SZTOY v Minister for Immigration
[2015] FCCA 2314
•31 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTOY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2314 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – whether to extend time for making application under s.477(2) of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.5, 91R, 430, 477 |
| Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225; [1997] HCA 4 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467; [2015] HCA 22 Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362; [2010] FCAFC 108 Minister for Immigration and Ethnic Affairs v Respondent A & Ors (1995) 57 FCR 309 Monis v R (2013) 249 CLR 92; [2013] HCA 4 NAFT v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCAFC 254 SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284 SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183 Weheliye v Minister for Immigration and Multicultural Affairs [2001] FCA 1222 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| First Applicant: | SZTOY |
| Second Applicant: | SZTOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2962 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Solicitors for the Applicant: | New South Lawyers |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application for an extension of the time within which to make the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2962 of 2013
| SZTOY |
First Applicant
| SZTOZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants, a father and his son (who is a minor), are citizens of Iran who arrived in Australia in June 2012 and lodged an application for protection visas in December 2012. The application was refused by the delegate. The Applicants sought review by the Tribunal.
The Tribunal made its decision on 28 June 2013. Under s.477(1) of the Migration Act 1958 (Cth) (the “Migration Act”) an application for judicial review of such a Tribunal decision must be made within 35 days of the date of the decision. The Applicants did not seek review of the Tribunal decision until 28 November 2013, five months after the date of the Tribunal decision. Hence, they require an extension of time within which to bring the application. Pursuant to s.477(2) of the Act the Court has power to extend the 35 day time limit provided an application for an extension of time is made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make an order extending time, and the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
In this case, the Applicants made an application for an extension of time in writing in the original application. The Applicants, who were not legally represented at that time, stated in the Application form that they considered it necessary in the interests of the administration of justice to extend time given that “he” (presumably a reference to the First Applicant) had “sound reasons” for the delay, “including”, among other things, his inability to locate pro bono legal assistance; that there would be little or no prejudice suffered by the First Respondent if the time was extended, whereas the impact on him if the time was not extended would be substantial; and that the proposed substantive application had strong merits such that it was in the public interest and the interests of justice to extend the time. While the First Applicant swore a supporting affidavit attaching a copy of the Tribunal decision, he did not address the reasons for delay.
The First Respondent addressed the extension of time issue in the response filed on 17 December 2013. In opposition to the application for an extension of time it was acknowledged that the delay was moderate, but pointed out that there was no affidavit evidence to support the bare assertion in the application which, it was contended, also failed to account for the entirety of the delay. It was also asserted that the substantive application (which at that time contained one ground) lacked prospects of success.
On 14 March 2014 solicitors for the Applicants filed a notice of address for service. The Applicants have been represented in these proceedings since that time. Prior to the first return date the lawyers for the parties sought consent orders, including orders for the filing of affidavits and an amended application by 14 May 2014, and an order that “The application is listed for a hearing of the application to extend time, and if an extension of time is granted a final hearing” (at a time and date specified). I made such orders in chambers, including listing the matter for the hearing of the application for an extension of time and, if the extension of time was granted, a final hearing, on 25 November 2014.
The Applicants did not file any affidavits or an amended application within the time provided in the consent orders. An affidavit annexing a transcript of the Tribunal hearing was filed on 2 October 2014.
According to the solicitor for the First Respondent, at the time written submissions filed on 18 November 2014 were prepared no submissions had been received from the Applicants. The First Respondent’s submissions addressed the substance of the ground in the original application.
Subsequently, on 19 November 2014 (outside the time provided for in the Court’s directions), the Applicants’ legal representatives filed and served written submissions attaching a proposed amended application containing two new grounds. The proposed amended application repeated the “grounds” for an extension of time contained in the original Application. The Applicants did not seek leave to file any further affidavit evidence. Their written submissions addressed the substance of the proposed new grounds, but did not address the application for an extension of time.
The First Respondent filed supplementary written submissions on 24 November 2014 formally opposing the grant of leave to amend the application on the basis that neither of the proposed amended grounds enjoyed sufficient prospects of success. It was submitted that if leave to rely on the proposed amended application was granted, the application to extend time should be refused. These submissions addressed both the substance of the proposed new grounds and the delay in commencing these proceedings, including the absence of any evidence explaining the reasons for delay.
At the hearing the Applicants were given leave to rely on the Amended Application on the basis that the First Applicant meet the costs of the First Respondent thrown away by reason of the late filing of the amended application. Counsel for the Applicants addressed the substance of the grounds relied on in some detail, but when I raised with him the fact that he had not addressed the application for an extension of time, he indicated that he had assumed that an extension of time had been granted.
