MZZNN v Minister for Immigration
[2014] FCCA 74
•22 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZNN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 74 |
| Catchwords: MIGRATION – Application for extension of time for judicial review – review of Refugee Review Tribunal decision – failure to consider integer of claim – costs. |
| Legislation: Migration Act 1958 (Cth), ss.477, 91R(3), 36(2) |
|
| First Applicant: | MZZNN |
| Second Applicant: | MZZNO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1044 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 25 November 2013 |
| Date of Last Submission: | 25 November 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 22 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondent: | Mr Mosley |
| Solicitors for the Respondent: | Sparke Helmore |
THE COURT ORDERS THAT:
The name of the first respondent be amended to ‘Minister for Immigration and Border Protection’.
The application for an extension of time pursuant to section 477(2) of the Migration Act1958 (Cth) is granted.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 November 2012.
A writ of mandamus issue remitting the matter to the second respondent and requiring it to determine according to law the application made to it by the applicants for review of the delegate of the first respondent’s decision.
The first respondent pay the applicants’ costs fixed in the sum of $6, 646.00 within 14 days of this order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1044 of 2013
| MZZNN |
First Applicant
| MZZNO |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 November 2012, affirming a decision of a delegate of the then Minister for Immigration & Citizenship (“the Minister”) not to grant the applicants Protection (Class XA) visas (“protection visas”).
As the application was made on 11 July 2013, the application was some six months outside the 35 day limit provided under s.477(1) of the Migration Act1958 (“the Act”). The applicants must first be granted an extension of the time to proceed with their application for judicial review.
Section 477(2) of the Act relevantly provides:
“(2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a)An application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)The Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
It is not disputed, and the Court accepts, that whilst the discretion to the extend the time limit in s.477(2) is one at large, the matters relevant to the Courts consideration include whether the applicant has a satisfactory application for the delay, whether the first respondent has been prejudiced by the delay and whether the merits of the application have a reasonable prospect of success: Li v Minister for Immigration & Anor [2011] FMCA 12 at [35], SZQFR v Minister For Immigration & Anor [2011] FMCA 785 at [25], WZASC v Minister For Immigration & Anor [2013] FCCA 1452 at [7].
Background
The applicants are citizens of Iran and are a married couple. The first applicant is the husband and the second applicant is the wife. They arrived together on Christmas Island on 22 April 2012.
On 20 June 2012 the applicants applied for a protection visa to the Department of Immigration and Citizenship.
On the 8 August 2012 the delegate of the Minister refused the application of the first applicant (CB 184 to 207) and the second applicant (CB 165 to 183).
On 29 November 2012 and in one decision the Tribunal affirmed the decision not to grant the applicants a protection visa (CB 260 to 279).
Extension of time
The applicants seek an extension of time in which to file their application: s.477(2).
The factors the Court takes into consideration in deciding whether to extend the time limit includes the following non-exhaustive list of considerations:
a)The extent of the delay and the reason for the delay;
b)Whether there is any merit in the application;
c)Whether there is any prejudice to the respondents;
d)The impact on the applicants’; and
e)Whether it is in the interests of justice to do so.
Delay
The first applicant filed an affidavit sworn 11 July 2013 setting out the reasons for delay in which he deposes that:
a)On 29 November 2012 he received a phone call from a person he believed was from the Department informing him of the Tribunal’s “negative” decision;
b)He was informed he had two options; to return to his country or appeal the decision to the Courts. He was also informed that his file had been passed onto Victorian Legal Aid (“VLA”);
c)He was not aware of the 35 day time limit in which to appeal to the Courts nor the process for appealing to the Courts;
d)He waited to be assessed by the VLA and to be contacted by them;
e)Around 30 days after he had been informed of the Tribunal’s decision, he received a phone call from VLA. He was informed that VLA would not assist him.
f)He still did not know his legal options or the process involved, however, he understood that “we were on our own”;
g)On 28 March 2013 he went to the Asylum Seeker Resource Centre (“the ASRC”) and was informed they were busy but he would be contacted if the ASRC could help them;
h)On 11 June 2013 he was contacted by the ASRC and was advised that their case was being assessed;
i)On 1 July 2013 he was contacted by the ASRC and was informed their case had been positively assessed by the ASRC and that they would be assisted in lodging an appeal in the Federal Circuit Court;
j)Only at this point was he aware he could apply to the Court to appeal the Tribunal’s decision. Until then he did not know he could make an application or how to go about it.
