SZSWD v Minister for Immigration

[2015] FCCA 704

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSWD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 704

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to apply the relevant tests correctly and failed to consider all the evidence and all the claims.

Legislation:

Migration Act 1958, ss.36, 424A, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Border Protection v MZYTS (2013) 136 ALD 547
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962
SZQFR v Minister for Immigration & Citizenship [2013] FCA 574
SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26

First Applicant: SZSWD

Second Applicant: SZSWE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1099 of 2013

Judgment of: Judge Cameron

Hearing date: 4 March 2015

Date of Last Submission: 4 March 2015

Delivered at: Sydney

Delivered on: 4 March 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Hughes

Solicitors for the Applicant: D’Ambra Murphy

Counsel for the First Respondent: Ms A. Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1099 of 2013

SZSWD

First Applicant

SZSWE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first and second applicants, who are father and daughter respectively, are citizens of Iran who arrived in Australia on 19 June 2012.  On 7 September 2012 the first applicant lodged an application for a protection visa alleging that he feared persecution in Iran because of his imputed political opinion.  The second applicant was included in that application as a member of the first applicant’s family unit. On 27 November 2012 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the second respondent (“Tribunal”) for a review of that decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the first applicant’s claim for a protection visa were set out in an attachment to the Tribunal’s decision record.  Relevantly they were as follows.

2. In a statement dated 9 September 2012 lodged in support of his application for a protection visa, the first applicant claimed that:

   a)“[a]bout 3 years ago” the Etelaat raided his home in search of weapons.  Because none were found, they took his satellite dish instead;

   b)it was noted during the raid that he had empty bottles of alcohol in his home, however, no charges were laid in that connection;

   c)there was no freedom of speech or choice in Iran.  He was constantly on guard for the Basij who could pick him or his wife up for being immorally dressed;

   d)the Iranian police were corrupt.  They once found a bottle of vodka in his car and he had to bribe them before they would release him;

   e)he feared that his life was in danger in Iran.  The authorities and their supporters had accused him of being against them and he feared that they would put him in prison and torture him; and

   f)there was nowhere safe in Iran.  The Basij, Etelaat and other fanatical supporters of the Iranian authorities were everywhere.

3. In submissions to the Tribunal dated 6 March 2013, the first applicant claimed that he feared persecution in Iran because of his non-fundamental interpretation of Islam and because of his perceived opposition to the Iranian regime.  He claimed that the latter arose from his non-adherence to the Iranian version of Islamic law and his attempt to secure protection in Australia.  The first applicant also claimed that:

   a)after his home was raided, he was asked to go to the justice office where he was told that a file had been opened on him and that an investigation would be completed later;

   b)alcohol consumption in Iran was illegal and punishable by death.  The Etelaat’s perception of his consumption of alcohol would lead to his being imputed with anti-Islamic views and therefore an anti-regime political opinion;

   c)his family was very relaxed about Islam.  He occasionally drank alcohol and did not fast during Ramadan every year; and

   d)those who sought asylum abroad would be treated as opponents of the regime and dealt with severely upon their return.

4. The first applicant appeared before the Tribunal on 14 March 2013 and relevantly claimed that he had left Iran at the end of 2011.  He claimed that about a year before his departure the Sepah had raided his home and taken his satellite dish.

5. Following the hearing, the Tribunal sent the first applicant a letter inviting him to comment on information which it considered would be the reason or a part of the reason for affirming the decision under review.  In his response of 3 April 2013, reproduced at pages 229-234 of the Court Book (“CB”) which was exhibit A in this proceeding, the first applicant relevantly claimed that he had had clashes with the Sepah through his occupation of making school uniforms. He claimed that the Sepah had accused him of “acting outside the contract” by, for example, selling things for a different price than stipulated. The first applicant claimed that the Sepah used the contract as an excuse to harass him because he had not been following the strict rules of Islam.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal found that the first applicant had given inconsistent evidence.  In his statement of 9 September 2012 he claimed that the Etelaat had raided his home “about 3 years ago” in search of weapons and that, although they found none, they took his satellite dish.  However, at the Tribunal hearing on 14 March 2013 the first applicant stated that his satellite dish had been taken about a year before he left Iran at the end of 2011.  In addition, at his entry interview the first applicant made no mention of any weapons; instead, he stated that the Etelaat came to his home because of his satellite dish.  Given these inconsistencies, the Tribunal did not accept that the first applicant’s home had been raided or that, as a result, a file had been opened on him.  

3. The Tribunal accepted that the first applicant and his family might be relaxed about Islam and occasionally drank alcohol and that the police might have found alcohol in his car in the past although, because it did not accept that the first applicant’s home had been raided, it did not accept that empty alcohol bottles had been found there by the Etelaat.   However, given that the first applicant had not previously behaved in a way that had incurred any real punishment from the authorities, the Tribunal did not accept that his perceived alcohol consumption would lead to him being imputed with an anti-Islamic view and therefore an anti-regime political opinion.  Consequently, the Tribunal found that there was no reason for the first applicant to change his behaviour in this regard and no reason to believe that any adverse consequence would ensue.

