BNL15 v Minister for Immigration

[2016] FCCA 1399

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1399

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal applied the incorrect test – whether the Tribunal misapplied the relevant law – whether the Tribunal failed to notify the applicant that a fact accepted by the delegate would be in issue – whether the Tribunal failed to consider the applicant’s claims cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R(3), 476

Applicant: BNL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2095 of 2015

Judgment of: Judge Street

Hearing date: 8 June 2016

Date of Last Submission: 8 June 2016

Delivered at: Sydney

Delivered on: 8 June 2016

REPRESENTATION

Solicitors for the Applicant: Mr Tambimuttu
Stephen Hodges Solicitors

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The second amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2095 of 2015

BNL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 made on 25 June 2015 affirming 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 application was assessed against that country.

2. The applicant departed Iran legally on a passport on 8 May 2012 and flew to Kuala Lumpur in Malaysia where he stayed for 15 days.  He then flew to Jakarta, Indonesia, and on 24 July 2012 made an unsuccessful attempt to depart Indonesia for Australia by boat.  The applicant made a further attempt to do so and arrived at Darwin as an unauthorised maritime arrival on 16 August 2012.  The applicant applied for protection on 16 January 2013.

3. The applicant was brought up a Muslim and claimed to fear harm returning to Iran because he was now an atheist and also by reason of certain activities he had engaged in before his departure from Iran as well as certain activities he engaged in in Australia. 

4. The delegate accepted that the applicant was an atheist and accepted that there was a direction that the applicant had been given while undertaking Persian literature studies at a particular location identifying what he could or could not study and that that person may have been connected with the Basij.  The delegate did not accept that the applicant was personally threatened by the Basij as a direct consequence of his religious beliefs as he claims.  The delegate found that the applicant did not have any political or other profile and refused to grant the protection visa on 5 September 2013.

5. The applicant applied for review on 4 October 2013.  The applicant was invited to attended two hearings before the Tribunal to give evidence and present arguments, the first being on 24 February 2015 and the second being on 5 June 2015.

6. The Tribunal accepted that the applicant was an atheist. The Tribunal raised with the applicant how he was able to leave Iran legally if he had been of any adverse interest to the authorities. The Tribunal noted the applicant’s claimed participation in anti-regime protests in Australia at a polling centre in Parramatta and that the applicant claimed he saw someone recording the activity and posting it to Vimeo and that the applicant was visible on that site.  The applicant claimed that he had learned that the person filming was with the Iranian Embassy. The applicant says the video was shown on the SBS News and believes the video will be used to detain him.

7. The Tribunal raised concerns with the applicant’s evidence, and although finding his evidence was generally consistent, said there was a tendency on the applicant’s part to embellish the importance of his claimed role at the cultural centre and why his activities and/or expression of opinions would be of interest to the authorities.  The Tribunal expressly noted the applicant’s departure legally without problems from Iran.  The Tribunal found that the applicant’s fear of persecution for reasons of his involvement in cultural centres was not well-founded. 

8. The Tribunal expressly addressed the country information in relation to atheists and agnostics and took into account the applicant’s submission in relation to apostasy being expressly referred to in para.160 as well as in the finding that there is nothing in the applicant’s religious, spiritual or philosophical or other beliefs that would draw the adverse attention of the authorities in Iran.  The Tribunal found that the applicant’s fear of persecution for reasons of religion was not well-founded.

9. The Tribunal made reference to the applicant’s activities in Australia and found that they had been engaged in for the purpose of strengthening the applicant’s claims and fell within s.91R(3). The Tribunal went further, to find that even if those activities were ones that were accepted, the Tribunal found that it did not accept as a real risk or real chance that those activities would come to the attention of the Iranian authorities, and much less that they would take any interest in relation to those activities in Australia. In that regard, the Tribunal found that the applicant had no adverse profile in Iran.

10. The Tribunal found that having considered all of the evidence, including cumulatively, it was not satisfied the applicant faced a real chance of persecution involving serious harm for a Convention reason should he return to Iran.  It was in those circumstances the Tribunal concluded it was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in Iran within the meaning of the Convention.

11. The Tribunal also considered the applicant’s claims in relation to complementary protection and was not satisfied on the evidence that there is a real risk of significant harm for the applicant if returned to Iran. It was in those circumstances the Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. 

12. The grounds of the second amended application are as follows:

    Ground 1

    The AAT committed jurisdictional error at [CB 214 paragraph 174] n dealing with the provisions of S91R(3) of the Migration Act, 1958 (the Act) in the following ways:

    (a) The AAT applied the wrong test and/or made an incorrect finding as follows:

    “....... the (AAT) .... it is not satisfied that the applicant engaged in the conduct advanced by him in Australia otherwise than for the strengthening of his claim to be a refugee under the Convention pursuant to 91R(3) as it is not satisfied that this conduct was not engaged in for the for the sole purpose of strengthening the applicant's claims”., and

    (b) The AAT failed to give reasons for the finding.as it failed to provide reasons and make a definitive finding for refusing to accept that the applicant's claimed activities in Australia could not attract adverse attention of the Iranian authorities [174]

    (c) Though having accepted that the applicant engaged in certain conduct/activities in Australia [CB 214, paragraph 174] that has the potential to attract adverse attention if the applicant is returned to Iran, (notwithstanding the fact that the tribunal was not satisfied that the conduct/activities in Australia was not for the purpose of strengthening the applicant's claims) the tribunal failed to consider the conduct/activities in Australia so engaged when assessing the applicant's claims under complimentary protection provisions.

