FEDERAL COURT OF AUSTRALIA

SZSWD v Minister for Immigration & Border Protection [2015] FCA 1271

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to "Administrative Appeals Tribunal".

2.    The appeal be dismissed.

3.    The first appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Circuit Court of Australia to dismiss the appellants' application for judicial review of a decision of the second respondent (Tribunal), made on 19 April 2013: SZSWD v Minister for Immigration & Anor [2015] FCCA 704. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellants' respective applications for a Protection (Class XA) visa.

Background

2    The following background is largely drawn from the parties’ respective outline of written submissions. It is not controversial.

3    The appellants are citizens of Iran. The first appellant is the father and litigation guardian of the second appellant who is a minor. The second appellant applied for a protection visa as a member of the first appellant’s family unit. I will, for convenience, refer to the first appellant as the appellant.

4    The appellant claims to fear persecution in Iran based upon his non-adherence to the form of Islam required by the State of Iran, including because he drinks alcohol, which he claims is punishable by death, and because he claims that Iranian authorities persecute returned failed asylum seekers.

5    On 19 June 2012, the appellant arrived in Australia with his daughter as irregular maritime arrivals. His wife and other children it seems may be in Iran. On 21 July 2012, the appellant participated in an entry interview. On 7 September 2012, following a decision by the Minister under s 46A of the Migration Act 1958 (Cth) (the Act), the appellant applied for a protection visa.

6    In a statutory declaration attached to his application, the appellant claimed to fear persecution from the Iranian authorities on the basis of his actual or imputed political opinion. He claimed that there was no freedom of speech in Iran, and that he was constantly picked up for being immorally dressed. He also claimed that in 2009, his home was raided by "5 Etelaat people", who took his satellite dish and found empty bottles of alcohol.

7    By letter dated 27 November 2012, a delegate of the Minister notified the appellant that his protection visa application had been refused. On 28 November 2012, the appellant lodged an application with the Tribunal for review of the Minister's decision.

8    In a submission lodged by his representative on 6 March 2013, shortly before the Tribunal hearing, the appellant claimed to fear persecution because of his non-fundamental interpretation of Islam, and his perceived opposition to the Iranian regime because of his non-adherence to the Iranian version of Islamic law and his attempt to secure protection in Australia.

9    On 8 March 2013, the appellant attended a hearing before the Tribunal. On that day the hearing was adjourned, resuming on 14 March 2013.

10    By a letter dated 20 March 2013, accepted to have been sent pursuant to s 424A of the Act (s 424A letter), the Tribunal invited the appellant to comment on information that would, subject to any comments or response from him, be the reason or a part of the reason for affirming the decision under review. In the letter, the Tribunal raised with the appellant concerns relating to an account he had given of what occurred when his home was raided as compared to what he had told the Tribunal of that event. It also provided the appellant with a summary of the country information which, according to the letter, had been raised with him during the hearing and enclosed a particular report prepared by the Department of Foreign Affairs and Trade in relation to returned asylum seekers.

11    The appellant responded to the letter on 3 April 2013 (s 424A response). On 10 April 2013, his authorised representatives provided an additional statement from the appellant dated 7 April 2013. He described the effect of the raid on the house on his wife and daughter. He fears a predictable and probable danger if he returns.

12    On 19 April 2013, the Tribunal affirmed the decision of the Minister's delegate to refuse the appellants' protection visas. The Tribunal found that the appellant's overall "telling of events [was] unconvincing". It identified inconsistencies in his evidence about the raid in 2009. In his 9 September 2012 statement he claimed five Etelaat people came to his house looking for weapons, which they did not find, but did find empty alcohol bottles. However, at the hearing he claimed that it was about one year before he left Iran in 2011 that his house had been raided by Etelaat. This, together with other identified inconsistencies led the Tribunal to find that no such raid had occurred and accordingly that no empty alcohol bottles had been found at his home. Further, it did not accept his claim that the authorities had opened a file on him.

13    The Tribunal accepted that the appellant and his family may have been relaxed in their adherence to Islam and occasionally drank alcohol. However, it did not accept that they had previously suffered any real punishment for doing so. However, there was no evidence of any punishment being imposed on the appellant for drinking alcohol. The Tribunal did not accept that the appellant’s “lifestyle” would draw him to the attention of authorities, and that “if the applicant were to obey the rules which apply universally in Iran that there is no real chance he will face harm in the future”.

