FEDERAL COURT OF AUSTRALIA

BJL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 524

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The 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

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) dismissing an application for review of a decision of the Immigration Assessment Authority (IAA), which in turn affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate) not to grant the appellant a Safe Haven Enterprise visa: BJL16 v Minister for Immigration and Border Protection [2019] FCCA 1915.

2    The appellant is an Iranian citizen of Arabic ethnicity who arrived on Christmas Island as an unauthorised maritime arrival on 30 October 2012.

3    The appellant did not file written submissions in support of his appeal but appeared at the hearing of the appeal with the assistance of an Arabic interpreter.

Background and FCCA proceeding

4    The appellant’s claims for protection are set out at [8] of the FCCA judge’s reasons for judgment. Relevantly, the appellant claimed that he faced discrimination in education and employment because of his Arab ethnicity and political opinion. Among other things, the appellant’s submissions to the FCCA described an event, referred to by the IAA as the home raid incident, and what followed, saying:

[5]    He claimed also that on 4 February 2012 three men entered his family home, beat he and his family, including his 64 year old mother, and that one of them pulled out a gun and fired several shots. After fleeing the scene he learned that his brother had been shot [(home raid incident)]. He returned to find that his father and brother were not at home and that policemen were questioning his neighbours. He pressed charges against the one assailant whom he could identify, he said later, by the name on his badge.

[6]    After this, and although his father and brother returned home three days later, the authorities turned against his family and started to cause problems for them. He left Ahwaz and travelled to the city of Istahan to stay with his uncle until he heard that his father had been arrested, apparently to force him to return. He had been told that whilst he was in Istahan a political separatist party printed details of the attack on his home, even naming one of the assailants. He was suspected of supplying it with information.

[7]    Fearing that he was not safe in Istahan he moved to Tehran hoping that the size of the city would protect him, and made plans through a travel agent to leave Iran.

(References to Court Book omitted)

5    At [17] of his Honour’s reasons, the FCCA judge noted that the IAA accepted that the home raid incident had occurred and that the appellant’s brother had been shot.

6    Before the FCCA judge, the appellant was legally represented and relied on an amended application containing the following three grounds (insofar as they were pressed in the FCCA):

1.    The IAA erred in failing to consider the totality of the applicant’s case.

Particulars

(a)    Failure to consider whether the police raid on the applicant’s family home was for reason of one or more of;

(i)    The applicant’s ethnicity in combination with his dissident political activities;

(ii)    His brother’s conversion from Shia to Sunni Islam, in combination with the family’s ethnicity;

(iii)    The applicant’s political activities and the brother’s conversion, whether or not in combination with the family’s ethnicity.

and whether the applicant may suffer persecution in the future for any of these reasons.

…

2.    The IAA acted in a manner that was legally unreasonable in not disclosing to the applicant that it was considering rejecting claims that had been accepted by the delegate, and inviting submissions and new information thereon, pursuant to s. 473DC(3) of the Migration Act.

3.    The IAA acted in breach of the requirements of procedural fairness, insofar as it applied to the IAA’s process, in not disclosing to the applicant that it was considering rejecting claims that had been accepted by the delegate, and inviting submissions and new information thereon, pursuant to s. 473DC(3) of the Migration Act.

7    The FCCA judge rejected the first ground, reasoning as follows:

(1)    The appellant’s claim that he was the target of the home raid incident, and that it had occurred because of his political disagreement with the authorities, appeared to have been based on his own assumption and surmise (at [28]).

(2)    For reasons of which complaint was not made, the IAA did not accept that the appellant had been the target of the home raid incident or otherwise of interest to the authorities in Iran at that time (at [31]). The FCCA judge referred to the following passages of the IAA decision record as the “reasons of which complaint was not made”:

[17]    I accept the applicant’s brother was shot in the raid and that he and their father were detained for three days. The delegate asked the applicant if he was ever told why his father and brother were detained and he confirmed that to this day he still does not have any information. He stated "I just feel that it was because of me" and that he was the only family member who had shown a political opinion disagreeing with the government. I find that if the applicant had been the target of the raid, or otherwise of interest to authorities at that time, his father and brother would have been questioned about the applicant and relayed this information to him. There is no evidence before me that the applicant received any information or warning from his brother or father after their release which indicated he was a person of interest to authorities.

