BON16 v Minister for Immigration

[2016] FCCA 2745

FEDERAL CIRCUIT COURT OF AUSTRALIA

BON16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2745

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error identified – application dismissed.

Legislation:

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

Cases cited:

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863

Applicant: BON16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1621 of 2016

Judgment of: Judge Street

Hearing date: 25 October 2016

Date of Last Submission: 25 October 2016

Delivered at: Sydney

Delivered on: 25 October 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Mr L Karp of Counsel

Halas Lawyers

Solicitors for the Respondents:

Mr A Keevers

Sparke Helmore

ORDERS

1. The application for an extension of time is granted up to 24 June 2016 pursuant to s.477 of the Migration Act 1958 (Cth).

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1621 of 2016

BON16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 March 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Iran.

2. The applicant claims he departed Iran through the airport in Tehran on 28 January 2013 and that he then entered Indonesia where he remained for about six weeks before boarding a vessel to Australia. The applicant arrived as an unauthorised boat arrival in Australia on 20 March 2013.The applicant applied for a protection visa on 1 July 2013. 

Before the delegate

1. The delegate expressed serious questions in relation to the credibility of the applicant and the applicant’s claims and evidence. The applicant claimed to fear harm because of his brother’s involvement in the Green Movement in Iran, in which the applicant alleged he attended two or three demonstrations. 

2. The applicant alleges his brother told him that he was being pursued by the Iranian Intelligence Organisation and that the applicant assisted his brother to illegally cross the border to Turkey, where his brother migrated to Germany. The applicant alleges that the Iranian Intelligence Organisation discovered the applicant’s assistance and arrested and detained the applicant. The applicant alleges that he was released after paying a substantial amount of bail and was in prison for a month and tortured, before being released on further bail.

3. The applicant alleges that he was arrested by the Iranian Intelligence Organisation and that they threatened to imprison him if his brother did not return and that they alleged that the applicant was responsible for the death of a Basij member during a demonstration after the 2009 elections. The applicant alleges he was charged with helping political activists and murderers and that he was charged with being a member of the Green Movement. The applicant alleges that he attended a local Court on one occasion in relation to the death of the Basij member and was threatened by the mother of the Basij member.

4. The applicant says he went to Dubai in 2010 to see if he could find a way to flee to Dubai and returned to Iran only to find a way to flee to come to Australia. The applicant alleges that whilst in Australia he shared anti-government posts on Facebook and videos on YouTube and went to a demonstration and was involved in the pro-monarchy political party. The applicant alleges that if he were to return to Iran, due to his profile he would be imprisoned and tortured and not able to work and would suffer significant harm. The applicant also claimed to fear harm as a failed asylum seeker.      

5. The delegate did not accept the applicant’s brother was forced to flee Iran in the aftermath of the Green Movement protests in 2009. The delegate did not accept the applicant assisted his brother escape Iran unlawfully in the aftermath of the Green Movement protests of 2009.  The delegate did not accept the applicant was arrested or held in prison for any period of time in Iran. The delegate did not accept the applicant was subjected to ongoing harassment by the Iranian authorities. The delegate did not accept the applicant had been threatened by the family of a Basij member killed during the Green Movement protests of 2009.  The delegate did not accept that the applicant was of any interest to the Iranian authorities, including the Etilaat, being the Iranian Intelligence Organisation, for any reason to do with the Green Movement protests of 2009. 

6. The delegate did not accept that the applicant is perceived by the Iranian authorities as being a supporter of any opposition group in Iran.  The delegate did accept that if the applicant were to return to Iran, that the applicant would be returning as a failed asylum seeker.

Refugees Convention Assessment

1. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant had a well-founded fear of persecution.

Complementary Protection Assessment

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 is a real risk that the applicant will be subject to significant harm. The delegate found the applicant did not meet the criterion under s.36(2) of the Migration Act.

Before the Tribunal

1. The applicant applied for review on 27 October 2014.  By letter dated 2 February 2016, the applicant was invited to attend a hearing on 29 February 2016. The applicant appeared on that date to give evidence and present arguments and the applicant was represented by his registered migration agent. 

2. On 23 February 2016, prior to the hearing the applicant’s migration agent provided submissions to the Tribunal. Those submissions included addressing the topic of the applicant being a returned failed asylum seeker and referred to certain country information. The submissions also referred to the applicant having been involved in social media voicing dissent of the Islamic government in Iran. There was a reference to another Iranian blogger who had been arrested for criticising Iran on Facebook. However, there was no reference to the applicant having any Facebook page in those submissions.

3. Following the hearing, further submissions were provided to the Tribunal that relevantly made reference to two YouTube videos as well as a Facebook page. The Tribunal identified the relevant law in an attachment, “Attachment A” to its reasons and set out the applicant’s claims and evidence. 

4. The Tribunal also set out in its reasons, certain country information which was raised with the applicant during the hearing. The Tribunal’s reasons made reference to the applicant having claimed that he opposed the government and had shared anti-regime thoughts and action on YouTube and Facebook. The Tribunal referred to the applicant being asked when he did this, the applicant claimed it was since he had arrived in Australia but it was much more now. The applicant was asked to be specific, the applicant claimed that he began with Facebook and YouTube and went to a demonstration in Darling Harbour and was involved in a pro-monarchy political party (Hamyari) that operated in Australia.

