WET 052 v The Republic of Nauru
[2018] HCATrans 115
[2018] HCATrans 115
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S267 of 2017
B e t w e e n -
WET 052
Appellant
and
THE REPUBLIC OF NAURU
Respondent
GAGELER J
KEANE J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 15 JUNE 2018, AT 10.00 AM
Copyright in the High Court of Australia
MR S.A. BECKETT: If your Honours please, I appear with MR M.L.L. ALBERT for the appellant. (instructed by Banki Haddock Fiora)
MR N.M. WOOD: If it please the Court, I appear for the respondent. (instructed by Republic of Nauru)
GAGELER J: Mr Beckett, you need leave to amend your notice of appeal.
MR BECKETT: Yes.
GAGELER J: The view of the Court is that we will, for the moment at least, reserve on the scope of that leave. You should proceed directly to the merits of your two grounds of appeal and you can deal in reply, if necessary, with any discretionary argument that is pressed in relation to the second of those grounds.
MR BECKETT: Thank you, your Honour, it is understood. Your Honour, there are two errors on the proposed amended notice of appeal, ground 1 and ground 4. The first one is that the Tribunal erred by making an adverse credibility finding based on an asserted omission at the transfer interview when there was no logical and probative foundation for that finding where the finding was unreasonable.
Ground 4, or the second ground, is that the Tribunal erred by failing to consider the totality of the evidence in support of his claim as a failed asylum seeker, namely, that he had a political profile which would lead him to be a particular risk as a failed asylum seeker and, secondly, that he was at risk as a failed asylum seeker per se. I use the term “the particular claim” to refer to the 2009 demonstrations and I use “general claim” to refer to the claim which is based on being an asylum seeker per se.
Your Honours, there are four central propositions I wish to take your Honours to with respect to the first ground. The first is that the transfer interview was not a claim for refugee status and the interview did not purport to elicit a refugee claim. The second proposition is that the Tribunal made findings on the basis of the absence of three words and those words are “and drug addict” from a record which was unreliable, because it was another person’s written record of what an interpreter summarised to be the oral response of the appellant. Third, the questions asked of the appellant at the transfer interview did not call for an exhaustive answer, and finally, if the words were omitted, they were of minor importance, and I will expand on those. Your Honours have the written outline of oral submissions.
GAGELER J: You can take it that we have read thoroughly your written submissions.
MR BECKETT: Thank you, your Honour. I do not propose to go to them in any detail. What I do propose to do is to take your Honours to the evidence ‑ ‑ ‑
GAGELER J: Yes.
MR BECKETT: Because I think in fact in both grounds 1 ad 4 that the evidence will determine your Honours disposition ultimately. So, turning then to the transfer interview, which is at appeal book 127, your Honours will see that there is a preface at about point 25 on that page where the purpose of the interview is set out. It says:
The purpose of this interview is to gather information about you and your circumstances for the Government of Nauru. The information will be kept on file . . . While the main purpose of today’s interview is to collect background information on you and your circumstances –
So, I stress “background information on you and your circumstances”:
the information that you give will also be read and used by the people who will be assessing your claim for refugee status.
Two things immediately follow from that. First of all, this was not an application for refugee status and that other people would be considering such an application. It goes on to say that:
It may be compared against the information you give in your refugee application.
Now, it is important to set out that first of all, he is not asked to set out his refugee claims at that point or at any further point in the particular transfer interview form and I will come to some of the parts of that already. I note at the bottom of that particular page it says:
Do you agree to have this interview recorded?
It is ticked “Yes” so it appears to be the case that the interview was recorded. That will be relevant with respect to some of the later arguments. If I can take your Honours then to the remainder of the form – I need not dwell on pages 128 through to 136. They are largely biographical, residential, education and other related matters. Part C is the relevant part and I think your Honours will see that at Part C, the question is asked of the appellant:
Why did you leave your country of nationality -
Then at about 35 there are two subsequent questions asked. These are ones not on the form, but appear to have been asked of the appellant at the interview. The first was in relation to military service. It is not particularly relevant to this appeal. The second was, what do you think would happen to you if you were to return to Iran? Now, the answers that were provided with respect to question 1, particularly the first four paragraphs, focus on the father being an:
alcoholic and he does child abuse and he was abusing –
the appellant physically. That is, the focus there, in terms of his answer, is about domestic violence at home by the father of the appellant. If we then go to question 2, you will see that he is asked about his political involvement. He answers no to 2 but relevantly for ground 4 he answers in respect of the question: were you or any of your members involved in any activities or protests against the government, he answers yes. Further he says:
In 2009 I was involved in demonstrations, mainly in the evening – about the election.
There are other matters there that might touch upon, ultimately, a refugee application but not a refugee application itself – so “Political Involvement” at 2 and 3, “Social and Religious Groups” at 4, Police/Security/Intelligence Organisations at 5 and so forth.
At no stage in Part C is the applicant, or the appellant here, asked to state his refugee claims, and that is a matter of significance in terms of the ultimate finding with respect to the alleged omission in this particular part of the transfer interview.
I wish to contrast those questions, the one I have taken your Honours to in the transfer interview, with the much more specific questions that are asked in the refugee status determination application. If your Honours could go immediately to appeal book 150 through to 151, you will see it at about line 37 on 150 that the first relevant question that is asked in the prescribed form with respect to refugee claims is for the applicant to:
State your reasons for why you are claiming refugee status.
There are further questions there from 38 through to 44 which are directed specifically at eliciting each part of the refugee – each part of what might be a refugee claim, namely, whether the person has a subjective fear, whether they have a well‑founded fear and whether that fear of harm has a Convention nexus. Your Honours will see the country is specified at 38, the reason for leaving your home country. The same question that was asked at the transfer interview is asked in the context of the refugee claims, a distinction that we rely on. What does the applicant fear might happen on return, at question 40, and then over the page:
What harm, if any, have you experienced in your home country?
So, the basis for a well‑founded fear:
Who do you think may harm/mistreat you –
and so forth. What we say is that those are the types of questions that are aimed at eliciting all parts of a refugee claim and may be distinguished from the general inquiry made at the transfer interview stage that I took your Honours to before.
Now, I wanted to take your Honours to the pre‑hearing submissions in the Tribunal transcript. If I could invite your Honours to turn to appeal book 185, there are submissions made from paragraph 13 through to paragraph 21 about the nature of asylum seeker claims, particularly entry claims. If your Honours could go to paragraph 16 at about line 15 on appeal book 186, you will see that the appellant’s representatives said that the appellant:
did not understand which aspects of his experiences were legally relevant –
at the transfer interview. Then, we go to paragraph 17 the appellant instructs:
that when asked he gave a general overview of the events leading up to his departure from Iran, and due to his summarising all of the incidents in a few sentences, then expanding upon them subsequently at later stages of his RSD process.
Then, at paragraph 19, line 35 on appeal book 186, the appellant:
instructs that he was confused and under stress . . . He did not understand the purpose of the questions or that he was required to provide evidence or satisfy a burden of proof of his situation in Iran.
Further:
he did not comprehend that the interviewer may require more or substantiating information –
and that is continued on at 20 and particularly at 21. If your Honours then go to the transcript of the Tribunal hearing appeal book 263 at line 45, the apparent inconsistencies between the transfer interview and the later refugee status determination claim were put to the appellant by the Tribunal members. Over the page at line 16 of appeal book 264, he says that with respect to the matters preceding that:
Well, they didn’t ask and I wasn’t asked about – asked about those things. They asked me about the reasons for my fear and what the consequences would be and I said I have an alcoholic and drug addict father and that’s – that’s the reason I – I told.
