BYH17 v Minister for Immigration
[2020] FCCA 868
•17 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYH17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 868 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal considered an express claim made by the applicant – whether the Tribunal was required to consider an unarticulated claim that was said to arise from the materials – whether the Tribunal made a jurisdictional error by making an irrelevant moral judgment about the applicant’s conduct which deflected it from correctly dealing with the matter – whether the Tribunal made irrational and illogical findings – whether the Tribunal’s failure to make findings about whether the applicant would engage in political activity upon his return to Iran was a jurisdictional error, in circumstances where he had not claimed that he would, and his past history did not suggest that he would. |
| Legislation: Migration Act 1958, s. 5J(3) |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71 |
| Applicant: | BYH17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 926 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 13 November 2019 |
| Date of last submission: | 13 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2020 |
REPRESENTATION
| Counsel for the applicant: | Alexander Solomon-Bridge |
| Solicitors for the applicant: | Victoria Immigration Lawyers |
| Counsel for the first respondent: | Andrew Yuile |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application filed on 5 May 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 926 of 2017
| BYH17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s claims
In his outline of submissions filed on 30 October 2019, the Minister outlined the applicant’s claims as follows:
4.The applicant’s claims for protection centred upon issues said to have arisen with [relative A] while the applicant was [an employee of a bank (“the bank”)]. The applicant described the apparent corruption of [relative A], manifested by [relative A] using his position, knowledge and influence to funnel money into [the bank]. The applicant was prosecuted for certain financial crimes with [relative A] though they were both later acquitted. It was said by the applicant that the charges were politically motivated, and further charges for similar reasons had been threatened.
5.The applicant claimed to fear harm due to the influence of [relative A]. He also claimed to fear harm based on certain familial connections, and some attendance at a prior political protest.
(footnotes omitted)
The Tribunal’s reasons
The Minister summarised the Tribunal’s reasons for decision at paragraph 6 of his outline of submissions filed on 30 October 2019 as follows:
The Tribunal accepted that the applicant had had a [relative, relative B] who had been assassinated, but did not accept that the authorities held any interest in the applicant as a result. The Tribunal also accepted that the applicant had been charged with criminal activities, but did not accepted that these had been politically motivated. Rather, the Tribunal found that the applicant had simply engaged in criminal activity. The Tribunal did not accept that the applicant was at risk of harm from [relative A]. The Tribunal also did not accept that the authorities had any interest in the applicant, because of his prior political activities or otherwise.
(footnotes omitted)
Ground 1
The first ground of review in the application filed on 5 May 2017 (“the application”) is:
The Second Respondent committed jurisdictional error by failing to consider all of the applicant’s claims and/or their component integers.
Particulars
A.The applicant made an express claim that his mother-in-law had warned him that the pending charges were the result of corrupt officials.
B.The applicant made an unarticulated claim to the effect that he feared harm by reason of his lack of Islamic faith and/or atheism.
The “express claim” mentioned in particular A was contained in a post-hearing submission dated 2 December 2016 from the applicant’s migration agent to the Tribunal. It is set out at CB246-7 and is as follows:
It should be re-iterated that the new charges that [the applicant] was facing in Iran i.e. Forex trading was nothing but a shambolic pretext in continuation of a much more cunning campaign contemplated and implemented by Mr [A] and his team of high profile corrupt officials who were trying to entirely eliminate [the applicant] from any significant position and silence him by way of imprisonment. [The applicant] was warned about this by the Judge of the Court of Appeal as well as his mother-in-law.
The Tribunal reproduced part of that paragraph, being the words nothing but a shambolic pretext to by way of imprisonment at paragraph 110 of its reasons for decision. As can be seen, the reference to the warning from the applicant’s mother was not included by the Tribunal at paragraph 110 of its reasons for decision. It was at that point in its reasons for decision that the Tribunal rejected the applicant’s claim that there was a political motivation for his criminal prosecution.
Earlier in its reasons for decision, at paragraphs 67 and 68, the Tribunal set out evidence that the applicant gave at the Tribunal hearing, concerning the judge and the applicant’s mother-in-law. Those paragraphs from the Tribunal’s reasons for decision were as follows:
67.The applicant told the Tribunal that even when he was acquitted in early 2011, the appeal judge told him that “they” are looking to eliminate him. He had fallen off his horse, but now they were looking at destroying him totally (“at the roots”).
