BVP15 v Minister for Immigration

[2018] FCCA 450

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVP15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 450

Catchwords:
MIGRATION – International Treaties Obligation Assessment – whether there was a denial of procedural fairness – whether all the claims were considered – whether the delegate applied the wrong test.

Legislation:
Migration Act 1958, ss.422B, 424A

Cases cited:

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 259 CLR 180; (2016) 333 ALR 653; (2016) 90 ALJR 901; [2016] HCA 29
RRT matter number 1001288 [2010] RRTA 912

Applicant: BVP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent BRENDA LEEDS

File number: MLG 2082 of 2015

Judgment of: Judge Riley

Hearing date: 29 January 2018

Date of last submission: 29 January 2018

Delivered at: Melbourne

Delivered on: 28 February 2018

REPRESENTATION

Counsel for the applicant: Alexander F Solomon-Bridge

Solicitors for the applicant: Oboodi Barristers and Solicitors Pty Ltd

Counsel for the first respondent: Timothy Goodwin

Solicitors for the first respondent: Australian Government Solicitor

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The decision of the second respondent made on 27 August 2015 in file number CLF2010/116037 & CLF2015/50117 be set aside.

2. The matter be remitted to a delegate of the first respondent for determination according to law.

3. The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2082 of 2015

BVP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

BRENDA LEEDS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (“the delegate”). The decision made by the delegate was an International Treaties Obligations Assessment (“ITOA”) made on 27 August 2015.  In that decision, the delegate found that Australia does not have non-refoulement obligations to the applicant.  The Minister accepted that this court has power to review such decisions.

2. The ITOA included at page 7, CB215, the following description of Australia’s non-refoulement obligations:

   A non-foulement obligation is an obligation not to forcibly return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. Australia accepts that it has non-refoulement obligations under the following international treaties:

   -Convention relation to the Status of Refugees (Refugees Convention) – Article 32 provides that ‘Contracting States shall not expel a refugees [defined in Article 1A] lawfully in their territory save on grounds of national security or public order’. Article 33(1) provides that ‘No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ (See Part B – Assessment of non-refoulement obligations under the Refugees Convention)

   -CAT – Article 3 provides ‘no State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture [defined in Article 1]’;

   -ICCPR – Non-refoulement obligations are implied in respect of the fundamental rights contained in Article 6 (‘every human has a right to life’) and Article 7 (‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’). A non-refoulement obligation also arises under the Second Optional Protocol to the ICCPR in relation to persons who will have the death penalty carried out on them.

   The non-refoulement obligations under the ICCPR or CAT arise where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a relevant country, there is a real risk that the non-citizen will suffer significant harm. (See Part C – Assessment of non-refoulement obligations under the ICCPR and CAT)

The applicant’s claims

1. The applicant is a citizen of Iran.  The delegate summarised the applicants claims at CB211 to CB212 as follows:

   ·     He was not involved in political issues but supported the Green Movement which formed to protest the June 2009 election results.

   ·     In July 2009, he and two or three others attended a demonstration near the hotel where they worked. They witnessed Iranian authorities (Sepah and Basij) beating and kicking protesters.

   ·     During the protest, he was hit in the face, fell to the ground unconscious and required hospital treatment. He was badly injured below the right eye and required stitches.

   ·     His work ID card was lost at the demonstration and his employer was subsequently pressured by authorities to dismiss him.

   ·          His son was expelled form (sic) university because [the applicant] was ‘rebellious’.

   ·     He received threatening telephone calls warning that worse things would happen if he attended demonstrations against the Iranian government including being killed.

   ·     After being dismissed form his workplace, he worked “secretly” in restaurants and take-away shops as he feared being located by authorities.

   ·     The authorities came to his house several times and he hid on each occasion.

   ·     He spent some time with his sister in Ahwaz to avoid the authorities.

   ·     He left Iran using his own genuinely issued Iranian passport and paid a bribe so he would not be questioned upon departure.

The assessments

1. A Refugee Status Assessment (“RSA”), an Independent Merits Review (“IMR”) and the ITOA all rejected the applicant’s claims for reasons of credibility.

Ground 1

1. The first ground of review in the application filed on 11 September 2015 and amended on 12 January 2018 is:

   The ITOA denied procedural fairness to the Applicant, in that the Second Respondent did not provide him with:

   a.the information relied upon as mentioned in footnotes 1 and 2 on page 11 of the ITOA;

   b.the statements of his sister-in-law on which the ITOA relied on page 13 of the ITOA;

   c.the country information relied upon in relation to mental health facilities in Iran on page 20 of the ITOA.