14    The Tribunal accepted that the appellant and his wife may not share the Iranian government's views on following the strict rules of Islam. However, it did not accept that the appellant had previously behaved in a way that incurred any real punishment and that there was no reason for him to change his behaviour were he to return to Iran. It did not accept that there was any reason to believe that adverse consequences would follow his return. The Tribunal also found that the rules that the appellant was required to obey in Iran applied universally, and that no evidence had been led to indicate that they were selectively enforced against particular groups or in a discriminatory manner.

15    The Tribunal did not accept the claims that the second appellant would be exposed to "physical punishment, harsh behaviour and emotional abuse" on her return, or that she would be "brainwashed". It found that the appellants had never been involved in political activities in Iran, nor had they been adversely imputed with any anti-government opinion either while they were in Iran or since their departure as a result of seeking asylum in a western country. Further, as to this last aspect that they feared harm as failed asylum seekers, on the basis of country information the Tribunal accepted that they might face questioning on their return and may be monitored, but that this did not amount to “serious harm” within the definition in s 91R(1)(b) of the Act.

16    Having considered the appellant's claims both individually and cumulatively, the Tribunal concluded that the appellants did not face a real chance of persecution for a Convention reason were they to return to Iran. It was also not satisfied that there was a real risk that he would face significant harm if he returned to Iran, finding that questioning and monitoring by authorities and being exposed to the ideology of the Iranian government did not amount to significant harm.

17    On 21 May 2013, the appellants applied to the Federal Circuit Court for review of the Tribunal's decision. The application was amended by leave at the hearing on 4 March 2015; the amended grounds of review are reproduced in the reasons of the primary judge at [17]. In an ex tempore judgment, the primary judge dismissed each of the amended grounds.

The appeal

Ground 1 – the s 424A response

18    The appellant submits that although the Tribunal purports to set out the appellant’s s 424A response at [54] of its reasons (as part of an attachment to the reasons titled “Attachment B”), in fact it does not. Rather, it sets out text that has nothing to do with the appellant. The primary judge found at [18] that the Tribunal had reproduced a written submission from another file. It is common ground that this response was from a different applicant who appeared before the Tribunal on 14 March 2013.

19    This, the appellant submits, is an error which warrants setting the decision aside because the Tribunal erred in its application of s 424A. As the appellant correctly submits, the s 424A letter plainly contained information that s 424A required be put to the applicant, including particulars of oral representations that the applicant made to the Department on 21 July 2012 in the entry interview before he had lodged his application for a protection visa: cf s 424A(3)(ba).

20    The primary judge found at [20] that the Tribunal did consider parts of the s 424A response. Nonetheless, the appellant submits that by considering somebody else’s s 424A response, the Tribunal did not comply with the requirements of s 424A and accordingly involves jurisdictional error, citing SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294.

21    The appellant submits further and alternatively, that the Tribunal took into account irrelevant considerations, relating to some other applicant which also constituted jurisdictional error, citing Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24.

22    The primary judge found that it was apparent from the content of [5], [8], [10], [11] and [14] of the Tribunal's reasons that the Tribunal had considered the appellant’s s 424A response. The Tribunal’s reasons at [12] and [13], his Honour found, disclosed that it had considered the appellant's statement of 7 April 2013. The Minister submits and I accept that his Honour was correct so to conclude. This, as the Minister submits, may be illustrated from the following:

(a)    At [8] the Tribunal specifically referred to the "recent submission dated 3 April 2013", which it is accepted is the appellant's s 424A response.

(b)    The Tribunal then paraphrased the statements in the response to the effect that the appellant had confirmed that in around 2009 five Etalaat members came to his house claiming that he had weapons, and that he did not mention the reasons why the Etalaat visited him during his entry interview because he was not asked.

(c)    At [10], the Tribunal recited the contentions made by the appellant's adviser that the authorities would interfere with private alcohol consumption and arrest and publicly lash people for drinking alcohol at home.

(d)    At [11], the Tribunal recorded the statement from page 5 of the s 424A response that the appellant clashed with the Sepah "because of his occupation of making school uniforms and that they used the contract as an excuse to harass him but the real reason was that he did not follow the strict rules of Islam".

