CTT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1095
•25 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CTT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1095
File number(s): SYG 1800 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 25 June 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant disbelieved in critical respects and his other fears found not to be well-founded – whether the Authority erred in the application of s 5J of the Migration Act 1958 (Cth) considered – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5, 5J, 5H, 36, 65, 473FB, 476, 477
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
Migration Regulations 1994 (Cth)
Cases cited: ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 178
ANC17 v Minister for Immigration & Anor [2020] FCCA 707
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AYY17 v Minister for Immigration & Anor [2017] FCCA 2886
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
CDY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 325
DHQ17 v Minister for Immigration and Border Protection [2019] FCA 1975
DQU16 v Minister for Home Affairs (2021) 95 ALJR 352
EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 11
Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496
Mouflih v Minister for Home Affairs [2019] FCA 1744
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
SZTYZ v Minister for Immigration and Border Protection [2016] FCCA 1443
SZTYZ v Minister for Immigration and Border Protection [2016] FCA 1360
Number of paragraphs: 76 Date of hearing: 20 May 2021 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Nikjoo Lawyers Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Mills Oakley ORDERS
SYG 1800 of 2019 BETWEEN: CTT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
25 JUNE 2021
THE COURT ORDERS THAT:
1.The application the subject of leave granted on 20 May 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 11 June 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male national of Iran who arrived in Australia on 16 December 2012.[1]
[1] Court Book (CB) 136.4
On 9 January 2013, the applicant participated in an entry interview during which he made claims to fear harm in Iran arising from his and his family’s involvement in pro-Azerbaijani political activity.[2]
[2] CB 11-12
On or about 15 June 2016, with the assistance of a registered migration agent, the applicant applied for a protection visa.[3] In the application, including a typed annexure responding to Part C, Q89, the applicant set out his claims for protection.[4] In summary, the applicant’s claims were that:
(a)he claimed to fear harm on the basis of his ethnicity as an Azeri and his imputed anti-Iranian regime political opinion;
(b)two of the applicant’s uncles, HMK and MF, were executed by the Iranian government in the 1980s for supporting the Muslim People’s Republican Party (MPRP), and the applicant’s father was an Air Force Colonel who lost his job for two years because of his relationship to the uncles;
(c)The applicant’s cousin, JHK, was a high-profile lawyer who was imprisoned and tortured by the Iranian government for representing political activists;
(d)the applicant was discriminated against by the Iranian government because he was an Azeri. He participated in demonstrations in 2006 and 2009 and was arrested and detained by the police in 2009 for a week and was beaten and tortured;
(e)the applicant and his brother worked at a printing house, where they printed anti-regime material about Azeri protests. The applicant stored this material at his home and on one occasion his ex-wife discovered the materials at the applicant’s home. The applicant most recently printed materials on 13 February 2012, to announce a gathering in support of Azerbaijani activists in prison. He believed his ex-wife reported him to the Iranian authorities. The applicant became anxious about his circumstances and in February 2012 he travelled to Turkey to seek asylum, but returned after one day;
(f)in April 2012, the applicant’s brother and the applicant’s employer were arrested by the Iranian authorities at the printing house and detained. The applicant was warned by a colleague not to go to the printing house. The applicant feared for his safety so, with the assistance of another cousin, PD, he went into hiding in Tehran for eight months before departing Iran; and
(g)the applicant departed Iran via the airport by bribing airport staff. He claimed that, if returned to Iran, he would be considered a spy and a failed asylum seeker.