That is his interpretation with respect to what happened at the transfer interview. Then at line 25, he says – at line 27 on appeal book 264:
That time they didn’t ask me those questions and I didn’t give any extra information. I said he was alcoholic and addicted. Maybe there was misinterpretation here, that they heard that he was addicted to alcohol.
So it is the same statement as he made at about line 18:
I said I have an alcoholic and drug addict father ‑
at 18. And then at 28:
I said he was alcoholic and addicted.
But importantly he raises the issue of misinterpretation there. That is to say, there was problem in the interview, in the transfer interview, I said not only that he was an alcoholic but he was drug addicted and there must have been a misinterpretation, because he says his memory is that that is what he said.
Now, if I take your Honours then back to the Tribunal’s decision, appeal book 9, paragraph 18 at about point 16 on appeal book 9, the Tribunal says:
First, in his transfer interview the applicant made no reference to drugs when he was explaining why it was that he left Iran.
And then at 19, that alleged failure is taken up by the Tribunal where it says:
In his RSD and supplementary statements as well as in the Tribunal hearing, however, the applicant introduces a new and significant reason for having left Iran.
The Tribunal then summarises at 20 those reasons which the applicant, here the appellant, said were why he did not say those words, “drug addict” during the transfer interview and there are a number of points there. They summarise, I think, quite fairly, what fell from the appellant particularly during the transfer interview that I took your Honours to shortly before. Now at 21 ‑ ‑ ‑
GAGELER J: Well, paragraph 20 refers to the hearing before the Tribunal.
MR BECKETT: Yes, it does.
GAGELER J: And you accept that as a fair summary?
MR BECKETT: Yes, I accept that as a fair summary. In fact, what is there is ably represented from both the pre‑hearing and the post‑hearing submissions and the Tribunal hearing itself, the interpretation – sorry, the transcript of that. At paragraph 21, the Tribunal says it:
has considered these responses but does not accept that they satisfactorily explain why so important an area of the applicant’s claims would not have been mentioned by him at the first opportunity ‑
So I pause there just to note that the Tribunal says it has considered these responses but it does not say whether it accepts them or not. Presumably, it has accepted them and then it has moved on to then say that, irrespective of those findings, they do not satisfactorily explain why an important area of the applicant’s claims would not have been mentioned by him at the first opportunity.
There is a circular argument in there that I will come to in due course but if I could just have your Honours note that this is a crucial passage in terms of the consideration of those matters at paragraph 20.
GAGELER J: I am sorry, the opening words at paragraph 21 are critical to your argument?
MR BECKETT: Yes, they are, yes. One of the grounds – I gave your Honours three grounds – it is relevant to the second of those grounds so I will come to it. I just wanted to cover at this stage the flow of the Tribunal’s decision. So, at the start of paragraph 21, your Honours will note that the word “claims” is used there, that is to say the claims with respect to the drug dealing – the foundation for his claim to asylum, to refugee status – is referred to there as a claim. Again, over the page at appeal book 10, at about line 15, the Tribunal says:
The Tribunal is not satisfied that there was anything which might have prevented him from touching on his current and far more extensive claims to fear harm -
So, what I will go on to develop is that there is an indication there that the Tribunal was expecting the appellant to have stated his claims to refugee status at the transfer interview.
GAGELER J: Is that also a fair summary of the claim that the appellant was pressing before the Tribunal?
MR BECKETT: Yes.
GAGELER J: Thank you.
MR BECKETT: Then at 22 – so, it is about line 22 on appeal book 10 – the Tribunal makes a finding:
that the applicant’s failure to make any reference to these centrally important aspects of his account at the first opportunity . . . casts strong doubt on the truth of his subsequent claims as to his father’s . . . involvement in drug taking and drug dealing.
So, that is the first of three matters that are considered to make the substantial credibility findings that I will come to in a moment.
Your Honours will see that at paragraph 23, at about line 25, in appeal book 10, there is the number, “Second”, and what then flows to paragraph 28 is a set of submissions which the Tribunal finds implausible and makes findings with respect to them. Then, over the page, appeal book 12, there is the third category of evidence of further matters relating to, this time, the distribution of drugs:
on an almost full‑time basis –
So there are the three elements there that go to the findings which your Honours will see at paragraphs 31 and 32. The first, of course, is the failure to mention drug addict and then what flows from that, in our submission, with respect to the other claims he made which were founded upon that claim that his father was a drug addict and a drug dealer. Paragraph 31, the Tribunal finds it:
is not satisfied as to the credibility of the applicant’s claim that his father is a drug addict or drug dealer, or that he forced the applicant to use drugs –
and so forth. So, there is the adverse finding of credibility that is referred to in the notice of appeal. I should also note that the Tribunal does not stop there. At the last sentence in paragraph 31 it says that:
The Tribunal finds that these claims –
including the claims that the father is a drug addict or drug dealer:
have been fabricated by the applicant to strengthen his case for protection.
Then he gives some qualitative basis to that at paragraph 32 and says:
As these are not minor or marginal aspects of the applicant’s account, but instead lie at the heart of his claim to fear harm in Iran, the Tribunal considers that these findings cast strong doubt over the credibility of his claims in general.
So there is some slippage in language I think there between credibility and casts strong doubt. On our submission, there is no difference. They are both adverse credibility findings. Then that takes me to the first of the propositions that I came to before, that the transfer interview was not a claim for refugee status and the interview did not elicit a refugee claim. Now, the start of that argument must be the Refugees Convention. Do your Honours have a copy of section 5?
GAGELER J: Do we need to go to that? We are rather familiar with the Act and the Convention.
MR BECKETT: Yes, your Honour, I understand. It is just that provision that I want to take you to and then ‑ ‑ ‑
GAGELER J: You can mention it.
MR BECKETT: Thank you, your Honour.
GAGELER J: We do not need to look at it.
MR BECKETT: All right. Just so I do not misstate what it says in the Act’s section, I am relying on section 5(1) and section 5(2) in the 2014 reprint at tab 4 of the bundle of authorities:
A person may apply to the Secretary to be recognised as a refugee.
Then at subsection (2):
The application must:
(a) be in the form prescribed by the Regulations –
In other words, the commencement of the refugee status determination process does not begin until an application has been lodged. It had not started when the transfer interview was conducted. The transfer interview was wholly separate and preceded by some weeks the application for refugee status. So, the submission is that the transfer interview is not a part of the refugee status determination application process, but of course it may contain certain statements in it that are relevant to ultimately that determination. That is why I think the transfer interview says, “What you say here in the transfer interview may well be considered when we come to determining your refugee status determination application”.
Your Honours should have a copy of US Court of Appeal Third Circuit decision called Balasubramanrim v I.N.S. 143 F.3d 157 (3rd Cir. 1998). The decision is at 157. If I could invite your Honours to go to page 162. This was a case where the appellant had arrived in the US and been interviewed at the airport on arrival by INS officers and they had taken down a handwritten note of his answers to those questions. A lot of those questions elicited information from him that he had suffered harm, persecution in Sri Lanka, particularly at the hands of the Tamil Tigers, and there were details of arrest and detention that were provided there.
There were three points upon which the court relied to overturn the decision of the Board of Immigration Appeals below which had determined that he was lacking in credit because there was a conflict between what he said at the entry interview or the airport interview and what he said later in his application for refugee status so it is squarely in the same neck of the woods, if you like.
GAGELER J: What are you getting out of it?