Counsel for the Applicants then addressed the application for an extension of time on the basis of the material before the Court. There was no application to file further evidence. In addition to reliance on the submissions in relation to the merits of the grounds in the Amended Application, it was asserted that an explanation for the delay had been provided and that there would be no prejudice to the Minister if the time was to be extended. The Applicant submitted that as the Tribunal was applying Australian law in relation to Australia’s obligations under international treaties, the public interest would weigh in favour of granting the extension of time. The First Respondent opposed the grant of an extension of time on the basis that neither of the grounds had sufficient prospects of success and the delay in commencing proceedings was not adequately explained
The Applicants have specified in writing (in the Application and Amended Application) why they consider it necessary in the interests of the administration of justice to extend the time under s.477(2) of the Migration Act. Hence it is necessary to consider whether in all the circumstances I am satisfied that is in the interests of the administration of justice to extend the time for making the application under s.477(2) of the Migration Act. This discretion must be exercised judicially. I have borne in mind the remarks of Foster J in SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284 at [46]-[52] in relation to the factors which might ordinarily be taken into account in this context, bearing in mind that no criteria are specified in s.477. His Honour stated that the matters which may be taken into account are “at large although they must logically and sensibly relate to the interests of the administrative of justice” (at [46]). I have considered all the circumstances. Of particular relevance in this case are the delay in instituting these proceedings, whether there has been a reasonable and adequate explanation for such delay and whether the substantive case for judicial review is “sufficiently arguable” (SZRIQ at [47]).
Delay
The application to this court should have been filed by 2 August 2013. It was filed on 28 November 2013. The delay is moderate. The Application and Amended Application assert that the First Applicant had “sound reasons” for the delay, “including” his inability to locate pro bono assistance. The asserted “sound reasons” are not otherwise identified. There is no suggestion that the Applicants were unaware of the time limit. Nor is there any explanation of what steps, if any, the Applicants took to obtain legal representation. There is no evidence explaining the reasons for the delay.
The mere fact of a lack of legal representation is not, of itself, a satisfactory explanation for a delay of this length, at least in circumstances where there is no evidence as to what steps, if any, the Applicants took after receiving notice of the Tribunal decision. Moreover, taking the bare assertion in the Application at its highest, it fails to account adequately for the entirety of the delay, including for the reason that the initiating application to this Court was evidently filed without legal representation. The Applicants have not provided a satisfactory explanation for the delay. This weighs against the grant of an extension of time.
The Merits
The determination of the merits of a substantive application is part of the process of considering and weighing up factors relevant to the interests of the administration of justice. In principle it is not necessary to come to any concluded view about these matters. However, as explained above, the grounds have been argued in full. This renders somewhat artificial any assessment of prospects of success at a substantive hearing. However that does not in the circumstances of this case lead to the conclusion that the grounds relied on have sufficient merit to support the grant of an extension of time. For the reasons that follow I am satisfied that neither ground is “sufficiently arguable” to justify, in all the circumstances, an extension of time.
The Applicants arrived in Australia by boat at a time when they did not hold visas. The Minister lifted the bar on making an application for protection visas. The Applicants subsequently applied for protection visas. Only the First Applicant made claims under the Refugee Convention and complementary protection criteria (for convenience he is referred to hereafter as the Applicant).
In his irregular maritime arrival entry interview of 8 August 2012, the Applicant claimed that he had transported alcohol in Tehran for an Iranian Christian named Robert. He referred to his work as “smuggling alcohol beverages”. He claimed that on one of his deliveries he was followed by the authorities, but that he managed to hide. He claimed that after his wife told him that people (who he believed were the Sepah) had come to the house looking for him, he decided to leave the country with his son.
The Applicant claimed he knew that the people following him were police because about one month earlier the police had threatened him about his connection with Armenian Christians. He claimed that he was being followed because the authorities knew he was connected to Armenians and that they were probably watching him because he was selling alcohol.
He claimed that if he returned to Iran he faced either life imprisonment or being killed because there were 25 gallons of drinking alcohol in the vehicle he had abandoned when followed and the Iranian government did not agree with the consumption of alcohol.
The Applicant provided a written statement in connection with his protection visa application. He reiterated his claims to have been involved in smuggling alcohol for an Iranian Christian named Robert whom he had met while he was driving taxis. He explained that most of the people he delivered the alcohol to were Christians who lived in a particular area in Tehran. He claimed he had been accused of being sympathetic to the Armenian Christians because he spent a lot of time in their area. He repeated a claim made in his original application that some three years earlier he had been beaten up by the Sepah. In addition, the Applicant claimed that he faced a real chance of being killed because he had become a Christian.
According to the delegate, the Applicant elaborated on his claims, including his claims to have become a Christian in Iran, at the Departmental interview.
The delegate refused the application, finding that the Applicant was not a witness of truth and that he had never been involved in the distribution of alcohol or with the Christian religion.
The Applicant and his son sought review by the Tribunal. Their adviser provided a written submission in which it was claimed that the Applicant faced harm for reasons of his religion and imputed political opinion and also that he faced significant harm within the complementary protection criterion. These claims were put on the basis of the Applicant’s conversion to Christianity.
The Applicant attended a Tribunal hearing, a transcript of which is in evidence as an annexure to the affidavit of Frances Lillian Milne affirmed on 1 September 2014.
In its reasons for decision the Tribunal summarised the evidence of the Applicant at the hearing. It outlined country information in relation to various aspects of the Applicant’s claims.
