SZTUP v Minister for Immigration

[2015] FCCA 963

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 963

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT assessed applicant’s claims on the basis of what the applicant could have done if returned to his country of nationality – whether RRT accepted applicant was a member of a particular social group and if he was whether the applicant had a subjective fear of harm if he returned to his country of nationality – whether RRT ignored a “component integer” of the applicant’s claim – whether RRT ignored country information provided to the RRT – no jurisdictional error – application dismissed.

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45
Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40
NALZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 270
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

Applicant: SZTUP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 150 of 2014

Judgment of: Judge Manousaridis

Hearing date: 31 July 2014

Date of Last Submission: 16 December 2014

Delivered at: Sydney

Delivered on: 17 April 2015

REPRESENTATION

Counsel for the Applicant: Mr P D Reynolds

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 150 of 2014

SZTUP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant, who is a national of Iran, claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming the decision of the delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. Before I identify the grounds on which the applicant relies in this Court, it will be necessary to describe the applicant’s claims for protection, and the Tribunal’s reasons for not accepting those claims.

The applicant’s claims for protection

1. The applicant claimed that in 2001 he started a satellite installation business in Tehran.[1] He claimed it is illegal to own a satellite dish in Iran, although almost everyone in Iran owns one.[2]

   [1] CB62, [7]

   [2] CB62, [7]

2. In 2002 the Basij arrested the applicant after he was stopped at a checkpoint and was found to have in his possession satellite equipment.[3] After five days of interrogation, the applicant was taken to the Islamic Courts where he was released after paying a fine of 850,000 Tomans and signing an undertaking.[4]

   [3] CB62, [8]

   [4] CB62, [8]

3. The applicant returned to his business of installing satellite dishes because he could not find employment with any government organisation.[5] The applicant did not believe in or practice Islam, and to be employed by a government organisation required the applicant to pass Islamic tests at interviews, which the applicant was unable to do.[6]

   [5] CB62, [9]

   [6] CB62, [9]

4. In 2009 the revolutionary forces arrested the applicant after they had searched the applicant’s room and confiscated his satellite equipment.[7] The applicant was detained and tortured, but was released after paying a fine of 2,500,000 Tomans and signing another undertaking.[8]

   [7] CB63, [10]

   [8] CB63, [10]

5. In the year before the applicant left Iran, the Basij and the revolutionary forces applied pressure on individuals who possessed satellite dishes, raided peoples’ houses and confiscated their satellite dishes, and accused persons who possessed satellite dishes of anti-Islamic behaviour.[9] Colleagues of the applicant were arrested and accused of engaging in political activities.[10]

   [9] CB63, [12]

   [10] CB63, [12]

6. The applicant also claimed he is a member of an atheist community, and has a profile on the Atheist Universe website.[11]

   [11] CB63, [15]

7. For these reasons, the applicant claimed that if he returns to Iran he would be imputed with a profile of anti-Islamic behaviour, and that he will be labelled an infidel.[12]

   [12] CB63, [14]-[15]

8. In a submission made to the delegate, the applicant’s migration agents articulated with greater precision the grounds on which the applicant claimed he was a refugee within the meaning of the Refugees Convention.[13] They submitted there was a “cognisable group in Iran” identified by the description “satellite dish technicians” who may reasonably be regarded as a “particular social group” within the Refugees Convention definition of “refugee”. The applicant’s migration agents submitted that members of that particular social group “are capable of attracting imputations of dissident “political opinion”, even if they might appear apolitical in other respects”.[14] As to the applicant’s claim based on his being an atheist, the applicant’s lawyers submitted:[15]

   Our client’s fear of being labelled an infidel in Iran is about what would happen to him unless he self-represses his beliefs and resists social engagement with other atheists in Iran.

   [13] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

   [14] CB121

   [15] CB121

Tribunal’s decision

1. The Tribunal did not find the applicant to be “a reliable, credible or truthful witness”.[16] The Tribunal found “the applicant’s evidence regarding his claims to lack credibility”, and that the applicant “fabricated his claim in order to be granted a protection visa”.[17]

   [16] CB367, [45]

   [17] CB367, [45]

2. The Tribunal did not accept the applicant was employed full-time as an illegal satellite technician.[18] Although the Tribunal found it plausible the applicant may have been employed part-time as such a technician, it did not accept the applicant had ever been arrested for such a reason.[19] First, the applicant did not have any documentary evidence of his arrest or trial, even though country information indicated that a court verdict must be officially handed down to the accused or his attorney.[20] Second, the crime for which the applicant claims he was charged is not one that fell to be heard by a revolutionary court.[21] Third, the Tribunal considered the applicant’s account of his 2009 arrest at the Tribunal hearing was inconsistent with what he claimed happened in his initial statement regarding the arrest.[22]

   [18] CB367, [47]

   [19] CB367, [48]

   [20] CB367, [48a.]

   [21] CB368, [48b.]

   [22] CB368, [48c.]

3. Further, the Tribunal found the applicant acted inconsistently with his claimed fear. First, the applicant had travelled to Bulgaria, which is a signatory to the Refugees Convention, but did not apply for protection there.[23] Second, the applicant, on his evidence, worked for ten years in the same business. That indicated either the applicant did not work as a satellite installer or, if he did, the applicant did not fear harm because of his involvement in such a business.[24]

   [23] CB368, [49a.]

   [24] CB368, [49b.]

