CTT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1034
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1034
File number(s): MLG 1470 of 2018 Judgment of: JUDGE FORBES Date of judgment: 18 October 2024 Catchwords: MIGRATION – protection – application for judicial review of decision by Administrative Appeals Tribunal not to grant Safe Haven Enterprise Visa – where applicant claimed to fear harm as a body builder – nature of claim made by the applicant – whether claim clearly articulated or arose from the materials - whether claim maintained after it had been explained and refined during earlier interview processes – distinction between physical presence as body builder and activities associated with running a gym and training women – where submissions to Tribunal seeks to enliven all previous claims – whether “body builder claim” fell to be considered by Tribunal – whether Tribunal failed to consider claim – no error established Legislation: Migration Act 1958 (Cth) s 46A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 7 October 2024 Place: Melbourne Counsel for the Applicants: Mr Aleksov Solicitor for the Applicants: Playfair Legal Pty Ltd Solicitor for the Respondent: Mr Cunynghame; Sparke Helmore Lawyers ORDERS
MLG 1470 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTT18
First Applicant
CTU18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration and Multicultural Affairs”.
2.The Applicants’ amended application for review filed 18 July 2024 be dismissed.
3.The Applicants pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at the date the matter was heard.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 1 May 2018 the Administrative Appeals Tribunal (Tribunal) affirmed a decision of the delegate of the Minister to refuse the applicants a Safe Haven Enterprise (subclass 790) visa (visa). By an amended application filed on 18 July 2024, the applicants seek judicial review of the Tribunal’s decision.
There is only one ground of review to be determined in this case. The applicant contends that the Tribunal failed to consider a clearly articulated claim that he feared harm in Iran on account of being a bodybuilder. The applicant submits that the Tribunal’s failure to consider this claim resulted in a decision which is affected by jurisdictional error.
For the reasons which follow, the applicant has failed to demonstrate the alleged error. Accordingly, the application will be dismissed.
BACKGROUND
The applicants (father and daughter) are citizens of Iran who entered Australia by boat as unauthorised maritime arrivals on 15 April 2011. At the time of entry, the primary applicant’s daughter was 5 years of age.
The primary applicant’s migration background is long and complex. Prior to making his application for a SHEV visa in 2016, the applicant sought refugee status and made claims for protection which were considered through various non-statutory review processes. It is necessary to set out those processes in some detail as the claim which the applicant asserts the Tribunal failed to consider is said to have first arisen many years prior to the Tribunal’s decision.
In the irregular maritime arrival entry interview conducted on 30 November 2011, the primary applicant identified his most recent employment as a council worker. Relevantly, he identified previous employment as the proprietor of a gym and as a “coach – building [sic] building competitions”[1].
[1] Court Book (CB) 6
Departmental evaluation of claims
The applicants sought a Protection Obligations Evaluation (POE). The primary applicant attended an interview in relation to the application on 24 January 2012. It appears that the initial application was unsuccessful as it was referred for an Independent Protection Assessment (IPA) on 28 January 2012.
The purpose of the IPA was to consider all the applicant’s claims for protection afresh, taking into account all available information, including information available to the POE officer in reaching the unfavourable evaluation, information provided by or on behalf of the applicant and any additional information the IPA assessor considered relevant.
On 8 May 2012, as part of the IPA process, the applicant was interviewed in the presence of his migration agent and a Farsi interpreter. Prior to the IPA interview the applicant’s migration agent had sent written submissions to the assessor in support of the claims for protection.
It is not necessary for the purposes of this review to fully narrate the circumstances which caused the applicant to flee Iran. Suffice to say, the applicant alleges that he had run into trouble with Iranian government authorities due to his support for the Green Movement, for operating a gym which unlawfully trained females and offended Islamic cultural boundaries and for engaging in an unlawful and inappropriate sexual relationship with the wife of a prominent Mullah.
On 18 June 2012 the assessor who conducted the IPA recommended that the applicants not be recognised as persons to whom Australia owed protection obligations. The statement of reasons explaining the assessor’s recommendation is instructive because the reasons articulate in detail the various claims for protection which had been advanced by the applicant to that date.
Relevantly, at [44] of their reasons[2] the IPA assessor noted that the applicant had stated in the POE interview that he had been targeted by the Basij because they hate bodybuilders because they are “tough” and wear sports clothes and are not covered properly and play music, and the Basij automatically think of bodybuilders as anti-government and anti-Islam.
