CDY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 325
•17 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CDY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 325
File number(s): SYG 1209 of 2018 Judgment of: JUDGE DRIVER Date of judgment: 17 March 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in critical respects and other fears found not to be well‑founded – whether the Authority failed to consider the application of s 5J(3) of the Migration Act 1958 (Cth) considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5L, 36
Migration and Maritime Power Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth)
Cases cited: ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178
ANC17 v Minister for Immigration & Anor [2020] FCCA 707
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
AWL17 v Minister for Immigration and Border Protection [2018] FCA 570
AYY17 v Minister for Immigration & Anor [2017] FCCA 2886
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 11
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436
PQSM v Minister for Home Affairs [2020] FCAFC 125
Number of paragraphs: 68 Dates of hearing: 3 July 2019, 1 February 2021, 23 February 2021 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitors for the Applicant: Nikjoo Lawyers Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 1209 of 2018 BETWEEN: CDY18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
17 MARCH 2021
THE COURT ORDERS THAT:
1.The further amended application the subject of the grant of leave on 23 February 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 March 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister.
The applicant is a citizen of Iran of Arab ethnicity from Khuzestan Province. He arrived in Australia by boat on 14 July 2013 as an unauthorised maritime arrival.[1]
[1] Relevant Documents (RD) 151 and 191 at [1].
On 19 September 2016 the applicant lodged an application for a temporary protection visa (TPV).[2] On 16 June 2017, the delegate refused that application.[3]
[2] RD 48-90.
[3] RD 148-167.
On 29 March 2018, the Authority affirmed the delegate’s decision.[4]
Decision of the Authority
[4] RD 190-205.
Arab ethnicity
The applicant claimed that as an Arab he suffered from daily discrimination including in obtaining employment.
The Authority accepted the applicant experienced discrimination as an Arab, including in obtaining employment. However, the Authority also noted that the applicant had obtained employment in several capacities and also that he had been self-employed. Accordingly the Authority found that the level of discrimination the applicant suffered in the past did not amount to serious harm.[5]
[5] RD 194 at [14].
The applicant claimed in his arrival entry interview that he attended a protest rally at an oil company in Abadan in 2010. As a result he was detained and released after signing an agreement not to engage in further protests. He was later able to depart from Iran without difficulty on several occasions between June 2010 and June 2013.
Taking into account the applicant’s evidence regarding his employment, education and overseas holidays as well as relevant country information, the Authority was satisfied that the applicant did not face a real chance of serious harm now and in the foreseeable future because of his Arab ethnicity or because of his political opinion regarding the treatment of Arabs in Iran.[6]
[6] RD 194-195 at [15]-[17].
Iranian Intelligence Services
The applicant claimed to fear harm in Iran because of events involving the Iranian Intelligence Services (IIS).[7]
[7] RD 195 at [18].
The applicant claimed that he met two businessmen while he was on holiday in Thailand. The applicant claimed he was initially asked to facilitate the transport of cement from Iran to Iraq which the applicant said he could not do. After his return to Iran the two men asked him to assist them with the importation of sugar from the UAE to Iran. The applicant tried but was unsuccessful.[8]
[8] RD 195 at [13].
Following a meeting with his friends, the applicant claimed that he met an Iranian Intelligence Officer who asked him to ask his “overseas friends” to help him buy helicopters. The applicant took steps to ensure that this venture did not succeed. As a consequence, the applicant claimed that he was later abducted by the IIS and assaulted, accused of being involved with terrorists and questioned. He claimed that he was held in solitary confinement for about six days and tortured. In the end he agreed to cooperate and was released. The applicant then arranged for the purchase and importation of helicopters but he claimed that he was still detained at Intelligence Headquarters for 22 days.[9]
[9] RD 195-196 at [19]-[21].
In May 2013, the applicant was given a letter which stated he was to become a member of the Intelligence Agency. The applicant was concerned that he would be made to go to Syria or (more particularly) Aleppo and he decided to travel to Australia.[10]
[10] RD 195-196 at [18]-[23].
The Authority accepted that the applicant might have met with two businessmen in Thailand but, given the applicant’s previous employment and business history, found it difficult to accept that these businessmen would engage the applicant in a large import/export business involving cement, sugar or helicopters given his evidence that he had no ability to deal with such large transactions.[11]
[11] RD 196 at [26].
