DDK16 v Minister for Immigration and Border Protection
[2017] FCCA 353
•31 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 353 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority – refusal of a protection visa – applicant claiming a fear of harm in Iran for various reasons – whether the Authority failed to disclose relevant material to the applicant, or applied the wrong test for complementary protection or overlooked a relevant consideration considered – error established in respect of the cumulative assessment of the applicant’s claims. |
| Legislation: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AFK16 v Minister for Immigration [2016] FCCA 1826 AFK16 v Minister for Immigration (No.2) [2016] FCCA 1827 AQS15 v Minister for Immigration [2016] FCA 1362 AZAFH vMinister for Immigration [2016] FCA 1363 Bhasani v Minister for Immigration [2000] FCA 1773 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZSRS (2014) 309 ALR 67 MZWPD v Minister for Immigration [2006] FCA 1095 MZZUG v Minister for Immigration [2015] FCA 1151 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration [2004] FCA 1695 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 WZARV v Minister for Immigration (2014) 144 ALD 82 |
| Applicant: | DDK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2895 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 February 2017 |
| Date of Last Submission: | 21 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Carey |
| Solicitors for the Applicant: | Wotton + Kearney |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 12 September 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine the review referred to it, according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2895 of 2016
| DDK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Iran who entered Australia, by boat, on 22 September 2012[1].
[1] Court Book (CB) 132 [4]
On 11 October and 2 December 2012, the applicant took part in an Arrival Interview and an Irregular Maritime Arrival Entry Interview, respectively, with officers in the Minister’s Department (Department)[2].
[2] CB 1-11, 12-27
On 13 August 2015, the applicant was advised by the Department that the Minister had decided to exercise his power under s.46A of the Migration Act 1958 (Cth) (Migration Act) to permit him to make an application for, relevantly, a SHEV[3].
[3] CB 132 [4]
The applicant applied for a SHEV on 4 January 2016[4]. As part of his application, the applicant provided a statement dated 17 December 2015, together with various annexures, in which he discussed his claims for protection[5]. In short, the applicant claimed to fear harm by reason of the following:
a)religion: the applicant was raised a Shia, converted to Christianity in Australia in 2013, but has since become disillusioned with all religions[6];
b)mental health condition: the applicant has previously been diagnosed as having a personality disorder and is volatile as a result of his mental health condition. He claimed that he did not fit within the norms of Iranian society and was a member of the particular social group comprising resistant, defiant, young and “Bolshi” individuals[7]. He also claimed that he suffered from Attention Deficit Disorder (ADD)[8];
c)previous arrests: the applicant claimed to have been arrested on a number of occasions[9]. In 2003, he was charged and imprisoned for 12 days for drinking alcohol and engaging in immoral behaviour; in 2004, he was arrested after an altercation with a police officer, having been accused of armed robbery (but the case was later dismissed on account of a lack of evidence); in 2007, the applicant was arrested for drinking alcohol and disturbing the peace, and was, following an appeal, sentenced to a three-year good behaviour bond and 80 lashes; and, in 2009, he was implicated in an altercation that took place at one of his father’s shops and was sent to prison for 29 days;
d)political opinion: the applicant claimed to have participated in anti-government demonstrations on about four or five occasions in Shiraz, Iran in 2009 and 2010[10]. He also claimed to have attended a demonstration against the Iranian government in Sydney in 2014[11]. During the interview with the delegate, however, he said that he attended about three or four demonstrations in Sydney but could not remember the dates on which they took place[12]. The applicant claimed that he was against the Iranian government and has shared videos on his Facebook page critical of Islam[13]. During the interview with the delegate, the applicant’s then representative argued that he has “an anti-regime political opinion and he is anti-Sharia Law as he drank alcohol”[14].
e)reasons for departing Iran: The applicant claimed that, in 2012, some men in plain clothes ransacked his father’s house and were looking for the applicant and demanded that he report to the police station[15]. He claimed that he did not know why people were looking for him but feared that, if he were to remain in Iran and be arrested for a third time, he could face the death penalty[16].
[4] CB 28-106, 132 [3]
[5] CB 72-106
[6] CB 72 [2]
[7] CB 147 [81]
[8] CB 73 [15]-[16], [18], 74 [20], 152 [103]
[9] CB 74-75 [21]-[38]
[10] CB 149 [91]
[11] CB 76 [50]
[12] CB 145-146 [73]
[13] CB 146 [76]
[14] CB 147 [81]
[15] CB 75 [40]
[16] CB 76 [41], [45]-[46]
The applicant claimed that, if he were to be returned to Iran, he feared that he will face arbitrary arrest and detention and be accused by the Iranian authorities of something that he did not do[17].
[17] CB 76 [44]
On 19 April 2016, the Department invited the applicant to participate in an interview with the delegate[18]. The applicant did so on 13 May 2016[19].
[18] CB 117-124
[19] CB 132 [3]
On 11 July 2016, the delegate refused to grant a SHEV to the applicant[20].
[20] CB 131-164
Merits review
On 12 July 2016, the Minister referred the delegate’s decision, being a fast track reviewable decision, to the Authority pursuant to s.473CA of the Migration Act. The applicant was notified of the referral in a letter from the Authority of the same date and was advised that he may provide new information to the Authority for it to consider in limited circumstances[21].
[21] CB 165-176
The applicant did not provide any further information to the Authority[22].
[22] CB 184 [3]
On 12 September 2016, the Authority affirmed the delegate’s decision[23]. The Authority’s key findings are referred to, and discussed, below in the context of addressing the applicant’s grounds in these proceedings.
