FEDERAL COURT OF AUSTRALIA

BHY15 v Minister for Immigration and Border Protection [2018] FCA 187

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the respondents’ costs of the appeal to be taxed or as agreed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The matter before the Court is an appeal from the Federal Circuit Court which, on 4 September 2017, dismissed the appellant’s application for judicial review of an International Treaties Obligations Assessment (ITOA) which was dated 6 February 2015. That assessment had been prepared by the second respondent (the assessor). The ITOA had been required for the purposes of assessing whether Australia had any non-refoulement obligations to the appellants under various international treaties. The assessor concluded that Australia did not have any such non-refoulement obligations to the appellants or either of them.

Non-appearance of the appellant

2    When the matter was called on this morning there was no appearance for the appellants. There is no reason to think that they were unaware of the time and date set for the hearing of this matter. I observe that their failure to file submissions indicates that they have little interest in actively pursuing it. As a result of their non-appearance when the matter was called on, the power of the Court was enlivened to dismiss the appeal. In exercising that discretion it is not inappropriate to take into account the merits of the appeal.

Background

3    The appellants are both Iranian citizens. The first appellant is 51 years old and is the father of the second appellant who is 23 years old. They both arrived on Christmas Island on 5 October 2010 as Irregular Maritime Arrivals. Each had exited Iran on their Iranian passports which had been issued under their own names. Since their arrival in Australia they have been engaged in numerous processes relating to their claimed entitlement to a protection visa. The various steps which have been undertaken were succinctly identified by the learned judge below who set them out as follows:

7.    On 28 November 2010 the Applicants made a request for a Refugee Status Assessment (‘RSA’). On 7 March 2011 an officer of the Department of Immigration and Citizenship (as it then was) (‘the Department’) found the Applicants were not persons to whom Australia owed protection obligations. The Applicants subsequently applied for an Independent Merits Review (‘IMR’) of the RSA decision on 17 March 2011. On 10 November 2011 the IMR found the Applicants did not meet the criteria for a protection visa.

8.    On 22 December 2011 an application for judicial review of the IMR decision was lodged with the Federal Magistrates Court of Australia (as it then was). On 18 May 2012 a Post-Review Protection Check (‘PRPC’) concluded that the Applicants’ case did not meet the guidelines for referral to the Minister for consideration. On 24 September 2012 the review application against the IMR decision was dismissed. A subsequent appeal to the Federal Court of Australia was dismissed on 12 February 2013.

9.    On 22 October 2013 an application for judicial review of the PRPC assessment was lodged with the Federal Circuit Court of Australia (‘the Court’). On 6 June 2014 by way of consent orders the Department of Immigration and Border Protection (‘the Department’) was prevented from acting or relying on the PRPC assessment and undertook to assess the Applicants’ protection claims as part of the then new ITOA regime. On 8 February 2015 the Department made its ITOA assessment that Australia did not have non-refoulement obligations in respect of the Applicants.

10.    The Applicants’ filed an application for judicial review of the ITOA assessment in the Court on 10 July 2015.

11.    On 11 April 2016 by way of consent orders the proceeding was adjourned pending determination by the High Court of Australia of the appeal from the judgment of the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 (‘SZSSJ’). On 27 July 2016 the High Court determined the appeal in SZSSJ. On 12 September 2016 orders were made listing the matter for hearing.

4    The application for review of the ITOA before the Federal Circuit Court occurred on 19 May 2017, but, unfortunately for the appellants, it was dismissed on 4 September 2017. Before the Federal Circuit Court the appellants raised two grounds of review. The first concerned whether they were accorded procedural fairness in relation to the making of the ITOA. Essentially, that argument was to the effect that they were prevented from making comment or argument upon certain information considered by the Tribunal. That ground was rejected and it is not now pursued. The second ground concerned whether the assessor had committed a jurisdictional error by failing to take into account the cumulative effect of all of the appellants’ claims.

5    Before this Court it is only the latter of the above grounds which is pursued and in the Notice of Appeal it is stated in the following terms:

The primary judge erred by failing to find that the Tribunal committed jurisdictional error by failing to consider the cumulative effect of the applicants’ claims and therefore the totality of the case.

The decision of the assessor

6    The assessor’s findings are, on any view, detailed and considered. There does not appear to be any complaint that the assessor considered each and every one of the claims raised by the appellants. Equally there does not appear to be any dispute that the assessor rejected each and every one of the “claims” advanced by the appellants as the foundation for their fear of harm should they return to Iran. In relatively brief terms the following is a summary of the assessor’s findings in relation to the appellants’ particular claims:

(a)    The assessor considered that the first appellant had no relevant political profile. He was not arrested for participating in protests after the 2009 election, nor was he arrested the following year. He was not a political or human rights activist or other person targeted by the authorities. The assessor rejected the first appellant’s claim that he was formerly a member of the Bazij which, if true, may have been a reason why he would be targeted by that group. He also found that the forces of the authorities did not attempt to enter the appellants’ house as had been claimed. He also rejected the appellants’ version of the events occurring at the 2009 protest in which the appellants claimed they had participated. The assessor concluded that the appellants did not have any political profile prior to departing for Australia other than residing in an area which was at the heart of certain protests and that they had no reason to come to the attention of the authorities. This conclusion was supported by the fact that neither of the appellants were arrested.

(b)    On the basis that the appellants had no political profile, the first appellant’s claim that he and his family were put under prolonged surveillance as a consequence of his involvement in any protests was rejected as being untrue.

(c)    The assessor also concluded that the available Country Information reported that even lower profile activists who were arrested in 2009 and 2010 are unlikely to face serious ongoing harassment and should be able to go about their daily lives unmolested in Iran. The fact that the first appellant was not even arrested supported the conclusion that he should be able to go about his daily life without experiencing undue harassment.