4. The Tribunal accepted that there might have been a dispute arising out of the contractual terms of the first applicant’s work but, given that the first applicant had failed to raise this as a claim in his protection visa application and had failed to explain at the hearing how it related to his refugee claims, the Tribunal was not satisfied that the first applicant had acquired some sort of political profile or was persecuted because of this event.

5. The Tribunal also accepted that the first applicant and his wife might not have shared the Iranian government’s views on following the strict rules of Islam, but did not accept on all the evidence that the first applicant had previously behaved in a way that had incurred any real punishment.  Consequently, there was no reason for him to change his behaviour when he returned to Iran and no reason to believe that any adverse consequences would ensue. 

6. The Tribunal also found that the first applicant had not been required to behave other than in accordance with the rules which applied to all people in Iran.  In the Tribunal’s view, if the first applicant were to obey the rules which applied universally in Iran, there was no real chance that he would face harm in the future.

7. It was also the Tribunal’s view that it was not reasonably foreseeable that the second applicant would be exposed to different kinds of persecution like physical punishment, harsh behaviour and emotional abuse or that she would be brainwashed “to believe in what is dictated by the government”.  Although the Tribunal accepted that the second applicant would be exposed to the ideology of the Iranian Government, it considered that that situation applied universally in Iran. 

8. The Tribunal did not accept that the applicants would be imputed with an anti-government political opinion on the basis that they had sought asylum in a western country and/or might return to Iran from the West, noting that:

   a)the various materials referred to by the first applicant in support of this claim did not, in the Tribunal’s view, contain information sufficient to draw an inference that alleged abuses suffered by returnees had been the result of them having claimed asylum overseas;

   b)according to advice provided by the Department of Foreign Affairs and Trade, it was unlikely that the Iranian authorities would prosecute an individual simply for claiming asylum overseas although it was possible that a known dissident would be prosecuted in that way.  The Tribunal noted in this connection that neither of the applicants had ever been involved in any political activities in the past nor had they been adversely imputed with any anti-government opinion while they were in Iran or at any other time after their departure; and

   c)while the Tribunal accepted that the applicants might be questioned on their return and might even be monitored, it did not accept that that treatment would amount to serious or significant harm.

Proceedings in this Court

1. In the amended application the applicants alleged:

   1.The Tribunal failed to comply with section 424A of the Migration Act 1958.

   Particulars

   i.The Tribunal sent the applicant a letter purportedly in compliance with section 424A. The text of the letter is reproduced at [53] of the Tribunal’s reasons.

   ii.The applicant responded to the Tribunal’s letter.

   iii.The Tribunal failed to consider the Applicant’s response.

   iv.Instead, the Tribunal mistakenly considered the response of a different applicant in different proceedings. The response that the Tribunal actually considered is extracted in its entirety at paragraph [54] of the Tribunal’s reasons. It plainly has nothing to do with the applicant’s claims.

   2.The Tribunal denied the applicant procedural fairness and natural justice.

   Particulars

   i.The applicant repeats the particulars to Ground 1.

   3.The Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims.

   Particulars

   i.The applicant repeats the particulars to Ground 1.

   ii.The response that the Tribunal mistakenly set out is four (4) pages in length. Even the most causal perusal of those four pages makes clear that they have nothing to do with the applicant’s claims.

   4.The Tribunal made a jurisdictional error in that it failed to consider one of the applicants’ claims.

   i.The applicant claimed that, by reason of his non-fundamental interpretation of Islam, and his perceived opposition to the Iranian regime, he had suffered and would continue to suffer repression and recriminations from the Iranian Government if returned. See CB 149, 153, 154.

   ii.The applicant further claimed that, by reason of recent negative changes to the Iranian economy, the level of repression that will be visited upon him should he be returned will be more pronounced in effect, and would be such as to prevent him from being able to subsist: CB 162 to 165

   iii.This claim was not considered by the Tribunal.

   5.The Tribunal made a jurisdictional error in that it did not consider the applicant’s claims in accordance with law.

   i.The applicant claimed that, by reason of his non-fundamental interpretation of Islam, and his perceived opposition to the Iranian regime, he had suffered and would continue to suffer repression and recriminations from the Iranian Government if returned. See CB 149, 153, 154.

   ii.Further, the applicant claimed that by reason of his consumption of alcohol, he faced serious harm in Iran, where the penalty for consuming alcohol is death: CB 244 [9].

   iii.The Tribunal accepted that Iranian police had caught the applicant with alcohol in his car: CB 244 [10].

   iv.In the case of both the persecution identified in particular (a) and (b), the Tribunal found that the applicant’s behaviour in the past had not led to persecution, and reasoned that if he continued to behave in the same way he would not be persecuted in the future: CB 244 [10], CB 245 [23].

   v.The Tribunal failed to consider whether, in the future, the applicant would behave in the way the Tribunal expected him to behave by reason of his fear of persecution. In this way, the Tribunal fell into jurisdictional error.

   vi.Further, in respect of the persecution identified in particular (b), the Tribunal failed to apply the real chance test correctly: at CB [9]-[10].