[3] CB 37-76
[4] CB 68-73
On 23 November 2017, the applicant attended an interview with the delegate (the protection visa interview).[5]
[5] CB 139.4
On 18 July 2018, the applicant’s representative provided a submission in which it was claimed that the applicant’s father was asked on 2 July 2018 to attend a government building in Tabriz the following day for questioning, and was asked about the applicant’s activities in Australia.[6] The submission attached a translated screenshot of the applicant’s Facebook page.[7]
[6] CB 129
[7] CB 131
On 3 May 2019, the delegate refused to grant the applicant a protection visa.[8] The delegate found that the applicant had fabricated his claims for protection.[9]
[8] CB 136-154
[9] CB 145.2
The Authority
On 8 May 2019, the delegate’s decision was referred to the Authority for review.[10]
[10] CB 157-158
In a submission to the Authority sent by the applicant’s representative on 28 May 2019 (the Authority submission), the applicant made several new claims and also elaborated on existing claims.[11] The applicant’s new information was summarised by the Authority in its reasons at [6].[12]
[11] CB 168-174
[12] CB 183-184
As noted above, in its decision, the Authority affirmed the delegate’s decision.[13]
[13] CB 181-202
The Authority had regard to an allegation in the referred material from a member of the community and found the information was from an unidentified source and its credibility could not be tested. The Authority found at [3] the allegation was of no probative value and placed no weight on it.[14]
[14] CB 182
The Authority found at [4] that the Authority submission, to the extent that it contained argument about why the applicant disagreed with the delegate’s findings and decision, was not new information and had regard to it.[15] The Authority considered the applicant’s arguments in the Authority submission about the standard of interpretation at the protection visa interview but was not satisfied that his ability to present his case was impacted by the claimed interpreter issues at the protection visa interview.[16]
[15] CB 182
[16] CB 182-183, [4]-[5]
The Authority found that the Authority submission also contained new information, in the form of new claims and new details about existing claims, as follows:[17]
(a)that the applicant had published posts and news since arriving in Australia about corruption in the Iranian system and the crackdown on Azerbaijani activists;
(b)that his father developed mental health issues and suffered consequences due to his uncles’ executions;
(c)that his father was called and interviewed regularly by the Iranian authorities;
(d)that he did not have news about his cousin JHK because JHK was either too unwell to contact people or he was being monitored by the authorities;
(e)that his ex-wife had easy access to his house because of Iranian family law;
(f)that there were other possibilities as to why he was reported to the authorities;
(g)that his ex-wife intended to seek an adultery charge; and
(h)that the applicant was an Azeri musician, and the authorities deemed Azeri musicians as having anti-government opinions.
[17] CB 183-184, [6]
The Authority found that only one of the items of new information was accompanied by an explanation about the timing of the claim or why it was not raised before the delegate, namely the claim that the applicant’s ex-wife intended to pursue an adultery charge against him.[18] However, the Authority found that the applicant had not explained whether he learnt of his wife’s intentions after the date of the delegate’s decision.[19]
[18] CB 185, [7]
[19] CB 184.7, [6]
The Authority found that no explanation had been given for why any of the new information was credible personal information. It referred to the numerous opportunities the applicant had (represented by a migration agent at all times) to present his claims, comprising the protection visa application, the protection visa interview, and post-interview submissions which raised a new claim on 3 July 2018. The Authority found that the applicant was on notice of the fast track review scheme which required him to raise all his claims at an early stage. The Authority found that the applicant was given ample opportunity to present his claims and that, in the absence of any explanation regarding their timing, the new claims were not credible. Further, the Authority found that no documentary evidence had been provided in support of any of the new claims.[20]
[20] CB 185, [7]
The Authority found the Authority submission also referred to items of country information which were not before the delegate. The Authority found that the applicant had been provided a copy of its Practice Direction, which required that extracts of new country information be provided and stated that hyperlinks were unacceptable. The Authority found that the submission had been prepared by a migration agent but that the submission did not attach any extracts and only provided hyperlinks. Accordingly, the Authority found that the submission did not comply with the Practice Direction, and exercised its power under s 473FB(5) of the Migration Act 1958 (Cth) (Migration Act) not to accept the new information referenced in the submission.[21]
[21] CB 185, [8]
The Authority accepted that the applicant was related to HMK, MF and JHK. In addition, it accepted that HMK and MF were members of MPRP and had been executed, and that JHK had been imprisoned by the Iranian authorities.[22]
[22] CB 187, [15]
The Authority found that the applicant’s evidence suggested that “some time” had passed between the time when his uncles were executed and when his father lost his job, which undermined the claimed contemporaneous connection between his father being removed from his job and the uncles’ political activities.[23] In any event, the Authority found that the applicant’s evidence was that his father was reinstated to the Air Force two years after the claimed job loss, and was subsequently promoted, received a military pension, owned his own home and had a good life. On that basis, the Authority did not accept the applicant’s father’s military career was adversely affected by any association to his family members.[24]
