MZZHA v Minister for Immigration
[2014] FCCA 176
•10 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZHA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 176 |
| Catchwords: MIGRATION – Review of decision of the Refugee Review Tribunal – whether s.422B of the Migration Act 1958 (Cth) applies to s.425 – whether the Refugee Review Tribunal was obliged to put findings to the Applicant – whether s.36(2)(aa) of the Migration Act 1958 (Cth) was misapplied – whether the Refugee Review Tribunal dealt with a claim arising from its findings – leave granted to extend time under s.477(2) of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Convention relating to the Status of Refugees, Article 7 |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 George Osbourne v Jamaica CCPR/C/68/D/759/1997, Human Rights Committee, 13 April 2000 MZYLT v Minister for Immigration and Citizenship [2012] FCA 205 NABE v Minister for Immigration and Multicultural and Indigenous Affairs |
| Applicant: | MZZHA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 258 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 22 October 2013 |
| Date of Last Submission: | 22 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Ferrari |
| Solicitors for the Applicant: | King & Wood Mallesons |
| Counsel for the First Respondent: | Mr Hill |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
Pursuant to s.477(2) of the Migration Act 1958, the extension of time is granted.
The Amended Application filed 13 September 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 258 of 2013
| MZZHA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision by the Refugee Review Tribunal (“the Tribunal”) to affirm a decision of a delegate of the
First Respondent not to grant the Applicant a protection (Class XA) visa. The Applicant seeks an order that the decision of the Tribunal be quashed and a writ of mandamus directed to the Tribunal requiring it to determine the Applicant’s application according to law.[1]
[1] Amended Application filed 13 September 2013, at p.2.
Background
The Applicant is a citizen of Iran who arrived in Australia by boat on 22 February 2012. On 18 June 2012, the Applicant applied for a protection visa, supported by a statutory declaration dated
11 June 2012.[2] On 19 June 2012, the Applicant was interviewed by a departmental officer and on 4 October 2012, a delegate of the
First Respondent determined that the Applicant was not a person to whom Australia owed protection obligations and refused to grant him a visa.[3]
[2] Court Book filed 23 April 2013, at pp.57-61.
[3] Court Book filed 23 April 2013, at pp.83-100.
On 12 October 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision.[4] This was supported by a submission sent to the Tribunal by the Applicant’s representative under cover of letter dated 11 October 2012.[5] On 7 December 2012, the Tribunal conducted a hearing at which the Applicant gave evidence and made submissions. On 21 December 2012, the Applicant’s representative provided a further submission and supporting documents.[6] On 11 January 2013, the Tribunal made a decision affirming the decision not to grant the Applicant a visa.[7] On 3 April 2013, the Applicant lodged this application for judicial review.
[4] Ibid, at pp.101-106.
[5] Ibid.
[6] Ibid, at pp.154-193.
[7] Ibid, at pp.197-213.
The Tribunal’s decision
The Tribunal summarised the Applicant’s claims as contained in the Applicant’s:
·Statutory declaration;
·Interview with the Department of Immigration and Citizenship (“the Department”);
·Evidence at the Tribunal hearing; and
·Post-hearing submissions.
The Tribunal also made reference to country information relating to failed asylum seekers returning to Iran.
The Tribunal found the Applicant to be neither a credible, nor a truthful, witness. The Applicant’s claims related to being:
·Beaten by the Basiji when he was 15 or 16 years old for eating during Ramadan;
·Tortured by police in 2007 and accused of theft;
·Arrested by the Basiji in 2009 for drinking alcohol and receiving 74 lashes for that offence;
·Convicted in 2010 for being a ‘dangerous person’;
·Drunk and carrying a weapon and sentenced to 80 lashes for that offence; and
·Arrested again for being intoxicated in 2010 and released on bail with a security.
The Applicant claimed to have fled Iran before the next court date.
The Applicant claimed to fear persecution for his anti-Islamic views and lifestyle, in particular his consumption of alcohol, and also feared that he would face the death penalty if convicted a third time for alcohol-related offences. The Applicant further feared persecution as a returned asylum seeker. The Applicant claimed to struggle with alcohol addiction, to be a drug addict and to have been a professional boxer, both of which affected his memory.
The Tribunal did not accept that the Applicant was a drug addict.
The Tribunal further did not accept that the Applicant had been arrested on three occasions for alcohol-related offences. The Tribunal found that the Applicant’s account of these events lacked credibility and contained unexplained inconsistencies. It rejected the claim in relation to the Applicant’s last arrest on the basis that he would have been banned from travelling oversees on his own passport under the circumstances he claimed. The Tribunal gave little weight to documents, including court documents said to corroborate his claims, on the basis that they were inconsistent with his other evidence, and country information indicated that it was possible to obtain forged court documents in Iran.
The Tribunal accepted that the Applicant had been subject to lashing at some stage, but did not accept that this was for the reasons claimed, finding that “the lashings must have occurred for some offence not mentioned”.[8] The Tribunal concluded that:
[W]hatever act he had been sentence (sic) for had been finalised as a result of the lashing. This is supported by fact that the applicant was able to leave Iran on his own passport which indicates that he was not wanted by the authorities.[9]
[8] Court Book filed 23 April 2013, p.211 at para.99.
[9] Court Book filed 23 April 2013, p.211 at para.100.
The Tribunal concluded that, while the Applicant was agnostic, it did not accept that his lack of religious observance would bring him to the attention of the authorities and therefore did not accept that there was a real chance that the Applicant would be subjected to serious harm from his non-observance of Islam. Nor, on the basis of country information, did the Tribunal accept that the Applicant would face a real chance of persecution for reason of being a failed asylum-seeker.