The Authority considered photographs and copies of emails provided by the applicant in support of his claims. It also considered the submissions of the applicant’s representative regarding this material. However, for the reasons given, the Authority doubted the authenticity of the documentary evidence and found its concerns outweighed the submissions made about those matters.[12]
[12] RD 196-197 at [27]-[32].
Taking into account information regarding the ISS, the Authority found it difficult to accept that an organisation of its size would require the assistance of the applicant to facilitate their purchase of helicopters or any other items at any time for any purpose.[13]
[13] RD 197-918 at [33].
The Authority also took into account the fact that the applicant was able to leave Iran without difficulty in June 2013 which indicated that he did not have an adverse profile with the Iranian authorities and is not wanted by the IIS or any other Iranian authority.[14]
[14] RD 198 at [34]
Having assessed all the evidence, the Authority did not accept the applicant was asked by any businessmen to assist them with importing and/or exporting goods to and from Iran or that he had been engaged by the IIS in any capacity. Accordingly, the Authority was satisfied that the applicant does not fear a real chance of harm now or in the foreseeable future in Iran from the IIS.[15]
[15] RD 198-199 at [35]-[38].
Return as a failed asylum seeker
The applicant claims to fear returning to Iran because the IIS know that he came to Australia and will assume that he sought protection.
The Authority took into account the findings it had already reached relating to the applicant’s evidence and that he left Iran in June 2013 on a valid passport without difficulty. The Authority noted the applicant’s evidence that he no longer had his passport and in those circumstances that the Iranian authorities might consider he had sought protection in Australia.
Having considered relevant country information, the Authority concluded that it was satisfied that the applicant did not have an adverse profile with Iranian authorities and, as such, did not face a real chance of harm on return or in the foreseeable future from Iranian authorities.[16]
[16] RD 199-200 at [39]-[43].
The Authority lastly considered the applicant’s claims cumulatively and whether his Arab ethnicity combined with his absence from Iran, involvement in a protest in 2010, and return on a temporary travel document would lead to him facing a real chance of harm. However, as it was satisfied that the applicant did not have the profile of a political activist and had not had any involvement with the IIS, the Authority found the applicant did not face a real chance of harm on cumulative grounds.[17]
[17] RD 200 at [44].
Having considered the applicant’s claims and evidence individually and cumulatively, the Authority was satisfied that he did not meet the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) (Migration Act) and did not meet s 36(2)(a) of the Migration Act.[18]
[18] RD 200 at [45].
The Authority also considered the applicant’s claims under the complementary protection provisions of the Migration Act and was satisfied that none of his claims gave rise to a real risk of significant harm for the purposes of s 36(2)(aa) of the Migration Act.[19]
[19] RD 200-201 at [46]-[52].
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 30 April 2018. The application has been amended several times since then, reflecting changes in the applicant’s legal representation.
By the time of the trial of this matter, following an adjournment of the hearing on 23 February 2021, the issues between the parties narrowed to a single issue. I granted leave for the applicant to file and rely upon a further amended application which raised the following ground:
1.The Authority made a jurisdictional error at paragraph 15 of its decision by failing to consider the application of s 5J(3) of the Migration Act 1958 (Cth) (Act).
a. The Authority found that “the majority of Arab Iranians do not come to the adverse attention of the authorities and the risk increases for Arabs who attempt to publicly assert their cultural or political rights”;
b. The Authority found that the Applicant claimed at an early interview that “he attended a protest rally at an oil company in Abadan in 2010 and that the protest was about Arabs and jobs”. As a consequence, the Applicant “was detained and released after signing a paper saying he would not do it again”;
c. The Authority found that, after the interview, the Applicant did not again refer to the protest;
d. The Authority found that the Applicant had not claimed to have been politically active aside from the protest or to intend to be politically active upon his return to his country of origin;
e. The Authority found that, in light of the foregoing and the Applicant’s travel overseas without incident, the Applicant did not “have the profile of an Arab active in asserting cultural or political rights such that he will face any harm now and in the foreseeable future”;
f. The Authority failed to consider whether the Applicant had modified his behaviour on account of the arrest and the increased risk of adverse attention to Arabs “who attempt to publicly assert their cultural or political rights”;
g. The Authority failed to consider whether, if the Applicant had so modified his behaviour, the Applicant would be altering or concealing his political beliefs contrary to s 5J(3)(c)(iii) of the Act;
h. The Authority’s failure to do so was material.
