requesting to attend the Basij headquarters and that the following day he was detained and beaten. The applicant identified that the Basij released him after about three hours and the applicant alleged that they placed him on an airport watch list and threatened to harm him if he participated in any more demonstrations or if they found out he had been lying to them.

3. The applicant claimed that after he was released, he assisted his brother and brother in law in distributing political flyers and attended another protest about two or three weeks after he had been released. The applicant claimed that the following day, the Basij came to his house and detained him at their headquarters for four to five hours and that he was again beaten and questioned before being released.

4. The applicant claimed that two or three weeks after the second time he was released he attended a silent demonstration. The applicant said that the applicant's stepmother informed him that members of the Basij had gone to his home and questioned his stepmother in relation to him and his brother and brother in law.

5. The applicant alleged that shortly thereafter, his uncle made arrangements for his brother to depart Iran and that he and his brother in law stayed in Iran and worked at the same printing business. The applicant alleged that his brother in law relocated to another town and the applicant continued to work in that business. The applicant alleged that his uncle paid a bribe to have his name removed from the airport watch list and he departed Iran in 2012. 

6. The applicant claimed to fear harm by reason of being killed by the Basij if he returns to Iran and claimed that the Basij are watching the applicant's house and that the Basij had sent two letters to his previous address requesting that he contact them.

Assessment of refugees convention criterion

1. The applicant also claimed to fear harm by reason of being a failed asylum seeker from a Western country. The delegate was not satisfied that the applicant would have a real chance of being persecuted should he return to Iran on the basis of having come from a Western country and being returned to Iran as a failed asylum seeker. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied the applicant's fear was well-founded. 

Assessment of complementary protection criterion

1. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there was a real risk that the applicant would be subject to significant harm.

2. The delegate found that the applicant failed to meet the criteria under s.36(2) of the Act and that the applicant was not a person in respect of whom Australia had protection obligations.

The Tribunal

1. The applicant applied for a review on 11 November 2013. By letter dated 20 November 2014, the Tribunal invited the applicant to attend a hearing on 3 February 2015. The letter from the Tribunal identified that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. Prior to the hearing, on 30 January 2015 submissions and further material were provided to the Tribunal under cover of an email.

2. The applicant attended the hearing on 3 February 2015 to give evidence and present arguments. Following the hearing, a further post submission and material were provided to the Tribunal under cover of an email dated 9 February 2015. The applicant was represented in relation to the review by his migration agent. The Tribunal identified the applicant's background and set out the relevant law, including the Ministerial direction.

The applicant’s claims and evidence

1. The Tribunal set out the applicant's claims and evidence. The Tribunal referred to the submissions received prior to the hearing and post the hearing in its reasons. The Tribunal found some aspects of the applicant's evidence to be contradictory and other aspects of his evidence to be vague. The Tribunal found the applicant to be evasive when certain questions were put to him and some of his evidence was implausible. The Tribunal found there were a number of inconsistencies in his evidence and that he made new claims during the course of the hearing. The Tribunal observed that these issues raised concerns in relation to the applicant's credibility and the veracity of his claims.

Consideration of the applicant’s problems with the Basij

1. The Tribunal identified inconsistencies in relation to the applicant's complaints concerning problems with the Basij in 2009. The Tribunal found it implausible that the Basij would have released the applicant if he had signed documents confessing to organising demonstrations. The Tribunal referred to a new claim made by the applicant during the hearing, that when he was arrested and detained for a second time the Basij threatened to kill him. The Tribunal observed that the failure to make this claim previously raised concerns as to the credibility of the applicant's claims. The Tribunal also made reference to the applicant's claim for the first time during the hearing that the Basij used a cigarette to burn his hand.

2. The Tribunal made reference to the applicant's assertion that he received letters from the Basij asking him to attend their base and the inconsistency in his visa application where he asserted his family informed him that the Basij had sent two letters to him. The applicant alleged that he probably made a mistake. The Tribunal found the applicant's response did not explain the inconsistent evidence in relation to when the letters were sent to him. The Tribunal found the fact that the applicant had no further contact from the Basij since he was arrested after the silent demonstration in 2009 until he left Iran in 2012 raises concerns about the credibility of his claim that he is of adverse interest to the Iranian authorities. 

3. The applicant also gave evidence that he was able to leave Iran in April 2012 and the Tribunal took into account the applicant's delay in leaving Iran as raising concern in relation to the credibility of his claims.  The Tribunal was of the view that the applicant was not a witness of truth.  The Tribunal found the applicant was not a credible witness.  The Tribunal found that the applicant had fabricated some of his material claims for the purpose of obtaining a protection visa. 

