FEDERAL COURT OF AUSTRALIA

SZULI v Minister for Immigration and Border Protection [2015] FCA 999

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant is a citizen of Iran who was born in October 1978 and first arrived in Australia in May 2007.

2    She claims to fear returning to Iran.

3    In February 2013 she applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. A statement filed in support of that application detailed the fears which the Appellant held by reason of (inter alia):

    her political opinions;

    her views in respect to religion;

    her “political opinions” and/or “religious beliefs … which are not tolerable by the Iranian regime”; and

    her fears arising from the manner in which the Iranian government was said to have detained and assaulted her younger sister.

A delegate of the Minister refused that application in August 2013. Review was sought of the delegate’s decision. The Refugee Review Tribunal in May 2014 affirmed the delegate’s decision.

4    Judicial review of the Tribunal’s decision was sought before the Federal Circuit Court of Australia. An Amended Application was filed in July 2014. That Amended Application set forth seven Grounds of Review, namely that the Tribunal had committed jurisdictional error for the following reasons (without alteration):

    “asking itself the wrong question or by failing to apply the correct law”;

    “failing to consider a claim or component integer thereof or by failing to correctly apply the law”;

    “failing to comply with its statutory obligations under sections 424A of the Migration Act”;

    “making a critical finding in the absence of evidence, by failing to take into account relevant considerations, or by misconstruing and failing to deal with a claim before it”;

    “misconstruing and failing to deal with the Applicant’s claim to fear persecution or significant harm as a consequence of being a member of the particular social group of women from Iran or by misconstruing or misapplying the applicable law”;

    “failing to ask itself whether, despite the efforts that the Tribunal found that the Applicant would engage in to avoid persecution or significant harm she might nevertheless face a real risk of persecution or significant harm”; and

    “failing to provide the Applicant with an opportunity to give evidence and present arguments in relating to the issues arising in the review at a hearing in accordance with section 425 of the Migration Act”.

The Amended Application was certified by the now-Appellant’s solicitor. Before the Federal Circuit Court the now-Appellant was represented by Counsel.

5    The Federal Circuit Court dismissed the proceeding in June 2014: SZULI v Minister for Immigration & Anor [2015] FCCA 1657.

6    A Notice of Appeal was filed in this Court in July 2015 which contained four Grounds of Appeal. Albeit expressed in a variety of ways to bring those Grounds within the rubric of jurisdictional error, those Grounds alleged error by reason of a failure on the part of the Federal Circuit Court Judge to find:

    that the Tribunal had not properly considered “the Appellant’s claim that she feared persecution or significant harm by virtue of being a woman from Iran and that the feared harm extended beyond the infliction of actual physical harm to the denial of various freedoms”;

    that the Tribunal had not dealt “with a claim before it, in respect to the Appellant’s claim that she feared persecution as a Shia Muslim who had abandoned Islam”;

    that the Tribunal had asked itself the wrong question by failing “to ask itself whether… she might nevertheless come to the attention of the authorities in Iran and face a real risk of persecution or significant harm as a consequence”; and

    that the Tribunal had failed to provide “an opportunity to give evidence and present arguments in relation to issues arising in the review at a hearing in accordance with section 425 of the Migration Act”, namely the “ability of the Iranian authorities to link posts on the Appellant’s Facebook account with her and a physical address in Tehran” and the connection between whether a 2013 email “purporting to be from the Appellant’s sister about a visit by the Basij was a ‘real event’”.

7    The appeal is to be dismissed.

The denial of various freedoms

8    One of the bases upon which the now-Appellant claimed to fear persecution was “by virtue of being a woman from Iran”, an instance of that fear being founded upon her rejection of the Islamic dress code for women. In the statement submitted at the time of her application for a protection visa in February 2013, the now-Appellant (inter alia):

    stated that there “is no … personal freedom or freedom of dressing and or [women’s] rights in Iran”;

    annexed “personal photos which clearly showed that I do not believe in a religion/Islam but I also have no respect [for] Islamic laws” – those photographs depicting a young woman in other than traditional Islamic attire; and

    stated that she was “in favour of a very basic human right that women should be able to choose what they wear…”.

