FEDERAL COURT OF AUSTRALIA

AHB16 v Minister for Home Affairs [2018] FCA 2006

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 2 and 3 of the orders made by the primary judge on 29 June 2018 are set aside and in lieu thereof it is ordered that:

(a)    A Constitutional writ be issued quashing the decision of the former Refugee Review Tribunal of 15 February 2013 and directing the second respondent to determine the appellant’s application according to law and in accordance with these reasons.

(b)    The first respondent before the Federal Circuit Court pay the appellant’s costs of the application to that Court, fixed in the sum of 7,328.00.

3.    The first respondent pay the appellant’s costs of the appeal to this Court, fixed in the sum of $9,570.00.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals a decision of the Federal Circuit Court of Australia by which an application for judicial review of a decision of the Refugee Review Tribunal was dismissed: AHB16 v Minister for Immigration [2018] FCC 1646.

background

2    The appellant is a citizen of Iran who arrived on Christmas Island in 2012. He made application to the Minister for a protection visa on 17 September 2012, which was refused on 22 October 2012. The appellant then applied to the former Refugee Review Tribunal for review of that decision. On 15 February 2013 the Tribunal affirmed the decision not to grant the appellant a protection visa. On 10 February 2016 the appellant filed an application in the Federal Circuit Court seeking an extension of time within which to seek review of the decision of the Tribunal, and seeking an order in the exercise of that Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) that the decision of the Tribunal be quashed, and that a writ of mandamus issue. On 29 June 2018 the Federal Circuit Court extended time for the filing of the appellant’s application to 10 February 2016, but dismissed the application.

3    Before the Federal Circuit Court was one ground of review, namely –

The Tribunal failed to consider a claim that arose on the materials, being that the applicant faced a real chance of persecution by reason of the fact that his tattoo would create the impression that he is a Muslim Iranian who converted to Christianity.

4    The appellant’s appeal to this Court alleges error by the primary judge in rejecting the appellant’s claim, and raises the same underlying ground –

The primary Judge erred by failing to consider that the Tribunal failed to consider a claim that arose on the materials, being that the Applicant faced a real chance of persecution by reason of the fact that his tattoo would create the impression that he is a Muslim Iranian who converted to Christianity.

5    The appellant’s application for a protection visa relied on a claim that he was at risk of persecution in Iran because he intended to become a Christian, that he had rejected Islam, and that he had expressed views against Islam. The Tribunal’s decision proceeded on the basis that the appellant had a large tattoo of a cross which appeared to cover his entire upper arm. After his arrival at Christmas Island in 2012, the appellant initially stated to an interviewing officer in an age assessment determination that he had obtained the tattoo in Indonesia. Later in the same interview, the appellant claimed that he had obtained the tattoo in Iran.

6    The appellant claimed in an interview for the purposes of his protection visa application that he feared harm returning to Iran as a result of the tattoo, which he claimed he obtained in Iran at the end of 2009 or early 2010 in a barber shop in south Tehran. The delegate of the Minister who assessed the appellant’s application for a protection visa was not satisfied that the appellant had obtained the tattoo in Iran.

7    The appellant claimed before the Tribunal that he had obtained the tattoo in Iran in February 2010 before he commenced military service, and claimed that he did not wish to return to Iran because he would be mistreated by the government and the authorities for being an infidel. The Tribunal recorded at [58] of its reasons that the appellant claimed that he would be identified as an infidel because of his tattoo. The appellant stated to the Tribunal that he had been involved in a fight in Iran with Basijis during which his tattoo was noticed. The appellant stated that two or three days after the fight, he was detained and taken to a place where he was mistreated and accused of changing his religion. The appellant stated that he did not know who was involved, but assumed that they were agents of the state, and that they had told him he should be tortured and killed. The appellant claimed that he anticipated further harm from the same people in the future.

8    The Tribunal at [48] of its reasons referred to a submission by the appellant’s migration agent that the appellant faced persecution in Iran for the following reasons –

    his religion (renunciation of Islam and imputed Christian convert);

    his membership of the particular social group of tattooed Iranian men; and

    his perceived opposition to the Iranian regime.