[23] CB 187, [16]
[24] CB 187, [17]
The Authority had regard to a statutory declaration dated 31 May 2016 by the applicant’s cousin, PD, in support of the applicant’s claims, but found it was inconsistent with the applicant’s own claims for protection and it gave it no weight. For example, it found PD’s statutory declaration claimed the applicant had been arrested and harmed in Iran “a number of times” because of his family history and involvement in political activities, but the applicant had never claimed he was arrested or harmed in relation to his uncles or JHK.[25]
[25] CB 188, [18]
The Authority found the applicant’s claim at the protection visa interview that his family had not heard from JHK, and that JHK’s release from custody had been fabricated by the government, was inconsistent with the evidence in the submissions provided with the protection visa application in 2016 that JHK had been temporarily released on bail and hospitalised with health problems. In addition, the Authority found the claims were inconsistent with three articles published by non-government organisations that indicated JHK was released from prison in June or August 2013. The Authority did not accept that stories from non‑government sources about JHK’s release had been fabricated, and was satisfied that JHK was released in 2013. The Authority found the inconsistency between the applicant’s claims and country information raised doubts about the applicant’s credibility as a witness.[26]
[26] CB 188, [19]
The Authority found that the applicant had raised a serious claim at the protection visa interview, that JHK’s brother had been executed by firing squad. On the basis that the applicant did not raise that claim in his protection visa application or provide any further detail at the protection visa interview, the Authority was not satisfied that JHK’s brother was executed as claimed.[27]
[27] CB 188, [19]
On the basis of independent country information about events concerning Azeris and about protests in Iran, the Authority accepted that the applicant had participated in protests in 2009 and may also have attended protests in 2006, but found he did not come to the attention of the authorities in 2006. The Authority accepted he may have been arrested, detained, and mistreated as a result of taking part in the 2009 protests, but found he had not claimed that he was subject to any attention or further consequences relating to the protests, such as criminal charges, after he was released. The Authority found the applicant had not claimed to have had an organisational role and that his involvement was as a low-level participant.[28]
[28] CB 189, [21]
The Authority had regard to a claim made during the arrival interview that the applicant was a member of an unspecified Azerbaijani political group. On the basis that the applicant had not subsequently pursued that claim, the Authority did not accept the applicant was a member of that group.[29]
[29] CB 189, [22]
The Authority accepted that the applicant held anti-regime views, supported the rights of Azeris, and that he may have been teased and insulted at school.[30]
[30] CB 189, [23]
The Authority had regard to the applicant’s claim that he printed anti-regime political material through his work as a printer.[31] Although the Authority accepted the applicant worked as a printer in Iran, because of its concerns about the applicant’s evidence it was not satisfied the applicant printed political material, and rejected all the applicant’s claims in that regard. In summary, the Authority found that the applicant gave “shifting evidence” at the protection visa interview and evidence which was inconsistent with his written claims;[32] provided similarly inconsistent evidence concerning details of his relationship with his ex-wife; and the Authority considered it was implausible that the applicant’s ex-wife discovered the claimed printed materials.[33]
[31] CB 189-191, [24]-[27]
[32] CB 190, [25]
[33] CB 190-191, [26]
On the basis of its findings concerning the applicant’s key claim, the Authority was not satisfied the applicant had any reason to fear harm from the Iranian authorities. The Authority also rejected the claims that the applicant travelled to Turkey out of fear, that his brother and employer were arrested, that the applicant’s brother was detained for 11-12 months, that the applicant spent nine months hiding in Tehran, that the authorities searched for him during that time, or that he paid bribes to depart Iran by air. The Authority found that “inconsistencies and implausibilities” in the applicant’s evidence about those claims raised “further doubts about his credibility as a witness”.[34]
[34] CB 191, [28]
The Authority found the applicant’s claims about departing Iran unlawfully were not credible because: he provided evidence in that regard in his written claims which was inconsistent with his evidence at the protection visa interview;[35] they were inconsistent with the Authority’s findings based on its assessment of relevant independent country information;[36] and they were implausible in light of the Authority’s earlier findings.[37]
[35] CB 191, [29]
[36] CB 191-192, [30]
[37] CB 192, [31]
The Authority had regard to the claim, contained in the submission provided to the delegate by the applicant’s representative on 18 July 2018, that the applicant’s father had been interviewed by the Iranian authorities on 3 July 2018. The Authority rejected this claim on the basis of its earlier findings about the applicant’s profile and the significant lengths of time between the applicant’s uncles’ political activity (40 years ago) and JHK’s release from prison (six years ago).[38]
[38] CB 192, [32]
