BHB21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 839

1. On 19 May 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 21 April 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. In August 2012, the applicant, a citizen of Iran, entered Australian waters as an irregular maritime arrival.
2. In December 2012, the applicant applied for a protection visa.
3. On 17 December 2013, following an interview on 27 August 2013, a delegate of the first respondent refused to grant the visa.
4. On 7 January 2014, the applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate's decision.
5. On 25 March 2015, following a hearing on 5 February 2015, the RRT made a decision affirming the delegate's decision not to grant the applicant a protection visa.
6. The applicant applied to the Federal Circuit Court for judicial review of the RRT's decision. On 18 December 2015, the Federal Circuit Court dismissed the application. Following an appeal to the Federal Court, on 15 September 2017 the Federal Court, by consent, allowed the appeal and remitted the matter to the Tribunal (which had replaced the RRT) for redetermination according to law.
7. On 19 March 2020, 10 December 2020 and 22 February 2021, the applicant appeared before the Tribunal to give evidence and present arguments.
8. On 21 April 2021, the Tribunal made a decision affirming the delegate's decision not to grant the applicant a protection visa.

1. The applicant claimed that between 2005 and 2011 he was involved in various protest activities in Iran and, as a result, he was arrested, detained and beaten. The Tribunal at [29]-[48] reviewed the applicant's evidence concerning the protest activities and identified and explained many inconsistencies in the applicant's evidence. The Tribunal at [48] concluded that:

As a result of the repeated and extensive number of inconsistencies between his earlier statements and current claims, which lack adequate explanation, I find the applicant's credibility to be completely undermined. Because of the extent of inconsistencies, I do not accept any of the applicant's claims of being arrested, detained, charged or tortured.

1. The Tribunal at [49] accepted that the applicant attended some protest activities in Iran, but found that "at no stage was he of interest to Iranian authorities for his protect activity", and rejected the remainder of the applicant's claims concerning events in Iran related to protest activities.
2. The Tribunal at [50]-[54] considered the applicant's remaining claims concerning events in Iran. The Tribunal at [50] accepted that the applicant's family, when the applicant lived with his parents, "were moderately well off and were extorted by government officials". The Tribunal at [54] found that "there were some discriminatory actions taken by the authorities against the applicant based upon his Arab ethnicity".
3. The Tribunal at [55] summarised the applicant's profile as "an Arab Iranian from Ahwaz" who "has participated in some protests in Iran but without there being an official record of his participation", "has experienced some discrimination in the past", "has participated in some protests while in Australia", "is the son of a family that has in the past been extorted by security officials", and "is an asylum applicant".
4. The Tribunal at [56]-[82], based on the applicant's profile summarised at [55], considered whether Australia had protection obligations to the applicant. In relation to various aspects of the applicant's profile:

(a) The Tribunal at [56]-[57] considered whether the applicant faced a real chance of serious harm based on his past protest activities in Iran and concluded that the applicant "does not face a real chance of serious harm or a real risk of significant harm for reasons of having participated in some protests while in Iran".

(b) The Tribunal at [58]-[61] considered whether the applicant faced a real chance of serious harm based on his protest activities in Australia and concluded that the applicant "does not face a real chance of serious harm ... or a real risk of significant harm ... for the reason of having protested against the Iranian regime while in Australia".

(c) The Tribunal at [62]-[68] considered whether the applicant faced a real chance of serious harm as an Ahwazi Arab and concluded that the applicant "does not face a real chance of serious harm or a real risk of significant harm for the reasons of his Arab ethnicity either as an Iranian Arab or specifically as an Ahwazi Arab".

(d) The Tribunal at [69] considered whether the applicant faced a real chance of serious harm because his father faced extortion in the past when he was a successful businessman and concluded that "the applicant does not face a real chance of serious harm or a real risk of significant harm arising from extortion by government security forces".

(e) The Tribunal at [70]-[78] considered whether the applicant faced a real chance of serious harm because he had sought asylum in Australia and concluded that the applicant did not face a real chance of serious harm or a real risk of significant harm on this basis.