The only evidence I have before me is the book of relevant documents (court book) filed on 19 June 2019.
The applicant filed three sets of submissions in relation to the current ground of review on 25 January 2021, 1 February 2021 and 16 February 2021.
Counsel for the applicant and the Minister also made oral submissions at the adjourned hearing on 23 February 2021.
CONSIDERATION
The interpretation of s 5J of the Migration Act
The applicant makes the following submissions on the issue of statutory interpretation.
The effect of s 5J of the Migration Act was recently considered by the Full Federal Court, constituted by White, Bromwich and Burley JJ, in ADL17 v Minister for Immigration.[20] For present purposes, the following propositions may be reproduced from their Honours’ reasons for judgment. Their Honours summarised the effect of s 5J(3) of the Migration Act as follows at [23]:
Section 5J(3) is in the nature of a qualification of the expression “well‑founded fear of persecution” contained in subs (1), in that it provides that a person does not have such a fear 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. That qualification is itself qualified by the provision that the modifications which the person may make are not to have any of the effects mentioned in subparas (a), (b) or (c). As explained by Bromwich J in AWL17 v Minister for Immigration and Border Protection [2018] FCA 570 at [41], s 5J(3) has the effect that a reasonable modification of conduct can be expected provided that it does not go so far as to compromise the essential terms of the Refugee Convention. That is to say, reasonable steps by way of modification of behaviour to avoid a real chance of persecution can be expected, but not if doing so would have any of the effects listed in s 5J(3)(a)‑(c). If the modification would have such an effect, the reasonableness or otherwise of the steps by which the modification may be effected does not arise. An applicant is not expected to take those steps. Otherwise, the ability of an applicant to take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution is to be taken into account.
[20] [2020] FCAFC 178
It may be added, in passing, that it is unlikely to be controversial that s 5J(3)(c) of the Migration Act does not exhaust s 5J(3)(a) or s 5J(3)(b) of the Migration Act.[21]
[21] EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 11 at [54] and ANC17 v Minister for Immigration & Anor [2020] FCCA 707 at [24] cf AYY17 v Minister for Immigration & Anor [2017] FCCA 2886 at [44] contra
In ADL17, the Court also emphasised the relationship between s 5J(1) and s 5J(3) of the Migration Act in light of reasoning in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[22] The Court observed at [43]-[44]:
The absence of attention to this issue in the consideration of the appellant’s claim which culminated in the decision of the Authority is unfortunate because, as was noted by McHugh and Kirby JJ in S395 at [31], in a case of the present kind, “defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well‑founded fear of persecution”. Their Honours went on to say:
Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well‑founded and is causally related to the particular social group.
In our view, that reasoning is equally applicable to the statutory expression of the term “well‑founded fear of persecution” in s 5J. Apart from any other consideration, it is not easy to see how the assessment can be made of whether an applicant can take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, if the basis on which it is claimed that there is a well‑founded fear of such persecution has not been identified.
[22] (2003) 216 CLR 473
Their Honours reference to “the basis on which it is claimed that there is a well-founded fear of such persecution” requires at least the application of s 5J(1) of the Migration Act and, in cases where a particular social group is at issue, s 5L of the Migration Act.
In the present case, the applicant submits that the Authority has not, at [15] of its decision, asked whether the applicant has refrained from political activity asserting Arab rights on account of his having been arrested and warned off such activity, as well as the increased risk of adverse attention from the authorities should he persist in such activity. In other words, the Authority has not asked whether the applicant has altered or concealed his political beliefs contrary to s 5J(3)(c)(iii) of the Migration Act.
This omission, as ADL17 indicates, would be of no consequence on judicial review if there were no basis for a “well-founded fear of persecution” in s 5J(1) of the Migration Act, possibly when read with membership of a particular social group within the meaning of s 5L of the Migration Act. However, the applicant submits that there is such a basis in the present case.