With respect to the complementary protections claim, the Tribunal found that, having rejected the Applicant’s evidence with respect to his claims, there were not substantial grounds for believing that there was a risk of significant harm. As the Tribunal found that the Applicant was not wanted by the Iranian authorities, or subject to any outstanding legal action in Iran, it did not accept that there was a real risk that the Applicant would suffer significant harm if he were to return to Iran.
The grounds for review
The Applicant’s grounds for review are as follows:
1. The Second Respondent (the Tribunal) denied the Applicant natural justice.
2. The Tribunal misconstrued s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
3. Additionally or alternatively to (2), the Tribunal failed to consider the elements in s 36(2)(aa) of the Act and related definitional provisions of s 36(2A) (read with the definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1)) and s 36(2B).
4. Additionally or alternatively to (2) and (3), the Tribunal’s decision was irrational.
5. Additionally to (2), (3) and (4), the Tribunal failed to deal with the Applicant’s claim in respect of s 36(2)(aa) of the Act.[10]
Ground one
[10] Amended Application filed 13 September 2013, at pp.3-5.
The Applicant’s submissions
The Applicant submitted that his case, both with respect to protection and complementary protection, revolved around his fears of the harm to which he would be subjected in connection with his unlawful conduct in consuming alcohol.
The Tribunal found that the Applicant had been lashed by Iranian authorities, but that this had occurred for some other, unspecified, offence. Nothing could have put the Applicant on notice that the Tribunal might find that he had been punished by the Iranian authorities with lashing for some other offence in respect of which the Applicant had not given evidence.
The Applicant submitted that fairness required him to be given the opportunity to be heard on the issue of whether the lashings were for some other unidentified offence. Fairness also required the Tribunal to give notice of an adverse conclusion it proposed to make that was unexpected.
With respect to the Tribunal’s findings concerning the documents provided after the hearing, the Applicant submitted that a conclusion that these were forgeries, where there was nothing on the face of the documents to suggest they were forgeries, should not have been made without giving the Applicant the opportunity to be heard with respect to their authenticity.
The Applicant submitted that s.422B of the Migration Act 1958 (Cth) (“the Act”) does not engage with s.425 of the Act. The Applicant relied on the decision of the High Court in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 (“Saeed”). The Applicant submits, with respect to the provisions being dealt with in Saeed,
that s.57 of the Act is very similar to s.424A of the Act. Section 56 of the Act, however, which is very similar to s.425, does not mandate procedures which may be taken as a substitute for the requirements of the fair hearing rule. Section 51A of the Act is not addressed to s.56 and exactly the same applies in respect of ss.422B and 425 of the Act. It is therefore the common law that applies in terms of procedurally what might be required, such that the obligation in s.425 of the Act to invite an applicant to appear to give evidence and present arguments, is not an empty one.
The Applicant distinguished SZKTY v Minister for Immigration& Anor [2007] FMCA 1973 on the basis that it pre-dated Saeed.
The Applicant relied on the decision of the High Court in
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor(2006) 228 CLR 152 (“SZBEL”) to submit that the finding of the Tribunal that the Applicant was tortured, but for breach of some other law than the law he claimed, was a new issue and one which did not arise from the delegate’s decision. It is a new issue which arises from the very way the Tribunal went about making its findings. It cannot be a corollary to the Tribunal’s findings about the Applicant’s credibility, nor is it a conclusion obviously open on the material.
The Applicant, therefore, submits that the appropriate principles to apply are those as expressed by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”). In particular, the Applicant relies on the following parts of that judgment:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material:
Dixon v Commonwealth (1981) 55 FLR 34 at 41 …
… A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason J), 628 (Brennan J). Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506
(Fox J), 513 (Neaves J) ...
… The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:
1. …
2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious or natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.[11]
[11] (1994) 49 FCR 576, at pp.590-591.
The issue is whether the finding of the Tribunal that it accepted that the Applicant had been lashed as punishment for a criminal offence, but for breach of some other law, was one that was expected.
With respect to the issue of the forged documents, the Applicant relies on the decision of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 (“WACO”). In particular, the Applicant relies on the finding that the Tribunal has a duty to raise clearly, with the applicant, critical issues on which his or her application might depend.
Similar to this case, the applicant in WACO was left in no uncertainty that the Tribunal did not, on the evidence before it, at the conclusion of the applicant’s case, accept his version of events. The Applicant relied on paragraphs 53 and 54 of WACO:
In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.[12]
[12] (2003) 131 FCR 511 at p.524.
In this case, nothing in what the Tribunal had to say about the documents goes to anything which, on their face, would indicate that the documents are forgeries. It is about inconsistencies between the documents and the oral evidence of the Applicant, which is precisely why the Tribunal had an obligation to put to the Applicant that the documents might be forgeries.
With respect to the decision in Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15 (“SZMOK”), the Applicant took the Court to paragraphs 67 and 68 where the Full Court said that:
Where the remarks of the Tribunal reveal that the Tribunal thought that the applicant’s cause might be retrieved, or at least aided, by an explanation of the inconsistencies in the applicant’s evidence that were of concern to the Tribunal, the Tribunal must be taken to have considered that it was not possible fairly to conclude the review adversely to the applicant without giving the applicant the opportunity of commenting on the inconsistencies (see NAFF’s Case at [41]).
While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO’s Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [64]). WACO’s Case does not establish any new principle.[13]
[13] (2009) 110 ALD 15, at paras.67-68.