1. The Tribunal at [79] considered the applicant's claims cumulatively and concluded that, "the applicant does not at any stage whether upon arrival, or subsequently living in the community, face a real chance of serious harm or a real risk of significant harm".
2. It followed that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2) of the Act.

Judicial review application and steps up to hearing on 19 May 2025

1. On 19 May 2021, the applicant filed in this Court an application for judicial review of the Tribunal's decision.
2. On 26 August 2021, the applicant filed an amended application (Amended Application) which contained a single ground as follows (reproduced as written):
   1. The Second Respondent (Tribunal) made a jurisdictional error in relation to whether the Applicant would face extortion as a businessman in Iran.
      1. The effect of Appellant S395 is that for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth) "an asylum seeker cannot be expected to hide or change behaviour that is the manifestation of a protected characteristic" under the Refugees Convention "in order to avoid persecution": DQU16 v Minister for Home Affairs [2021] HCA 10 (DQU16) at [3];
      2. On the other hand, Appellant S395 "has no application to a person who would or could be expected to hide or change their behaviour when that behaviour is not a manifestation of a Convention characteristic": DQU16 at [25];
      3. The Tribunal was required to give proper consideration to the Applicant's case, with the Applicant's case for this purpose extended to matters arising from the Tribunal's own findings of fact: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39]; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26];
      4. The Tribunal found at paragraphs 50 and 69 of its decision that the Applicant's father had been "extorted for money by Sepah officers" at a time when "his father was a successful businessman who had a business including a warehouse and showroom selling used cars";
      5. The Tribunal found at paragraphs 46 and 69 that the business of the Applicant's father had been sold and the Applicant's brothers had bought their own, smaller businesses in other cities, with no claim that those businesses were being extorted;
      6. The Tribunal found at paragraph 69 that the Applicant would not be returning to his country of origin as a successful businessman or indeed as a businessman at all and "as such I find that the applicant does not face a real chance of serious harm ... arising from extortion by government security forces";
      7. The Tribunal failed to consider whether the Applicant would seek to become a businessman and, particularly in the event of success as such, again face extortion;
      8. The Tribunal failed to consider whether, contrary to Appellant S395, the Applicant would refrain from pursuing the conduct of a business, or success or open success in that context, on account of extortion.
3. Following a period of inactivity, on 3 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 19 May 2025.
4. On 17 April 2025, the applicant filed a written submission.
5. On 29 April 2025, the first respondent filed a written submission (RS).

1. At the hearing in this Court on 19 May 2025, Oliver Jones of counsel appeared for the applicant and Yvonne Wong of counsel appeared for the first respondent.
2. A Court Book (CB), which contained the Tribunal's decision and documents before the Tribunal, was tendered.
3. Counsel made oral submissions which supplemented their written submissions. The submissions are referred to below.

1. A preliminary observation concerning the ground of review in this Court proceeding is as follows. As is evident from a summary of the Tribunal's decision above, the applicant made many claims concerning events he experienced in Iran before he came to Australia. The Tribunal rejected most of the claims, most notably claims of being arrested, detained, charged and tortured, and other claims associated with alleged protest activities. The applicant, in this Court proceeding, does not challenge any of these findings by the Tribunal. Instead, the applicant complains that the Tribunal failed to consider the risk of harm the applicant might face if he became a successful businessman on return to Iran, and why he might not become a businessman on return, despite the fact that, as explained below, the applicant was not a businessman before he left Iran and never claimed that he wanted to become a businessman on return to Iran. Thus, the ground of review concerns, perhaps ironically, a claim never made by the applicant.
2. The applicant claimed that his father was a successful businessman in Iran who experienced occasional extortion by the Sepah. The Tribunal at [46] summarised the claim as follows:

The applicant said that there was someone in the Sepah who used to harass his family. He said that his father, who was a businessman buying second hand cars and selling them in a showroom, gave that man money to stop harassing them. The applicant said that the Sepah officer knew that his father was willing to spend money, so he continued to harass them. He said that the Sepah officer wanted to rip them off and so asked for money every now and then. The applicant claimed that this began after his participation in protests which would have been in 2005. The applicant claims that his father has passed away and since his passing the applicant's siblings sold their father's business and bought their own smaller businesses in other cities.