4. The Tribunal did not accept the applicant’s claim based on his being an atheist.[25] The Tribunal accepted the applicant had joined a website called “Atheist Universe”, but noted the website “shows no activity whatsoever”.[26] The Tribunal found that the only time the applicant chose to interact with other atheists was when he joined Sydney Atheists Meetup shortly after arriving in Australia,[27] and that the applicant had engaged in atheist meetings in Australia for the sole purpose of strengthening his claim for protection.[28]

   [25] CB369, [51]

   [26] CB369, [53]

   [27] CB369, [54]

   [28] CB369, [55]

Ground 1

1. The applicant submits the Tribunal impermissibly dealt with the applicant’s claims by considering whether he could avoid persecution by refraining from engaging in certain behaviour. The behaviour the applicant claims the Tribunal considered the applicant could refrain from engaging in was that of a satellite installer; and the conduct the Tribunal considered the applicant could undertake to avoid such persecution was the applicant’s pursuing some other employment based on his qualification as an electrical engineer. The applicant submits this error is contained in the following passage from the Tribunal’s reasons for decision:[29]

   I do not accept the he installed satellite dishes for reasons of opposing the regime. Although claiming that he did it for altruistic reasons, during his DIAC interview he claimed he did the job because he got more money which indicates that he was motivated by financial gain. While I accept that the installation of such dishes is considered illegal and, while largely tolerated is occasionally targeted by the authorities, the applicant is qualified as an electrical engineer and would be able to sustain himself economically through legal employment without needing to engage in this illegal business on return to Iran. He has previously worked in a range of jobs for which he is qualified, including running a shop, and there is no reason to doubt that he could not gain employment on return to Iran.

   [29] CB369, [50]

2. The Minister accepts the Tribunal may err if it proceeds on the basis that visa applicants are required, or can be expected, to take reasonable steps to avoid persecutory harm. The Minister submits, however, that where the conduct it is expected a visa applicant would modify to avoid persecutory harm is not to engage in a particular occupation, the relevant principles that should be applied are those that were applied by the Full Federal Court in NALZ v Minister for Immigration and Multicultural and Indigenous Affairs.[30] In making this submission, the Minister accepts that the later Full Federal Court decision in Minister for Immigration and Border Protection v SZSCA[31] is inconsistent with NALZ. The Minister submits, however, that the High Court in Minister for Immigration and Border Protection v SZSCA[32] rejected the reasoning of the Full Federal Court in that case. The Minister submits, therefore, that Ground 1 should be determined by the application of the principles the Full Federal Court applied in NALZ. The applicant, on the other hand, submits that Ground 1 of the application relies on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[33] and that, in any event, the High Court’s decision in SZSCA did not reject the Full Federal Court’s reasoning in SZSCA.

   [30] (2004) 140 FCR 270

   [31] [2013] FCAFC 155

   [32] [2014] HCA 45

   [33] (2003) 216 CLR 473

Assumed premises on which the competing submissions are based

1. It is worth pausing here to identify the premises the parties appear to assume or accept are correct for the purposes of Ground 1. These are:

   a)There was before the Tribunal a claim for protection based on the following elements:

   i)there is a particular social group identifiable as “satellite dish technicians”;

   ii)Iranian authorities attribute anti-Islamic political opinion to members of that particular social group;

   iii)the applicant was a member of that particular social group; and

   iv)the applicant has a well-founded fear that, because of his membership of the particular social group of “satellite dish technicians”, he will be imputed with an anti-Islamic political opinion and, for that reason, will face persecution if he returns to Iran.

   b)It was open to the Tribunal to consider that such a claim, if accepted, would result in the applicant falling within the meaning of “refugee” as defined in the Refugees Convention.

   c)The Tribunal found the applicant was a member of that particular social group.

   d)The Tribunal found the applicant had a well-founded fear of persecution because he would be imputed with an anti-Islamic political opinion because he was a member of the particular social group of “satellite dish technicians”.

   e)The Tribunal expected that, on his return to Iran, the applicant would find employment other than installing satellite dishes.

2. Premises (a) and (e) are correct. Although it is not obvious to me that premise (b) is correct, for the purposes of the application before me I will assume it is. As will become clear when I consider Ground 2 of the application, however, I am not prepared to assume that premises (c) or (d) are correct. Nevertheless, I will first consider Ground 1 on the assumption that all premises are correct.

3. To determine whether, as the Minister submits, the High Court in SZSCA rejected the Full Federal Court’s reasoning in SZSCA, it will be necessary to consider the facts and reasons for decision of the Full Federal Court and of the High Court in that case.

The Full Federal Court decision in SZSCA

1. In SZSCA the visa applicant was a citizen of Afghanistan of Hazara ethnicity from the Jaghori district in the Ghazni province. He and his family had lived in Kabul since 2007. The applicant previously worked as a jeweller, but in 2007 he became a self-employed truck driver transporting and delivering goods such as wood, animal skins and food between Kabul, Ghazni and Jaghori. In 2011 the applicant began to transport building and construction materials between Kabul and Jaghori. The Tribunal accepted that the Taliban targeted and discouraged drivers carrying construction materials and that such persons may be imputed with a political opinion supportive of the Afghan government or non-governmental aid organisations. The Tribunal also found, however, that the applicant would not be obliged to travel between Kabul and Jaghori to make a living because he could find employment in Kabul making jewellery, as he had formerly done in Jaghori. A judge of this Court found the Tribunal committed the same error the High Court in S395 found the Tribunal had committed. By a majority (Robertson and Griffiths JJ), the Full Federal Court also held the Tribunal made such an error.

2. Before the Full Federal Court the Minister submitted that the relevant risk of harm to the visa applicant was due to the work the visa applicant had chosen to engage in, not to any immutable characteristic or belief of the applicant. The Minister also submitted the facts were not distinguishable from those in NALZ, which meant that the reasoning of the majority judgments of the Full Federal Court in NALZ should apply to the facts that were before the Court in SZSCA.