9    The second bullet point in the written submission to the Tribunal was developed further under the heading, “Convention Nexus – Membership of the Particular Social Group of Tattooed Iranian Men”. The three submissions were referred to again by the Tribunal at [84] of its reasons, where it stated (emphasis added) –

The applicant claims that he will be subjected to persecution for reasons of religion, as he has renounced Islam and converted to Christianity; his membership of the particular social group of tattooed Iranian men; and for his perceived opposition to the Iranian regime.

10    The Tribunal referred again to social groups at [99] of its reasons, and to a social group of “Iranians with tattoos”.

11    Paragraph [49] of the Tribunal’s reasons refers to the submission that –

The adviser stated that the applicant will be considered a Christian convert because of his tattoo; and perceived as an opponent of the Iranian regime because of his religion, his … rejection of Islam, his tattoo, and his attempt to secure protection in Australia.

12    The Tribunal made lengthy reference to reports about tattoos in Iran at [70]-[74] which it is desirable to set out (footnotes omitted) –

70    The Tribunal commented that tattoos were quite common among young people in Iran and many hairdressers, beauty parlours, and dermatologists, provide tattooing services in Iran. The Tribunal noted that some reports indicate that people with tattoos have been harassed by the authorities but the evidence did not indicate that the harassment commonly amounted to persecution. The Tribunal noted that Associated Press (AP) reported in 2006 that tattoos had become fashionable among young Iranian women but they had to 'keep them under wraps from authorities'. The AP reported that there were dozens of backroom tattoo parlours in Tehran. The Tribunal noted that the Agence France Press (AFP) reported that tattoos had been banned by the Health Ministry in an attempt to prevent the spread of HIV and Radio Free Europe/Radio Liberty reported that a young man had been fined for 'wearing a tattoo – and therefore harming his own body'. The Tribunal noted that tattoos were frowned upon in Iranian culture and the Iranian authorities blocked access to tattoo websites.

71    The Tribunal noted that The Guardian reported that eleven women's salons had been closed for providing tattoos and this was reportedly part of a broader 'crackdown' on salons and barber shops by the authorities in Iran which were trying to enforce Islamic dress codes. According to the BBC the authorities accused the barbers of encouraging un-Islamic behaviour by offering Western hairstyles, tattooing and eyebrow plucking for men.

72    The Tribunal noted advice by the Department of Foreign Affairs and Trade (DFAT) which indicated that 'many hairdressers, beauty parlours and dermatologists in Iran provide tattooing services'. The Tribunal noted that contrary to reports that tattoos were banned, DFAT advised that tattoos were not banned in Iran. The Tribunal noted however, that some persons with tattoos have been harassed:

Tattoos are not banned in Iran, although there are reports of people being harassed and/or arrested by the police for having a tattoo (as part of broader crackdowns on western inspired fashion). The Ministry of Hygiene Treatment and Medical Training told Post that tattooing can legally be done in businesses such as hairdressers and beauty parlours, but only be under the supervision of a dermatologist if tattooing was done without this medical supervision, it would be considered illegal.

73    The Tribunal noted that DFAT indicated that there were reports of people being harassed by police for having tattoos, adding that they 'heard reports of Basijis taking things into their own hands and targeting individuals that they do not like the look of and they could pose problems for people with tattoos which were not covered.

74    The Tribunal noted that the Iran Human Rights Voice and Reuters reported that the Iranian authorities enforced a 'stricter Islamic dress code' at a number of universities and that both male and female students were forbidden from tattooing their lips, eyebrows or eyes. The Tribunal commented that the above information indicated that tattoos were frowned upon in Iran, and that sometimes Basijis took matters into their own hands in harassing persons with tattoos, but commonly the government did not subject Iranians with tattoos to treatment amounting to persecution. The applicant was asked if he wanted to comment on the information presented to him. He stated that he did not want to provide a comment.

13    At [75] and [76] the Tribunal turned to the appellant’s claims relating to religion, and at [76] the Tribunal referred to country information that indicated that Muslim Iranians converting to Christianity may be at risk of harm.