2. The applicant noted that an ITOA is not affected by s.422B or s.424A of the Migration Act 1958 and that the rules of common law procedural fairness applied.  The Minister did not dispute that.

3. The applicant relied on Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI (2016) 259 CLR 180; (2016) 333 ALR 653; (2016) 90 ALJR 901; [2016] HCA 29. In that case, French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ said at paragraph 83:

   Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry. (emphasis added) (citations omitted)

Ground 1(a): the information mentioned in footnote 2

1. In oral submissions, the applicant indicated that he withdrew his complaint about the ITOA denying him procedural fairness in relation to the information mentioned in footnote 1 on page 11 of the ITOA.  The applicant continued to rely on the failure to provide him with the information mentioned in footnote 2 on page 11 of the ITOA.  That footnote is:

   Australia: Refugee Review Tribunal, Iran: 1. Please provide information on the treatment of failed asylum seekers upon return to Iran. Are people who claim asylum abroad imputed with anti-regime views and subject to harm upon return?, 19 August 2010, IRN37255,available at: d72.html

2. Footnote 2 arose from the following paragraph on page 11 of the ITOA:

   I acknowledge that a ‘returnee’ may be interrogated upon return in some circumstances[1] and that it may be possible for the Iranian government to assume a returnee has applied for asylum in Australia. A Refugee Review Tribunal case discusses accounts of some returnees being seriously harmed upon return to Iran, however it states; ‘it is unclear as to whether any of these examples of ill-treatment are attributable to political beliefs imputed by authorities due to asylum claims made while abroad.’[2] However the Australian government does not disclose the details of an asylum seeker’s application to the countries in which a person claims they will be persecuted, therefore the Iranian government is unlikely to obtain this specific information.

   [1]     “Iran - Country of Origin Information (COI) Report (26 September 2013)”, United Kingdom Home Office, 01 September 2013, CIS27823

   [2]     Australia: Refugee Review Tribunal, Iran: 1. Please provide information on the treatment of failed asylum seekers upon return to Iran. Are people who claim asylum abroad imputed with anti-regime views and subject to harm upon return?, 19 August 2010, IRN37255,available at: d72.html

3. The Minister did not claim that the delegate had specifically alerted the applicant to the gravamen of the information contained in footnote 2.  Rather, the Minister submitted that the applicant was aware of the relevant information because he had made a submission that quoted a report that was identical in some respects to the information in footnote 2.  In support of this submission, the Minister invited the court to compare paragraph 143 of a submission at CB86 provided by the applicant for the purposes of the RSA and the document referred to in footnote 2 with the web address (“the refworld document”).

4. Paragraph 143 in the applicant’s submission is actually a quotation from a Tribunal decision with the reference 1001288 [2010] RRTA 912: see footnote 10 on CB83.  Paragraph 143 of that decision is as follows:

   The Tribunal has considered the question whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad. Many of the opinions quoted above that suggest that returnees are subject to various forms of ill-treatment upon return to Iran date from the previous government of President Mohammed Khatami (1997 – 2005). Khatami was widely seen as a moderate and a reformer by western governments and observers. Since 2005 Iran’s government and authorities have been under the control of President Mahmud Ahmadinejad, widely seen by western governments and Iran watchers as conservative and authoritarian. The regime is extremely defiant of international opinion and paranoid, and the flow of information out of the country has dramatically slowed.  Consequently, in 2010 it is extremely difficult to gauge the treatment of returnees or how they are perceived by the regime, however it is likely that all persons perceived to be a opponents of the regime are currently subject to more intense scrutiny and to harsher penalties than they would otherwise have been during the presidency of Mohammed Khatami. Furthermore it is certain  is (sic) that at least some returnees from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, ranging from monitoring, interrogation, and detention. There are reliable reports that some returnees from Canada have been physically harmed and there is at least one report of a returnee dying following physical harm upon return. It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto Iranian authorities. It is also likely that these details will be known to Iranian Immigration security officials at Imam Kohmeini International Airport in Teheran, the main international gateway into Iran.

5. I have compared the refworld document with paragraph 143 in the applicant’s submission for the RSA.  Some of the refworld document is identical to parts of paragraph 143, which is itself part of the applicant’s submission for the RSA.  Other parts of the refworld document are identical to earlier parts of the applicant’s submission for the RSA, and are to be found at CB84, CB85 and CB86.