3. Robertson and Griffiths JJ (the majority) accepted that the relevant principles arising out of S395 are that, first, the Tribunal cannot require an asylum seeker to behave in a particular manner but, second, it is permissible for the Tribunal to conclude that an asylum seeker would not behave in a particular manner upon his or her return.[34] The majority, however, found the Tribunal did not observe these principles:[35]

   In our view, on the facts of this case the Tribunal committed a jurisdictional error as identified in S395 when it embarked upon a chain of reasoning (which is particularly manifest in R[130]) that the respondent could avoid persecution if he were to change his occupation and work as a jeweller in Kabul. That approach is inconsistent with the principles enunciated by the majority in S395 and as set out in [38] and [39] above because it fails to consider not only whether but also why the respondent would take that step and the threat which caused it where the Tribunal’s task was to decide whether the respondent had a well-founded fear of persecution.

   [34] [2013] FCAFC 155 at [61]

   [35] [2013] FCAFC 155 at [62]

4. The majority further found the judgments of Emmett J and Downes J in NALZ did not support the Minister’s submissions. As for the judgment of Emmett J, the majority observed that his Honour found the conduct the Tribunal expected the visa applicant to cease was not conduct the Tribunal found caused the authorities to impute a political opinion to the visa applicant or to identify him or her as a member of a particular social group.[36] That was different from the facts in SZSCA where the conduct the Tribunal expected would be modified was the very conduct that, on the Tribunal’s findings, caused the Taliban to impute a particular political opinion to the visa applicant. As for the judgment of Downes J, the majority observed his Honour distinguished S395 because the expected changed behaviour in NALZ would avoid creating a wrongful perception of membership of a protected class, and the conduct the Tribunal expected to change involved trading with an unlawful organisation.[37] The majority said the facts before it were different. The Tribunal did not expect the visa applicant in SZSCA to change his behaviour to avoid creating a wrongful perception of membership of a protected class because the Tribunal accepted the Taliban targeted drivers carrying construction materials who, for that reason, might be imputed with a political opinion supportive of the Afghan government and/or non-governmental aid organisations.[38] And there was no finding by the Tribunal in SZSCA that the visa applicant was engaging in any illegal activity.[39]

   [36] [2013] FCAFC 155 at [70]

   [37] [2013] FCAFC 155 at [71]

   [38] [2013] FCAFC 155 at [76]

   [39] [2013] FCAFC 155 at [77]

The High Court’s decision in SZSCA

1. The High Court dismissed the appeal from the Full Federal Court, but not because the High Court agreed with the Full Federal Court that the Tribunal did not observe the principle stated in S395 (the S395 principle). The plurality concluded the Tribunal “did not fall into the error identified in S395”:[40]

   The critical aspect of the reasoning of the Tribunal in the present case was its finding that the respondent would not face a real chance of persecution if he remained in Kabul and did not travel on the roads between Kabul and Jaghori. The Tribunal found that he would suffer a real chance of harm for a Convention reason if he carried construction material in another area, but that he was safe in Kabul. In contrast to S395, therefore, the Tribunal did not divert itself from the question of whether the respondent would face a real chance of persecution if he returned to Afghanistan.

   [40] [2014] HCA 45 at [18]

2. The plurality found, however, the Tribunal nevertheless made an error because it did not appreciate there was before it an issue that was analogous to that of internal relocation:[41]

   The Tribunal in this case did not consider that the internal relocation principle applied, because the respondent already lived in Kabul. The Tribunal therefore did not consider the question whether the respondent could reasonably be expected to remain there and not transport materials on the roads outside Kabul, where he would be at risk of harm. This was an incorrect approach. Although the respondent had lived in Kabul since 2007, he had not been confined to that area and his work had taken him outside it. An expectation that he now remain within Kabul raises considerations analogous to those with which the internal relocation principle is concerned – specifically, whether such an expectation is reasonable.

   [41] [2014] HCA 45 at [29]

3. The plurality in the High Court, therefore, concluded the Full Federal Court erred in finding the Tribunal did not observe the S395 principle. The error the High Court found the Full Federal Court made did not concern the manner in which the Full Federal Court applied the S395 principle. The error consisted in the Full Federal Court identifying as the issue it had to decide whether or not the Tribunal had observed the S395 principle.

Did the High Court reject the Full Federal Court’s reasoning?

1. The Minister submits that the passage from the reasons for judgment of the plurality in SZSCA I reproduced in paragraph 24 of these reasons is a rejection of the Full Federal Court’s reasoning. I disagree. The error the plurality found the Full Federal Court made was its not recognising that the question the Tribunal ought to have considered was one that was analogous to the internal relocation principle.

2. The Minister further submits that the plurality in SZSCA did not accept that the driving of trucks carrying building materials led to the imputation of a political opinion such that the visa applicant in that case could not be expected to change his occupation to avoid persecution by remaining in Kabul. It is true the plurality did not accept a submission to that effect. But that is because the High Court considered the appeal should be dealt with, not on the basis of whether the Tribunal did or did not apply the S395 principle, but on the basis of whether the Tribunal should have considered and applied a principle analogous to the internal relocation principle.

3. Finally, the Minister relies on the following passage from the reasons for judgment of Gageler J who dissented (emphasis added):[42]

   The S395 principle should not be extended beyond its rationale. The principle directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic. The principle has no application to a person who would or could be expected to hide or change such behaviour in any event for some reason other than a fear of persecution.