The Minister submitted the applicants’ explanation for the delay is not satisfactory because:
a)The applicant was aware, on his own evidence, on 29 November 2012, regarding his right of appeal;
b)When the applicant was informed by VLA that they would not assist him, he was still within the 35 day time limit;
c)The applicant may not be entirely responsible for the length of time taken by ASRC to assess his claim;
d)However the applicant’s failure to only take steps from the time he was informed by the VLA to 28 March 2013 when he approached the ASRC is not satisfactory.
The Minister referred to the decision of Cowdroy J in SZLIH v Minister for Immigration and Citizenship [2009] FCA 108, where His Honour stated at [33].
“It is not acceptable that the applicants’ failed to make proper inquiries to determine when their appeal was required to be lodged. The Court would have found their reason for non-compliance with the Rules to be implausible.”
I am prepared to accept, as the applicant urges, that the delay of six months is long but not inordinate: Manoher v Minister for Immigration, Local Government and Ethical Affairs (No. 2) (1991) 24 ALD 410 at p.411. However, it does not follow from this that the applicants have provided a satisfactory application for the delay.
I agree with the Minister’s submission that the applicants have failed to satisfactory explain the three month period between the advice from VLA and the contact made with the ASRC.
I do not accept that the applicants’ lack of knowledge of the time limits of legal process is a satisfactory explanation.
As Foster J stated in SZSDA v Minister For Immigration And Citizenship [2012] FCA 1319 at [38]:
“In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay…”
Is it apparent from the first applicant’s affidavit he was made aware of his appeal rights on 29 November 2012 and knew he needed to take some steps, as he finally did when he contacted the ASRC. I am satisfied that reasonable steps were taken initially to contact the VLA and the delay by the VLA in providing the applicants with an assessment of their case is a satisfactory explanation. However, the applicants delay in taking prompt action following the advice from the VLA is not, in my opinion, satisfactory explained. The fact is they simply failed to take the requisite action for a period of three months.
I find the applicants have not provided a satisfactory explanation for the delay in applying for judicial review.
Prejudice
The applicants submit there is no prejudice to the first respondent referrable to the delay. The first respondent would be required to litigate even in circumstances where the application for judicial review was made in time.
The respondent relies on the decision in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 (“SZMFJ “) in which Nicholls FM, as His Honour then was, stated at [195]:
“The prejudice to the respondent in granting the extension of time would be to put the Minister to the burden and cost of addition litigation in circumstances where the applicants’ delay in making the application remains unsatisfactorily unexplained, and where there is a lack of merit in the ground (or the proposed additional ground) of the substantive application.”
It is manifest that the prejudice identified in SZMFJ flows from findings as to unacceptable delay and lack of merit in the substantive claim.
Merits
The amended grounds for judicial review filed on 30 October 2013 and which were pursued at hearing are:
“…
2.The Second Respondent committed an error of law by failing to consider an integer of the First Applicants’ claim and failing to consider his conduct in Australia in its assessment of complementary protection.
PARTICULARS
(a)In its consideration of the First Applicants’ Convention based claims the Tribunal invoked s91R(3) and consequently disregarded the applicants’ conduct in Australia regarding Christianity.
(b)The section does not apply to an assessment of complementary protection.
(c)The Second Respondent failed to have regard to, or assess, the applicant’s conduct in Australia against the relevant complementary protection provisions.
3.The Second Respondent committed an error of law by failing to consider an integer of the Second Applicants’ claim and to assess whether her conduct in Australia placed her at risk of persecution upon return to Iran.