9    In a statement forwarded to the Tribunal in November 2013 in support of her application for review, the Applicant repeated her view that there “is no personal freedom in Iran for me as a female open-minded free thinker”. In further support of her claims, the Appellant in that statement made reference to an incident concerning her younger sister in 2011 when the younger sister was said to have been “detained and assaulted” by “Iranian officials”. That event, it was said, “did not stop [the sister’s] independence to choose how she dresses (in fact the 2011 event made [the sister] more disobedient of the Islamic laws and or religious practices)”. The statement went on to state that the Appellant “declared my decision abandoning religion of Islam formally and publicly online because its rules were not rational and or consistent to what I truly believe and or what I want to practice in daily life – and I was angry too)”. Reference was there also made to a January 2013 email the Appellant maintained was forwarded to her by her sister. Subject only to the deletion of the first name of the Appellant, the form of that email as translated for the delegate was as follows:

“Excerpt translation”

Hello XXX

The BASIJI sisters were at our door steps. They told me a series of things that scared me a lot. Please take care of yourself. I am worried about you very much. They told me that you are putting posts on facebook that you should not. They asked me to let you know to be careful! They terrified me very much. For God’s sake be careful! Their words were very scary. I am afraid of them. I am afraid they would do terrible things to us.

10    The Tribunal had before it (inter alia) both the claims made to the delegate and the November 2013 statement. In its reasons for decision, the Tribunal separately addressed:

    “Political issues”; and

    “Iranian women”.

Contrary to the submission advanced by Counsel for the Appellant, it is concluded that there was no clear-cut division or separation in the reasons for decision of the Tribunal between its consideration of these two issues. There was certainly no clear-cut division between these two issues in the submissions advanced by the Appellant to the delegate or to the Tribunal between what came later to be characterised as “Political issues” and “Iranian women”. Part of the “very basic right” which the Appellant was claiming, and part of her political beliefs, was that women “should be able to choose what they wear”. Rejected is the Appellant’s submission that the Tribunal’s findings in respect to those “freedoms” embraced within Ground 1 of the Notice of Appeal are to be found exclusively within the Tribunal’s findings set forth under the heading “Iranian women”. There remains, however, an unquestionable attempt on the part of the Tribunal to address the two issues separately.

11    If reference is made to both of these two parts of the Tribunal’s reasons for decision, it becomes apparent that the Tribunal found that the Appellant:

    had “greatly exaggerated the strength of her political views” and did not have a well-founded fear of persecution; and

    faced no “real chance” of being “seriously harmed for perceived breaches of Islamic conduct”.

Rejected is the Appellant’s submission that the Tribunal’s findings did not address her claim that she had a right to dress in such manner as she chose.

12    As for the former finding, the Tribunal when addressing “Political issues” concluded in part as follows:

102.    I accept that the applicant resents the occasional official intrusion into her personal life which she experienced while in Iran, but consider she has greatly exaggerated the strength of her political views. I am satisfied that she will express such views as she has, without being constrained by a fear of serious or significant harm, to friends and family if she returns there.

103.    For these reasons I find that the applicant does not have a well-founded fear of being persecuted in Iran for the Convention reason of political opinion.

These “political opinions” included her political opinion that she had a right to dress in such manner as she chose.

13    As for the latter finding, the Tribunal when addressing “Iranian women” relevantly concluded:

111.    As there are discriminatory laws that apply only to women I am satisfied that “Iranian women” are a particular social group in the relevant sense, and that the applicant is a member of that particular social group.