14    The Tribunal rejected the appellant’s claims that he had any difficulties with the authorities in Iran. The Tribunal found that the appellant’s claims regarding religion were fabricated. It found that the appellant did not have a genuine interest in Christianity, and the Tribunal did not accept that he had strong views regarding Islam, or that he had actively rejected Islam or expressed views against it. The Tribunal found that the appellant’s claims relating to his difficulties were contrived or fabricated to enhance his protection visa application. In particular, at [85] the Tribunal found –

The Tribunal accepts that the applicant has a tattoo and that he left Iran with a false passport and he sought asylum in Australia. It is not satisfied however, that the applicant provided a credible account of his circumstances in Iran or Australia. It finds that he contrived most of his major claims to obtain a protection visa.

15    At [88], the Tribunal did not accept as credible the appellant’s claims that he had a genuine interest in religion, or that he expressed views relating to religion in Iran, or that he was mistreated by the authorities in Iran because of his religion.

16    At [94] and [95], the Tribunal considered separately the appellant’s claims relating to his tattoo. It is desirable to set those paragraphs out in full –

94    The Tribunal has accepted that the applicant has a tattoo. It has accepted that he left Iran with a false passport and that he may be returning to Iran as a failed asylum seeker from the West. The Tribunal has considered whether these matters place him at risk of persecution in Iran.

95    The applicant claims that in 2011 he was targeted and mistreated by the authorities in Iran because he had a tattoo. The Tribunal has rejected the claim that the applicant was targeted for having a tattoo, nevertheless it has considered whether having a tattoo will place the applicant at risk of harm in Iran. Information from external sources indicates to the Tribunal that tattoos are frowned upon by the authorities and society in Iran; and the Basijis have been known to take matters into their own hands and target individuals with tattoos. Information from external sources, which was discussed with the applicant during the hearing, indicates that tattoos are not generally accepted by the authorities or society in Iran but they are becoming increasingly common among young Iranians. The Tribunal is satisfied by the information from external sources that Iranian citizens with tattoos are not ordinarily subjected to circumstances amounting to persecution for this reason alone. The applicant claims that he avoided attracting the adverse interest of the authorities in Iran by keeping his tattoo concealed. However, the Tribunal finds that the applicant's tattoo would not have been a matter of particular interest or concern to the authorities in Iran. It finds that a similar situation will continue for the applicant in the reasonably foreseeable future. It finds that his fear that he will be targeted by the authorities in Iran because he has a tattoo is not well­ founded. It has noted that the Basijis do sometimes target individuals with tattoos but finds that there is only a remote chance that the applicant will be subjected to persecution in Iran for having a tattoo.

17    In my view, although the Tribunal accepted that the appellant had a tattoo, in circumstances where the Tribunal found that much of the appellant’s claims were fabrications, the Tribunal’s reasons do not state whether the Tribunal accepted that the appellant obtained his tattoo in Iran, as he had claimed, or later.

The decision of the federal circuit court

18    In the Federal Circuit Court the appellant claimed that upon the materials before the Tribunal a claim arose that was not expressly put to the Tribunal, but which still required consideration, namely, that the appellant may be persecuted or suffer significant harm if returned to Iran by reason of him being imputed or perceived as being a Christian, relying on NABE v Minister for Immigration and Multicultural Affairs (2004) 144 FCR 1. Before the Federal Circuit Court, the Minister accepted that a failure to consider a claim that is expressly made, or which clearly arises on the material before the decision maker, can give rise to an error going to jurisdiction.

19    The appellant’s claim was rejected by the primary judge. The primary judge accepted at [56] that there is a distinction between a claim that the applicant would be at risk upon his return to Iran because he had a tattoo per se, and a risk arising from the fact that he had a tattoo of a cross, being a Christian symbol which may give rise to an imputation that he had converted to Christianity, had turned his back on Islam or was otherwise anti-regime. However, the primary judge held at [58] that when the Tribunal’s reasons are read as a whole, it is clear that the Tribunal not only considered the fact that the applicant had a tattoo of a cross on his arm, but also considered the fact that this could give rise to an imputation that he would be considered to be a convert to Christianity with the attendant risks. The primary judge at [59] pointed to the statement in the Tribunal’s reasons at [95] that “the applicant claims that in 2011 he was targeted and mistreated by the authorities in Iran because he had a tattoo”. The primary judge held that this statement must be read in light of the earlier statements at [84] of the Tribunal’s reasons where it had said –

He claims that in 2011, he was detained by the authorities in Iran for three days and accused of changing his religion and proselytising about Christianity.