MR BECKETT: Yes, you will see at the second column in 162, the three grounds. It is the second ground I wanted to take you to:
the airport statement is not an application for asylum. The questions posed were not designed to elicit the details of an asylum claim, and it appears the airport examiner in this case had no interest in developing the details of a potential asylum claim.
Then, if your Honours go over the page, 163 at the bottom of the first column:
But in carefully scrutinizing Balasubramanrim’s initial statements at the airport, the Board treated that interview like an initial application for asylum.
That is the part that we rely on and we say that that is what has occurred here. The Tribunal has treated the transfer interview as an initial application for asylum. That is why I stressed when I was going through appeal book 137, Part C - that is the questions there with respect to why he had left Iran at that stage and in fact at no stage during the transfer interview was he asked to state his refugee claims.
So, if I take your Honours then back to appeal book 137, it is important to note two things from what occurred as a result of the questions that were asked there. As I said, in the answer to question 1, it was revealed that he had a well‑founded fear of harm from the domestic violence that had been imposed upon him by his father but it is clear of course that in that paragraph there is no Convention nexus and nor was he asked to provide a Convention nexus at that stage. On the other side of the equation at question number 3, he provided an answer, that he:
was involved demonstrations, mainly in the evening ‑ about the election.
So, that there was a Convention nexus there but he did not state and was not asked whether he had a well‑founded fear of returning to Iran based on his involvement in the 2009 demonstrations. The submission there, your Honours, is that this reinforces the first proposition that the transfer interview in the form used, the questions asked are not designed to elicit a refugee claim.
GAGELER J: So your first point comes down to saying that the application process had not started ‑ ‑ ‑
MR BECKETT: Yes.
GAGELER J: ‑ ‑ ‑ and the questions did not seek to elicit a refugee claim.
MR BECKETT: Yes.
GAGELER J: That is your first point.
MR BECKETT: Yes, that is my first point and so that is the foundation upon which the Tribunal – the Tribunal impliedly says that he failed to reveal his claims at the first instance, at the first available opportunity. Now, of course, that is an illogical proposition to have proffered because, of course, the refugee application process had not commenced.
EDELMAN J: The Tribunal never actually says he fails to reveal his claims. The Tribunal says that he fails to reveal these important matters. They are important factual matters – he mentions a lot of other factual issues but does not mention any of the drug‑related ones.
MR BECKETT: Yes, I accept that.
GAGELER J: So, have you finished the first point?
MR BECKETT: Yes, I have finished the first point, thank you, your Honour. The second point is the Tribunal made findings on the basis of the absence of three words “and drug addict” - and this may in part answer in greater detail Justice Edelman’s question - from a record that was unreliable because it was another person’s written record of what the interpreter summarised to be the oral response of the applicant.
GAGELER J: You are saying that those ‑ if those words were in the answer to question 1 at page 137 that everything would have been cleared up. The problem would not have arisen.
MR BECKETT: Well, this is relying on the way in which the Tribunal itself characterised the importance of those words.
KEANE J: It was not just because he did not say he was a drug addict, he did not say that he feared returning because he would be embroiled in criminal activity himself and it was likely to lead to his arrest and execution. Downplaying or, in fact, ignoring what he actually did not say, there is a limit to how much you can squeeze that lemon.
MR BECKETT: Just to reply to that, your Honour, if your Honours go back to appeal book 9 and it is put in terms of paragraph 18, the first sentence made no reference to drugs when he was explaining why it was he left Iran, no reference to drugs at all, that is how it is simply put. Then at 19 the applicant introduces a new and significant reason for having left Iran – that is, in his later application, this is that his father is not simply an alcoholic but is also a drug addict. The Tribunal has alighted on those words. The Tribunal has not said that he did not reveal the detailed nature of those.
KEANE J: You have to read what they say after that:
He has friends among officials in the police, the Basij and the Sepah who, like him . . . his father is also a dealer and supplies –
drugs to his friends and that the applicant would make deliveries. You just cannot ignore what the Tribunal has actually said.
MR BECKETT: The argument with response to that is that first of all has to been seen in the context – and I have taken your Honours to that to some degree – and that, in effect – and I will develop this in a moment – it squeezed the ability of this man to give that sort of detail.
EDELMAN J: But the Tribunal is not saying there were three words that were omitted. The Tribunal is saying there was nothing that was said in comparison with all of this detail.
MR BECKETT: Yes. I think I have taken your Honours to the two crucial points – just a reference to drugs at 18. The crucial point seems to be that second sentence in paragraph 19 and while I certainly see that additional detail has been provided in paragraph 19, it still seems to hang upon this failure to use those words, that is, that he was also a drug addict.
Clearly, the problem with this process is expecting him to give all that detail in what is not a refugee application – give all of that detail at the initial transfer interview and he is constrained as they go on to develop because he is not legally advised at that stage and, in fact, is not asked to be comprehensive in terms of his answers and he is not asked to clarify what I submit is the obvious question to ask – why was your father beating you up? Why was he physically abusive of you?
GAGELER J: Mr Beckett, he was asked what do you think would happen to you if you were to be returned to Iran? He was asked that squarely.
MR BECKETT: Yes, your Honour.
GAGELER J: His answer was that he feared domestic violence.
MR BECKETT: Yes. Yes, I accept that, your Honour, but that has not developed really - why the domestic violence? Is it simply a case that there is nothing more there, there is no further reason with respect to why that domestic violence has occurred or not.
GAGELER J: His current claim which he has claimed before the Tribunal, would you accept is fairly summarised in paragraph 21 of the Tribunal’s reasons, is quite a different fear of harm. That is the fundamental problem.
MR BECKETT: With respect, your Honour, what he feared precisely – what he stated that he feared at the transfer interview was the immediate harm – the domestic violence – that he received at home. It is only when you go through the entire detail of his claim that you see that that domestic violence – the violence that occurred at his home at the hands of his father – came about because the father was a drug dealer and was effectively press‑ganging his son into undertaking a number of nefarious criminal activities at his behest.
GAGELER J: So you have four points. We have distracted you.
MR BECKETT: Thank you, your Honour.
GAGELER J: Have you finished the second one?
MR BECKETT: So, I need to develop the second round a little bit more. The unreliability of the transfer interview was based on a number of matters. One of them was the mistranslation that I took your Honours to before. That is something that is remarked on, it is in the submissions, W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89 at paragraph [11] says that:
It should not be assumed that the translation is precise. It may be anticipated that the information recorded will be a brief summary of the applicant’s true case, and will often be given in words which the applicant would not have chosen were he able to speak English . . . It may be that the interpreter acts in the mistaken belief that a summary of the applicant’s case is sufficient.
Now, in that case the court went on to say that the Tribunal should have listened to the tape, the recording of the particular interview and formed its own opinion about that. The same thing applies here. There is no evidence at all that notwithstanding that the appellant had said there is mistranslation, that the Tribunal took the next step of then listening to that translation. Now it had, in fact, listened to the RSD application – my junior has a reference to that ‑ at appeal book 11, paragraph 28, but they did not in this particular case.
Now, one of the problems with that is that following the complaints about reliability at paragraph 20, the appellant – sorry, the Tribunal went on to say that it did not accept that they satisfactorily explain ‑ that is the matters at paragraph 20, why so important an area of the applicant’s claims would not have been mentioned by him at the first opportunity he was given to do so, when he was asked in the transfer interview why it was that he had left Iran.
So that appears to say, on one view of it, that they accepted it and if they did accept, for example, the fact that there was mistranslation, then it was not open for them to make the adverse credibility finding in the absence of having considered the recording of that transfer interview.