68.He was advised by his wife’s mother that there was going to be a new court case against him. He said that there was a gap of a few months between the conclusion of the appeal case (in January 2011) and the time when he learned about the new case.
However, the applicant said that paragraph 68 of the Tribunal’s reasons for decision made a different point, which was that there would be new charges made against the applicant, and said nothing about them being politically motivated.
This highlights the flaw in the applicant’s argument on this point. The claim that the Tribunal had to consider was whether the charges brought against the applicant were politically motivated. The Tribunal clearly considered that. Whether or not the applicant’s mother-in-law warned him that the charges were politically motivated did not add anything to the claim that the Tribunal was obliged to consider. That is presumably why the Tribunal did not quote in paragraph 110 of its reasons for decision, the sentence mentioning the warning from the applicant’s mother-in-law.
Moreover, the fact that the Tribunal quoted the bulk of the relevant paragraph from the applicant’s post-hearing submissions makes it unlikely in the extreme that the Tribunal was not aware of the allegation that the applicant’s mother-in-law had warned him. This suggests that the Tribunal “considered” the mother-in-law’s warning in the sense of considering that it was irrelevant. It was, so there was no jurisdictional error in the Tribunal not mentioning it expressly in its reasons for decision.
The “unarticulated claim” in particular B was expressed in the paragraph 10 of the applicant’s written submissions to this court as follows:
Secondly, the Tribunal overlooked an unarticulated claim to the effect that the Applicant would face harm on account of his lack of religious beliefs. There was a body of evidence before the Tribunal that the Applicant, despite describing himself as a Shi’a Muslim, was not religious. That included the following:
(a)His father was very opposed to the Islamic regime [CB 77];
(b)He refers to Hezbollah families as being “extremely radical religious families” [CB 127];
(c)His claims that his wife’s family never approved of him because he is not “conservative” [CB 197];
(d)His claims that he did not believe in the Green Movement “because it is an Islamic movement” (T: [63]).
In paragraph 11 of his written submissions, the applicant expressed this claim a little differently, saying that:
… he was not religious (or not sufficiently religious) …
In oral submissions, the applicant added two further items of evidence that he said should have alerted the Tribunal to the unarticulated claim. They were in the transcript of the Tribunal hearing, which is annexed to the affidavit sworn by Amir Hassani on 12 November 2019, where the applicant is recorded as saying:
a)at page 22 line 23:
… my father-in-law realised that I was not from a very conservative family …
b)at page 23 lines 6 to 8:
Yes? --- You asked the personals of the university that boy is a really just conservative or trained person.
And you’re not? --- Yeah and I wasn’t no.
Allsop J (as his Honour was) said in NAVK v Minister for Immigration and Multicultural and indigenous Affairs [2004] FCA 1695 at [15]:
A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
The matters that the applicant relied upon in his written submissions to say that the Tribunal was required to consider an unarticulated claim do not, in my view, rise to the relevant threshold. That is because, especially in the context that the applicant described himself as a Shia Muslim in his statutory declaration in support of his protection visa application (CB77):
a)the applicant’s father’s political views shed no light on the applicant’s religious views;
b)the applicant’s description of Hezbollah families as “extremely radical religious families” did not imply that the applicant is not a devout Muslim, albeit one with different political objectives, if any, from Hezbollah;
c)the applicant’s claim that his wife’s family did not approve of him because he is not “conservative” suggested that the applicant not being religiously conservative might lead to societal disapproval, but nothing that might amount to serious or significant harm; and
d)the applicant’s claim that he did not support the Green Movement because it is an Islamic movement concerned the applicant’s political opinions, rather than his religious feelings.
In relation to the additional items of evidence that the applicant relied upon in his oral submissions, he said that the fact that he repeated that he was not conservative or perceived to be from a conservative family amplified that circumstance and gave weight to the argument that the unarticulated claim arose tolerably clearly from the materials. However, the applicant’s lack of conservatism was not necessarily indicative that he was not a devout Muslim, albeit of a less conservative kind.
The applicant has identified nothing, even taking his points cumulatively, that could have amounted to a claim that arose on the materials to the effect that he was at risk as a non-believer or as a person who did not believe sufficiently in Islam. That is particularly so as the applicant expressly identified himself as a Shia Muslim in his statutory declaration in support of his protection visa application.
