CQO16 v Minister for Immigration
[2020] FCCA 1711
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQO16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1711 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (Class XD) visa – whether the Tribunal failed to consider a claim that arose from the materials – whether the Tribunal failed to consider that the Applicant faced a real risk of harm on the basis of an imputed political opinion – whether the Applicant had committed a crime that was ‘inherently political’ in nature – whether the reasoning of the Tribunal was illogical, irrational or unreasonable in characterising the risk of torture as ‘remote’ – reasoning of the Tribunal was illogical, irrational or unreasonable – decision therefore infected with jurisdictional error – matter remitted to the Tribunal – costs order made. |
| Legislation: Migration Act 1958, s.36(2)(aa) |
| Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] 261 FCR 503 |
| Applicant: | CQO16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 2006 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 11 May 2020 |
| Date of Last Submission: | 11 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Grinberg |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Hosking |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The decision of the Administrative Appeals Tribunal made on 2 September 2016 in matter number CLF2013/179816 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2006 of 2016
| CQO16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 2 September 2016. In that decision, the Tribunal set aside the decision to refuse to grant the Applicant a Protection (Class XA) visa and substituted a decision to refuse to grant the Applicant a Protection (Class XD) visa (‘visa’).
For the reasons that follow, I have decided to allow the application for review and remit the matter to the Tribunal for reconsideration.
Background
The Applicant is an Iranian national. He arrived in Australia as an unauthorised maritime arrival on 4 May 2013. He applied for the Protection (Class XA) visa on 15 July 2013. The Applicant’s claims for protection are set out in a statutory declaration made on 3 July 2013 (Court Book 52 – 54).
The application for the Protection (Class XA) visa was refused by a delegate of the Minister (‘delegate’) on 16 December 2014.
On 5 January 2015, the Applicant sought review of the delegate’s decision before the Tribunal.
The Applicant subsequently appeared at a hearing before the Tribunal on 26 August 2016, where he gave evidence and presented arguments. He was assisted by a representative and an interpreter in the Persian and English languages at the time.
On 2 September 2016, the Tribunal set aside the decision to refuse to grant the Applicant a Protection (Class XA) visa and substituted a decision to refuse to grant a Protection (Class XD) visa (‘Decision’).
On 19 September 2016, the Applicant filed an application for judicial review of the Decision with this Court. The Applicant also filed an affidavit in support of the application. He was unrepresented at the time of filing his application.
On 8 January 2020, the Applicant filed a Notice of Address for Service indicating that he had obtained legal representation with Victoria Legal Aid.
On 14 January 2020, the Applicant filed an amended application (‘Application’).
On 28 April 2020, the Applicant filed written submissions and an affidavit of his solicitor Natalie Young, which annexed an Australian Department of Foreign Affairs and Trade Country Information Report on Iran dated 21 April 2016. The affidavit was filed in two parts.
On 4 May 2020, the Minister filed written submissions.
Relevant Principles
Both parties were in agreement as to the relevant principles, though each emphasised different aspects at times.
Insofar as the grounds below assert illogicality, irrationality or legal unreasonableness, the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] set out a comprehensive statement as to the relevant requirements and principles. The Full Court stated:
‘Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.’
In respect of claims the Tribunal is required to consider and whether a claim emerges from the material, the relevant principles are conveniently summarised in the decision of AYY17 v Minister for Immigration and Border Protection [2018] 261 FCR 503 at [18] (‘AYY17’) as follows:
‘The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
...
As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.’
Where the Tribunal fails to deal with a ‘substantial, clearly articulated argument relying upon established facts’ or a claim that clearly emerges from the material, failure to deal with the claim may constitute jurisdictional error, if the claim is one which would or could be dispositive of the review: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at [24].
The Application for Review
The Application contains three grounds of review. The Applicant dealt with Ground 2 first in the hearing before me. It seems convenient to deal with the claim that way so I will follow that order.
Ground 2
The second ground of review is as follows:
‘The decision of the Tribunal was affected by jurisdictional error because the Tribunal failed to consider the applicant's claim to fear torture and mistreatment on the basis of an imputed political opinion.
Particulars
a. A claim that clearly arose from the applicant's claims, findings made by the Tribunal, and material before the Tribunal, was that there was a real chance the applicant would face harm on return to Iran on the basis of an imputed political opinion.
b. The Tribunal accepted the applicant's claim that he had pushed a Basij member to the ground and to have been threatened and summonsed to court as a result.
c. The Tribunal accepted that, upon return to Iran, the applicant would be, arrested, prosecuted, convicted and imprisoned for the crime of defying a state agent.
d. The Tribunal accepted that torture occurs in prisons in Iran and referred to country information indicating that the politics of a prisoner could influence whether a prisoner was subject to torture in an Iranian prison.
e. The Tribunal failed to consider whether the applicant faced a real chance of persecution on return to Iran on the basis of an imputed political opinion either when he was imprisoned, or after his release from prison.’