4. The Tribunal did accept that in 2009 the applicant attended a demonstration. The Tribunal accepted that the applicant was subsequently arrested and detained by the Basij and that he was questioned and assaulted, including receiving lashes. The Tribunal did not accept that the Basij burnt the applicant's hand with a cigarette.  The Tribunal accepted that the applicant denied attending the demonstration and stated that his stepbrother and brother in law had borrowed his motorcycle. 

5. The Tribunal accepted that the Basij released him because he never confessed to their accusations and that they had no evidence against him.  The Tribunal did not accept the Basij was of the view that the applicant was leading a group in a demonstration.  The Tribunal did not accept that the Basij had told him that they know he is a person who was leading and motivating his stepbrother and brother.  The Tribunal did not accept that the applicant signed any confession document in relation to demonstrations and was released because he did so.

6. The Tribunal did not accept that the applicant was a member of the Green Movement. The Tribunal did not accept that the applicant made or distributed any flyers in relation to the Green Movement. The Tribunal did not accept that the applicant attended any further demonstration in Iran thereafter. The Tribunal did not accept that the Basij arrested or detained the applicant on a second occasion. The Tribunal did not accept that the Basij threatened to kill the applicant or make sure he disappeared. The Tribunal did not accept that the applicant was of adverse interest to the Iranian authorities.

7. The Tribunal made reference to a new claim raised in the pre-hearing submissions concerning a business partner. The Tribunal found that it was implausible that the business partner would have waited until 2014 to start threatening the applicant and his brother in law. 

8. The Tribunal did not accept that the business partner was trying to blackmail the applicant and his brother in law. The Tribunal did not accept that the business partner would carry out such threats.  The Tribunal was of the view that these claims had been fabricated for the purpose of enhancing the applicant's prospects of obtaining a protection visa. 

Consideration of the applicant’s activities on social media

1. The Tribunal made reference to the applicant's evidence that he had a Facebook account which he opened when he was in a detention centre.  The Tribunal observed that when asked whether he shares any personal information on Facebook, the applicant responded no and stated that he uses his account mostly to share information. The applicant asserted that he uses his Facebook account every day.

2. The Tribunal asked the applicant who was able to access his Facebook account and the applicant responded whoever is on his list. The applicant stated that the people on his list are mostly his friends.  When asked when he first used his Facebook account to post political information the applicant responded he did not remember. When asked when he last used his Facebook account to post political information, he responded a couple of weeks ago. When asked whether he was a member of any political group or party in Australia the applicant responded that he was not an official member of any political group but tried to keep people informed. When asked whether it was correct to say that the applicant, other than attending a memorial service had not attended any demonstrations in Australia the applicant answered yes.

3. The Tribunal also asked the applicant why he did not make any claims in relation to his Facebook account previously and the applicant responded that he did not think it was important. The applicant stated that he likes to talk to people in gatherings and that is more important than Facebook. The Tribunal noted that it gave the applicant time to provide further information following the hearing and that the applicant provided further information on 9 February 2015 enclosing pages from the applicant's Facebook account.

4. In considering that evidence, the Tribunal noted the applicant's claim that he opened a Facebook account to share information and that he used that Facebook account every day. The Tribunal observed that the evidence from the Facebook account that had been provided to the Tribunal does not have any posts in relation to a particular individual or fraud committed by politicians in Iran. 

5. The Tribunal referred to the two links on the Facebook evidence provided to the Tribunal. The Tribunal observed that there are no political comments or comments about the applicant's personal experience, at least with the Iranian Government. The Tribunal found the applicant's intermittent activity on Facebook was not consistent with that of a political activist who uses his Facebook account every day.

6. The Tribunal found that the Facebook entries do not demonstrate an ongoing commitment to the Green Movement.  The Tribunal found that the applicant did not attend any further demonstrations associated with the Green Movement and did not participate in any other activities associated with the Green Movement and was not a member of the Green Movement.

7. Other than attending a funeral and a memorial service, the applicant's evidence was that he had not attended any demonstrations in Australia.  The Tribunal discussed with the applicant why he had not made any claims in relation to his Facebook account previously and his response that he did not think it was important. The Tribunal was of the view that this indicates the applicant does not have any concerns in relation to his activities on Facebook.

8. The Tribunal did not accept that the applicant was a political activist.  The Tribunal did not accept that the applicant was a member of some groups, political or otherwise. The Tribunal did not accept that the applicant talked to public groups about his experiences with the Iranian government and how the government should change. The Tribunal did not accept that the applicant has participated in demonstrations and rallies against the Iranian regime in Sydney. The Tribunal was of the view that these claims have been fabricated for the purpose of enhancing the applicant's prospects of obtaining a protection visa.