In its findings and reasons the Tribunal concluded that the Applicant was an untruthful witness who had fabricated claims and embarked on conduct for the purpose of securing permanent residence in Australia. The Tribunal stated that amongst the reasons for this conclusion was that the Applicant’s evidence in his entry interview was inconsistent with his evidence to the delegate and to the Tribunal and the fact that he had added claims in subsequent iterations of his application. The Tribunal considered these later claims were inventions and fabrications aimed at strengthening his protection claim. The Tribunal gave as an example the fact that the Applicant had claimed to it that he had told his wife about his conversion to Christianity before leaving Iran, whereas he had indicated to the delegate that he had not told his wife, or anyone else, about his conversion. In addition, the Applicant had claimed to the Tribunal that when he abandoned the car in which he was transporting alcohol, he had left a Bible in the car, whereas there appeared to be no reference to such a claim before the delegate and whilst during the Tribunal hearing the Applicant had referred to a named person who was said to have been in his car at the time he abandoned it, this claim had not been referred to before the delegate.
The Tribunal also found that the Applicant had been evasive in answer to the question of what it would mean to him if he was unable to practice Christianity. It concluded that these matters (and other matters it discussed in relation to the Applicant’s claimed conversion to Christianity), led it to find that the Applicant was a “most unreliable witness.”
However, while the Tribunal considered that the Applicant was an unreliable witness generally, it accepted that he had been involved in the unlawful transportation of alcohol on behalf of Armenian clients for reward. It observed that this claim was made on the basis that the authorities had observed the Applicant when doing an alcohol delivery for Armenians and that this was unlawful in Iran. The Tribunal acknowledged that the Applicant had consistently claimed that he was discovered by the relevant authorities in the act of transporting alcohol and that he would be seriously harmed for the offence of transporting alcohol on return. It found that aspects of the Applicant’s claim, such as the claim about the presence of another person who may have given away his identity, raised serious doubts about whether he was ever discovered by the authorities to be transporting alcohol. The Tribunal was of the view that this “person” was an invention introduced into the Applicant’s claims to explain how the police were informed of his identity and involvement in the transport of alcohol. The Tribunal also found, for reasons which it gave, that the Applicant’s claim to have left a Bible in the car was a concoction for the purposes of strengthening his claim for protection.
The Tribunal addressed the Applicant’s claimed fear of harm for transporting alcohol as follows at [103]-[105]:
103. Giving the applicant the benefit of the doubt and proceeding on the basis that he is now wanted by the authorities for transporting alcohol, the Tribunal accepts the applicant may be prosecuted, notwithstanding that the transportation was for Armenians. The Tribunal makes this finding on the basis that the country information does not suggest any distinction between Armenians and non-Armenians in the application of the Penal Code for the offence of alcohol transportation. Having regard to the country information, the Tribunal accepts that the applicant may face prosecution for transporting alcoholic drinks under s.175 of the Iranian Penal Code and that if convicted he faces between six months’ to two years’ imprisonment. On the evidence before the Tribunal, it finds the applicant did not persuade or allure anyone to consume alcohol and therefore he would not face that punishment of 74 lashes which is provided for that offence.
104. The Tribunal notes country information indicates that Armenians enjoy some degree of differentiation in Iran and reports indicate that Armenians in Iran are recognised as Christians by Iranian law and the authorities, and as such are permitted to consume and produce alcohol for their own minority group. However, as stated previously, no information was located that claimed Armenians who are involved in the production or trafficking of alcohol to Muslims would be treated any differently to non-Armenian alcohol traffickers. On this basis, the Tribunal is satisfied that the law which prohibits the transport of alcohol, namely s.175 of the Penal Code, is not applied in a discriminatory manner. On the evidence before it, the Tribunal therefore finds that the law under which the applicant may be prosecuted for reasons of being caught transporting alcohol would not amount to persecution.
105. The Tribunal considered whether the relevant Iranian law is a law of general application. It concludes that there is no evidence before it to suggest that it is applied in a discriminatory manner. On this basis, and on all the evidence before it, while the applicant may face a prison term if convicted of the offence of alcohol transportation, the Tribunal does not accept that he would be seriously harmed in such a way as to amount to Refugee Convention persecution.
The Tribunal was not satisfied that the fact that the Applicant might be regarded as sympathetic to Armenians, of itself or coupled with all of his circumstances, would give rise to a real chance of serious harm on return to Iran. The Tribunal considered whether the Applicant might be motivated to resume the unlawful transport of alcohol in Iran, but indicated that while that was a decision for him, if he did so he would face lawful sanctions which the Tribunal did not accept amounted to Convention-related persecution.
The Tribunal was prepared to accept that the Applicant had been beaten up by the Sepah because he was in the Armenian area in Tehran. However it did not accept on the evidence before it that this was anything other than an isolated incident. It had regard to the Applicant’s concession that he had not been otherwise harmed in Iran. The Tribunal found no Convention nexus to the beating and was not satisfied there was a real chance such harm would occur again in the reasonably foreseeable future.