[2] CB 174-175
The applicant submits that this statement in the IPA reasons plainly records that his claim to fear harm due to being a body builder had been raised by him in the POE interview. That is, the applicant submits that he made a clearly articulated claim that he feared harm as a bodybuilder because he was perceived by the authorities as being tough, intimidating and a threat to the government. Crucially, the applicant submits that this claim was not only made in the POE interview, but it has been maintained by him throughout the visa application process, including before the Tribunal.
The assessor found that the applicants did not meet the criteria for protection visas[3]. I will return to the reasons for the unsuccessful assessment, including the IPA’s consideration of the applicant’s “bodybuilder” claim, in due course.
[3] CB 166-193
On 3 July 2015 the Department undertook an International Treaties Obligations Assessment (ITOA) and again found the applicants were not persons to whom Australia owed non-refoulement obligations. The reasons given by the ITOA assessor[4] are also instructive as to its assessment of the claims being advanced by the applicant.
[4] CB 196-216
Application for a Safe Haven Enterprise Visa
On 13 April 2016 the bar under section 46A of the Migration Act 1958 (Cth) was lifted and the applicant was invited to lodge an application for a Safe Haven Enterprise visa.
On 19 October 2016 the applicant made an application for a SHEV and provided a statement in support[5]. The applicant’s protection claims, as articulated in his statement, related to his previously expressed anti-regime political opinions, his affair with a married woman in contravention of social mores, his denunciation and rejection of Islam, and his status as a failed asylum seeker, a returnee from the West and political prisoner.
[5] CB 35-40
On 5 April 2017, the applicant attended an interview with a delegate and after that interview the applicant’s representative provided extensive written submissions.
In the applicant’s post-interview written submissions dated 21 April 2017 his representative states, inter alia:
“d.His claims are set out in his Statement dated 19 October 2016. That Statement largely repeated previously documented claims by our Client, with the exception of one new claim concerning Facebook postings. […]
e.[The applicant’s] previous claims were first made in a Statement prepared for a Protection Obligations Determination (POD). An interview conducted by an Officer of the Department took place on 24 January 2012 and a negative decision was given by the Protection Obligations Officer on 28 February 2012.”
Further, in framing the applicant’s claims for the delegate, his representative stated:
“We submit that cumulatively, the essential and significant reasons for [the applicant’s] fear of persecution is because of his:
•Religion:
•The Iranian authorities will persecute him because he has renounced Islam and converted to Christianity and will therefore be considered as an apostate by the Iranian authorities
•Political opinion
•[The applicant] will be imputed with expressing political opinions in opposition to the Iranian regime as someone who participated in Green Movement protests in 2009 and has undertaken anti-government political activities in both Iran and since he arrived in Australia in 2011
•Membership of a particular social group
•If forced to return to Iran, [the applicant] will be a member of the following social groups
•Failed asylum seekers,
•Political prisoners in Iran”
It is common ground that neither the application for the SHEV visa, nor the applicant’s statement in support of the application, nor the written submissions provided by his representative after the interview, expressed any clearly articulated claim of fear of return to Iran by reason of the applicant being a bodybuilder. Claims were advanced which tangentially engaged with the applicant’s operation of a gym and his conduct and behaviours in that capacity, but there was no expressly stated claim of fearing harm as a bodybuilder simpliciter.
The delegate refused the grant of a SHEV visa and gave reasons for doing so.
It is accepted that the Department provided the delegate with a file which contained the documented history traversing the various non-statutory processes commencing from the applicant’s arrival in Australia in November 2011. Part 4 of the delegate’s reasons recount the assessment of the applicant’s protection claims by the Department and the negative Protection Obligations Evaluation. The delegate notes the IPA assessment in 2012 and the subsequent ITOA assessment 2015. It is conceded by the Minister that the delegate would have had available to it the various claims made by the applicant over time.
Presumably synthesising all of that previous material, the delegate summarised the applicant’s claims for protection as including relevantly:
•“The applicant often taught gym classes to mixed male and female groups which was forbidden in Iran.
•The applicant claims he contravened religious practices by allowing women to work out at the gym. He claims to have been punished by the Basij for playing at the gym (especially Western music) during prayer time, as this was offensive to Islam.