(d)    The assessor also rejected the first appellant’s claims that he had received several summons since leaving Iran and that his house had been sealed by the authorities. He concluded that even low profile political activists outside of Iran do not receive summons in absentia. An issue arose as to why the appellants had not raised this matter of the summons at an early stage. The first appellant claimed that his wife did not inform him of the existence of the summonses for an extended period of time, however, that explanation was considered implausible and rejected. The assessor also rejected the first appellant’s claims that the authorities went to his house to attempt to ascertain his whereabouts after he had left Iran. Importantly, the lack of credibility of the first appellant was increased by his failure to raise a number of these issues at an earlier stage.

(e)    The assessor did not accept that the first appellant had been issued with court documents/summons in Iran for any type of alleged political crime and that necessarily meant that he believed that the alleged summonses had been fabricated to further enhance the first appellant’s claims for protection. Based upon that he also did not accept that the first appellant’s house had been sealed by the authorities or that his bank accounts had been frozen. In any event, the assessor found that if those events did occur, they did not happen because of the first appellant’s political opinion.

(f)    The information available to the assessor established that returning failed asylum seekers were not detained in Iran unless they had anti-government profiles or drew attention to their bid for asylum whilst they were abroad. The assessor found that the appellants did not have any anti-government profiles which would bring them to the attention of the authorities. Additionally, the appellants have not engaged in political activities in Australia that would be likely to come to the adverse attention of Iranian authorities and whilst they may be questioned on arrival back in Iran, they would not face a real chance of persecution.

(g)    The assessor found that the appellants lacked credibility and he rejected, as being untrue, their claims that they held political profiles, their family was put under prolonged surveillance or that they had been served with court documents/summonses for some type of political crime. The assessor found that this last matter was fabricated in order to enhance their claims for protection. He did not find them to be reliable, credible or truthful witnesses about their experiences in Iran. Many inconsistencies in the appellants’ statements were identified.

7    As a result of the above the assessor found that the appellants did not have a well-founded fear of harm for Convention reasons, and nor were the appellants persecuted. Further, the assessor found that in the circumstances the appellants were not persons to whom Australia owed non-refoulement obligations.

Contentions before the court

8    The difficulty for the appellants in this case is that the assessor made findings of fact which negated the existence of any valid claim to the fear of persecution or fear of significant harm if they were returned. It followed that its consideration, based upon its conclusions as to the non-existence of the claimed circumstances, must necessarily have directed it to conclude that the appellants did not face a real chance of persecution for Convention Reasons and that their claimed fear was not well founded.

9    The sole point of the appeal is whether the assessor, having found that the circumstances alleged as being the foundation for a fear of persecution or significant harm did not exist, was required to consider whether, taking all of those circumstances together, a fear of persecution or significant harm existed. That is, whether he was required to undertake a cumulative assessment of the various claimed integers which the appellants asserted underpinned their claim to a fear of persecution?

10    This precise situation was considered recently by the Full Court in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188. The relevant principle to apply in cases of this nature is succinctly stated at [32]-[34] as follows:

32 Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].

33 Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:

Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].

The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].

34 In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

11    Here, the assessor rejected all of the integers of the appellants’ claims relating to their asserted fear of persecution or significant harm upon being return to Iran. There being no individual factor which the assessor accepted as existing, there could have been no point in any purported “cumulative assessment” of all of those non-existent factors.

12    An important finding of the assessor was that the appellants had no political profile at all. The consequence was that all of the various claims to a fear of persecution or harm fell away. That was true in relation to any alleged surveillance of them but also true in relation to whether or not the content of the appellants’ Facebook pages would be monitored by the Iranian authorities. The assessor determined that it would be implausible that the Iranian authorities would monitor the internet usage of all of their nationals who were outside of Iran. Further, the assessor determined that the appellants would not face harm by reason of the fact that they might be suspected of having sought asylum in the West. Again, that was because neither of them had any political profile.

13    In addition, the impact of the appellants being outside of Iran was rejected as a basis for fear of persecution or significant harm. The assessor found that the claim that summonses had been issued against them in absentia were fabricated and it did not accept that the appellants’ house had been sealed and their bank accounts frozen.

14    The circumstances in this matter resemble those in Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 where Katz J identified that where claimed past events had been rejected by the decision maker as having existed, there is no warrant for holding that that decision maker is required to have regard to the possibility that those past claims actually occurred. That observation is apposite to the circumstances of the matter before the Court.

15    It might also be observed that after a meticulous and careful analysis of all of the claims the assessor then considered whether or not the appellants had a well-founded fear of persecution or significant harm. That consideration (at pp 296-299 of the Appeal Book in relation to the fear for a convention reason and at pp 300-304 in respect of whether there is a risk of significant harm for the purposes of Australia’s non-refoulement obligations) shows that all of the matters raised by the appellants were considered together. The assessor found that no convention ground existed and nor was there any risk of significant harm for the purposes of the non-refoulement obligations. It is quite apparent that the assessor undertook the task of considering the totality of the evidence for each purpose. Therefore, even if the assessor was required to undertake a consideration of the cumulative effects of the claims, he did so.

Conclusion

16    It follows that there is no substance in the appeal ground sought to be agitated. The non-appearance of the appellants has enlivened the power of the Court under r 36.75 of the Federal Court Rules and, given the circumstances including the absence of any merits to the appeal it should be dismissed.

17    There is no reason why the costs of the appeal should not follow the event.

18    The appeal should be dismissed with costs.

Associate:

Dated:    28 February 2018