Put more precisely, the error of the Authority in failing to apply s 5J(3) is said to have been material because it might realistically be the case that the Authority could find persecution within the meaning of s 5J(1) of the Migration Act: see, for example, PQSM v Minister for Home Affairs[23] at [120]-[143]. The applicant’s political activity as an Arab could constitute race or political opinion within the meaning of s 5J(1) of the Migration Act, even leaving aside whether politically active Arabs are a particular social group within the meaning of s 5L of the Migration Act.
[23] [2020] FCAFC 125
Further, the adverse attention referred to in the country information as identified by the Authority, together with the arrest and warning off of the applicant, could possibly ground a conclusion of a real chance of persecution or at least uncertainty as to such persecution. The latter could, instead of being dispositive, necessitate the application of the “what if I am wrong” test in accordance with Minister for Immigration and Multicultural Affairs v Rajalingam.[24]
[24] [1999] FCA 719
There is nothing to indicate that adverse attention toward politically active Arabs is confined to a particular part of the country.
Nor in the applicant’s submission is it dispositive that the applicant only mentioned his political activity at the earlier interview. The courts have emphasised caution in relying upon inconsistency and omission in claims of persecution.[25] In any event, the Authority must consider claims arising from its own findings of fact, such as those made by it at [15] of its decision.[26]
[25] MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56]-[57]; AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [28]
[26]AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18], [26]
The Minister deals with the applicant’s argument in the following way.
The applicant contends that the Authority fell into jurisdictional error in that it failed to consider whether the applicant had modified his behaviour in not asserting his cultural or political rights as an Arab due to the increased risk of adverse attention, and that it failed to consider whether, if he had modified his behaviour for his reason, he would be altering or concealing his political beliefs contrary to s 5J(3)(c)(iii) of the Migration Act. The applicant identifies [15] of the Authority’s reasons as exposing the asserted error.
At [15], the Authority was addressing for the purposes of its assessment of whether the applicant was a “refugee” (as defined in s 5H(1) of the Migration Act, and for the purposes of determining whether the applicant met the criteria for the grant of a protection visa under s 36(2)(a) of the Migration Act), the question of whether he faced a real chance of serious harm now and in the foreseeable future because of his Arab ethnicity. The Authority noted that DFAT[27] had assessed that the majority or Arab Iranians did not come to the adverse attention of the authorities, but that the risk increased for those who attempted publicly to assert their cultural or political rights. The Authority acknowledged that the applicant had claimed (at his entry interview, but not subsequently in his protection visa application) that he had attended a protest rally in 2010 “about Arabs and jobs”. The applicant had claimed that he had been detained and released after signing a paper saying he would not do it again.
[27] Department of Foreign Affairs and Trade
The Authority noted that the applicant had not, apart from the 2010 protest, claimed otherwise to have been politically active in asserting cultural or political rights in the past, and that he did not claim that he intended to be active in this regard if he returned to Iran. The Minister submits it is this observation of the applicant’s claims that is fair and accurate and provides a complete answer to the ground advanced by the applicant in this Court.
Section 5J of the Migration Act defines, and qualifies, what is a well-founded fear of persecution for the purposes of the Migration Act (which includes for the purposes of s 5H that defines “refugee”). Relevantly, s 5J provides:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
…
(3)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, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
That is, s 5J both defines the expression “well-founded fear of persecution” for the purposes of the Migration Act (subsection (1)) and excludes the application of that expression to certain people in particular circumstances (subsection (3)). In AWL17 v Minister for Immigration and Border Protection[28] at [41], Bromwich J stated of s 5J(3) that it operates “so that modification of conduct can be required if it does not go so far as to compromise the essential terms of the Refugees Convention, now set out in s 5H”. It followed that, pursuant to the provision, a person could not claim to have a well-founded fear of persecution “if reasonable steps could be taken to avoid a real chance of that persecution by modifying their behaviour, provided that the modification does not entail any of the matters listed in s 5J(3)(a), (b) or (c)”.