(e)    At [12], the Tribunal referred to "most recent submission" to the effect that the appellant was consistently “under government surveillance for drinking, alcohol, partying, socialising and communicating his secular ideas", a submission which it found to be "exaggerated". The Tribunal described this as a submission made by the appellant's adviser, but it comes from the appellant's separate submission to the Tribunal, dated 7 April 2013.

(f)    At [14], the Tribunal set out the consequences said by the appellants to be faced by failed asylum seekers upon returning to Iran by reference to an RRT Country Advice dated August 2010 and an Amnesty International Report dated May 2011. That material was reflective of the submissions made at pp 4-5 of the appellant's s 424A response; the submissions included at Attachment B referred to different materials.

23    Thus, there was consideration of those details from the appellant’s s 424A response. Conversely, there was no consideration of the response which the Tribunal had erroneously included at [54]. The appellant did not submit otherwise. The inclusion of such material does not necessarily constitute non-compliance with s 424A and, in this case, it did not do so. The primary judge made no jurisdictional error in this respect.

Ground 2 – The Tribunal ignored the appellant’s evidence regarding alcohol and applied the wrong test

24    The appellant claimed that he would be persecuted in Iran for drinking alcohol. The Tribunal accepted the appellant’s claim that he had been stopped by police when he was accompanied by his wife although at that time they were not married and that alcohol was found in his car. It also accepted that the appellant had consumed alcohol in Iran, and would do so in the future.

25    The appellant submits that the detailed country information he provided in this respect and his arguments concerning the death penalty were completely ignored in the Tribunal’s decision as they are not set out, and there is nothing to suggest that the Tribunal engaged with them. Rather, the appellant contends, all that the Tribunal says in the decision is that it “does not accept on the basis of country information that [arresting and publicly lashing persons caught drinking at home] is reasonably foreseeable”.

26    The appellant’s complaint is that there was a failure by the Tribunal to engage with the content of the country information, or even the existence of that information which he had advanced as part of his s 424A response. This challenge is concerned with process, not outcome. This, the appellant submits, led the Tribunal into error in failing to form the state of satisfaction one way or the other required for the purposes of the review in respect of the criterion in s 36(2)(a) of the Act. He submits that the primary judge was in error in not so finding.

27    It is well settled that an example of jurisdictional error is where, in a given case, relevant material is ignored, demonstrating a failure to perform the statutory task cast upon the Tribunal by the combined provisions in the Act because of the nature of the claims made and the nature of the material ignored: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [68]-[70], citing the decision in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97]-[98] and [111]. The question is whether this is what occurred in the present case.

28    Paragraphs [9]-[10] of the Tribunal’s reasons state:

9.    The applicant’s adviser has argued that alcohol consumption is a crime against God and is punishable by death and that Etelaat’s perception of the applicant’s consumption of alcohol, having found alcohol bottles in his home, would lead to his being imputed with an anti-Islamic view and therefore an anti-regime political opinion. He has also stated in his submission dated 6 March 2013 that on one occasion, the applicant had a bottle of vodka in his car, the police stopped him and he had to bribe them to allow him to go.

10.    The Tribunal has found that it does not accept that the applicant’s home was raided or that empty alcohol bottles were identified. Whilst the Tribunal accepts that the police may have stopped he and his wife before their marriage (he is now married) and may have found alcohol in his car when he bribed them to let him go, and accepts that the applicant and his family may be relaxed about Islam and occasionally drink alcohol and not fast during Ramadan, the Tribunal does not accept that the applicant has previously behaved in a way that has incurred any real punishment from the authorities. Therefore, there is no reason to him to change his behaviour and there is no reason to believe that any adverse consequences will ensure (sic). Whilst the adviser has stated that the applicant says that the authorities will interfere with people’s private lives, even arresting and publicly lashing people for drinking alcohol at home, the Tribunal does not accept on the basis of the country information that this is reasonably foreseeable.

29    At [9] the Tribunal commences with the appellant’s claim that alcohol consumption in Iran is punishable by death. This is an implicit reference to the country information provided to the Tribunal by the appellant. This stated relevantly:

Country information regarding alcohol

In the letter of 20 March 2013, you referred to the following sources of information:

•    Danish Immigration Service Report, ‘On certain crimes and punishments in Iran: Report from the fact-finding mission to Teheran and Ankara’ April 2006;

•    Landinfo, ‘Christians and converts in Iran’ 10 June 2009;

•    Radio Free Europe, ‘Hardened Drinker Faces Death Penalty’ February 2008;

•    Spencer Anderson, ‘Tehran’s Party Scene’ 1 August 2010.