9. The Tribunal found that the applicant did not have an adverse political profile in Iran. The Tribunal was not satisfied that the applicant's activities in Australia created an adverse political profile for him.

Consideration of the applicant as a failed asylum seeker

1. The Tribunal turned to consider the applicant being a failed asylum seeker. The Tribunal noted that it had not accepted that the applicant had an adverse political profile in Iran. The Tribunal had not accepted that the applicant left Iran for the reasons claimed. The Tribunal did not accept that the applicant's name was or is on an airport Watch list.

Consideration of country information

1. The Tribunal did not accept that applicant has an adverse political profile since coming to Australia. The Tribunal did not accept that the applicant is of adverse interest to Iranian authorities. The Tribunal rejected the applicant's claims in relation to the business partner as it had found those claims were fabricated for the purpose of enhancing the prospects of obtaining a protection visa.

2. The Tribunal found that the applicant may be detained for a short period and questioned at the airport in relation to why he is returning on a different travel document to the one in which he left the country. The Tribunal was satisfied that the applicant's detention at the airport for the purposes of questioning is appropriate and adapted to achieving a legitimate national objective of Iran and does not constitute a threat to liberty within s.91R(2)(a) of the Act.

3. The Tribunal found the detention would be the enforcement of a law of general application which does not have a discriminatory intent or impact and is not being applied selectively or enforced in a discriminatory manner for a Refugees Convention reason. The Tribunal was not satisfied that the detention of the applicant gives rise to persecution under the Refugee Convention. The Tribunal did not accept that the applicant will be detained at the airport, tortured and executed by the Iranian authorities as an anti-government activist. 

Assessment of refugee convention criterion

1. The Tribunal considered the applicant's claims, cumulatively as well as individually, and found there is no real chance the applicant would be at risk of persecution on the grounds of actual or impugned political opinion, actual or impugned religion, membership of a particular social group or any other Refugee Convention reason if he returned to Iran now or in the reasonably foreseeable future. The Tribunal found the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. The Tribunal found the applicant did not satisfy the criterion under s.36(2)(a) of the Act.

Assessment of complementary protection criterion

1. The Tribunal was not satisfied 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 he will suffer significant harm as defined in s.36(2)(a) of the Act. The Tribunal found that the applicant did not satisfy the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

1. An originating application was filed on 16 July 2015. On 12 August 2015, the Court made orders providing an opportunity for the applicant to file an amended application, affidavit evidence and submissions.

2. On 1 March 2017, the Registry received by way of correspondence a proposed further amended application. There was also filed on that date submissions on behalf of the applicant. The proposed amendment was not opposed by the first respondent and the Court granted leave to the applicant to rely upon the proposed further amended application and dispensed with the need for the filing of a further document and noted that the word "proposed" was deleted. 

3. The Court raised with counsel for the applicant that applications for amendment, if unable to be the subject of a consensual position between the parties should ordinarily be made by an application in a case supported by affidavit. 

1. The Court recognises that there are occasions where, because of the financial position of the applicants, a waiver of the filing fee in respect of the application in a case will need to be sought. It is however, desirable where amendments are sought, that the rules are complied with in relation to applications to amend. The sending of correspondence to the Registry in relation to proposed amendments gives rise to a work burden in the chambers of the relevant docket judge in dealing with the correspondence. There are occasions where such correspondence is necessary however, generally, amendments in relation to applications that have been the subject of orders should either be the subject of an agreed consensual position between the parties or the subject of an application formally made by filing in the Registry and not by the sending of correspondence.    

2. The grounds in the further amended application as follows:-

   1. The second respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   2. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.

   3. The second respondent failed to take into account relevant considerations, or failed to give proper, genuine or realistic consideration to the claims of the applicant.

   4. The decision by the Tribunal was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the finding and the material upon which it relied to make that assessment.

   Particulars

   The Basij

   a) At [43], the second respondent accepted in 2009 the applicant attended a demonstration at Enghelad Square as part of the Green Movement. The Tribunal accepted that the applicant’s purpose in attending the demonstration was to look for his step-brother Javad and his brother in law Ali. The Tribunal accepted that the applicant was subsequently arrested and detained by the Basij. The Tribunal accepts that whilst detained the applicant was questioned and assaulted including receiving lashes.

   Facebook

   b) At [71], the second respondent accepted that the applicant opened a Facebook account after he arrived in Australia in 2012. At [73], the Tribunal accepted that the applicant has posted links to news articles, photographs and a video which have political connotations on his Facebook account. The Tribunal accepted that the applicant shared this information with friends and people he knows and is confident feel the same way he does. The Tribunal accepts that the applicant has spoken to friends about the Iranian regime at gatherings in Australia. The Tribunal accepted that the applicant has attended a funeral and a memorial service in Australia.