   The S395 principle similarly has no application to a person who would or could be expected to hide or change behaviour that is not the manifestation of a Convention characteristic. That is so even if the person would or could be expected to change that behaviour in order to avoid a real chance of persecution by reason of the perpetrators of persecution wrongly imputing a Convention characteristic to the person. The price that the person would be paying to avoid persecution in such a case would not be the sacrifice of an attribute of his or her identity that is protected by the Convention. As Downes J succinctly put it in NALZ v Minister for Immigration and Multicultural and Indigenous Affairs, the principle has no application to a case which "does not contemplate changed behaviour to avoid persecution but to avoid creating a wrongful perception of membership of a protected class”.

   [42] [2014] HCA 45 at [37]-[38]

4. This passage also does not reject the reasoning of the Full Federal Court in SZSCA. The Full Federal Court, after all, accepted the reasoning of the majority judges, one of which was Downes J, in NALZ. The Full Federal Court did not apply the reasoning because the Full Federal Court considered that the facts before it were different from those Downes J considered. The ground on which Gageler J differed from the plurality is that, unlike the plurality, his Honour could not see that the Tribunal failed to address and to answer the question whether it was reasonable for the applicant to return to Afghanistan, to live and work in Kabul.

Did the Tribunal fail to apply the S395 principle?

1. I now turn to the question raised by Ground 1 of the application: did the Tribunal fail to apply the S395 principle? In my opinion, if, as the Minister accepts or assumes:

   a)there is a class of persons in Iran who are satellite dish technicians;

   b)such a class of persons constitutes a particular social group for the purposes of the definition of “refugee” in the Refugees Convention;

   c)the applicant is a member of that particular social group;

   d)authorities in Iran impute an anti-Islamic opinion to members of that particular social group;

   e)the applicant fears he will be persecuted because Iranian authorities impute an anti-Islamic opinion to members of that particular social group; and

   f)there is a real chance the applicant would be persecuted because of his membership of such a group;

   the Tribunal asked itself the wrong question by determining that, on his return to Iran, the applicant would be able to sustain himself economically through legal employment without needing to engage in the business of installing satellite dishes.

2. If, therefore, the premises I have identified in paragraph 17 of these reasons are all correct, Ground 1 will succeed. Whether or not two of those premises are correct, however, is a question I will consider in the next section of these reasons.

Ground 2

1. Ground 2 of the application is as follows:

   The Tribunal engaged in jurisdictional error by either:

   a.     failing to address a claim before it; or

   b.by making a finding that was arbitrary or capricious, and by failing to ask itself the right question.

   Particulars

   i.The Tribunal accepted that the applicant installed satellite dishes, that such activity was illegal, and that such activity was occasionally targeted by the authorities in Iran. The Tribunal, however, failed to address the central claim before it in this regard – namely whether the applicant would engage in such activity upon his return to Iran and, if so, whether that would engage Australia’s protection obligations under se 36 of the Act.

   ii.In the alternative, to the extent to which the Tribunal found that the applicant would not engage in such activity:

   A.     such a finding was arbitrary, capricious and lacked any form of reasoning;

   B.     The Tribunal failed to ask itself whether the reason the applicant would not engage in such activity was his fear of persecution if he was to engage in such activity and, if so, whether this involved persecution in itself. This amounted to a failure to ask itself the right question or a failure to deal with the applicant’s claim;

   iii.Further and in the alternative, the Tribunal’s finding that the applicant was not likely to come to the attention of the Iranian authorities as a consequence of his activities in Australia with atheists was a finding that was arbitrary, capricious and lacked any form of reasoning.

2. This ground deals both with the applicant’s claim based on his being a member of the claimed particular social group of satellite dish technicians, and on his being an atheist. I will consider Ground 2 separately as it relates to each of the applicant’s two claims for protection.

Ground 2 as it applies to the claim based on membership of the particular social group of satellite dish technicians

1. The applicant contends the Tribunal failed to address the applicant’s claim that, on his return to Iran, he would continue with the business of installing satellites, and that, for that reason, he had a well-founded fear of persecution. One element of that claim is the contention made in the particulars, namely, that the Tribunal accepted the applicant’s claim that he installed satellite dishes. In my opinion, the Tribunal did not accept the applicant’s claim that he installed satellite dishes.

2. The Tribunal was not satisfied the applicant was employed full-time as a satellite dish technician. And, although the Tribunal said it was plausible the applicant may have worked part-time as a satellite dish technician, the Tribunal did not expressly find it was satisfied the applicant did so. It could be argued that paragraph 50 of the Tribunal’s reasons should be read as indicating the Tribunal impliedly accepted the applicant had worked part-time as a satellite dish technician. That passage, however, must be read in the context of the Tribunal’s reasons for decision as a whole, and in particular with the following passage from paragraph 49b. of the Tribunal’s reasons for decision:[43]

   Despite claiming to live in fear because of his satellite job he also claimed that he had not applied for a job for ten years. This would indicate that the applicant was either in a different job to that which he claimed or that he felt no fear in doing the satellite job.

   [43] CB368, [49b.]

3. Paragraph 50 of the Tribunal’s reasons for decision must also be read with the Tribunal’s finding that the applicant “fabricated his claim in order to be granted a protection visa”.[44] Given these findings, I cannot construe the Tribunal’s reasons as manifesting an acceptance by it that the applicant worked as a satellite dish technician, part-time or full-time.

   [44] CB367, [45]

4. The passage from paragraph 49b. of the Tribunal’s reasons for decision indicates the Tribunal was prepared to deal with the applicant’s claim based on his being a satellite dish technician on the assumption that the applicant may have worked part-time as such a technician; and the Tribunal was prepared to do so because it found that, if the applicant did work as a satellite dish technician as he claimed, the applicant had no fear of being persecuted for that reason. On that approach, the applicant’s claim for protection was bound to fail because the Tribunal was not satisfied of an essential element of the definition of “refugee”, that element being that the applicant had a subjective fear of persecution. It is well-established in Australia that:[45]

   whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality.