6. The delegate was under no obligation to provide to the applicant the information in the refworld document that was identical to or substantially the same as the information in the applicant’s own submissions to the RSA. It is true that, by the time of the ITOA, the applicant’s representation had changed from Vrachnas Lawyers, who represented the applicant for the RSA, to RILC. However, it is apparent from an email at CB149 that RILC requested a copy of the applicant’s departmental file, which would have included the applicant’s submissions for the RSA.  The email requested an extension of time in which to respond to an invitation to comment to enable RILC to have the file before responding. RILC did respond to the invitation to comment without seeking a further extension of time. I infer that RILC received the file, with the submission from the applicant’s former advisors.

7. The only passages from the refworld document, that is five pages long, that I have been unable to find in the applicant’s submission to the RSA are as follows:

   a)It remains uncertain as to whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad. (“the first statement”)

   b)However, it is unclear as to whether any of these examples of ill-treatment are attributable to political beliefs imputed by authorities due to asylum claims made while abroad. (“the second statement”)

   c)On this basis it seems likely that an Iranian seeking protection in Australia would come to the attention of the Iranian Embassy in Canberra via members of the diaspora. Consequently, Iranian authorities could eventually become aware of an Iranian national’s unsuccessful attempt to gain asylum in Australia. Once again, the question remains as to whether such an act would constitute dissent in the eyes of the authorities. Furthermore, if it does constitute dissent, the question remains as to whether it would subject asylum seekers to ill-treatment upon return. (“the third statement”)

   d)A number of asylum applicants both in Australia and abroad have expressed concern about harm they may received (sic) upon return to Iran for having left illegally, either via illegal exit points, on false or stolen passports, or with forged exit permits. On a fact finding mission to Iran in 2008, representatives of the Danish Ministry of Immigration met with H. Mirfakhar, the Director General, Consular Affairs, in Iran’s Ministry of Foreign Affairs, who informed the Danish Ministry of Immigration “that a person who has left Iran illegally and who is not registered on the list of people, who cannot leave Iran, will not face problems with the authorities upon return, though the person may be fined…It was added, that a person who has committed a crime and has left Iran illegally will only be prosecuted for the crime previously committed and not for leaving the country illegally.” (citation omitted) (emphasis added) (“the fourth statement”)

8. The delegate did not need to provide the first statement to the applicant.  It is not information as such. It simply stated that a particular matter is uncertain. The same may be said in relation to the second statement.

9. The third statement did not need to be provided to the applicant. The first two sentences were not adverse to the applicant’s case. On the contrary, they supported it. The last two sentences were not information, but simply raised an issue.

10. The fourth statement did not need to be provided to the applicant. The fourth statement applied to people who left Iran via illegal exit points, on false or stolen passports or with forged exit permits. The delegate found that the applicant departed Iran legally on his own passport.

11. The applicant conceded that he left Iran on his own passport at a legal exit point. On the other hand, the applicant claimed that he paid a bribe to leave. The delegate rejected that claim. In any event, the fourth statement concerned what might happen to a person who paid a bribe to leave Iran. The fourth statement did not address whether the applicant did pay a bribe to leave Iran. Therefore, the fourth statement was not relevant to any issue in dispute.

12. In any event, for completeness, I will address the arguments made by the Minister.  

13. The Minister noted that the issue of how returnees were treated in Iran had been considered by the RSA and the IMR, and they had both set out information in their decisions that related to that issue.  That may be so.  However, raising an issue is only one component of the obligation to afford procedural fairness.  Another and distinct obligation is to provide the gravamen of information that the decision maker might take into account. However, that obligation does not apply where, as here, the applicant already had that information, or it was not adverse or relevant to any issue.

14. The Minister also submitted that information on the issue of how returnees were treated on their return to Iran was provided by the delegate to the applicant’s agent during the ITOA process: CB177 to CB178.  However, that was different information, so its provision would not have satisfied the requirement to give the gravamen of the information in footnote 2.

15. The Minister submitted further that the delegate only relied on the information in footnote 2 to reach the neutral conclusion that it was unclear whether returnees were ill-treated in Iran because of beliefs imputed to them as a result of applying for asylum.  The Minister submitted that, because the use of the information was not adverse, it did not need to be disclosed.  However, that submission does not address the requirement to disclose information that the decision-maker might rely upon to reach an adverse conclusion.  The refworld document included such information.