In addition, the Authority found the applicant’s evidence about his father’s alleged conversation with the Iranian authorities lacked credibility because the applicant gave various reasons about why his father was questioned, but he failed to claim that it had anything to do with printing material or any association with his uncles or JHK.[39]
[39] CB 192, [33]
The Authority had regard to the undated screenshot of a Facebook page contained in the submission provided to the delegate by the applicant’s representative on 18 July 2018. The Authority found the screenshot was not accompanied by any explanation as to its meaning or significance, and did not support a finding that the applicant had participated in political activity in Australia.[40]
[40] CB 193, [34]
The Authority found the applicant’s religious claims were credible and accepted that he did not believe in or practise Islam.[41]
[41] CB 193, [35]
On the basis of its assessment of independent country information, the Authority found that the applicant may experience “some occasional low-level discrimination on account of his ethnicity”, but that such discrimination would not amount to serious harm.[42]
[42] CB 194-195, [40]
The Authority was not satisfied that the applicant intended to publicise his political views or engage in future political activity. On the basis of its earlier factual findings and its assessment of independent country information, the Authority found that the applicant would not receive adverse attention from the authorities arising from his participation in protests in 2006 and 2009, and did not face a real chance of harm arising from his political opinion.[43]
[43] CB 195, [42]
On the basis of its findings about the passage of time since the events concerning JHK and the applicant’s uncles, and its finding that neither the applicant nor his family were of any ongoing interest to the authorities arising from those events, the Authority found that applicant did not face a real chance of harm in Iran arising from those events.[44]
[44] CB 195-196, [43]
The Authority had regard to a claim made during the protection visa interview that there might be Iranian agents operating in Australia, and found there was no evidence to support that claim.[45]
[45] CB 196, [44]
On the basis of its assessment of independent country information, the Authority was not satisfied the applicant faced a real chance of harm arising from his religious views[46] or status as a failed asylum seeker returned from a Western country.[47]
[46] CB 196, [45]-[46]
[47] CB 196-197, [47]-[48]
The Authority had regard to the applicant’s claims cumulatively,[48] and found he did not meet the requirements of s 36(2)(a) of the Migration Act.[49]
[48] CB 197, [49]
[49] CB 197, [50]
In its complementary protection assessment, the Authority found that any discrimination the applicant might face on the basis of his ethnicity did not amount to significant harm as defined by the Migration Act.[50] The Authority otherwise relied on its earlier factual findings and found that the applicant did not face a real risk of significant harm for any reason, and accordingly did not meet the requirements of s 36(2)(aa) of the Migration Act.[51]
[50] CB 198, [54]
[51] CB 198, [53]-[55]
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 17 July 2019. The application was filed outside the time prescribed under s 477(1) of the Migration Act. On 9 August 2019, I granted an extension of time under s 477(2). I also provided the parties the opportunity to file further material. Relevantly, the applicant was to file any amended application by 26 November 2019.
An amended application was filed on 22 March 2021. The applicant sought leave to rely upon it, which the Minister opposed. The applicant filed an affidavit made by his solicitor in support of the granting of leave with the amended application and I received it at the trial on 20 May 2021. I granted the leave sought, taking into account the applicant’s financial difficulties, the late engagement of counsel, the narrowing of the field of dispute between the parties and the fact that the Minister had dealt with the ground in the amended application in the Minister’s written submissions.
There is a single ground in the application as amended:
1.The Authority made a jurisdictional error by failing to consider the application of s 5J of the Migration Act 1958 (Cth) (Act).
a. The Authority noted at paragraph 20 of its decision the claims of the Applicant that he had participated in a protest in support of the rights of Azeri people in 2009, as a result of which he was arrested, detained and harmed;
b. The Authority found at paragraph 21 of its decision that the Applicant had been arrested and mistreated as claimed for participating in the protest in 2009;
c. The Authority found at paragraph 42 of its decision that it was “not satisfied on the evidence that the applicant intends to publicise his views or to engage in further political activity in the future”;
d. The Authority failed to ask why the Applicant would refrain from publicising his views or engaging in further political activity and, in particular, whether he would refrain from doing so on account of his past harm for the purposes of s 5J(3)(c)(iii) of the Act.
I received as evidence the court book filed on 2 October 2019.
Both the applicant and the Minister filed pre-hearing written submissions, including submissions in reply by the applicant. The parties also made oral submissions through their counsel at the trial. I have been assisted by those submissions.
CONSIDERATION
Applicant’s contentions
Statutory provisions
There is no issue of statutory interpretation in the present case. Section 65(1)(a)(ii) of the Migration Act requires the Minister to grant a visa if satisfied that the prescribed criteria are met. If the Minister is not so satisfied, he is required by s 65(1)(b) of the Migration Act to refuse the visa. The prescribed criteria for the visa are set out in clause 790.221(2) of Schedule 2 to the Migration Regulations 1994 (Cth). That provision adopts the criteria for a protection visa in provisions including s 36(2)(a) and s 36(2)(aa) of the Migration Act.