These sources of information were to the effect that Iranian authorities will not intervene in the private lives of its citizens as long as public consumption of alcohol does not occur.

In response, we refer to International Federation for Human Rights’ report titled ‘Iran: Death penalty for every case – ethnic protests, prisoners of conscience, drinking alcohol…’ 3 July 2012. This report shows that drinking alcohol (not necessarily in public) is regularly punished by death sentences and after trials lacking procedural justice:

There are about 20 categories of offences punishable by death in the laws of the Islamic Republic of Iran. Death sentences are regularly imposed for drugs-related charges, religious charges, charges related to consensual sex between adults of different sexes or of the same sex, and even drinking alcohol, none of which are among the “most serious crimes.” There are also vague charges such as moharebeh (fighting God) and corruption on earth. Trials are often, in particular in political cases, extremely unfair, and frequently contravene even the legal norms of the highly flawed justice system, where confessions extracted under torture are admitted in court.

Human Rights Watch has elaborated on the punishment imposed on people drinking alcohol:

According to Iran’s penal code, consumption of alcohol is a hadd crime, or a crime against God, for which shari’a, or Islamic law, assigns fixed and specific punishments. The usual punishment for consumption of alcohol is 80 lashes, but article 179 of the code provides that individuals with two prior alcohol convictions will receive the death penalty upon their third conviction. The law allows a court to ask the Supreme Leader or his representative, usually the head of the judiciary, for clemency if defendants repent after being convicted of the crime based on their own confession. Clemency is not an option, though, if the conviction was based on witness testimony. It is not known whether the defendants in this case have repented, or whether their convictions were based on witness testimony or their own confessions.

30    At the conclusion of the appellant’s responsive statement as to country information concerning consumption of alcohol in Iran, and referring back to the excerpts I have set out above, the following submission was made:

Furthermore, we refer to the information (mentioned above) which states that alcohol consumption is often met with lashings at best and the death penalty for the third offence. As a result, even if the religious leaders ignore “immoral acts” in private, the Iranian authorities will punish even private “immoral acts”. Our client instructs that the authorities will interfere with people’s private lives, even arresting and publicly lashing people for drinking alcohol at home.

31    As the Minister notes, the primary judge observed that in [9] and [10] of the Tribunal's reasons, it had considered the appellant’s claims concerning the potential consequences of alcohol consumption in Iran. The Tribunal stated that it reached its conclusion as to the foreseeability of arrests and lashings "on the basis of the country information" (emphasis added). That description is generic and not confined to country information exclusive of what was in the appellant’s response. Attachment B to the Tribunal’s decision set out the country information upon which the Tribunal relied and which it put to the appellant at the hearing and then summarised in its s 424A letter. That information indicated that the authorities in Iran would ordinarily not involve themselves in the private lives of its citizens.

32    The additional country information to which the appellant's adviser referred in the s 424A response which I have found the Tribunal did consider, was not inconsistent with that information. The United Kingdom Home Office Report dated 16 January 2013, for example, referred to by the appellant in his responsive submission stated that "Iranian authorities will not normally interfere in the private sphere of the citizens". The spectre of the Iranian authorities “interfering” with the consumption of alcohol in private homes, including by arrest and public lashing, was but a submission made in the appellant’s s 424A response. Nothing in the excerpts, in that submission, from either the International Federation for Human Rights Report or from Human Rights Watch suggested that this was the case.

33    Moreover, the Country Information set out in Attachment B to the Tribunal’s reasons was to the effect that public consumption of alcohol was a crime but that the consumption of alcohol in private homes is, in practice, not considered a crime any longer.

34    Indeed, the Islamic Human Rights Commission reported, as set out in Attachment B, that “the [Iranian] authorities today take a relaxed attitude to alcohol consumption. Only if consumption causes a public disturbance will prosecution be likely.”

35    As I have explained, the Tribunal did refer in its reasons to the appellant’s contention that alcohol consumption was punishable by death. I accept the Minister’s submissions that it was not necessary to do more than that, in circumstances where it found that it was not even reasonably foreseeable that the authorities arrested and publicly lashed persons for drinking alcohol at home.

