Bte18 v Minister for Home Affairs

[2018] FCCA 1441

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTE18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1441

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal was required to apply character test requirements – whether the Administrative Appeals Tribunal mischaracterised a conviction of manufacturing drugs in Australia as no more than drug use in Iran – whether the Administrative Appeals Tribunal’s finding that the conviction of manufacturing drugs in Australia was no more than drug use in Iran was illogical or unreasonable – jurisdictional error – writs issued.

Legislation:
Migration Act 1958 (Cth), ss.36, 424, 424A, 438, 476, 501
Migration Regulations 1994 (Cth), sch.4

Cases Cited:
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223

Applicant: BTE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 953 of 2018

Judgment of: Judge Emmett

Hearing date: 4 June 2018

Date of Last Submission: 4 June 2018

Delivered at: Sydney

Delivered on: 4 June 2018

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter in the Farsi language

Counsel for the Respondents: Ms Natasha Laing

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 953 of 2018

BTE16

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 12 February 2018 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 6 September 2017 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).

2. The applicant is a citizen of Iran and of Baha’i faith, who fears harm from law enforcement authorities in Iran.

3. The relevant background and the Tribunal’s decision are accurately summarised in the first respondent’s written submissions as follows:

   “Background

   3. The applicant is a citizen of Iran who arrived in Australia in 2006 on a Prospective Marriage visa. He was granted a Permanent Spouse visa in 2009, which was cancelled under s 501 of the Migration Act 1958 (Cth) (Act) on 9 May 2016 (CB 366 [2]).

   4. On 20 February 2017, the applicant lodged an application for a protection visa (CB 1-38).  The applicant claimed to fear harm on the basis of his:

   (a) Baha'i religion;

   (b) Drug-related convictions in Australia, which may carry the death penalty in Iran; and

   (c) Outstanding debts in Iran (CB 20).

   5. The application was refused by the Delegate on 6 September 2017 (CB 145-163), which decision was affirmed by the Tribunal on 12 February 2018 (CB 365-378).

   Tribunal decision

   6. The Tribunal accepted that the applicant was a Baha'i.  In assessing the applicant's claims, the Tribunal considered, at length, country information with respect to Baha'is in Iran.  The Tribunal observed, and the applicant accepted, that the applicant's membership of the Baha'i community was with qualifications.  The applicant accepted that his habitual drug use was not in keeping with the teachings of the Baha'i faith and further admitted that, while he identified as a Baha'i, he did not always engage with or practice his faith in an observant manner ([30]-[33]).

   7. The Tribunal sought clarification from the Baha'i assembly in Australia, which affirmed that drug use is considered a serious breach of Baha'i standards and confirmed that the applicant was subject to sanctions within the Baha'i community as a result of his criminal convictions. In light of the applicant's admitted ambivalence towards the Baha'i faith and the sanctions imposed on him by the community, the Tribunal considered that he would not be required to modify his religious practices to avoid serious or significant harm if he returned to Iran ([34]-[38]). 

   8. With respect to the applicant's drug convictions, the Tribunal had regard to country information which indicated that while drug manufacturers/dealers in Iran can be subjected to the death penalty, drug users are pressured to seek rehabilitation.  The country information further revealed a progressive relaxation of penalties for drug use in Iran in both 2011 and 2017 that indicated an individual in the applicant's position would not face the death penalty ([56]-[64]).

   9. The Tribunal observed that media reports of the applicant's conviction made no reference to any identifying features of the applicant.  The Tribunal considered it doubtful that the Iranian authorities would become aware of his transgressions in Australia and did not find it convincing that a relative with animosity would seek to inform them.  In any event, even if his criminal record did come to the attention of the authorities, the Tribunal did not consider that the authorities would view and/or treat the applicant as a drug dealer rather than user.  The materials relevant to his convictions pointed to him being a user rather than a dealer.  Furthermore, he had undertaken several treatment programs in Australia which would indicate that he had undergone rehabilitation and would therefore not be prosecuted in Iran ([60]-[64]).

   10. In addition to the above findings, the Tribunal also did not accept the applicant's claim that he faced serious or significant harm due to his outstanding debts in Iran.  In reaching this conclusion, the Tribunal considered the applicant's submission that a “disgruntled creditor may make a rash decision to make a complaint” to be no more than speculation ([66]).