[23] CB 183-201
The present proceedings
These proceedings began with a show cause application filed on 24 October 2016. The applicant now relies upon a further amended application filed after the trial of this matter by leave on 7 March 2017. The grounds in that application are:
1. The second respondent (the IAA) by affirming the decision of the first respondent (the Minister) by his delegate (the Delegate) in circumstances in which the Delegate had failed to deal with the Applicant’s claims in accordance with section 57(2) of the Act, failed to exercise its function under s.473CC of the Migration Act (the Act).
Particulars
i. In making findings in relation to the Applicant’s mental condition and its relevance, the Delegate relied upon country information that was not disclosed to the Applicant at interview and to which the Applicant was denied the opportunity of responding.
ii. That information disclosed that certain mental health services were available generally in Iran.
iii. The Delegate found that the Applicant could reasonably access the services referred to in that information to manage his mental health condition if he was returned to Iran.
iv. The information was therefore relevant information for the purposes of s.57(1) of the Act.
v. The Delegate’s error was one that the IAA was required to address in the exercise of its review function under s.473CC of the Act.
vi. The IAA failed to address the Delegate’s error and instead relied upon the same or similar information.
vii. The IAA thereby failed to exercise its jurisdiction under s.473CC of the Act.
2. The IAA erred by applying an incorrect test to determine whether the Applicant was a person to whom Australia has protection obligations for the purposes of s.36(2)(aa) of the Migration Act and by failing to consider all of the integers of the Applicant's claim cumulatively.
Particulars
i. The IAA erred by:
1. equating the test applicable under s.36(2)(aa) with the test to determine whether or not the Applicant was a refugee for the purposes of s.36(2)(a) and ss. 5J(l) and 5J(4)(b) of the Migration Act; and
2. failed to consider whether, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iran, there is a real risk that the Applicant will suffer significant harm.
ii. The IAA in addressing the Applicant's claim for complementary protection under s. 36(2)(aa) failed to consider the risk that the Applicant will suffer significant harm as defined in section 36(2A)(d) of the Act if returned to Iran.
iii. The risk referred to in sub-paragraph (ii) above was that if the Applicant was removed from Australia to Iran, he may become liable to be convicted and sentenced to a punishment involving further corporal punishment.
iv. The risk referred to in sub-paragraph (ii) and (iii) above was an essential element or integer of the Applicant's claim and was readily apparent from the documents provided to the IAA by the Secretary, including the Applicant's statement dated 17 December 2015 and supporting documentation, and arose directly from the IAA's own findings that:
1. the Applicant had previously been diagnosed with and suffered from a personality disorder;
2. the Applicant had previously engaged in activity in Iran considered to be anti-social in Iran;
3. the Applicant had previously illegally consumed alcohol in Iran;
4. the Applicant had previously been convicted of offences in Iran involving the consumption of alcohol and anti-social behaviour;
5. the Applicant had previously been sentenced in Iran to receive 80 lashes; and
6. such sentence had in fact been carried out.
v. In failing to consider whether the risk referred to in sub-paragraphs (ii) and (iii) above arose from the matters referred to sub-paragraph (iv) above in the context of the Applicant's claim for complementary protection under s.36(2)(aa), the IAA failed to cumulatively consider the Applicant's claims.
3.The IAA erred by failing to take into consideration a relevant consideration for the purposes of s.36(2)(aa) of the Migration Act.
Particulars
i. The IAA failed to have regard to the risk referred to in paragraphs 2(ii) and (iii) above in the context of the Applicant's claim for complementary protection under s.36(2)(aa).
ii. The IAA failed to consider whether harm in the nature of that referred to in paragraph 2(iii)(3) and paragraphs 2Civ)(5) and (6) above, would amount to significant harm for the purposes of s. 32C2A)(d).
iii.The IAA failed to have regard to the fact, as found, that the Applicant had in the past been subjected in Iran to punishment amounting or capable of amounting to significant harm for the purposes of s. 32C2A)(d).
In addition to the book of relevant documents filed on 30 November 2016, I have before me as evidence the affidavit of Natalie Bountros made on 16 February 2017, to which is annexed a transcript of an interview conducted on 13 May 2016 at Villawood Immigration Detention Centre. Both the applicant and the Minister prepared pre‑hearing submissions and made helpful oral submissions at the trial of this matter on 28 February 2017. I permitted the applicant to file and serve a further amended application after the trial in order to align the grounds in the application with his submissions. I also permitted post-hearing submissions to be filed by both parties. That was done.
Consideration
Jurisdiction
As with decisions of the Administrative Appeals Tribunal (AAT) made pursuant to ss.349(2) and 415(2) of the Migration Act, this Court has jurisdiction under s.476 to entertain reviews of decisions of the Authority made pursuant to s.473CC(2), being migration decisions as defined in s.5(1)[24].
[24] see AFK16 v Minister for Immigration (No.2) [2016] FCCA 1827
This Court does not, however, have jurisdiction to entertain an application for judicial review of a decision of the Minister’s delegate, made pursuant to s.65, to refuse to grant a SHEV to an applicant. Such a decision is a “primary decision”, as defined in s.476(4)(c). It follows that this Court has no jurisdiction[25]. Accordingly, the Court declined to entertain the applicant’s challenge to the delegate’s decision as framed in his original application.
[25] Section 476(2)(a)
Before dealing with the applicant’s grounds of review, it is useful to set out some of the key features of the framework in Part 7AA of the Migration Act, which I have referred to in recent decisions.