Section 36(2)(a) of the Migration Act provides that a criterion for the protection visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H.[52] That definition requires the applicant for the visa to have a “well-founded fear of persecution”.[53] The latter expression is defined by s 5J of the Migration Act.
[52] see s 5(1) of the Migration Act
[53] see s 5H(1)(a) of the Migration Act
Section 5J has a number of elements. Broadly, they may be described as follows:
(a)there is a definition of “well-founded fear of persecution”, which must be for “reasons of race, religion, nationality, membership of a particular social group or political opinion” (s 5J(1)(a)) and there must be a “real chance” of its occurrence (s 5J(1)(b));
(b)to constitute persecution, there must be involved “serious harm” (s 5J(4)(b)), which is defined inclusively but not exhaustively;[54]
(c)a “well-founded fear of persecution” does not arise where “effective protection measures are available to the person in a receiving country” (s 5J(2)); and
(d)conduct by the applicant for the visa in Australia is rebuttably excluded from consideration (s 5J(6)).
[54] section 5J(5); the applicant refers to my decision in EUW19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 11 at [54] and ANC17 v Minister for Immigration & Anor [2020] FCCA 707 at [24] per Judge Cameron, refusing to follow AYY17 v Minister for Immigration & Anor [2017] FCCA 2886 at [44] per Judge Vasta
There is another circumstance in which s 5J provides that a “well-founded fear of persecution” does not arise. This is where the applicant for the visa “could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution”.[55] However, the carve out does not apply where the modification of behaviour would, in particular, require the applicant to “alter his or her political beliefs or conceal his or her true political beliefs”.[56]
[55] section 5J(3)
[56] section 5J(3)(c)(iii)
It is settled that the Minister’s state of satisfaction with respect to the above provisions is judicially reviewable in the event that he makes a jurisdictional error.[57] The Court has jurisdiction to perform judicial review in the present case.[58]
[57] see, by parity of reasoning, Mouflih v Minister for Home Affairs [2019] FCA 1744 at [28] per Rangiah J and authority cited there
[58] see s 476(1)
Decision of the Authority
The reasons for decision of the Authority are detailed. The applicant’s case on judicial review challenges a particular aspect of the reasons. The applicant provided extracts from the reasons as relevant to the application for judicial review.
The Authority made the following findings with respect to “inter-clan violence” affecting the applicant:[59]
20.In his TPV application, the applicant claims that he was arrested and detained for one week for taking part in protests in 2009 in Tabriz. He claims that he was kicked by the authorities and broke some teeth when he fell onto some steps, and that he experienced verbal, psychological and physical abuse. He gave further evidence at his TPV interview that he was protesting against the Islamic Republic, and that the protests were related to the elections and also to a magazine article which referred to Turkic people as cockroaches, which triggered a demonstration in 2006. He said that these were different incidents and confirmed that he was arrested in 2009.
21.Country information indicates that the Iranian newspaper printed a cockroach cartoon and article critical of Azeris on 12 May 2006, which sparked a wave of demonstrations against the regime among Azeris across the country, but mainly in the Azerbaijani-populated cities of north western Iran. This article also indicates that national identity among Iran’s Azerbaijani Turks was evident during the 2009 presidential elections, as among the candidates was opposition leader Mir Hussein Mousavi, an ethnic Azerbaijani, who vowed to secure equal rights for the country's minorities. Mousavi's failure in the presidential elections led to demonstrations by his adherents against the Iranian central government. DFAT also provides that following the June 2009 presidential election, up to three million supporters of reformist candidate Mir Hossein Mousavi turned out on Tehran streets to protest the official verdict, and that in the following six months, it evolved from a mass group of angry voters to a nation-wide force peacefully demanding the democratic rights originally sought in the 1979 revolution. Given the large numbers of people who took part in the protests around the country after the election, I am willing to accept that the applicant participated in protests in 2009, and that he may have also attended protests in response to the newspaper article in 2006 but did not come to the adverse attention of the authorities in 2006. I accept that he may have been arrested and mistreated as claimed in 2009, but note that he has not raised any claims that he was subject to any attention or there were any further consequences relating to the protests after his release, such as charges or any other sort of follow up action. I also note that he has not claimed that he held an organisational role, and I find his involvement was on the basis that he was a low level participant.
...