Unlike the case in SZMOK, it was the Tribunal, in this case, that asked for the documents. In SZMOK, the Tribunal was extremely reluctant to give the applicant more time to provide documents. The Court concluded that:
It must have been abundantly clear to the Applicant that, even if some documents were provided, the Tribunal may not accept them.[14]
[14] Ibid, at para.73.
The First Respondent’s submissions
The First Respondent submits that Part 7, Division 4 of the Act,
by virtue of s.422B, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Saeed does not assist the Applicant. Section 51A of the Act, which was the relevant provision in Saeed, specifically related to the provision of information to onshore visa applicants.
As the applicant in that case was offshore, it did not relate to her and, therefore, s.51A of the Act said nothing about procedural fairness in the circumstances of her case.
Additionally, s.56 of the Act provides:
(1)In considering an application for a visa, the Minister may,
if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2)Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
Section 56 is a very different provision to s.425 of the Act, which provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.[15]
[15] Migration Act 1958 (Cth), s.425.
The key to s.56(2) of the Act is that the Minister is able to specify the way in which the information is given. Section 425(1) of the Act requires that the Applicant must be given an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Those words are key to s.425 of the Act. None of them appear in s.56(2). The necessary corollary of s.425(1) of the Act is that the Tribunal must identify for the Applicant the issues arising in relation to the decision under review. That is exactly the obligation of procedural fairness considered in SZBEL. In paragraph 37 of that judgment,
the Court states:
If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.[16]
[16] (2006) 228 CLR 152, at pp.163-164.
That is, the Tribunal failing to comply with s.425(1) of the Act is failing to provide procedural fairness consistent with s.422B of the Act.
The First Respondent submitted that the relevant application is not the common law but the provisions of s.425(1) of the Act. Reference was made to Minister for Immigration and Citizenship v SZKTI & Anor (2009) 238 CLR 489 (“SZKTI”). In that case the Tribunal, after hearing from the applicant, wrote to him seeking information about his religious activities. In response, the applicant provided a letter from the Church he attended in Australia which gave the names of two Church Elders. Some months later, the Tribunal telephoned one of the Elders and later put the information obtained from him to the applicant.
The applicant responded. The Tribunal, in making its findings, relied on the telephone call it made to the Elder. The issue of the applicant’s involvement with the Church in China was a live issue in the case.
The applicant contended that the information given to the Tribunal by the Elder raised ‘new and additional issues’ and accordingly, the Tribunal was obligated to issue an invitation to a second hearing.
The Court found:
Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah’s evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China. Mr Cheah’s knowledge of the first respondent’s past activities in China deriving from any account given to him by the first respondent was directly related to that issue. Further, s 422B of the Act suggests that there is no residual procedural fairness requirement to give another hearing extraneous to Div 4 of Pt 7. If there were any extraneous right to procedural fairness, as suggested by the first respondent, there was no breach of the obligation here. Importantly, the first respondent had an opportunity to deal with Mr Cheah’s information by responding (as he did) to the letter from the RRT conforming with s 424A.[17]
[17] (2009) 238 CLR 489, at para.51.
In this case, the matters raised by the Applicant did not raise any additional issues and, in relation to the forged documents, it was merely additional evidence about an extant issue. The case of Saeed is dealing with quite a different issue and the Court did not say it departed from the decision in SZKTI.
With respect to the lashing issue, the Applicant puts that the conclusion that he was lashed for a different offence is one that was not open to the Tribunal to make. The First Respondent submits that the starting point is the Act. In SZBEL, the Court referred to a passage from Alphaone where it was stated:
The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.[18]
[18] (2006) 228 CLR 152, at para.29.
In paragraph 31 of SZBEL, the Court cautions against approaching the issue of whether the matter concerns ‘conclusions not obviously open on the known material’ and the ‘mental processes of decision making’, as this will distract attention from the fundamental principles, and at paragraph 33,[19] states that this needs to be understood in light of the real issue, which is: has the Tribunal identified the critical issue?
[19] (2006) 228 CLR 152.
At paragraph 38, the Court reinforces that, saying:
When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously … open on the known material”, the focus of the contention must fall upon what was “obviously … open” in the Tribunal’s review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was “obviously … open on the known material”.[20]
[20] Ibid.
The First Respondent submits that it needs to be remembered that SZBEL was decided before s.422B of the Act took effect and the reference relied upon by the Applicant in paragraph 49 of the decision is referring to common law procedural fairness, which may go beyond the requirement of s.425 of the Act.
The Tribunal’s conclusions that the Applicant had not been lashed for an alcohol-related offence did not raise an additional issue within s.425 of the Act. The Tribunal rejected the Applicant’s version of events with respect to the alcohol-related offences. It accepted that the Applicant had been lashed. Given that the Tribunal rejected the claims that the lashing was for alcohol-related offences, it must follow, as a matter of logic, that the lashing must have been for another offence. The finding is, therefore, a corollary of rejecting the Applicant’s account.
The critical issue is: was the Applicant convicted of alcohol-related offences? The Tribunal put the Applicant on notice at the hearing that it might not accept his account of his alcohol-related offences. The case of SZBEL acknowledges that, in those circumstances, there is no need to give specific notice because it is apparent that everything the applicant says is under challenge.[21] Given the inquisitorial nature of the proceedings, there was no obligation on the Tribunal to revert to the Applicant when it concluded that it accepted part of the account,
(that he was lashed), but rejected part of the account, (the reasons given for the lashing). The Tribunal’s job is to listen to applicants and decide whether they believe them. If the Tribunal does not, there is no breach of procedural fairness in not giving applicants another chance to improve their story.