[28] [2018] FCA 570
In its terms, the exclusion or qualifier in s 5J(3) would only apply to persons found by the repository of power otherwise to have a well-founded fear of persecution (as defined). Prior to the introduction of s 5J in 2014 by the Migration and Maritime Power Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth) the Authority would have needed to have asked itself, for the purposes of whether the applicant was a refugee under s 36(2)(a), whether the applicant had, and in the future would, modify his conduct due to a fear of persecution. That is because the High Court determined in the context of the meaning of “refugee” under Article 1A of the Refugees Convention (which was the applicable definition under s 36(2)(a) as it then was) that such an inquiry was necessitated in determining whether a person had a well-founded fear of persecution.[29] However, since 2014, what constitutes a well-founded fear of persecution is now prescribed by the Migration Act. As Bromwich J stated in AWL17, at [40]:
Appellant S395 was addressed by Parliament legislatively, not to curtail that case in its terms but, rather, to confine the scope of its potential application to the sort of case in which it arose. The current manifestation of that legislative response is contained in part of s 5J , a provision which defines in some detail the Refugees Convention concept of a “well-founded fear of persecution”, being an aspect of what is necessary for refugee status and the grant of a protection visa under ss 5H(a) and 36(2)(a) respectively.
[29]Appellant S395/2002
What is clear from [15] of the Authority’s reasons is that it was not satisfied that the applicant had a well-founded fear of persecution under s 5J(1), because there was not a real chance that he would suffer serious harm for reason of his Arab ethnicity. The Minister submits that there was no requirement in the present case for the Authority to enquire for the purposes of s 5J(1) whether the applicant would modify his behaviour to avoid harm, because it is clear from [15] that the applicant neither claimed in the recent past to have been politically active as an Arab, nor that in the future that he would desist from such political activity for reason of wishing to avoid the adverse attention of the authorities. He also made no claim that he wished, or intended, to engage in such activity if he returned. Neither did the question of conduct modification arise on the material before the Authority. This is said to be a different case factually from a case such as EUW19, in which the Authority found that the applicant could avoid harm on account of the perception that he had lived in the west, by “keeping a low profile”. This Court found that the Authority in that case had fallen into error in finding that it would be reasonable for the applicant not to publicise that he had lived in a western country, in light of the fact that the indications of the cultural associations a person might have with a country where they had lived for several years was not reasonable, if at all possible, to conceal.
In the present case the Minister submits that there was no claim, either expressly made or arising squarely on the materials, that the applicant wished to participate in political activity upon return but was prevented from doing so, or was disinclined to do so, because of the threat of adverse attention such action might attract. The Authority did not have to enquire of the applicant his reasons for not having made such a claim. It was for the applicant to assert his claims.[30]
[30] Migration Act, s 5AAA
Having concluded that the applicant did not have a well-founded fear of persecution under s 5J(1)(c), it is said to have been unnecessary for the Authority to consider under s 5J(3) whether the applicant should be taken not to have a well-founded fear of persecution.
I permitted the applicant to rely upon submissions in reply filed on 19 February 2021 in the following terms.
The Minister perceives a “complete answer” to the applicant’s case. Like the word “plainly”, this expression may, despite earnest use by counsel, fail to dispel doubt. One such occasion should be the present case.
The Minister observes that s 5J(3) of the Migration Act only applies to “persons found by the repository of power otherwise to have a well-founded fear of persecution”. The statement is uncontroversial, as it readily emerges from the text and judicial consideration of s 5J(3).
However, it is said not to follow that, unless there is first a finding by the repository as to the presence of persecution, no jurisdictional error based on s 5J(3) of the Migration Act can arise. The repository could lawfully rely upon the relationship between persecution and s 5J(3) to decide a case with the following alternatives. The repository could decide:
(a)persecution was absent and, therefore, s 5J(3) of the Migration Act did not arise;
(b)persecution was present but permissible modification under s 5J(3) was enlivened; or
(c)persecution was present and impermissible modification under s 5J(3) arose.
Of course, only the third of these alternatives could ultimately lead to a protection visa.
The applicant contends that there is one thing, however, the repository must not do. The repository must not leave open the possibility of persecution and also not decide whether and how modification under s 5J(3) operates. That is said to have been what has happened in the present case.