Ground 1 is not made out.
Ground 2
During the final hearing, counsel for the applicant formally abandoned ground 2 of the application.
Ground 3
The third ground of review in the application is:
Further or alternatively, the Second Respondent committed jurisdictional error by making a moral judgment about the applicant’s behaviour for which he stood to face charges.
In paragraph 17 of his written submissions, the applicant elaborated on this ground as follows:
In this case, the Tribunal gratuitously observed [in its reasons for decision] as follows:
(a)the Applicant “engaged in some questionable behaviour with his [relative], and then he knowingly engaged in illegal currency trading by himself” (T: [85]);
(b)the Applicant “continued trading [illegally] in order to make money” (T: [108]);
(c)the Applicant “is seeking to escape justice, to avoid a conviction for illegal share trading” (T: [121]).
The applicant explained the nature of the alleged error in paragraph 18 of his written submissions as follows:
… the above matters are demonstrative of legally irrelevant moral judgments about, and reflections on, the Applicant and his behaviour. … from their being mentioned in the Tribunal’s reasons, it may be inferred that the Tribunal took those irrelevant considerations into account …
In oral submissions, the applicant said that the alleged error consisted of the Tribunal:
a)taking into account a mandatorily irrelevant consideration; and/or
b)misunderstanding the nature of its functions and misconceiving its duty.
In oral submissions, the applicant also relied on extracts from the transcript of the Tribunal hearing as follows:
a)page 69, lines 28 to 31, and page 70, lines 1 to 12:
Why do you have to leave immediately? If you already had one case that lasted many months? --- … Because if I get to the second court, that court won’t let me go away, with anything, because it was about international trading. They would condemn me on the spot.
You mean you were guilty of those crimes? Is that what you’re telling me?---I really - - -
That you were breaking the law and … there was nothing wrong with charging you. They were – … charges that you were guilty of, is that what you’re telling me?---No, I was - - -
No?--- … it’s not about being charged or being convicted now.
No?---It’s not about that.
But when you - - - ?---Ah - - -
… but you were breaking the law, weren’t you?---… I wasn’t looking at the breaking the law.
b)page 81, lines 17 to 20:
… you may feel hard done by, because most other people who did trading online were not targeted, but that’s not the point, the point is that you were charged and you had committed offences by the sound of it?--- …
c)page 84, lines 9 to 19:
But you continued to trade for more than a year after [the ban on Forex trading]?--- Because you have … to finish your contracts. You have contracts on trading.
But you knew that by doing so, you were breaking the law?---I did not know - - -
By honouring … contracts, you were breaking the law? --- If you’re saying that I was breaking the law and I knew that I was breaking the law … sometimes you break the law, in order to do something, but I didn’t break the law in order to break the law, I did it because I was obliged to.
The applicant said that the Tribunal improperly focussed on whether the applicant had broken the law, which the applicant said was utterly irrelevant to the Tribunal’s task.
In relation to this ground, the applicant relied on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105; (2001) 22(11) Leg Rep 2; [2001] HCA 30, where McHugh, Gummow and Hayne JJ said:
68.… All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. (emphasis in original)
69.… Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. … The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. (emphasis in original) (footnotes omitted)
The Minister’s response to this ground was essentially that the applicant’s principal claim was that criminal charges had been brought against him for political reasons, and that claim was undermined if criminal charges had been brought against the applicant because he had engaged in criminal conduct. In that context, the Minister argued that the Tribunal’s impugned comments were not irrelevant moral judgments, but an entirely proper engagement with the case put by the applicant.
The Minister also asked the court to consider to consider page 84 of the transcript of the Tribunal hearing to the end of the page, where, following the extract the applicant relied on, the following exchange occurred:
Well you were obliged under a private contract, but of course if the law changes and honouring a private contract means breaking the law, you could simply say to all your customers, I’m sorry but I cannot fulfil my obligations under the contract, because by fulfilling these obligations - - - ?---Then I would have private complaints - - -
---(indistinct words)---Then I would have private complaints in court happening. Because those contracts they makes you pay the money back to the customers. …
Comments made by the Tribunal during a hearing, unless they are indicative of bias or another denial of natural justice, do not demonstrate jurisdictional error. A jurisdictional error in reasoning is to be found in the Tribunal’s reasons for decision, not in the transcript of the Tribunal’s hearing. A decision-maker can make all sorts of mistakes of law or fact during a hearing, and they will not establish jurisdictional error unless they find their way into the Tribunal’s reasons for decision.