The Tribunal then considered the Applicant’s claimed fear of harm due to his conversion to Christianity. The Tribunal acknowledged that country information indicated that genuine converts to Christianity faced a real chance of serious harm and persecution in Iran. However it did not accept that the Applicant had abandoned Islam, that he would be imputed to have done so or that he was a genuine convert to Christianity or would be so imputed.
The Tribunal was not satisfied that the Applicant was a genuine convert to Christianity. It found that he had advanced this claim for the purpose of securing a permanent visa to remain in Australia. It had regard to the fact that he made no mention of conversion to Christianity in his first interview. It considered the Applicant’s explanation for this omission, but also had regard to his inconsistent and contradictory evidence in this and other respects. It found that the omission of a substantive and core claim raised grave doubts as to the veracity of the claim. The Tribunal also had regard to inconsistencies in the Applicant’s evidence about whether the police had seen him going to church in Tehran and as to whether he told his wife about his conversion to Christianity.
Having regard to inconsistencies in his evidence and his unreliability as a witness the Tribunal rejected the Applicant’s claim that he had attended church in Iran or that he had been doing so for 14 to 15 months before coming to Australia.
The Tribunal also found that the Applicant’s knowledge of basic Christian facts appeared to be superficial and shallow and not what would be expected from someone who had attended church 14 to 15 times in Iran plus a further six months in Australia. The Tribunal found that the Applicant’s level of knowledge did not appear to correspond to that of a person who claimed to have carried (and presumably read) a Bible in his work car. The Tribunal was satisfied that the Applicant had “little knowledge and little genuine interest in Christianity”, apart from an interest in how it might secure a permanent visa.
While the Tribunal gave “significant weight” to what it saw as the “frank” evidence from a pastor that the Applicant had been attending church in Australia for approximately six months, that he was keen to assist in helping around the church and had begun a Christian journey, having regard to its assessment of the Applicant’s unreliable evidence and lack of credibility, the Tribunal was not satisfied that the Applicant’s conduct in attending church in Australia was otherwise than for the purpose of providing evidence to bolster his claims for a protection visa. It disregarded such conduct pursuant to s.91R(3) of the Migration Act for the purposes of assessing the Refugees Convention claim.
The Tribunal considered the Applicant’s claim that people in Iran would know of his conversion through the internet. In addition to not finding the conversion genuine, the Tribunal rejected the proposition that anyone would communicate or otherwise publish the false conversion to anyone in Iran who might be motivated to cause harm to the Applicant.
Having disregarded the Applicant’s conduct in attending church in Australia and having rejected his claims of church attendance in Tehran, the Tribunal found that there was no credible evidence to support his claim that he was a genuine Christian convert. Based on his evasive reply in answer to the question of what it would mean to him not to be able to practise Christianity, the Tribunal rejected the proposition that the Applicant would practise as a Christian worshipper if he returned to Tehran. As it found that the Applicant was not a genuine Christian convert, the Tribunal was satisfied he would not be perceived or regarded as one if he returned to Iran. It found that he was not at risk of being persecuted for reasons of Christian religious beliefs and that his fear of harm in that respect was not well-founded.
In addition, the Tribunal was not satisfied that the Applicants faced a real chance of serious harm as failed asylum seekers or returnees to Iran. It had regard to country information. It accepted that some sources indicated that the risk of mistreatment was proportionate to an individual’s political profile in Iran and/or engagement in political activity abroad, but noted that the Applicant had advised that he had not been politically active in Iran, that there was no evidence he had been critical of the Iranian government while abroad and that he was not a known dissident. The Tribunal placed weight on information from the Department of Foreign Affairs and Trade indicating that it was unlikely that the Iranian authorities would prosecute an individual simply for claiming asylum overseas. While the Tribunal noted that 2007 country information suggested the Applicant may be monitored by the authorities on return, it was not satisfied that mere monitoring amounted to serious harm. The Tribunal also had regard to the absence of evidence that returning Iranians in general faced a real risk of persecution or ill-treatment.
The Tribunal was not satisfied that the Applicants had a well-founded fear of persecution for a Convention reason considering their claims individually and cumulatively.
In relation to complementary protection the Tribunal found:
130. As the Tribunal finds the applicant does not satisfy the requirements in s.36(2)(a) of the Act relating to eligibility for Refugee Convention protection, it must consider whether the applicant satisfied the complementary protection criterion pursuant to s.36(2)(aa) of the Act. The Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran as the receiving country, there is a real risk that the applicant will suffer significant harm. As stated previously, the term ‘significant harm’ is defined in s.36(2A); 5(1) to mean the person will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or the person will be subjected to torture; or cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
131. The Tribunal notes from the country information cited above that in June 2012, Amnesty International reported the Supreme Court of Iran had upheld the death sentence handed down on two men convicted for the third time of consuming alcohol. However, Human Rights Watch has reported that over the last 10 years it has not been able to find any record of a case in which authorities carried out an execution order on a person convicted of consuming alcohol, although it is widely reported that those convicted of consuming alcohol do receive lashes. In any event, there is no evidence that the applicant consumes alcohol; his claim is that he merely transports it, an offence which does not attract the death penalty in Iran.