41.I have referred above to the country information about the newspaper article critical of Azeris in 2006 and the subsequent demonstrations by Azeris across the country and particularly in the Azerbaijani-populated cities of north western Iran. In relation to the protests in 2009, DFAT indicates that Iran’s security forces arrested hundreds of demonstrators and beat and harassed thousands more during and after the protests in 2009, and that more than 100 of the movement’s most important leaders, activists and theorists appeared in a series of “show trials” from late 2009. Given the period of time that has elapsed, DFAT assesses that it would be highly unlikely that those arrested at the time for simply participating in the protests would remain imprisoned, or would face continuing surveillance or harassment. DFAT also assesses that those who had a more active organisational role in the movement, and have a higher profile, are more likely to face continuing official attention and possible harassment.
42.I have accepted that the applicant supports the rights of Azeri people to use the Azeri language and have their own culture and that he holds anti-regime views, but I am not satisfied that other than taking part in protests in 2006 and 2009 he has publicised these views either in Iran or Australia. I do not accept that the applicant printed Azeri political pamphlets or that he joined any Azeri political groups while he was in Iran. I also do not accept that the applicant has been politically active since he has been in Australia or that his father has been questioned by the authorities in Iran in relation to the applicant’s Facebook post or other activities in Australia. I have accepted that the applicant participated in protests against the regime in Iran, in relation to an anti-Azeri cartoon and article in 2006 and the elections in 2009. The applicant did not raise any claims that he came to the adverse attention of the authorities in relation to the protests in 2006, and while I have accepted that the applicant was arrested and detained for one week in 2009, I am not satisfied that he held an organisational role or that he was of any subsequent interest to the authorities for his role in the protests. Having regard to the length of time that passed between the protests in 2009 and the applicant’s departure in 2012 without him receiving any adverse attention from the authorities for his role in the 2009 protests, and given the country information, I am not satisfied that there is a risk the applicant would receive any adverse attention from the authorities in the future for his low-level participation in protests in 2009. I am not satisfied on the evidence that the applicant intends to publicise his views or to engage in further political activity in the future. For all of these reasons, I consider it remote that the applicant has a profile with the Iranian authorities or would come to the adverse attention of the authorities because of his involvement in protests in 2009 or 2006 or otherwise because of his views, and I am not satisfied that there is a real chance that the applicant would face harm for his involvement in protests or his political opinion if he returns to Iran, including when considered together with his Azeri ethnicity.
[59] CB 188 [20], CB 189 [21], CB 195 [41]-[42], references omitted
The effect of s 5J of the Migration Act was recently considered by the Full Federal Court, constituted by White, Bromwich and Burley JJ, in ADL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[60] For present purposes, the following propositions may be reproduced from their Honours’ reasons for judgment. Their Honours summarised the effect of s 5J(3) of the Migration Act as follows at [23]:
Section 5J(3) is in the nature of a qualification of the expression “well‑founded fear of persecution” contained in subs (1), in that it provides that a person does not have such a fear if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. That qualification is itself qualified by the provision that the modifications which the person may make are not to have any of the effects mentioned in subparas (a), (b) or (c). As explained by Bromwich J in AWL17 v Minister for Immigration and Border Protection [2018] FCA 570 at [41], s 5J(3) has the effect that a reasonable modification of conduct can be expected provided that it does not go so far as to compromise the essential terms of the Refugee Convention. That is to say, reasonable steps by way of modification of behaviour to avoid a real chance of persecution can be expected, but not if doing so would have any of the effects listed in s 5J(3)(a)‑(c). If the modification would have such an effect, the reasonableness or otherwise of the steps by which the modification may be effected does not arise. An applicant is not expected to take those steps. Otherwise, the ability of an applicant to take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution is to be taken into account.
[60] [2020] FCAFC 178
In ADL17, the Court also emphasised the relationship between s 5J(1) and s 5J(3) of the Migration Act in light of reasoning in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[61] The Court in ADL17 observed at [43]-[44]:
The absence of attention to this issue in the consideration of the appellant’s claim which culminated in the decision of the Authority is unfortunate because, as was noted by McHugh and Kirby JJ in S395 at [31], in a case of the present kind, “defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well‑founded fear of persecution”. Their Honours went on to say:
Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well‑founded and is causally related to the particular social group.
(Citation omitted)
In our view, that reasoning is equally applicable to the statutory expression of the term “well‑founded fear of persecution” in s 5J. Apart from any other consideration, it is not easy to see how the assessment can be made of whether an applicant can take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, if the basis on which it is claimed that there is a well‑founded fear of such persecution has not been identified.
[61] (2003) 216 CLR 473
It is said to follow from ADL17 that s 5J(3) of the Migration Act depends upon a prior finding that a person faces a real chance of persecution for a Refugees Convention reason. In other words, it is only when there is finding as to the presence of persecution that the Authority could go on to find impermissible modification under a provision such as s 5J(3)(c)(iii), resulting in the grant of a protection visa.