   Failed Asylum Seeker

   c) At [89], the second respondent accepted that the Iranian authorities may suspect that the applicant has sought asylum in Australia in view of his long absence from Iran.

   d) At [90], the second respondent accepted that the applicant may be detained for a short period and questioned at the airport in relation to why he is returning on a different travel document to the one on which he left the country.

   Country Information

   e) At [83], the second respondent failed to take into account the following country information. In particular, Amnesty International reported in 2011 that in 2 separate cases in which asylum seekers who had publicly criticized the Iranian government whilst residing abroad had been subsequently detained and imprisoned upon their return to Iran.

   f) However, at [92], the second respondent did not accept that ‘the applicant will be detained at the airport, tortured and executed by the Iranian authorities as an antigovernment activist.’

Consideration

1. Mr Williams of counsel on behalf of the applicant indicated that he sought to rely upon the particulars set out in support of each of the four grounds. The problem that was pointed out in the submissions by the first respondent with the formulation of the grounds and the so-called particulars was that in substance, the grounds reflect general propositions of legal principle and did not identify the particular error or how it was said to arise in the present case. 

2. Mr Williams of counsel sought to identify that the finding in relation to accepting that the applicant had been arrested and detained in 2009 meant that there was clearly a risk that should have given rise to a favourable finding for the applicant. This is in substance, an invitation to the Court to engage in impermissible merits review. The reference to the finding in relation to the incident in 2009 does not assist in understanding any of the four grounds that are articulated as a matter of principle above.

3. The next reference in the particulars by Mr Williams of counsel is to the Facebook page account opened by the applicant and the finding in relation to which the applicant had shared some information on that Facebook page. It is apparent from the Tribunal’s reasons that the Tribunal gave careful attention to the entries that the applicant made on the Facebook page and in particular, the applicant’s evidence concerning the same. The reference to the Facebook page again, does not identify in the particulars a basis on which it could be said that any of the four legal principles in the respective grounds could be made out.

4. The particulars then refer to the applicant being a person who would be the subject of being detained for a short period as the result of being a person who was not returning on the same documents in Iran and may suspect that the applicant is a failed asylum seeker. The reference to these matters in the particulars does not develop any specificity to support any of the four grounds set out. 

5. The reference in the particulars to the country information does make an assertion that the Tribunal failed to take into account country information that the Tribunal set out in paragraph 83 of the Tribunal’s reasons. It is difficult to understand how that reference could be said to support a proposition that the Tribunal failed to take into account the information it had identified. Under country information, there is also a reference to the applicant being detained at the airport, tortured and executed not being accepted. Neither particular properly supports any of the four grounds identified. 

6. It is important that grounds in an application, particularly when drawn by legal practitioners, clearly identify the specific error that is alleged.  The four generalised grounds in the present case do not do so. On careful analysis, none of the particulars provided under the four grounds properly support any of those grounds. 

Ground 1

1. In relation to Ground 1, there is no substantial argument identified that the Tribunal failed to address. No jurisdictional error of the kind alleged in Ground 1 is made out. 

Ground 2

1. In relation to Ground 2, there is no particular identified in which the Tribunal failed to complete its statutory task. It is apparent from the Tribunal’s reasons that the Tribunal complied with its statutory requirements. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. Other than the reference to country information which for the reasons I have already given, it is apparent in relation to Ground 3, that the Tribunal took into account, there is no relevant consideration identified that the Tribunal failed to take into account. Given the Tribunal’s orthodox and detailed reasons it also cannot be said that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims. The adverse findings made by the Tribunal were open to the Tribunal for the reasons provided and cannot be said to lack an evident and intelligible justification. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to Ground 4, the favourable findings identified by the Tribunal did not give rise to any illogicality or unreasonableness in the findings made by the Tribunal or in its assessment of the material before it. No jurisdictional error is made out by Ground 4.

2. From the bar table, Mr Williams of counsel submitted that by collectively taking into account the matters identified in his particulars, this gave rise to an obvious irrationality in relation to the decision of the Tribunal, and sought to restate the propositions in his grounds.  For the reasons already given, the Tribunal’s decision was one that was open to it on the material and cannot be said to be illogical, irrational or unreasonable.

Conclusion

1. As the further amended application fails to make out any jurisdictional error, it is appropriate that the further amended application be dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 March 2017

CORRECTIONS

1. Reasons for Judgment: Page 4, Paragraph 15, delete “claim”, insert “claims”.