132. Having regard to all the evidence, the applicant has not argued that he is a repeat offender in terms of transporting alcohol, and nor has he suggested that he consumes it. Having regard to the country information indicating that the death sentence is not, or extremely rarely, being carried out for those who consume alcohol, and no reporting that it is a punishment permissible in law for the transport of alcohol, the Tribunal is satisfied there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran as the receiving country, there is a real risk that the death penalty will be carried out on the applicant.
133. Based on the country information cited above, and in light of the Tribunal’s assessment of the applicant’s circumstances discussed in this decision record, the Tribunal is satisfied that there are not substantial grounds for believing that as necessary and foreseeable consequence of the applicant being removed from Australia to Iran as the receiving country, there is a real risk that the applicant will suffer torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment, as those terms are defined in 5(1) of the Act. The Tribunal therefore finds the applicant does not satisfy the complementary protection criterion in s.36(2)(aa) of the Act.
134. In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.
The Tribunal was not satisfied that either of the Applicants was a person in respect of whom Australia had protection obligations and found therefore that they were each unable to satisfy the family unit criteria. It affirmed the decision not to grant them protection visas.
There are two grounds in the Amended Application. As indicated, Counsel for the Applicant addressed the grounds in detail. No issue was taken in relation to the Tribunal’s consideration of the Applicant’s claimed conversion to Christianity. Rather, both grounds relate to its consideration of the claim that the Applicant had been involved in transporting alcohol and had come to the attention of the authorities. The First Respondent submitted that there would have to be sufficient strength in the grounds relied on to overcome the lack of explanation for the delay in commencing proceedings and that having regard to the grounds and the arguments in support they were not sufficient to warrant an extension of time. In written submissions it was submitted that both grounds must fail.
The first ground is as follows:
The RRT has applied the wrong test pursuant to Section 91R(2)(a) of the Migration Act 1958 (Cth).
Particulars
By failing to assess the Applicant’s claims in accordance with whether the laws relating to alcohol in Iran are, “appropriate and adapted to achieving some legitimate object of the country concerned,” the Tribunal has applied the wrong test and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA (sic) 947 at [48] and [51].
The Applicant submitted, in essence, that the Tribunal had applied the wrong test in ascertaining whether or not the law in Iran relating to the transportation of alcohol was a law of general application and therefore whether or not the relevant statutory test under s.91R of the Migration Act had been made out in the context of considering whether he met the Refugees Convention criterion.
It was said to be clear that the law of Iran strictly prohibited the transport of alcohol and contended that the adviser’s written submissions to the Tribunal had raised issues in relation to the possibility of arbitrary arrest and detention, which in turn raised issues about the death penalty, conditions in detention centres and prisons and the use of torture as well as Iran’s domestic laws which were said to be incompatible with the International Covenant on Civil and Political Rights. This submission was said to be relevant to the Applicant’s claims in relation to the transport of alcohol and the possible consequences, notwithstanding that the submission addressed only the Applicant’s claims about conversion to Christianity and did not address his claim to fear harm because he transported alcohol. It was also submitted that the Tribunal’s questioning of the Applicant at the hearing indicated an erroneous understanding of the applicable test.
It was submitted that in its reasons for decision the Tribunal had applied the wrong test and had failed to advert to the correct test in assessing whether the relevant law of Iran was a law of general application. Issue was taken with the findings of the Tribunal at [103] – [105] set out at [30] above on the basis that these findings amounted to statements of conclusion absent reasoning and that this was indicative that the incorrect test had been applied.
In written submissions the Applicant referred to the inclusion in s.91R(2)(a) of the Act of serious harm constituting a threat to a person’s life or liberty and to the conclusion of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [30] and [45] that such serious harm was constituted by a threat to life or liberty “without reference to the severity of the consequences to life or liberty” (at [30]).
It was submitted that the Tribunal had “sidestepped” the issue of whether the detention of the Applicant when remanded into custody would amount to a threat to his liberty by misdirecting itself as to the proper test as to whether the law in Iran was a law of general application.
At the time of the hearing WZAPN was the subject of an application for special leave to appeal to the High Court (see Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467; [2015] HCA 22). However in oral submissions Counsel for the Applicant clarified that reliance was placed only on the obiter remarks of North J in WZAPN at [48] - [51] in relation to the correct test at law in assessing whether a law was a law of general application.
In WZAPN North J stated (at [48]) that:
Earlier judgments of the High Court have held that conduct undertaken pursuant to a law of general application does not amount to persecution if the law is, “appropriate and adapted to achieving some legitimate object of the country concerned”: see Applicant Sat [43], adopting the test articulated by McHugh J in Applicant A (1997) 190 CLR 225; 1997 HCA 4, at 258. At [45], the High Court further explained the concept by reference to the comments of the plurality in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; 2000 [HCA] 19 (Chen), at [29] that:
[w]hether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
It was pointed out that in WZAPN at [49], North J had referred to the fact that in recent times some members of the High Court had criticised the test of whether a law was “reasonably appropriate and adapted to serve a legitimate end” in the context of assessing whether such a law infringed the constitutional freedom of political expression. In Monis v R (2013) 249 CLR 92; [2013] HCA 4 at [283] and [344]-[345], Crennan, Kiefel and Bell JJ had preferred the test of proportionality, suggesting (at [345]) that asking whether a law was reasonably appropriate and adapted to serve a legitimate end was:
… cumbersome and lacks clarity of meaning and application as a test… The phrase provides no guidance as to its intended application and tends to obscure the process undertaken by the court [and]… may encourage statements of conclusion absent reasoning.