PARTICULARS
(a)The Second Respondent did not accept that the applicant wife had ‘converted to Christianity.’
(b)The Second Respondent however did not reject as untruthful the actual conduct engaged in by the Second Applicant.
(c)The Second Respondent did not invoke the s.91R(3) provisions in its assessment of the Second Applicants’ religious claims.
(d)The Second Respondent was therefore required to consider whether the Second Applicant’s conduct in Australia might place her at risk of persecution upon return to Iran.”
Ms Karapanagiotidis clarified in the hearing that Ground 3 is relied on only to the extent that the Court finds that s.91R(3) of the Act was not invoked by the Tribunal in considering the second applicant’s claim that she is a person whom Australia owes protection obligation under the Refugee Convention s.36(2)(a). Mr Mosley stated that the first respondent’s view was that the Tribunal did invoke s.93R(3) in relation to the second applicant’s claims.
I am satisfied that the Tribunal decided pursuant to s.91R(3), not to take into account the conduct of both applicants in Australia. This is apparent from the Tribunal’s decision record at (CB 273 at [94]), (CB 275 at [110]) and (CB 278 at [122]). Consequently, it is only necessary that I deal with Ground 2 of the applicants’ grounds for judicial review.
Claims of the Applicants
In their applications for protection visas both applicants provided statements which included the following claims (CB 79 to 81 and CB 82 to 85):
(a)They had converted to Christianity;
(b)They were baptised on the 10 June 2012 in Australia; and
(c)They would be imprisoned and killed if they returned to Iran as they would be considered an infidel and apostate.
The applicants provided copies of their baptismal certificates dated 10 June 2012 (CB 86 to 87).
In a submission prepared by the applicants’ migration agent sent to the Tribunal on 8 November 2012 (CB 240 to 251) it was relevantly claimed that:
(a)The applicants had rejected Islam and converted to Christianity; and
(b)Their Christian beliefs and dislike of Islam and their experiences in Australia will be exposed on return to Iran.
The Tribunal in its decision record dealing with ‘Claims and Evidence’, relevantly referred to the Departmental interview with the first applicant as follows (CB 266 at [44]):
“He exhibited a knowledge of Jesus but said that in Islam nobody could investigate Jesus because nobody dares to do that. He claimed that he practised his Christian beliefs in Australia by attending church every week since arriving in Christmas Island. If he returned to Iran he believed that he would be executed by the Iranian government; they would know because the Sepah and Basij are very active in gathering information and they would find out.”
With respect to the second applicant the Tribunal recorded her evidence at the interview as follows (CB 268 at [60]):
“If she returned to Iran she would be killed. She didn’t know how they would know she had investigated Christianity but said if they did they would kill her. She claimed she wanted to practice as a Christian so her sins would be forgiven and nothing is compulsory, and in order to have relations with God.”
Tribunal Decision
The Tribunal set out its findings and reasons, commencing with the finding (CB 275 at [105]):
“I found the applicant’s evidence regarding his claim to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness.”
The Tribunal stated (CB 275 at [106]):
“I do not accept that the applicant had any interest in Christianity whilst in Iran, and that his interest in Christianity in Australia, including his baptism, has been done for the sole purpose of improving his refugee claim. The applicant was advised about s91R(3) and as a consequence his conduct in Australia regarding Christianity will not be taken into account.”
The Tribunal went on to deal with the first applicant’s evidence that he was introduced to Christianity in 2001 in Iran by an Armenian Christian, called Chris, who took him to an Armenian house church in Iran. The Tribunal found that the applicant’s claim regarding Chris “…had been fabricated’’ (CB 275 at [108]).