…

He claims that he will be considered a Christian convert because of his tattoo and perceived as an opponent of the Iranian regime because of his religion, his rejection of Islam, his tattoo…

20    The primary judge considered that in reading paragraph [95] of the Tribunal’s reasons, regard should also be had to other passages in paragraphs [57]-[61] and [80] of the reasons which the primary judge set out. The primary judge concluded at [63] that a fair reading of the Tribunal’s reasons requires that the term “tattoo” be read as “a tattoo of a cross which could give rise to an imputation that the applicant was a convert to Christianity”, and not a tattoo per se.

The parties’ submissions to this court

21    Counsel for the appellant submitted that the primary judge was wrong in finding that the Tribunal had given discrete consideration to the appellant’s claim that there was a risk arising from the fact that the appellant had a tattoo of a cross, being a Christian symbol which may give rise to an imputation that he had converted to Christianity, had turned his back on Islam or was otherwise anti-regime. The appellant pointed to paragraphs [70] to [74] of the Tribunal’s reasons, which referred to country information about tattoos generally. Counsel submitted that the Tribunal had considered the appellant’s religious-based claims at [87] to [89] and rejected them. That was relevant context to construing paragraph [95] of the Tribunal’s reasons. That feature of the reasons, in combination with the fact that the “information from external sources” referred to in [95] was to be understood to be the same information referred to at [73] of the Tribunal’s reasons and indicated that the reasons in [95] were concerned with tattoos generally, and not the appellant’s specific claim that he had a tattoo of a cross that could give rise to an imputation that the appellant was a convert to Christianity.

22    Counsel for the Minister referred to the guidance in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and submitted that the Tribunal’s reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error. Counsel also emphasised the following statement of the Full Court in WAEE v Minister for Immigration (2003) 236 FCR 593 at 604 [47] –

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

23    In reply, counsel for the appellant submitted that paragraph [47] of the Full Court’s decision in WAEE should be read together with paragraph [46], where the Full Court differentiated between a failure by a tribunal to refer to every piece of evidence, and a failure of a tribunal to address a contention, which was the submission that the appellant made in this case –

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

24    Counsel for the Minister submitted that on a fair reading of the Tribunal’s reasons there was no failure to deal with the claim as put by the appellant. Counsel for the Minister submitted that the Tribunal had correctly identified the claim at [58], and then [84] of its reasons. At [58] the Tribunal stated (emphasis added) –

The Tribunal asked the applicant if there were any other reasons he did not wish to return to Iran. The applicant stated that the only reason he did not wish to return to Iran was that he would be mistreated by the government and the authorities for being an infidel. The Tribunal referred to the applicant's claim that he will be identified as an infidel because of his tattoo. The applicant stated that this was correct. The Tribunal asked the applicant when he had the tattoo done. He stated that he entered military service in February 2010 and he had it done before he started his military service.

25    In paragraph [84] of its reasons the Tribunal stated (emphasis added) –

He claims that he will be considered a Christian convert because of his tattoo and perceived as an opponent of the Iranian regime because of his religion, his rejection of Islam, his tattoo, and his attempt to secure protection in Australia.

26    Counsel for the Minister submitted that these paragraphs showed that the Tribunal was well aware of the appellant’s claim, had correctly identified the issue as being whether the appellant will be identified as an infidel or as a Christian by reason of the tattoo, and that paragraph [95] of the Tribunal’s reasons and its reference to tattoos should be understood as addressing the issue in those terms. Counsel for the Minister submitted that it would be artificial to read the Tribunal’s reasons as if the Tribunal had not taken into account the specific nature of the appellant’s tattoo. Counsel submitted that the Tribunal was not considering a tattoo per se, but a tattoo that may give rise to a perception by the authorities that the appellant was an apostate. Counsel for the Minister relied also on paragraph [98] of the Tribunal’s reasons where specific reference to the risk of harm from the appellant’s tattoo was referred to in the following terms (emphasis added) –

The Tribunal has considered the applicant's claim that his views on religion, his tattoo, his bid for asylum in the West, his illegal departure, his real and perceived views against the government of Iran, and his behaviour which did not conform to cultural expectations in Iran will cumulatively result in persecution for him if he returns to Iran. However, the Tribunal has already found that the applicant is not at risk of harm for any of these reasons individually.