16. Finally, the Minister submitted that the delegate went on to conclude that the Australian government does not disclose the details of asylum seekers’ claims, so the issue was not significant.  The treatment of returnees was a live issue in this case, and information on the treatment of returnees was significant in how that issue might be resolved.  Therefore, the fact that the delegate may not have ultimately relied on the information in footnote 2 would have been beside the point. 

17. However, for the reasons discussed above, this ground will be dismissed.

Ground 1(b): the statements of the sister-in-law

1. This ground concerns page 13 of the delegate’s reasons, which is as follows:

   I interviewed [Mr X] for his ITOA on two occasions. The first interview was held on 30 April 2015. His representative from RILC, Lauri Stewart was also present.

   During this interview I questioned the circumstances of his departure from Iran and travel to Australia. [Mr X] advised that the plan was for him to wait until the gate was clear of people. He claimed there was only one gate and he stated he travelled alone. He claimed he bribed the person at the gate directly and claimed the airport was under the control of the Basij. I asked how he knew who to bribe or if the bribe would be accepted and he claimed a neighbour told him that there are these kind of people that if you bribe them it would be easy to get past the gate. [Mr X] again claimed that no one else travelled with him and he denied knowing anyone on the aircraft. I advised him that he and his sister-in-law travelled on the same boat to Australia and he agreed they both came together. I asked if they left Shiraz airport together and he said yes. I asked why he did not say that when I asked if he travelled with anyone and at this point his representative from RILC requested I halt the interview. The RILC representative thought there may have been a conflict of interest within her agency as they are also representing [Ms Y], [Mr X’s] alleged sister-in-law.

   However, from this exchange with [Mr X] I found that he consciously chose to be untruthful and it was only when I presented him with the evidence did he admit that he and [Ms Y] had departed Shiraz airport together. [Mr X] did not display vagueness or failure to remember as this exchange indicated a deliberate attempt to withhold information that was withheld at his time of entry to Australia.

   The RILC representative submitted two statutory declarations, one signed by [Mr X] and the other from his sister-in-law [Ms Y] dated 28 May 2015 with a submission (folios 190-193 of CLF2010/116037).

   Second ITOA interview

   The second ITOA interview was held on 4 June 2015.

   I asked [Mr X] the reason he had previously denied travelling with his sister-in-law [Ms Y]. He responded that it was the smuggler who told him and his sister-in-law not to say they were relatives.

   This being his testimony I then checked his alleged sister-in-law’s advice to departmental officers. At their separate entry interviews [Mr X] and his sister-in-law [Ms Y], denied knowing or travelling with anyone to Australia. However, only a few days later [Ms Y] requested contact with [Mr X]. She provided various descriptions of their relationship. Initially he was the husband of a friend who was still in Iran and later she claimed [Mr X] was her boyfriend and she wanted them to be relocated together.

   Finding

   I do not accept that a smuggler would have any interest or reason for providing advice of this nature to [Mr X] and I do not accept as credible that a smuggler would do so.

1. The Minister submitted that the comments made by the applicant’s sister-in-law were not relevant to the ultimate findings made by the delegate.  The Minister acknowledged that the delegate summarised in her decision the sister-in-law’s comments to departmental officers in her entry interview.  However, the Minister submitted that the delegate’s credibility finding was not based on the sister-in-law’s statements, but was based on the applicant admitting that he had lied about travelling alone.  Consequently, the Minister submitted that the sister-in-law’s statements were not significant in the delegate’s reasoning.

2. I do not accept that contention.  Firstly, the sister-in-law’s statements to the departmental officers at the entry interview were significant enough for the delegate to summarise them in her reasons for decision.  Secondly, it can be inferred that the sister-in-law’s statements compounded the delegate’s doubts about the alleged advice given by the people smuggler.

3. The Minister then said that the sister-in-law’s statements were not adverse to the applicant’s interests.  If anything, the Minister submitted, the sister-in-law’s statements corroborated the applicant’s statements that the people smuggler told the applicant and his sister-in-law to lie. 

4. Those arguments are disingenuous.  The fact is that the sister-in-law’s statement showed that she had lied about travelling alone, then lied that the applicant was the husband of a friend and then lied that the applicant was her boyfriend.  Rightly or wrongly, it is clear that the delegate considered that the applicant being closely associated with a person who told so many lies reflected badly on the applicant.  It seems to me that, in that sense, the sister-in-law’s statements were adverse to the applicant.

5. All in all, the delegate should have disclosed to the applicant that she had found information on the sister-in-law’s file and should have provided the gravamen of that information to the applicant.  The delegate’s failure to do so amounted to a jurisdictional error.