•The applicant also encountered issues with the Basij as he put up [Green Movement] posters in his gym during the election time […]”
In Part 5 of its reasons (Findings of Fact) the delegate stated:
“The applicant reiterated a number of his previous claims in this SHEV application which were previously raised and assessed during the POE, IPA and ITOA. The applicants SHEV interview was conducted on 5 April 2017. Post-interview, the applicant’s representative submitted a written submission reiterating the applicant’s written claims against relevant country information. I have considered the claims raised by the applicant in his SHEV application as well as the information contained in the written post-interview submission.
Political opinion and contravening religious standards
The applicant reiterated a number of claims that were previously assessed in his POE, IPA and ITOA. These claims specifically relate to:
•His alleged affair with a woman who was married to a senior Iranian cleric;
•His involvement in the Green Movement and anti-regime political opinion
•His dress, in particular showing less skin as a body builder
•His bodybuilding and teaching of mixed gender gym classes”
The delegate then records that previous findings, in particular from the IPA, were put to the applicant for comment as there were a number of credibility concerns in relation to his claims. At page 5 of the reasons, the delegate records:
“It was put to the applicant that the [IPA] reviewer did not find that the applicant would face harm on return to Iran for reasons of his political opinion or his involvement as a bodybuilder/gym instructor teaching mixed gender classes. It was also previously found the dress standards in Iran applied to the entire country and were not implemented to the applicant discriminately.”
Tribunal Review
The delegate rejected the applicant’s visa application which then led to him making an application for merits review to the Tribunal. A copy of the delegate’s reasons form part of the application to the Tribunal.
On 3 August 2017, the applicant and his daughter attended a hearing before the Tribunal. On 9 November 2017, the applicant attended a further hearing. At each hearing the applicants were represented by the migration agent which had provided submissions on their behalf in earlier processes.
On 1 December 2017, the applicant’s representative provided post-hearing written submissions and various supporting documents to the Tribunal. The applicant submits that the written submissions from his long-standing migration representative are important for the following introductory statement:
“We continue to rely on all evidence and submissions previously provided by or on behalf of our client(s), except for those parts which have been clarified during the hearings and in this submission.”
The written submissions do not deal with the applicant’s claim to fear harm as a bodybuilder in Iran. The submissions do not articulate or in any way address any claim of that type purportedly made by the applicant previously. Nonetheless, as will shortly be seen, the applicant submits that the “catch-all” introduction to the written submission enlivens any and all previously made claims and maintains them as bases on which he seeks protection.
Moreover, it is not contested that the Tribunal had before it a copy of the delegate’s statement of reasons and the departmental file which would have included all the materials that were before the delegate such as the POE, IPA and ITOA assessments. The applicant therefore contends that the Tribunal was in a position to know what claims he had made and was on notice from his representatives that he was relying upon all of those claims in support of his application for protection.
On 1 May 2018, the Tribunal affirmed the decision not to grant the visa. The Tribunal’s reasons are extensive and travel over more than 40 pages. A summary of the reasons for the Tribunal’s decision is contained in the Minister’s written outline of submissions from [12]-[20] and I do not understand that summary (and Court Book references) to be contentious:
“12With respect to the applicant’s claims for the visa, the Tribunal accepted the applicant completed about 21 months of military service with the national police in 2011, but did not accept he served in the Ministry of Intelligence: [162].
13The Tribunal accepted the applicant and his ex-wife were divorced, however it found the applicant did not give a full and frank account of the reasons of the marriage breakdown and the circumstances of his daughter’s removal from Iran: [165], [169]. It found the applicant removed his daughter from Iran without his ex-wife’s knowledge and consent: [170]. The Tribunal found that part of the applicant’s motivation for leaving Iran was to escape problems related to the breakdown of his marriage and possible disputes over his daughter’s residence: [172].
14The Tribunal did not accept the applicant had a sexual relationship in 2011, that he subsequently got into a fight with police, or that he left Iran because he feared serious harm arising from this: [173], [174], [180], [185], [195]. The Tribunal did not accept if he returned to Iran he would face serious harm because of this: [195].
15The Tribunal accepted that during the 2009 election campaign the applicant and other gym owners supported presidential candidate Mir Hossein Mousavi: [196]. Based on country information, and as the applicant was not mistreated for reasons of his previous activity or involved in Green Movement activities since the 2009 campaign, the Tribunal considered he would not face any harm for this reason if he returned to Iran: [199].