   6.     The Tribunal applied the wrong legal test.

   i.Rather than asking whether the applicant had a well founded fear of persecution, the Tribunal asked a different and legally incorrect question, which was whether the harm claimed by the applicant was reasonably foreseeable: at [10], [13].

Grounds 1, 2 and 3

1. It is correct, as alleged in the first ground of the amended application, that the Tribunal reproduced in para.54 of its decision record a written submission apparently from another file, instead of reproducing the s.424A response dated 3 April 2013 sent to it by the applicants’ representatives. The applicants alleged that this mistake demonstrated that the Tribunal had not considered their response of 3 April 2013.

2. In their written submissions the applicants also said that the Tribunal had failed to consider the arguments they had raised in the s.424A response and in the first applicant’s subsequent statement of 7 April 2013. They referred, by way of example, to what they said was an ignoring by the Tribunal of country information submitted by them concerning the punishment for the consumption of alcohol.

3. It is apparent from paras.5, 8, 10, 11 and 14 of its reasons that the Tribunal did consider the applicants’ s.424A response and it is also apparent from paras.12 and 13 of its reasons that the Tribunal considered the first applicant’s statement of 7 April 2013. As the Minister observed in his written submissions, the Tribunal included in its discussion of the material before it salient details from the applicants’ s.424A response and made no reference to the material erroneously reproduced at para.54 of the decision record.

4. As to whether the Tribunal failed to consider all of the issues raised by the applicants in the s.424A response and in the first applicant’s statement, the only matter the applicants referred to in support of the contention that it had concerned the first applicant’s consumption of alcohol when still in Iran. However, the Tribunal did consider that matter in paras.9 and 10 of its reasons, the latter clearly dealing with submissions made in the s.424A response.

5. The substance of the applicants’ submissions was really that the Tribunal had not dealt with the issue in a particular manner.  However, it is sufficient that the Tribunal’s reasoning discloses a proper, genuine and realistic consideration of the merits of the case and I am not persuaded in respect of the one particular matter relied on by the applicants that its reasons do not do so. 

6. I have not overlooked the applicants’ reference in addresses to Minister for Immigration & Border Protection v MZYTS (2013) 136 ALD 547 but each case must be determined according to its own facts and the facts of that case were significantly different from the facts in this one. In MZYTS the Tribunal’s failure, in the particular circumstances in issue there, to deal with a post-hearing submission and to disclose an appreciation of its contents bespoke a failure to consider that submission. In this case, it is plain that the s.424A response and the subsequent statement were considered and I have not been persuaded to conclude that the Tribunal took some parts of those documents into account and yet did not consider others.

7. I find that the first, second and third grounds of the amended application have not been made out.

Ground 4

1. In the fourth ground of the amended application the applicants alleged that the Tribunal had failed to consider whether, because of the supposed worsening economic conditions in Iran which had been referred to in their written submissions of 6 March 2013, the effect of the repressions the first applicant had suffered in the past would have more pronounced effects in the future because he would be suffering increased economic hardship.  This allegation was based on a false premise, namely, that the repressions the first applicant had allegedly suffered in the past were matters of significance. 

2. The only factual claims of this sort made by the applicants which the Tribunal accepted were the first applicant’s claims that:

   a)he and his wife may have been stopped by the police before their marriage; and

   b)he had had to bribe a police officer to release him when alcohol was found in his possession. 

   The burden of the Tribunal’s conclusion in relation to those matters was that they had not attracted sanctions of any particular significance.   As it said in its reasons:

   … the Tribunal does not accept that the applicant has previously behaved in a way that has incurred any real punishment from the authorities.  Therefore, there is no reason for him to change his behaviour and there is no reason to believe that any adverse consequences will ensure [sic].

   …

   However on all of the evidence, the Tribunal does not accept that the applicant has previously behaved in a way that has incurred any real punishment.  Therefore, there is no reason for him to change his behaviour when he returns to Iran and there is no reason to believe that any adverse consequences including any perceived opposition to the Iranian regime will ensure [sic].  (paras.10, 12)

1. The Tribunal did not accept that a political opinion opposed to the Iranian government had been imputed to the first applicant.  As that was the basis of his claim, once the Tribunal had concluded that it had not been made out, any consideration of Iran’s economic circumstances would have been otiose.  As a result, the omission from the Tribunal’s reasons of any reference to the information provided to it by the applicants’ representatives, and the associated allegation reproduced at CB 162 from a document entitled “Economic Environment in Iran”, is not, in my view, of significance. 