It is helpful to set out the entirety of the paragraphs of the Tribunal’s reasons for decision which contain the impugned passages. They are as follows:
85.However, the Tribunal found the applicant to be an unreliable witness who gave contradictory evidence about the reasons why he left Iran and what may happen to him on return to the country. The Tribunal finds that the applicant engaged in some questionable behaviour with his [relative], and then he knowingly engaged in illegal currency trading by himself. As a result the applicant knew that he could not beat the further charges. (impugned passage emphasised)
…
108.The applicant may still be facing criminal charges, although more than five years have passed since he left Iran, in relation illegal currency trading. The applicant gave inconsistent evidence as to when currency trading was banned. It was either as early as 2007 (according to interview with the delegate) or as late as 2010 (according to his evidence at the hearing). Even if the ban was imposed as late as 2010, the applicant knew about the ban. He continued to do currency trading ostensibly to honour contracts with customers. The Tribunal considers that the applicant continued trading [illegally] in order to make money. The Tribunal considers that, if he were sued for breach of contract, the applicant could have argued that he had to breach them in order to avoid breaking the law. In any case, even if this would not have constituted a defence, the worst outcome would have been that the applicant might have paid some monetary compensation for breach of contract. (impugned passage emphasised)
…
121.The authorities know that the applicant is the [relative] of [Mr X]. The authorities may find out that the applicant has added an opposition activist to his LinkedIn profile. However, the applicant has never engaged in any anti-government activities (apart from his attendance at a Green Movement protest in 2009 together with hundreds of thousands of others). They may suspect that he has applied for protection and ask him whether he did so. The Tribunal considers that it will be evident from the fact that he is returning to Iran that the applicant’s application for protection must have failed. Given that the applicant is seeking to escape justice, to avoid a conviction for illegal share trading, the Tribunal finds that the authorities will conclude this was the reason for the applicant’s attempt to remain in Australia. They will not imputed him with a political opinion or accuse him of associating with the “Resistance” movement in exile or be concerned about the time he spent in Australia for any other reason (including the fact that he has a copy of the Expert Report). (impugned passage emphasised)
In paragraph 85, the Tribunal was basically saying that the applicant did not leave Iran because he faced politically motivated criminal charges, but because he faced criminal charges as a result of having engaged in criminal activity. In that context, the impugned passage was not irrelevant, much less mandatorily irrelevant, such that mention of it would constitute jurisdictional error.
In paragraph 108, the Tribunal was simply making the point that the applicant could have stopped currency trading after it was banned, but chose not to, and thus became liable to prosecution for criminal reasons, as opposed to political reasons. The applicant himself raised the issue of his unlawful currency trading, so it was an issue the Tribunal had to deal with. As such, it was not irrelevant for the Tribunal to say that the applicant exposed himself to criminal prosecution because he wanted to make money. The subtext was that politics had nothing to do with it.
In paragraph 121, the Tribunal was addressing what would happen upon the applicant’s return to Iran. It was reasonable and relevant for the Tribunal to say that, given the applicant’s previous conduct, the authorities in Iran would conclude that the applicant had stayed in Australia to escape prosecution for his crimes.
It is not accurate to say that the Tribunal, in the impugned passages, was simply making irrelevant, moral judgments. On the contrary, the Tribunal in the impugned passages was dealing with issues raised by the applicant, albeit not in the way the applicant would have hoped. None of the impugned passages are indicative of the Tribunal taking into account mandatorily irrelevant considerations, or misapprehending its function.
Ground 3 is not made out.
Ground 4
During the final hearing, counsel for the applicant formally abandoned ground 2 of the application.
Ground 5
The fifth ground of review in the application is:
The Second Respondent committed jurisdictional error by making an irrational finding, namely that the authorities were not interest[ed] in the applicant, in circumstances where it otherwise accepted that the Iranian security forces kept a file on him, that the Iranian authorities would be embarrassed by the release of a report held by him, and that the authorities knew he was related to [Mr X] ([an employee of a politician]).