North J went on in WZAPN at [51] to state:
When assessing a law of general application, the essence of the international human rights approach and of the appropriate and adapted test is similar. Both ask whether the detention was lawful, in the sense of being pursuant to a domestic law, but also by reference to the object of that law and whether the detention was proportionate to that object. The human rights approach asks whether the detention, whilst perhaps lawful, was arbitrary, whilst the question of whether the law was applied arbitrarily is implicit in the appropriate and adapted test. If applied arbitrarily, the law may not be appropriate and adapted in the sense of proportionate in the means used to achieve its object: Applicant S, at [48]. Finally, the human rights approach asks whether the detainee was treated with humanity and inherent dignity for the person, whereas conduct pursuant to a law of general application will not be considered appropriate and adapted if it offends the standards of civil societies which seek to meet the calls of common humanity: Chen, at [29].
There was said to have been no attempt by the Tribunal in this case to apply the test enunciated by the High Court in Chen at [29] and applied in subsequent cases. It was submitted that the Tribunal’s approach was an illustration of what Crennan, Kiefel and Bell JJ had described in Monis v R as a statement of “conclusion absent reasoning”.
An inference was said to arise that there had been a failure on the part of the Tribunal to apply the proper test as to what was a law of general application given its findings. In the alternative, it was submitted that the application of the test had miscarried because ultimately there was merely a statement of conclusion absent reasoning.
In particular the Applicant contended that the Tribunal had misdirected itself as to the proper test as to whether the law in Iran with respect to transporting alcohol was a law of general application. There was said to have been no attempt by the Tribunal to determine whether the law was appropriate and adapted to achieving a legitimate objective, despite what was said to have been its finding that the law in relation to alcohol use was applied in a discriminatory manner between ethnic groups in Iran (in that Christians were allowed to produce alcohol for their own use and consume it). There was also said to have been no assessment of whether the treatment of those in breach of this law offended the standards of civil societies which sought to meet the calls of common humanity.
In clarification, the Applicant explained that it was submitted that the Tribunal had erred in that there had been no assessment as to whether or not the different treatment of individuals or groups was appropriate and that it had failed to assess whether the penalties referred to in the adviser’s submissions (relating to prison conditions, arbitrary arrest and detention, the circumstances of torture, and the application of the death penalty) offended the standards of civil societies which sought to meet the calls of common humanity.
In considering the merits of this ground it is critical to appreciate that, as is apparent from the way in which the Applicant’s claims were made, the relevant basis for his claimed fear of harm (leaving aside the Christianity claim which was rejected) was his claim that he would be harmed because he was transporting alcohol. This was also the extent to which the Tribunal accepted the Applicant’s claims. The Tribunal gave the Applicant the benefit of the doubt and proceeded on the basis that he was wanted by the Iranian authorities for transporting alcohol. The Applicant claimed to fear life imprisonment or that he would be killed. The Tribunal accepted that he may be prosecuted and that if convicted may face six months to two years of imprisonment, notwithstanding that the transportation of alcohol was for Armenian Christians. However, contrary to any suggestion of a wider potential harm, the Tribunal did not find that the Applicant might also be prosecuted in connection with the manufacture and/or consumption of alcohol. Hence any evidence about the differential treatment of producers or users of alcohol was irrelevant. Further, on the evidence before it, the Tribunal found that the Applicant did not persuade or “allure” anyone to consume alcohol and that he would not face a punishment of 74 lashes provided for such an offence.
It is clear that the Tribunal understood the extent and nature of the Applicant’s claims. It specifically found that it was satisfied that the law which prohibited the transport of alcohol (the extant issue) was not applied in a discriminatory manner. On this basis, on the evidence before it, the Tribunal found prosecution of the Applicant under this law for reasons of being caught transporting alcohol would not amount to persecution for the purposes of the Refugees Convention criterion. It did not make any findings that any sanctions (including possible imprisonment) did not amount to serious harm (cf. WZAPN). The findings of the Tribunal with which this ground takes issue rested solely on the conclusion that the relevant law was a law of general application which was not applied in a discriminatory manner and hence that its application was not persecutory.
