SZVZL v Minister for Immigration

[2016] FCCA 2133

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2133

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in minimising the applicant’s political activity – whether the Tribunal failed to consider substantial, clearly articulated arguments – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476(1)

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45
NABD v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
VFAC v Minister of Immigration & Multicultural and Indigenous Affairs [2004] FCA 367

Applicant: SZVZL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2262 of 2015

Judgment of: Judge Smith

Hearing date: 26 July 2016

Date of Last Submission: 26 July 2016

Delivered at: Sydney

Delivered on: 26 July 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Counsel for the First Respondent: Mr P Knowles

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The applicant have leave to file the amended application within 24 hours.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2262 of 2015

SZVZL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 10 July 2015. The Tribunal affirmed a decision of a delegate of the Minister dated 22 July 2013 to refuse to grant the applicant a protection visa. Given the narrow scope of the issues on the review, it is only necessary to set out a very brief summary of the background claims and the Tribunal’s findings in order to understand the issues.

Background

1. The applicant is a citizen of Iran who arrived in Australia on 11 June 2012 and made an application for a protection visa on 4 December 2012.

2. The applicant made a number of claims through the process of his application, the primary one of which was that he had come to the attention of the Basij at a checkpoint and found to have been in the possession of anti-government documents which supported the Kurdistan Democratic Party (“KDP”) in the boot of his car and, subsequently, he had to flee Iran in order to escape persecution. Ultimately, the applicant’s claims were based upon a number of other matters, including interest in him as a result of a friend who had supplied him with the papers, his Kurdish ethnicity, membership of a particular social group of returned fail asylum seekers from the west and real or imputed political opinion.

3. In this last respect, the applicant gave evidence to the Tribunal that he had been involved in Australia in activities for pro-Kurdish organisations, including attending protests and the applicant said that he was in charge of ensuring water was available for the protestors and also that flags were available.

4. When the delegate of the Minister decided to refuse to grant the applicant a visa, the applicant applied to the Tribunal for review of that decision. The Tribunal made a decision on 11 December 2014 affirming that decision. However, by orders made in this Court on 24 March 2015 by consent, that decision was set aside and the matter was returned to the Tribunal for review according to law.

5. The applicant was again invited to attend a hearing before the Tribunal and the Tribunal handed down its decision on 10 July 2015. The Tribunal rejected the majority of the applicant’s claims on a factual basis, but in respect of his claims to have been involved in pro-Kurdish activities in Australia or at least activities for pro-Kurdish organisations in Australia, the Tribunal proceeded on the basis that they had, in fact, occurred. The critical paragraphs in this respect are [63] and [64] of the Tribunal’s reasons which I set out below:

   63.Next, at hearing the applicant said his other activities for pro-Kurdish organisations in Australia included attending protests (he thinks he may have attended more than 6 or 7 protests in Australia). The applicant also lodged photographic evidence of his attendance at (at least) one small protest near Sydney Town Hall. When repeatedly asked what he does for the pro-Kurdish groups in Australia, he said he was in charge of ensuring water was available for the protesters and he would ensure that flags in support were also available. That said, none of the country information considered indicated that persons who engaged in small protests in Australia (without more), had a real chance of persecution for that reason on return to Iran. Further, and though asked repeatedly at hearing and notwithstanding the applicant’s letters in support, the Tribunal is satisfied the applicant’s profile within any of the Kurdish groups in Australia with whom he may associate, is minimal. None of the country information in any of the sources cited herein has satisfied the Tribunal that a person with the applicant’s limited profile in Kurdish groups in Australia, would have a real chance of persecution for that reason on return to Iran.