At the outset, the Applicant accepted that this claim was not expressly raised before the Tribunal. He says, however, that it is a claim that arises squarely from the materials. The Applicant’s claim under this ground of review is that the Tribunal failed to consider a claim that arose from the materials. The claim said not to have been considered is a claim that the Applicant would be subjected to torture and mistreatment on the basis of an imputed political opinion.
In order to succeed under this ground of review, the Applicant must show, inter alia, two things. First that the claim clearly arose from the material in the manner described in AAY17. Second, assuming he can show that the claim arose, that it was then not dealt with by the Tribunal.
In respect of this ground the Applicant relied on the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997)144 ALR 567 (‘Guo’) . The Applicant contended, on the basis of Guo that, inter alia, an imputed political opinion can exist regardless of the political opinion actually held or engaged in by an applicant.
The Applicant contends that the imputed political opinion claim arises from, among other things, the nature of his claims, the material before the Tribunal and from the Tribunal’s own findings. In support of this submission, the Applicant points, inter alia, to the following:
a)Paragraph [33] of the Decision. That paragraph records, inter alia, the Applicant speaking about the altercation with the member of the Basiji, and that as a result, he would be tortured when in remand. The paragraph records that the Applicant indicated that he feared that the whole state security apparatus and system could harm him. Further, in that paragraph, the Tribunal accepted that the Applicant would be arrested on his return to Iran, that he would be detained and that he would most likely be convicted. The Tribunal also accepted that the Applicant’s fear arises from the system, but does not accept his certainty of being mistreated or facing torture.
b)Paragraphs [36] and [37] of the Decision. In these paragraphs, the Tribunal, among other things, accepted that the Applicant could face serious harm, in particular, a threat to his liberty by way of extended imprisonment for both his assault of a member of the Basiji, as well as not appearing before Court when summonsed. The Tribunal also recorded the relevant Iranian law that applies to any form of attack or resistance carried out knowingly against state agents.
c)The Tribunal’s acceptance that torture occurs in prisons in Iran: see paragraph [49] of the Decision.
The Applicant also relied on the way in which the claim in respect of imputed political opinion was recorded by the delegate, to support his submission that the imputed political opinion claim clearly arose from the materials. The delegate recorded a claim that the applicant feared harm because of his imputed political opinion (see Court Book 93). The matter was therefore an issue and the Tribunal was required to consider it: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592.
Finally, the Applicant submitted that the conduct constituting the offence under Iranian law (defying a State agent) was conduct that was inherently political.
In light of the above, the Applicant contends that not only did the claim clearly arise from the materials, but the Tribunal plainly failed to consider it.
In order to assess these matters, it is useful to understand the nature of the Applicant’s claims as presented over time.
First, to state the obvious given the concession made by the Applicant at the hearing, the claim now being advanced was not one that had previously been expressly made. So much can be seen from the application for the visa (see Court Book 19 – 22) and the statutory declaration submitted with that application (see Court Book 52 – 54).
Second, the Applicant emphasised that the claim was apparent on the face of the materials because it was considered by the delegate. That submission requires the Court to consider what the delegate did.
The delegate recorded that there was a claim related to a Convention reason. At Court Book 93, the delegate recorded the following in the delegate’s reasons:
‘IS THE HARM FEARED FOR A CONVENTION REASON?
Evidence and Reasons
It is claimed that the applicant fears he will be seriously harmed by the authorities if he were to return to Iran for the reason of his imputed political opinion. I am satisfied that this is directly related to the political opinion convention nexus’.
At face value, the above appears to be recognition of a claim that is made, or has arisen, that relates to imputed political opinion. It is important, however, to delve deeper into the delegate’s reasons to understand the substance of the claim advanced. At Court Book 94, the delegate set out in a more fulsome fashion the claim relating to what it described as the imputed political opinion claim that was ‘submitted’ (that is, expressly made) by the Applicant:
‘Fear of the Basij on account of imputed political opinion
It is submitted that the applicant would be at risk of harm if he returns to Iran for the reason of his imputed political opinion having contravened Islamic behaviour as he was seen in public listening to loud music, wearing jean (sic), T-shirt and having a stylish hairstyle. As mentioned above in Part A Section 9, I do not accept the applicant has come to the adverse attention of the Iranian authorities as claimed.’
What is apparent from the paragraph above is the following. The Applicant made an express claim that he was at risk of harm. Further, the claim to fear harm, however, arose from the Applicant having been ‘seen in public listening to loud music, wearing jean, T-Shirt, and having a stylish hairstyle’. The delegate was dealing with a claim that is different to the one now advanced.
I pause to observe, for completeness, that any claim in relation to harm the Applicant feared he would suffer because of his Western dress was considered by the Tribunal and rejected: see paragraph [42] of the Decision at Court Book 142 to 143.
