SZUWJ v Minister for Immigration
[2015] FCCA 1508
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUWJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1508 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in Iran – political claim disbelieved and religious fear found not to be well-founded – whether the Tribunal erred by expecting the applicant to supress his atheism considered. |
| Legislation: Migration Act 1958 (Cth), s.414 |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v SZSCA [2014] HCA 45 NABD of 2002 v Minister for Immigration [2005] HCA 29 |
| Applicant: | SZUWJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2173 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie of Dobbie and Devine Immigration Lawyers |
| Solicitors for the Respondents: | Mr W Sharpe of Minter Ellison |
ORDERS
The application as amended on 26 November 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2173 of 2014
| SZUWJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal) decision. The decision was made on 8 July 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Iran and had made claims of political and religious persecution. The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran. He arrived in Australia with a student (Class TU 573) visa in July 2012, and lodged an application for a protection (Class XA) visa on 4 January 2013[1].
[1] Court Book (CB) 1
The applicant's claims in support of his application were set out in a statutory declaration[2]. The applicant claimed that he had been involved as a participant in anti-government protests and activities. He also described his family background and his growing scepticism about the Islamic regime which culminated in his atheism. In relation to the period that he attended junior high school, the applicant claimed[3]:
... I can clearly remember that I hated the religious lessons and on any occasion I would argue with my religious teachers about anything that would not sound logical or would be contrary to what they were teaching us.
[2] CB 55
[3] CB 58
During his high school years the applicant claimed that he had an argument with his mother, who he says agreed with him but “cried and begged me to follow what she says which was to basically shut up and just study and say yes to everything they said”[4]. Apparently in accordance with his mother's instructions the applicant claims that he “tried to hide my opinion and ideas at school since then and continue studying”[5].
[4] CB 59
[5] CB 59
The applicant was of the view, when he was at high school in Iran, that[6]:
…it was purely the Islamic system behind these people that is dictating its violent, prehistoric ideas to society, people and the future of Iran.
[6] CB60
In his second year of high school, the applicant concluded that the[7]:
[7] CB60
… root of misery of the people of Iran was Islam and the Islamic republic.
From 2007 the applicant claimed that he attended university in Tehran, and was exposed to reading “intellectual political books” which he says “proved religions to be without substance, and gave me an ideology about the religious governments which have terrible effects on people”[8]. Prior to the 2009 elections he says he discussed issues regarding the regime and the candidates with friends and classmates[9]. He did not vote in those elections and was not initially part of the demonstrations that followed the election – this was because he was not a supporter of the candidates but instead a supporter of “regime change”. However, he says a speech by the supreme leader on 19 June 2009 “changed everything”. From that time the applicant claimed that he started participating in the demonstrations[10]. Details of his claimed involvement in the demonstrations is at CB 63-66. These claims include that by the time of demonstrations on 20 March 2011[11].
[8] CB 60
[9] CB 60
[10] CB 62
[11] CB 66
While at university, the applicant read books which[12]:
…proved religions to be without substance, and gave me an ideology about the religious governments which have terrible effects on people.
[12] CB 60
In 2009, when the applicant was eligible to vote in the presidential elections, he chose not to, because he did not believe in a theocracy. Rather, he stated that he believed in a “democratic secular government in Iran”[13]. He claimed to be an atheist[14].
[13] CB 62
[14] CB 66
The applicant further claimed that his family had suffered hardship at the hands of the Iranian authorities, and which caused the applicant to[15]:
…blame the Islamic system and the Islamic republic of Iran for all the miseries that my mother, my brother and I had to go through just because of the illogical doctrine of thought which was imposed by the revolution on Iran and the Iranian miserable people.
[15] CB 57
The applicant claimed to have taken part in political protests, as part of the “Green Movement”[16]. He also claimed that a friend, Shohreh (who was a dual Iranian and American national) was arrested on 3 November 2012 and that she informed him that, under interrogation, she gave his name to the Iranian authorities[17]. He also claimed that other friends of his involved in protests were arrested by the Iranian authorities; his friend, Mahyar, was arrested around ten days after Shohreh, and that, three days after that, the applicant contacted a person called Reza, who informed him that another of the applicant’s friends, Kaveh, was arrested “three days ago”[18]. This version of events was later contradicted by the applicant during his hearing at the Tribunal[19].