Statutory framework
The Fast Track Assessment Process (FTAP) was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The aim of the FTAP is to provide an efficient and cost-effective means of processing the protection visa applications of those who arrived in Australia as unauthorised maritime arrivals (UMAs) on or after 13 August 2012 and before 1 January 2014.
A person who is subject to the FTAP is a “fast track applicant”—a concept defined in s.5(1). It is not in dispute that the applicant was one such applicant.
A person is a “fast track review applicant” if he or she is a “fast track applicant who is not an excluded fast track review applicant”[26]. It is not in dispute that the applicant was a fast track review applicant.
[26] Section 5(1)
Subject to certain exceptions which are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant. Once again, there is no dispute that the delegate’s decision was a fast track decision.
Part 7AA of the Migration Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants.
Division 8 of Part 7AA[27] establishes the Authority, the body conducting reviews of fast track reviewable decisions.
[27] Sections 473JA-473JF
Division 2 of Part 7AA[28] sets out the procedure for referring reviewable decisions to the Authority.
[28] Sections 473CA-473CC
Under s.473CA, the Minister must refer a “fast track reviewable decision” to the Authority as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s.473BB as, relevantly, a fast track decision in relation to a fast track reviewable applicant.
Once the Minister has referred a fast track reviewable decision to the Authority, s.473CB requires the Secretary of the Department to give to the Authority certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral, namely:
a)a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and gives the reasons for the decision;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under s.473CA) to the decision-maker before the decision was made;
c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; and
d)the applicant’s contact details.
Subsection 473CC(1) requires the Authority to review a fast track reviewable decision referred to it. Subsection 473CC(2) provides that the Authority may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth).
Division 3 of Part 7AA[29] deals with the manner in which reviews are to be conducted by the Authority.
[29] Sections 473DA-473DF
Subsection 473DA(1) provides that Division 3 of Part 7AA, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the Immigration Assessment Authority”. It is important to note that this provision is couched in broader terms than ss.357A(1) and 422B(1) and has been found to operate to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the Authority[30].
[30] AFK16 v Minister for Immigration [2016] FCCA 1826 at [12] per Judge Cameron
While it is clear that the Authority is obliged, by s.473CC, to “review” the delegate’s decision under s.65, the powers conferred on the Authority to conduct this review are more limited than those powers conferred on the AAT by ss.348 and 414. Subsection 473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the Authority under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subsection 473DC(1) permits the Authority, subject to Part 7AA, to “get any documents or information” (called “new information”) that “were not before the Minister when the Minister made the decision under section 65” and “the Authority considers may be relevant”. Subsection (2) confirms the discretionary nature of the power in subsection (1) by providing that the Authority “does not have a duty to get, request or accept any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances”.
However, new information can only be considered by the Authority if the requirements of s.473DD are satisfied. Section 473DD provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering that information; and
b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by him or her, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Subsection 473DE(1) imposes certain disclosure obligations on the Authority similar to those imposed on the AAT by ss.359A and 424A.
Division 5 of Part 7AA contains provisions relating to the exercise of powers and functions by, relevantly, the Authority. It suffices only to note s.473FA(1), which provides that the Authority, in carrying out its functions under the Migration Act, is to pursue the objective of “providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” This reinforces the legislature’s aim of establishing a form of review that is limited in scope and efficient. Subsection 473FA(2) provides that, in reviewing a decision, the Authority is not bound by technicalities, legal forms or rules of evidence.
Ground 1 – did the Authority err by failing to correct an error of the delegate?
Applicant’s submissions
The applicant contends that the delegate failed to deal with the applicant’s claim in accordance with s.57(2) of the Migration Act and the Authority failed to exercise its function under s.473CC of the Migration Act. The particulars explain that the delegate relied upon country information bearing upon the applicant’s mental condition and its relevance which was not disclosed to the applicant and to which the applicant was denied the opportunity of responding. The applicant contends that the delegate thereby made an error which the Authority was required to address in the exercise of its review function under s.473CC of the Migration Act. The applicant contends that the Authority failed to address the delegate’s error and relied upon the same or similar information as that which the delegate relied upon.
I prefer the Minister’s submissions in relation to this ground.
At [26] of his pre-hearing submissions, the applicant asserts that the delegate denied him procedural fairness because:
the Country Information relied upon in relation to the finding of both the Delegate and the Authority to the effect that the Applicant could and would access mental health services in Iran sufficient to eliminate the risk that he might suffer serious harm as a result of his mental condition was not put to [him] by the Delegate in his protection interview.
It is then argued, in the final sentence in [26], that the Authority made a jurisdictional error because “[t]hat omission was not addressed at all” by the Authority.
Aside from the fact that this Court has no jurisdiction under s.476 of the Migration Act to entertain applications for judicial review of primary decisions, the difficulty with the applicant’s submission is that the delegate was not required to give to the applicant particulars of country information, including particulars of the material concerning Iran’s mental health system to which it referred at [139][31], and invite him to comment on that information. That is the effect of s.57(1)(b) of the Migration Act. As French CJ, Gummow, Hayne, Crennan and Kiefel JJ held in Saeed v Minister for Immigration[32]:
Not all information adverse to a visa applicant, and which may be influential to a decision to refuse to grant a visa, qualifies as ‘relevant information’, particulars of which must be provided by the Minister. Section 57(1)(b) limits the information to that which is specific to the visa applicant or another person, rather than a class of persons. More general information, such as country information, is unlikely to fall within this description.