16The Tribunal accepted the applicant was born in a Shia Muslim family, is not religiously observant and was not observant in Iran, and does not have a belief in religion: [200]. The Tribunal did not accept the applicant or his daughter converted to Christianity in Australia or that he would be regarded as an apostate if he returned to Iran: [200]. The Tribunal accepted the applicant attended a Korean Christian Church from time to time when he first arrived in Australia, but that he no longer attended any church: [201]. The Tribunal accepted the daughter attended an Iranian Church on occasion for social reasons, but did not accept she was a Christian or attended on a regular basis: [204]. The Tribunal found it was required to disregard the applicant’s conduct in Australia as the only reason he attended church was to strengthen his protection claims: [208]. The Tribunal found the daughter would continue to assert she was a Muslim if she returned: [209]. The Tribunal did not accept the applicants would seek to practice as Christians if they returned: [210]. The Tribunal did not accept the ex-wife would disclose the applicants’ attendance at Christian churches in Australia: [211].
17The Tribunal accepted the applicant found the social conservatism of the Iranian authorities to be unduly restrictive: [214]. Based on country information that supported evidence of greater social tolerance, the Tribunal did not accept the applicant would face any harm if he returned to Iran as a result of any previous breaches of Islamic social mores or for being religiously non-observant: [221]-[222].
18Based on the Tribunal’s finding that the applicant was not of adverse interest to the Iranian authorities, the fact his online activity was disguised and having regard to the Iranian government’s lack of capacity to monitor all individual Facebook accounts, the Tribunal found the likelihood that the applicant would come to the adverse attention of the Iranian authorities was so remote as to not pose a real chance he would face persecution for reasons of his “social media activism” or actual or imputed political or religious opinion: [237].
19The Tribunal accepted the applicants may be perceived as failed asylum seekers who spent six years in Australia if they returned to Iran: [238]. Based on country information, the Tribunal did not accept the applicants would face harm as failed asylum seekers or returnees from Western countries: [245]. It did not accept the applicant’s history of minor involvement in the Green Movement protests, attendance at a Christian church or his Facebook activity would heighten any adverse interest by Iranian authorities: [245].
20The Tribunal accepted it was possible the Iranian authorities accessed information that the applicant was in detention through the department’s data breach: [246]. However, it found that irrespective of the data breach, it is likely this information would be evident to the Iranian authorities: [248]. The Tribunal did not accept the Iranian authorities would be aware of the applicant’s protection claims: [249]. Relying on country information that failed asylum seekers would not face a risk of harm from the Iranian authorities for reasons of applying for asylum, the Tribunal did not accept the data breach would put the applicants at risk of any harm: [250]-[251].”
Judicial review
The amended application for judicial review raises a single ground of jurisdictional error expressed as follows:
(1)The Tribunal failed to consider the applicant’s claim based on being a bodybuilder.
At the hearing of the judicial review application, Mr Aleksov of counsel appeared on behalf of the applicant and the Minister was represented by Mr Cunynghame. Both parties filed written submissions and developed them orally at the hearing.
Applicant
Mr Aleksov submits that judicial error lies in the fact that the Tribunal failed to understand and thus failed to consider a discrete claim by the applicant that he feared persecution in Iran by reason of being a bodybuilder. That claim, properly understood, is that as a bodybuilder the applicant is perceived by his physical presence and dress to be an intimidating “tough guy” and a threat to the regime and its authorities. That claim, of fearing harm as a bodybuilder simpliciter, is said to be distinguished from other claims made by the applicant which arise from his gym ownership and/or his bodybuilding and training activities.
Mr Aleksov submits that the claim first arose in the POE interview. In that interview the applicant stated that he had been targeted by the Basij because they hate bodybuilders because they are “tough” and wear sports clothes and are not covered properly and play music, and that the Basij automatically think of bodybuilders as anti-government and anti-Islam. Although there is no documentary record of how the claim was specifically framed or conveyed in the POE interview, it was referred to in the IPA reasons at [44]. The applicant also submits that confirmation the claim was made in the POE interview can also be seen at [108] of the IPA reasons. The Minister accepts that such a claim was made.
The IPA assessor found that the applicant did not have a well-founded fear of persecution or serious harm for a Convention reason if he was to return to Iran in the foreseeable future due to his being a bodybuilder. Nonetheless, the applicant says it is plain from the assessor’s reasons that a distinct and separate bodybuilder claim was made and that it was considered.