112.    Of the applicant’s own experiences in Iran, she has described an incident in 2010 when she was stopped at the airport in Tehran and warned she had breached the dress code, an occasion some 13-14 years ago when Basij briefly detained her and her fiancé until establishing that they were engaged and an occasion about 9 years ago when her final exams were interrupted because of a dress code issue. I accept that all this happened. That they do occur in Iran from time to time is consistent with evidence from DFAT that authorities can take a heavy-handed approach during “periodic morality campaigns to enforce standards of Islamic conduct”. This can include enforcing Islamic dress codes and monitoring public appearances with non-family members of the opposite sex, strictures that apply to both male and female citizens, but which I accept primarily inconvenience women.

113.    Nevertheless, as noted above, the applicant says that until January 2013 her intention was to return to Iran to live with her family. I infer from this that, despite the above experiences, at that time her own assessment was that she could safely return. In other words she did not expect to be seriously or significantly harmed for perceived breaches of Islamic conduct in the reasonably foreseeable future. In the absence of any indication that circumstances in Iran have changed since then, I do not consider there is a real chance that she will be seriously harmed for perceived breaches of Islamic conduct, whether for a Convention reason or otherwise.

114.    As to the general environment, which as noted above does discriminate against women in particular circumstances, the applicant has not claimed that those circumstances might apply to her. I am satisfied that they will not do so in the reasonably foreseeable future.

115.    There is no real chance that the applicant will be persecuted for the reasons of her membership of the particular social group “Iranian women” if she returns to Iran.

14    However the first Ground of Appeal is expressed, the Tribunal made findings of fact which doom the Ground to failure.

15    No appellable error is disclosed in the reasons or conclusion of the Federal Circuit Court Judge in dismissing the like argument when advanced before that Court: [2015] FCCA 1657 at [88].

The abandonment of Islam

16    The second Ground of Appeal focusses upon the findings the Tribunal made when resolving the Appellant’s claims that she had been raised as a Muslim but had then “abandoned” that religion, or presently had no religion. Notwithstanding some uncertainty on the part of Counsel for the Appellant as to when the Appellant was said to have actually “abandoned” the religion of Islam, so much emerges – at least in part – from the statement she provided to the Tribunal in November 2013.

17    Having made her claims in respect to “abandoning [the] religion of Islam formally and publicly online” and her claim thereafter expressed in the November 2013 statement not to “believe in any kind of religion (I never believed in Islam and or any other religion at all)”, those claims (and other like claims) were resolved against the now-Appellant by the Tribunal as follows (without alteration):

Religion

104.    The applicant also claims to have been brought up as a nominal Moslem but to have no religion, a matter which she fears will lead to her being executed as an apostate. The representative has argued that her apostasy involves her leaving the religion of Islam “publicly”, or expressing her attitude towards all religions, which he said was evident “not only by her expression only but by the way she conducted herself in Australian society”.

105.    The applicant has said, and I accept, that she believes in God but does not consider herself to be a Moslem and regards all religions in the same way. She claims to have had these views even as a schoolgirl, successfully avoiding group prayers. As until January 2013 she was intending to return to Iran to live with her mother and sister. I infer that she did not fear being seriously or significantly harmed in Iran because of these opinions at that time.

106.    She claims to have since said on her Facebook page that she did not believe in Islam. For the reasons I have given above I have disregarded it when considering whether she has a well-founded fear of being persecuted in Iran.

107.    The Department of Foreign Affairs and Trade has recently observed that perceived apostates are likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts to proselytisation, attendance at a house church or via informants. I am satisfied that it is apostates who have converted to another religion who may attract adverse attention in Iran. The applicant does not fall into this category.

108.    Further, as noted above, I consider reliable evidence that the authorities do not normally interfere in the private sphere of citizens so long as Islamic rules and values are not publicly challenged or violated. The Tribunal has no reports indicating that the authorities compel citizens to attend mosques or force participation in communal prayers or sermons. The applicant’s lack of belief in Islam or any other religion is a private matter.

109.    For the reasons above I am satisfied the applicant will not be perceived to an apostate and that therefore she will not be harmed because of such a perception.