   [45] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at page 76 ([62]) (Gaudron J) and the authorities cited by her Honour. See also Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at page 498 [72] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 at [53] (Crennan and Kiefel JJ)

5. Given the adverse credit findings the Tribunal made in relation to the applicant, it was reasonably open to the Tribunal not to accept the applicant worked as a satellite dish technician in Iran, whether full-time or part-time, and also not to accept the applicant feared persecution because of the political opinion that might be imputed to him for engaging in such activity in Iran. It was also reasonably open to the Tribunal to deal with the applicant’s claims on the assumption that the applicant worked part-time as a satellite dish technician, but not be satisfied the applicant had a subjective fear of being persecuted on account of his claiming to have been involved in that occupation. In those circumstances, it was not necessary for the Tribunal to make any finding about whether the applicant would in fact return to the occupation of a satellite dish technician; and its finding that the applicant could have worked in an occupation other than that of a satellite dish technician does not constitute any jurisdictional error.

6. This part of Ground 2, therefore, fails. Further, given that I have found that the Tribunal did not accept the applicant worked as a satellite dish technician, full-time or part-time, or that if the Tribunal did, the applicant did not fear persecution for that reason, it follows that two of the premises on which Ground 1 depends are incorrect. That means that Ground 1 must also fail.

Ground 2 as it applies to the claim based on being an atheist

1. This part of Ground 2 relates to the Tribunal’s finding in paragraph 61 of its reasons for decision that it did not accept that the applicant is a genuine atheist or that he has come or is likely to come to the attention of authorities because he is an atheist.[46] The applicant submits there “is no rational explanation as to the basis of its state of satisfaction in this regard”.[47] I disagree.

   [46] CB370, [61]

   [47] Applicant’s Outline of Submissions, 18.07.2014, [35]

2. The Tribunal referred to country information that it was satisfied indicated that the Iranian authorities do not normally interfere in the private lives of their citizens.[48] That information by itself rendered it reasonable for the Tribunal not to accept the applicant’s general claim that it would be only a matter of time before his internet activities are detected.[49] The only basis of that claim appears to have been that “a simple Google search can easily take someone to my Atheists Universe profile account”.[50]

   [48] CB369, [56]

   [49] CB227, [53]

   [50] CB227, [53]

3. This part of Ground 2, therefore, also is not made out.

Ground 3

1. Ground 3 of the application is as follows:

   The Tribunal engaged in jurisdictional error by misconstruing and failing to apply the correct law and by failing to consider the applicant’s claims concerning imputed political opinion and particular social group.

   Particulars

   a.In dealing with the applicant’s claims concerning the installation of satellite dishes, the Tribunal approached the matter on the basis that its finding that the applicant engaged in the activity for financial reasons was dispositive of the Refugees Convention related claims.

   b.This involved a misapprehension of the applicable law because the question for the Tribunal was not whether the applicant’s motivations were Convention related but, rather, whether were he to engage in such behaviour he would attract persecution for a Convention related reason.

   c.Further, in approaching the matter in this way, the Tribunal failed to deal with the claim before it that, were the applicant to engage in the installation of satellite dishes, he would be imputed with an adverse political opinion that would attract persecution (irrespective of his motivations).

   d.Further and in the alternative, in approaching the matter in this way, the Tribunal failed to address the applicant’s claim that satellite dish technicians formed a particular social group and he would [be] persecuted as a member of this group (irrespective of his motivations).

2. The particulars appear to contain two contentions. The first is that the Tribunal considered dispositive the applicant’s having undertaken for financial reasons the conduct the applicant claimed gave rise to a well-founded fear of persecution. That contention appears to be based on the first two sentences of paragraph 50 of the Tribunal’s reasons for decision which I have reproduced in paragraph 15 of these reasons.

3. The Tribunal’s reference to the applicant’s being motivated by financial gain was directed to rejecting an answer the applicant is recorded as having given in the Tribunal’s reasons for decision (emphasis added):[51]

   Asked why he would continue to do a very risky occupation that he had been arrested twice for and was scared of being arrested again and yet he couldn’t seek a job outside Tehran because of his family responsibilities, he claimed that he didn’t just do the job for the money, but also did it because it was against the Iranian government and his customers were happy with his service. He couldn’t leave his customers.

   [51] CB364, [30]

4. The applicant made the same claim before the delegate. That claim, as recorded in the delegate’s decision, was as follows:[52]

   . . . it was only at the end of the PV interview when pushed as to why he could not do any other line of work in Iran did he state it was a way he could work against the Iranian government and he would continue to do this work for this reason if he returned to Iran.

   [52] CB141

5. In these circumstances, I conclude the Tribunal did not find the applicant did not have a well-founded fear of persecution because he engaged in any activity for financial reasons.

6. The second contention contained in the particulars to Ground 3 is that the Tribunal did not consider the applicant’s claims based on fear of persecution because he was a member of the particular social group of satellite dish technicians. It is true the Tribunal did not in terms consider whether the applicant had a well-founded fear of persecution because of his membership of such a particular social group. But that is not because the Tribunal found the applicant engaged in the activities of a satellite dish technician for financial gain. It was because the Tribunal assumed the applicant worked part-time as a satellite dish technician but that, if he did, he did not have any subjective fear of being persecuted because he worked as a satellite technician.

7. Ground 3, therefore, is not made out.

Ground 4

1. The fourth ground of the application is as follows:[53]

   [53] The applicant does not rely on paragraph (d) of the particulars to Ground 4

   The Tribunal engaged in jurisdictional error by failing to consider component integers of the applicant’s claim that he was an atheist and relevant material in support of these component integers.