…

[23]    … I have not accepted that the applicant was the target of the home raid and I do not accept he was subsequently threatened or sought by authorities, or that his family faced problems after he made the complaint. I do not accept that the applicant went from Esfahan to Tehran after becoming frightened or that he left Iran after realising he was also not safe in Tehran. I note from the applicant’s Arrival interview that he visited his agent, Taei in his Ahwaz city office two or three times and paid for his ticket to Indonesia in person with cash at the Ahwaz office. He stated he travelled from Ahwaz to Tehran by train, arriving in the morning and departed Tehran on a flight that same afternoon. I find that the applicant was in Ahwaz preparing his departure and that apart from the hours between his morning arrival and afternoon flight, he did not spend any time in Tehran.

…

[31]    I have accepted that the applicant participated in low level demonstrations advocating for Arab rights and that he suffered harassment and discrimination at university and in the workplace. However I do not accept the applicant was targeted by authorities in the home raid, or that they subsequently demonstrated an interest in the applicant while he was in Iran, or since his departure.

(3)    The IAA’s finding that it did not accept that the appellant had been the target of the home raid incident or otherwise of interest to the authorities in Iran at that time was sufficient to deal with the appellant’s claims concerning the home raid incident (at [31]).

(4)    There was no duty on the IAA to go further and attempt to make a finding as to the reason(s) behind the home raid incident when the claim as made by the appellant in that regard had been rejected. The IAA was not bound to muse, surmise or conjecture as to the reason(s) for the home raid incident once it had found that it was not satisfied that the home raid incident was causally connected to the appellant for his claimed political activities and attitude. The only basis given to the IAA for the home raid incident was its connection with the appellant as target. That claim was considered and rejected and the IAA had no further obligation to find some alternative reason for the home raid incident. That finding by the IAA was sufficient to deal with the appellant’s claims in this connection (at [32]).

(5)    The appellant never made a substantial clearly articulated argument relying on established facts nor was there an unarticulated claim clearly or squarely arising on the material before the IAA (see DAX18 v Minister for Home Affairs [2019] FCA 653 (DAX18) at [16] per Jagot J) in terms of the particulars asserted in Ground (1)(a)(i), (ii) and (iii). The appellant assumed that the home raid incident occurred because of the 2012 telephone call allegedly asking him about his political views and his practice of Islam and pilgrimages, and not as arising out of his Arabic ethnicity. In any event, the IAA had made a finding of greater generality that Arabs did not face a real chance of significant harm in Iran (at [33]).

8    In DAX18 at [16], Jagot J stated:

In Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] Allsop J (as he then was) explained the difference between an errant finding of fact and a failure to consider a claim or its component integer. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] and [25] Gummow and Callinan JJ identified that a failure to “respond to a substantial, clearly articulated argument relying upon established facts” may constitute a denial of natural justice or a constructive failure to exercise jurisdiction. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 the Full Court of the Federal Court referred with approval to Allsop J’s reasoning in Htun at [42]. In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 the Full Court said:

18.    It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun … per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE … per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 [AWT15] per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis in original.)

9    The FCCA judge found that the second ground must fail, based on the decision in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551, which held, relevantly, that it was open to the IAA to disagree with a delegate’s evaluation of material without providing to the applicant an opportunity to respond.

10    The FCCA judge found that the third ground must fail, based on the decisions in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 and CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404.

Appeal

11    The appellant’s notice of appeal states the following ground of appeal:

1.    [A]t [32], the primary judge erred in suggesting that there was no duty on the IAA to go further and attempt to make a finding as to the reason(s) behind the home raid incident when the claim as made by the Applicant in that regard had been rejected. The primary judge stated that The IAA was not bound to muse, surmise or conjecture as to the reason(s) for the home raid incident once it had found that it was not satisfied that the home raid incident was causally connected to the Applicant for his claimed political activities, the primary judge overlooked what the judge at the military court in Iran stated in relation to “ you Arabs deserve whatever happens to you and you have no right to do anything”, the latest statement shows that there is an issue (AYY17 v Minister for Immigration). While the IAA rejected the facts, still the IAA needed to consider the what was the issue. Because if the applicant’s brother was shot and if the military court judge rejects to hear the matter due to an ethnic reason, then it is reasonable to consider the issue.

12    The notice of appeal also sets out the three grounds of review that were argued by the appellant in the FCCA.

13    The appellant made oral submissions which were not clearly directed to the grounds of appeal.

14    Rather, the appellant described problems with his solicitor, including that he had failed to provide relevant documents to the immigration authorities. The appellant also submitted that the FCCA judge had refused his application because he did not have in front of him “any kind of documents or statements”.

15    The appellant also stated:

They did not invite me for an interview and they accepted that they, or the authority, you know came to my house and attacked my family and that’s why I fled the country. But I don’t know on what basis they refused me. Is it fair?