[16] CB 62-66
[17] CB 64; CB 66-67
[18] CB 67
[19] CB 282-283 at [90]-[91]; CB 285-286 at [99]-[100]
The applicant also claimed that on 23 November 2012 (the applicant had entered Australia on 12 July 2012[20]) intelligence officers went to his father’s house in Iran and informed him that the applicant had to return to Iran to deal with his “security problems”[21].
[20] CB 49
[21] CB 9 at Q47; CB 67
On 13 May 2013, the applicant was interviewed by a delegate of the Minister. Although there is no transcript of that interview, the delegate’s decision record sets out the delegate’s summary of the interview[22]. The applicant is recorded as saying that his atheism did not cause him problems[23].
[22] CB 132-133
[23] CB 132
Delegate's decision
By decision dated 26 July 2013 the delegate refused to grant the applicant a protection visa[24]. The delegate's reasons for that decision record that at an interview with the applicant on 13 May 2013 the applicant said, when asked about the effect of his atheism[25]:
·... after high school he was not required to attend the mosque and that the regime was concerned with political activity not religious observance;
·He said that his atheism did not cause him problems; ...
[24] CB 115
[25] CB 132
Application for review
The applicant applied to the Tribunal for review of the delegate's decision[26]. The application for review identified a representative who was to act on the applicant's behalf for the purposes of the review[27].
[26] CB 141
[27] CB 143
On 22 January 2014 the Tribunal wrote to the applicant (through his representative) and invited the applicant to appear before the Tribunal on 21 February 2014 to give evidence and present arguments relating to the issues arising in the applicant's case[28].The applicant was also invited to provide written submissions setting out all claims made and maintained by the applicant[29].
[28] CB 157
[29] CB 155
On 19 February 2014 the applicant's representatives provided written submissions to the Tribunal[30]. In response to the statements at the delegate’s interview of 13 May 2013 attributed to the applicant by the delegate, the submissions made on the applicant's behalf stated[31]:
The applicant is an Atheist. He announced his beliefs in some occasions and he had been doubted as a genuine Muslim. The applicant shared his believes [sic] back in Iran and after his arrival to Australia. In the case of returns [sic] he has more conviction to take which as you are aware as an infidel or “Kafar” according to Islam which [sic] condemned to death punishment.
Although not practicing Islam may not cause serious harm in Iran but being identified as an atheist could become a serious base for someone like [the applicant’s] conviction which Islamic government wanted to use every excuse to victimize him as their enemy who is against them and does not recognizes [sic] their legitimacy, religion and government system. Latest DFAT's country information clearly confirm that someone like [the applicant] as an atheist would not have a chance to survive in Iran where Islamic power rules. This is particularly that he is now the person of interest in the eyes of the Iranian government forces and any excuse would extend his convictions if he remained alive there.
[30] CB 166
[31] CB 177
A footnote to this last paragraph set out an extract from DFAT Country Information Report – Iran (29 November 2013) (DFAT Report)[32]:
Atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views. Iran's constitution states that an individual cannot be persecuted simply because of their beliefs. Although DFAT is unaware of any recent charges of individuals for being atheists, it is legally possible for a person to be punished under the Penal Code for insulting the Prophet Muhammad or other prophets. Punishments range from lashes to the death penalty.
[32] CB 177
Tribunal hearing
The applicant appeared before the Tribunal with his representative on 21 February 2014[33].
[33] CB 203
On 21 February 2014, the Tribunal held a hearing with the applicant[34]. At the hearing, the following exchanges took place[35]:
[34] Annexure ‘A’ of the affidavit of Ma Rosario Xiella Devine, affirmed on 26 November 2014 and filed on the same day, at page 1
[35] Above 22 at pages 47-48
TRIBUNAL MEMBER
Q281You've said in the statement accompanying your original application that you feared your life would be in danger from the authorities due to your religious and political activities.
A Yes.
Q282Do you feel you're being persecuted for any other reason?
A Apart from - - -
Q283 Religious and political activity?
A No, nothing that I know.
Q284 And what religious activities were you referring to there?