Ground 1(c): the country information re mental health facilities

1. The country information referred to in ground 1(c) is referred to at page 20 of the delegate’s decision at CB228 and is as follows:

   … There has not been any suggestion from [the applicant] that the mental health services in Iran would not adequately address his needs and having searched country information I have been reassured that Iran has numerous facilities to address mental health issues at a primary level. I further find that he would not be denied treatment. Nor do I find the differences in available treatment between Iran and Australia would constitute serious harm to the claimant. (emphasis added)

2. The Minister submitted that there was no need for the delegate to provide to the applicant the gravamen of the information that Iran has numerous facilities to address mental health issues at a primary level because the applicant gave that information to the delegate.  The information was provided to the delegate in a submission for the purposes of the ITOA.  The relevant passage is at CB157 to CB158 and is as follows:

   … In Iran, the Ministry of Health and Medical Education (MOHME) finances and delivers primary healthcare, including mental health, at both the public and private level. In order to seek treatment for his mental conditions, [the applicant] would be required to explain to an employee of the Iranian Government the reasons for his mental illness – including his previous mistreatment at the hands of the Iranian authorities, his detention in Australia, his unsuccessful application for protection, and his fear of being detected by the Iranian authorities once more. Furthermore, as community-based programs for people with mental illness are largely non-existent in Iran, this conversation would have to occur within the confines of a Government-owned and run hospital. By having this conversation, [the applicant] would place himself at risk of significant harm of being detained by the authorities, either in a prison or as a patient in a mental healthcare facility. (citations omitted)

3. It is clear from that passage that the applicant did provide to the delegate the relevant information.  Accordingly, there was no need for the delegate to provide it to the applicant.  There is no jurisdictional error in relation to ground 1(c).

Ground 2

1. The second ground of review in the application filed on 11 September 2015 and amended on 12 January 2018 is:

   The ITOA denied procedural  fairness to the Applicant (or otherwise evidences reviewable error), in that the Second Respondent misconstrued his evidence and/or claim or failed to consider important evidence and/or a claim, being that the Applicant witnessed another person being sexually assaulted and was threatened with similar harm (the ITOA simply found that the Applicant was not the victim of such harm, but did not consider whether the threat of future harm engaged Australia’s protection obligations, as claimed by the Applicant).

2. The delegate said at CB223:

   At the IMR interview of 6 August 2011 [the applicant] raised a new claim that whilst he was organising his departure from Iran he had been detained on one occasion and sexually assaulted by the Basij in their office (paras 37 – 41, folio 102, of CLF2010/116037). The IMR reviewer did not accept the claim that [the applicant] was detained and/or sexually assaulted by the authorities.

   At the ITOA interview [the applicant] stated that he was not detained by the Iranian authorities, sexually assaulted or tortured but rather when he was in the office of the Basij he was shown a person they were torturing and told this could happen to him if he continued to attend demonstrations. [The applicant] then claims he ran away from them. [The applicant] stated that the interpreter at the IMR interview had interpreted the account incorrectly and he had not been sexually assaulted. (emphasis added)

   ·I do not accept that [the applicant] has been either detained and/or sexually assaulted by the Basij/Sepah in Iran.

3. The applicant submitted that the delegate failed to consider the claim that when [the applicant] was in the office of the Basij he was shown a person they were torturing and told this could happen to him if he continued to attend demonstrations.  It is implicit in the applicant’s claim that he was in the office of the Basij for some reason other than because he was detained.

4. The Minister submitted that the claim was not a substantial, clearly articulated claim because it was raised in the context of a significant change in the applicant’s story.  I do not accept that submission.  It was sufficiently, clearly articulated for the delegate to have written it down in concise terms.

5. The Minister then said that the claim was dealt with in a finding of greater generality, being the finding that the applicant was not detained by the Basij.  The Minister said that this finding encompassed a finding that the applicant was not held in the office of the Basij, because it could not be supposed that the applicant had argued that he was there by his own free will.

6. However, that is exactly what the applicant argued.  He said specifically that he was not detained but was in the office.  If the applicant was not in the office because he was detained he could only have been there of his own free will.

7. The Minister then said that it was unnecessary for the delegate to make findings on whether the applicant witnessed and was threatened with torture to dissuade him from attending demonstrations because the issue was dealt with by findings of greater generality, namely, that the applicant had never come to the adverse attention of the Iranian authorities: CB223.  I accept that contention.  The finding that the applicant had never come to the adverse attention of the Iranian authorities covers the claim that the applicant was threatened by the authorities to dissuade him from attending demonstrations.