The applicant submits that the bodybuilder claim has been maintained and that there is no evidence of it ever having been abandoned. It is submitted that the reasons of the delegate are instructive in this respect.
As stated above, although the delegate rejected the applicant’s claim for the protection visa, the delegate did acknowledge that “the applicant reiterated a number of his previous claims in this SHEV application which were previously raised and assessed during the POE, IPA and ITOA”. Furthermore, the delegate recorded that those reiterated claims included ones relating to:
•“His dress, in particular showing less skin as a bodybuilder
•His bodybuilding and teaching of mixed gender gym classes”
The next issue is whether the “bodybuilder” claim was maintained such that it was a matter which required consideration by the Tribunal. In respect of that question, the applicant submits that the post-hearing written submissions filed by his representative on 1 December 2017 provides a complete answer. The applicant submits that a clear and unambiguous statement from his representative that they “continue to rely on all evidence and submissions previously provided by or on behalf of our client(s)” has the effect of requiring the Tribunal to consider each and every claim advanced by the applicant during the course of his journey through the migration system, save for any which he had been clearly abandoned.
As previously mentioned, it is not contested that the material before the Tribunal included a copy of the relevant departmental files, including those which dealt with the various assessments through the non-statutory processes. It is therefore to be inferred that the Tribunal had before it documents which would have informed all the applicant’s claims and that the Tribunal was able to consider those claims if they fell to be considered.
Counsel for the applicant fairly conceded that the “catch all” submission by the representative is a lazy form of advocacy and one which puts the Tribunal in the invidious position of having to review all of the materials to assess the protection application against every claim which had been made by the applicant in the past. However, the applicant says that is the effect of the submission and a failure by the Tribunal to address a live claim will result in jurisdictional error.
The final step in seeking to impugn the Tribunal’s decision requires the applicant to establish that the “bodybuilder” claim was not considered. In that respect, the applicant submits that the Tribunal’s reasons speak for themselves. The bodybuilder claim is neither mentioned nor considered. The applicant submits that no reading of the Tribunal’s reasons could lead to the conclusion that the claim was dealt with in the terms in which it was originally raised.
Minister
The Minister submits that the applicant’s claim that he “was targeted by the Basij because they hate bodybuilders because they are “tough” and wear sports clothes and are not covered properly and play music, and the Basij automatically think of bodybuilders as anti-government and anti-Islam” was acknowledged by the Department in its Protection Obligations Evaluation. That claim lead to the assessor accepting that the applicant was a gym owner/instructor and bodybuilder.
However, contrary to the submissions of the applicant, the Minister submits that that claim has not been consistently maintained by the applicant.
The applicant sought review of the original refugee assessment through the IPA process. Among other things, he relied upon the “bodybuilder” claim as it had been articulated in the POE interview. To enable it to consider that claim, the IPA assessor asked the applicant about his submission that bodybuilders are seen as anti-government or anti-Islamic. The IPA reasons for its recommendation not to grant the applicant protection status included the following explanation of the assessor’s enquiry and the applicant’s response:
“44.The assessor asked [the applicant] about a submission that bodybuilders are seen as anti-government or anti-Islam in Iran and asked for further information on this. [The applicant] said the activities at the gym were illegal because a male person is not supposed to train females. However, because there are not enough female trainers in Iran and because female trainers in Ahwaz are not able to use weight training (as they mainly do aerobics) and men then filled that gap. The assessor confirmed that this is what [the applicant] meant by saying bodybuilders are anti-government and anti-Islam. [The assessor notes that in the POE interview [the applicant] said that he was targeted by the Basij because they hated bodybuilders because they are ‘tough’ and wear sports clothes and are not covered properly and played music, and the Basij automatically think of bodybuilders as anti-government and anti-Islam].”
After reciting and considering a very broad range of claims, the IPA then moved to its formal findings and reasons. Relevantly, in relation to the “bodybuilder” claim the assessor expressly noted the inconsistency between the claim as it had been presented at the POE assessment and how it had subsequently been refined or clarified by further questioning.