Further to the above, it is also apparent from the delegate’s reasons that what the delegate said in relation to any political activism of the Applicant was consistent with what the Tribunal found. For example, at Court Book 94, the Delegate stated the following:]
‘The applicant has no history of political activism and he has not been arrested or accused of having an anti-government opinion.’
There is then the argument advanced by the Applicant that this claim clearly arose on the material because the offence committed by the Applicant against a State agent is one that is ‘inherently political’. An assessment of this submission requires close consideration of the incident between the Applicant and the Basiji.
The altercation between the Applicant and the Basiji is recorded at paragraph [29] of the Decision (Court Book 139) and is as follows:
‘The applicant recalled the events which led to his departure from Iran as beginning on a Thursday night in early December 2012. While he was driving his unmarked taxi with a friend in the passenger seat he was stopped at a Basij checkpoint. Two Basijis in uniform came to his car, they asked him to tum off the engine and to get out of the car, to which both he and his friend acquiesced. One Basij officer checked the car, while the second Basij was looking at the applicant in a 'bad way'. The inspection of the car passed with no issue. So the inspector walked away, but the other one started speaking harshly to him beginning with, 'Why is your music so loud?' The Basiji then began talking to the applicant in a 'bad tone', picking on his appearance, which at the time included jeans with a tear and at-shirt. Then he started insulting the applicant calling him names including 'son of a bitch' and other terms. The applicant felt that he was being insulted for no specific reason so he asked, why are you insulting me and my family to which the Basiji said that he deserved it, that he was a member of this government while the applicant is a burden to society, 'you deserve this treatment'. At this time the Basiji was holding the applicant's t-shirt around the collar and pulling it. The insults and physical engagement escalated to the stage where the applicant lost control, pushed him (in the statutory declaration he claims that he punched him in the face) leading to the Basiji falling down. At that moment the friend sat in the car, started the engine while the applicant jumped in the passenger seat and they then drove away. For a while the Basij followed them on a motorbike but at some point in time they stopped pursuing them. The applicant has no idea why they stopped. I asked the applicant about the discrepancy over the physical altercation, namely whether he had pushed or punched the Basiji, to which he responded that he had pushed him and that the statutory declaration must have had a mistake in its translation. I accept that the applicant was stopped at a checkpoint, asked to exit his car, spoken to harshly and gripped at the collar of his t-shirt. I also accept that the applicant reacted by pushing the Basiji with such force that he fell over, that he then fled the scene and was chased until they got away.’
When that paragraph is looked at, it is apparent that the Applicant’s own evidence is that he did not push the Basiji officer for political reasons. Rather, his evidence was that the altercation started with the Basiji questioning the Applicant’s loud music, and questioning his appearance in jeans and a T-shirt. This then escalated to family insults, the Basiji holding the Applicant’s collar, and eventually the Applicant pushing the Basiji officer.
It is to be observed that there is nothing inherently political about these events which the Applicant has himself described. If anything, it supports a view that the Applicant was the subject of attention from the Basiji because of his loud music, dress and appearance.
The observations above support what is a broader observation to be made about what is said to be the ‘inherently political’ nature of the incident. That is, there might be any number of reasons why a person may resist an officer of the Basiji. Simply resisting a member of the Basiji, or in a local context, a member of the police force, does not mean that the person engaged in the resistance is engaged in a political act, or political activism.
There is then the nature of the offence itself. The Applicant was charged with a single offence. The Tribunal described it at paragraph [50] of the Decision as a ‘low level’ crime.
There are then the findings made by the Tribunal as to the Applicant’s political activism in Iran and Australia. The Tribunal found that the Applicant had not been politically active. At paragraph [27] of the Decision (see Court Book 139), the Tribunal stated as follows:
‘During the Green Revolution he was driving his taxi but kept to himself, seeing the chaos, but choosing not to participate. Neither before nor after has he ever participated in political activism, in Iran or while in Australia. He claims never to have been arrested or had problems with the Basij before the encounter central to this case. Upon being asked why he chose to wear Western clothes he responded that he likes that way of dressing and suggested that he wasn't prepared to while away his youth sitting at home without enjoying himself. I accept these claims as fact and surmise that his preference for wearing Western clothing was never for political reasons.’
Finally, in respect of these matters, the Applicant had the benefit of representation at the hearing. Notwithstanding that assistance, no submissions were received or claim made that he would be imputed with a political opinion because of the altercation with a member of the Basij. The Court therefore need not be ‘more willing to draw the line in favour’ of the Applicant: Kasupene v Minister for Immigration & Citizenship ([2008] FCA 1609 at [21].
For all of the above reasons, I find that the claim sought to be advanced does not clearly emerge from the material. I have set out in some detail the development of the Applicant’s claims, the way in which those claims were recorded and the nature of the incident with the Basiji. It is apparent, on the Applicant’s own evidence, that the altercation arose because of the Applicant’s loud music, western dress and appearance. If I were to accept the Applicant’s contention, the Tribunal would be required to consider every incident with a member of the Basiji, for any reason, as giving rise to a claim that an applicant might be imputed with a political opinion.