[21] (2006) 228 CLR 152 at para.47.
The First Respondent took the Court to aspects of the transcript of hearing[22] with respect to the questioning of the Applicant about whether he had any court documents to support his claims.
Those questions should not give rise to a suggestion that the Tribunal was, in any way, disposed to accept the Applicant’s claims. In fact,
the course of questioning would rather suggest the contrary.
[22] Affidavit of Karan Raghavan filed 13 September 2013, at Annexure “KR-2”.
With respect to the Applicant’s reliance on WACO and SZMOK,
the First Respondent submitted that WACO predated s.422B of the Act. SZMOK makes it clear that it is “not an error of law for the tribunal to reject corroborative evidence on the basis of its view of the applicant’s credit”.[23] There is no absolute rule that a Tribunal must tell a person before making a finding that documents are forged.[24] The question posed is set out in paragraph 73: would it have been clear to the applicant that, even if some documents were provided, the Tribunal may not accept them?[25] Paragraph 74 of SZMOK makes it clear that the obligation on the Tribunal is to give the applicant an opportunity to give evidence and present arguments “relating to the issues in relation to the decision under review”;[26] in that case, whether there was a false charge brought against the applicant in Bangladesh.
[23] (2009) 110 ALD 15 at para.59.
[24] Ibid, at para.68.
[25] (2009) 110 ALD 15.
[26] Ibid.
In this case, the authenticity of the documents was not a new issue.
It was additional evidence about an extant issue. The Tribunal found inconsistencies between the documents provided and the Applicant’s oral evidence. The Tribunal had asked the Applicant if he had any documents, and if so, to either provide the documents or provide a reason for not having them. The fact that the Tribunal was prepared to receive any documents provided by the Applicant does not indicate that the Tribunal required those documents before it could conclude the review adversely to the Applicant.
The First Respondent referred the Court to the decision in SZRAE v Minister for Immigration and Citizenship [2012] FCA 916 (“SZRAE”) where a letter written by another person, but provided by the applicant after the hearing, gave an entirely different explanation of why something happened. The case was one where common law procedural fairness applied. At paragraph 30, Robertson J stated:
[I]t is not the common law that in every case where a party provides further material he or she must be given an opportunity to give evidence and make submissions if the decision maker is considering making use of the material in a manner adverse to the interests of the party providing it.[27]
[27] [2012] FCA 916.
The Court went on to say:
It follows, in my opinion, while recognising that whether an issue must be raised with a claimant for the purposes of a further hearing will depend on the circumstances of each case
(Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [51]), in circumstances such as the present where the claimant, or the claimant through his or her adviser, submits material to the decision-maker after a hearing or interview it will be unlikely that that material gives rise to a critical issue not apparent from the nature of the decision. This is because, in most cases, that material will be directed to one or more such issues apparent from the conduct of the decision-making thus far.[28]
[28] [2012] FCA 916 at para.36.
All the material provided after the hearing was going to an existing issue. Whether or not a document is forged is not, in itself, a distinct issue. While in paragraph 44 of SZRAE his Honour puts fraud or forgery to one side in finding that it is not necessary to give the person affected an opportunity to be heard in relation to each circumstance relevant to the evaluation of the issue, it does not necessarily follow that, when it involves fraud or forgery, the person must be given such an opportunity; one must look at the circumstances of each case.
In paragraph 48, his Honour went on to say:
Further, in my opinion the “adverse use” to which the appellant refers amounted to a self-evident use of the material. Where a claimant provides, after a hearing, fresh material to the decision-maker which is self-evidently of little cogency or is inconsistent with previous claims or both then, absent assurances or representations by the decision-maker, it is open to the decision-maker to assess that material and accept or reject it in whole or in part without providing the claimant a further opportunity to be heard. Mere adverse use where that use is related to adumbrated issues, in the circumstances of this case, is not a denial of procedural fairness.[29]
[29] Ibid, at para.48.
In the circumstances of this case, the Applicant was on notice that his version of events was being critically considered by the Tribunal and that there was no assurance that any document that was provided would be uncritically accepted.
Conclusions with respect to ground one
The first issue for the Court to determine is whether the Tribunal was bound by s.422B of the Act in considering its obligations under s.425 of the Act. In contending that it was not, and therefore the common law principles of natural justice applied, the Applicant relied on the decision of the High Court in Saeed with respect to s.51A of the Act and its relationship to ss.56 and 57 of the Act.
Section 51A(1) of the Act provides that subdivision AB of Division 3 of Part 2 of the Act to which it applied “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.[30] Sections 56 and 57 of the Act are the only provisions in subdivision AB containing powers by which a visa applicant may be given an opportunity, after lodging that application, to provide further information[31] or comment on information provided to the Minister.[32] Section 56(2) of the Act provides that the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
Section 57(3) of the Act requires certain procedures to be followed but is expressly stated to not apply unless the visa in question can be granted when the applicant is in the migration zone.
[30] Migration Act 1958 (Cth), s.51A(1).
[31] Ibid, s.56.
[32] Ibid, s.57.
The Court considered it to be a matter of some significance to the operation of s.51A to s.57 of the Act that s.57 did not apply to applications made ‘offshore’. The question to be determined was whether, on the proper construction of the provisions, subdivision AB limited or extinguished the obligation to afford procedural fairness.
The Court determined that this is to be answered by having regard to the test of s.51A of the Act and the provisions with which it interacts. The declaration in s.51A of the Act that the subdivision is to be taken as an exhaustive statement of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”.[33]
A consideration of the words “the matters it deals with”[34] directs attention to provisions within the subdivision, or the group of sections, which are operative.