…

Actually, I have—you know, I had a role—a political role in my country, and that’s why my family been attacked and my brother been assaulted even though my family ran away. That’s why I fled the country. Because I’ve been threatened. Like, my siblings or my brothers, they don’t—they are not politically active. I’m the only one politically active in my family and I was active during the university and even though—in my work. And that’s why, you know, like, the reason why I left my country. I have, like, an order from the court asking my family to bring me back. And I have it on me, and my solicitor did not hand it or present it to the court.

Consideration

16    The issue before this Court is whether the appellant has identified an appellable error on the part of the FCCA judge.

17    The appellant’s suggestion that the immigration authorities may not have seen important documents relevant to his claim for protection is concerning and I suggested to the appellant that he raise this matter with the solicitor for the first respondent (Minister). However, even if true, it does not bear upon the question for determination in this Court.

18    Although the appellant said that he was not invited for an interview, the reasons of the IAA (including para 17 of its decision record set out above) show that he was interviewed by the then Minister’s delegate.

19    The appellant said that he does not know the basis on which his protection claims were rejected but, as the Minister’s counsel pointed out, the basis is set out at in the IAA’s reasons. In particular, the IAA was not satisfied that the appellant faced a real chance of persecution by authorities upon return to Iran for reasons of his race, political opinion or his connection with his brother (para 44 of decision record). As to his political opinion, the IAA found that although the appellant participated in low level demonstrations advocating for Arab rights and suffered harassment and discrimination in Iran, he did not have a political profile and was not of interest to Iranian authorities when he departed Iran and had not become of interest to authorities since he left Iran. The IAA also did not accept that the appellant would be returning to Iran as a person with a political profile or as a person with a perceived or actual connection to any anti-regime groups (para 42 of decision record).

20    Neither of these complaints reveal any error on the part of the FCCA judge.

21    The appellant’s submission to this Court concerning his political role was consistent with the finding of the FCCA judge, at [28] of his Honour’s reasons and set out above, that the appellant’s claim was that the home raid incident occurred because of his political disagreement with the authorities.

22    It is plain from the portions of the IAA’s decision record set out above that the IAA considered this claim and rejected it.

23    Although not clearly pursued, I have also considered the first two grounds of appeal, comprising the ground set out at [11] above and the first ground of review in the FCCA, namely, that the IAA erred in failing to consider the totality of the appellant’s case.

24    The notice of appeal contends that the FCCA judge overlooked the appellant’s evidence, referred to by the IAA, that when the appellant complained about the incident, the judge at the Iranian military court had said: “You Arabs deserve whatever happens to you and you have no right to do anything”. The appellant argues that the “it is reasonable to consider the issue”, which I take to be the reason or reasons for the home raid incident, in the light of the judge’s racist statement and the fact of his brother’s shooting.

25    The first problem with this argument is that it is far from obvious that either of these matters could rationally be said to bear upon the question of the reason or reasons for the home raid incident beyond the obvious possibility that the reason for the home raid incident was to shoot the appellant’s brother, as in fact occurred.

26    However, even assuming that it was open to the IAA to have reasoned in that way, I do not accept that the IAA was required to consider whether any of the three posited reasons was a reason for the home raid incident. Underlying the appellant’s proposition is the contention that the home raid incident might be evidence in support of one of the appellant’s other claims for protection apart from his political opinion or that it might be explained by a combination of the appellant’s claims.

27    However, the appellant explicitly claimed that there was a single reason for the home raid incident, namely, his political opinions. This belief was restated in the appellant’s oral submissions to this Court.

28    The appellant did not explain why the home raid incident might be attributed to a reason apart from his political opinions. Rather, as the FCCA judge observed, the contention is that the IAA was obliged to speculate about whether the home raid incident was perhaps explained by some other reason or reasons, different from the reason suggested by the appellant, but consistent with the appellant’s protection claims.

29    The basis for such an obligation was not explained. There is no suggestion that the IAA ignored relevant material, whether in the nature of a claim or evidence, which it might have been obliged to consider (cf. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]).

30    Nor can the possible reasons for the home raid incident be understood as an unarticulated claim which clearly emerged from the materials and thus required consideration. A finding that an unarticulated claim arises from the materials is not to be made lightly and the fact that a claim “might” be said to arise from materials is not enough: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18].

31    In the absence of any other apparent basis for the asserted obligation, I am satisfied that the FCCA was correct to conclude that the IAA was not required to make any additional finding about the reason or reasons for the home raid incident, having found that the appellant was not the target of the raid.

Conclusion

32    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    23 April 2020