SZULI v Minister for Immigration

[2015] FCCA 1657

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1657

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(1), 91R(2), 91R(3), 424A, 424AA, 425

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v MZYTS & Anor (2013) 136 ALD 547
Minister for Immigration and Border Protection v SZSCA & Anor (2014) 314 ALR 514
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50
MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609
SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133
SZSSC v Minister for Immigration and Border Protection & Anor (2014) 317 ALR 365
SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144
VFAC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 367
Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132

Applicant: SZULI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1462 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 5 December 2014

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Asad Lawyers

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice

ORDERS

1. The application, as amended, be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1462 of 2014

SZULI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in this Court on 29 May 2014 and amended on 21 July 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1302334, a decision of Tribunal Member P. McIntosh dated 9 May 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the Minister filed on 27 June 2014 a folder which was indexed, labelled and paginated, containing documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.  On 3 December 2014 the solicitors for the Minister filed a supplementary folder of the same nature.  This volume of material has been identified as the Supplementary Court Book (“SCB”) and marked as Exhibit “B”.

3. The applicant was granted leave to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely.  The applicant filed an amended application on 21 July 2014.  The applicant also filed and read into evidence the:

   a)Affidavit of Mohammad Al-Shadidi affirmed 14 July 2014 and filed on 21 July 2014 (the “Al-Shadidi Affidavit”); and

   b)Affidavit of Sandy Kane affirmed 17 July 2014 and filed on 21 July 2014 (the “Kane Affidavit”).

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the applicant. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.  It should be noted this background is not contested by the Minister, except for one point which is addressed below.

2. The applicant is a citizen of Iran who arrived in Australia on 9 May 2007 (CB 3).  She has resided and studied in Sydney since her arrival (CB 5).

3. On 4 February 2013, the applicant applied for a Protection visa (CB 1-65).  In an accompanying statement, she claimed (CB 47-65), by way of summary:

   a)She was born into a Muslim family in Iran;

   b)Iran and Islam did not respect women’s rights.  Women were forced to abide by Islamic laws, and there was no personal freedom, freedom of dressing or women’s rights in Iran (at [7]).  She believes in the equality of men and women and believes that the rules in Iran prescribing dress are unfair (at [23]).  She also referred to an incident where she was delayed at the airport on 6 January 2010 where she was detained and questioned about her clothes until she gave a written undertaking to abide by their dress codes (see [28]).  She also states that she wanted to “live as a free woman...” (at [37]);

   c)While in Iran, she held an anti-regime political view, because the regime was cruel, lacked law and order, and did not respect human rights.  She did not express her view while in Iran because she feared persecution as a consequence (at [8]-[11]);

   d)She also did not voice her religious beliefs (no religion) because she feared being persecuted for apostasy (at [12]-[13]);

   e)While in Australia she embraced western and/or secular values, and she lived the way that she wanted (at [14]);

   f)Her younger sister was detained and assaulted in 2011 because she “had no full cover on her head” and she was wearing makeup ([17]).  As a consequence, both she and her brother were upset. Her brother posted anti-Iranian remarks, but she was scared as a woman to do the same and did not want her family harmed (at [17]);

   g)Her sister was stubborn and continued to behave and dress the way that she wanted and, on 26 December 2012, the applicant was informed by telephone that her sister had been detained and assaulted again due to having participated in a Christmas party with Christian friends (at [20]).  As a consequence, the applicant started to voice her anti-regime political opinions to others (particularly their abuses against women) and publically (online) declared herself as a “religion-free individual” and made various statements against the Iranian regime and Islamic laws (at [21])-[22]);

   h)On 29 January 2013, her sister informed her by email that Iranian officials attended their home and made inquiry of the applicant (particularly, her Facebook posts) (at [24]).  A translated version of the email appears at CB 73;

   i)She fears being punished for apostasy (at [25]) and cannot hide her religious beliefs any more (at [26]-[27]).

4. Her application was also accompanied by various extracts from her Facebook page with various anti-regime material, and photographs of her not wearing clothing compliant with the Iranian/Islamic dress code.

5. On 24 May 2013, her solicitor sent the Delegate various extracts from her Facebook page with various anti-regime material (CB 92-120).

6. On 6 August 2013, the Delegate refused her Protection visa application (CB 128-148).

Proceedings before the Tribunal

1. On 7 August 2013, the applicant applied to the Tribunal for review of the Delegate’s decision (CB 149-154).

2. On 7 November 2013, the applicant’s solicitor sent a statement of the applicant to the Tribunal (CB 160-199).  In addition to the matters in her first statement, she:

   a)Referred to being forced to adhere to Islamic rules by force and coercion.  She gave a number of examples, such as:

   i)Being sent home from school for wearing the wrong coloured socks;

   ii)Being punished at school for avoiding prayer;

   iii)For being sent out of an exam for wearing nail polish,

   iv)Having to run away from the Basij when spotted with her boyfriend; and

   v)Being detained at a police station when seen with her fiancé in public, etc. ([3]);

   b)Claimed that there was no personal freedom in Iran for her as a woman and that women were discriminated against and forced to abide by Islamic laws in Iran ([9]);

   c)Addressed various aspects of the delegate’s decision;

   d)Provided further extracts from her Facebook page (CB 177-199).

3. The applicant was subsequently invited to a hearing before the Tribunal (CB 200-203), which she attended.  A transcript of the hearing is annexed to the Kane Affidavit.

4. On 6 January 2014, the Tribunal provides the applicant’s solicitor with a link to a DFAT report which “may, or may not, be relevant to the applicants circumstances” (CB 204).

5. On 1 February 2014, the applicant’s solicitor sent the Tribunal a link to certain country information (CB 205-208).

6. On 11 February 2014, the applicant’s solicitor sent the Tribunal a letter that responded to certain matters identified by the Tribunal at the hearing and attached a ‘mini submission’ (CB 209-218).  For present purposes it is noted that the applicant’s claim was put on the basis of her political opinion, being a member of the particular social group of women, and apostasy.

7. On 4 March 2014, the Tribunal invited the applicant to comment upon particular information, viz that it had information that her brother had similarly claimed to have lodged Facebook posts online following their sister’s ill treatment (whereas both had not been politically active beforehand) (CB 219-220).

8. On 6 March 2014, the applicant’s solicitor responded to the letter referred to in the preceding paragraph (CB 221-228).