[33] Ibid, s.51A(1).
[34] Ibid.
In order to give s.51A of the Act operation, it is necessary to refer to the subject of the ‘matter’ with which s.57 of the Act deals as the provision of information, more generally relevant and adverse, for comment. The ‘matter’ with which s.57 of the Act deals is the provision of such information to onshore visa applicants. It therefore followed that the implication of the natural justice hearing rule with respect to offshore visa applicants was maintained.
The Applicant drew an analogy between the relationship between ss.51A and 56 of the Act, and that between ss.422B and 425 of the Act. Section 422B(1) of the Act is expressed in the same terms as s.51A(1). Section 425 of the Act, however, specifically directs the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”.[35] The matter which s.425 of the Act deals with is, therefore, the requirement to invite the applicant to give evidence and present arguments “relating to the issues arising in relation to the decision under review”.[36]
[35] Migration Act 1958 (Cth), s.425.
[36] Ibid.
I am satisfied that, in framing s.425 of the Act, it was the intention that it should exclude the operation of the common law requirements of the natural justice hearing rule with respect to the matters to which it applied.
Did the operation of s.425 of the Act, therefore, require the Tribunal to recall the Applicant to give evidence and present arguments about two matters, first, the Tribunal’s conclusion that the lashings the Applicant received were for an offence other than the claimed alcohol-related offences and second, its conclusion, in relation to the documents submitted after the hearing, that it gave little weight to those documents? While not expressly stated, it can be inferred that the Tribunal did not consider the Court documents provided to be genuine.
The issue which the Tribunal was required to determine was whether the Applicant had been convicted on two occasions of alcohol-related offences giving rise to punishment by lashing, and whether he faced a third such charge should he return to Iran. On the basis of its assessment of the credibility of the Applicant, the Tribunal determined that the Applicant had not been charged three times with
alcohol-related offences. The Tribunal accepted, on the basis of photographic evidence, that the Applicant had been lashed;
it, therefore, concluded that this must have been for some other offence.
The Tribunal’s conclusions may have been unexpected by the Applicant, but that does not mean that it was not open on the material before the Tribunal to find that it rejected the Applicant’s evidence concerning alcohol-related offences, but accepted that he had been lashed. The Tribunal put the Applicant on notice that it was, at the very least, sceptical about his version of events and that all of his claims were in issue. Having reached its conclusions with respect to the Applicant’s evidence, the logical finding, in the face of the evidence, was that the lashing must have been punishment for some offence not mentioned.
The critical issue in this case is not whether the Applicant had been lashed, but whether he had been convicted of alcohol-related offences. The Applicant was clearly on notice that this was the critical issue and his evidence went to that. The evidence with respect to the lashing was intended to corroborate his claims that he had been punished by lashings for alcohol-related offences.
The obligation on the decision-maker is to advise of any adverse conclusion which had been arrived at which would not obviously be open on the known material. The decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision. It was open to the Tribunal, in the context of the matter before it, to accept some evidence and reject other evidence. The outcome of that process was the conclusion that the lashing had occurred, but not as punishment for alcohol-related offences. This was a conclusion that could reasonably be made on the material before the Tribunal.
With respect to the issue of the documents provided after the hearing, the Tribunal did invite the Applicant to produce documentary evidence of his claims. It did so in the context of questioning which should have clearly alerted the Applicant to the fact that the Tribunal was having difficulty in accepting his version of events. It would be expected that a person might have documents related to his convictions and related to his parents providing the title deeds for their home as surety for his bail. The Tribunal asked him to provide documents or provide a reason for not having them.
The Applicant relied on the decision in WACO to submit that he should have been given the opportunity to address the Tribunal about the documents before the Tribunal reached a conclusion about their genuineness. The First Respondent submits that WACO predates s.422B of the Act and deals with common law procedural fairness. Both the Applicant and the First Respondent relied on aspects of the decision in SZMOK.
In SZMOK, the applicant claimed to fear persecution should he return to Bangladesh because of his political activities and false charges brought against political activists there. During the course of the hearing before the Tribunal, the applicant stated that such a case had been lodged against him. The Tribunal challenged the applicant about why this had been raised at such a late stage and suggested he was making it up. The applicant said that if the Tribunal wanted some proof or evidence, he could provide it. The Tribunal gave him one week to produce the documents, which were subsequently provided.
The Tribunal found against the applicant on credibility grounds and in view of those findings, was not satisfied that the documents provided were genuine.
The Court, in determining the matter, considered the following principles:
·Direct evidence that a document is a forgery will not always be necessary;
·It is not an error of law for the Tribunal to reject corroborative evidence on the basis of its view of the applicant’s credit;
·Where it is clear that factual matters are in dispute, it will not be necessary for the decision-maker to indicate to the person affected that the decision-maker is likely to reach an adverse conclusion;
·An applicant cannot complain if his or her application is rejected because the decision-maker, without notice to him or her, rejects what he or she puts forward;
·Fairness may require that, before a finding of forgery is made, the person accused of forgery be given the opportunity of answering the accusation;
·There may well be cases where the Tribunal’s questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue; and
·There is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document.
In SZMOK, the Court noted the reluctance of the Tribunal to give the applicant further time to provide documents. The Court further concluded that it must have been abundantly clear to the applicant that, even if some documents were provided, the Tribunal may not accept them. The Tribunal had given the applicant the opportunity to give evidence and present arguments in relation to the issues under review. The issue was whether there were false charges brought against him. The applicant had been given ample opportunity to give evidence and present arguments relating to that issue; the Tribunal did not believe him.