   Particulars

   a.A central claim made by the applicant was that he was an atheist.

   b.The Tribunal rejected this claim and made a determination under s 91R(3) concerning his activities in Australia because of his lack of atheist activity in Iran or prior to coming to Australia.

   c.In making this finding, the Tribunal failed to deal with the components integer of this claim; namely the applicant’s claim to the effect he was self-repressing his beliefs and resisting social engagement with atheists in Iran because of his fear of persecution.

2. The applicant, in effect, submits the Tribunal failed to consider two matters. The first is the applicant’s claim that he repressed his atheist beliefs in Iran. The second is country information the applicant submitted to the Tribunal. The applicant does not press the ground to the extent it claims the Tribunal failed to consider country information.

3. I have set out in paragraph 10 of these reasons the claim as formulated by the applicant’s migration agents. The applicant supported the claim with a statutory declaration he provided to the Tribunal which included the following:[54]

   It was only in about 2008, when I first came across atheist websites that I learnt of the word “atheist”. From what I read on those websites, that word seemed to match my frame of mind.

   It was not safe to talk to people in Iran, outside of my family, about my opinions of Islam and religion. I felt that if I did engage in any such conversations outside of my family, I would be reported to the Baseej or the Etelaat, and would be severely punished or executed. . . .

   I resent the fact that living in Iran will mean I cannot be myself and that I would have to keep my most important and deepest thoughts all secret, inside my head. I want to be able to freely meet and socialise with similar people who believe in science, rationality and atheism and who want to speak about such things but I am afraid what will happen to me if I do this. The regime controls all aspects of life in Iran. If I return I will have to hide my activities and I will always live in fear.

   I fear that if I am returned in Iran, whatever I do, it will be a matter of time before my thoughts slip out, or before my internet activities are detected. . . . I am an Atheist and I cannot deny this aspect of myself. To do so would be to live as a prisoner.

   [54] CB224-225, [42]-[43]; CB227, [52]-[53]

4. The Tribunal does not expressly refer to the applicant’s claim that he repressed his beliefs and conduct that would manifest he was an atheist or had atheist beliefs. That indicates the Tribunal did not determine that particular aspect of the applicant’s claims. The occasion for its doing so, however, did not arise. The applicant’s claim was necessarily premised on the applicant being an atheist. The Tribunal, however, was not satisfied the applicant was an atheist; and, with one possible exception, the Tribunal’s not being so satisfied was not based on the applicant’s lack of atheist activities in Iran. Not having accepted the applicant was an atheist, it necessarily followed that the Tribunal could not accept the applicant “self-repressed” his atheist beliefs. It could not have been a rational inquiry for the Tribunal to consider whether the applicant “self-repressed” a belief in atheism, given the Tribunal found the applicant was not an atheist.

1. I do not accept the applicant’s submission that a “significant reason” for which the Tribunal found the applicant was not an atheist was “the lack of atheist activity on the part of the applicant in Iran prior to coming to Australia”.[55] It is true the Tribunal expressly relied on the applicant’s “lack of atheist activity in Iran or prior to coming to Australia”.[56] As is made clear in the passage that contains its finding, however, the Tribunal relied on that matter to make a specific finding in relation to the reasons for which the applicant attended atheist meetings in Australia:[57]

   As a result of his lack of atheist activity in Iran or prior to coming to Australia, as well as his overall credibility issues, I believe that the applicant has engaged in his atheist meetings in Australia for the sole purpose of strengthening his claim. As I advised the applicant during the hearing, in these circumstances s.91R(3) requires me to disregard this conduct in determining whether he has a well-founded fear of persecution.

   [55] 31.07.14, T11.45-T12.1

   [56] CB369, [55]

   [57] CB369, [55]

2. The Tribunal’s reference in this passage to the applicant’s “lack of atheist activity” cannot reasonably be interpreted as referring to the absence in general of atheist activity by the applicant. The “lack of atheist activity” to which the Tribunal in this passage refers is the lack of activity referred to in the following earlier passage from the Tribunal’s reasons:[58]

   He [the applicant] was asked about the letters from the atheist society, he claimed the first thing he did was find the group on the website. He hadn’t looked them up in Iran as he only knew Australia was one of the best place [sic] in the world for atheists as he had found a website called Australian Atheists or something – he was asked to provide a copy of the website to his adviser.

   [58] CB364, [25]

3. That summarises the following evidence the applicant gave before the Tribunal:[59]

   [59] Affidavit of J Falconer, 13.05.14, annexure “A”, page 38

   MEMBER: . . . this atheist… letters from the Atheist Society… What’s the story there?

   INTERPRETER: What happens is after I came to Australia… As soon as I arrived in Sydney… The first thing I did was to go and find a group of the atheist people in Sydney.

   MEMBER: How did you find them?

   INTERPRETER: There was a website called ‘MeTalk’, and that’s how I got to know them.

   MEMBER: Did you find them out before you left Iran?

   INTERPRETER: No. Before I leave Iran, the only thing I knew was that Australia is one of the best places to be for someone who is an atheist.

   MEMBER: So how did you know that?

   INTERPRETER: Because I found the website called: ‘Australian Atheists’ or something. I found that website.

   MEMBER: Okay, can you give your advisor a copy of that website that you found?

4. Thus, the lack of “atheist activity” on which the Tribunal relied was the applicant’s not looking up in Iran atheists from Sydney Atheists Meetup which the applicant looked up after he arrived in Australia; and the Tribunal relied on that lack of activity to make a particular finding, namely, the applicant met with atheists in Australia for the sole purpose of strengthening his claim.