AMy religion is [atheism], I'm an atheist. The case with atheist is as far as I - I'm sure you're well aware of promoting atheist in my country can end up with punishment from lashes to death penalty. I was promoting my beliefs for the sake of the friends that I had around me back in Iran, I was telling them what I - well, the beliefs that I had was somehow ..(not transcribable).. them through my point of view and through my point of belief as well. That's what I was doing. And now here I’m in Australia so I've got more freedom, people around me, my friends are mostly atheist and people that I see I talk freely about my beliefs, I promote my beliefs. Even I was asked through the Islamic Society of my university ...(not transcribable)... two types, one for Iranians which are Shi'a …(not transcribable)... general ...(not transcribable)... mostly ...(not transcribable)... I was asked by the Iranian come and join, I said, “I’m atheist, I respect what you believe in, but I don't like follow it and just leave me alone.”
Q285But were you actually involved - apart from telling people about your beliefs were you actually involved in any religious activities in Iran?
A Atheism doesn't have any religious ...(not transcribable)...
Q286That's exactly what I meant and you said you feared being persecuted due to religious activities but what were you referring to?
AWhen you talk about your beliefs especially atheism in Iran when you're telling people about it and you're moving people through your point of view which is 100 per cent against the common belief of the regime and common religion of the regime that's the promoting and that's the religious activity.
Q287So that's the only religious activity you were referring to, talking to people?
A Yes. Promoting my beliefs, yes.
On 14 March 2014, the applicant lodged a further submission to the Tribunal, providing further evidence in support of the claims for protection. In relation to the applicant being an atheist, the submission states[36]:
[The applicant’s] family are fully aware of [his] ideologies and know that considering his political activities, vocal personality and atheism ideologies, he would not last very long in the Iranian prisons.
and[37]:
[The applicant] also likes you to consider the new information about the fate of the Iranian Atheist from Mashhad, awaiting death sentence solely because of mockery of Prophet Mohammad. This is what [he] does here in a daily basis.
[36] CB 225
[37] CB 226
A letter from Mr Amin Shafaat accompanied that submission. In it, Mr Shafaat confirms that the applicant is known to him and that the applicant told him that he does not believe in any religion or god and that the applicant is in favour of atheism[38].
[38] CB 244
Tribunal decision
By decision dated 8 July 2014 the Tribunal affirmed the decision not to grant the applicant a protection visa.
Relevantly, the Tribunal accepted that the applicant considered himself to be an atheist[39]. However, the Tribunal also relied upon the DFAT Report in finding that “atheists are unlikely to come to the attention of the security authorities in Iran unless they seek to publicise their views”[40]. In relation to the applicant's activities arising from his atheist beliefs, the Tribunal found[41]:
While I accept that [the applicant] has no doubt talked to his friends about religion both in Iran and in Australia, having regard to the view I have formed of his credibility I do not accept that he has promoted atheism either in Iran or in Australia as he claimed at the hearing before me.
[39] CB 286, [102]
[40] CB 286, [102]
[41] CB 286, [102]
Further, the Tribunal did not accept that the applicant's friends had been arrested, and so did not accept that they had told the authorities that he was an atheist. The Tribunal also did not accept that there were Iranian spies at UNSW (as had been claimed), nor did it accept that the applicant had told members of the Islamic Society for Iranian Students at the university that he was an atheist. The Tribunal consequently did not accept that there was a real chance that the applicant had come, or will come, to the attention of the authorities as an atheist[42].
[42] CB 286, [102]
The present proceedings
These proceedings began with a judicial review application filed on 4 August 2014. The applicant now relies upon an amended application filed on 26 November 2014. That application contains four grounds:
1.The Tribunal misinterpreted the applicable law or misapplied the law to the facts
Particulars:
(A)The Applicant claimed that Australia had Protection obligations towards him on the basis of him being an atheist.
(i)The Tribunal accepted that the Applicant considered himself to be an atheist (at (102]). Although the Tribunal rejected the Applicant's claims that he had promoted atheism in Australia or Iran, the Tribunal went on to state:
...I accept the advice of the Australian Department of Foreign Affairs and Trade...that atheists are unlikely to come to the attention of the security authorities in Iran unless they seek to publicise their views... (at [102])
(ii)The Tribunal misinterpreted the applicable law, or misapplied the law to the facts, such that it failed to ask the correct question, because in determining whether the Applicant had a well-founded fear of persecution, it had to ask the following:
(a)Whether the Applicant would keep his atheist beliefs secret should he be returned to Iran; and
(b)Whether, if the Applicant would keep his atheist beliefs secret should he be returned to Iran, he would do so out of the fear of being harmed if he did express those beliefs.