[31] CB 159
[32] (2010) 241 CLR 252 at 261 [21]
In any case, even if there were a denial of procedural fairness by the delegate (which I have not found), that fact, alone, cannot vitiate the Authority’s decision. Jurisdictional error can only be revealed by the Authority exceeding the limits of its powers and functions under Part 7AA of the Migration Act or doing something which it is not authorised to do[33]. To say that the delegate’s “omission” has not been “addressed” by the Authority is not sufficient.
[33] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J, cited in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 571 [66] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
In addition, neither the natural justice hearing rule[34] nor any provision in Subdivision AB of Division 3 of Part 2 of the Migration Act requires a decision-maker to put his or her proposed conclusions to an applicant for his or her comment. The delegate’s observation in the second sentence in [138] of its reasons[35] and his findings at [140][36] and [147][37] can fairly be characterised in that way.
[34] SZBEL v Minister for Immigration (2006) 228 CLR 152 at 166 [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 per Northrop, Miles and French JJ
[35] at CB 158
[36] CB 159
[37] CB 160
Further, even assuming that the delegate acted in such a way as to “requir[e] [the applicant] to establish a link between his mental condition and his propensity for anti-social behaviour” (which I do not accept is revealed by the delegate’s observation in the second sentence in [138][38]), it was the applicant himself who claimed that “he may suffer significant harm from the Iranian authorities … because his mental condition may contribute to anti-social behaviour that will cause him to be targeted by the Iranian authorities”[39].
[38] CB 158
[39] CB 160 [145]
Ground 3 – did the Authority err by failing to take into consideration a relevant consideration?
The applicant contends by this ground that, having accepted that he suffers from a personality disorder and having accepted that he had already been convicted of drinking alcohol and sentenced to 80 lashes, and having accepted that the sentence was carried out, the Authority needed to consider whether, for whatever reason, the applicant might become liable to a sentence involving further severe corporal punishment in the future and whether such punishment would amount to cruel and inhuman punishment for the purposes of s.36(2A) of the Migration Act.
I agree with the Minister that this claim should be rejected for two reasons.
First, the claim was never raised by the applicant in his statement in support of his visa application[40] or in his oral evidence and submissions at the hearing before the delegate. The claim is not raised in that part of the transcript of the hearing before the delegate to which the applicant has referred in footnote 31 in his submissions[41]. Nor does it arise “tolerably clearly”[42] from the material.
[40] CB 72-77
[41] at [35]
[42] an expression used by Allsop J (as his Honour then was) in NAVK v Minister for Immigration [2004] FCA 1695 at [15]. See also NABE v Minister for Immigration (No.2) (2004) 144 FCR 1
Secondly, and in any event, such a claim was considered by the Authority at [21][43]. There, the Authority said that, “[e]ven though I have not accepted the [alleged incident in 2012] occurred, I accept that the applicant has a genuine subjective fear that, if he is arrested again, he may face a harsher sentence and even execution”. The language used by the Authority is broad enough to encompass corporal punishment.
[43] CB 188
Further, the Authority made findings at [24], [26]-[27] and [29][44] that constituted a rejection of the claim said to have been made by the applicant[45]. There, the Authority relevantly found that the applicant would not be perceived by the authorities as being anti-regime, resistant and a troublemaker[46]; that he would not come to the attention of the authorities and suffer “harm” on the basis of his criminal history, or “because [he] is perceived to be a trouble maker, resistant, anti-regime, anti-Sharia, defiant, young or because he does not fit within the norms of society on return to Iran”[47]; that he will not come to the attention of the Iranian authorities by reason of his participation in any demonstrations[48]; that, since the applicant has not claimed that he will drink alcohol on his return to Iran, there is not a real chance that he will be caught drinking alcohol and be “penalised” by the Iranian authorities on his return to Iran, those penalties including “80 lashes” according to the country information on which the Authority relied[49].
[44] CB 189-190
[45] Cf Minister for Immigration v Yusuf (2001) 206 CLR 323 at 354 [95] per McHugh, Gummow and Hayne JJ
[46] CB 189 [24]
[47] CB 189 [26]
[48] CB 190 [27]
[49] CB 190 [29]
Ground 2 – did the Authority err by failing to consider the applicant’s claims cumulatively?
I invited post hearing submissions from the parties in relation to this claim, as reframed in the further amended application.
The applicant’s contentions
On review of the delegate's decision, the Authority was required to consider all claims made by the applicant, as well as each “integer” of those claims “cumulatively”.[50]
[50] (2001) 233 FCR 136 per Merkel J at [7] and per Allsop J (with whom Spender J agreed) at [42]; See also: SZVVR v Minister for Immigration [2016] FCA 1364 per Collier J at [32]; AZAFH vMinister for Immigration [2016] FCA 1363 per Perry J at [39]; AQS15 v Minister for Immigration [2016] FCA 1362 per Perry J at [41] – [48]
The principle was explained by Merkel J in Htun v Minister for Immigration[51]:
While it may be convenient for the Tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the tribunal, in conducting its review of the decision of the delegate…, Is under a duty to address or deal with the case (i.e. the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196, Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294.
[51] at [7]
The concept of an “integer” of a claim “is one familiar to judicial review, and refers to an integral or essential aspect of the claim”[52].
[52] SZVVR v Minister for Immigration [2016] FCA 1364 per Collier J at [32]
The failure to consider an integer of an applicant's claim can be distinguished from a failure to consider a mere matter of evidence or a failure to find a particular fact[53].
[53] Ibid; Htun v Minister for Immigration (2001) 233 FCR 136 per Allsop J (with whom Spender J agreed) at [42]
It must also be “borne in mind that”, the applicant's “claims” are "made by way of evidence as opposed, for example, to something akin to a pleading”[54].