And if it was the opposite, if in fact the Tribunal rejected – and we do not know because the terms of that first sentence at paragraph 21 do not reveal what the Tribunal’s attitude was to it, but if it was the case that there was a claim of misinterpretation as there was, and the Tribunal rejected that, then one would expect to see that there was a reason for that rejecting that claim of misinterpretation. The only available inference for that is that they rejected the claim of misinterpretation on the basis that he had not put – he had omitted reference to drugs. So, it is not an entirely circular argument.
KEANE J: But if the problem is that there is a possibility – if there is a possibility of a misinterpretation in relation to the use of the words “alcohol and drugs and addicted” that has nothing to do with the full account of being embroiled in the drug distribution, exposing him to the risk of arrest and execution. There is no possibility that misinterpretation or mistranslation is the explanation for the absence of that account.
MR BECKETT: With respect, I read it differently to your Honour does and I reiterate that the strength of the appellant’s claim is that it effectively hangs upon the absence of those words and I go back to paragraphs 18 and 19. I take what your Honour says in terms of the development of the additional claims based upon drugs but it is that foundation proposition because once you have the foundation of the father being a drug addict and being involved in drug dealing then the development from that to take into account all of those matters that are set out at paragraph 19. Proposition 3, your Honours, is that the appellant was not called to give an exhaustive answer at the transfer interview stage.
GAGELER J: That is just a development of your proposition 1, is it not, which we understand.
MR BECKETT: Yes, thank you, your Honour. I might just for the record - there is reference to the same problem arising in the case of MZZJO v Minister for Immigration and Border Protection (2014) 239 FCAFC 80. It is in the joint bundle of authorities, paragraphs 56 and 57. The Full Court reiterated that:
some caution should be exercised by decision‑makers in relation to omissions by applicants of matters at entry interview.
Then they set out the reasons for that.
They –
that is the entry interviews:
are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust . . . It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them.
So, yes, your Honour, it is a development of that first proposition and there is ample authority about exercising caution with respect to judging that there are omissions in the entry interview when determining a refugee status application sometime later.
So, the fourth proposition, which is really an accretion of propositions 1, 2 and 3 is that all of the three preceding factors limited the ambit of the Tribunal’s finding on the absence of the words “with respect to drug addiction”. In the appellant’s submission, it was open to find either that there was in fact no omission at all or that if there was an omission, of a minor detail, what we say is a minor detail, in relation to reasons for his father’s violence towards him.
GAGELER J: I may have misunderstood what you have just said but you are saying it was open to the Tribunal to find that?
MR BECKETT: It was open ‑ that there was an omission of a minor detail; that is to say, it was open to the Tribunal to find in context, in the context of this not being a refugee application, in the context of it being short, 75 minutes, 55 questions through an interpreter, it preceded any refugee application, it was not structured to elicit a refugee claim and so forth ‑ ‑ ‑
GAGELER J: I understand that. How does the proposition that it was open to the Tribunal to make a different finding assist your case?
MR BECKETT: Well, what I am saying is that there is a very narrow ambit within which the Tribunal can make a finding with respect to those words. If it said, for example, we note that in the transfer interview you did not mention that your father was a drug addict, what is the significance of that? That can only be significant if the Tribunal was expecting the full claim to have been laid out before the interviewer at the transfer interview. If that is not the case, and we say it is not the case, it is a preliminary transfer general interview.
So, it could be noted by the Tribunal that there was a minor omission of ‑ that is, no reference to whether his father was a drug addict or not, but it could not be given the same significance that it was given by the Tribunal. Obviously, that was the basis upon which the Tribunal then went to make adverse findings as to his credibility.
Perhaps I could put it like this. The finding of adverse credibility and fabrication was not open on the evidence because the finding was logically and reasonably constrained by the fact that the transfer interview was not an initial refugee claim, its inherent unreliability as a summary record of what was interpreted and the appellant’s description of its unreliability and because it was not and was not meant to be exhaustive, so all of those factors bear upon the ambit of the factual finding that the Tribunal could ultimately make. We are saying the ambit is very confined because of those restrictions. My friend has said it is wide open.
GAGELER J: So, what I understand is your fourth point is really the conclusion that you say follows from the other three.
MR BECKETT: Yes, I accept that. It is much better put. Thank you, your Honour.
GAGELER J: I had misunderstood. I thought you had put it forward as a separate point.
MR BECKETT: No, it is entirely my fault. That is ground 1. Sorry, before I ‑ there is one reference I should take your Honours to with respect to ground 1. In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, the Full Court set out a number of useful authorities with respect to this case and summarised two decisions that I am sure the Court is aware of, Minister for Immigration and Citizenship v SZRKT and also SZLGP.
I wanted to come to the second of those two, SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, Justice Gordon’s decision, and she referred to a further US case called Stoyanov v INS (9th Cir 1999) 172 F 3d 731 at 736. This is in joint bundle of authorities at page 72 or paragraph 43 of CQG15. Her Honour said:
The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible” ‑
We say that because of that constraint, because of the constraint placed upon the Tribunal by those factors that I have taken the Court to in grounds 1 and 2, the only finding that could be made with respect to the omission of those words was that there was a minor inconsistency. That is the extent of what was available to the Tribunal and if your Honours are with me on that point, then it follows that there was error for the reasons set out by her Honour Justice Gordon in that decision.
Can I take your Honours to ground 4? This is the ground with respect to which the appellant says that the Tribunal failed to consider an integer of his claim, namely, that he was at risk on return to Iran as a failed asylum seeker because he had a political profile or would be imputed to have one. The first one, the political profile, is related to what I would call the particular claim which relies on the evidence that he was involved in demonstrations in 2009. The general claim, just to reiterate, is that he feared harm as a failed asylum seeker per se, that is, on the basis of imputed political opinion that arose from him attempting to return to Iran, having applied for asylum and been rejected in a western country.
I will not delay on the law. I think the parties are in agreement as to the relevant law and the application of Dranichnikov and NABE. The question is whether the claims were clearly articulated or clearly arose on the material before the decision‑maker.
The positions adopted by the parties are that the appellant says that he clearly expressed his claim that he had a well‑founded fear of persecution on return as a failed asylum seeker because of imputed political opinion and then he relies on the evidence at the transfer interview that he was involved in demonstrations against the 2009 election and also on the country information that reveals that he had a well‑founded fear as an asylum seeker per se.
So if I could just start with the evidence on the particular claim, the proposition is that in the transfer interview the appellant revealed that he had been involved in the 2009 demonstrations concerning the elections. I took your Honours to Part C, appeal book 137, where he states at line 45 that:
In 2009 I was involved in demonstrations, mainly in the evening – about the election.
Now, his claim then is put in terms of the statement attached to his refugee status determination application, page 165 of the appeal book. Your Honours will see at line 50 he states that he has a subjective fear, or that is:
I will be harmed for reason of:
the following matters, and at paragraph d your Honours will see:
My membership of the particular social group of failed asylum seekers returning from the West to Iran.
Now, it is instructive to see what the Secretary then did with respect to that particular claim. Starting at appeal book 170 and this, of course, the Secretary’s decision was before the Tribunal, your Honours will see the second dot point there about line 10 on appeal book 170 that he had advice, country advice about Iran with respect to:
Asylum seekers ‑ 2009 Election protest – Returnees ‑ Tehran Airport – Arrival procedures 19 August 2010 –
So, there was material which was relevant, we say, to the issue of asylum seekers returning to Iran and where they had been involved in 2009 protests. Then going ‑ ‑ ‑
EDELMAN J: But there is no mention of protests on page 165 in the claim for the reasons why he would be harmed. So, in his claim itself it never mentions protests.