As the First Respondent submitted, the Tribunal’s findings in this respect were made in accordance with settled authority. Critically, because the Tribunal did not accept that the law in question would be discriminatorily applied, it did not need to ask whether it was appropriate and adapted to a legitimate objective. Rather, the relevant questions that the Tribunal was required to, and did, address were those explained and identified by Goldberg J in Weheliye v Minister for Immigration and Multicultural Affairs [2001] FCA 1222 at [51] as follows:
There are two aspects to a consideration of whether punishment under a law of general application may constitute persecution for a Convention reason because it is discriminatory. The first aspect is to determine whether the law is in fact of general application and is not a law which targets or applies only to a particular section or group of the population. The second aspect is to determine whether, if the law is of general application to the whole of the population, it is nevertheless applied and administered in a discriminatory manner.
As the First Respondent submitted, the enforcement of a law of general application would not, without more, constitute persecution within the Refugees Convention, because it would not involve discriminatory treatment for a Convention reason (see Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 at 233 per Brennan CJ, 258 - 259 per McHugh J, and Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301 - 303).
The question of whether the enforcement of a law of general application was appropriate and adapted to achieving some legitimate object of the country in question would only arise where the relevant law was discriminatory or had a discriminatory impact for a Convention reason. In such circumstances the question would then be whether the treatment of persons of a particular race, religion, nationality, political opinion or social group under the relevant law was nevertheless incidental and proportionate to a legitimate object. However, where the relevant law was not discriminatory and did not have a discriminatory impact, the question of whether the law was a proportionate means of achieving a “legitimate object” would not arise. There would be no persecution for a Convention reason involved in the enforcement of a law of general application that did not target a particular section of the population, did not impact differentially on a particular class of persons, and that was not selectively enforced even if the punishment under the law was “harsh and totally repugnant to the fundamental values of our society and the international community” (Applicant A per Dawson J at 245 quoting, with approval, a passage from the judgment of Beaumont, Hill and Heerey JJ in Minister for Immigration and Ethnic Affairs v Respondent A & Ors (1995) 57 FCR 309). The Applicant’s reference to information about the law in relation to the consumption of alcohol in Iran being applied in a discriminatory manner is not in point. There was no claim that the Applicant consumed alcohol. The Tribunal decision proceeded on this basis.
Properly understood, the Tribunal decision does not raise issues of the nature considered in WZAPN (see SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183 at [22] per Robertson J). Insofar as reliance was placed on the remarks of Crennan, Kiefel and Bell JJ in Monis v R referred to in WZAPN at [49], the Tribunal’s reasoning at [103]-[105] was clear. It was based on findings of fact and analysis of the law with a proper understanding of the approach to be taken to laws of general application.
This ground is without merit. There are no reasonable prospects of success in relation to this ground.
Section 430(1) Issue
Ground 2 in the Amended Application is that the Tribunal “has failed to apply Section 430(1) of the Migration Act to the Applicant’s claims”. The particulars to this ground are as follows:
The RRT has breached Section 430(1) of the Migration Act 1958 (Cth) by failing to provide reasons as to why there was not a real risk the Applicant will suffer torture, cruel or inhuman treatment or punishment or degrading treatment at [133] of the decision.
The Applicant submitted that in its findings and reasons in relation to complementary protection, the Tribunal had merely set out the applicable test and addressed the issue of whether the death penalty would be applied to the Applicant for his accepted breach of the Iranian Criminal Code. It was submitted that the Tribunal had erred in failing to address other potential consequences within the definition of substantial harm (torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Migration Act).
It was submitted that the Tribunal did no more than reach a conclusion in circumstances where there were no discernible reasons provided for the assertions said to be contained in [133] of the Tribunal decision. It was submitted that while the brevity of the Tribunal’s reasons was not in itself a jurisdictional error, as Rares J pointed out in Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362; [2010] FCAFC 108 at [91]:
…its brevity may indicate that the tribunal did not, in fact, perform its function of review according to law. This is because the significance of what the written statement omits from that which section 430(1) mandates, indicates, for example, that it did not have evidence or other material on which its findings of fact were based.
It was pointed out that, as Rares J stated at [92] in SZLSP:
[T]he purpose of s 430 … is to expose to scrutiny what the tribunal in fact did in the four respects (specified in s 430(1)) and by doing so to enable the process of judicial review to be undertaken so as to ascertain whether the decision-maker acted in the performance of his or her statutory power or function according to law. Even so, the reasons or written statement “...should not be construed minutely and finely with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Nonetheless, the court should not approach the function of judicial review by presuming that the tribunal had a basis in evidence or other material for its principal factual finding (that it did not accept that the husband was a Falun Gong practitioner) that it did not identify in its written statement. It may be that the conclusory assertions in the tribunal’s written statement are justifiable. But it did not justify them and it referred to no basis within the meaning of s 430(1)(d) for its findings.
In submissions Counsel for the Applicant relied on what was stated by Rares J in SZLSP in support of the proposition that where the Tribunal failed to comply with s.430(1) of the Migration Act and it was not possible to be satisfied that its statement of reasons had a proper basis, the court could infer that it had no evidence or other material on which it based its findings of fact and hence constructively failed to exercise its function of review (see SZLSP at [94]-[95] and [98]).