[54] AZAFH vMinister for Immigration [2016] FCA 1363 per Perry J at [40]
The obligation to consider claims is not limited to claims which are "expressly articulated" but arises in relation to any claim which "squarely arises on the material before [the Authority]" in the sense that "such a claim will not depend for its exposure on constructive or creative activity by [the Authority]"[55].
[55] AQS15 v Minister for Immigration [2016] FCA 1362 per Perry J at [46]
Allsop J (as his Honour then was) explained the position in NAVK v Minister for Immigration[56]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[56] at [15]
A failure by the Authority to cumulatively consider all of the integers of an applicant's claim may amount to a denial of procedural fairness or a constructive failure by the Authority to exercise its jurisdiction, that is to say to perform the review that it is required to perform under Part 7AA of the Migration Act[57].
The relevant error
[57] Dranichnikov v Minister for Immigration (2003) 197 ALR 389 per Gummow and Callinan JJ at [24] (Hayne J agreeing at [95]). Htun v Minister for Immigration (2001) 233 FCR 136 at [42]
The applicant made (relevantly) the following “claims”, which were accepted by both the delegate and the Authority:
a)the applicant undertook military service in Iran[58];
b)the applicant made an application for an exemption from military service, on the basis of his medical condition, which was refused, although he was not required to use a weapon[59];
c)the applicant was diagnosed with a personality disorder, for which he received treatment[60];
d)the applicant was arrested in 2003 and detained for alcohol consumption[61];
e)the applicant was arrested in 2004 and accused of armed robbery, but was acquitted and freed[62];
f)the applicant was arrested again in 2007 for alcohol consumption and charged with disturbing the public order and sentenced to 91 days imprisonment and 20 lashes[63];
g)on appeal the sentence of imprisonment was suspended, but the sentence to lashes was increased to 80 lashes, and was carried out in its entirety[64];
h)following a further incident in 2009 he was imprisoned for 29 days for fighting[65].
[58] CB 150, 186
[59] CB 150, 186
[60] CB 151, 186
[61] CB 151, 186
[62] CB 148, 151, 187
[63] CB 148, 151, 187
[64] CB 148, 151, 187
[65] CB 155
Those facts, all of which were accepted by the Authority are said to have been essential elements, that is to say integers, of the applicant's overall claims for protection, including his claim for protection under s.36(2)(aa), and the Authority was obliged to consider them cumulatively.
It is true that the Authority considered the possibility that the applicant might be exposed to the risk of capital punishment, in the context of his claim for protection under s.36(2)(a), should he be returned to Iran. That claim was rejected on the basis of country information which indicated that Iranian law no longer prescribes the death penalty for repeat offences involving alcohol.
The applicant contends that, whilst the Authority claimed to have considered "all of the applicant's claims cumulatively", that assertion is not borne out in the Authority's reasons.
In its reasons the Authority stated:
I have considered the applicant's claims cumulatively and I do not find that he will face a real risk of significant harm. I take into account that he previously converted to Christianity and does not believe in Sharia Islam and currently has no religion, his political opinion, his attendance at the 2009 demonstrations in Iran and demonstrations against the Iranian government in Australia, his criminal history, mental health, Facebook posts and that he will be returning to Iran as a failed asylum seeker. Assessing his claims cumulatively I find they do not give rise to a real risk of significant harm.
However, nowhere is it apparent from those reasons that the Authority considered the possibility that if the applicant was returned to Iran, he may for whatever reason, be exposed to the risk of further harm amounting to significant harm in the form of further corporal punishment. The applicant contends that the assertion that all of the applicant’s claims were considered cumulatively appears on the face of the Authority’s reasons to have been deployed as a “verbal formula” or catch all statement.
It is often said that the past is the best indicator of the future[66]. Given the Authority’s finding that the applicant had in fact already been subjected to a sentence involving the infliction of pain by whipping, and the applicant's history of dealings with the local authorities in Iran, the possibility that the applicant might be exposed to the same or similar punishment in the future for any reason (regardless of whether or not it involved persecution in the nature of that required to support a claim under s.36(2)(a)) arose directly and “tolerably clearly”, not only from the evidence presented by the applicant, but from the Authority’s own findings.
[66] Minister for Immigration v Guo (1997) 191 CLR 559, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 575
In those circumstances, it was incumbent upon the Authority, in the applicant's submission, to consider whether there was a real chance that the applicant would be exposed to such harm if returned to Iran. It did not, and in failing to do so, the applicant submits it failed to exercise its jurisdiction.
The Minister’s contentions
An important distinction needs to be drawn at the outset. There is, as French J (as his Honour then was) observed in W352 v Minister for Immigration[67], a difference between “a cumulative concept of persecution itself”, on the one hand, and, on the other, a contention that a number of factors, considered together, “might collectively engender the relevant risk” (which, if considered individually, might not have that effect). The Minister proceeds on the basis that both arguments are being advanced.
[67] [2002] FCA 398 at [21]
When assessing whether a visa applicant has a well-founded fear of persecution for a Refugees Convention reason, a decision-maker is required to consider the whole of the case put forward by the applicant[68]. In doing so, a decision-maker is required to consider each integer of an applicant’s claims, whether they are raised expressly or arise clearly on the material[69]. These propositions are uncontroversial.