9. On 4 April 2014, further documentation from the applicant was submitted (CB 229-233).

10. On 9 May 2014, the Tribunal decided to affirm the decision of the Delegate (CB 236-258).

Tribunal’s Decision

Political Opinion

1. Briefly, the Tribunal:

   a)Did not reject the claims pertaining to the detention and arrest of her sister in Iran;

   b)Considered that the online postings engaged in by the applicant in Australia were carried out solely for the purpose of strengthening her claim and therefore not to be considered by operation of s.91R(3) of the Migration Act. This was mainly because (at [82]-[97]):

   i)The manner in which the applicant had chosen to express her political claims, and the reason, was identical to that claimed by her brother in a separate application;

   ii)Her brother had been granted protection for those reasons by the time she made her claims;

   iii)It considered that she had tried to distance herself from her brother and his activities to prevent such a comparison;

   iv)It considered an email from her sister about a Basij visit to be a fabrication;

   v)It did not accept that she would have continued posting critical comments online if she believed that her family had been visited by the Basij as claimed;

   vi)She expressed her political views abruptly in December 2012; she had not been involved in political activity or openly expressed any critical opinions previously;

   c)It did not accept that the Iranian authorities had contacted her family about her online activities as claimed (at [98]);

   d)It did not accept that her brother’s activities would lead to adverse attention (at [99]);

   e)It was satisfied that she would use her IT skills to remove from her Facebook page any political content, and would re-enter Iran and live with her family as she had said she would originally do.  Her political views would be of no interest to the authorities (at [100]);

   f)It considered that, as long as views remained private and Islamic rules and values were not challenged or violated in a visible manner, Iranian authorities would normally not interfere in the private sphere.  Whilst the applicant resented official intrusions into her personal life, she had exaggerated the strength of her political views and that “she will express such views as she has, without being constrained by a fear of serious or significant harm, to friends and family if she returns there.”

Religion

1. The Tribunal at [104]-[109] of the Decision Record:

   a)Accepted that the applicant believed in God but did not consider herself to be a Muslim;

   b)Noted that she did not fear being seriously or significantly harmed in Iran because of those opinions in the past;

   c)Disregarded her Facebook postings by virtue of section 91R(3);

   d)Did not consider that the applicant was an apostate who had converted to another religion (which category of person would be persecuted, because of the public manifestations of their new faith);

   e)Noted that the authorities did not normally interfere in the private sphere as long as Islamic rules and values were not publically challenged or violated.  The applicant’s lack of belief in Islam or any other religion was a private matter.

Iranian women

1. In respect of the applicant’s claims that she would be persecuted as a member of a particular social group (comprised of Iranian women), it (CB 251-2 at [110]-[115]):

   a)Accepted that the group existed and that the applicant was a member;

   b)Accepted that there were discriminatory laws that only applied to women in penal and civil codes, particularly in relation to property, family law and rules of evidence;

   c)Accepted the applicant’s claims concerning her experiences in the past when the Basij considered that she had breached the dress code;

   d)Did not reject the various other experiences recounted by her as examples of conducted directed against her as a woman; and

   e)Held that she did not expect to be seriously or significantly harmed for perceived breaches of the requirements in the past and, accordingly, would not in the future.

Complementary protection

1. In relation to complementary protection, the Tribunal basically repeated its reasoning in terms of the claims in respect of significant harm by virtue of the applicant’s religion and her being a woman (CB 253 at [117]).  In relation to the political opinion claims, the Tribunal (CB 253 at [119]-[126]):

   a)Was not satisfied that the Iranian authorities were aware that the applicant had been expressing political views online;

   b)Considered that the applicant would remove all traces of the material she had on Facebook before her return;

   c)Was not satisfied that the applicant’s political views that were expressed while she was in Australia were known or would become known;

   d)Did not consider that the applicant’s political activities would lead to her suffering harm;

   e)Referred to a DFAT report that Iranian civilian life was vibrant and sophisticated within limits well known to Iranians, although political activists who cross ‘red lines’ can be charged and sentenced as a result.  The applicant was not a political activist and that, unrelated to any fear of the consequences, she would not cross any of these ‘red lines’.

Current Proceedings

1. The application (as amended) pleads the following grounds:

   1.  The Tribunal engaged in jurisdictional error by asking itself the wrong question or by failing to apply the correct law.

   Particulars

   (a)     On proper construction of the Tribunal’s decision, it required the Applicant to be discrete or modify her behaviour upon her return to Iran to avoid persecution and/or significant harm;

   (b)     Further or in the alternative, to the extent to which on proper construction of its decision the Tribunal did not require the Applicant to be discrete or modify her behaviour to avoid persecution or significant harm but, rather, asked itself how the Applicant would in fact behave upon her return, the Tribunal failed to ask itself:

   (1)     Whether the Applicant’s discrete or modified behaviour upon her return was a consequence of a fear of persecution or significant harm;

   (ii)     How the Applicant would in fact act upon her return in the absence of the said fear;

   (iii)    Whether the avoiding action taken by the Applicant (i.e. the discrete or modified behaviour) itself involved the infliction of persecution or significant harm on the Applicant, or whether she could reasonably be expected to tolerate it, or whether it involved the denial of a real aspiration held by the Applicant that was integral to her human dignity;

   (iv)    Whether, even if the Applicant acted discretely or modified her behaviour upon her return, she might nevertheless suffer persecution or significant harm.

   2.  The Tribunal engaged in jurisdictional error by failing to consider a claim or component integer thereof or by failing to correctly apply the law.

   Particulars

   (a)     The Tribunal failed to consider a claim made by the Applicant or squarely raised in the material before it to the effect that the Applicant feared persecution or significant harm in Iran by virtue of her being a woman;

   (b)     Further or in the alternative, the Tribunal failed to correctly apply the law by wrongfully bifurcating the particular social group of women into, in essence, discrete or non-discrete women (or women who stay within the so called ‘bright red line’ and those who do not).

   3. The Tribunal engaged in jurisdictional error by failing to comply with its statutory obligations under sections 424A of the Migration Act.

   Particulars

   (a) Under section 424A(1)(a) and (b) of the Migration Act, the Tribunal was obliged to:

   (i)     Give to the Applicant, in the way the Tribunal considered appropriate in the circumstances, clear particulars of any information that the Tribunal considered would be the reason, or a party of the reason for affirming the decision that is under review; and

   (ii)     Ensure, as far as was reasonably practicable, that the Applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that was under review;

   (b)     Information that the Tribunal had before it included the Applicant’s brother previous protection visa application, particularly the claims made in that application and the date on which the application was granted.  The Tribunal identified that it had looked at her brother’s claims, however:

   (i)     If, on proper construction, the date of the grant of the application is ‘information’, then the Tribunal did not give that information to the Applicant in breach of section 424A(1)(a);

   (ii)     Alternatively, if the date of the grant of the application is a particular of information, then the Tribunal did not give clear particulars of information to the Applicant in breach of section 424A(1)(a);

   (iii)    Alternatively, the Tribunal did not in any event explain to the Applicant as far as was reasonably practicable, that the Applicant understood why the information in question on proper construction was relevant to the review and the consequences of it being relied on in affirming the decision that was under review in breach of section 424A(1)(b) (which would have entailed identifying and explaining the significance of the date on which the Applicant’s brother had been granted a protection visa).