The applicant expanded on this ground in paragraph 20 of his written submissions as follows:
Critical to the Tribunal’s decision was its finding that the Applicant “is not of any adverse interest to the authorities, except possibly in relation to the criminal charges for illegal currency trading” (T” [109]). However, that finding is logically irreconcilable with the following factual findings of the Tribunal:
(a)that the Applicant “would have had a file with the Iranian security services from 1986 (the year of his return to Iran) onwards” (T: [88]);
(b)that the Applicant has a copy of the Expert Report which “the Iranian authorities do not want disclosed” (T: [97]); and
(c)that the “authorities know that the applicant is the [relative] of [the person assassinated by Iranian agents]” (T: [121]), in circumstances where the Tribunal also appears to infer or assume that some harm may arise if [relative A] informed the authorities of that fact (T: [96]).
The finding that the authorities would not be adversely interested in the applicant is in paragraph 109 of the Tribunal’s reasons for decision. That paragraph is as follows:
The Tribunal finds that the applicant is not of any adverse interest to the authorities, except possibly in relation to the criminal charges for illegal currency trading. There are no other investigations or charges pending nor investigation or charges that may be “revived” when he returns to Iran. The Tribunal finds that a prosecution would be continued for breaking a law of general application and not for a Convention reason. On the evidence before it, the Tribunal finds that there is no differential impact in the way the law is applied and the law is not selectively enforced. (emphasis added)
The findings that the applicant said are inconsistent with that finding are in the following paragraphs, with the particular passages relied on by the applicant in bold. Paragraph 89 of the Tribunal’s reasons for decision is also included at this point, as the parties both relied on it.
88.It took the Iranian authorities another five years to kill [Mr Y] and [Mr X] in France. It was a well-organised effort and it was at least the second, if not third attempt on [Mr Y]’s life. At the time when the applicant was allowed to return to Iran [from France, where he lived as a child], the authorities would have assessed whether the applicant and his mother should be detained and interrogated. The Tribunal considers that the applicant would have had a file with the Iranian security services from 1986 (the year of his return to Iran) onwards.
89.In 2009 the applicant travelled to France to visit his [relative] whose last name is also [X]. Given that this was a time of large scale anti-government, Green Movement protests in Iran, the Tribunal considers it highly likely that the authorities would have investigated why the applicant was travelling to a Western country at that particular time. The fact that he was allowed to travel to France and not stopped on his return to Iran indicates that the Iranian authorities considered the applicant to be a supporter of the regime.
…
97.Another possible explanation for [Mr A]’s motivation in wanting to harm the applicant was that the applicant has a copy of the Expert Report which [relative A] and the Iranian authorities do not want disclosed. The Tribunal accepts that. However, the report remains unpublished more than five years after the applicant left Iran. The Tribunal is not satisfied that the authorities will have any reason to harm the applicant merely because he had a copy of this Expert Report and he may have taken a copy of it with himself when he left Iran. The applicant has given a copy of the report to the Australian authorities as part of his applicant for protection, but it does not disclose any state secrets or anything that would embarrass the Iranian authorities. Further, the Protection visa application process is confidential.
…
121.The authorities know that the applicant is the [relative] of [X, who was assassinated by Iranian agents]. The authorities may find out that the applicant has added an opposition activist to his LinkedIn profile. However, the applicant has never engaged in any anti-government activities (apart from his attendance at a Green Movement protest in 2009 together with hundreds of thousands of others). They may suspect that he has applied for protection and ask him whether he did so. The Tribunal considers that it will be evident from the fact that he is returning to Iran that the applicant’s application for protection must have failed. Given that the applicant is seeking to escape justice, to avoid a conviction for illegal share trading, the Tribunal finds that the authorities will conclude this was the reason for the applicant’s attempt to remain in Australia. They will not imputed him with a political opinion or accuse him of associating with the “Resistance” movement in exile or be concerned about the time he spent in Australia for any other reason (including the fact that he has a copy of the Expert Report).