With respect to the applicants conduct in Australia the Tribunal found (CB 275 at [110] to [111]):
“110.I find that they sought to become baptised in Australia as quickly as possible solely to improve their refugee claim. For someone who exhibited no interest in, or made any attempt to find information about Christianity in the 10 years he had been in Iran since he claimed he had been introduced to it, he did not seek to familiarise himself with the religion (or any other religion) on his arrival in Australia. Given that he knew nothing of the tenets of the religion I do not accept his claim that he did no research in Iran because he knew Christianity. He claimed that he did not do any specific preparation for baptism because it purified his sins. He sought to become baptised on arrival in Darwin but had to wait four weeks before the sacrament was conferred.
111.The applicant was baptised in the Anglican church and claimed that he did so because he only had a choice between Catholic and Anglican. Once he was transferred to Melbourne he claimed that he attended the Baptist church in Melbourne because the nearest Anglican church was over an hour away. It was put to him that there is an Anglican church in the applicant’s suburb, and his admission that he had not looked for an Anglican church adds further to my concerns regarding the applicant’s credibility and motivation for his conversion. I note that the applicant did not know the name of the Baptist church nor did he provide any supporting statements from the church.”
The Tribunal then stated (CB 276 at [112]):
“Given that I have found that the applicant has had no interest in Christianity in Iran, I do not accept that he would be perceived to be Christian, an apostate on return to Iran, that he would seek to practise Christianity or that he has told his father he is Christian.”
There can be no doubt that in making this finding regarding the first applicant’s claim to be a refugee for a Convention reason, the Tribunal was only considering the first applicant’s conduct in Iran and that this is because the conduct by the first applicant in Australia regarding Christianity was not taken into account because of s.91R(3).
With respect to the second applicant the Tribunal accepted that she may have been a non-observant Muslim but did not accept her claims to have converted to Christianity. The Tribunal stated (CB 278 at [122] to [123]):
“122.…I accept that she may have been a non-observant Muslim but I do not accept her claims to have converted to Christianity. She converted within one or two months of coming to Australia at her request, having done no research into other religions and having had no interest in Christianity in Iran. She attended a Baptist church even though she had been baptised an Anglican, and did not even know if there was an Anglican church where they lived. She was vague about what attracted her to Christianity, saying only that she had faith and it gave her peace.
123.She offered no evidence to support her claim that she would be considered an infidel if she did not have a religion in Iran. She has not has issues with the authorities previously regarding her non-observance and she has not claimed that she would be public about this issue on return. Given that she also has no political profile I do not accept that she would be of interest to Iranian authorities on her return.”
The Tribunal then concluded (CB 278 at [125]):
“Having had regard to all the evidence, and the applicants’ claims both singularly and cumulatively, the Tribunal finds that the applicants’ do not have a well-founded fear of persecution for any Convention reason.”
The Tribunal then turned to consider the applicants’ claims under the complementary protection provisions, s.36(2)(aa), as follows (CB 278 [126] to [127]:
“126.Because I do not accept that the applicants have converted or would be perceived to have converted to Christianity or considered by the authorities to be apostates or infidels or non-conformist, or that the first applicant’s father would not allow them to move out and controlled their lives I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
127.As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).”
Applicants’ Submissions
The applicants submit that their conduct in Australia, in terms of their baptism, worship and attendance at the church service, was a separate claim and separate basis to fear significant or serious harm. Information of their activities would somehow be disclosed to the authorities and consequently place them at risk.
The applicants submit at [38] to [39] of their Contention of Facts and Law:
“38.The Tribunal committed error by not considering the issue or integer of the [applicants’] claim in its consideration of complementary protection. That is, it altogether failed to consider or assess whether the [applicants’ were] at risk of significant harm because of [their] conduct in Australia, which it had disregarded in the substantive part of the application. More particularly, it failed to consider whether there was a chance that the [applicants’] conduct in Australia, namely [their] baptism and church and meeting attendances, would become known to the Iranian authorities, including the Basij and Sepah.