(iii)By failing to ask those questions, the Tribunal committed jurisdictional error.
2. There is an apprehension of bias
Particulars:
(A)The Applicant claimed that Australia had Protection obligations towards him for reason of political opinion.
(i)The Applicant claimed that he had received a summons from the Revolutionary Court in Iran and a verdict from that court of a term of five years of imprisonment and seven years of exile. He provided copies of scans of certified copies that he received by email. The Tribunal stated at the hearing, at Q253-260 of the transcript:
Q253At the moment all that has been produced to the tribunal is scanned copies so I'm assuming you don't have the originals?
ANo, I don't have the original but - - -
Q254So where are the originals?
AWith my parents.
Q255 Because as your representative will have told you we can't put any weight on copies.
AYes, but they're certified copies.
Q256 Well, the originals are certified copies, these are copies of the certified copies so they could've been altered by anyone.
ASay it again?
Q257The original document which you say your parents had is a certified copy of the document the court has which is the actual original.
AOne of them is, one of them is not.
Q258But this - wait please. These are copies, scanned copies which is like a photocopy of the certified copy. So they're not, in fact, a certified copy at all, they're a copy of a certified copy.
AYes, now I get it, yes.
Q259So they could've been altered by anyone.
AThey could have but if you want to trust me I'm saying they're genuine. This matter ..(not transcribable) ..
Q260I'm sure they are, Mr [Applicant], but all I'm saying is I can't put a great deal of weight on a scanned copy. Sorry, you wanted to say something.
(ii) The following was also said by the Tribunal at Q354:
Q354 So the only way in which we can check whether a document like that, an official document, is genuine is by checking with the people who issued it and we can't do that with this sort of document because it would expose you to danger. The only way we could do that would be to, as I said earlier, would be to check with the Revolutionary Court so we can't do that. So what we're left with is it could be genuine but, as I say, I don't even have the original at the moment. I know things about the format of the document, I can look at that. We have advice about the format of summonses, but beyond that I'm left with whether I believe you. So it's not so much about the document itself. As I say, it could be genuine, it might not be. As I said, summonses can easily be obtained illegally in Iran. So I'm more concerned with the weight I can put on your evidence, what you're telling me and that will in turn affect the weight that I might give to the document but certainly if you can get the original document that would be useful, I could look at that.
(iii) By adopting the approach that it did, as set out above in either or both of the extracts of the transcript, there is an apprehension of bias because material corroborative of the Applicant's claims would not be given weight unless the Tribunal believed the Applicant. The Tribunal therefore committed jurisdictional error.
3. The decision of the Tribunal is illogical
Particulars:
(A)The particulars at Ground 2 above are repeated.
(i)The decision is illogical, given the Tribunal's approach to how it would treat material corroborative to the Applicant's claims. The Tribunal therefore committed jurisdictional error.
4.The Tribunal failed to conduct the review required by the Migration Act 1958
Particulars:
(A)The particulars at Ground 2 above are repeated.
(i)The Tribunal failed to conduct the review required by the Migration Act 1958, given the Tribunal's approach to how it would treat material corroborative to the Applicant's claims. The Tribunal therefore committed jurisdictional error.
Only the first ground was pressed.
In addition to the court book filed on 3 October 2014, I have before me as evidence the affidavit of Ma Rosario Xiella Devine made on 26 November 2014, to which is annexed a transcript of the hearing conducted by the Tribunal.
The applicant and the Minister both made oral and written submissions.