The finding that the authorities had a file on the applicant since 1986 is not inconsistent with the finding that the applicant was not of any adverse interest to the authorities, because the Tribunal also found that the applicant was able to go to and from France in 2009 without being stopped on his return to Iran. These findings in conjunction meant that the Iranian authorities did not have an adverse interest in the applicant in 2009, although the authorities had a file on the applicant since 1986. Obviously, it is conceivable that the authorities would have a file on a person as at one date, because of the person’s activities at that time, but later form the view that the person was of no threat to the regime. There is no illogicality or irrationality between the findings at paragraph 109 of the Tribunal’s reasons for decision, on the one hand, and paragraphs 88 and 89, on the other.
A translation of the expert report mentioned in paragraph 99 of the Tribunal’s reasons for decision is set out at CB248 to CB250. The Tribunal indicated in its reasons for decision that it had read the expert report and found nothing in it that consisted of state secrets or that would embarrass the Iranian authorities. The Tribunal considered that the mere fact that the applicant had a copy of the expert report and had given it to the Australian immigration authorities did not give the Iranian authorities any reason to harm the applicant, even though they did not want the report disclosed. Those findings were consistent with the finding that the Iranian authorities had no adverse interest in the applicant. There is no illogicality or irrationality between the findings at paragraph 109 of the Tribunal’s reasons for decision, on the one hand, and paragraph 97, on the other.
The finding that the applicant’s relative was assassinated by the authorities does not of itself mean that the applicant would be of adverse interest to the authorities. In any event, the Tribunal went on in paragraph 121 of its reasons to explain why the applicant would not be of adverse interest to the authorities, based on his own activities, rather than his relatives’ activities. Obviously, a familial connection to an opponent of the regime may arouse suspicion, but any suspicion could be allayed by an examination of the relevant individual’s own activities. That is what the Tribunal found the Iranian authorities did in this case. Therefore, there is no illogicality or irrationality between the findings at paragraph 109 of the Tribunal’s reasons for decision, on the one hand, and paragraph 121, on the other.
Ground 5 is not made out.
Ground 6
The sixth ground of review in the application is:
The Second Respondent committed jurisdictional error by failing to make a finding as to whether the applicant would involve himself politically on return, in circumstances where it found that the authorities would then be interested in him in those circumstances.
This ground concerns paragraph 92 of the Tribunal’s reasons for decision, which is as follows:
The Tribunal finds that the authorities have known the applicant’s background for decades, since he first returned from France to Iran as a child. For as long as he himself was not (and is not at present) involved in political activities, his connection to [Mr X] or others who live in exile is irrelevant to the authorities.
At the hearing before this court, the Minister withdrew the last sentence of paragraph 34 and the whole of paragraph 35 of his written submissions. Those passages concerned s.5J(3) of the Migration Act 1958 (“the Act”), which provides that:
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, [subject to specified exceptions].
The Minister withdrew those submissions because s.5J(3) of the Act applies to applications for protection visas lodged on or after 18 April 2015, and the present application was lodged on or about 19 February 2013.
The applicant relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71 to say that the Tribunal was obliged to make a finding about what political activities the applicant would participate in upon his return to Iran, but failed to so, thereby falling into jurisdictional error.
The applicant argued that his future political activity was not irrelevant, given that:
a)the Tribunal accepted that he had participated in a Green Movement protest;
b)the Tribunal accepted that he would have preferred a more liberal government; and
c)his family generally opposed the current regime.
The applicant conceded, in effect, that he had not expressly raised a claim that he faced persecution because he would participate in anti-regime political activity, but said that it was a point that was sufficiently raised on the materials, including the Tribunal’s own findings. The applicant argued that, on the materials, there was a real chance that the applicant would re-engage with political activity.
The Minister submitted that the present case was readily distinguishable from S395. The Minister noted that the Tribunal found that the applicant had only participated in one Green Movement protest, in 2009: paragraphs 65 and 86 of the Tribunal’s reasons for decision. Notwithstanding his participation in that protest, the applicant told the delegate that he did not believe in the Green Movement, because they were an Islamic movement: paragraph 63 of the Tribunal’s reasons for decision.
I accept the Minister’s submissions on this point. The applicant had not been politically active in the past, except at one large rally, which he said he did not support in any event. In these circumstances, and in the absence of any express claim by the applicant, there was no need for the Tribunal to consider whether the applicant would participate in political activity in the future.
Ground 6 is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 17 April 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
4
0