39.Had the Tribunal considered this issue it may have arrived at the same conclusion as the delegate. Equally, it may not have. It’s noted that the decision of the Tribunal and the delegate were different in significant respects, particularly as it concerned the second applicant. Whatever decision it may have arrived at, it’s unlikely they’d be cause for complaint. The issue here is that he Tribunal committed jurisdictional error by failing to deal with the claim and/or failing consider an integer of the applicants’ claim…”
The applicants submit that an integer of claim was that their religious conduct in Australia would become known to the Iranian authorities (including the Sepah and Basij) and, as a consequence, they would be at risk of significant harm on return to Iran.
The crux of the applicants’ argument is that the Tribunal’s considerations of the complementary protection provisions rely on findings of fact made by the Tribunal in considering the Convention based claims which findings disregard the applicants’ conduct in Australia (Transcript, p.6). The applicants submit that there are no clear findings of fact relevant to the integer of the applicants’ claim that by reason of their conduct in Australia they will be perceived to be Christian on return to Iran (Transcript, p.9)
It should be noted that the applicants’ refer to the brevity of the Tribunal’s consideration of the claims pursuant to the complementary provisions as an additional point of argument (Transcript, p.6). I note here the brevity with which the finding of the Tribunal was expressed is not an indicator of judicial error, SZRMF v Minister for Immigration and Anor [2013] FMCA 180 at [14].
First Respondent’s Submissions
The first respondent submits at [13] of its Contentions:
“As the Tribunal did not accept that the applicants’ had converted or would be perceived to have converted to Christianity, would be considered apostate or infidels or non-conformists, or that the first applicant’s father controlled their lives, it was not satisfied that the applicants faced a real risk of significant harm or that they met the complementary protection criteria (CB 278 at [126] - [127]) The applicants’ did not make any claims for complementary protection additional to their claims to fear persecution under the Convention. As the Tribunal rejected each of the applicants’ claims to fear persecution for a Convention reason on the basis of adverse credibility findings and inconsistency with ICI, there was left nothing for the Tribunal to consider under the regime of complementary protection.”
In oral submissions Mr Mosley argued that the Tribunal’s decision record discloses the following (Transcript, p.16):
a)A finding of fact that it did not accept that the applicants would be perceived to be Christian or apostate on return to Iran at [122], (CB 276); and
b)In the critical passage regarding complementary protection (CB 278 at [126]) the finding that the applicants would not be perceived to be Christian or apostate on return to Iran.
A logical conclusion from this finding of the Tribunal in considering the complementary protection provision must be that the Tribunal took into the applicants’ conduct in Australia. This is because, if it did not take into account the applicants’ conduct, it would not have had to address the issue of conversion to Christianity (Transcript, p.16).
The first respondent submits that the applicants’ arguments confuse the assessment of evidence and the findings of fact. The invocation of s.91R(3) with respect to the refugee Convention claims does not mean that the Tribunal has not assessed evidence or made findings of fact which can form the basis for considering the applicants claims under s.36(2)(aa)(Transcript, p.17).
Mr Mosley relied on the decision of Nicholls FM (as His Honour then was) in SZRQR v Minister for Immigration and Anor [2013] FMCA 21. Mr Mosley submitted the grounds of judicial review in that decision was on all fours with the grounds for judicial review in this matter.
Mr Mosley specifically relied on His Honours disposal of the applicant’s claim in the following extracts from the decision at [14] to [21]:
“14.However, the applicant’s contention that the Tribunal did not make a separate determination in relation to his claimed conduct in Australia and complementary protection can, on any plain reading of the material before the Court, be quickly dispatched.
15.First, while the applicant in his submissions emphasised the distinction between the two concepts, he made no satisfactory attempt to reveal how the Tribunal failed to understand the distinction, and that, with reference to its decision record, actually disregarded the conduct in Australia when it came to consider complementary protection.
16.Second, contrary to the implication in the applicant’s ground, the Tribunal’s decision record reveals that the Tribunal understood the distinction and the relevant application of s.91R(3) of the Act. That distinction is plainly set out when regard is had to [7] – [17] (“Refugee Criteria”) and [18] – [20] (“Complementary Protection Criteria”) (at CB 320 to CB 322 of the Tribunal’s decision record).