   4.  The Tribunal engaged in jurisdictional error by making a critical finding in the absence of evidence, by failing to take into account relevant considerations, or by misconstruing and failing to deal with a claim before it.

   Particulars

   (a)     The Tribunal rejected the Applicant’s claim that she held a well founded fear of persecution by virtue of having abandoned Islam on the basis that apostates who have converted to another religion that might attract adverse attention in Iran, whereas the Applicant did not fall within this category (Decision, [107]).  The Tribunal was also not satisfied that the Applicant would be perceived to be an apostate (Decision, [109]);

   (b)     The finding referred to in para (a) was purportedly based on a DFAT country information report dated 29 November 2013 (DFAT Report) which it apparently accepted as reliable (Decision, [107]);

   (c) The DFAT Report, however, at [3.34] specified that “Iranian interpretation of sharia provides that Shia Muslims are not permitted to renounce their religion or convert to another religion” and it outlined a number of forms of harm that might be applied to apostates including the following “some judges have applied sharia to hand down sentences of the death penalty and lengthy imprisonment for apostasy.”  That is to say, the DFAT Report accepted as reliable by the Tribunal stated that Shia Muslims who renounced their religion were also regarded as apostates, and accordingly subject to the penalties that flow from that, in addition to person who converted to another religion.  Further, on proper construction the DFAT Report did not state that only persons who converted to another religion might attract adverse attention in Iran as found by the Tribunal;

   (d)     Further, the Applicant’s claim was that she was a Shia Muslim who had abandoned Islam, whereas the Tribunal characterised her claim as a claim as being no more than that she had a lack of belief in Islam;

   (e) In the circumstances set out in para (c) above:

   (a)     The Tribunal made a critical finding in the absence of evidence (the DFAT Report did not support the findings the Tribunal relied upon it in respect of, as explained in para (c) above);

   (b)     The Tribunal failed to take into account a relevant consideration (the Tribunal failed to take into account para 3.34-3.36 of the DFAT Report accepted by it; particularly those portions that (i) stated that Shia Muslims who renounced their religion were regarded as apostates and (ii) identified the harm that flowed from this form of apostasy);

   (f)     In the circumstances set out in para (d) above, the Tribunal misconstrued and therefore failed to deal with the Applicant’s claim or component integer thereof.

   5.  The Tribunal engaged in jurisdictional error by misconstruing and failing to deal with the Applicant’s claim to fear persecution or significant harm as a consequence of being a member of the particular social group of women from Iran or by misconstruing or misapplying the applicable law.

   Particulars

   (a)     The Applicant’s claim of persecution or of significant harm as a consequence of being a woman in Iran included claims to the effect that in addition to actual physical harm the denial of personal freedom, the denial of a freedom to choose how to dress, the denial of women’s rights in Iran, the imposition of Islamic Laws on women in Iran, the gender inequality in Iran, and her inability to express her views in this regard amounted to persecution or significant harm (e.g. CB47[7], CB48[9]-[14], CB49[18], CB50[21]-[23], CB51[28], CB54[37], CB164[9], CB165[10]-[15], CB169-170[30], CB172[4], CB214, CB221[1]);

   (b)     The Tribunal, however, considered the Applicant’s as being a claim that she would not be ‘safe’ in Iran and, once it concluded that she would be ‘safe’, it rejected her claim in this regard (Decision, [112]-[113]);

   (c) In limiting its consideration as to whether the Applicant would be ‘safe’ in Iran, the Tribunal:

   (i)      it misconstrued and failed to deal with the claim as put (being that identified at para (a) above).  The Applicant’s claim went beyond a fear of physical harm;

   (ii)     Misconstrued the meaning of persecution and significant harm, because persecution and significant harm are capable of extending beyond lack of safety or the infliction of physical harm.

   6.  The Tribunal engaged in jurisdictional error by failing to ask itself whether, despite the efforts that the Tribunal found that the Applicant would engage in to avoid persecution or significant harm, she might nevertheless face a real risk of persecution or significant harm.

   Particulars

   (a)     The Tribunal did not deal with whether the Applicant faced a real risk of persecution or significant harm by virtue of being perceived to have infringed upon the rules applicable to her in Iran (despite attempts to keep within the rules);

   (b)     The Tribunal did not deal with whether any infraction in the future would be treated more seriously and give rise to a well founded fear of persecution or significant harm in the reasonably foreseeable future by virtue of her having signed an undertaking to comply with applicable rules in Iran;

   (c) The Tribunal did not consider whether her Facebook activity might become known to the Iranian authorities irrespective of whether she deleted offending material before re-entry into Iran (such as, for example, by virtue of her posts as recorded on other Facebook users’ pages coming to their attention or posts from other users with offending material being posted on her page and coming to their attention before she had an opportunity to delete it);

   (d)     The Tribunal did not consider whether her abandonment of Islam might become known to the Iranian authorities in the reasonably foreseeable future even if the Applicant only expressed her belief in this regard privately.

7. The Tribunal engaged in jurisdictional error by failing to provide the Applicant with an opportunity to give evidence and present arguments in relating to the issues arising in the review at a hearing in accordance with section 425 of the Migration Act.

Particulars

(a)     The following were issues arising in the review:

(i)     The Tribunal doubted that Iranian authorities could link the Applicant’s posts on her Facebook account with her and a physical address in Tehran within a few weeks given that there were 4 million Iranians with Facebook pages;

(ii)     Accordingly, the Tribunal considered a January 2013 email purporting to be from her sister about a visit by the Basij was not a ‘real event’;

(b) The Tribunal did not identify the issues arising in the review identified in preceding para (a) to the Applicant such that the Applicant had the requisite opportunity under section 425 of the Migration Act to give evidence and present arguments in respect of these issues at a hearing held pursuant to that provision.

Applicant’s Submissions

Women in Iran - Grounds 1, 2 and 5

1. These grounds concerns how the Tribunal dealt with the applicant’s claim to fear persecution as a member of the particular social group comprising women in Iran, being a particular social group that the Tribunal accepted existed to which the applicant belonged at [111] (CB 252).