   11. In all the circumstances, the Tribunal found that the applicant did not meet the requisite criteria to enliven Australia's protection obligations.  Consequently, the Tribunal affirmed the Delegate's decision ([68]-[71]).”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of an interpreter in the Farsi language.  

2. At the commencement of today’s hearing, by consent, time was extended to the applicant to seek judicial review of the Tribunal’s decision.

3. The applicant confirmed that he had no further documents to present to the Court this morning in support of his application.

4. The applicant confirmed that he relied on the grounds contained in an Application filed on 6 April 2018 as follows:

   “1. The Tribunal acted outside of its jurisdiction by applying the wrong legal test for character requirements at [6], that

   "the applicant at the the hearing in addition to satisfying the criteria he must also satisfy the character test requirements, set out in public interest criterion (PIC) 4001 in Schedule 4 to the migration regulation 1.994 (the Regulations) and s.501(6) of the Act for the grant of a protection visa"

   Which was a misstatement of the correct test set out in Direction 75, made by the Honourable Peter Dutton, MP, the Minister of Immigration and Border Protection under section 499 of the Migration Act 1958 that commenced on 6 September 2017.

   2. The Tribunal acted outside of its jurisdiction by finding unreasonably and illogically at [ 64 ], that,

   "the Tribunal does not accept that there exists a real chance or real risk that the applicant faces serious or significant harm by way prosecution or the imposition the death penalty from the Iranian authorities by reason of his drug convictions in Australia"

   The Tribunal acted unreasonably and illogically in making the above determination after earlier finding at [29L that the applicant is a national of Iran and at [31}, that the applicant is Baha'i and at [3.64), that

   "Bahai's face considerable official and societal discrimination"

   And at (3.42], that

   "DFAT assesses that Baha'i in Iran face a high level of official discrimination"

   And at [3.41], that

   ''DFAT assess that the severity official adverse attention. against Baha'is will likely be dependent on the prevailing political environment, the level of cultural or religious activity in which the person is engaged (or perceived to be engaged), as well as the individual personalities of security officials"

   And at [57], that

   "According to human rights organization Amnesty International. Iran carried out at least 567 executions in 2016, more than any other country except China, and most of these were for drug crimes (The Death Penalty in 2016: Facts and Figures AMNESTY INTERNATIONAL (Apr. 11, 2017)".

   In circumstances where the Applicant is Baha'i and was charged and convicted of ‘exposing a child to manufacturing drug' and 'manufacture meth amphetamine’, sentenced to 4 years and 9 months imprisonment, and was “severely burnt” as a result of the incident that brought about his detection by police in December 2011.

   And found at [61] that,

   "The Tribunal does not accept that the Iranian authorities would view the applicant as a drug dealer and treat him as one"

   Without foundation and notwithstanding that drug dealers and drug users are not mutually exclusive categories.

   The applicant here repeats the particulars in Grounds (3), (4) and (5).

   3. The Tribunal acted outside of its jurisdiction by finding unreasonably and illogically at [60], that

   ''The Tribunal considers it doubtful that The Iranian authorities would know of the applicant's drug conviction in Australia"

   In circumstances where the Tribunal had in evidence an article from the Sydney Morning Herald dated 16 December 2011 titled ''Burns Victim charged with making drugs in Sydney unit'' and the applicant had given evidence at [54] that the incident had received media coverage in Iran.

   The applicant here repeats the particulars in Grounds (4) and (5) below.

   4. The Tribunal acted outside of its jurisdiction by finding unreasonably and illogically at ( 60], that

   "The Tribunal did find convincing the applicant 's claim that a relative with animosity toward him would seek to inform the authorities of the applicant’s convictions in Australia"

   In circumstances where the Tribunal had in the same proceeding at [ 17] issued

   "A non-disclosure certificate pursuant to s. 438(J)(b) of the Act was placed on Folio 129 of the file. This folio consists of a 'dob-in' letter and the non-disclosure certificate relates to the protection of the identity of the author of that letter".

   And at [26] the Tribunal confirmed the 'dob-in' letter referred to the Applicant's drug use.

   The applicant repeats here the particulars on Ground (5) below.