[68] Khan v Minister for Immigration [2000] FCA 1478 at [31] per Katz J. See also VTAO v Minister for Immigration (2004) 81 ALD 332 at [62] per Merkel J; MZWPD v Minister for Immigration [2006] FCA 1095 at [69]; SZGUW v Minister for Immigration [2008] FCA 91 at [53]-[54] per Weinberg J; SZRBX v Minister for Immigration (2013) 140 ALD 631 at 642 [40] per Griffiths J; WZARV v Minister for Immigration (2014) 144 ALD 82 at 94 [42] per McKerracher J
[69] Htun v Minister for Immigration (2001) 233 FCR 136 at 139 [7] per Merkel J
Importantly, however, as Barker J said in SZNKO v Minister for Immigration[70], where an applicant’s claims for refugee status have been rejected, it is not correct to say that there will remain any facts upon which a decision-maker is obliged to consider some other “cumulative” basis to his or her claim for refugee status. That is an apt description of Ground 2 in the further amended application.
[70] [2013] FCA 123 at [135]
The principles articulated in the abovementioned cases appear to have been applied, by analogy, to the complementary protection criteria in s.36(2)(aa)[71].
[71] MZZUG v Minister for Immigration [2015] FCA 1151 at [47] per Murphy J
Save for Merkel J’s observations in Htun[72], none of the cases referred to in the applicant’s submissions stands for the proposition contended by him.
[72] at 139 [7] (which, as revealed by SZNKO at [137], must be read in context)
Application of principles
The Minister submits that the matters listed in subparagraphs [57](a) to (h) above are not claims for refugee status or complementary protection; they are matters relating to his past experiences in Iran which the applicant advanced in support of his claim to fear persecution by reason of an imputed political opinion[73] and, in the case of subparagraph (c), his mental health condition[74]. While it is true that there is no clear distinction between claims and evidence, it does exist and “provides a tool of analysis”,[75] particularly in the present circumstances.
[73] see CB 152 [101]-[102], 153 [109]-[111], 155-156 [123]-[127], 186 (heading above [12])
[74] see CB 158-159 [138]-[140], 191 [31]-[33]
[75] Minister for Immigration v SZRKT (2013) 212 FCR 99 at 130 [111] per Robertson J. See also Minister for Immigration v SZSRS (2014) 309 ALR 67 at [54] per Katzmann, Griffiths and Wigney JJ
Each of the matters listed in the applicant’s submissions was considered by the Authority, and findings were made in relation to them, at [12]-[29][76] (see also [31]-[33][77] in relation to the applicant’s mental health). Each of the applicant’s other claims for protection were considered, and rejected, at [34]-[36][78] (political opinion and participation in demonstrations in Australia), [37]-[39][79] (Facebook posts), [40]-[42][80] (religious beliefs) and [43]-[46][81] (failed asylum seeker).
[76] CB 186-190
[77] CB 191
[78] CB 191-192
[79] CB 192-193
[80] CB 193-194
[81] CB 194-195
The effect of the Authority’s conclusions is that the applicant’s “individual claims were either rejected or were the subject of findings that they did not lead to ongoing problems for [him].”[82] It cannot be said, in those circumstances, that there was any obligation on the Authority to consider the cumulative effect of the applicant’s claims, there being no relevant facts remaining which would have required the Authority to do so[83].
[82] W352 v Minister for Immigration [2002] FCA 398 at [26] per French J (as his Honour then was)
[83] Cf W352 v Minister for Immigration [2002] FCA 398 at [26]; SZNKO v Minister for Immigration [2013] FCA 123 at [135] per Barker J. See also Bhasani v Minister for Immigration [2000] FCA 1773 at [22] per Branson J
In addition, the Minister submits that, even if his primary submission was rejected and it were held that there was, in the circumstances of the present case, and for reasons not explained by the applicant in his submissions, a requirement that the Authority consider cumulatively the applicant’s claims, it plainly did so.
This is said not to be a case where the Authority considered the applicant’s claims in a piecemeal fashion or did not consider them in their overall context[84]. On the contrary, the Authority’s reasons, particularly at [12]-[29][85], reveal that it gave cumulative consideration to the various matters listed at [12] of the applicant’s submissions[86]. In some paragraphs, the Authority considered the applicant’s mental health and how it related, or did not relate, to his criminal behaviour and convictions[87]. Indeed, at [22][88], the Authority referred, expressly, to a submission made by the applicant’s then representative that, “cumulatively, he will come to harm as he has a profile and does not easily fit inside the norms of society.” That submission was then considered, and rejected. In other paragraphs, for example, the Authority considered the applicant’s military service and its relevance to the incident that occurred after mid-2004[89].
[84] Cf SZRBX v Minister for Immigration (2013) 140 ALD 631 at 642 [40]
[85] CB 186-190
[86] Cf MZZUG v Minister for Immigration [2015] FCA 1151 at [51]
[87] see, for example, CB 188-189 [22]-[24]
[88] CB 188
[89] CB 186 [12]
Further, even though it was not under any obligation to do so in the circumstances of this case, the Authority stated, expressly, that it dealt with the applicant’s claims cumulatively at [47][90]. There, the Authority said:
I have considered the applicant’s claims cumulatively. I have considered his profile as someone who does not believe in Shi’a Islam, who previously converted to Christianity but currently has no religion, his criminal history, his previous participation in the 2009 demonstrations, his political opinion of being pro-monarchy and against the Iranian regime, that he has posted comments against the Iranian regime on facebook, his mental health, that he participated in demonstrations against the Iranian regime in Australia, and that he will be returning to Iran as a failed asylum seeker. Assessing his claims as a whole I find they do not give rise to a real chance of serious harm.