17.Third, and particularly, the Tribunal specifically stated ([10] at CB 321): “Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person” [emphasis added].
18.The section on complementary protection makes no reference to s.91R of the Act. On a plain reading, this can only mean that the Tribunal saw s.91R of the Act as having no relevance to complementary protection.
19.Fourth, the Tribunal plainly understood that the refugee criterion (s.36(2)(a) of the Act) and the complementary protection criterion (s.36(2)(aa) of the Act) statutorily refer to different tests. That is, “serious harm” and “significant harm”, respectively.
20.Fifth, in its “Findings and Reasons”, the only specific mention of s.91R(3) is found at [167] (at CB 353). Here the Tribunal noted the applicant’s evidence, being certain photographs that he showed to the Tribunal and other evidence showing that he visited as least two “gay” venues.
21.It is important to note that the Tribunal had by this time in the presentation of its analysis comprehensively rejected the credibility of the applicant’s account, including that he was a homosexual (see the Tribunal’s conclusion at [165] at CB 353 and [169] at CB 354).”
By analogy the Minister submits that:
(a)The applicants have not shown what conduct in Australia has been disregarded;
(b)The Tribunal understood the distinction between s.36(2)(a) and s.36(2)(aa) and the application of s.91R(3);
(c)The Tribunal stated s.91R qualified some aspect of article 1A(2) of the Convention;
(d)The Tribunal made no reference to S.91R(3) in the section on Complementary Protection;
(e)The Tribunal understood the refugee criterion and Complementary Protection criterion refer to different tests;
(f)The Tribunal decision record contains limited references to s.91R(3); and
(g)The Tribunal comprehensively rejected the applicants’ accounts.
Mr Mosley also relied on the decision of Smith FM (as His Honour then was) in SZRSA v Minister for Immigration & Anor [2012] FMCA 1187 (“SZRSA”). It was submitted that the consideration and findings of the Tribunal in SZRSA on the complementary protection criterion apply to the consideration and findings of the Tribunal in this matter. In SZRSA His Honour stated at [48] to [49]:
“48.The issue is whether the Tribunal’s conclusion in this paragraph, which plainly was intended to explain fully its application of s.36(2)(aa), was premised upon a disregard of the applicant’s activities in Australia in which he engaged in training for evangelism.
49.In my opinion, it cannot be so read. The Tribunal’s reference in its opening words to its earlier findings, must include those in paragraph 99 which I have referred to above. These were positive findings that the applicant had no compulsion to evangelise, and had invented his claim that he wanted to evangelise. In my opinion, they involved taking into account, and not disregarding, all his activities in Australia and the Tribunal’s assessment of them.”
Consideration
I accept that the reasons for decision under review are not to be construed minutely and finely with an eye being attuned to the perception of error, Minister for Immigration and Ethical Affairs v Wu Shan Liang [1996] HCA 6, (1996) 185 CLR 259.
However, I am also conscious of the observation of Stone J, in SZCBT v Minister for Immigration and Multicultural Affairs & Anor [2007] FCA 9 at [26] where His Honour said:
“26.The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”
Integer Of Claim
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 24(9) Leg Rep 11; [2003] HCA 26 at [24], their Honours Gummow and Callinan JJ said:
“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord … natural justice.”
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 in which the Full Court at [63] stated:
“It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances…”
In Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161, the Full Court stated at [70]:
“70.In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, Gummow and Callinan JJ at [24] (with whom Hayne J agreed at [95]) said that the Tribunal is obliged to address “a substantial, clearly articulated argument relying upon established facts”. In NABE, the Court at [58] said:
·"The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
And Allsop J (as he then was) said in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:
·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.”
I am satisfied, having regard to the applicants’ statements, the submission made on their behalf, the record of interviews conducted by the Minister’s delegate and the evidence before the Tribunal (summarised at [26] to [30] above) that the integers of the applicants’ claim relevantly include;
(a)Because they converted to Christianity they would suffer harm (detention and/or death) if they returned to Iran; and
(b)Their actions or conduct in Australia (being baptised, attending church) would come to the knowledge of authorities and they would suffer significant harm (detention and/or death) if they returned to Iran.