36    I find that the primary judge made no error in concluding that the facts of this case were "significantly different" to those in MZYTS (at [23] of his Honour reasons). Unlike that case, here the reasons of the Tribunal demonstrated that it had considered the relevant materials provided by the respondent. Indeed, the concluding words of the Tribunal’s reasons at [10]:

Whilst the adviser has stated that the applicant says that the authorities will interfere with people’s private lives, even arresting and publicly lashing people for drinking alcohol at home, the Tribunal does not accept on the basis of the country information that this is reasonably foreseeable. (Emphasis added.)

reflect the language used in the last sentence of the concluding paragraph in the appellant’s s 424A response regarding the consequences of consuming alcohol in Iran. I set this para out at [30] above. That sentence states:

Our client instructs that the authorities will interfere with people’s private lives, even arresting and publicly lashing people for drinking alcohol at home.

37    The primary judge, correctly in my opinion, was not persuaded that the Tribunal considered some parts of the s 424A response and ignored others. This stands in contrast to the facts in MZYTS at [41], [44]-[45].

38    SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 is also distinguishable on its facts. As Jagot J described it:

[2]    The Tribunal was satisfied that there was a real chance that the appellant would suffer serious harm by reason of his religion (the appellant is a Shia Muslim) and opinions that would be imputed to him by others (Sunni Muslims, the Taliban, and Sunni extremist groups) if he were to return to the Kurram Agency in Pakistan, but found that it was reasonable for the appellant to relocate to Karachi in Pakistan; the consequence was that the appellant was not a person in respect of whom Australia has protection obligations as set out in s 36(2) of the Migration Act 1958 (Cth) ...

. . .

[47]    There is no dispute between the parties that the appellant claimed that he was at risk of harm by reason of his membership of a particular social group, being the family of his uncle in circumstances where his uncle had become a target of the Taliban as a result of political activity (primarily, the making of documentaries and the giving of an interview on television in Islamabad concerning atrocities committed by the Taliban including on members of the Turi tribe). The appellant claimed that his uncle received letters and telephone calls after the television interview warning him that he and his family would be killed. Further, after the interview the appellant was followed by three men when he left the university campus in Peshawar. He believed the men to be members of the Taliban and returned to the university campus because he was afraid of them.

[48]    In a written submission to the Tribunal the appellant’s representative dealt with the issue of relocation. The submission set out the appellant’s claims including the circumstances relating to his uncle and continued:

In consideration of the above risk factors it should also be acknowledged that the [appellant] has a particular identity to the Taliban and or other religious extremists due to his relationship with [his cousin and uncle]. The UNHCR Guidelines notes:

Given the wide geographic reach of some armed militant groups, a viable IFA/IRA will generally not be available to individuals at risk of being targeted by such groups. The operational capacity of certain militant groups …extends far beyond FATA [Federally Administered Tribal Areas] or the Khyber Pakhtunkhwa province as evidenced by high profile attacks, such as suicide bombings, countrywide, particularly in urban centres. Furthermore, some non-State agents of persecution…reportedly have links to or are closely associated with influential actors in the local and central administration, law enforcement and/or judiciary. As a result, they often operate with impunity and their reach may extend beyond the areas under their immediate control.

Therefore in all the circumstances, the Tribunal should find that it is unreasonable for the [appellant] to relocate within Pakistan.

(Emphasis in original.)

39    Her Honour held that notwithstanding that the Tribunal referred to the submission, and also to a part of the UNHCR Guidelines dealing with sectarian violence, it had failed to consider the section in question: at [50]-[52]. Her Honour concluded the relevant material was “cogent and held an important, even critical, place in the appellant's claims”: at [64]. The relevant part of the UNHCR Guidelines “expressly addressed the very issue with which the Tribunal was dealing”: at [63]. Her Honour concluded that the Tribunal had overlooked the relevant part of the UNHCR Guidelines: at [67]-[70].

40    However, in this case, as the Minister correctly submits, the country information in the appellant’s s 424A response constituted information which was not inconsistent with the information on which the Tribunal relied namely, that the authorities did not prosecute people for drinking alcohol in the privacy of their homes. The Tribunal considered the appellant’s submission. The primary judge, as I have concluded, made no error in not inferring that the Tribunal considered some parts of it and not others. Accordingly, there was no error of the kind identified in Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [111]. This was not a case which, in this context, required a “process of weighing evidence and preferring some over the other”: MZYTS at [50]. The relevant evidence in the appellant’s country information was not inconsistent with that relied upon by the Tribunal. There was no need to spell this out. It did not fall into error in not doing so. The primary judge did not commit error in this respect.