For all of the above reasons, I would dismiss Ground 2 of the grounds of review.
Ground 1
The first ground of review in the Application is as follows:
‘The decision of the Administrative Appeals Tribunal (Tribunal) was affected by jurisdictional error because the Tribunal's reasoning was illogical, irrational or unreasonable and/ or the Tribunal failed to give proper, genuine, or realistic consideration to the applicant’s claim that he faced a real change of persecution if return to Iran.
Particulars
a. The applicant claimed that he would be seriously harmed on return to Iran as a result of an incident in 2012 where he pushed a Basiji officer to the ground at a checkpoint, and then fled.
b. The Tribunal accepted that this incident occurred and that, as a result, on return to Iran, the applicant would be arrested, imprisoned and convicted for the crime of defying a state agent.
c. In assessing whether the applicant faced a real chance of persecution on return to Iran the Tribunal relied on country information which related to the treatment on return to Iran of those who were involved in the 2009 protests in Iran.
d. On the basis of this article the Tribunal found that because the applicant had not engaged with political activism, he did not face a real chance of serious harm in the reasonable and foreseeable future were he to return: CB 142 [41].
e. It was illogical of the Tribunal to base its conclusions about the effect of the incident the applicant was involved in in 2012, on an article that related to the 2009 protests in Iran.
f. The article relied on the by the Tribunal provided an assurance that those who had not committed any crime would not be harassed on their return.
g. It was illogical of the Tribunal to conclude that the article applied to the applicant's situation in circumstances where the Tribunal accepted that, upon return to Iran, the applicant would be convicted of the crime of defying state agents.
h. Alternatively, the Tribunal failed to consider that the applicant had committed a crime and that he would be impugned with a political opinion contrary to the regime and/or state agents as a result.
i. Further, on the basis of a reported reassurance of safety provided by the Deputy Foreign· Minister to Iranians abroad who have 'not committed any crime', the Tribunal illogically concluded that the applicant as someone who had ‘not engaged with political activism’ did not face a real chance of serious harm.’
It is accepted that the Tribunal’s review function requires it to consider all claims made by an applicant and the essential components of the claim.
The Minister did not cavil with the principles set out earlier, but in respect of this ground, emphasised that an applicant who seeks to challenge a finding on the ground that it is irrational, illogical or unreasonable must meet a high standard. If reasonable minds could differ as to the conclusions to be drawn, illogicality, irrationality or unreasonableness do not arise simply because one conclusion has been preferred over the other: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at[59], citing Minister for Immigration and Citizenship v SZMDS (2010)266 ALR 367 at [131].
Under this ground of review, the Applicant takes issue with paragraph [41] of the Tribunal’s decision. That paragraph is as follows:
‘As the applicant has sought asylum in a Western country the question is whether he faces serious harm as a result of having impugned Western ideals and political views contrary to the regime. There is country information that suggests people who had been involved in the 2009 post-election protests would be prosecuted, but the applicant stated that he had not been involved. Country information suggests that those who believe they have been impugned with political opinion contrary to the regime, unless they have committed any crime, will not be harassed upon their return. As the applicant has not engaged with political activism I find that he does not face a real chance of serious harm in the reasonable and foreseeable future was he to return.’
Critical to the way in which this ground was advanced by the Applicant is the Country Information that is referenced in paragraph [41] of the Decision. The footnote to that Country Information discloses that it is an article. A copy of the article was set out at Court Book 130. It is a brief one and a half page article. The article is entitled ‘Intelligence Ministry Reviews Cases of Iranian Expats for Return’ (‘Expats Article’). Set out below is an extract from the Expats Article:
‘Iran has established a secretariat for the Committee for the Return of Expat Iranians, inside Iran’s Intelligence Ministry, the Deputy Foreign Minister for Consular, Parliamentary, and Iranian Expatriate Affairs Hassan Qashqavi said in an interview with Tadbir News Website. “The Committee’s meetings are regularly held at the Intelligence Ministry, and the Intelligence Ministry has achieved good results in this area,” Mr. Qashqavi told Tadbir, adding, “Reports of these meetings will soon be published.”
Immediately after his election, Iranian President Hassan Rouhani asked Iran’s Intelligence and Foreign Ministries to facilitate the return of Iranians living abroad.
In November 2013, Qashqavi had announced the formation of a committee to facilitate the return of political activists outside Iran to their home country. Qashqavi said at the time, “The reason many Iranians do not return to Iran is the [fear] induced by Iranian opposition groups abroad. In my opinion, many of these fears are self-made. This fear has no root.” Earlier, Iran’s Intelligence Minister Mahmoud Alavi had also said, “We guarantee that any individual who has not committed a violation will not have a problem,” adding, “We will resolve the unfounded fear of those who did not commit any crimes during the 2009 events.”