MR BECKETT: Yes, that is correct, yes, and, in fact, I am happy to accept, as my friend points out, that there is no mention of 2009 elections after the transfer interview. So, it is there squarely at the transfer interview ‑ ‑ ‑
EDELMAN J: Which your first ground relies upon as being quite separate from the claim process.
MR BECKETT: That is correct, yes, but it is a document that was squarely before the Tribunal and, in fact, as your Honours will be aware from the Tribunal decision, a lot of import was placed by the Tribunal on that particular document. Page 178 of the appeal book sets out the Tribunal’s consideration – sorry, the Secretary’s consideration of his claims as a failed asylum seeker. In fact, it begins at 177 at line 20 and at line 45 the Secretary refers to:
Iranians with political profiles who have been subject to adverse treatment on their return to Iran, or who have been warned of potential adverse treatment in the event of their return.
GAGELER J: Why are you taking us to the Secretary’s decision?
MR BECKETT: Because I think the same mistake that was made by the Secretary, a failure to look at the 2009 elections, was made by the Secretary and then that was adopted by the Tribunal, not in terms but in effect the same reasoning is then ‑ ‑ ‑
GAGELER J: Did the appellant put to the Tribunal that the Secretary had misunderstood the claim?
MR BECKETT: No, the appellant did not. Just returning to those parts of the Secretary’s decision, just at line 26 you will see:
Although there is information which supports a person who sort asylum in another country may face difficulties, in all examples found it related to people who had partaking in activities either in Iran or outside Iran that were clear illustrations of anti‑government sentiment such as well covered demonstrations.
So, the reason I am taking your Honours to it is because of that sentence there and the connection made between failed asylum seekers and the possibility of harm that might flow as a result of involvement in those demonstrations.
So the reason I am taking your Honours to it is because of that sentence there and the connection made between failed asylum seekers and the possibility of harm that might flow as a result of involvement in those demonstrations. Then at line 30, the Secretary finds:
I find this would not raise his profile which would make him of interest.
That is a reference to – sorry, I withdraw that. I should read the sentence before. It reads – line 30, appeal book 178:
A person such as the Applicant, who was not politically active or had a profile, will not be a person of particular interest to the authorities in Iran. Even when I consider his claims cumulatively, I find this would not raise his profile which would make him of interest.
So, that nexus between political involvement, government demonstrations and fear of harm was acknowledged by the Secretary. But the Secretary did not take into account, certainly did not mention the 2009 demonstration. Then, in the pre‑hearing submissions, if your Honours could go to appeal book 193, you will see at line 10, the appellant’s legal advisers put his claim, with respect to this ground, slightly differently:
Our client fears he will be imputed with political opinion contrary to the Iranian government both because he sought asylum in a non‑Muslim country and because of his conversion to the Christian faith.
So, there is, apart from putting the Christian faith to one side, it is rather than a social group, imputed political opinion is relied on for the application for review to the Tribunal.
I need not take the Court to it, but at appeal book 210 to 216, the legal representatives set out the country information which addressed evidence of those with political profiles returning to Iran being persecuted on return. In fact, if I can take your Honours to just one of those instances - appeal book 210, paragraph 116, that quote which appears at about line 38 through to appeal book 211, line 10. I am going to the end of the page there:
Returnees will therefore be held for a few days until it is clear to the police, that they have not been involved in political activity. If the police can prove that the person was not active and has not done or said anything that could damage the reputation of the Islamic Republic, then they are released.
But:
If the person was either politically active in Iran before leaving, or has been active abroad, they must be tried and receive a punishment appropriate to their activities.
Then going to the transcript of the hearing at page 273, Tribunal Member Zelinka asks the appellant a number of questions as to why he fears – or whether he fears harm because he is a failed asylum seeker from a western country and he confirms that he does have that fear, over the page at 274. Then it is asked again whether:
you fear you would be harmed because you had – simply because you had asked for asylum or refugee status here in Nauru.
He says yes. So at 274, line 50, over to 275, 15, he is asked:
Maybe I can just get away with it –
Sorry, I withdraw that:
he might be able to put together a series of charges against me –
That is what the appellant says.
GAGELER J: Sorry, where are you reading from?
MR BECKETT: Yes. Sorry. I am reading from appeal book 274 at about line 50. The context for that is he is asked at about line 35 of that page about persons with:
serious political background as an activist, or a dissident or a critic . . . if somebody has just claimed asylum overseas and nothing more, that person is unlikely to suffer any particular harm.
So the issue about the nexus between political involvement and fearing harm as a failed asylum seeker is put to him by the Tribunal and he replies, at the bottom of 274, that he thinks his father might put some sort of propositions or suggestions to the regime with respect to that and then he adds on the conversion to Christianity. I just wanted to point out there and to be – that there is no mention at that stage of the 2009 elections. I accept that that is the state of the evidence as to what occurred at the hearing.
Then to return to the Tribunal’s decision, page 17 of the appeal book, your Honours. So the Tribunal, from paragraph 49 about line 15 on appeal book 17, the Tribunal clearly contemplates that the claim to harm is based on him having sought asylum in another country. And then at 50:
the Tribunal accepts that some failed asylum seekers who possess certain profiles may be harmed on return to Iran. Such profiles include student activists, Arab political activists, criminals and asylum seekers ‑
So it is a non‑exclusive list as to who might cause that particular harm. Now, the relevance of that is that the issue, the nexus between political involvement and this claim, that is claim of harm as a failed asylum seeker, is well understood by the Tribunal because they are looking for it. It is clear that in that paragraph they are looking for some substance for a basis upon which to say, this man, the applicant, had some political involvement and that if he did, then it is likely that that would increase his risk of harm on return to Iran. So they were fully cognisant of that particular fact.
It becomes then a relatively simple jump to go to the next stage, which is to say that they had the material at the transfer interview with respect to the 2009 demonstrations. They were looking for a basis upon which to consider whether this man’s claim for asylum based on being a failed asylum seeker was relevant to that, and they did not take it into account.
Those are the two paragraphs where we say the claim was well articulated, that is, harm as a failed asylum seeker returning to a country which was likely to be exacerbated by any form of political involvement. That nexus – the exacerbation nexus, if I can call it that – was considered by the Tribunal at paragraph 50. They had before them information with respect to the applicant in the transfer interview, that he had been involved in political involvement and they did not join those two dots.
This is not one of those cases where the Tribunal has to reconstruct the claim, has to take disparate bits of evidence in the claim and try and make up the claim for the appellant. It was squarely before them. That is to say, it was in the transfer interview, a transfer interview that they had placed considerable emphasis on with respect to ground number 1, yet here it seems to have not been considered.
GAGELER J: Does that complete your submission on ground 4?
MR BECKETT: Yes. That is the particular claim. I just wanted to say something about the general claim, if I could. Staying on appeal book 17, your Honours will note at paragraph 50, the last line of that paragraph reads:
There is, however, nothing in the information to indicate that the act of applying for asylum in itself attracts harm or that those who without these identified profiles are at risk of harm.
Your Honours, I have set out with Mr Albert at paragraph 55 of our submissions all the examples of where there was country information which indicated that people who were returning to Iran as failed asylum seekers without a political profile were the subject of persecution. I will take you to two quick examples and then I can conclude. Appeal book 211, paragraph 118b, at about line 35:
Amnesty International have also recorded the experiences of [a certain person] an Iranian Kurd who arrived in Norway as an unaccompanied minor. After [his] claim was rejected, he was deported from Norway to Iran; upon his return, ‘he was reportedly arrested’.