   5. The Tribunal acted outside of its jurisdiction by finding unreasonably and illogically at [60] that the applicant has not articulated a case that the harm he fears from his debtors in Iran relates to his "membership of a particular social group or political opinion" being at [51], that

   "the applicant is a member of a particular social group described as 'having a criminal record in Australia for drug and other offences''

   Having received evidence from the applicant. at [66] that

   "the applicant owes significant amounts of money to friends in Iran which he is unable to repay and he fears that his debtors will bring him to the attention of the Iranian authorities…and the debts are said to be money owned to friends and borrowed for the purpose of funding the applicant’s ‘drug habit’”

   And at its own initiative at [20], the Tribunal sought evidence from the National Spiritual Assembly of the Baha'is of Australia on ramifications of drug use in terms of membership of the Baha'i community and found at [34], that

   “the use of drugs is considered to be a serious breach of Baha’i standards"

   And the National Spiritual Assembly of the Baha'is of Australia confirmed at [34), that

   "the behaviour of the kind of which [the applicant] has been found guilty is absolutely contrary to Baha'i high standards. The National Spiritual Assembly, our national governing body has confirmed that sanctions have been imposed on [the applicant]".

   6. The Tribunal acted outside of its jurisdiction and fell into legal error at [40) finding that,

   "The Tribunal does not accept the applicant 's loss of rights within the Baha'i community means that the applicant will be more vulnerable to persecution and discrimination from Iranian authorities as he will be without the support of the Balta'i and private persons"

   Without making a finding on this representation against the applicant's claim for complimentary protection.

   7. The Tribunal acted outside of its jurisdiction by finding unreasonably and illogically at [46), that

   ''The tribunal is of the view that the applicant’s willingness to return to Iran on several occasions and without significant event may be read as an indicator that the applicant himself did not consider himself to face a real chance of persecution or significant harm on returning to Iran''

   In circumstances where such travel took place prior to the Applicant being charged and convicted of drug offences, thereby becoming a member of a particular social group described as 'having a criminal record in Australia for drug and other offences'.”

5. Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 appears to assert that the Tribunal should have considered whether the applicant satisfied character test requirements. The applicant had nothing to say in support of Ground 1.

2. The Tribunal’s decision record notes that the Tribunal made clear to the applicant that its review of his application for a Protection Visa was confined to consideration of the criteria for a Protection Visa and does not include an assessment of whether he satisfies the character test requirements. It was not for the Tribunal to consider whether the applicant satisfied character test requirements set out in Public Interest Criterion 4001 in Schedule 4 of the Migration Regulations 1994 (Cth) and s.501(6) of the Act.

3. In any event, the question whether the applicant met that criteria did not arise in circumstances where the Tribunal found that the applicant was not a person to whom Australia has protection obligations.

4. The Tribunal’s reference to the character test requirements was no more than an observation and did not give rise to any question of jurisdictional error.

Ground 2

1. Ground 2 asserts that the Tribunal’s finding that the applicant was not at risk of serious or significant harm in Iran by reason of his drug convictions in Australia, including the death penalty, was unreasonable and illogical.

2. In support, the applicant stated that there had been a number of people executed for drug convictions and that the Iranian Embassy knows that he was charged and convicted of drug offences.

3. The first respondent submitted that treatment of the applicant on return to Iran would depend on whether the applicant was considered a drug dealer or simply a drug user. The first respondent submitted that the materials relevant to the applicant’s convictions “pointed to the applicant being a drug user, but not a drug dealer.” The first respondent submitted that sentencing comments by the court following the conviction of the applicant for manufacturing of drugs suggested that the manufacture was for the purposes of feeding the applicant’s own habit, rather than for the purposes of commercial sale. The Tribunal noted that the applicant was sentenced to four years and six months imprisonment in December 2011 “for offences relating to damage to property, driving under the influence and manufacturing drugs.”

4. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28] per French CJ (“Li”), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; see also Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).

5. The Tribunal noted that at the hearing and in post hearing submissions, the applicant argued that he would be viewed as a drug dealer, not a drug user, principally because of his conviction for drug manufacturing.

6. However, the Tribunal did not accept that the Iranian authorities would view the applicant as a drug dealer and treat him as one and found that “the materials relevant to his convictions point clearly to a drug user.” Those materials would appear to include sentencing comments made by the court. The Tribunal does not otherwise identify what it regarded as “the materials relevant to his convictions” that pointed “clearly to a drug user.”