However, this would not prevent the Authority, when refusing a protection visa, from assuming, without deciding, the presence of persecution, before proceeding to find permissible modification under s 5J(3) of the Migration Act. In other words, while s 5J(3) depends on a prior finding of persecution for the grant of a protection visa, it is available without such a finding as a basis for refusing a protection visa. There is nothing in ADL17 to preclude such an approach.
In any event, the applicant submits that there is one thing the Authority cannot do. In a case which involves past harm on account of the applicant’s conduct and a finding that such conduct will not be repeated, the Authority cannot refuse a protection visa while leaving undecided whether:
(a)the harm did or would constitute persecution; or
(b)whether the modification is permitted by, or is unrelated to, s 5J(3) of the Migration Act.
The concept of modification permitted by s 5J(3) of the Migration Act is clear enough. Drawing upon the above passages of ADL17, it is conduct which the applicant can reasonably engage in to avoid persecution and conduct which is not insulated from modification by s 5J(3)(c) of the Migration Act, such as concealing political beliefs under s 5J(3)(c)(iii) of the Migration Act.
Perhaps less clear is modification unrelated to s 5J(3) of the Migration Act. This arises where the Authority finds that modification would be present but it would not be “so as to avoid” persecution. In other words, persecution would not occur because there would be behavioural change by the applicant which would not be on account of persecution but would rather occur independently. There is no reason why the Authority could not consistently with s 5J rely on the foregoing to refuse a protection visa.
In short, the applicant submits that where the Authority:
(a)finds the conduct of the applicant has previously led to harm;
(b)does not deny such harm then had, or would occur in the future with, the status of persecution; and
(c)does not find the conduct would regardless of harm not recur,
then the Authority is required to assess the applicant’s case for modification under s 5J(3) of the Migration Act. A failure to do so ought constitute jurisdictional error.
It may be added that s 5J only applies in relation to claims of persecution which are expressly put or otherwise emerge from the materials before the Authority. In the absence of such a claim, there can be no error of the sort described.[62]
[62] CDY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 325 at [62]-[66]
However, the applicant submits that there is such an error in the present case. The effect of the 2009 protests was evidently part of the applicant’s case for a protection visa. The Authority accepted that the 2009 protests had led to harm to the applicant. The Authority did not suggest the harm had not constituted persecution or would there would be no such harm again. While the Authority found that the applicant would not face further harm on account of the 2009 protests, the Authority made no finding that there would be no harm if the applicant engaged in protests again. The Authority found that the applicant did not intend to do so.
The applicant contends that there was no finding by the Authority as to why the applicant did not intend to do so. In particular, there was no finding as to whether the applicant did not intend to protest, or did not intend to move beyond low level involvement in protesting, on account of the past harm and its possible recurrence. In short, the applicant contends that the Authority found a modification of behaviour, but did not assess whether or not the modification was permissible or impermissible under s 5J(3) of the Migration Act. It failed to do so in circumstances where there was no other finding by it relating to protests which would otherwise support refusal of the protection visa under s 5J of the Migration Act.
In reply, the applicant noted the relationship between s 5J(3) of the Migration Act and Appellant S395/2002 and the dictum that Appellant S395/2002 “should not be extended beyond its rationale” at [51]. The applicant submits that the dictum has, in effect, been incorporated in s 5J(3) of the Migration Act. The applicant also sought to distinguish the decision of the Full Federal Court in AYY17 v Minister for Immigration and Border Protection.[63]
[63] (2018) 261 FCR 503 at [18] and [26]
Resolution
I prefer the submissions of the Minister on the issue raised by the ground of review. The applicant’s attack on the Authority’s reasons focuses in particular on [42] of the Authority decision.[64] In my view, it is tolerably clear from that paragraph, read in context with the rest of the decision, that the Authority was alive to the accepted fact that the applicant suffered harm as a result of his protest activity in 2009 (and possibly earlier) but did not overlook a claim that the applicant had ceased protesting activity because of that harm sustained. Rather, the Authority viewed the applicant’s protest activity as being a transitory event because of particular facts and circumstances at the relevant times. Those facts and circumstances had not been repeated. There was nothing before the Authority to indicate that the applicant would resume his protest activities.