41    The appellant submits that in two places in the Tribunal’s decision ([10] and [13]), the Tribunal rejects claims on the basis that they are not “reasonably foreseeable” and that in doing so, it applied the wrong test. He contends that the correct test that the Tribunal ought to have applied is the test set out in the Convention and as articulated by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. The plurality in that case, referring to Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, said at 571-2:

… In Chan, Mason CJ said:

‘If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.’

In the same case, McHugh J said that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.

Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term ‘well-founded fear’ is to invite error.

No doubt in most, perhaps all, cases...the application of the real chance test, properly understood as the clarification of the phrase ‘well-founded’, leads to the same result as a direct application of that phrase... Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term.... A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term ‘real chance’ not as epexegetic of ‘well-founded’, but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.

(Emphasis added.)

42    The appellant submits that it is clear that the “reasonably foreseeable” test that the Tribunal applied was a different test. Thus he submits, using the example of McHugh J in Chan, a possibility of less than 10% could well be described as not “reasonably foreseeable”, but nonetheless satisfy the Convention test. Likewise, a fear (for example, a fear of the death penalty) may have a substantial basis, and yet be only a remote possibility, citing SGKB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 381 at [21].

43    This application of the wrong test, the appellant submits, caused the Tribunal to fall into jurisdictional error. This submission overlaps with ground 3 to which I now turn.

Ground 3 – application of the real chance test

44    The Minister submits that this submission gives undue focus to the use of "reasonably foreseeable" in the two places in the Tribunal's reasons to which the appellant’s submissions are directed and does so at the expense of reading the Tribunal's decision as a whole, including the attachments.

45    The summary of the applicable law was set out in Attachment A to the Tribunal’s reasons from which it is evident that the Tribunal correctly understood the test.

46    I accept that the Tribunal's use of the phrase "reasonably foreseeable" in context was unfortunate. However, in its reasons where this phrase is employed (at [10] and [13]), it is fair to read this as meaning that the Tribunal did not accept that there was a real chance of the circumstances arising as the appellant claimed. It may be seen that the “real chance” test is set out at [12].

47    Further, as the Minister correctly submits, when it came to expressing its ultimate conclusion, the Tribunal did so by reference to the correct test and the need for the appellant to face a real chance of Convention-based persecution on an individual and cumulative assessment of his claims.

48    The primary judge was not in error in concluding that when the Tribunal’s reasons are read as a whole that it neither misunderstood the correct test nor did it apply an incorrect test: at [37] of his Honour’s reasons.

Ground 4 – subsistence claim based on recriminations coupled with economic downturn

49    It was the appellant’s claim that, because of his non-fundamental interpretation of Islam, and his perceived opposition to the government, he would be the subject of recriminations from the Iranian government. He gave examples of instances of such recriminations in the past such as [10]. The Tribunal made adverse findings as to the appellant’s credit. As I mentioned it rejected his claims that his home was raided by Etalatt and that during that raid empty alcohol bottles had been located. It also rejected his claim that the Iranian authorities had opened a file in relation to him. The Tribunal accepted that he and his wife may have been stopped together because they were not married, but noted they were now married and further accepted that the authorities may have found alcohol in his car on one occasion but that he did not suffer any harm. However the Tribunal held that because the appellant’s behaviour had not incurred any “real” punishment in the past there was no reason to believe that in the future adverse consequences would ensue.

50    The appellant submits that this last step of the reasoning process involved error, because it ignored a fundamental part of his claim. He claimed that, because of the worsening economic situation in Iran, the effect of the repressions he had suffered in the past would be more pronounced in effect in the future because he would suffer increased economic hardship. He further claimed that the extent of the change was such that it would affect his ability to subsist. He submits that his claim was thus one of persecution: s 91R(2)(d) of the Act.

51    Accordingly the appellant submits that it was not open to the Tribunal to dismiss that claim by reference only to matters past, because it was part of his claim that the future would be different to the past. He submits that the Tribunal was therefore required to address the economic evidence that he put forward but failed to do so, or even mention this important aspect of his claim, or make any reference to the economic evidence advanced. Thus, the appellant submits that the clear inference is that the claim simply was not considered, and thus a jurisdictional error occurred, citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 and MZYTS.