2. There is a question of construction as to what the Tribunal actually did at [110]-[115] (CB 251-252), which leads to the need to deal with a number of alternative possible constructions.  Did the Tribunal:

   a)Not deal with the claim at all;

   b)Implicitly require the applicant to comply with the Islamic dress code and engage in other compliant behaviour upon her return to avoid persecution; or

   c)Implicitly assume that she would continue to do what she had done in the past and in fact comply with the requirements upon her return? 

   The reasoning is very vague in this regard.  However, whichever the correct construction, the Tribunal engaged in jurisdictional error.

Failure to consider a claim (ground 2) and misconstruction of the applicable law (ground 5)

1. It is well established that a decision maker is required to correctly construe and consider claims and component integers thereof made by an applicant or apparent on the face of the material before it (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 per Allsop J at [24] (Spender and Merkel JJ agreeing)). This includes claims that were expressly raised or squarely raised by the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58]-[61] per Black CJ, French (as he then was) and Selway JJ).

2. As stated by Young J in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [39]:

   On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions.

3. Similarly, the Full Court in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 136 ALD 547 at [38], stated that the Tribunal’s statutory task (SZSSC v Minister for Immigration and Border Protection & Anor (2014) 317 ALR 365 at [75]-[95]):

   [C]ould not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant. 

4. See also Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105, where the Full Court stated at [63]:

   It was well-established that a failure by the Tribunal to evaluate and weigh the evidence or claims before it constituted a jurisdictional error.

5. Consideration requires more than mere reference to the claim.  Rather, it entails consciousness of, and a real or active engagement with, the claim (MZYTS (supra) at [38]-[39]).

6. In the present case, the applicant claimed, inter alia, that the persecution comprised being forced to comply with the regime’s rules applicable to women.  Her claim was not simply that she would breach the rules and be harmed as a consequence.  Rather, a component of her claim was that:

   a)the repression and lack of freedom associated with forcing women to obey the rules, and

   b)living in a regime that did not respect women’s rights, was persecutory. 

   Having lived and dressed as she wanted to for a number of years while in Australia (evidence of which she provided), she would find returning to and living in Iran unbearable.  This is a central complaint that threads through her claims.

7. For example:

   a)At CB 47 at [7], she states “There is no respect to women rights in Iran or in Islam.  Women are forced to abided by Islamic Laws.  There is no of personal freedom or freedom of dressing and or women rights in Iran.”;

   b)At CB52.2, she referred to “a very basic human right that women should be able to choose what they wanted to wear” and referred to her being forced to give a written undertaking to abide by the dress code to be “a violation of my human right”; and

   c)At CB 54 at [37] and CB 172 at [40], she stated “I want to live as a free woman (this is not possible in current Iran)”.

8. However, the Tribunal did not deal with the claim as put.  At CB 251-252 at [110]-[115], the Tribunal accepted:

   a)That the group existed and that there were discriminatory laws that applied only to the group (at [111]);

   b)The applicant’s claims as to past incidents where adverse consequences flowed her from having breached the regime’s requirements (at [112]); and

   c)That authorities in Iran take a “heavy handed approach” during “periodic morality campaigns to enforce standards of Islamic conduct” (at [112]). 

9. However, it concluded that since the applicant had intended to return to live with her family until January 2013, her own assessment was that she could “safely return” and according the applicant “did not expect to be seriously or significant harmed for perceived breaches” (CB 252 at [113]). 

10. The difficulty with this reasoning is that, on a fair reading, the Tribunal was only dealing with whether the applicant would be harmed by the authorities for breaching the applicable rules upon her return.  On no fair reading could the Tribunal be said to have dealt with the clearly articulated claim that being forced to obey the rules, or the lack of freedom in Iran for women, of themselves amounted to persecution in the form of repression or a denial of a human right. It also did not deal with why the applicant would be ‘safe’ – i.e. it did not deal with her claim that she had modified her behaviour to avoid breaching the rules for fear of persecution (which is nevertheless persecution).

11. This reasoning also reflects a misconstruction of the applicable law. It is clear that the Tribunal equated persecution with physical harm or punishment inflicted by the regime and did not consider harm in the form of being subject to a repressive regime and being denied human rights to constitute persecution. Accordingly, the Tribunal also misconstrued ‘persecution’ in ss.91R(1) and (2), which is not limited to the physical harm or other punishment inflicted by the regime for non-compliance but, also, other forms of harm.

Requiring the Applicant to be discrete (ground 1)

1. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, McHugh and Kirby JJ stated (footnotes omitted; underlining added):

   40.    The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps — reasonable or otherwise — to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.

   41.    History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention. As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed:

   It is one thing to say … that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities — if, in other words, it is established that he would in fact act unreasonably — he is not entitled to refugee status. [Original emphasis]

   42.    Simon Brown LJ went on to say:

   [I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable.

   43.    The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many — perhaps the majority of — cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

   ...

   [56]  ... And it failed to consider whether the appellants might suffer harm if for one reason or another police, hustlers, employers or other persons became aware of their homosexual identity.  The perils faced by the appellants were not necessarily confined to their own conduct, discreet or otherwise.

   ...

   [60]  By declaring that there was no reason to suppose that the appellants would not continue to act discreetly in the future, the tribunal effectively broke the genus of “homosexual males in Bangladesh” into two groups – discreet and non-discreet homosexual men in Bangladesh.  By doing to, the tribunal fell into jurisdictional error that renders its decision of no force or effect.

2. Gummow and Hayne JJ stated (footnotes omitted; underlining added):

   82.    Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the tribunal if it is intended as a statement of what the applicant must do. The tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.

   83.    Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning, exemplified by the passages from reasons of the tribunal in other cases, cited by the Federal Court in Applicant LSLS v Minister for Immigration and Multicultural Affairs, leads to error. It distracts attention from the fundamental question. It leads to confining the examination undertaken (as it was in LSLS) merely “to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result”.  That narrow inquiry would be relevant to whether an applicant had a well-founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged. On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well-founded fear of persecution.

3. Conversely, in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1, the High Court upheld a Tribunal decision relating to an Iranian apostate, in which case the Tribunal held that the applicant would not proselytise upon his return to Iran if he were to practice his faith in the way he chose to and, therefore was not owed protection obligations because he would not attract adverse attention. At [168], Hayne and Heydon JJ stated (underlining added):

   168.  At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran.  Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.