The applicant concedes that if a claim of persecution has not been raised or does not emerge on the traditional tests, there can be no error under s 5J(3) of the Migration Act. If there is no basis in the applicant’s case for a particular form of persecution, then the alternatives described in this reply at [6] cannot arise.
The applicant contends, however, that the difficulty for the Minister is that the foregoing does not describe the present case. What constitutes the applicant’s case for persecution may emerge from the repository’s own findings of fact. In the present case, the Authority accepted that the Applicant, being an Arab, had:
(a)engaged in protest about Arabs and jobs;
(b)been detained; and
(c)been released after agreeing in writing not to engage in such protest again.
At this point, the Authority simply observes that the applicant does not otherwise “claim to be have been politically active in asserting cultural rights or political rights in the past and he does not claim that he intends to be active in this regard if he returns to Iran”[31]. This is said to be insufficient. The Authority’s own findings are said to raise the question, and leave unanswered, why the applicant had subsequently refrained from and lost the intention to protest.
[31] RD 194 at [15]
The applicant contends it was not necessary for him specifically to explain the “why” in a manner relevant to s 5J(3) of the Migration Act. The Authority was left in a position to endeavour either to ascertain the presence of any persecution or determine the status of any modification under s 5J(3) of the Migration Act. It did neither.
Resolution
The issue between the parties concerns the Authority’s statement in its reasons at [15][32] where the Authority stated:
In assessing whether the applicant faces a real chance of serious harm now and in the foreseeable future because of his Arab ethnicity I have had regard to the following. DFAT assesses that the majority of Arab Iranians do not come to the adverse attention of the authorities and the risk increases for Arabs who attempt to publicly assert their cultural or political rights.[33] The applicant has claimed in his Arrival Entry interview that he attended a protest rally at an oil company in Abadan in 2010 and that the protest was about Arabs and jobs. As a result he was detained and released after signing a paper saying he would not do it again. He made no reference to this incident in his written claims or in his TPV interview. With the exception of this protest the applicant does not claim to be have been politically active in asserting cultural rights or political rights in the past and he does not claim that he intends to be active in this regard if he returns to Iran. After his involvement in this protest he has been able to depart Iran legally on a valid passport through immigration and security checks without undue difficulty on at least two occasions, perhaps three occasions - when he travelled overseas to Thailand in June 2010, to Dubai in January 2011 and to Malaysia in June 2013. In my assessment, that the applicant was released after signing an agreement not to engage in further protests and later was able to depart Iran without difficulty indicates that he does not have the profile of an Arab active in asserting cultural or political rights such that he will face any harm now and in the foreseeable future in Iran.
[32] RD 194
[33] DFAT, "Country Information Report - Iran", 21 April 2016
Viewed in isolation, the Authority’s closing sentence at [15] above appears concerning because of the lack of analysis of whether the applicant had been subjected to harm amounting to persecution by the Iranian authorities following the protest he was engaged in, and whether his forbearance from future such demonstrations or protests was an impermissible modification.
In an appropriate case, the consideration of s 5J(1) and (3) in respect of a future risk of harm amounting to persecution may require an analysis of past events on the same criteria.
This, however, is not that case. The applicant made no claim for protection based upon the single protest he was engaged in and neither did he claim any political activity that he had given up. The simple fact of the protest and the consequence of it was dealt with by the applicant solely at his entry interview, the record of which is relevantly reproduced at CB 30. Relevantly, the applicant was asked two questions. Question 34 asked whether the applicant had been involved with any political group or organisation and he answered in the negative. Question 35 asked whether the applicant had been involved in any protests against the government and he answered in the affirmative. The details provided in a box below the questions and answers establish that the applicant engaged in a protest at an oil company because of the difficulty in Arabs finding jobs, presumably with the oil company. The outcome referred to by the applicant was that he signed a paper stating that he would not do it (protest) again.
These were the simple facts addressed by the Authority at [15] of its reasons. There was no claim of persecution made by the applicant arising out of these facts, nor did an issue of persecution squarely arise from the material.
It follows that I agree with the Minister that there was in this case nothing for the Authority to address and resolve in relation to the protest event and the consequence of it, in the context of s 5J(3).
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 17 March 2021
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