2. The document “Economic Environment in Iran” relevantly said:  

   Our client’s ability to subsist in Iran will be detrimentally affected by the broader economic climate.  Even a level of discrimination or ostracism (in accessing employment, healthcare or shelter) which previously may not have been of sufficient severity to threaten our client’s subsistence may, in the current economic climate, result in very severe consequences for our client’s well-being.

   I find that, rather than being overlooked or not considered, that material was not referred to in the Tribunal’s reasoning because, on the facts as found, it was of no relevance. 

3. Further, the disadvantage identified in the document entitled “Economic Environment in Iran” did not reflect any harm which the first applicant had claimed to fear.  Therefore, it was not relevant to the Tribunal’s consideration for an additional reason.

Ground 5

1. In the fifth ground of the amended application the applicants alleged that the Tribunal’s decision had unlawfully been based on an assumption that, if returned to Iran, the first applicant could and would avoid persecution by modifying his behaviour.  The applicants referred in this connection to the Tribunal’s statements in paras.10 and 12 of its reasons which have been quoted earlier in these reasons.  The applicants submitted that the Tribunal had been required to consider whether the first applicant’s behaviour in the past had been shaped to avoid persecution and so whether a repetition of such modes of behaviour in the future would represent a modification or moderation of his behaviour so as to avoid mistreatment. 

2. The applicants submitted that the first applicant had suggested in his statement of 7 April 2013 that he had modified his behaviour.  In this regard, they referred to the third paragraph on the second page of that document, reproduced at CB 237, where the first applicant said, amongst other things:

   It is impossible, I believe, for people to limit their lives to the private sphere in any society whatsoever… it is obvious that I could not imprison myself within my own house to evade the persecution inflicted upon me by laws which intervened even in my and my wife’s way of dressing.  As I was running my own business for instance, I had to do business with the Islamic Revolutionary Guards.

3. I do not agree that those statements, or indeed the remainder of that paragraph, convey such a meaning, at least not with the sort of clarity which meant that the Tribunal had to consider a claim that the first applicant had modified his behaviour before leaving Iran.  In the absence of compelling reasons to conclude otherwise, when an applicant is professionally represented, as was the case here, it must be assumed that the claims that the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed.  If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]; SZSHK v Minister for Immigration & Border Protection (2013) 138 ALD 26 at 35 [37].

4. I therefore find that the first applicant did not claim in any way which required consideration that while in Iran he had modified his behaviour to avoid persecution.  In those circumstances that was not a matter which the Tribunal had to consider, whether as to the past or as to the future. 

5. The applicants also alleged in the final particular of the fifth ground of the amended application that the Tribunal had misapplied the “real chance” test.  They submitted that the Tribunal:

   a)failed to consider their argument that the consumption of alcohol could attract the death penalty; and

   b)did not identify what information it had relied on to ground the following statement in para.10 of its reasons, or how it came to the conclusion expressed there:

   Whilst the adviser has stated that the applicant says that the authorities will interfere with people’s private lives, even arresting and publicly lashing people for drinking alcohol at home, the Tribunal does not accept on the basis of the country information that this is reasonably foreseeable. 

6. In relation to the first element of the allegation, the Tribunal did refer in para.9 of its reasons to the applicants’ submission concerning the possible penalty for consuming alcohol.  It went on in the next paragraph to state its conclusion that the authorities’ postulated interference in the first applicant’s private life was not reasonably foreseeable, which I take to mean something like highly unlikely to happen or farfetched.  The Tribunal’s decision therefore does record that it considered the applicants’ claims concerning the potential consequences of alcohol consumption in Iran. 

7. The second element of the allegation was a complaint that the Tribunal had not sufficiently exposed its reasoning process.  However, as noted already, this was not a situation like the one in MZYTS and I am not persuaded that the Tribunal considered some parts of the s.424A response and subsequent statement and ignored others. In those circumstances, any regrettable and unnecessary brevity in some aspects of the Tribunal’s reasons does not support a conclusion that its reasoning was in some way deficient.

Ground 6

1. The applicants alleged that the Tribunal’s use of the expression “reasonably foreseeable” indicated that it had abandoned the real chance test in place of a test of its own devising.  Lack of precision in expression of the Tribunal’s reasons is regrettable but at the relevant portions of its decision, and most particularly in para.17, the Tribunal did apply the correct test.  I am not persuaded that the Tribunal’s use of the words “reasonably foreseeable” in the body of its decision where the evidence was discussed discloses, in light of the remainder of the decision record, that it misunderstood the test it had to apply and applied an incorrect test. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 1 April 2015