4. Applying these principles, the first point to note about the Tribunal decision is that it is difficult to determine what approach it adopted.  It does not say that it required the applicant to comply with the Islamic dress code to avoid harm, but it certainly was not saying that the applicant would be free to wear whatever she wanted without consequence either given that it accepted her claims as to what had happened to her in the past for disobeying the rules and it accepted that the authorities in Iran adopted a “heavy handed approach” during “periodic morality campaigns”.  Therefore, logically, it was either:

   a)Not making any finding at all as to what the applicant could or should do upon her return;

   b)Implicitly requiring the applicant to comply with the regime’s requirements upon her return; or

   c)Implicitly assuming that she would continue to do what she had in the past and continue to comply with the regime’s requirements upon her return.

5. If it adopted approach (a), it failed to deal with the claim and carry out its statutory task at all, which amounts to jurisdictional error.  It is obvious that the Tribunal needed to consider what might happen to an applicant upon his or her return.

6. If it adopted approach (b), then by requiring or expecting the applicant to comply with the regime’s requirements it was asking itself whether the applicant could avoid persecution rather than dealing with whether she would in fact be persecuted (as to which, see S395, McHugh and Kirby JJ at [40]-[43] and VFAC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 367 at [32]-[33]);

7. If it adopted approach (c):

   a)It did no more than make an assumption in that regard rather than ask itself the question and make a finding.  This is erroneous because it involves the very fallacy identified in S395 per McHugh and Kirby JJ at [43].  It is necessary to consider what an applicant would do upon his return rather than simply make assume that they would continue doing what they have always done;

   b)It is insufficient, and not the correct question, to merely ask what an applicant would do upon his return.  It is necessary to ask why they would act in that manner upon return and whether they are doing so because of their fear of persecution.  If a person complies with the regime’s requirements because they fear persecution should they fail to comply, that person nevertheless has a well-founded fear of persecution: S395 per McHugh and Kirby at [43] and Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at [20] per Madgwick J. The true question (which was not asked) is how the person would act upon his or her return uninfluenced by the fear of persecution: S395 at [43], NABD at [168]; and

   c)Additionally, it is also necessary to ask whether the person might nevertheless attract persecution irrespective of their own conduct: S395 at [56]. In this case, the applicant never said that she would set out to deliberately flaunt the regime’s requirements, yet she claimed (and the Tribunal accepted) that on a number of occasions she was found to have breached the regime’s requirements and had various forms of punishment administered as a consequence. If the Tribunal found that she would continue to act as she had done in the past, it nevertheless failed to ask itself whether she might inadvertently fall foul of the regime’s requirements or its enforcers (as she had done in the past) and whether the consequences would amount to persecution (particularly in light of her past contraventions and her written undertaking).

1. Further, if in fact what the Tribunal was doing was finding that the applicant would not fear persecution in a particular area within Iran, it would have been necessary for the Tribunal to consider whether the living in that area (particularly the requirements of living in that area as contemplated by the Tribunal) were reasonable in the sense of practicable (even in a non-relocation case such as this): Minister for Immigration and Border Protection v SZSCA & Anor (2014) 314 ALR 514. There is no suggestion that it did so.

Breach of section 424A (Ground 3)

1. Under ss.424A(1)(a) and (b), the Tribunal was obliged to:

   a)Give to the applicant clear particulars of any information that it considered would be the reason, or a part of the reason, for affirming the decision that is under review; and

   b)Ensure, as far as was reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision under review.

2. The ‘information’ in question is the date on which the applicant’s brother’s protection visa application was granted.  This is a matter capable of constituting ‘information’ that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review:

   a)Clearly the date was a matter that the Tribunal considered to be adverse to the applicant (CB 248 at [85]);

   b)The date also amounted to ‘information’ in the statutory sense.  If accepted as true, the date was capable of undermining the applicant’s claims (cf SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [17]). Further, the ‘information’ here does not fall foul of the other known exclusions such as being a subjective thought process, the exclusions in section 424A(3), etc.

3. The Tribunal was accordingly obliged to comply with either ss.424A or 424AA in respect of the information, which it did not do. It is acknowledged that the Tribunal sent the applicant a notice referring to the brother’s Protection visa application (CB 219-220). However, critically, it failed to refer to the date of grant of the brother’s protection visa application, focusing instead on the similarities between the two claims. The Tribunal thus failed to identify the information at all.

4. An alternative analysis within the s.424A framework is that the ‘information’ is the brother’s previous claims and the failure to identify the date of grant of the brother’s visa and explain its significance is a failure to give clear particulars of that information and the obligation to ensure that the applicant understands its relevance.

The apostasy claim (Grounds 1 and 4)

Ground 4

1. The Tribunal rejected the applicant’s claim that she held a well-founded fear of persecution by virtue of having abandoned Islam because it held that it was apostates who have converted to another religion who were at risk (whereas lack of belief in Islam was a private matter) (CB 251 at [107]).

2. The finding that persecution was visited upon apostates who had converted to another religion was stated to have been based upon a DFAT report dated 29 November 2013 (CB 251 at [107]) (presumably para [3.36]).

3. The DFAT report is annexed to the affidavit of the applicant’s solicitor (annexure D).  Notably, at para [3.34], it is stated:

   Iranian interpretation of sharia provides that Shia Muslims are not permitted to renounce their religion or convert to another religion. Apostasy is not codified in Iran’s Penal Code, but the Constitution allows judges to turn to sharia if Iranian law is not clear about an issue. Convictions for apostasy are not common. However, some judges have applied sharia to hand down sentences of the death penalty and lengthy imprisonment for apostasy.

4. The Tribunal, although apparently accepting the validity of the DFAT report (and indeed, the DFAT report was something it was bound to take into account), displayed no consciousness and consideration of para [3.34].  If it had in fact been considered, one would expect some reference to have been made to it given that it:

   a)Directly supported the applicant’s claim that renouncing Islam was forbidden and could have serious adverse consequences; and

   b)Directly contradicted the Tribunal’s conclusion that lack of belief in Islam on the part of the applicant (being a person who was born a Muslim) would not give rise to a fear of person.

5. It was an important piece of information in a DFAT report that the Tribunal accepted was reliable that the Tribunal was required to have regard to.  In the circumstances, the Court would infer that the Tribunal failed to have regard to it and engaged in jurisdictional error: e.g. MZYTS (supra); SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 at [46]-[72].

6. Alternatively, the Tribunal there was no evidence to support the Tribunal’s finding that it was “only apostates who have converted to another religion that may attract adverse attention in Iran” and that the applicant would not be perceived as an apostate given that the report it relied upon did not actually say that (and in fact suggested the contrary). See SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133 at [7]-[10], Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5]-[13], SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [18]-[30],

7. It should also be noted that the Tribunal, by categorising the applicant as a merely a person who lacked belief in Islam, misconstrued the claim as put by the applicant.  The applicant did not merely say that she was not a Muslim; rather, she said that she had ceased to believe in Islam.  This is an important distinction because para. [3.34] of the DFAT report indicates that Muslims who renounce Islam have contravened a sharia prohibition.  In the circumstances, the Tribunal misconstrued the applicant’s claim and in the circumstances engaged in jurisdictional error.

