AHB16 v Minister for Home Affairs

Federal Court of Australia|2018-12-13|Before: Wheelahan J

The appeal is allowed.
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.
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.

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.

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. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

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