18    The jurisdictional error said by the Appellant to have been committed emerges from paragraphs [107] and/or [108].

19    The Report to which reference is made is prepared by the Department of Foreign Affairs and Trade and dated 29 November 2013. In reliance upon Direction No 56 – Consideration of Protection Visa applications, being a direction issued under s 499 of the Migration Act 1958 (Cth) (the “Migration Act”), Counsel for the Appellant maintained that the Departmental Report was a matter that had to be taken into account. So much may presently be assumed.

20    It is the content of that Report which presently assumes importance. The Report provides in relevant part as follows:

Apostasy

3.34    Iranian interpretation of sharia provides that Shia Muslims are not permitted to renounce their religion or convert to another religion. Apostasy is not codified in Iran’s Penal Code, but the Constitution allows judges to turn to sharia if Iranian law is not clear about an issue. Convictions for apostasy are not common. However, some judges have applied sharia to hand down sentences of the death penalty and lengthy imprisonment for apostasy. The last time the death penalty was carried out for apostasy was in 1990.

3.35    The most recent case of a person charged with apostasy and sentenced to death was that of Youcef Nadarkhani in 2011. As a result of sustained international pressure, Nadarkhani’s conviction of apostasy was commuted to one of proselytization and the death sentence was dropped. DFAT is aware of claims of people being extra-judicially killed for being suspected apostates, though those reports DFAT considers credible are over ten years old.

3.36    DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. However, perceived apostates could be subject to broader adverse treatment, on a random basis, including on national security grounds. Perceived apostates are likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytisation, attendance at a house church or via informants (see ‘Christians’, below). DFAT is aware of allegations that authorities monitor attendance at churches on religious holidays to ensure no Muslim is present.

21    No submission could be advanced, and no submission was in fact advanced, that the Tribunal failed to have regard to the November 2013 Report. Paragraph [107] expressly refers to that Report. The submission which was advanced was that the Tribunal had only had regard to paragraph [3.36] of that Report and failed to have any regard or failed to give proper consideration to paragraph [3.34]. So much, it was submitted, followed from the fact that the wording included in paragraph [107] of the Tribunal’s reasons was presumably drawn from paragraph [3.36] of the Report.

22    It may further be assumed that jurisdictional error may be exposed if an “important” part of that Report has not been taken into account: cf. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111], (2013) 212 FCR 99 at 130 per Robertson J.

23    The argument is nevertheless rejected. Paragraph [3.36] does not stand in isolation; the November 2013 Report addresses the question of “apostasy”. The Department’s analysis starts with the introductory comments in paragraph [3.34] and the potential consequence of the death penalty in paragraphs [3.34] and [3.35]. Paragraph [3.36] is but the concluding assessment made by the Department – the conclusion in that paragraph forming the Department’s assessment of the likelihood of prosecution. The express incorporation by the Tribunal of part of the language employed in paragraph [3.36] does not lead to the conclusion that the balance of paragraphs [3.34] to [3.36] was not also taken into account. Given the reasoning of the Tribunal at paragraphs [107] and [108], there was no necessity for the Tribunal to “expressly mention or grapple” with the contents of paragraph [3.34]: cf. Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [79], (2001) 113 FCR 396 at 423 per Allsop J (as his Honour then was).

24    Also rejected is the separate argument focussed upon paragraph [108] of the Tribunal’s reasons for decision, namely that there was no evidence to support the finding in paragraph [108] and that there was “reliable evidence that the authorities do not formally interfere in the private sphere of citizens so long as Islamic rules and values are not publicly challenged or violated”.

25    An absence of evidence to support a critical finding of fact upon which a decision-maker proceeds may expose jurisdictional error. So, too, may jurisdictional error be exposed if the material sought to be relied upon is so “inadequate” that reliance upon it otherwise reveals a decision-maker applying a wrong test: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231, (2003) 77 ALD 402 at 407 to 408. Mansfield, Selway and Bennett JJ there summarised the principles to be applied as follows:

[19]    … If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error …. If the decision of the tribunal was “Wednesbury” unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error …

[20]    On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact … It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one …

In SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 at [29] Gleeson J similarly acknowledged that jurisdictional error may be exposed where there is no evidence in support of a “jurisdictional fact”.