“108.The assessor considered [the applicant’s] submission that he has a well-founded fear of persecution as a bodybuilder, as bodybuilders are seen as anti-government or anti-Islam. When asked about this in the IMR interview, [the applicant] said the activities at the gym that he worked at work were illegal, because a male person is not supposed to train females, however because there are not enough female trainers in Iran, and because female trainers in Ahwaz are not able to use weight training, men then filled that gap. The assessor notes that when [the applicant] was asked about this in the POE interview he said that he was targeted by the Basij because they hate bodybuilders because they are ‘tough’ and wear sports clothes and are not covered properly and play music, and the Basij automatically think of bodybuilders as anti-government and anti-Islam. […] As such, the assessor finds that [the applicant] does not have a well-founded fear of persecution or serious harm for a Convention reason is if he was to return to Iran in the foreseeable future due to his being a bodybuilder.”
The Minister submits that a so-called bodybuilder simpliciter claim was never made or, if it was, it did not survive the further detailed explanation of it in the IPA process. The assessor gave the applicant an opportunity to explain what he meant by the claim and he did so. The reasons of the IPA reveal that process of refinement, clarification and re-articulation.
During the ITOA process the assessor considered the applicant’s claims to fear harm on account of being a bodybuilder, but again did not accept that he faced harm on that basis
The Minister submits that the clarification process is critical to understanding how the claim was subsequently advanced and considered as part of the applicant’s SHEV application.
The bodybuilder simpliciter claim was never given further voice. The applicant had every opportunity to advance such a claim before the delegate and the Tribunal as part of the SHEV application but did not do so. The Minister submits, and the applicant really has no option but to concede, that the bodybuilder claim cannot be found in the applicant’s statement of claims filed in support of the SHEV application or in any submissions filed on his behalf by his representatives.
The Minister accepts that the delegate and the Tribunal had the Department’s files including those which dealt with the non-statutory assessments which had been undertaken before the SHEV application. The Minister submits that those materials reveal the refinement and clarification process which unmasked the true nature of the bodybuilder claim.
The Minister submits that by the time the SHEV application reached the Tribunal, the applicant’s fear of harm was presented as conflict between his former employment as a coach/bodybuilder/trainer and the socially conservative attitudes embedded in Islamic culture. The applicant’s claim before the Tribunal, as articulated in his statement made on 19 October 2016, was that he had to cover his body during bodybuilding competitions, he trained women at his gym which contravened Islamic mores and he was not permitted to play music in his gym for fear of being beaten by the Basij. During the Tribunal hearing that claim was expanded to a broader explanation of difficulties the applicant faced running various activities in a gym setting. However, the Minister submits that the applicant’s claim to fear harm as a bodybuilder was always connected to his activities at the gym which the Basij considered to be anti-Islam and to his claim to fear harm for his lack of belief in Islam.
The Minister acknowledges that the Tribunal is required to consider all claims made by an applicant and argues that the Tribunal did so in the present case. The Minister submits that what has to be considered is the claim actually pressed by the applicant, having regard to the way in which the case is presented and the evidence and submissions put before the Tribunal. Here, the Tribunal considered the “bodybuilder” claim in the manner in which it had been pressed in previous processes.
The Minister submits that the Tribunal correctly apprehended that the applicant’s real fear resided in the unduly restrictive social conservatism of the Iranian authorities and the impact of Islamic cultural mores on his gym activities, bodybuilding and fitness, to music in his gym, to dress codes and to personal behaviour. When the applicant’s claim is so construed, the Minister submits that it cannot be argued that the Tribunal ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument.
CONSIDERATION
Legal principles
The principles which frame the Court’s consideration of the single ground of review are well-settled and not contested.
The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers[6].
[6] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (at [42]), with whom Spender J agreed
The Tribunal is required to consider all claims that are the subject of substantial, clearly articulated argument relying on established facts or those, which whilst not expressly made, arise squarely on or are apparent on the face of, the material before the Tribunal[7].
[7] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (Collier, McKerracher and Banks-Smith JJ)
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.
While there is no precise standard for determining whether an un-articulated 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”[8].
[8] Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21])
The Minister does not cavil with these statements of principle. However, the Minister stresses that the applicant bears the burden of demonstrating, on the balance of probabilities, that a claim was articulated or clearly emerged from the materials and that the Tribunal did not consider the relevant claim[9].
[9] Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [50]-[53]
An inference that a matter has been overlooked should not be too readily drawn if the document in which the claim was made was identified by the Tribunal in its reasons[10]. The Court should be cautious in drawing such an inference where reasons are otherwise comprehensive and the issue has been identified at some point.
[10] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 the Full Court observed that it may not be necessary to make a finding on a particular matter where it has been subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected[11].