Consideration
Applicant’s contentions
The applicant contends that the Tribunal fell into the error identified by the High Court in Appellant S395/2002 v Minister for Immigration[43]. The applicant focuses on the Tribunal’s reasoning at [102] where the Tribunal said[44]:
I accept that [the applicant] considers himself to be an atheist as he stated in his original application for a protection visa but I accept the advice of the Australian Department of Foreign Affairs and Trade referred to by his representatives in their submission received by the Tribunal on 19 February 2014 that atheists are unlikely to come to the attention of the security authorities in Iran unless they seek to publicise their views.[45] While I accept that [the applicant] has no doubt talked to his friends about religion both in Iran and in Australia, having regard to the view I have formed of his credibility I do not accept that he has promoted atheism either in Iran or in Australia as he claimed at the hearing before me. Since for the reasons given above I do not accept that his friends Shohreh, Mahyar and Kaveh have been arrested in Iran as he has claimed I do not accept that they have told the Iranian authorities that he is an atheist. I do not accept on the evidence before me that there are Iranian spies at the University of New South Wales as claimed in the letter which [the applicant] produced from a friend in Australia nor do I accept, having regard to the view I have formed of his credibility, that he has told members of the Islamic Society for Iranian students at the university that he is an atheist. I do not accept that there is a real chance that [the applicant] has come or will come to the attention of the Iranian authorities as an atheist and, having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that he will be persecuted for reasons of his atheism if he returns to Iran now or in the reasonably foreseeable future.
[43] (2003) 216 CLR 473
[44] CB 286-287
[45] DFAT Country Information Report in relation to Iran, 29 November 2013, paragraph 3.48.
At [105] of its decision, in relation to complementary protection, the Tribunal states[46]:
Having regard to my findings of fact above, I do not accept that [the applicant] has ever come to the attention of the Iranian authorities as an anti-government activist or an atheist nor do I accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Iran, there is a real risk that he will come to the attention of the Iranian authorities an anti-government activist or an atheist.
[46] CB 287 at [105]
The applicant contends that the Tribunal fell into error by failing to ask why the applicant would live “discreetly”. It did not ask whether the applicant would live discreetly because that was the way in which he hoped to avoid persecution. The applicant contends that the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the applicant would live in a way that would not attract adverse attention. This proposition derives directly from the High Court’s judgment in S395.
The applicant contends that the Tribunal, once it accepted that the applicant was an atheist as claimed, and having accepted that he did speak to his friends in Iran and in Australia about religion, had to consider whether the applicant would keep his atheist beliefs secret should he be returned to Iran; and whether, if the applicant would keep his atheist beliefs secret should he be returned to Iran, he would do so out of the fear of being harmed if he did express those beliefs. This is in the context of the applicant having to suppress his views since high school. The applicant contends that the Tribunal was required to undertake those tasks before it could determine whether or not the applicant was a person to whom Australia had protection obligations. By failing to do so, the Tribunal committed jurisdictional error and has therefore not conducted the review required of it by s.414 of the Migration Act 1958 (Cth).
The Minister’s contentions
In S395 the Court was concerned with findings by the Tribunal with respect to a claim by the applicants that they would suffer harm if they were to return to Bangladesh, where that harm would arise from their homosexuality. The findings of the Tribunal in question were set out in the reasons of Gleeson CJ as follows[47]:
[The first appellant] and [the second appellant] did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. [The appellants] lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.
[47] at [9]
Of critical importance in S395 was the Tribunal's finding that, in effect, the applicants had modified their behaviour in order to avoid suffering harm. As set out in the applicant's outline of written submissions Gummow and Hayne JJ stated in S395 that “the central question in any particular case is whether there is a well founded fear of persecution”[48]. That question, their Honours said, required examination of how the particular applicant may be treated if he or she returns to the country of nationality. At [80] their Honours said:
It is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide that fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be 'discrete' about such matters is simply to use gentler terms to convey the same meaning.
[48] at [78]
The High Court recently discussed the reasoning in S395 in the matter of Minister for Immigration v SZSCA[49]. Their Honours, French CJ, Hayne Kiefel and Keane JJ said at [17]:
the essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there will be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. (emphasis added)
[49] [2014] HCA 45
The Minister submits that there was no error of that type in this matter. The Tribunal made no finding to the effect that the applicant would avoid persecution by reason of his atheist beliefs by acting discretely in relation to those views. The Tribunal simply found that although it believed he held atheist beliefs and had discussed religion with his friends, it did not accept that he had promoted those beliefs either in Iran or Australia. For that reason, and because it did not accept that his friends had told the authorities of the applicant's beliefs, that there are Iranian spies at the UNSW or that the applicant had told members of the Islamic society for students that he is an atheist, the Tribunal found that there was not a real chance of the applicant having come to the attention, or that he will come to the attention, of Iranian authorities as an atheist.