Unaccompanied minor; there is no indication there of any political involvement.
If your Honours go over the page at appeal book 212, paragraph 119, the quote that starts at about line 20 on that page, there are two people there who were the subject of persecution in Iran returning there who did not have political profiles. The first, a young male Iranian failed asylum seeker:
arrested immediately upon his arrival and subjected to ill‑treatment in prison . . . In another case, a female asylum seeker was arrested after her deportation to Iran although she had no political profile.
So that is the examples. The further examples are at paragraph 55 of the appellant’s submissions, for your Honours’ reference. So, the simple point made is that a clearly articulated claim, namely to have a well‑founded fear of harm on the basis of being a failed asylum seeker per se and the evidence in support of that was not considered. That is ground 4, Part B.
GAGELER J: The evidence being the material that appears at pages 210 to where? I think you were taking us to parts of the submission made on behalf of the appellant to the Tribunal.
MR BECKETT: That is right. All of the examples – I have excerpted them in paragraph 55 – they all appear at appeal book 211 through to 214 and the relevant ‑ ‑ ‑
GAGELER J: Thank you.
EDELMAN J: Paragraphs 118b through to 125.
MR BECKETT: Yes, thank you, your Honour. If there is nothing more, that finishes the submissions.
GAGELER J: Thank you very much. Mr Wood.
MR WOOD: Thank you, your Honours. Could I start with ground 1, and I will hope to be reasonably brief. Can I ask the Court to look at paragraphs 21 and 22 of the Tribunal’s decision? The key, in my submission, to understanding the Tribunal’s reasoning – and I think this was touched on in a question by Justice Edelman to my friend – is in the middle of paragraph 21 the Tribunal says towards the right‑hand side of the page:
The Tribunal is not satisfied that there was anything which might have prevented him from touching on his current and far more extensive claims to fear harm –
And then there is a hyphen and a reference – and a summary which was accepted by my opponents as being a fair summary. Nothing in there refers to the simple fact of the appellant’s father being a drug addict as well as being an alcohol addict, which might be thought of as being a drug in any event.
The claim to fear harm logically had to have other elements, and it was, as Justice Keane’s questions to my friend exposed, his claim to have become embroiled against his will in drug use and in particular drug dealing, so he claimed to fear harm from the Iranian authorities. So when the Tribunal says in paragraph 22:
The Tribunal finds the applicant’s failure to make any reference to these centrally important aspects of his account . . . casts strong doubt on the truth of his subsequent claims ‑
That is the critical analysis. The matters that are summarised in the second half of paragraph 21 are “the centrally important aspects of his account” and they were the matters plainly not mentioned and never suggested by the appellant to the Tribunal or to the court, to have been the product of any issue with misinterpretation.
The appellant had very tentatively suggested that there might have been a misinterpretation issue about one discrete point which was whether or not in reference to addiction that encompassed both alcohol and drugs in relation to his father.
It was tentative. In fact, in the same part of the transcript before the Tribunal, the appellant also accepted that he could not remember what had been said. It was certainly not – so the relevant page of the appeal book is page 264 where at line 28 the appellant said to an interpreter:
I said he was alcoholic and addicted. Maybe there was misinterpretation here, that they heard that he was addicted to alcohol.
But then at line 38:
I can’t recollect ‑
And then another reference, at line 35:
I can’t remember what they asked and what I said.
So it was far from a definitive claim even for there to have been a misinterpretation about the highly discrete aspect.
Now, we have framed the question in our oral outline as being, could a logical and rational tribunal have attributed some weight or some significance to the appellant’s failure to mention the centrally important matters referred to in paragraph 21 at the transfer interview, about which there is no dispute that he did not.
Some weight, not determinative, not decisive, because clearly it was only one of a cumulative set of concerns the Tribunal had, and we say the answer to that is clearly yes in the circumstances that we have set out in paragraph 4 of the oral outline.
I do not think I need to deal laboriously with the evidence. It is relatively confined, pages 127 and 137 of the appeal book. In particular, what the appellant was told as evidenced on page 127 of the appeal book to the effect that the information he gave may be used in assessing his claims and may be compared to what he says later on. The appellant said he understood, he consented and he consented to being recorded.
The fact that multiple questions were asked, a reasonably detailed explanation was given for why he feared harm for his father, which had nothing to do with the claims subsequently developed, and a question directed to what would happen to him in Iran and no reference to any fear of harm from the authorities, for example, in connection with his broader claims.
They were open and general questions. This is not a case where the Tribunal has put the appellant down solely on the basis of omissions, if you like, but in circumstances where, immediately thereafter, the appellant starts developing a quite different story is, in my submission, quite clearly rationally open for a Tribunal to say, I am concerned – I have some concern that these quite central aspects of your claim now were not touched on at all when you were asked open questions to which these responses could have been given if they were true.
Can I just say something briefly about Balasubramanrim? That case exposes an important point which is that all of this stuff is fact‑dependent. There is no universal proposition that transfer interviews always can be, or never can be, used or can always be used in a particular way or can never be used in a particular way. It may very well depend on exactly what was said by the interviewer and what was said by the interviewee and all of the surrounding circumstances.
The critical feature of the United States case is, in fact, the very passage that my friend took the Court to. So, on the right‑hand column, at the bottom of page 162, the Court said this:
the airport statement is not an application for asylum. The questions posed were not designed to elicit the details of an asylum claim, and it appears the airport examiner in this case had no interest in developing the details of a potential asylum claim. For example, at one point, the following exchange took place:
(17) Q. What would happen if you returned to Sri Lanka?
A. The (sic) will kill me.
But remarkably there was no follow up question. The examiner did not inquire who would kill [the claimaint] or why.
It is quite different from this case where there were follow‑up questions. The appellant did explain why and gave no account whatsoever of the claims that later assumed central significance.
Plainly, it was not just the omission of three words which was the source of the Tribunal’s concern. And, in fact, the fairer reading is the one that I have invited the Court to draw, based on the link between paragraphs 21 and 22. Briefly, before moving on to ground 4, there are a couple of unfortunate wrinkles about facts that have emerged. It is submitted by the appellant that both the recording of the transfer interview was not quote “before the Tribunal” – whatever that means – and it is also submitted that the Tribunal did not listen to it.
The evidence on those two factual points is equivocal. I do not suggest the evidence clearly suggests that it did. But, it certainly does not clearly suggest that it did not. And, no assertions of these kinds were made in the Supreme Court below. It was not suggested that the recording was not before. It was not suggested that the recording was not listened to. In fact, the evidence, at page 264, tends to suggest, in my submission, that it was. If the Court can turn up page 264 of the appeal book – again, this only relates to the discrete point about the father’s addiction, anyway, so it is really not of profound importance to the disposition of the appeal but I just wanted to say this on the record. Page 264, there is the reference at line 28:
Maybe there was misinterpretation –
Then, at line 34, the appellant says:
If they had asked me I would have definitely told them. I can’t remember what they asked and what I said.
Mr Mullin, for the Tribunal, said:
Well, I’m saying what’s recorded is what happened.
Then, there is the reference again to:
I can’t recollect –
Turning the page to 265, at line 12, the appellant again says:
I had mentioned all of this in my first interview.
And, Mr Mullin says:
Well, you didn’t mention it at all in your first interview, I’m afraid.