In this case, the critical issue was whether the Applicant had been convicted of alcohol-related offences. He gave precise details of the punishment he received for two such charges. It is clear, from the Tribunal’s questioning, that it was not inclined to believe him on that issue. The Applicant also claimed that his parents had provided their property as surety for his bail in relation to one conviction. The Applicant was questioned by the Tribunal about whether he had any documents outlining his convictions, or a receipt for the title deeds to the family home. He initially said he had no reason to keep any such documents. The Applicant said he did not have copies and when asked if his parents did, said “Maybe I do have”.[37] The documents produced were found by the Tribunal to be inconsistent with the Applicant’s version of events.
[37] Affidavit of Karan Raghavan filed 13 September 2013, Annexure “KR-2” at p.32.
The authenticity of the documents was not a new issue. It was not a matter upon which the findings of the Tribunal depended; it was simply additional evidence about an extant issue and its rejection by the Tribunal did not, in my view, give rise to a requirement that the Applicant be given an opportunity to put further evidence before the Tribunal. He had been given ample opportunity to provide evidence and arguments with respect to the critical issue, namely his convictions for alcohol-related offences.
For these reasons, I am not satisfied that ground one is made out.
Grounds two, three and four
Grounds two, three and four deal with what is alleged to be the misconstruing of s.36(2)(aa) of the Act, as well as a failure to consider the elements of s.36(2)(aa) and a claim that the finding of the Tribunal with respect to s.36(2)(aa) was irrational.
The Applicant’s submissions
The Applicant submits that, on the Tribunal’s own findings,
the Applicant was tortured by the Iranian authorities. This is an express finding that, in the past, the Applicant suffered a precise harm to which the protection obligations in s.36(2)(aa) of the Act are directed.
The fact that the torture occurred by way of punishment for some criminal offence does not take it outside of the scope of s.36(2)(aa) of the Act. The Tribunal leaves entirely unexplained the factual basis for concluding that somehow, this occurrence of torture concluded things and there was no “real risk”[38] that what happened in the past might happen in the future.
[38] Migration Act 1958 (Cth), s.36(2)(aa).
The Applicant took the Court to the definitions of “torture”,[39]
“cruel or inhuman treatment or punishment”[40] and “degrading treatment or punishment”,[41] and to a decision of the Human Rights Committee in George Osbourne v Jamaica CCPR/C/68/D/759/1997, Human Rights Committee, 13 April 2000, where it was found that corporal punishment constituted a form of inhuman or degrading treatment or punishment contrary to Article 7 of the
Convention relating to the Status of Refugees(“the Convention”).
[39] Ibid, s.36(2A)(c).
[40] Ibid, s.36(2A)(d).
[41] Ibid, s.36(2A)(e).
The Applicant submitted that there was no evidence or other material on which a finding of fact that the Applicant will not be lashed again, and that there is no ‘real risk’, is based. This is because there is no finding at all about what the law is for which he was punished in a way that constitutes torture.
Section 36(2)(aa) of the Act is to be construed as a whole with its related definitional provisions.[42] The correct standard of proof for
‘real risk’ is the same as for ‘real chance’ as explained by the
High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.[43]
[42] MZYLT v Minister for Immigration and Citizenship [2012] FCA 205.
[43] See also Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.
In Minister for Immigration and Border Protection v MZYTS
[2013] FCAFC 114, the Full Court of the Federal Court found that applying the criteria for issuing a visa where the person is currently in Australia requires consideration of the risks, if any, the person might face if they returned to their country of nationality and the reasons he or she might face those risks:
It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.[44]
[44] [2013] FCAFC 114 at para.33.
That is the exercise; it is not some sort of conjecture or surmise.
It is speculation, but that is precisely what Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) requires the Tribunal to do. On the Tribunal’s own findings, the Applicant had been tortured in the past. The finding by the Tribunal that this action
(the lashings) would have concluded the legal proceedings for that action (the unidentified offence) was entirely unresponsive to the issue.
This is because:
(a)there was a failure by the Tribunal to consider whether what occurred amounted to “significant harm”, as required by s 36(2A);
(b)there was a failure to consider what was, and make any finding identifying, the law for breach of which the Applicant was punished;
(c)there was a failure to make any finding as to the events that would have led the Iranian authorities to find that the Applicant had breached that unspecified law; and
(d)consequent to (b) and (c), there was a failure to consider whether, because of the particular circumstances of the Applicant and/or the nature of that unspecified law
(which could be a law that applied, disproportionately, to a person in the circumstances, or with the characteristics, of Applicant), there was a real risk that he would become exposed, again, to punishment constituting “torture”
(or “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”).[45]
[45] Applicant’s Outline of Submissions filed 16 September 2013, p.12 at para.48.
The Applicant further submits that the Tribunal’s own findings can give rise to a claim different from those advanced by the Applicant and this claim must be considered. The Applicant referred to MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497, where Young J found that:
On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions.[46]
[46] [2006] FCA 497 at para.39.
Here, the Tribunal found that the Applicant was subjected to torture. The Applicant referred to the case of SZRLK v Minister for Immigration and Citizenship & Anor [2012] FMCA 1155 (“SZRLK”) where Smith FM (as he then was) found that the Tribunal’s failure to make precise findings with respect to each of the applicant’s claims left open a very significant claim in relation to their past history that the applicant would face serious and significant harm which might be covered by s.36(2)(aa) of the Act.