52    The appellant points to the finding of the primary judge at [29] of his Honour’s reasons that “the disadvantage identified in the document entitled ‘Economic Environment in Iran’ did not reflect any harm which the first applicant had claimed to fear”, and so was irrelevant. The appellant contends that the document to which his Honour was referring was in fact a submission setting out a claim for precisely this harm.

53    I do not accept the appellant's submissions. I see no logical or necessary connection between the two findings made by the Tribunal to which I have referred – being stopped in his vehicle with his wife, though not his wife at the time and possibly being found with empty alcohol bottles at that time – on the one hand and the worsening state of the Iranian economy on the other.

54    The other claims said to support an imputed political opinion to the appellant were rejected by the Tribunal.

55    The difficulties that the appellant submitted he would encounter in subsisting in Iran were directly related to the political opinion he claimed the Iranian authorities would impute to him. However, the rejection of this asserted imputed political opinion denied the submission its necessary factual basis and further consideration of it became unnecessary: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. In my opinion, the primary judge was correct in arriving at this conclusion at [27] of his Honour’s reasons. No error has been demonstrated.

Ground 5 – wrong approach to assessing appellant’s modified conduct

56    The appellant submits that it was a feature of the Tribunal’s reasoning that, in two separates parts of its decision, it relied upon the appellant continuing to act in the future as he had acted in the past. At [10] the Tribunal held:

[T]he Tribunal does not accept that the applicant has previously behaved in a way that has incurred any real punishment from the authorities. Therefore, there is no reason for him to change his behaviour and there is no reason to believe that any adverse consequences will ensure [sic].

57    Likewise, at [12]:

[T]he Tribunal does not accept that the applicant has previously behaved in a way that has incurred any real punishment. Therefore, there is no reason for him to change his behaviour when he returns to Iran and there is no reason to believe that any adverse consequences including any perceived opposition to the Iranian regime will ensure [sic].

58    The appellant submits that this reasoning involves an error of approach as the Tribunal was required to address the question whether the appellant only behaved as he did in the past, and thus would only behave in like manner in the future, because of a fear of persecution. He submits that the failure to address this question was an error. He relied upon what was stated by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [43]:

In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

(Emphasis added.)

and, to similar effect, the reasons of Gummow and Hayne JJ at [88].

59    As was explained by the plurality in Minister for Immigration and Border Protection v SZSCA (2014) 314 ALR 514 at [17]:

The essential reasoning in Appellant S395/2002 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed – whether the fear of persecution was well founded – had not been addressed.

(Footnotes omitted.)

60    This submission is factually flawed. First, it must be recognised that the appellant, as the primary judge came to observe at [32]-[33] of his Honour’s reasons, had not advanced any claim that he modified his behaviour so as to avoid persecution. Accordingly, the issue of modified conduct contained within the judgment of McHugh and Kirby JJ in S395/2002 is of no relevance here.

61    Therefore, the Tribunal was not diverted from considering whether the appellant would face a real chance of persecution if he returned to Iran.  There was no “repressed behaviour” or modification of conduct and therefore no conflation of that with the question of the harm feared in the way referred to in SZTFI v Minister for Immigration and Border Protection [2015] FCA 322 at [79]. It is for these reasons that the issue is of no relevance.

62    The Tribunal found that the appellant had not suffered any serious harm and that there was no reason to conclude that any adverse consequences would ensue on his return to Iran. The Tribunal’s reasons should not be read as requiring him to modify his behaviour, or that he had modified his behaviour. Indeed the appellant asserted, in effect, that he had not done so. He stated in his 7 April 2013 written statement to the Tribunal that he “could not therefore evade [the authorities] living [his] life only within the private sphere”, and that he “could not imprison [himself] within [his] own house to evade persecution … which intervened even in [his] and [his] wife’s way of dressing”. The Tribunal was not requiring the appellant to modify his behaviour in a manner contrary to the High Court's decision in S395/2002. Rather, the Tribunal reasoned on the footing that the appellant did not need to modify his behaviour whatsoever.

Orders

63    I will accordingly make the following orders:

1.    The name of the second respondent be amended to "Administrative Appeals Tribunal".

2.    The appeal be dismissed.

3.    The first appellant pay the first respondent’s costs of the appeal.

Associate:    

Dated:    19 November 2015