Now, it is entirely consistent with those statements to suggest that the confidence with which Mr Mullin was expressing those points was that he had listened to it. It is true that there is not the express reference in the Tribunal’s reasons to the Tribunal having listened to the recording, as there is with the recording of the interview with the Secretary. This is a fairness point. If these factual assertions had been made below, they could have been met by evidence, but they were not.
In fact – and I will just give your Honours quickly the references without walking your Honours through all the pages – we submit that the appellant accepted both before the Tribunal and the Supreme Court – perhaps not with respect to the addiction point but with respect to every other element of the elaborated centrally important claims – that they were not advanced in the transfer interview.
We have given the references, I think, in the oral outline; I might not need to do that again. They are in the third dot point at paragraph 5 of our oral outline is where we find support for that submission. Unless there are any questions on ground 1, can I deal with ground 4?
GAGELER J: Yes.
MR WOOD: The appellant’s written reply submission, which I think was maintained orally, but in the written reply it is advanced at paragraph 9, is, in my submission, a little acute. The suggestion is, in effect, that because both grounds of appeal turn on the transfer interview, something mentioned and not later referred to, the protest, ground 4, something not mentioned, the elaborated claim. The appellant says, “This appeal therefore turns on whether the transfer interview record is sacrosanct or not. If it is not” the appellant wins on ground 1. If it is, they win on ground 4. It is not quite that simple, in my submission, your Honour.
What the appellant’s submissions belied is the significance given by the appellant to information. As relevant to ground 1, the appellant plainly attributed great significance after the transfer interview to the story about the drug trafficking and the Iranian authorities and so forth. Given the apparently central significance of that claim, that is why it was plainly rational to the Tribunal to say, it is curious that something that is so central to your claim, on your now account, was not mentioned before. That is ground 1.
With respect to the political protest, what matters is that the appellant never gave significance to the factual answer he gave to a factual question he was asked – not during the entry interview, not at any other stage did the appellant ever expressly or impliedly suggest that his minimally explained involvement in a demonstration years earlier was, or contributed to, a risk of harm.
It is significant, in my submission, that – and my friends I think accept that the only reference to this event is in the transfer interview itself, and even there in the transfer interview it is not mentioned when the appellant is asked the open question, “Why did you leave your country? What do you think may happen to you on your return?” It only comes up when prodded by the form when apparently the interviewer in accordance with the form says, “Have you been involved in protests?” Answer, “Yes”. Factual answer given, but never sought to make anything of that fact.
GAGELER J: To be fair, it is not an independent claim. The concern here is with a failed asylum seeker who has a political profile.
MR WOOD: My submission is that it was never claimed that as a failed asylum seeker with a profile he faced harm. What was claimed was that, for a period anyway, that as a failed asylum seeker, per se risk, and then I think more acutely – and I will take the Court to the pages of the evidence – a failed asylum seeker plus some aggravating activity or circumstances – his activity on Facebook and conversion and so forth, it was the cumulative culmination of those things which gave rise to the risk of harm. But it was never said, “Failed asylum seeker plus I was in that protest in 2009”.
GAGELER J: I follow that. You are saying in everything that succeeded this document there was ‑ ‑ ‑
MR WOOD: And the document itself.
GAGELER J: All I am putting to you is, in relation to the document itself, before he even makes an application for refugee status, it is a bit tough to expect him to say that he is going to fear harm as a failed asylum seeker.
MR WOOD: Absolutely, and that is not part of my – that is not a critical part of my case, your Honour.
GAGELER J: Is it any part of your case, Mr Wood?
MR WOOD: No, it is not. I say that he did not say it then, that is part of my case, but it is not part of my case that he was to be expected to have done so. What does matter – and my friends focus on, for example, the Secretary’s decision and I think ‑ I cannot remember who asked my friend; I think it was your Honour Justice Gageler ‑ ‑ ‑
GAGELER J: You might be right.
MR WOOD: ‑ ‑ ‑ was there any criticism, and the answer is no. So it matters a great deal more, if I can put it that way, what happens later, and what happens later is silence, not just in response to the Secretary’s decision which made no reference, but most critically silence when the very country information indicating that certain people with certain profiles might be at risk of harm was put to him in the Tribunal hearing. No indication, when the very information was put, that he fit within those profiles. Can I take the Court to that? It is at page 274 of the appeal book.
So, at page 274 after the passages that I think my friend took the Court to about the appellant confirming that he did have a subjective fear of harm as a failed asylum seeker, Mr Mullin at line 19 commences the topic and says:
Well, the tribunal has information which touches on the question of what happens to people who go back to Iran after they’ve unsuccessfully sought asylum overseas –
Then jumping the rest of that paragraph, at line 28:
Putting it together . . . and taking into account what your adviser has said, I think it would be possible to conclude that people who return to Iran in these circumstances who are also people who are dissidents, active dissidents, critics of the regime, people who have done something to bring . . . Iran’s human rights record to public attention. Those people will be in trouble when they get back.
And then it continues in the next paragraph:
But if that process doesn’t uncover any, let’s say, serious political background –
so we are starting to look at qualifiers. This is important to our response. Just to jump ahead. Our position is not that the Tribunal thought that any involvement of any kind in any political demonstration at any point in time meant that you are in a risk profile where you are at real chance of harm.
It is already in the terms of the information that is putting back to the appellant at the hearing, qualifications on it ‑ I am talking about serious political background, to use the Tribunal’s word, but relevantly to this part of my argument, all of that information is put, the appellant says:
Yes. I understand and can I respond?
MR MULLIN: Yes, please.
The response then has nothing to do with his involvement in any protest in 2009. The response is fairly connected to the claims he had elaborated about the drug dealing, his father and so forth. So when presented with the very opportunity to say, no, I do have that political profile; for example, I was in this protest, he does not.
So we say that this represents the very kind of case where Chief Justice Gleeson in S395 at paragraph 1 ‑ and I think we have set out the quote in full in our written submissions ‑ expressed the concern that ‑ at paragraph 36 of our submissions we have set out the quote and his Honour said this:
this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or applicant’s lawyers, at some later stage in the process.
Indeed, it was not even articulated before the Supreme Court which is part of our response to the leave to amend and discretionary factors about pursuing this ground at all. So it has in fact only been recognised at the second round of the second set of lawyers and was never advanced by the appellant.
Can I deal with the perhaps discrete point about the per se claim and the information which the appellant suggests contradicts the statement made by the Tribunal to the effect that there was no information to suggest that the mere fact of seeking asylum placed a person at risk of harm.
Can the Court turn to page 293. This is part of the appellant’s post‑Tribunal hearing submissions, so submissions made after the Tribunal had put the matters which I have just taken the Court to about people with a serious political background, active dissidents if you like, and I noted that the appellant did not say that he fell within those categories. Then the appellant’s lawyers make a submission, and they say this at the top of the page:
The Tribunal referred to country information to indicate that [the appellant] did not have a sufficient profile to attract adverse attention of Iranian authorities should he be returned. We agree that failed asylum seekers per se may not face harm solely on the basis of seeking protection; however, case law indicates that the Tribunal should not look at the client’s circumstances in isolation.
What were the circumstances then pointed to? In particular, turning to page 294, aside from the matters about the appellant’s father and the drug dealing and so forth, at the top of 294:
Please find appended below further reference material relating to social media in Iran which we submit supports [the appellant’s] fears that the Iranian authorities are likely to at the least have access to his Facebook information should they choose to, are committed to monitoring social media sites and posts, including those of ‘ordinary’ citizens –
and so forth. So we have, in effect, a concession here, where the interpretation of country information is always a matter of interpretation. Brief references in amnesty reports and so forth do not necessarily entail – because they do not give full account of the circumstances in which a particular child or what not was detained. There is limited information given.