   64.Next, the Tribunal understands that in Appellant S395/2002 by majority, the High Court held it is an error to fail to consider whether the need to act discretely to avoid a threat of serious harm constituted persecution. The unifying principle underlying the two joint majority judgments in S395 was that asylum seekers are not required, and nor can they be expected, to take reasonable steps to avoid persecutory harm. However, the present applicant has been in Australia for over three years, he had received secondary education in Iran (though he did not finish) and he had allegedly expressed his political opinion while engaged in military service. Yet the chief responsibility for the present applicant in Australia, for the Kurdish political organisations he associates with, are ensuring water and flags are available for protestors. The Tribunal understands such tasks are necessary, however, given the applicant appears to be capable of considerably more input, I am satisfied the reason he is not more engaged in the work is that he lacks any real interest. That is why his political engagement in Australia, is minimal. The Tribunal is satisfied he would not wish to continue to engage in such groups should he return to Iran. The Tribunal therefore does not accept the applicant would have to take any steps to avoid persecution in Iran. The Tribunal has seen (for instance), the letters in support for the applicant’s political work in Australia, however, I am not satisfied he has any political (or other) convictions, that would give rise to a real chance of persecution in Iran.

   (Citation omitted)

Consideration

1. By amended application (which was to be filed within 24 hours of today’s hearing but was not), the applicant argues that the Tribunal erred in the matter identified by the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (“S395”) by expecting the applicant to behave in a certain manner in order to avoid persecution upon return to Iran.

2. In that case, the essential reasoning was that the Tribunal had diverted itself from its task of determining whether there would 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: see Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 at [18].

3. The applicant argues that the error occurred in paragraph 64 of the Tribunal’s reasons where the Tribunal first referred to the decision in S395 and stated the unifying principle in the manner described by Weinberg J in VFAC v Minister of Immigration & Multicultural and Indigenous Affairs [2004] FCA 367 at [32]. Counsel for the applicant does not suggest that that summary of the effect of the majority judgments in S395 is inaccurate, but says that in order to evade that authority, the Tribunal erred by minimising or trivialising the applicant’s expression of political opinion in Australia based on his Kurdish ethnicity and, in doing so, effectively restrained the applicant’s free expressions of his political opinion in Iran, which he cannot do without the real risk of harm from the Iranian authorities.

4. The error is said to arise from the Tribunal’s statement that it was satisfied that the applicant “would not wish to continue to engage in such groups should he return to Iran.” As submitted for the Minister, that sentence and its surrounding paragraph must be considered in its context. The activities that the applicant claimed he was engaged in, in Australia, gave rise to two types of claims supporting his claim to be a refugee. The first is a claim which would arise if the authorities in Iran had become aware of his activities and persecuted him for that reason. That part of the claim was dealt with by the Tribunal in [63], in particular in the last sentence of it.

5. The second type of claim that could arise from the claimed activities was that the engagement in activities in Australia supported the existence of underlying political opinion which would likely to be expressed by engagement in similar activities upon return to Iran. That is the aspect of the claim that was dealt with in [64]. In my view, the Tribunal’s finding in [64] did not fall into the same error identified by either of the majority judgments in S395. Rather, like the Tribunal in NABD v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1142; [2005] HCA 29, it made a finding as to what would occur upon return to Iran, which was, according to the judgment of Gummow and Hayne JJ in S395, precisely the question that ought to be addressed in the circumstances.

6. I am not satisfied that the Tribunal did nothing more than impose an expectation as to what ought to be done on return to Iran and thereby failed to grapple with the issues of whether or not there was a well-founded fear of persecution for reason of political opinion in that country.

7. I note that, on one view, the wording of particulars (j) to particular (m) in ground two to the amended application, and particularly the words “in order to evade” could suggest an allegation of bad faith on the part of the Tribunal. However, counsel for the applicant indicated that no such allegation was made in this case and I do not deal with it for that reason.

8. Finally, the way in which the first ground in the amended application is framed is a failure to make a finding on a substantial, clearly articulated argument relying upon established facts. This is a ground relying upon the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 and the decision of the Full Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.

9. The difficulty with the ground however, is that, as is clear from not only from the application itself, but from [57] to [65] of the Tribunal’s reasons, the Tribunal dealt with every aspect of the claim arising from the apparent expression of political opinion by the applicant in Australia by his involvement in activities of pro-Kurdistan or pro-Kurdish organisations. For that reason, ground one is not made out.

Conclusion

1. The applicant has not established jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 18 August 2016