A large wave of emigration followed the violent crackdown against protesters in the aftermath of the 2009 disputed presidential election. Even so, not all emigrations from Iran have been politically motivated. With the growing economic and social problems in Iran, many have left to escape the uncertainty and the lack of a positive outlook for their and their families’ future.
“Every year, about 150,000 of our elite emigrate from Iran, costing our economy $150 billion,” said Iranian Minister of Science and Technology Reza Faraji Dana earlier in January 2014. According to the International Monetary Fund, Iran has the highest rate of brain drain in the world: “For the Islamic Republic of Iran, the fraction of the population with a tertiary education living in OECD countries is around 25 percent.”
Qashqavi said last month that other than individuals “with judicial cases,” all Iranians living abroad are “free” to travel back and forth to Iran. He also provided an email address where Iranians could write to inquire about their travel permission status from the Foreign Ministry. In July 2013, Iran’s Prosecutor General and Spokesperson for the Iranian Judiciary Gholamhossein Mohseni Ejehi said at a press conference that everyone is allowed to return to Iran, but not everyone is allowed to leave the country. “If an individual commits a crime and leaves the country, or if he commits a crime against the state abroad, as soon as he returns to the country, he will be arrested by the judicial system.” Regarding individuals who were involved in the 2009 post-election events, which Mr. Ejehi referred to as “the 2009 Sedition,” he said, “If these individuals return to the country, they will be prosecuted immediately upon arrival.”
Hassan Qashqavi is a familiar figure within Iran’s Foreign Ministry who has seemingly made an easy transition from working in Mahmoud Ahmadinejad’s cabinet in the same position after serving as Spokesperson for the ministry for several years, to working in Hassan Rouhani’s cabinet. Many remember him as the public official who welcomed Ali Vakili Rad back to Iran in May 2010, after serving 18 years inside a French prison for the 1991 murder of former Iranian Prime Minister and opposition Leader Shapur Bakhtiar. He was also the official who in July 2010 welcomed a man by the name of Shahram Amiri, whose complicated case of disappearance, defection to the US, and voluntary return to Iran made headlines. After Qashqavi hosted a formal state reception for Amiri, the latter’s whereabouts have remained unknown.’
The Applicant claims the Tribunal’s reasoning in paragraph [41] of the Decision is illogical or irrational for various reasons including the following:
a)The Tribunal relied on the Expats Article. The Expats Article deals with events in 2009. The Applicant was the subject of an entirely separate incident in 2012;
b)The Tribunal ignored its earlier finding that the Applicant had committed a crime in Iran, and the crime is one that is inherently political;
c)The Applicant’s claim was that he would be imputed with a political opinion and that he had committed a crime. The Country Information relied on by the Tribunal, however, only dealt with persons who had been imputed with political opinion contrary to the regime, but did not deal with those who had committed a crime;
d)The conclusion drawn by the Tribunal that because the Applicant had not engaged with political activism he did not face a real chance of serious harm, could not be properly drawn from the Expats Article or from the findings of fact made by the Tribunal;
e)Alternatively, the Tribunal failed to consider what harm the Applicant may face if he returned to Iran as a person who had committed a crime and who would be imputed with a political opinion.
When the Expats Article is properly considered, it is not an article that is limited to the events of 2009 or to persons who fled Iran as a result of the events of 2009, as contended for by the Applicant. It is, in my view, an article that deals with matters broader than that. So much is clear from the following:
a)The Expats Article refers to the establishment of the Committee for the Return of Expat Iranians. This appears from the text to be a broad based committee. It is not limited to examining the return of ex-patriates who may have fled because of the events in 2009 (paragraph 1 of the Expats Article);
b)The statement in the article attributed to the Iranian President refers to his request to facilitate the return of Iranians living abroad. The statement is not limited to Iranians who fled in 2009;
c)Paragraph 4 of the Expats Article commences with a description of emigration that followed the disputed election of 2009, but then goes further. Critically, at the end of that paragraph, there is an express reference to Iran’s economic and social problems and a recognition that ‘many have left to escape the uncertainty and the lack of a positive outlook for their and their families’ future’;
d)Paragraph 5 of the Expats Article refers to the loss of 150,000 persons every year, costing the Iranian economy $150 billion. Paragraph 5 also refers to Iran having ‘the highest rate of brain drain in the world’.
Given the above, I do not accept the contention advanced by the Applicant that the Expats Article deals only with the events of 2009. It is clearly much broader than that, and deals with the circumstances that may confront any returnee to Iran. It was therefore open to the Tribunal to regard the Expats Article as being relevant to whether the Applicant would face a real chance of serious harm on return. It was not illogical or irrational for the Tribunal to have regard to the Expats Article.
The other criticism made by the Applicant under this ground is that paragraph [41] of the Decision fails to deal with the claim that the Applicant faced a serious chance of harm, or a real risk of significant harm, because he was a person who had committed a crime. To assess this aspect of the Applicant’s submissions it is necessary to examine closely not only paragraph [41] of the Decision but also the Tribunal’s reasons as a whole.