Here we have the appellant’s own agent apparently accepting that the information that had been provided by the appellant may not give rise to the per se claim. So it is entirely unsurprising that the Tribunal comes to the same conclusion but deals directly with the very aggravating circumstances in, as I recall, paragraph 50 or 51, which the appellant had claimed, in accumulation with his contemplated status as a failed asylum seeker, would give rise to risk of harm, and deals with it indirectly. I should probably deal with the leave to amend point.
GAGELER J: We have seen what you have written. You do not point to any prejudice.
MR WOOD: No.
GAGELER J: You have dealt with the merits.
MR WOOD: Only the integrity of the appeals process and the lack of merit.
GAGELER J: Yes. We understand that. Do you have any reply, Mr Beckett?
MR BECKETT: Yes, your Honour. I will try to be brief. My friend took the Court back to Balasubramanrim and said that it was particularly fact‑dependent. The relevant fact, I think, is that this is a case about an omission, not about conflicting evidence. Your Honours will have sat on any number of appeals where there have been conflicts between various representations made by an asylum seeker which raise an issue as to whether the asylum seeker is credible or not, based on contradictions in the evidence.
This is not such a case. This is a case about omission and why I belabour, perhaps to my own fault, the fact that this was not an asylum seeker claim at the transfer interview stage. It was not exhaustive. The report was encumbered by a number of problems, including it being second hand hearsay, and so, therefore, the omission – if it is even to be called that – has to be seen in that particular light.
It is also significant that at no stage did the Tribunal find that what he had said at the transfer interview in respect of question 1 was incorrect. It was, as I earlier submitted, the foundation for his claim which was developed, of course, once the application process went further. So, it is significant that the focus, in this case in terms of ground 1, must be on the omission and not on a direct contradiction between what the asylum seeker said at the transfer interview and what he said later.
My friend’s argument on ground 4, raised an issue as to – effectively, raised an issue that, notwithstanding the fact he had mentioned the 2009 demonstrations in the transfer interview, that that fact could effectively be put to one side because he had not reiterated that claim in his submissions made through his legal representatives or in the written statements that he had given or, indeed, in response to a question that may have elicited such a reply. It was never directly put to him, I might say, by the Tribunal, “Were you involved in the 2009 demonstrations as you say?”
KEANE J: That is because he never suggested he had a political profile at all, whether because of the 2009 demonstrations or otherwise. Of course they did not put it to him. He had not made it part of his case.
MR BECKETT: Well, with respect, your Honour, it was clearly political. The 2009 demonstrations were against the – it was a political act of itself.
KEANE J: He did not suggest that because of that he had a political profile that would have made him a target for the regime on his return. He just did not. You know, he just did not articulate that claim.
MR BECKETT: Your Honour, if that is the requirement, then it is a very high hurdle for him to set out.
KEANE J: No, it is not. All he has to say is, “I was involved in these demonstrations and the regime will have pictures of me and they will visit harm on me”. It is not a high burden at all. He just has to say it, but he just did not.
MR BECKETT: Your Honour, what he did raise, obviously, the fundamental claim was that he was a failed asylum seeker and that that per se revealed that he may have been at some political danger – he was at some danger because of that – the assumption that he was involved in some political involvement. And, that was squarely considered by the Tribunal, particularly at paragraphs 50 and 51. They were aware that that was squarely relevant to that particular issue.
The extension, with respect, of your Honour’s argument, is that, effectively, if he did not put in terms – if he raised the claim and political involvement was relevant to the claim – unless he took that final step, that I think your Honour is suggesting, to actually say, my involvement in the 2009 election puts me at particular harm, that his claim must fail. What follows from what the respondent has submitted is that unless he is specific as to joining the dot between political involvement and the 2009 demonstrations then, effectively, that claim has been abandoned and can be taken as nil.
GAGELER J: Or never made. The point is, it was never made – not abandoned. It was never made.
MR BECKETT: It was not made in terms, your Honour. Yes.
KEANE J: Claims have to be made in terms. That is how they are made.
MR BECKETT: Yes, well, it was ‑ ‑ ‑
EDELMAN J: He made the Facebook claim very clearly.
MR BECKETT: Excuse me, your Honour?
EDELMAN J: The Facebook claim was made fairly clearly.
MR BECKETT: Yes, I accept that, yes. And, your Honour, I wish he had been specific about it but the height of the case for the appellant – with respect to that part of ground 4 – is, of course, that he raised the claim squarely as to being a failed asylum seeker. That was raised on the basis of being imputed political opinion that the Tribunal was aware that political involvement was relevant to determining whether that fear was exacerbated by any form of political involvement. There was political involvement that he was involved in.
EDELMAN J: Yes.
MR BECKETT: He has put it squarely, with respect, to the Tribunal that he has a fear and the fear is based on political grounds. At another point in the transfer interview, he sets out those political grounds.
GAGELER J: We are perhaps going beyond the reply at this stage.
MR BECKETT: Yes. Thank you, your Honour. Then on the leave issue ‑ that is to say, what was raised in the court below ‑ if your Honours go to appeal book page 23, your Honours will see that in the notice of appeal in the court below, paragraph 1, subparagraph (l), which is at the top of page 23, one of the grounds is:
The cumulative risk to the applicant if he were to return to Iran.
That is the extent to which the failed asylum seeker claim is raised in the notice of appeal. Then in the oral submissions made by counsel for the appellant, appeal book 96, starting at line 25, there is a quotation from paragraph 54 of the Tribunal’s decision, where the Tribunal is quoted as having said:
Having carefully considered the claims individually and cumulatively –
Then counsel interpolates:
your Honour, the submission is simply put it’s not clear that the tribunal has really considered the cumulative interaction.
Then there is criticism of that approach as being to:
hermetically sealed categories of drugs and Christianity and failed asylum seeker –
so there is the per se claim. Then he goes on to say:
in relation to the failed asylum seeker claim was to the effect that when people go back to Iran and they are questioned and considered by the authorities, then the risk to them is likely to depend very much not on just whether, for instance, they claimed asylum outside Iran but what else they might have been involved in.
So there is the per se claim put again, so that is raised in the court below.
The last matter I wanted to raise in the reply is what my friend asserts is a concession made by the appellant’s legal representatives, appeal book 293. Your Honours will recall that this issue, the way it was put by the legal representatives and reiterated in the Supreme Court, was really about taking all the factors that accumulate and bear upon a failed asylum seeker and that they should all be considered at the same time. So that is the context in which this is set out. The legal representative says:
We agree that failed asylum seekers per se may not face harm solely on the basis of seeking protection –
That is, they may seek harm or they may not seek harm depends on the particular information. You need to look at the client’s circumstances. Then at 20 the legal representative says:
his status as a failed asylum seeker would contribute to his overall profile and heighten the interest of Iranian authorities in him –
So there is the per se claim again. So it is put in those terms and it is one of the various matters that need to be considered in the Tribunal ultimately determining whether he is a failed asylum seeker, namely, the factor set out there that he is a failed asylum seeker per se. Those are the submissions in reply.
GAGELER J: Thank you, Mr Beckett. The Court will reserve its decision in this matter and will adjourn until 10.15 am on Monday, 18 June in Perth.
AT 11.47 AM THE MATTER WAS ADJOURNED
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