7. What is clear is that the applicant was convicted of manufacturing drugs and that it was the applicant’s claim that Iranian authorities treat drug users very differently from drug dealers and drug manufacturers.

8. Nowhere in the Tribunal’s decision record does the Tribunal consider the risk to the applicant in Iran of a conviction for manufacturing drugs in Australia. Nor does the Tribunal explain why it characterises a conviction of manufacturing drugs as no more than “drug use”.

9. The Tribunal appears to have placed significant weight on the “sentencing comments” of the court that, although the applicant “was attempting to manufacture drugs, he was doing so for the purposes of feeding his own habit rather than any financial or commercial reasons.” However, records of conviction are not accompanied by sentencing comments.

10. There appears to be no further consideration or analysis by the Tribunal of the applicant’s convictions, including manufacturing drugs, which led to a sentence of four years and six months imprisonment in Australia being imposed on the applicant.

11. As stated above, the applicant submitted that he would be viewed as a drug dealer, not a drug user because of his conviction of drug manufacturing.

12. The Tribunal noted the discussion that it had with the applicant about country information which it stated as follows:

    “58. At the hearing the Tribunal discussed the country information with the applicant on the basis that the Iranian authorities treat drug users very differently from drug dealers and drug manufacturers. Those who are dealers can be subject to the death penalty but those who are drug addicts are expected and pressured to seek rehabilitation.”

13. The Tribunal did not provide any explanation as to why manufacturing drugs was more akin to using drugs, than dealing drugs. This failure by the Tribunal was made in the context of the Tribunal’s acceptance of the country information that “the Iranian authorities treat drug users very differently from drug dealers and drug manufacturers.”

14. In those circumstances and in the light of those findings, for the Tribunal to then find that the Iranian authorities would not view the applicant as a drug dealer but as no more than a drug user is unreasonable, illogical and irrational.

15. In my view, there is no evident or intelligible justification for the Tribunal’s finding that a conviction of manufacturing drugs would be treated by Iranian authorities in the same way as drug use. No rational decision maker could have made those findings (see Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] per Gleeson and McHugh CJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124] per Crennan and Bell JJ; Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38]).

1. In the circumstances, the Tribunal fell into jurisdictional error and the Tribunal’s decision should be set aside and the matter remitted to the tribunal for determination according to law.

Other Grounds

1. It is not clear to me the extent to which the jurisdictional error which I have found would affect the other grounds. The applicant made clear during his submissions to the Court that central to his complaints about the Tribunal’s decision was the Tribunal’s failure to properly consider the risk to the applicant arising from his drug convictions in Australia.

Section 438 Certificate

1. A non-disclosure certificate pursuant to s.438(1)(b) of the Act was placed on Folio 129 of the Department’s file on the applicant, which was provided to the Tribunal for the purposes of its review. The Tribunal’s decision record notes that the folio consists of a “dob-in” letter and the non-disclosure certificate relates to the protection of the identity of the author of that letter.

2. The Tribunal found that the s.438(1)(b) certificate adequately explained how disclosure of the information to which it was subject would entail a breach of confidence and thus would not be in the public interest. The Tribunal was of the view that in order to maintain the confidence of the informant, redaction would be required to the extent that it would render the relevant folio meaningless. In the circumstances, the Tribunal found the non-disclosure certificate to be valid.

3. The Tribunal provided a copy of the s.438(1)(b) certificate to the applicant at hearing, and indicated to the applicant that the material on the relevant folio was a “dob-in letter” and that the Tribunal was “exercising its discretion to divulge the gist of the letter”, as the Tribunal had formed the view that it contained material that was known to the applicant, being information in relation to the applicant’s drug use. The Tribunal invited the applicant to make a submission on the validity of the s.438(1)(b) certificate.

4. The applicant’s representative, by way of submission dated 13 November 2017, stated that the applicant had no submissions to make on the validity of the s.438(1)(b) certificate, subject to the Tribunal having correctly identified to the applicant at hearing the subject matter covered by the certificate.

5. In the circumstances, there was no error in the manner in which the Tribunal dealt with the s.438(1)(b) certificate.

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

Date: 4 June 2018