26    The difficulty confronting the Appellant is not the identification of the relevant principles to be applied; the difficulty is to establish any error on the part of the Tribunal when those principles are applied to its findings of fact founded upon the available materials.

27    The introductory words to paragraph [108] of the Tribunal’s reasons and the reference to “as noted above” is a reference back to the Tribunal’s finding at paragraph [101] which states:

101.    I note evidence that the authorities do not “normally interfere in the private sphere of the citizens” and that “[a] large number of Iranians … in practice lead two lives: one in the public space and another in the private”. According to one source but typical of many, “[a]s long as the private matters remain private and Islamic rules and values are not challenged or violated in a visible manner, Iranian authorities will normally not interfere in the private sphere of the private sphere of the citizens”.12 I consider that evidence reliable.

Footnote 12, in turn, is a reference to a Report titled “Iran: Christians and Converts” and dated July 2011. Within that Report, at paragraph [7.1] is the factual foundation upon which the Tribunal expressly relied. No analogy can be drawn between the facts of the present case and those before the Court in SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133. There a finding was made that a Khalistan Liberation Army did not exist notwithstanding a document recording contradictory statements that that entity variously did and did not exist. Paragraph [7.1] provides evidence in support of the findings made by the Tribunal in the present proceeding. No finding was made by the Tribunal in the present proceeding in “contradiction” with the materials before it.

28    Again, and notwithstanding the myriad ways in which the Appellant sought to establish jurisdictional error in respect to this part of the Tribunal’s reasons, the arguments fail.

29    Given this conclusion it is unnecessary to resolve whether or not the argument as now advanced is different in substance to that previously advanced before the Federal Circuit Court.

30    Ground 2 is rejected.

Coming to the attention of the Iranian authorities

31    The third Ground of Appeal builds upon the findings made by the Tribunal that the Appellant “could avoid drawing the requisite adverse attention to herself” by, for example, deleting her Facebook posts and “obey[ing] the rules and keep[ing] her views private upon her return to Iran so as not to attract adverse attention”. But one example of such a finding made by the Tribunal is the following:

100.    I am also satisfied that before re-entering Iran she will use her IT skills to remove from her Facebook page any political content. She will re-enter Iran and live with her family as she has said she originally planned to do. Her political views will be on no interest to the authorities.

Paragraph [102] of the Tribunal’s reasons is also a further instance of the Tribunal expressing its state of satisfaction by reference to the conduct which will be followed by the Appellant upon her return to Iran, namely the state of satisfaction that “she will express such views as she has, without being constrained by a fear of serious or significant harm, to friends and family if she returns there”.

32    Given these findings, jurisdictional error is said by the Appellant to be exposed by the failure on the part of the Tribunal to ask itself “whether there was a real chance that the Appellant might nevertheless come to the adverse attention of the authorities and be persecuted as a consequence”. The findings that she could avoid drawing attention to herself was not sufficient, so it was submitted, to deal with the failure to ask the further question.

33    In advancing this submission, reliance was placed by the Appellant upon the following observations of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, (2003) 216 CLR 473 at 487:

[35]    The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal's findings that they do. Nor did the Tribunal's reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error and the Federal Court should have set aside the Tribunal's decisions.

Reliance was also placed upon the following observations of their Honours:

[56]    Similarly, in this case, consciously or unconsciously, the Tribunal directed its mind principally to the consequences of the sexual behaviour of the non-discreet members of the particular social group. Certainly, it made only passing reference to other forms of harm to members of the social group generally. And it failed to consider whether the appellants might suffer harm if for one reason or another police, hustlers, employers or other persons became aware of their homosexual identity. The perils faced by the appellants were not necessarily confined to their own conduct, discreet or otherwise: (2003) 216 CLR at 494.