S395 (ground 1)

1. S395 was dealt with above in the context of the claims pertaining to the applicant’s membership of a particular social group, however, it is also reveals error in relation to how the Tribunal dealt with the apostasy claim.

2. The Tribunal found at [108] that it considered reliable evidence that the authorities do not normally interfere in the private sphere of citizens so long as Islamic rules and values are not publically challenged or violated, and that the applicant’s lack of belief in Islam was a private matter.

3. What is clear from the Tribunal’s findings is that, if the applicant publically communicated that she had ceased to believe in Islam, she faced persecution.  There can be no doubt that the Tribunal did not believe or find that one could publically go around Iran proclaiming that he or she has left Islam.

4. What is missing is any analysis as to what the applicant would do upon her return – i.e. would she tell anyone that she did not believe in Islam?  If not, why not?  This is particularly significant given that the applicant specifically claimed that she could not keep her religious view to herself upon her return.

5. The Tribunal either:

   a)Did not deal with the claim at all;

   b)Dealt with it by expecting her to be ‘discrete’ and not communicating her lack of belief publically (i.e. keep it private); or

   c)Assumed that she would not publically express her having left Islam (without also dealing with whether that was influenced by a fear of doing so or indeed her claim that she would do otherwise).

   In so doing, the Tribunal failed to ask itself the right question or address the claim before it.

Complementary protection (ground 1)

1. A similar S395 point is made in relation to how the Tribunal dealt with the complementary protection claims. The point insofar as concerns the particular social group and religion claims is made above and is repeated here. In relation to the political claim, the analysis is different compared to the Convention claim because s.91R(3) applied in relation to the Convention claim and the Tribunal accordingly disregarded her online activities in Australia. However, s.91R(3) does not apply to complementary protection, therefore it was incumbent on the Tribunal to deal with that claim. In this regard, the Tribunal accepted that the applicant had a Facebook page with comments that the Tribunal considered could lead to significant harm if known to the authorities (CB253[123], transcript 35, at 745). However, it considered that the page was not currently known to the authorities and that the applicant would remove all traces of the material before returning to Iran (CB253[123]). It went on to find that, in essence, there were ‘red lines’ in Iran which if crossed would lead to charging and sentencing, but it considered that the applicant would not cross the ‘red lines’ and she would continue to express her opinion as she had in the past (i.e. to friends and family, although presumably no longer on Facebook) which would not lead to significant harm. In this regard, the Tribunal clearly made a finding that she would in fact avoid harm in the future by deleting offending material before her return and by not crossing ‘red lines’. However, the obvious question it failed to address is whether she would be doing because of a fear of significant harm. If so, she nevertheless held a well-founded fear of significant harm even if she was successful in taking action to avoid the harm feared. By failing to ask this question, the Tribunal failed to ask itself the right question and was diverted from its statutory task.

Ground 6

1. This ground overlaps considerably with matters raised above, but it is useful to focus on the applicable principle separately.

2. If the Tribunal in fact dealt with the various claims by finding as a fact that the applicant would do what was necessary to not come to the attention of the authorities (i.e. adhere to the regime imposed on women, not communicate her having left Islam publically, remove ‘offending’ entries from her Facebook account, etc.), it was still obliged to ask itself whether there was a real chance that the applicant might nevertheless coming to the adverse attention of the authorities and be persecuted as a consequence.  For example:

   a)She might be considered to have infringed upon the rules applicable to women, despite attempting to comply (as had occurred in the past) and whether it would be treated more seriously because of her undertaking;

   b)Other users of Facebook might post offending material on her page before she had a chance to delete it; or

   c)Her abandonment of Islam might become known to the authorities even if she kept her views to herself.

3. To conclude that she could or avoid drawing the requisite adverse attention to herself is not sufficient to deal with the question the Tribunal had to ask itself.

Section 425 (Ground 7)

1. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (cited by the High Court approvingly in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [32]), the High Court stated:

   It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

2. In SZBEL (supra) at [35], the High Court held that s.425 of the Migration Act required the Tribunal to invite the applicant to give evidence and present argument in relation to the issues arising in relation to the decision under review. In particular, the High Court stated (at [35]):

   The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

3. Thus, if the Tribunal regarded a matter as an issue arising in the review in circumstances where it was not in issue before the delegate, the Tribunal was obligated to take steps to identify it to the applicant to enable the applicant to comprehend the issue and give evidence and present argument in relation to it.

4. In this case, the Tribunal:

   a)Doubted that the Iranian authorities could link the applicant’s posts on her Facebook account with her and a physical address in Tehran within a few weeks given that there were 4 million Iranians with Facebook pages; and

   b)Accordingly, the Tribunal concluded that a January 2013 from her sister about a visit by the Basij to the family home was not a “real event”.

5. Clearly it was an important matter, whereas the Tribunal did not identify the issue to the applicant so as to give her the opportunity to give evidence and present arguments at a hearing before it.

Minister’s Submissions

1. On 21 July 2014, the applicant filed an amended application seeking judicial review of the Tribunal’s decision.  That application identifies seven alleged jurisdictional errors.  Grounds 1, 2 and 4 to 6 make claims in respect of the Tribunal failing to consider variants of the applicant’s claims or asking itself the wrong questions.  Grounds 3 and 7 allege a failure to comply with certain statutory requirements.  Ground 4 also alleges that the Tribunal made a finding without evidence.  Each of these grounds may be dealt with relatively briefly.

Grounds 1, 2 and 4 to 6

1. Grounds 1, 2 and 4 to 6 are misconceived.  The Tribunal’s finding that the applicant held no subjective fears upon return to Iran were dispositive of all her claims.  As Heerey, Moore and Goldberg JJ explained in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (at [29]):

Whether the appellant had been obliged to pay a bribe to the LTTE in order to bring his children out of Jaffna, and whether that extortion constituted Convention-based persecution, was not a material question of fact which the Tribunal had to determine, having regard to the Tribunal's clear and explicit finding that:

... I do not accept that the Applicant genuinely fears that he will be persecuted for Convention reasons if he returns to Sri Lanka. I consider that his claimed fear of being persecuted is 'merely assumed' ...