5. No jurisdictional error can be assigned to the Tribunal to the extent it did not expressly refer in this part of its reasons to the applicant’s claim he was “self-repressed”. When the applicant informed the Tribunal that, while in Iran, he did not look up the atheists he looked up after he arrived in Australia, he did not suggest that he did not do so because he was “self-repressed”. Further, whatever the scope of the applicant’s claimed “self-repression” in Iran, it did not extend to his searching the internet about atheism or in describing himself as an atheist in various profiles the applicant claimed he created on the internet. That is made clear in the applicant’s evidence I have set out in paragraph 53 of these reasons. It is also made clear in the evidence the applicant gave to the Tribunal. For example, the applicant said (emphasis added):[60]

   [60] Affidavit of J Falconer, 13.05.14, annexure “A”, pages 35-36

   MEMBER: So can you tell me why you have this fear of being killed by the authorities because you are atheist?

   INTERPRETER: Well based on the arguments and the talks that I had with friends and with relatives, I can expect these __ things to be happening to me. And also the research, the activities that I did on the internet, might have led to the same conclusion __ . Because I would go on and check and visit the atheist websites __. And what happens in most government profiles I have shared and I have told them that I am an atheist. And I am very fearful of that because… And because Basij has a certain group to deal with this kind of issue. Which are actually assigned to be doing search… searches on the internet and finding people who are doing these sorts of activities. That really frightens me a lot. Still, I was brave enough to be claiming such things on internet.

   MEMBER: Okay. When did you start claiming these things?

   INTERPRETER: I know I opened a profile in Atheist Universe in 2011. __ 2011. But even before that, in other dating websites, I have also told them that I was an atheist. Even on Facebook or wherever else that I had to open a profile, I would just introduce myself as an atheist.

   MEMBER: When was this?

   INTERPRETER: Ever since I found this… This terminology __ Ever since then, whenever I open a profile, I would call myself an atheist.

   MEMBER: So, since 2006?

   INTERPRETER: Yes.

6. In my opinion, excepting, perhaps, the Tribunal’s reference to the applicant’s not having looked up in Iran members of the Sydney Atheists Meetup, the Tribunal found the applicant was not an atheist for reasons that did not include the applicant’s lack of atheist activity in Iran. That is demonstrated by a number of matters. First, the Tribunal said:[61]

   Given the credibility issues already established regarding the applicant’s claims, his actions appear to be deliberate and targeted but not those of someone with a real fear based on a religious conviction (or in this case, the lack thereof).

   [61] CB369, [51]

7. Second, the “credibility issues already established” in this passage refer to the earlier findings on credit the Tribunal had made. The principal finding is at paragraph 45 of the Tribunal’s reasons to which I have already referred where the Tribunal found “the applicant’s evidence regarding his claims to lack credibility”, and that the applicant “fabricated his claim in order to be granted a protection visa”.[62]

   [62] CB367, [45]

8. Third, in paragraph 46 of its reasons the Tribunal said it was not satisfied the applicant was a credible witness, noting that “[m]any of the issues that called into question his truthfulness are shown in the discussion surrounding his claims”.[63] That is a reference to that part of the Tribunal’s reasons in which the Tribunal records evidence the applicant gave during the hearing before the Tribunal.

   [63] CB367, [46]

9. In my opinion, therefore, the information the applicant says the Tribunal did not consider – “self-repression” – was of no relevance to the applicant’s claims, given that it was necessarily premised on the applicant being an atheist, and given that, subject to one possible exception, the Tribunal did not rely on the applicant’s lack of atheist activities in Iran in not accepting the applicant’s claim he is an atheist. The possible exception is the Tribunal’s reliance on the applicant’s not making inquiries when in Iran of members of the Sydney Atheists Meetup whom the applicant contacted after he arrived in Australia. The Tribunal relied on this matter, however, only for the purpose of making a finding under s.91R(3) of the Act; and even there, the applicant gave to the Tribunal a reason other than “self-repression” as the reason for his not making inquiries of atheists in Iran.

10. For these reasons, Ground 4 of the application is not made out.

Ground 6

1. The applicant does not press Ground 5 of the application for review. He does, however, press Ground 6 which is as follows:

   The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration, by denying the applicant procedural fairness, or by unreasonably rejecting the applicant’s request for identification of country information relied upon by the Tribunal.

   Particulars

   a.In concluding that the applicant’s claim of arrest was a fabrication, a matter relied upon by the Tribunal was that the applicant failed to produce documentation from the court or his lawyer relating to the events.

   b.In reaching this conclusion, the Tribunal failed to take into account or deal with the country information adduced by the applicant to the effect that summons’ could be issued by telephone.

   c.Further and in the alternative, in reaching its conclusion in this regard, the Tribunal relied upon a particular item of country information appearing at footnote 1 on CB367:

   i.a copy of this article was not given to the applicant or identified by the Tribunal; and

   ii.the Tribunal ignored (and implicitly rejected) the applicant’s advisor’s request for a copy of the article to enable the applicant to comment on it.

   d.In the premises:

   i.the Tribunal failed to afford the applicant procedural fairness by failing to invite him to a hearing to give evidence and make argument in relation to an issue arising in the review (thereby breaching s 425 of the Act);

   iifurther and in the alternative, the rejection of the applicant’s advisor’s request for a copy of the article was manifestly unreasonable.

2. There are two claims made in this ground. The first is that the Tribunal did not address country information presented by the applicant which, it is claimed, was to the effect that summonses could be issued by telephone. The second is that the Tribunal did not provide to the applicant country information it was requested to provide. To be in a position to assess these claims, it is necessary to identify the circumstances in which the applicant’s lawyers provided country information and also the request the applicant’s lawyers actually made.