[90] CB 196
At [53][91], in the context of determining the applicant’s claims for complementary protection, the Authority said:
I have considered the applicant’s claims cumulatively and I do not find that he will face a real risk of significant harm. I have taken into account that he previously converted to Christianity and does not believe in Shi’a Islam and currently has no religion, his political opinion, his attendance at the 2009 demonstrations in Iran and demonstrations against the Iranian government in Australia, his criminal history, mental health, facebook posts and that he will be returning to Iran as a failed asylum seeker. Assessing his claims cumulatively I find they do not give rise to a real risk of significant harm.
[91] CB 197
It is important to note that [53] of the Authority’s reasons, together with [51]-[52], need to be read in the light of, and together with, the Authority’s earlier reasons, including those at [12]-[29][92]. Those findings were picked up at [51] and [53].
[92] CB 186-190
Contrary to the applicant’s submissions, the mere fact that [47] and [53] of the Authority’s reasons have the appearance of standard paragraphs does not sound in invalidity. As Murphy J said in MZZUG v Minister for Immigration[93]:
… [A] decision is not invalidated merely because the reasons employ standard paragraphs or use a routine verbal formula. Of course, invalidity may result when a standard paragraph or formula is used to cloak a decision with the appearance of conformity with the law when proper consideration is not given to the integers of the claim … but I am not persuaded that occurred in the present case. I do not accept that the Tribunal failed to cumulatively consider the various integers of the applicants’ claims.
[93] [2015] FCA 1151 at [54]
The Minister submits that, for the reasons given above, this Court should form the same view of the applicant’s claims in the present case. The applicant’s true complaint is said to be that the Authority did not, in [47] and/or [53] of its reasons, “expressly describ[e] (or re-describ[e]) each integer of [his] individual circumstances which might be said to have increased or exacerbated the risk of persecution so as to evidence the requisite cumulative analysis.”[94]
[94] MZZUG at [52]
In his submissions as noted at [60]-[64] above, the applicant criticises the Authority’s findings at [53][95].
[95] CB 197
The Minister makes four points in response to those submissions.
First, they have no connection whatever to the questions whether the Authority was required to assess the applicant’s claims for protection cumulatively, and, if so, whether it did so properly. They, in effect, make the same point as that which was made in the applicant’s pre-hearing submissions. Contrary to the applicant’s further submissions, the assertion is that the Authority failed to have regard to a claim that arose clearly or squarely on the material before the Authority. There would otherwise be no warrant for the applicant to use the expression “tolerably clearly” in his submissions—an expression employed by Allsop J (as his Honour then was) in NAVK v Minister for Immigration[96].
[96] [2004] FCA 1695 at [15]
Secondly, the claim which the applicant asserts was raised was not, in fact, raised at all, whether expressly or impliedly.
It is also not correct to say that the claim arose from the Authority’s own findings. In any case, as held by Weinberg, Jacobson and Lander JJ in Minister for Immigration v SZANS[97], a decision-maker “[i]s not obliged to deal with a hypothesis that [i]s not raised”, even where that hypothesis is capable of being raised by the decision-maker’s findings[98].
[97] (2005) 141 FCR 586 at 593 [47]
[98] see at 593 [46]
Thirdly, even if the claim arose, it was considered by the Authority at [21][99].
[99] CB 188
Fourthly, for the reasons given in the Minister’s pre-hearing submissions, the Authority made findings at [24], [26]-[27] and [29][100] that necessarily and inevitably denied the claim said to have been raised by the applicant. It is difficult to see how, in those circumstances, a failure expressly to refer to the asserted claim could result in jurisdictional error.
[100] CB 189-190
Resolution
At the trial of these proceedings, I granted to the applicant leave to file a further amended application. That was done on 6 March 2017. Ground 2 of that document asserts:
The IAA erred by applying an incorrect test to determine whether the Applicant was a person to whom Australia has protection obligations for the purposes of s 36(2)(aa) of the Migration Act and by failing to consider all of the integers of the Applicant’s claim cumulatively. (emphasis added)
Joined to this ground are five particulars, as follows.
The first asserts that the Authority “equat[ed] the test applicable under s.36(2)(aa) with the test to determine whether or not the applicant was a refugee” and that it failed to apply the correct test under that provision.
The second asserts that the Authority “failed to consider the risk that the applicant will suffer significant harm” as defined in s.36(2A)(d).
The third asserts that that risk was that, if the applicant were to be removed to Iran, “he may become liable to be convicted and sentenced to a punishment involving further corporal punishment.”
The fourth asserts that “[t]he risk” (that is, that which is identified in the second and third particulars) “was an essential element or integer of the applicant’s claim” and “was readily apparent from the documents provided to the IAA by the Secretary” and “arose directly from the IAA’s own findings” that the applicant had:
a)been diagnosed with, and suffered from, a personality disorder;
b)engaged in activity in Iran considered to be anti-social;
c)illegally consumed alcohol in Iran;
d)previously been convicted of offences in Iran involving the consumption of alcohol and anti-social behaviour; and
e)previously been sentenced in Iran to receive 80 lashes which had been carried out.
The fifth particular asserts that:
[i]n failing to consider whether the risk referred to in [the second and third particulars] arose from the matters referred to in [the fourth particular] above in the context of the applicant’s claim for complementary protection under s.36(2)(aa), the Authority failed to cumulatively consider the applicant’s claims.
The following should be noted about this ground of review and the particulars joined to it.