[11] At [47]
The principles applied
In this case a finding of judicial error requires three anterior findings:
(a)First, that the applicant made or articulated a claim in the terms asserted or that such a claim arose squarely from the materials;
(b)Secondly, if such a claim was made and articulated, that it was maintained or sustained such that it was a claim which the Tribunal was required to consider; and
(c)Thirdly, if so, that the Tribunal failed to consider the claim as asserted by the applicant.
As to the first matter, the applicant relies upon the claim he made in the POE interview process to the effect that he feared harm in Iran on the basis that as a bodybuilder he was perceived by authorities as a “tough guy” and a threat. The claim has been described in these proceedings as the “bodybuilder simpliciter” claim, in the sense that it stands alone and was not conveyed as being connected to the applicant’s activities as a gym owner or trainer. While there is no evidence of the exact manner in which the claim was raised, the reasons of the IPA assessor recognise at [44] and [108] that a claim in those terms was made during the POE interview.
In the IPA assessment process, however, the claim was squarely raised with the applicant and he was asked to explain what he meant by it. His explanation is set out in the IPA assessor’s reasons in the two paragraphs to which I have referred. So while it may be that the claim was expressed in one way at a point earlier in time, when the applicant was provided an opportunity to explain it he did so in the manner recorded in the IPA reasons. There he said that:
“[…] the activities at the gym that he worked at work were illegal, because a male person is not supposed to train females, however because there are not enough female trainers in Iran, and because female trainers in Ahwaz are not able to use weight training, men then filled that gap.”
Crucially, the applicant did not repeat there, nor has he subsequently, the claim that bodybuilders were hated by the authorities because they were tough guys, wore sports clothing and for those reasons were perceived to be anti-government and anti-Islam. Rather, the response the applicant gave during the IPA assessment nuanced the claim and framed the way in which it was subsequently considered.
The applicant has been afforded numerous opportunities since the non-statutory processes to formulate his claims for protection. The bodybuilder simpliciter claim was not articulated in his visa application, in his statement of claims supporting that application, in interviews with the delegate and the Tribunal or in any of the submissions filed on his behalf by his representatives. It is not insignificant that the applicant has been represented throughout and has not suffered the disadvantage that a self-represented applicant might face in formulating and pressing claims. One would have thought that if the bodybuilder simpliciter claim was of substance it would have been separately identified.
Nor can it be said that the claim clearly arose from the materials. As I have already explained, the materials before the Tribunal included the Departmental file which included the delegate’s decision and the reasons given in the non-statutory processes. What clearly emerges from those materials is that the bodybuilder claim was never advanced simpliciter after it was explained during the IPA assessment. All subsequent presentations of the applicant’s claims were consistent with that explanation.
For these reasons, the applicant has not persuaded the Court that the bodybuilder simpliciter claim was the subject of substantial, clearly articulated argument relying on established facts or, if not expressly made, arose squarely on or was apparent on the face of, the material before the Tribunal. The claim, if made, was not maintained and took on a different form after the applicant was given an opportunity to explain it.
I agree with the Minister’s submission that the real substance of applicant’s claim to fear harm as a bodybuilder was connected to and bound up with his activities at the gym. It was those activities (rather than the applicant’s physical presence and dress alone) which the Basij considered to be anti-Islamic.
There is little doubt in my mind that the Tribunal correctly apprehended the basis on which the applicant was advancing his claims. The claims were advanced consistently with the explanation the applicant gave at the IPA interview and consistently with subsequent representations and submissions by his representatives.
Far from failing to consider the applicant’s claims, I am satisfied that the Tribunal did so comprehensively within an extensive and carefully reasoned decision which runs over more than 200 paragraphs. The Tribunal accepted that the applicant claimed to fear harm for breaching Iranian social mores, for training women in the gym and because of his clothing. The Tribunal accepted at [214] that the applicant found the social conservatism of the Iranian authorities to be unduly restrictive and noted the applicant’s submissions on “conservative attitudes to his gym, bodybuilding and fitness, to music in his gym, to dress codes and personal behaviour”.
I reject the applicant’s submission that a body builder simpliciter claim fell to be considered by the Tribunal. The Tribunal did not ignore, overlook or misunderstand relevant facts or materials or any substantial or clearly articulated argument. There was accordingly no jurisdictional error.
DISPOSITION
For the reasons set out in the foregoing paragraphs, the application for judicial review must be dismissed.
I will hear the parties on the question of costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 18 October 2024
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