However, this ground asserts jurisdictional error constituted by a “breach” of s.430(1) of the Act. As pointed out by the First Respondent, a breach of s.430 is not in itself jurisdictional error (see for example, NAFT v Minister for Immigration and Multicultural Indigenous Affairs [2003] FCAFC 254 at [7], per Bennett J, Spender and Hely JJ concurring; SZLSP at [54]). As expressed this ground must fail.
In any event, this ground lacks merit at a factual level. Paragraph [133] of the Tribunal reasons for decision is not an unsupported statement of conclusion such as to warrant an inference of no evidence of the nature discussed by Rares J in SZLSP. Rather, this part of the reasons followed the Tribunal’s consideration of the Refugees Convention criterion and of the Applicant’s claim to fear he would be killed. The Tribunal considered country information about the punishment of those transporting alcohol in Iran and concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iran there was a real risk that the death penalty would be carried out on him.
The Tribunal continued at [133]:
Based on the country information cited above, and in light of the tribunal’s assessment of the applicant’s circumstances discussed in this decision record, the tribunal is satisfied that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran as the receiving country, there is a real risk that the applicant will suffer torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment, as those terms are defined in section 5(1) of the Act. The tribunal therefore finds the applicant does not satisfy the complementary protection criteria in section 36(2)(aa) of the Act (emphasis added).
It is apparent that this part of the Tribunal’s findings was informed by and based upon its earlier pertinent findings of fact made in the context of addressing the Refugees Convention criterion and its consideration of independent country information about the situation in Iran.
Apart from the death penalty, the other harm the Applicant claimed to fear for transporting alcohol was life imprisonment. However in considering the Refugees Convention criterion the Tribunal had accepted (at [103]) that while the Applicant may face prosecution for transporting alcoholic drinks under s.175 of the Iranian Penal Code, if convicted he faced between six months to two years of imprisonment and that he would not face the punishment of lashes as he had not persuaded or lured anyone to consume alcohol. Such findings implicitly rejected any claim by the Applicant to fear life imprisonment for transporting alcohol.
Further, insofar as any aspect of the Applicant’s claim to fear harm within the complementary protection criterion was based on his claims to be a Christian convert (as his adviser had submitted), the Tribunal rejected the Applicant’s claim that he was a genuine convert to Christianity. Such rejection meant that it was not necessary for the Tribunal to consider harm faced by genuine converts to Christianity in the context of considering the complementary protection criterion.
It is apparent from [133] of the Tribunal’s decision that the reference to “country information cited above” is a reference to whole of the country information discussed in the Tribunal’s reasons for decision. More pertinently, the reference to the Tribunal’s assessment of “the applicant’s circumstances discussed in this decision record” is clearly a reference to all of its findings, based not only on credit but also in relation to the claims that were accepted, in particular the Applicant’s claim that he was wanted by the authorities for transporting alcohol.
Read in the light of this material, it is apparent that in paragraph [133] of its decision, the Tribunal’s finding was that the consequences it accepted that the Applicant may face for transporting alcohol did not constitute torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment such as to amount to significant harm. The Tribunal’s reasoning in this part of its reasons for decision is brief, but considered in conjunction with the more extensive earlier reasoning, no more was required for the Tribunal to carry out its review in relation to consideration of the complementary protection criteria. The ground as pleaded does not have sufficient prospects of success to warrant or support an extension of time.
In oral submissions the Applicant also suggested that the Tribunal misunderstood what was meant by significant harm under the Migration Act, in particular having regard to the definition of cruel or inhuman treatment or punishment in s.5 of the Act. He appeared to contend that it was necessarily an error of law for the Tribunal to find that imprisonment under a law of general application was not significant harm for the purposes of s.36(2)(aa) of the Migration Act without expressly considering the exclusions in paragraphs (c) and (d) of the s.5 definition of cruel or inhuman treatment or punishment.
However there was no necessity for the Tribunal to address the exclusions in the definitions of concepts amounting to significant harm unless, on the basis of the Applicant’s circumstances and the country information it relied upon, it was satisfied that there was a real risk of an act or omission that came within paragraphs (a) or (b) of the definition of cruel or inhuman treatment or punishment (or the introductory words to the definition of degrading treatment or punishment). This ground must fail. It is without merit and hence has no reasonable prospects of success.
Other Considerations
There would be no prejudice to the Minister in granting the extension of time, but that does not, either of itself or in conjunction with all the circumstances, justify an extension. Counsel for the Applicants submitted that the fact the Tribunal was applying Australian law in respect of Australia’s obligations under international treaties should weigh in favour of the exercise of the discretion to grant an extension of time. However the time limit in s.477(1) is imposed in relation to all applications for protection visas. While I am not persuaded on the limited submissions in this respect that there is a basis for drawing a general distinction between protection and other visa applications, I have borne in mind the consequences for the Applicant if the extension of time is refused, including the absence of a right of appeal.
I have had regard to all the circumstances. It is of particular relevance in this case that the Applicants have not provided a satisfactory explanation for the delay in commencing these proceedings and that the grounds of review have no reasonable prospects of success. In all the circumstances I am not satisfied that it is in the interests of the administration of justice that there be an extension of time. The application for an extension of time should be dismissed.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 31 August 2015
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