Applicants Conduct in Australia
There is no dispute that the directive to decision makers addressing protection visa applications which is contained in s.91R(3) applies to claims of a well-founded fear of persecution for a Convention reason but does not extend to the decision makers consideration of s.36(2)(aa).
It is also agreed that the Tribunal applied s.91R(3) in considering both the applicants’ claim of a well-founded fear of persecution for a convention reason. I find that this is so and is apparent from plain reading of the decision record where it is stated that the second applicant was advised of s.91R(3) (CB 273 at [93]); the first applicant was informed that as a consequence of s.91R(3) his conduct in Australia would not be taken into account (CB 276 at [106]); the finding at [110] that [‘they’] sought to become baptised in Australia to improve [‘their’] refugee claims and the consideration by the Tribunal of the second applicant’s evidence regarding her conduct in Australia (CB 278 at [122] to [123]).
The issue in dispute is whether the Tribunal’s conclusion regarding the complementary protection provision (CB 278 at [122] to [123]) was premised on a disregard of the applicants’ activities in Australia in relation to Christianity.
As I have found earlier, an integer of the applicants claim was that they feared significant harm on return to Iran because their religious activities in Australia would become known to the authorities in Iran.
A finding that the Tribunal disregarded this conduct in considering the applicants’ claim pursuant to the complementary protection provision would have the consequence that the Tribunal fell into judicial error.
There is no question that findings of fact made by a Tribunal in the course of considering an applicant’s claim under s.36(2)(a) may be relied on, to the extent that they are relevant, in the course of the Tribunal’s consideration of the applicant’s claim under s.36(2)(aa). Where those findings of fact dispose of all the applicants’ claims, there will be no jurisdictional error.
This was the case in SZRSA where His Honour held that the reference in the Tribunal’s opening words, in the section of its decision record dealing with the complementary protection provisions, referred to earlier findings which included positive findings that the applicant had no compulsion to evangelise if returned to China and that he had invented his claim that he wanted to evangelise.
The positive findings were expressed in SZRSA at [23]:
“The Tribunal finds that the applicant invented the claim that he now wants to evangelise to bolster his claim for Protection and that he neither has a genuine desire nor would evangelise if he returned to China.”
This positive finding, as His Honour observed, was relied on where the Tribunal stated in its section on s.36(2)(aa) (and extracted in SZRSA at [47], “As the Tribunal has found that the applicant … neither wants to nor will evangelise in China…”.
In SZRQR the applicant claimed to fear persecutory harm if he were to return to India because of his sexual orientation, that being homosexual (at [3]). The evidence of his conduct in Australia relied on by the applicant was designed to support this claim by showing he visited at least two ‘gay’ venues (at [21]).
Whilst it is correct that there are commonalities between the extracts in SZRQR relied on by the Minister and the decision record of the Tribunal in their matter, the particular or an integer of the claims of the applicant in SZRGR are different as revealed by His Honour’s statement at [25]:
“The rejection of the applicant’s claim to be a homosexual was, as set out above, not dependent on his claimed conduct in Australia. At best, in relation to that conduct, the Tribunal saw it as not being of such a character as to alter its view of the applicant’s sexual orientation. Ultimately the applicant made no claim to fear “significant harm” on return to India because of his attendance at gay bars and the photographs. These were tended in support of his claim to be of homosexual orientation. A claim rejected on difference bases.”
In SZRQR the applicant did not claim significant harm because of his conduct in Australia. This is to be distinguished from the applicants’ integer of claim in this matter that they feared significant harm because their religious conduct in Australia would become known to the authorities in Iran.