Ground 3

1. The third ground of review in the application filed on 11 September 2015 and amended on 12 January 2018 is:

   The ITOA denied procedural fairness to the Applicant (or otherwise evidences reviewable error) by the Second Respondent’s having applied the wrong test in relation to assessing his claims based on his fragile psychological state, in that the Second Respondent determined that the feared harm was not “inevitable”, whereas the correct test was whether there was a real chance of such harm occurring.

2. In relation to this matter, the delegate said at CB227:

   A fear of being persecuted is well-founded if there is a ‘real chance’ that an applicant may be persecuted (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at p.389, Toohey J at pp.406-7, Dawson J at pp.396-8, McHugh J at pp.428-9). A ‘real chance’ may be below a 50 per cent chance. However, a real chance is not a remote chance; there needs to be a real substantial basis for a fear of persecution in order for it to be well-founded.

3. The delegate later said at CB228:

   Regarding his claim that he would invariably come to the adverse attention of the Iranian authorities due to his mental health condition, I have considered the information and assertions made by the claimant’s representative on this point, as well as the medical reports on his condition. Also I note that if he returns to Iran he would most likely return to live with his family. The claimant would return to a familiar environment and would not have the uncertainty which he has now.

   I note the issues the claimant had when released from held detention. In that situation, the claimant was in an unfamiliar environment, where he could not speak the language and with little or no community or familial support. Considering this, I do not consider it is indicative that he would inevitably demonstrate similar behaviour to Iranian officials if returned to Iran; residing in his own community and with the support of his family.

   I acknowledge his mental health issues may have commenced after his arrival in Australia. That being said, the claimant would like all Iranians be expected to obey laws of general application in Iran. I have considered his past history in Iran and I consider that he has not attracted the attention of the police. I do not accept it is inevitable he would come to the adverse attention of the authorities and I am not satisfied it is inevitable he will ’draw the ire’ of the Basiji or police. I find there would be adequate treatment to manage his condition in Iran if it continued to present itself. Considering this I find the chance of the claimant facing a real chance of serious harm because of his mental state to be remote, rather than real.

   Considering all of the above, I find that there is no real chance that the claimant would suffer serious harm if he returned to Iran on account of him being a person who suffers from a psychological/mental condition.

   (emphasis added)

4. The applicant submitted that the passages in the delegate’s decision that contained her operative reasoning on this issue demonstrated that she applied the wrong test. 

5. The Minister submitted that the applicant was approaching the delegate’s decision with an eye finely attuned to error.  The Minister submitted that, when using the word inevitable, the delegate was considering the factual premise about whether it was inevitable or not that the applicant would come to the adverse attention of the Iranian authorities because of his mental health problems, which had certain physical manifestations.  The Minister submitted that, as the delegate determined that the factual premise was not certain to happen, it was open to the delegate to conclude that there was not a real chance that the applicant would suffer harm as a result of returning to Iran.   

6. That argument duplicates the error made by the delegate.  The delegate was required to consider whether there was a real chance that the applicant’s mental health difficulties would draw him to the attention of the Iranian authorities, and thereby expose him to a real chance of serious harm.  The delegate in fact asked whether it was inevitable that the applicant would come to the attention of the authorities because of the physical manifestations of his mental health issues.  In doing so, the delegate asked herself the wrong question.

7. It is true that the applicant had submitted that he would invariably come to the attention of the authorities because of his mental health problems.  It may be accepted that the delegate was responding to that submission when she said that it was not inevitable that the applicant would come to the attention of the authorities.  However, the delegate was obliged to go further, and consider whether there was a real chance of the applicant coming to the attention of the authorities because of his mental health problems.

8. It is also true that the delegate went on to find that the applicant did not face a real chance of serious harm because of his mental health issues.  However, the reasoning leading to that conclusion did not engage with the relevant question, which was whether the applicant’s mental health issues would bring him to the attention of the Iranian authorities.  The closest the delegate came to answering that question was the finding that there would be adequate treatment to manage his condition in Iran.  However, the notion of the applicant being able to manage his condition did not deal squarely with the question of whether the physical manifestations of that condition would still occur, or whether the physical manifestations would draw the attention of the authorities to the applicant.  This ground is made out.

Conclusion

1. As jurisdictional error has been demonstrated in this case, the delegate’s decision will be set aside with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:       28 February 2018