The applicants for refugee status in that case were two male citizens from Bangladesh who feared persecution by reason of their homosexuality. The finding made by the Tribunal in that case that the two men would live discretely involved no error. But error emerged by reason of the failure on the part of the Tribunal to consider whether there was a real chance that they might suffer harm if people in Bangladesh discovered that they were homosexuals. Appellant S395 was subsequently relied upon by Perry J in support of a conclusion that the Refugee Review 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 risk that the person will be persecuted”: SZTFI v Minister for Immigration and Border Protection [2015] FCA 322 at [71].

34    It was submitted that it was the risk of inadvertent conduct – or inadvertent transgressions – on the part of the Appellant in the present case that placed her in the same position.

35    The difficulty with the submission, with respect, is that the Tribunal has made repeated findings that the Appellant faced no real fear of persecution and made no finding that the Appellant would act in a particular way to reduce the risk of persecution otherwise faced. Construed in their entirety, the reasons of the Tribunal when properly construed expose a conclusion that the claimed fears on the part of the Appellant were either exaggerated or misplaced. Thus, for example, the Tribunal, when considering the claimed fear of persecution arising by reason of:

    the Appellant’s expressions of her political opinions or views, found she had “greatly exaggerated the strength of her political views” (at paragraph [102]) and did not have “a well-founded fear of being persecuted” (at paragraph [103]); and

    the Appellant’s opposition to the Islamic dress code, found that the Appellant “did not expect to be seriously or significantly harmed for perceived breaches of Islamic conduct in the reasonably foreseeable future” (at paragraph [113]). Although emphasis was sought to be placed by Counsel for the Appellant upon the expression “perceived breaches”, no qualification can be read into the Tribunal’s reasons for decision by reference to that phrase.

The Tribunal also made adverse findings which further undermined the integrity of her claims. Thus, for example, the Tribunal:

    when considering the nature of the threat posed to the Appellant by reference to an email she relied upon to support that threat, concluded that it was “not persuaded that the January 2013 email purporting to be from her sister about a visit by the Basij refers to a real event” (at para [89]); and

    when considering the claims by the Appellant that she had begun expressing her political views online, concluded that it was “not satisfied … that she engaged in this conduct online otherwise than for the purpose of strengthening her claim to be a refugee” (at paragraph [95]).

When read in context, such findings the Tribunal did make in respect to the manner in which it expected the Appellant to behave if she returned to Iran did not detract from or otherwise qualify its adverse assessment of parts of the Appellant’s claim, or its other conclusions regarding the absence of a well-founded fear of persecution.

36    Given these more generally expressed conclusions, it was thereafter unnecessary for the Tribunal to go on and answer the speculative question posed by Ground 3 of the Notice of Appeal.

An opportunity to be heard

37    Section 425 of the Migration Act provides as follows:

Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

38    The final Ground of Appeal focussed attention on the January 2013 email said to have been forwarded by the Appellant’s sister in Iran to the Appellant.

39    The Tribunal addressed this email as follows:

89.    I also am not persuaded that the January 2013 email purporting to be from her sister about a visit by the Basij refers to a real event. Apart from my general doubts about the applicant’s credibility, that is because she had only been expressing political views on Facebook for a few weeks at the time of the claimed visit, and because of the challenges in linking its author (whose name is shared by others) to a physical address in Tehran so quickly. The authorities’ ability to do this seems incredible given that at least 4 million Iranians have Facebook pages.

(Footnote omitted)

The final Ground of Appeal puts in issue the opportunity that the Appellant had to make submissions in respect to these findings – contending, in particular, that she had no meaningful opportunity to make submissions in respect to the “incredulity” expressed by the Tribunal that there was an ability to link a physical address to the email “given that at least 4 million Iranians have Facebook pages”.

40    Again the argument is without foundation. It confronts at least two difficulties.

41    First, the reservations ultimately expressed by the Tribunal in paragraph [89] of its reasons had been foreshadowed during an interview conducted by the Tribunal with the Appellant in February 2014. With specific reference to the January 2013 e-mail, the following exchange occurred with the Appellant:

Okay. Now you, you’ve said that your sister told you that some female Basiji visited your home in January last year and they referred to your Facebook posts. You’ve given me a copy of her email.