That the Tribunal did not make the same error as the Tribunal in S395 is said to be impliedly acknowledged by the applicant in proposing that the Tribunal was required, but failed, to ask the question, “whether the Applicant would keep his atheist beliefs secret should he be returned to Iran”[50].
[50] see the particulars to the first ground of review, [(A)(ii)(a)]; Outline of Submissions, [24]
The principles to be derived from S395 were also recently discussed by Perry J in the matter of SZTFI v Minister for Immigration[51]. Her Honour said that the decision in S395 stands for three propositions[52]:
a)first, the Tribunal will fall into error if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin[53];
b)secondly, if the Tribunal finds that a person will act in a way that will reduce the risk of persecution that would otherwise be well-founded, the Tribunal must consider why the person will act in that way and, in particular whether that conduct was influenced by the threat of harm[54];
c)thirdly, the Tribunal will fall into error, if having found that a person will act in a way that will reduce the risk of persecution, it does not then consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct reducing the risk, there is still a real risk that the person will be persecuted.
[51] [2015] FCA 322
[52] See also her Honour's discussion of how this approach is illustrated by the subsequent authorities of NABD of 2002 v Minister for Immigration [2005] HCA 29 and Minister for Immigration v SZSCA [2014] HCA 45: SZTFI at [73]-[78]
[53] at [68]
[54] at [69]
The Minister submits that the applicant in this matter proposes that the second question identified by her Honour arises independently of the Tribunal taking the step identified in the first proposition. He submits that the applicant seeks to turn a negative obligation – ie. that the Tribunal must not assess an applicant's claims in a way that asks whether the applicant may avoid harm in the future, for instance by acting discretely – into a positive obligation to ask the question of whether an applicant will modify his or her behaviour in the future.
It is not clear whether the applicant claims that the requirement to ask that question arises from the particular circumstances of the applicant's case and the claims made by him to the Tribunal or whether this question arises as a matter of law. If the former, it must be noted that the claims made to the Tribunal did not include any claim to the effect that he would keep his atheist beliefs secret: rather, the opposite is true. In that regard the Tribunal is not required to consider a claim that is not made or one that does not arise clearly in the evidence[55]. Further, whether the applicant would keep his beliefs secret was not, on the evidence before the Tribunal, a relevant determinant of whether the applicant would face persecution in Iran. The country information referred to by the Tribunal indicated that a person with atheist beliefs will not face persecution if they do not seek to publicise their views. It was therefore not to the point for the Tribunal to ask the question whether the applicant would keep his beliefs secret – clearly the Tribunal was satisfied that the applicant may discuss his beliefs with his circle of friends but that this would not be sufficient to put him at risk of persecution.
[55] Htun v Minister for Immigration (2001) 194 ALR 244
The Minister submits that if the applicant is arguing that the need to ask the specific question of whether the applicant will keep his atheist beliefs secret on return to Iran arises simply because of the findings that the applicant was an atheist and nothing more, as demonstrated above, this proposition is inconsistent with the authorities that have considered the effect of S395. The obligation upon the Tribunal is to consider whether there is a well-founded risk of persecution – in making this assessment the Tribunal cannot do so in a way that asks how a risk may be avoided. The question that the applicant would have the Tribunal ask, regarding why his atheist beliefs might be kept secret, would only have arisen if the Tribunal had approached the assessment of his claims on the basis that the applicant will avoid a risk of harm by modification of his or her behaviour[56].
[56] see SZTFI at [69], as above
The Minister submits that it is pertinent to refer to what was said by French J (as his Honour then was) in WAKZ v Minister for Immigration[57] in relation to an argument made on S395 grounds[58].
[57] [2005] FCA 1065
[58] at [57]
In that case his Honour said that where a tribunal considers, by reference to the previous activities of a person in the country which they have left, that the person was not a political dissenter at a level likely to attract persecution and that the person is unlikely to become a political dissenter upon return to the home country, it engages in an entirely legitimate exercise. Otherwise every applicant for a protection visa, however bland their history of activity in the country from which they have come, would have to be considered for a protection visa on the hypothesis that upon return such a person could become a political activist of a kind likely to be persecuted by the authorities of the home country.