3. The starting point is the Tribunal’s having questioned the applicant in relation to his evidence concerning his arrest and convictions. The evidence included the following:[64]

   [64] Affidavit of J Falconer, 13.05.14, annexure “A”, pages 20-21

   MEMBER: Do you have any… documents from that court?

   INTERPRETER: No.

   MEMBER: Okay. Why? Are you able to get some?

   INTERPRETER: The possibility of getting access to such documents is impossible, I mean zero in Iran.

   MEMBER: But…

   INTERPRETER: Because the government does not want to incriminate himself. Does not want to show how you know, unfair they are.

   MEMBER: But they have to issue you with a notice of conviction to say what your punishment is so that you can pay it and then some kind of receipt to show that you have paid the fine.

   INTERPRETER: Even if I had… I might have, even if I had, I don’t have it at the moment. Doesn’t exist any more. Maybe it was just a piece of slip. Like I never thought it would be necessary for today, it might come in handy today.

4. By letter dated 4 December 2013 the applicant’s lawyers provided further information to the Tribunal in relation to a number of matters, one of which was the “Review Applicant’s account of the arrest and court process”.[65] The lawyers stated that this was done pursuant to the Tribunal’s having given the applicant an opportunity to “provide further information in relation to” a number of issues, including the “Review Applicant’s account of the arrest and court process”. The applicant’s lawyers stated:[66]

   Country information also shows that summonses may be issued in writing, by text message or over the telephone. For instance, the UK Report noted that the Danish Immigration Service Report 2009 stated:

   The Attorney at Law explained that summonses can be issued by the Civil-, Criminal- or Revolutionary Court. A western embassy . . . confirmed that there are different kinds of summonses and added that summonses are also issued by the Secret Service…

   The attorney at Law also informed that a notice to meet in court can be send [sic] by text message (sms) and by e-mail. In terms of the use of text messages a document has to be presented as proof of the text being sent to the person.

   An article published by the Iran Human Rights Documentation Centre written by an Iranian lawyer notes the following:

   In Iran, the investigation usually begins with the summoning or detention of the accused. In political cases, individuals are illegally and/or arbitrarily arrested in the streets or their place of work by order of the prosecutor. Or after receiving telephonic and / or written summons, they are sent to special security detention centers (sic) such as wards 209 or 350 of Evin prison to be interrogated.

   [65] CB347

   [66] CB349, [8]-[9]

5. The applicant’s lawyers then stated the following (emphasis added):[67]

   In light of the above country information, the Review Applicants [sic] claims should not be discredited on the grounds that his account of his arrests is inconsistent with the Tribunal’s country information without the Review Applicant first being given access to such information. The country information that the Tribunal has relied on was not referenced during the Tribunal hearing and has not been made available to the Review Applicant. If there is information that is contrary to the above, we request a copy of such information so the Review Applicant can comment on this.

   [67] CB349, [10]

6. There is nothing in this letter that required the Tribunal expressly to consider in its reasons for decision the country information the applicant’s lawyers provided to the Tribunal. The country information was restricted to the means by which persons may be summoned to appear in courts in Iran. The lawyers did not provide any country information in relation to what the Tribunal firmly put to the applicant during the hearing, and on which it relied, namely, that “they [i.e. courts in Iran] have to issue you with a notice of conviction to say what your punishment is so that you can pay it and then some kind of receipt to show that you have paid the fine”. It is true that during the hearing the Tribunal asked the applicant how he knew which court the applicant had to attend, and that the applicant said he was telephoned. The Tribunal, however, did not rely on any country information to the effect that persons in Iran were summoned in writing.

7. For these reasons, it was reasonably open to the Tribunal to consider the country information the applicant’s lawyers provided to be irrelevant and, for that reason, not to refer to it in its reasons for decision. Further, given it was reasonably open to the Tribunal to consider irrelevant the country information the applicants’ lawyers provided to the Tribunal, I am not prepared to infer from the Tribunal’s not referring to the country information in its reasons for decision that the Tribunal did not consider it.

8. Finally, I turn to the contention that the applicant’s lawyers requested the Tribunal to provide the country information on which the Tribunal relied, but the Tribunal failed to do so. I have difficulty in understanding how this submission can reasonably be made. It is clear from the emphasised passage from the applicant’s lawyers' letter I have set out in paragraph 69 of these reasons that the applicant’s lawyer did not ask the Tribunal to provide the country information on which the Tribunal based its questioning of the applicant at the hearing. What the applicant’s lawyers requested was “information that is contrary to the above”, namely, information that was contrary to the country information the applicant’s lawyers provided. The country information on which the Tribunal relied was not “contrary” to that provided by the applicant. The information on which the Tribunal relied was information concerning the handing down of court verdicts,[68] a subject not dealt with in the country information the applicant’s lawyers provided to the Tribunal. That the Tribunal did not respond to the lawyers’ request does not mean the Tribunal ignored or refused that request. It may be the Tribunal did not have information that was contrary to what the applicant’s lawyers provided. The Tribunal may also not have responded because, as I have already found, it was reasonably open to the Tribunal to consider that the country information the applicant’s lawyers provided was irrelevant to the country information on which the Tribunal in fact relied at paragraph 48a. of its reasons, the substance of which the Tribunal put to the applicant at the hearing.

   [68] CB367, [48a.]

9. Ground 6, therefore, also fails.

Conclusion and disposition

1. The applicant has failed on each of the grounds he advanced at the hearing before me. The application, therefore, will be dismissed, and the applicant will be ordered to pay the Minister’s costs.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 17 April 2015