Yes.

But did she, did you talk with her on the telephone about this as well?

(Conversation between interpreter and [the Appellant])

All phone contact with Iran are monitored. I, whenever I talk to my family members about matters like this, we talk indirectly.

So the only, am I right then in thinking that the only time she’s told you what happened is in that email?

(Conversation between interpreter and [the Appellant])

Yes.

No other emails after that, telling you a bit more detail or anything like that?

(Conversation between interpreter and [the Appellant])

No, no she’s very frightened.

(Conversation between interpreter and [the Appellant])

Even when I’m not on internet chat with my mother and talk about this matter, she does not respond. She doesn’t respond, she doesn’t answer.

(Conversation between interpreter and [the Appellant])

Because of fear.

Okay. So all you know about what was said when the female Basij came to your home is what is in that email? Is that correct?

Yes, yes.

Okay. I don’t really understand why your family is so frightened about what you’ve said on your Facebook page when your brother is the one who’s been, according to you, so much more openly political. Can you explain why they’re not worried about what he’s doing rather than what you’re doing?

The Tribunal returned to its concern a little later when it invited as follows the Appellant to provide such further information as she saw fit:

… you can provide that information or you cannot. It’s up to you. Okay. Now there was just a few days before you first writing critical comments about the government about your Facebook page and the visit by those Basij women to your family home. The Facebook page is not in your name. How did, how could they have so quickly found out who you were and where your family lived? Especially as there is more than one person with your name.

(conversation between interpreter and [the Appellant])

I suspect that they could locate me or recognise me through my Facebook address or from my internet address.

…

…

You know I just wonder how they could have connected you know a person with your name, who could have been, could have been you or another person with your name, how they could have connected you in particular with your family’s address. How would they know it was [the Appellant] who lived at that address?

(conversation between interpreter and [the Appellant])

I do not know but I think or suspect that the communication between me and my family member maybe via email and other, you know other media, other media communication, it is all monitored by the authorities in Iran.

(conversation between interpreter and [the Appellant])

I think when I log in and chatroom and through an email address, through that log in they come to recognise me or.

It is concluded that these “statements or questions” made by the Tribunal, during the February 2014 hearing – particularly the latter exchange, were enough to “sufficiently indicate” to the Appellant that her reliance upon this email was in question: cf. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47], (2006) 228 CLR 152 at 165 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

42    Moreover, in a letter forwarded to the Appellant on 4 March 2014, the Tribunal referred generally to “your views online” and continued:

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

The letter invited the Appellant to comment.

43    Although the Tribunal’s comments in its letter were made in the context of claims made by the Appellant’s brother, there can be no doubt that the Tribunal made apparent to the Appellant its concerns relating to:

    her credibility; and

    the origins or authenticity of the email.

Given what had been disclosed to the Appellant, there was no denial of an opportunity to be heard by any prior failure on the part of the Tribunal to disclose the number of Iranians who operate Facebook pages. Neither s 425 nor the rules of procedural fairness require the precise details of each proposed finding that may be made to be disclosed: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], (2006) 228 CLR 152 at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

44    The final Ground of Appeal is rejected.

45    No appellable error is discernible in the reasons or conclusions of the Federal Circuit Court Judge in rejecting a like argument: [2015] FCCA 1657 at [81].

CONCLUSIONS

46    Each of the Grounds of Appeal, with respect, is erected upon a factual edifice which cannot be sustained. The factual conclusions reached by the Tribunal preclude success for the Appellant in seeking to establish jurisdictional error.

47    Although the plight of “free thinking” women such as the Appellant in Iran is readily understandable, the facts found by the Tribunal preclude any conclusion that she is a refugee.

48    Counsel for both parties were in agreement that there was no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    10 September 2015