Resolution
I prefer the submissions of the Minister to those of the applicant. The applicant’s claim faces several obstacles. The first is that there was a degree of overlap in the way he put his claims between his political claim and his religious claim. That is not surprising, given that Iran is a theocratic state with an established religion (Shia Islam) and that support for, or opposition against, the established political order is likely to have a religious element to it. In essence, the applicant claimed to be a political agitator. His religious views were advanced in order to help explain his alleged political activities. However, the Tribunal rejected the applicant’s claims of political agitation on credibility grounds. The Tribunal’s reasoning in that regard is not challenged. That reasoning by the Tribunal, which was critical to the outcome of the review, necessarily substantially confined the religious claim. The Tribunal did not believe and did not accept that the applicant was an agitator. Once that claimed public profile was removed from consideration it became open to the Tribunal to accept the applicant’s atheist belief without finding that he faced a well-founded fear of serious harm or a real risk of significant harm because of his belief.
The second problem confronting the applicant in this case is that he did not advance a clearly articulated claim that he would advance his atheist belief publicly. During argument at the trial before me, I invited the applicant’s representative to take me to any clear written or oral claim by the applicant of a public religious profile. There was no such claim. Neither, in my opinion, can a claim of religious agitation be derived from the available material. The truth is that the applicant only claimed a personal belief in atheism which he shared with a few friends. He had, he claimed, no religious public profile. The Tribunal had before it country information in the form of advice from the Australian Department of Foreign Affairs and Trade that the Iranian Constitution protects personal religious belief. It was open to the Tribunal to conclude that the applicant would not come to the adverse attention of the Iranian authorities because of his atheist beliefs. As I pointed out during oral argument, a person may face harm because of what they are: some immutable characteristic that they cannot be expected to conceal or deny. A person may also face a risk of harm because of what they do, which is a matter of conviction and choice. Such a person should not be expected to modify their behaviour in relation to a matter of conscience in order to avoid harm but if the person will not do anything that will give rise to a real risk of harm, Australia’s protection obligations are not enlivened.
This was emphasised by the Full Federal Court last year in Minister for Immigration v SZSWB[59] where the Full Court unanimously said at [32]-[33]:
This focus on the claim made by the visa applicant is important. As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE (No 2)) at [55]:
... Where the Tribunal fails to make a finding on a ‘substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.
[59] [2014] FCAFC 106
…
These observations were further explained in NABE (No 2) at [56]-[63].
In the present case, the immediate focus is not whether the Tribunal failed to consider a claim not expressly advanced (NABE (No 2) at [68]) but whether, as a matter of fact, the visa applicant said anything about taking up cigarette selling again in the event that he was returned to Iran. As the Full Court said in NABE (No 2) at [62], “[w]hatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made”. Moreover, the claim must emerge clearly from the materials: NABE (No 2) at [68]. Put another way, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made: see Appellant S395 at [1] per Gleeson CJ, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [31].
In that case I had found at first instance that the applicant had been frightened out of the cigarette selling trade in Iran by threats and that that modification of his behaviour needed to be considered by the Tribunal in determining the risk he faced should he return to Iran. However, at [43] the Full Federal Court found on appeal:
In our opinion, there was no basis in the present appeal for the conclusion of the primary judge that the Tribunal erred in failing to determine whether the visa applicant’s modified conduct was influenced by the threat of harm he faced. We accept the submission on behalf of the Minister that the visa applicant did not state that he would recommence his cigarette selling business if returned to Iran. It may be accepted that the visa applicant had not in the past resumed his cigarette selling business because of the threat of harm but that does not, in our opinion, show what the visa applicant would do if returned to Iran. There were no asserted or established facts on which to found the claim.
In my opinion, this case is not materially different. The applicant had a personal religious view and it may be accepted that he heeded the advice of his mother to keep that view to himself. It appeared to the Tribunal that that is what he did and that his behaviour did not change significantly when he came to Australia. It follows, and I find, that the Tribunal did not fall into error in determining that the applicant would not do anything on return to Iran that would bring him to the adverse attention of the Iranian authorities.
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 June 2015
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