Before doing so, however, it is appropriate to consider the subject matter to which paragraph [41] of the Decision is directed. The opening sentence of paragraph [41] is of particular relevance in this respect. It reads ‘As the applicant has sought asylum in a Western country the question is whether he faces serious harm as a result of having impugned Western ideals and political views contrary to the regime’. The Tribunal then goes on to examine the information contained in the Expats Article. These two matters taken together lead me to the view that paragraph [41] of the Decision is a paragraph that is directed to what risks the Applicant faces as a person who has sought asylum in a Western country, and as a person who may be seen to have Western ideals and political views. The thrust of the paragraph is therefore not concerned primarily with the risks to the Applicant that arise from him having committed a crime. Those risks are primarily dealt with elsewhere, which is a matter to which I now turn.
When the Tribunal’s reasons are examined as a whole, it can be seen that the Tribunal did not ignore the fact that the Applicant was a person who had committed a crime. For example:
a)at paragraph [33] of the Decision, the Tribunal accepted that the Applicant would be arrested upon his return to Iran, would be detained, and would most likely be convicted;
b)at paragraph [36] and [37] of the Decision, the Tribunal discussed at some length the crime committed by the Applicant, the relevant Iranian laws, whether the laws are of general application;
c)at paragraph [43] of the Decision, the Tribunal considered whether the Applicant would be singled out for particular treatment or punishment whilst in prison;
d)at paragraphs [47] to [53] of the Decision, the Tribunal considered the risks to the Applicant arising from the crimes in the context of the complementary protection criteria set out in section 36(2)(aa) of the Act.
When the above matters are considered, in my view it cannot be said that the Tribunal overlooked the Applicant’s crime. It clearly did so.
Finally, I have dealt earlier in this judgment with the assertion made by the Applicant that the Applicant’s crime was ‘inherently political’. I refer to and rely upon that reasoning in respect of this ground.
For the reasons above, the Tribunal has not committed jurisdictional error has alleged in Ground 1. I would therefore dismiss Ground 1 of the grounds of review.
Ground 3
The third ground of review in the Application is as follows:
‘The decision of the Tribunal was affected by jurisdictional error because the Tribunal's reasoning was illogical, irrational or unreasonable and/ or the Tribunal failed to give proper, genuine, or realistic consideration to an integer of the applicant's claim and/ or the Tribunal made a finding of central importance for which there was no evidence.
Particulars
a. The Tribunal accepted that, upon return to Iran, the applicant would be arrested, prosecuted, convicted and imprisoned for the crime of defying a state agent.
b. On the basis of country information that suggested torture was 'more likely' to be used against political prisoners in Iran but that ‘ordinary' criminals could also be subject to it, the Tribunal found that there was a remote risk that the crimes of the applicant would lead to him being tortured.
c. This finding was not rationally based on the country information referred to by the Tribunal. The country information did not form a rational basis for the Tribunal's conclusion that there was only a remote risk that the applicant would be subject to torture for the crime of defying a state agent.
d. There was no material before the Tribunal on which to base the conclusion that, while both 'political' and ‘ordinary’ prisoners could be subjected to torture in prison in Iran, there was only a remote risk that the applicant's crime of defying a state agent would lead to him being tortured.
e. The Tribunal failed to properly consider whether the nature of the offence committed by the applicant would lead to a real chance that the applicant would be tortured or mistreated while in prison in Iran.’
This ground of review takes issue with a finding made by the Tribunal in paragraph [50] of its Decision. I set out below paragraphs [49] and [50] of the Decision.
‘49. Country information suggests that torture does occur in Iran even though it is prohibited in Iran's Constitution. Specifically DFAT notes that torture is more likely to be used against political prisoners but 'ordinary' criminals could also be subject to it. Country information also notes that the prison population of Iran is 225,624 as of December 2014 of which 25% are pre-trial detainees. Pre-trial detention can last for weeks and months, especially for political prisoners.
50. While prison conditions themselves can amount to significant harm, for this to occur within the context of s.36(2)(aa) an element of intentionality to cause significant harm is required. As noted above country information suggests that torture is more likely to be used against political prisoners and whereas it states that 'ordinary' criminals could also be subject to it I find that there is a remote risk that the crimes of the applicant would lead to him facing such treatment. As for whether he would face cruel or inhuman treatment or punishment and degrading treatment or punishment because of poor conditions of prisons, this would require a degree of intention on the part of a decision maker, whether the judge who sentences the applicant or the legislature that had knowledge of the prison conditions and thus the intention to inflict harm. Considering the low level nature of the crime, one that carries a penalty of between three months and one year of imprisonment, I do not find that there is reason to believe that the judge would sentence the applicant in a manner that would intentionally cause him significant harm. Nor do I find that in the circumstances of Iran that the legislature has intentionally established sentencing for this particular crime in such a way - or to such a degree so as to expose those convicted to significant harm.’