The Applicant also took the Court to Guo and particularly to the following passages:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.[47]
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many,
if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[48][47] (1997) 191 CLR 559 at p.574.
[48] Ibid, at p.575.
Plainly, the Tribunal in this case failed to engage in the analysis envisaged by Guo with respect of its own finding that an act of torture had occurred. There was no consideration of the conditions under which it occurred, what was the law the Applicant breached, and why he breached it. Additionally, the Tribunal gave no consideration as to what new events might prevent it from happening again if the Applicant returned to Iran.
The Applicant then went on to discuss the types of law which, by their nature and/or because of personal reasons or circumstances, might put a person at repeated risk of breach. Even if it were a law of general application, it is clear that it is not enough to say it is a law of general application if it is capable of being applied in a discriminatory manner, or offends the standards of civil society.[49]
[49]The Applicant pointed out that there were other laws in the
Islamic Penal Code of the Islamic Republic of Iran (“the Code”) that imposed lashings and, ultimately, the death penalty for repeated offences.
None of the findings made by the Tribunal provided a basis from which it could be found that what had been done by the Iranian authorities to the Applicant in the past, may not be done to him again. It was irrational because it was based on implied findings and/or inferences of fact that cannot be supported by logical grounds.
The First Respondent’s submissions
The First Respondent accepted that the issue of ‘real risk’ and
‘real chance’ on the authority of Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 involved the same test and also accepted that lashing is capable of falling within the definition of serious harm for the purpose of s.36(2)(aa) of the Act.
The First Respondent set out the Tribunal’s reasoning with respect to s.36(2)(aa) of the Act as follows:
70.Tribunal reasoning: Here, the Tribunal found that the Applicant had been lashed at some stage, but did not accept that he had been lashed for committing alcohol-related offences (as he claimed) (CB 211, [99]).
70.1.The Tribunal found that the photos indicated that the lashing had finalised whatever act he had been sentenced for. That conclusion was supported by the fact that the Applicant was able to leave Iran on his own passport, which indicated that he was not wanted by the authorities (CB 211, [100], [112]).
70.2.The Tribunal then concluded that, because the Applicant was not wanted by Iranian authorities or subject to any outstanding legal action in Iran, there were not substantial grounds for believing that there was a real risk that the Applicant would suffer significant harm if he was returned to Iran
(CB 213, [112]).
71.This reasoning accepts, implicitly, that lashing is
“serious harm”. The Tribunal reasons that, as the Applicant is not wanted by Iranian authorities or the subject of any outstanding legal action, there is not a “real risk” that he will be lashed again. That is a finding of fact open to the Tribunal.[50]
[50] First Respondent’s Contentions of Fact and Law filed 4 October 2013, p.18 at paras.70-71.
The Applicant’s submission suggests that the Tribunal was obliged to work out what the offence was if it was not alcohol-related;
that inverts the process. This is an inquisitorial process; the applicant puts his or her claims and the Tribunal assesses them.
The First Respondent referred the Court to the decision of the
Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73. In that case, the Tribunal found that, on the available evidence, it could not determine the facts with confidence. The trial judge concluded that, in the absence of findings as to the facts, either favourable or unfavourable to the applicant, the Tribunal could not reach the requisite state of satisfaction or dissatisfaction. The Full Court disagreed, stating that:
… the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding.[51]
The Full Court also found that the Tribunal was not obliged to arrange a new hearing or to seek information from other sources.[52]
[51] [2005] FCAFC 73 at para.17.
[52] Ibid, at para.20.
With respect to the decision in Guo, the First Respondent submitted that, while an element of speculation is inevitable, conjecture or surmise have no part to play in determining whether a fear is well-founded. Therefore, when the Full Court in MZYTS refer to a “predictive exercise involving speculation”,[53] they do not mean conjecture or surmise, but the uncertainty which is a necessary element of prediction – it is speculative only in that sense. Further, the Court in Guo made it clear that the Tribunal was not obliged to consider the possibility that its findings were inaccurate.[54]
[53] [2013] FCAFC 114 at para.33.
[54] (1997) 191 CLR 559 at p.576.
The ‘real chance’ test operates in a situation where there is no mathematical certainty or even probability. The First Respondent referred to NBKT v Minister for Immigration and Multicultural Affairs and Anor (2006) 156 FCR 419. In that case, it was argued that the Tribunal should have considered whether there was a chance that,
on return to China, the applicant would join an unofficial (rather than an official) church and if so, whether there was a chance she would be persecuted for reasons of her religion as a member of an unofficial church. His Honour Young J described this submission as seeking to “build a “chance” upon a “chance””,[55] finding that the Tribunal was not obliged to speculate what she would do in the absence of evidence from the applicant that suggested that she would join an unofficial church.
[55] (2006) 156 FCR 419 at para.73.
The ‘real chance’ test co-exists with the well-established principle that the Tribunal is obliged to consider the claims the applicant makes and the claims that arise from the material before the Tribunal. It was not the Tribunal’s job to go looking for what the offence was,
having determined that it was not alcohol-related. With respect to the Applicant’s reliance on MZWDG, the First Respondent submitted that the example given by Young J in paragraph 38 was not analogous to this case.[56] It did not suggest that, if the Tribunal rejects the applicant’s case, that raises a new issue. There is nothing in MZWDG or SZRLK to cut across the principle that the Tribunal does not have to make the applicant’s case for them.
[56] [2006] FCA 497.
There is nothing to support the argument that, if the Applicant was lashed once, there must be a ‘real chance’ that the Applicant will be lashed again. There was no information before the Tribunal to suggest that the offence for which the Applicant was lashed was an offence that he was likely to commit again, or any more likely to commit than any other member of the Iranian public.