5. The Tribunal made reference to country information that was put to the applicant that indicated Iranian authorities were not interested in failed asylum seekers with no political profile and the Tribunal was concerned that the applicant had come to Australia for economic opportunities and if he returned to Iran voluntarily or involuntarily, he would be of no concern to the Iranian authorities. The applicant claimed that this may be true for asylum seekers but because of his profile in Iran and Australia, he would be under surveillance. The applicant reiterated his claims and said he would be targeted upon return to Iran.

Assessment of credibility 

1. The Tribunal found the applicant’s evidence regarding his claims to lack credibility. The Tribunal found the applicant not to be a reliable, credible or truthful witness and found that the applicant had fabricated his entire claim in order to be granted a protection visa.

2. The Tribunal did not accept that the applicant was opposed to the government in Iran, nor that the applicant was supportive of the Green Movement, attended protest marches in support them or was charged with being a member of the Green Movement.  The Tribunal noted that these claims were entirely dependent upon the applicant’s own evidence and that the Tribunal had found the applicant was not a credible witness. The Tribunal made reference to the applicant’s political activity in Australia. In the course of those reasons, the Tribunal made express reference to the submissions received post-hearing because of the reference to the two YouTube videos. 

3. Further, it is apparent that the Tribunal made express reference to the submissions referred to prior to the hearing. This is relevant in respect of the alleged criticism raised in this Court as to the alleged failure to mention the written submissions and the applicant’s Facebook page. On a fair reading of the Tribunal’s reasons, that was a reference to the submissions provided under cover of the email dated 23 February 2016. The Tribunal made findings and in response to those written submissions and disregarded the applicant’s posting of the YouTube videos and Facebook page pursuant to s.91R(3) of the Act. The Tribunal found that there was no persuasive evidence that the applicant is or has ever been part of a pro-monarchy group in Australia and that this claim is inconsistent with the applicant’s alleged political orientation in Iran.

4. The Tribunal did not accept that the applicant was generally opposed to any government or that he would be impugned with being so opposed if he returned to Iran. The Tribunal then turned to the issue of the applicant’s claim of being a failed asylum seeker. The Tribunal referred to country information in that regard, relevantly being a DFAT Country Information report dated 29 November 2013. The Tribunal found the applicant had no political profile and that the applicant would be of no interest to the authorities on return as anyone other than someone returning on a different travel document than the one the applicant left Iran on. The Tribunal observed that country information indicates that the destruction of passports is not penalised in Iran and officials do not prosecute voluntary returnees.

5. The Tribunal found having regard to all the evidence and the applicant’s claims both singly and cumulatively, that the applicant did not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future. 

Assessment of Complementary Protection

1. The Tribunal turned to the issue of complementary protection and found that it was not satisfied there were any substantial grounds for believing that there was a real risk that the applicant would suffer significant harm.

2. The Tribunal 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 was a real risk the applicant will suffer significant harm on the basis of the applicant’s claims. The Tribunal found the applicant did not meet the criterion under s.36(2) of Act and affirmed the decision of the delegate.

Proceedings before this Court

1. The proceedings commenced on 24 June 2016. An extension of time was required under s.477 of the Act, and affidavit evidence was put on explaining the delay of the present case which included reference to the illness of Counsel.

2. The ground of the application is as follows:-

   1. The Tribunal failed to exercise its jurisdiction according to law.

   Particulars

   (a) The Tribunal failed to consider and deal with submissions of substance made by the applicant’s migration agent as to the danger faced by asylum seekers returning to Iran.

3. Having taken into account the submission filed by Mr Karp of Counsel, the Court extended time under s.477 of the Act. Mr Karp of Counsel indicated that he was in a position to deal with the substantive hearing in light of the extension of time. No objection was taken to that course by the first respondent.

4. Mr Karp of Counsel took the Court to the submissions before the delegate, identifying country information in relation to failed asylum seekers. Mr Karp of Counsel took the Court to the submissions in relation to persecution for membership of a particular social group and failed asylum seekers, in the submissions dated 23 February 2016. Mr Karp of Counsel contended that there was a substantial and clearly articulated argument identified in the submissions concerning the applicant being a failed asylum seeker that the Tribunal had failed to deal with. The Court was taken, in the course of those submissions, through the decision of the learned Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, in particular at [77] - [83].

Consideration

1. On a fair reading of the Tribunal’s decision as a whole, it is apparent that the Tribunal took into account the applicant’s submissions. There was no failure by the Tribunal to deal with the applicant’s submissions in relation to being a failed asylum seeker.  It was not necessary for the Tribunal to refer in detail to the applicant’s submissions or the applicant’s country information. It is a matter for the Tribunal as to which country information it accepts. 

2. Mr Karp of Counsel submitted that whilst there may be a reference to the topics of other matters raised in the submissions, the absence of reference to the country information identified in the applicant’s submissions supported the inference that the Tribunal had failed to deal with that part of the applicant’s submissions. I am not prepared to draw any such inference as it is apparent that the Tribunal did take into account the submissions, both pre-hearing and post-hearing. The Tribunal squarely dealt with the applicant’s claim in relation to being a failed asylum seeker, including reference in that regard to country information that it was open to the Tribunal to rely upon. 

Conclusion

1. There was no failure by the Tribunal to deal with the applicant’s submissions as to the danger faced by asylum seekers returning to Iran.  No jurisdictional error as alleged in Ground 1 is made out.

2. The application is dismissed.           

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 December 2016