The relevant parts of the Country Information referred to by the Tribunal (‘DFAT Report’) at paragraph [49] of the Decision is as follows:
‘Torture
4.11 Iran's Constitution prohibits 'any kind of torture to obtain confession or information' and the use of evidence obtained under duress. Iran is not a party to the UN Convention Against Torture. The Government consistently denies torture occurs in Iran. In some limited circumstances, officials have appeared to acknowledge the use of torture and some suspected incidents have been investigated. This includes the widespread use of torture and mistreatment at the Kahrizak Detention Centre against 2009 post-election protestors (where at least three deaths occurred in custody).
4.12 It has been reported by foreign NGOs that a range of different types of torture is used in Iran, including sexual torture, stress positions, use of water, sharp and blunt force trauma, electric shock, prolonged solitary confinement, asphyxiation and chemical torture.
4.13 Iran's Penal Code (articles 578 and 579) specifies punishments of six months to three years' imprisonment for any civil servant or judicial or non-judicial agent who corporally mistreats and abuses an accused person in order to force them to confess or who applies a punishment that is harsher than that ordered in the verdict. However, DFAT assesses that allegations of torture would rarely be fully investigated and prosecutions would be rarer still.
4.14 DFAT assesses that claims that security authorities use torture in Iran to extract confessions are credible. There is a significant volume of claims and witness statements concerning the use of torture and abuse during detention in Iran. There are credible reports that torture is routinely used in Evin prison, including in connection with the post-2009 election events. Torture is more likely to be used against political prisoners (including ethnic and religious minorities), but 'ordinary' criminals could also be subject to its use.’
The Applicant challenges the finding of the Tribunal that there was a remote risk that the crimes of the Applicant would lead to him being tortured. The challenge is made, inter alia, on the following bases:
a)The finding is not based on any evidence.
b)It was irrational for the Tribunal to conclude that the chance of the Applicant being tortured in prison for the crime of defying a state agent was remote because the Country Information suggested that torture was ‘more likely’ to be used against political prisoners, although other criminals could be subject to it;
c)The Tribunal’s error above is compounded having regard to the Tribunal’s failure to consider the ‘inherently political nature’ of the crime of defying a State agent.
It is convenient to address first, the last point raised by the Applicant, that is, that the Tribunal failed to consider the ‘inherently political nature’ of the crime of defying a state agent.
I have earlier in these reasons set out my view as to whether the crime committed by the Applicant was inherently political in nature. I rely on those findings which are set out at paragraphs [36] – [42] above. In the course of my earlier reasoning, I identified the steps the Tribunal took in considering the nature of the offence committed by the Applicant. For all of those reasons, I do not accept the submission raised now that the crime was ‘inherently political’.
Turning to the remaining aspects of this ground, in addition to the principles set out earlier, the Applicant submits, and I accept, that it is an error of law to make a finding for which there is no evidence: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32 at [90] – [91]. The Applicant also submitted that making findings that are of central importance to the reasoning of the Tribunal without any material to found them is a sufficient basis to conclude that there has been jurisdictional error: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [46]
This ground of review is put, inter alia, on the basis that there is no evidence to support the relevant finding. In order to succeed on the no evidence aspect of this ground, the Applicant must establish that there was in fact no evidence to support the conclusion. The Minister submitted, and I accept, that the ground ‘cut outs when even a skerrick of evidence appears’: see Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480 at [31].
The words in paragraph [50] of its Decision that there ‘is a remote risk that the crimes of the applicant would lead to him facing such treatment’ proceed immediately after the words that ‘ordinary criminals could also be subject to it [torture]’. Those latter words are a direct quote from the Country Information contained in the DFAT Report – see paragraph 4.14 of the DFAT Report which is set out in paragraph [60] of these reasons above.
I accept that the DFAT Report acknowledges the use of torture in particular prisons in Iran, and in relation to 2009 post-election protestors. A reading of the final sentence of paragraph 4.14 of the DFAT Report reveals that a comparison is being undertaken between torture of political prisoners, and torture of other (or ‘ordinary’) criminals. The sentence in full reads ‘Torture is more likely to be used against political prisoners (including ethnic and religious minorities), but 'ordinary' criminals could also be subject to its use.’
It is implicit, if not explicit, in the sentence set out above that ‘ordinary’ criminals face a lesser risk of torture than political prisoners. So much is evident from the use of the word ‘could’ in the sentence. It is then necessary to consider whether the Applicant, as an ‘ordinary’ criminal, faces a real chance or risk of harm upon return to Iran.
A real chance or real risk of persecution or harm can be below 50 percent and be as low as 10 percent. In Chan v Minister for Immigration and Ethnic Affairs (1989) 87 ALR 412, Mason CJ stated as follows at 418:
‘If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.’
Further, Dawson J stated in Chan at 424, that ‘a real chance is one that is not remote, regardless of whether it is less or more than 50 per cent’.