First, the “claim” referred to in the ground and in the fourth and fifth particulars has not been identified, but I proceed on the basis that the applicant relies upon all of his claims. The asserted error in my view is not a failure to have regard to a particular claim at all but rather the proposition that the cumulative impact of all the claims was not considered.
The applicant accepts that the matters listed in the fourth particular had been considered by the Authority, and findings made in respect of them.
The proper focus of the Court’s attention is the proposition that the Authority failed to consider the applicant’s claims cumulatively because it did not consider whether the matters to which it did have regard give rise to the “risk” identified in the particulars. Importantly, the applicant’s complaint, made in the fourth[101] iteration of his application for judicial review, goes no further than this.
[101] The applicant had previously served a draft further amended application in different terms
With respect to the Minister’s contentions at [65] above, while the distinction identified by the Minister is important it is, in the context of this case, a distraction. The cumulative concept of persecution has no particular bearing upon this ground in this case. First, the Authority must be taken to have accepted that the applicant had experienced serious or significant harm in the past. That logically follows from the Authority’s acceptance at [16] of its reasons[102] that past incidents of harm had occurred. This relates, in particular, to the applicant’s claim that he was subjected to corporal punishment of 80 lashes for drinking wine. Whether the past incidents of harm amounted to persecution (and by extension whether there is a future risk of persecution) is not material because the applicant’s claim in this ground relates to the assessment of the complementary protection criterion. The applicant’s claim in this ground is that the Authority failed to consider cumulatively whether the applicant’s accepted history, and the forward looking assessment of the Authority, gave rise to a real risk of significant harm when considering all elements together.
[102] CB 187
I accept that the Authority stated that it had considered all of the issues cumulatively both in relation to its Refugees Convention assessment and in relation to its complementary protection assessment. In particular, at [53] the Authority stated:
I have considered the applicant's claims cumulatively and I do not find that he will face a real risk of significant harm. I have taken into account that he previously converted to Christianity and does not believe in Shi'a Islam and currently has no religion, his political opinion, his attendance at the 2009 demonstrations in Iran and demonstrations against the Iranian government in Australia, his criminal history, mental health, facebook posts and that he will be returning to Iran as a failed asylum seeker. Assessing his claims cumulatively I find they do not give rise to a real risk of significant harm.
I also accept that the Authority specifically considered at [22] the applicant’s claim that his anti regime political opinion, and his anti Sharia law views linked to his drinking of alcohol would cumulatively give rise to a real risk of harm as it establishes a profile that does not fit inside the norms of Iranian society. However, that consideration appears in the body of the Authority’s reasons prior to the consideration of the applicant’s mental health condition, his Facebook posts, his religious opinion, his status as a failed asylum seeker and the purported cumulative assessment.
Further, the assessment of a lack of a real risk of future significant harm rests upon a number of assumptions. First, the Authority’s assessment that the applicant will not be harmed in future for drinking alcohol is based on the assumption that he will not drink alcohol again because he has not claimed that he will. Secondly, while accepting at [30][103] that the applicant has used opium on occasion with friends and that Iran prescribes the death penalty for a variety of drug related activities including personal possession of certain amounts of drugs, the Authority reasoned that there was not a real chance the applicant would be caught and penalised for opium use because he only uses it occasionally with friends. The conclusion is therefore based on the assumption that the applicant’s use of opium would not be detected by the authorities. Next, the Authority reasoned that he would not come to harm because of his mental health condition on the basis that appropriate treatment is available in Iran. Further, at [35][104] the Authority reasoned that the applicant’s political activities in Australia would not come to the attention of the Iranian authorities. Further, in the following paragraph, the Authority states that the applicant’s political opinion is not attributable to his criminal history and that he is not perceived to be anti regime as a result of past encounters with the Iranian authorities. The Authority reasoned that the applicant would not participate in any political activities that “will likely come to the adverse attention of the Iranian authorities upon return to Iran”.
[103] CB 190
[104] CB 192
At [39][105] the Authority accepted that the applicant may have shared anti-regime videos on his Facebook page and noted that there are millions of Facebook users in Iran. The Authority reasoned that the applicant’s Facebook page was not publicly accessible. In relation to the applicant’s religious opinion and affiliation the Authority reasoned that he would, in effect, blend in with the 70 per cent of the Iranian population which does not participate in Islamic observances. The Authority further reasoned that the Iranian authorities would not become aware of the applicant’s Christian conversion.
[105] CB 193
Taken individually, the Authority’s assessment of the various risks confronting the applicant, should he return to Iran, involved assessments that his activities would either not become known to the authorities or would not be repeated. The Authority’s rolled up cumulative assessment at the end of its reasons does not expressly deal with the possibility that, when considered cumulatively, these risks might become significant. In a case like the present, where the applicant faces multi-faceted risks which may interact and interrelate, particularly when considered with his mental health condition, the bland assertion that the claims were considered cumulatively does not satisfy me that this was anything more than the application of a verbal formula. If the Authority was wrong on any one of its assessments, it would seem logically to follow that the applicant may well encounter a real risk of significant harm. The cumulative assessment of the claims needed to address the possibility of the interaction of the applicant’s condition, activities and circumstances leading him to the adverse attention of the Iranian authorities. To put it another way, the assertion of a cumulative assessment, in a complex case such as this, requires a demonstration of an active intellectual engagement with the issues when considered cumulatively. There is no doubt that there was active intellectual engagement with the issues considered inidvidually. It is not apparent, however, that there was any active intellectual engagement in the cumulative assessment.
This leads me to the view that the applicant has established that the error asserted in this ground of review has been made out.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should therefore receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 May 2017
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