[64] CB 195
The ground of review alleges a misapplication of s 5J(3) of the Migration Act in that, despite having accepted[65] that the applicant was arrested, detained, and assaulted by the Iranian authorities because he took part in a protest in 2009, the Authority found[66] it could not be satisfied on the evidence that the applicant intended to engage in future political activity without having asked whether the applicant would refrain from political activity because of his experience in 2009.
[65] at CB 188-189, [20]-[21]
[66] at CB 195, [42]
The ground essentially amounts to a retrospective recasting of the applicant’s case before the Authority on a different basis after the Authority’s decision was made.[67] The relevance of the 2009 protest to the applicant’s claims was that his involvement in that protest led to an adverse profile with the authorities which, combined with his other political activities, meant he would be arrested and tortured if returned to Iran.[68] The applicant did not claim that he wanted to participate in protests after 2009 or was prevented from doing so. He did not claim that he desired to participate in any future protests but would face persecution if he did so. In retrospect, the applicant now alleges the Authority was required to consider a claim along those lines.
[67] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]; Appellant S395/2002 at [1]
[68] CB 172.6
The terms of s 5J(3) clearly mean that the provision operates after a finding that an applicant might face a real risk of persecution. Once such a finding is made, s 5J(3) operates to limit the scope of that persecution to circumstances where an applicant could not avoid the persecution by reasonably modifying his behaviour.
The applicant’s suggestion that the Authority was required to assess his past conduct against the principle from Appellant S395/2002 (which s 5J(3) was enacted to codify[69]), in the absence of any finding of persecution, has no foundation in Appellant S395/2002 and is incompatible with the terms of s 5J(3). The principle in Appellant S395 “should not be extended beyond its rationale”.[70]
[69] Australia, House of Representatives, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, Explanatory Memorandum at 174 at [1194]
[70] Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 at [37]; DQU16 v Minister for Home Affairs (2021) 95 ALJR 352 at [26]
Although the Authority accepted that the applicant took part in protests in 2006 and 2009, and was harmed as a result of his participation in 2009,[71] it was not required to make findings about whether the applicant had a well-founded fear of harm in the past or whether that harm amounted to persecution.[72] Past events only become relevant when they act as a guide to the future.[73] The Authority[74] adequately considered whether any future harm arose as a result of the applicant’s involvement in the 2009 protest, and no complaint is made about those findings.
[71] CB 189, [21]
[72] Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 at [35]-[36]
[73] see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575
[74] at CB 195, [42]
Unless there was a claim that the applicant would participate in future protests, or could not do so because of a well-founded fear, the Authority was not required to analyse the past events to any greater extent. Unless that claim arose, the Authority was not obliged to make specific findings about the consequences of the applicant possibly being unable to participate in future protests.[75]
[75] see SZTYZ v Minister for Immigration and Border Protection [2016] FCCA 1443 at [57], upheld on appeal in SZTYZ v Minister for Immigration and Border Protection [2016] FCA 1360
Accordingly, for the applicant to succeed, it must be established that a claim clearly arose on the materials (in the sense discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[76] and AYY17), that the applicant faced a real chance of persecution on the basis of his future participation in political protests.
[76] (2004) 144 FCR 1
That such a claim might be said to arise from the materials is an insufficient basis to find the claim did arise, and such a finding is not to be made lightly.[77] There is no lower threshold in this regard for an argument relating to the principle in Appellant S395/2002.[78] The Court is less willing to make such a finding when an applicant has been represented throughout his application, as is the case here.[79] The applicant had every opportunity, assisted by his representatives, to claim that he feared harm from future protest activity.
[77] NABE at [68]; AYY17 at [18]
[78] DHQ17 v Minister for Immigration and Border Protection [2019] FCA 1975 at [48]
[79] Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 at [21]; AYY17 at [18]
The Authority at [20]-[21][80] accepted that the applicant attended a protest in 2006 (where he experienced no harm) and attended another protest in 2009 where he was kicked by the Iranian authorities and had some teeth knocked out after falling. Those findings are an insufficient basis on which the Court could be satisfied that a claim arose on the materials that the applicant ceased attending protests in the past because he feared harm or intended to continue protest activity in the future in Iran. Nor do they indicate that the Authority found or inferred that the applicant had modified his behaviour in the past[81] or may be required to do so in order avoid harm from attending protests in the future.
[80] CB 188-189
[81] Cf. Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
The established facts did not support a claim that the applicant desired to participate in future protest activity or would refrain from doing so because of a fear of harm. There was no evidence concerning the applicant’s intentions in that regard.[82] Accordingly, no consideration of s 5J(3) was required, and the Authority did not err.
[82] See DHQ17 at [46]
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 25 June 2021
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