Finally McHugh J stated in Chan at 446, referring to the cases of R v Home Department State Secretary; Ex Parte Sivakumaran [1988] AC 958 and Immigration & Naturalization Service v Cardoza-Fonseca (1987) 480 US 421:
‘The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a far-fetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.’
The phrase ‘more likely’ and the word ‘could’ are, at their core, expressions that convey the possibility that a certain event may occur. They are not expressions capable of giving rise to an express mathematical possibility or percentage. Accordingly, when words such as these are used, the degree to which something could occur, or the degree to which something is more likely to occur, depends upon an examination of any other relevant or present circumstances. For example, a statement that ‘it could rain this afternoon’ without more expresses a possibility that may always arise given the vagaries of the weather. It might be a ‘remote’ possibility if the day is in the middle of summer, the sun is shining, and the temperature is 40 degrees. Conversely, there might be a real chance, or a realistic possibility of rain if there are dark clouds on the horizon and winter is in the offing.
In the circumstances of this matter, the thrust of the DFAT Report was that torture was a feature of imprisonment in Iran. Officials in Iran had appeared to have acknowledged the use of torture. NGO’s had reported torture. Allegations of torture were rarely investigated. DFAT acknowledged the use of torture to extract confessions, and its widespread use in a certain prison. It is against this background that the DFAT Report stated torture was more likely to be used against political prisoners and that ordinary prisoners ‘could’ also be subjected to it.
When these matters are considered, in my view, it cannot be said that the language in the DFAT Report supports a conclusion that the real chance or real risk of persecution or significant harm of the Applicant was remote, or as indicated by McHugh J, 10 percent or less. The contextual matters noted by DFAT could not support a finding that there was a remote risk of the Applicant being tortured. In order for the DFAT Report to have conveyed that there was only a remote risk that ordinary prisoners would be tortured, some other information or context would need to be have been present. It is not. Without more, I am of the view that the fact that ordinary prisoners could be tortured denotes that there is a real chance, in the sense described in Chan, that an ordinary prisoner faces torture. This is particularly so where the Tribunal accepted that the crime committed by the Applicant was a crime of defying a state agent.
The Minister urged me to consider other material before the Tribunal which supported the finding. Having undertaken that review, it appears to me that the Tribunal had before it the following in reaching its conclusion:
a)the Applicant’s evidence that he had not engaged in political activity: see paragraph [27] of the Decision at Court Book 139;
b)the Tribunal’s finding that the crime committed by the Applicant was not one that was ‘inherently political’;
c)the Tribunal’s finding that the Basij officer would not be sufficiently senior to be in a position to identify and influence the treatment of the Applicant while on remand, or once convicted and imprisoned: paragraph [51] of the Decision at Court Book 144;
d)the Tribunal finding that the Applicant’s offence was a low level offence: see the express acknowledgement of the low-level nature of the offence in paragraph [50] of the Decision, and also the document set out at Court Book 129 which summarises the nature of the offence;
e)the Tribunal finding that the Applicant did not possess any characteristic which would cause him to be targeted for mistreatment: see paragraph [43] of the Decision at Court Book 143. Furthermore, the Tribunal accepted at paragraph [52] of the Decision (Court Book 145) that there was not a real risk in the reasonable and foreseeable future that were he imprisoned, other prisoners would intentionally inflict harm upon the Applicant for any characteristic that the Tribunal was able to identify;
f)Further, the Tribunal considered the possibility of the Basij taking matters into his own hands and concluded that ‘As the applicant noted that he does not fear the Basiji and considering that four years have passed since the event I do not accept that the applicant faces a real risk of significant harm as a foreseeable consequence of being returned to Iran’ - at paragraph [53] of the Decision.
I accept the above was before the Tribunal. However, the presence of this information does not engage with the direct observations of the DFAT Report in relation to the prevalence of torture. Put simply, DFAT acknowledged in its report that any ordinary prisoner could be subject to torture. DFAT did not provide any further information to qualify that remark. Had it done so, and had those matters reflected to a greater or lesser extent, the matters the Minister urges me to consider above, a different outcome may have ensued. However, DFAT did not do so. The essence of the DFAT remark is that any ordinary prisoner could be tortured. That, it seems to me, would include a prisoner in the position of the Applicant, who the Tribunal accepted would most likely be arrested, detained and charged with the crime of defying a state agent upon his return to Iran.
The finding by the Tribunal that the Applicant faced a remote risk of torture was central to the assessment of harm the Applicant faced. It was not an assessment however that could be supported on the evidence and findings.
For all of the reasons above, I am of the view that the reasoning of the Tribunal was illogical, irrational or unreasonable and was therefore affected by jurisdictional error. I therefore uphold Ground 3 of the grounds of review.
For the reasons set out above, the matter must be remitted to the Tribunal.
I will make an order for costs in favour of the Applicant in the amount of $7,467.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 26 June 2020
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