Once this finding had been made, it was not necessary for the Tribunal to determine whether factual occurrences relied upon by the appellant provided an objective basis for the fear of persecution claimed by the appellant. Once the Tribunal rejected the claim that there was such a subjective fear, it was not necessary for the Tribunal to determine whether the non-existent fear was well-founded. This is so even if the approach of the Tribunal might be viewed as illogical to the extent that it relied upon the appellant's return to Sri Lanka without his son in circumstances where the well-founded fear was based, in part, on what might happen to his son in Sri Lanka.”

(Emphasis added)

1. In other words, the applicant’s claims failed at a threshold level.  As the Tribunal found she had no subjective fear, there was no requirement to then consider whether her fears were well-founded.  Accordingly, no mandatory considerations or issues could thereafter arise.

2. While this disposes of all aspects of ground 4, it should also be noted that in so far as ground 4 is based on a ‘no evidence’ submission, it is also wrong: the Tribunal’s finding was clearly open on the evidence it cited: see paragraph 3.36 of the DFAT report cited in footnote 13 of the Tribunal’s decision paragraphs 5.3, 7.1 and 9.3 of the Landinfo 2011 report cited in footnote 12 of the Tribunal’s decision.

Ground 3 – s.424A of the Migration Act

1. Ground 3 turns upon the proposition that the date of the applicant’s brother’s application for a protection visa was “information” for the purpose of s.424A of the Migration Act. Again, this ground is misconceived as the date of the applicant’s brother’s application is not objectively capable of undermining the applicant’s claims for protection.

2. In SZBYR (supra), the High Court (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) explained that (at [17]):

   17.    The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place.  The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act.  The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the tribunal’s particular reasoning on the facts of the case.  Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa.  The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.  When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

3. As the High Court makes clear, the question of whether the ‘information’ undermines an applicant’s claims is not determined by reference to the Tribunal’s reasons.  In this case, it is plain that the date of the applicant’s brother’s application does not, by that date, contain “a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations.”

Ground 7 – s.425 of the Act

1. Ground 7 alleges that the Tribunal failed to identify to the applicant as an issue in the review its concerns about whether the Iranian authorities could link the applicant’s Facebook pages to herself and her family (and the pleading also cites in part the reason why the Tribunal rejected this claim).  In SZBEL (supra) the High Court explained this type of error as follows (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ):

   43. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue.  And the tribunal did not identify these aspects of his account as important issues.  The tribunal did not challenge what the appellant said.  It did not say anything to him that would have revealed to him that these were live issues.  Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment.  Nothing the tribunal said or did added to the issues that arose on the review.

1. The High Court then later cautioned:

   47. First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.  That indication may be given in many ways.  It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.  The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor.  But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

   48. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:

   … the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

   Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

2. In this case the Tribunal plainly indicated during the hearing that the applicant’s claims with respect to her Facebook pages coming to the attention of the authorities in Iran was an issue in the review as follows:

   a)“Okay.  I don’t really understand why your family is so frightened about what you have said on your Facebook page when your brother is the one who’s been, according to you, so much more openly political” (T23.500);

   b)“Okay.  There is some evidence and you’re an IT person so you may be able to give an informed comment about this.  But there is information we have that many Iranians have moved over to posting on closed social networking platforms like Facebook because its perceived to offer a safer environment for expressing views among a limited audience of contacts, rather than publicly posting comments on websites or keeping a blog.  So it seems unlikely that the Iranian authorities would have become aware of what you have written on your Facebook page” (T24.522);

   c)“The Facebook page is not in your name.  How did, how could they have so quickly found out who you were and where your family lived?  Especially as there is more than one person with your name” (T34.709) – to which the applicant notably replied “Through my Facebook address or from my … email address.  I don’t know how the cyber police of Iran operates.” (T34.711 to 715);

   d)“You know I just wonder how they could have connected you know a person with your name, who could have been, could have been you or another person with your name, how they could have connected you in particular with your family’s address.  How would they know it was the [SZULI] who lived at that address?” (T34.716) – to which the applicant replied “I don’t know …” and voiced her suspicions about monitoring of email communications (T34.718);

   e)“Okay, so why, I mean your, the contents of your Facebook page are very offensive.  They’re offensive to the Iranian government.  Why, why do you think they haven’t come back to see your family again after that one visit?” (T34.721);

   f)“I’m just wondering why they would not have done that [gone back and put pressure on the applicant’s family] with your family.  You may not know but I’m asking you.” (T35.731);

   g)“Look if I think that the authorities in Iran know about the contents of your Facebook page, then I will have no doubt in finding you’re a refugee” (T35.745);

   h)“Just on the airport, the question of the airport, we know that some people are asked to open up their Facebook page when they go back into Iran now if they have a laptop with them.  If you, you did go back to Iran in the future, what would you do to ensure there was nothing for them to find on your Facebook, your computer?” (T37.775).

3. The Tribunal was not obliged to identify the exact reasons why it might reject the applicant’s claims. In light of the myriad of comments by the Tribunal set out above indicating that the Tribunal had concerns and had not necessarily accepted the applicant’s explanation, it was clear that this was an “issue” in the review for the purpose of s.425 of the Migration Act.

Consideration

Grounds 1, 2, 4, 5 and 6

1. I have considered in detail both the applicant’s and Minister’s submissions in respect of grounds 1, 2, 4, 5 and 6 of the application.  As these submissions are reproduced above, it is not necessary to restate them below.  As submitted by the Minister, these grouped grounds make various claims that the Tribunal failed to consider variants of the applicant’s claims or that the Tribunal asked itself the wrong questions.

2. As referred to above, the Full Court in Iyer (supra) stated at [29]:

   … Once the Tribunal rejected the claim that there was such a subjective fear, it was not necessary for the Tribunal to determine whether the non-existent fear was well-founded.

3. At [82] and [84] of the Decision Record (CB 248) the Tribunal stated:

   82.    The applicant claims to have been a critic of the Iranian regime on her own and others’ Facebook pages since late December 2012, expressing views she genuinely and strongly holds.

   …

   84.    However for the following reasons I consider her to have done this for the sole purpose of strengthening her claim to be in need of protection as a refugee.

4. As submitted by the Minister, this conclusion is supported by the fact the applicant has been in Australia since 2007.  No claims in respect of the Iranian regime were made by her until 2013.  Accordingly, the finding made by the Tribunal that she does not hold the views that she claimed to, was clearly open to it on the material before it and for the reasons it gave.

5. Contrary to the applicant’s submissions based on the authority of Applicant S395 (supra) that the Tribunal effectively expected the applicant to return to Iran and keep herself repressed, rather, what emerges from a fair reading of the Decision Record is that the Tribunal found she did not hold these views and had engaged in the conduct she had while in Australia for the purposes of strengthening her protection claims. Such conduct cannot be considered pursuant to s.91R(3) of the Migration Act (see Decision Record at [92]-[95]).