    Ground 2

    The Tribunal committed jurisdictional error as it failed to warn the applicant that a fact accepted by the delegate would be in issue.

    (a) The delegate accepted that the applicant had been warned by a member of the Basij for accessing banned material. However, the AAT, without sufficient warning that this issue was open for reconsideration, found that the applicant did not come to the adverse attention of the authorities as a result of the claimed activities undertaken at a cultural centre [CB 213, paragraph 163].

    Ground 3

    In assessing whether an applicant's fear is well-founded it is necessary to consider the totality of the circumstances. The AAT erred in this respect thus committing jurisdictional error as it failed to consider all of the claimant claims and the circumstances cumulatively.

    (a) The Tribunal accepted the applicant was an atheist [CB 213 paragraph 168].

    (b) The AAT did not make any findings as to the relationship between atheism and apostacy;

    (c) The AAT did not make any findings as to documents adduced by the applicant [CB 193 paragraph 71] showing that apostacy punishable by the death penalty under the penal code in Iran;

    (d) The AAT was in error in relying on evidence of non-attendance at the mosque (contrasting with atheism/apostacy) was relevant to the claims of the applicant.

    (e) There was no evidence for the finding at [CB200 paragraph 143] that “atheism and agnosticism as well as non-attendance at mosques is common”.

    (f) The AAT failed to take into account the applicant's right to publicly broadcast and state his religious views if returned to Iran.

13. In relation to ground 1, Mr Tambimuttu, the solicitor for the applicant, sought to argue that there were no reasons, in essence, for the adverse finding in para.174.  The adverse finding in para.174 was one, first, in relation to the applicant’s purpose in respect of the activities engaged in Australia, and secondly, a finding in relation to whether any such activities would have come to the attention of Iranian authorities.

14. The first finding was one in relation to which it was open to the Tribunal whether or not to accept the applicant’s credit. It is apparent from the Tribunal’s reasons that it raised at the commencement of the second hearing an issue in relation to s.91R of the Migration Act 1958 with the applicant and the adverse finding in relation to the first sentence of para.174 was clearly open.  No further reasons were required in relation to the Tribunal’s adverse finding in that regard. 

15. In relation to the second sentence, the Tribunal, like the delegate, found that the applicant had no adverse profile in Iran.  That, of itself, is a reason by the Tribunal that was a logical basis that supports the adverse finding in the second sentence of para.174. Accordingly, the proposition that the Tribunal failed to provide reasons is without substance. 

16. Insofar as para.(c) of ground 1 seeks to suggest that the activities in Australia were not taken into account in relation to assessing complementary protection, that is contrary to the expressed reference to “real risk” in para.174 by the Tribunal, and it is apparent when the reasons are read as a whole without a keen eye for error that the Tribunal took into account the alleged activities in its adverse findings in respect of complementary protection as identified in paras.174, 180 and 182.  Ground 1 fails to make out any jurisdictional error.

17. In relation to ground 2, Mr Tambimuttu sought to argue that the delegate had made a positive finding in respect of which the Tribunal had made a contrary finding.  The contrary finding of the delegate was said to arise out of the material at p.104 of the court book in relation to the direction given to the applicant in relation to his Persian studies referred to above.  I accept the first respondent’s submission that there was no contrary finding by the Tribunal.  Further, there was no evidence tendered to establish that the Tribunal had failed to raise with the applicant the issue, and for this further reason ground 2 cannot succeed.

18. Further, in my opinion, it is apparent that the delegate made an adverse finding in relation to the applicant’s profile, as did the Tribunal, and the assumption underlying the proposition that there is a positive finding that gave rise to an obligation upon the Tribunal in the context of the applicant’s study of the material is not made out.  There was no adverse finding by the delegate in respect of which the Tribunal made a different finding in respect of the applicant’s claims.  Ground 2 fails to make out any jurisdictional error.

19. In relation to ground 3, I accept the submissions of the first respondent that it is apparent that the Tribunal expressly referred to cumulatively considering the claims.  Mr Tambimuttu on behalf of the applicant sought to submit that there was no express reference to apostasy.  For the reasons earlier given, it is apparent that the Tribunal took into account the claim in respect of apostasy and made findings in that regard as identified at paras.169 and 175.  I do not accept that there has been any failure by the Tribunal to consider the circumstances cumulatively.  Ground 3 fails to make out any jurisdictional error.  For these reasons the second amended application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016