There is no presumption of recidivism and so far from being illogical or irrational – considering how stringent the test for ‘Wednesbury’ unreasonableness[57] is and the lack of any requirement on the Tribunal to fill the evidentiary gap – that the Tribunal was within its remit to find that it was not satisfied there was a ‘real chance’ that the Applicant would suffer significant harm within the requirements of s.36(2)(aa) of the Act.
[57] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Conclusions with respect to grounds two, three and four
The Applicant’s submissions with respect to these grounds rely on the premise that, having found that the Applicant had been lashed, but not for alcohol-related offences, in order to determine if there was a real risk that the Applicant would face serious harm if returned to Iran,
it was necessary for the Tribunal to determine what offence the Applicant was punished by lashing for, and the circumstances under which the law was breached and why it was breached, in order to determine the likelihood of further such breaches occurring.
In my view, this places an obligation on the Tribunal which is inconsistent with its role and the nature of the inquiry it is obliged to make as an inquisitorial body bound by statute. The ultimate purpose of the Tribunal’s inquiry is to determine if it is satisfied that an applicant meets the criteria for the grant of a visa, either because he or she is found to be a refugee or because he or she meets the complementary protection criteria.
In carrying out that inquiry, the Tribunal is only required to make its own enquiries in very limited circumstances.[58]
[58] See Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at paras.25-26.
The Tribunal assessed the Applicant’s claims and it rejected the key elements of those claims. The Tribunal accepted that the Applicant had been lashed for some type of offence. In considering if there was a real risk that he might be subject to such treatment again, the Tribunal effectively found that:
·The Applicant had been punished for the offence;
·He had been allowed to leave the country on his own passport; and
·There were no outstanding charges against the Applicant.
While the Tribunal may be required to speculate about what might happen in the future, it is not required to assume that the Applicant, should he return to Iran, was likely to reoffend and therefore, was likely to suffer similar punishment.
The Tribunal was entitled to rely on the material before it.
In that context, the Tribunal’s conclusion that it was not satisfied that there was a real risk that the Applicant would suffer significant harm if he returned to Iran is neither irrational nor illogical.
I am not satisfied that any of the grounds two, three or four are made out.
Ground five
The Applicant’s submissions
The Applicant’s case with respect to this ground is that the Tribunal failed to deal with the claim that he would suffer significant harm as a person with past convictions and, hence, known to the authorities. Necessarily, by virtue of finding that he had been lashed for some offence, the claim that the Applicant was known to Iranian authorities by virtue of his previous appearances in Court must exist. There is no finding by the Tribunal with respect to the fact that the Applicant does not have the claimed profile.
It is not enough to say that the claimed pre-existing profile is said to arise from convictions for alcohol-related offences. The authorities make it clear that the obligation of the Tribunal extends to considering claims that arise squarely from the material, irrespective of whether that is precisely the way it is put to the Tribunal by the Applicant.[59]
Nor is there anything in the way the Tribunal dealt with the failed asylum seeker claim in respect of the complementary protection criteria.
[59] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
The First Respondent’s submissions
The First Respondent submits that the basis upon which the Applicant claimed to have a profile with the Iranian authorities was not due to his previous court appearances. The claim, as it was put at the hearing, was that he would have a profile because he had been to Court three times for drinking alcohol.
The Tribunal rejected the factual premise of the Applicant’s claim that he had a profile for alcohol-related offences. The inference that the Tribunal has failed to deal with an issue may be drawn from its failure to expressly deal with that issue in its reasons. However, it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality, or because there is a factual premise on which a contention rests which has been rejected.[60]
[60] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at para.47.
The First Respondent submits that, to accept that the Applicant had been lashed and therefore had committed an offence, does not lead to the conclusion that the Applicant has a profile with the authorities.
The fact that the Applicant was able to leave the country on his own passport suggests that he did not have such a profile.
Conclusions with respect to ground five
This ground proposes that, having found that the Applicant had not been charged with three alcohol-related offences and therefore did not have a profile with the authorities for that reason, the Tribunal was obliged to consider that, because he had committed an offence punishable by lashing, the Applicant had such a profile.
The Applicant’s claim to have a profile was based on him having been charged with multiple offences. The Tribunal made no finding that the Applicant had committed multiple offences. As the Code shows (extracts from which were provided to the Court by the Applicant), punishment by lashing is not an isolated penalty. Further, the Tribunal considered that the capacity of the Applicant to leave Iran on his own passport would indicate that he was not of interest to the authorities.
To the extent that it was necessary to deal with a claim that the Applicant had a profile because he had committed an offence punishable by lashing, the Tribunal did so.
I am not satisfied that ground five is therefore made out.
Conclusions with respect to the application being out of time
The application in this matter was made 17 days outside of the time limit provided by s.477(1) of the Act. The Applicant applied in writing for an order that the time for making an application be extended under s.477(2) of the Act. This was supported by the Applicant’s affidavit filed 4 March 2013. The First Respondent did not oppose an order being made under s.477(2) of the Act.
I accept that a reasonable explanation has been provided for the delay in lodgement. I further accept that, while I have not found in the Applicant’s favour with respect to the grounds raised in the
Amended Application,[61] the application was not without merit.
[61] Amended Application filed 13 September 2013.
I therefore grant an extension of time under s.477(2) of the Act to the date of lodgement. I otherwise dismiss the application.
I certify that the preceding one-hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 10 February 2014
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at paras.
42-43 and 45.
3