6. Accordingly, on the basis of the above findings, ground 1 cannot be sustained.

7. In respect of ground 2 of the application, having regard to the above findings and noting the Tribunal’s findings at [110]-[115] of the Decision Record, I am not satisfied this ground cannot be sustained.  The Tribunal’s findings in this respect were open to it on the material before it and for the reasons it gave.  The applicant’s submissions reveal no error on the part of the Tribunal.

8. In respect of ground 4 of the application, as submitted by the applicant, the Tribunal’s finding at [107] and [109] of the Decision Record was open to it on the material before it: see paragraph 3.36 of the DFAT Report (SCB 40) and paragraphs 5.3, 7.1 and 9.3 of the Landinfo Report (SCB 13, 15-17 and 20-21).  Accordingly, the assertion this finding was made on the basis of “no evidence” cannot be sustained.

9. Ground 4 of the application, on a fair reading, misconstrues the Tribunal’s finding.  Rather than what is claimed by the applicant, the Tribunal found, having regard to the applicant’s various claims at [112],that it considered “there is a real chance that she will be seriously harmed for perceived breaches of Islamic conduct, whether for a Convention reason or otherwise”.  The applicant’s reliance on the phrase “safe” or “safely” is based upon the applicant’s own assessment of her perceived ability to return to Iran safely, not the Tribunal’s.  I am satisfied the Tribunal’s findings were open to it on the material before it and for the reasons it gave.

10. Having regard to ground 6 of the application, this ground cannot be sustained. For the reasons above, but also for the reasons found at [100], [105], [108], [114] of the Decision Record, it is clear the Tribunal did in fact consider what might occur to the applicant after her return to Iran.  These findings, as required to be made, were open to the Tribunal on the material before it and for the reasons it gave.

11. In respect of the applicant’s submission relating to the failure of the Tribunal to ask itself the correct question in respect of complementary protection (see [62] above), this submission cannot be sustained.  The contention by the applicant that the Tribunal failed to address the question of whether she would delete all offensive material before returning to Iran is not the analysis to be undertaken by the Tribunal in respect of the complementary protection provisions, rather, only in respect of Convention grounds.  In any event, this issue does not arise in the complementary protection sense as the question the Tribunal must ask itself is whether there is a real risk an applicant will suffer significant harm in the reasonably foreseeable future if returned.  In this matter the Tribunal held that she did not in fact hold any of the claimed political views she did and, as a result, there was no real risk of significant harm (see Decision Record at [123]-[124]).

12. Consequently, for the reasons above, grounds 1, 2, 4, 5 and 6 cannot be sustained and should be dismissed.

Ground 3

1. This ground asserts, broadly, that the date of the grant of the applicant’s brother’s Protection visa application was “information” for the purpose of s.424A of the Migration Act, and the Tribunal erred by not complying with its obligations under either ss.424A or 424AA in respect of the “information”.

2. I have had regard to the submissions made in respect of this ground by both parties (see [46]-[49] and [75]-[77] above).  As noted by the High Court in SZBYR at [17] (see [76] above), the question of whether the “information undermines an applicant’s protection claims is not determined by reference to the Tribunal’s Decision Record.

3. In my view, there is no explanation proffered by the applicant as how the fact her brother lodged an earlier Protection visa application could amount to a rejection, denial or undermining of her claims.

4. Rather, in its “s.424A Letter” sent to the applicant on 4 March 2014 (CB 219-220), the Tribunal stated:

   The particulars of the information are:

   You have claimed to have been prompted to express your political opinions because your sister Parisa was ill-treated by the Iranian authorities.  The Tribunal has evidence that your brother, in his earlier application for a Protection visa, claimed that his own political activism was prompted by Parisa experiencing a similar, previous event.  Each of you chose to express your views online.  Neither of you claim to have been openly political before the respective incidents involving your sister.

   The Tribunal could infer from this that you have adopted a claim made by your brother.  Because this casts doubt on your credibility, this could lead the Tribunal to infer that you do not hold the political views you claim, that the Iranian authorities are unaware of the views you have expressed online and that you will ensure that remains the case.

5. Having regard to the contents of the above letter, read in conjunction with the Tribunal’s Decision Record, the Transcript and Court Book, I am not satisfied that the date of the applicant’s brother’s Protection visa grant, of itself, could in any way undermine the applicant’s own claims engaging the Tribunal’s obligations under s.424A or s424AA. I agree with the Minister’s submission that the manner in which the applicant has tried to substantiate this claim is by reference to the Decision Record, which is not the way in which a determination should be made for the purposes of such a claim.

6. This ground should be dismissed.

Ground 7

1. This ground asserts the Tribunal failed to identify to the applicant as an issue in the review its concerns about whether the Iranian authorities could link her Facebook pages to herself and/or her family and, as a result, breached s.425 of the Migration Act.

2. In SZBEL (supra), the High Court stated at [43]:

   43. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue.  And the tribunal did not identify these aspects of his account as important issues.  The tribunal did not challenge what the appellant said.  It did not say anything to him that would have revealed to him that these were live issues.  Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment.  Nothing the tribunal said or did added to the issues that arose on the review.

3. The High Court then stated at [47]-[48]:

   47. First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.  That indication may be given in many ways.  It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.  The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor.  But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

   48. Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:

   … the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

   Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

4. At [80] above, the Minister has set out relevant portions of the Transcript where it indicated to the applicant at the hearing that her claims in respect of her Facebook pages coming to the attention of Iranian authorities was in issue. Having regard to those extracts, I am satisfied the Tribunal had made clear that its concerns and not necessary acceptance of the applicant’s explanation were “issues” in the review for the purposes of s.425 of the Migration Act. The Tribunal was not under any obligation to identify the exact reasons why it might reject the applicant’s claims or to give the applicant a running commentary on what it thought about the evidence that was being given by the applicant.

5. Further, the applicant’s submission in respect of the email sent by the applicant’s sister to her (see Decision Record at [89]) cannot be sustained. The Tribunal did not find that the email was false or fraudulent, rather, it found that the event claimed to have occurred had not actually occurred. In any case, the Tribunal put the applicant on notice of its concerns in relation to this event in its s.424A Letter (see [97] above).

6. Accordingly, this ground cannot be sustained and should be dismissed.

Conclusion

1. For the above reasons, none of the pleaded grounds in the application, as amended, can be sustained.  Further, a fair reading of the evidence before the Court, particularly the Decision Record, reveals no error on the part of the Tribunal.

2. The application should be dismissed with the applicant ordered to pay the Minister’s costs.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  19 June 2015