It is appropriate to set out in summary form the assessments and findings of fact made by the Tribunal in relation to the applicants’ claims. These are:
(a)The Tribunal did not find the first applicant to be a reliable, credible or truthful witness (CB 275 at [105]);
(b)The applicants sought to become baptised in Australia solely to improve their refugee claim (CB 275 at [110]);
(c)The Tribunal assessed the first applicant’s claims regarding his introduction to Christianity in Iran as “implausible” and “fabricated” (CB 275 at [107] and [108]);
(d)The Tribunal assessed the first applicant’s evidence regarding his religious conduct in Australia and stated this assessment added to its “concerns regarding the applicant’s credibility and motivation for his conversion” (CB 275-276 at [111]);
(e)The Tribunal found at CB 276 at [112]:
(f)“112. Given that I have found that the applicant has had no interest in Christianity in Iran, I do not accept that he would be perceived to be Christian, and apostate on return to Iran, that he would seek to practice Christianity or that he has told his father that he is Christian.;”
(g)The Tribunal did note the second applicant’s claims she had converted to Christianity and assessed her evidence regarding her religious conduct in Australia (CB 278 at [122]); and
(h)The Tribunal did not accept the second applicant would be of interest to Iranian authorities.
I have earlier found the Tribunal invoked s.91R(3) in considering the applicants’ claim for protection for a Convention reason.
The Tribunals’ assessment of the religious conduct of both applicants was clearly negative.
The Minister submitted that by reason of the Tribunal’s finding at [112] of its decision (CB 276), taken together with the absence of any reference in the section on complementary protection to s.91R, the Tribunal’s opening words at [126] (CB 278), “Because I do not accept that the applications have converted or would be perceived to have converted by the authorities to be apostates…”, the Tribunal has addressed the applicants’ claims.
I do not accept the Minister’s submission. I find that the Tribunal has not addressed an integer of the applicants’ claims that their religious conduct in Australia will come to the attention of the authorities in Iran and as a consequence they will suffer significant harm.
I make this finding for the reasons set out below.
The opening words in the Tribunal’s consideration of the applicants’ claims in the complementary protection provisions, “Because I do not accept that the applicants have converted or would be perceived to have converted…”, are referable to the Tribunal’s earlier finding, as the Minister correctly submits, which commences (CB 276 at [112]), “Given that I have found that the applicant has had no interest in Christianity in Iran….” This opening finding qualifies the Tribunal’s finding that it does not “accept he would be perceived to be Christian…on return to Iran”. This is, read fairly, a finding of fact based on the first applicants conduct in Iran, not their conduct in Australia.
The Tribunal does make findings that the applicants became baptised in Australia as quickly as possible to improve their refugee claim. Further, the Tribunal considers the applicants’ evidence regarding their religious activities, expresses concern about the evidence and the motive of the applicants in engaging in the activity.
There is, however, no finding of fact addressing the applicants’ claims that their conduct in Australia (whether genuine or contrived) would come to the attention of the authorities in Iran and that, consequently, if removed from Australia to Iran they would suffer significant harm.
The absence of any reference in the Tribunal’s decision record to s.91R(3) in the section on complementary protection cannot, in these circumstances, remedy the absence of findings of fact regarding the applicants’ claims that their conduct in Australia would come to the attention of the authorities in Iran.
As the applicants claims were not addressed, the Tribunal fell into jurisdictional error and Ground 2 is made out.
Conclusion
As I have found the Tribunal fell into jurisdictional error, I am satisfied that although there was not an acceptable reason for the applicants delay in applying for juridical review, the merits of their application are overwhelming and have the effect that there is no prejudice to the respondent in granting an extension of time to the applicants.
I will therefore:
(a)Grant an extension of time to the applicants to make their applications for judicial review;
(b)Issue a writ of certiorari directed to the second respondent quashing the decision of the second respondent dated 29 November 2012;
(c)Issue a writ of mandamus remitting the matter to the second respondent and requiring it to determine according to law the application made to it by the applicants for review of the delegate of the first respondent’s decision.
(d)Order costs be paid by the first respondent to the applicants in a fixed amount.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 22 January 2014
0
22
2