CONSIDERATION

27    I respectfully take a different view of the Tribunal’s reasons from that taken by the primary judge.

28    Paragraphs [48], [84] and [99] of the Tribunal’s reasons, to which I have referred to at [8] to [10] above, refer to membership of a particular social group of tattooed Iranian men. That reference reflected the written submission to the Tribunal dated 14 December 2012 made on behalf of the appellant which relied on the appellant’s fear of persecution as a member of a “particular social group of tattooed Iranian men”, which was alleged not to be defined by a shared fear of persecution, but relied on an allegation that having tattoos in Iran is considered a contravention of Sharia law.

29    In written submissions to the Tribunal, the appellant also relied on a distinct allegation that he would be perceived to be an imputed Christian convert as a result of having the symbol of the cross tattooed on his arm. That submission was referred to by the Tribunal at [49], and is reflected in paragraphs [58] and [84] of the reasons that are relied upon by the Minister. In my view, paragraphs [58] and [84] of the Tribunal’s reasons confirm that the “imputation of religion” claim arose on the material.

30    The Tribunal’s reference in paragraphs [70] to [74] of its reasons to material relating to tattoos in Iran is, in my opinion, concerned with tattoos generally, and not to the appellant’s allegation that he would be perceived to be an imputed Christian convert as a result of having the symbol of the cross tattooed on his arm. The reference in paragraphs [70] to [74] to that material is explicable by, and appears to be responsive to, the appellant’s submission to the Tribunal that he feared persecution because he was a tattooed Iranian man.

31    Likewise, I consider that the consideration in paragraph [95] of the Tribunal’s reasons is concerned with the question of tattoos generally. The first two sentences of [95] record the Tribunal’s earlier rejection of the appellant’s claim that he had been targeted for having a tattoo. This rejection was based on the Tribunal’s view that the appellant’s claims had been contrived or fabricated to enhance his visa application, but where the Tribunal did not make any clear finding as to whether it accepted the appellant’s claim that he obtained his tattoo in Iran. It is on these premises that the Tribunal then states in the second sentence of paragraph [95] that, “nevertheless it has considered whether having a tattoo will place the applicant at risk of harm in Iran”. Paragraph [95] of the Tribunal’s reasons then refers to the information from the external sources “which was discussed with the appellant during the hearing”, which is to be understood as a reference to the material referred to at the end of paragraph [74] of the Tribunal’s reasons which the Tribunal states it raised with the appellant for comment.

32    In my view, a fair reading of paragraph [95] of the Tribunal’s reasons, when read in the context of the reasons as a whole, does not support the idea that the Tribunal addressed the distinct claim made by the appellant that by reason of his tattoo he would be perceived to be a Christian convert, thereby giving rise to a fear of persecution. This is confirmed when regard is had to the fact that the appellant’s claims relating to religion are considered by the Tribunal at paragraphs [86] to [89] of its reasons, and the appellant’s imputation of religion claim based upon the existence of his tattoo is not considered there.

33    For the above reasons, upon my review of the material that was before the primary judge I respectfully interpret the Tribunal’s reasons differently. In my view, the Tribunal’s reasons do not disclose that it considered the appellant’s distinct claim that he feared consequences that might arise because he would be perceived to be an imputed Christian convert as a result of having the symbol of the cross tattooed on his arm, and the Tribunal therefore fell into jurisdictional error.

34    The appeal will be allowed. Orders 2 and 3 of the orders of the Federal Circuit Court of Australia made 29 June 2018 shall be set aside, and in lieu thereof it is ordered that a Constitutional writ should issue quashing the decision of the former Refugee Review Tribunal of 15 February 2013 and directing the second respondent to determine the appellant’s application according to law. The first respondent before the Federal Circuit Court should pay the appellant’s costs of the application to that Court. The first respondent should pay the appellant’s costs of the appeal to this Court.

Associate:

Dated:    13 December 2018