1. The Tribunal at [50] principally accepted this claim by the finding:

... I accept that the family, when they lived together and the father's business was consolidated, were moderately well off and were extorted by government officials.

1. The Tribunal at [69] considered whether the applicant faced a real chance of serious harm on return to Iran arising from its acceptance of the applicant's claim that his father, as a successful businessman, faced occasional extortion. The Tribunal stated:

The applicant has described situations in the past of his father being extorted for money by Sepah officers. At that time his father was a successful businessman who had a business including a warehouse and showroom selling used cars. Country information suggests that extortion is present in Iran and as such the Tribunal accepts that it occurred. But since the applicant's departure the business that was so attractive to the officials has been sold and the funds were used by the applicant's brothers to buy their own businesses. The applicant would be returning to Iran not as a successful businessman, as his father was, nor even as a businessman, as his brothers are (and there being no claim that they are being extorted) and as such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from extortion by government security forces.

1. The nub of the applicant's complaint in ground 1, recorded in particulars (g) and (h) of ground 1, is that "the Tribunal failed to consider whether the applicant would seek to become a businessman and, particularly in the event of success as such, again face extortion" and "the Tribunal failed to consider whether, contrary to Appellant S395, the applicant would refrain from pursuing the conduct of a business, or success or open success in that context, on account of extortion".
2. The principal problem with the applicant's complaint to the Court is that, among the applicant's extensive claims before the Tribunal, the applicant never claimed that he was a businessman in Iran before he left in 2012, or would or might seek to become a businessman on return to Iran. Cases such as AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 (AYY17), referred to in particular (c) of ground 1, make the point that the Tribunal must consider claims expressly made by applicants and unarticulated claims which "clearly emerge from the materials" or which are "raised clearly or squarely on the material before the review body" (see AYY17 at [18]). In light of this point, I invited Mr Jones to identify material before the Tribunal from which the claim "clearly emerge[d]". Mr Jones did not identify any material. The totality of the material on which Mr Jones relied was the Tribunal's findings at [50] that "the family, when they lived together and the father's business was consolidated, were moderately well off and were extorted by government officials" and at [69] to similar effect, and the uncontroversial principal stated in AYY17 at [26] that "an unarticulated claim might clearly emerge before a decision-maker having regard to his or her own findings". However, no unarticulated claim that the applicant might seek to become a businessman on return to Iran, or that the applicant did not want to become a businessman for fear of extortion, clearly emerged from these findings. I agree with the first respondent's written submissions at RS [22] that "the Tribunal is not required to consider claims founded on mere hypothetical scenarios", at RS [24] that "nothing in the Tribunal's findings (nor ... in the material put by the applicant before the Tribunal) provided any factual foundation to support the implicit contention that the applicant would seek to become a businessman in his own right, or otherwise restart his father's business, upon his return to Iran", and at RS [35] that "the applicant had made no submission to either the delegate or the Tribunal that he wished to become a businessman following his return to Iran or had otherwise suppressed his desire to become a businessman in the past because of a fear of harm".
3. Further, as stated in AYY17 at [18], "while there is no precise standard to determining whether an unarticulated claim has been squarely raised or clearly emerges from the materials, a court will be more willing to draw the line in favour of an unrepresented party". In the present matter, the applicant had the benefit of representation at the time he lodged his protection visa application in December 2012 (see CB 25, 35, 86-88), at the time of his interview with the first respondent's delegate in August 2013 (see CB 107, 117), from the time he applied to the RRT in August 2013 (see CB 144) up to at least the hearing before the RRT in February 2015 (see CB 195), and during the hearings before the Tribunal in 2020 and 2021 (see Tribunal decision at [12]).
4. A second problem with the applicant's complaint to the Court is that, among the applicant's extensive claims before the Tribunal, it is not evident that the applicant claimed that he feared extortion if required to return to Iran. Again, Mr Jones did not identify any material before the Tribunal from which the claim of a fear of extortion "clearly emerge[d]". Although the Tribunal at [69] addressed the risk of the applicant facing extortion by government security forces, this does not mean the applicant claimed that he feared extortion.
5. A third problem with the applicant's complaint to the Court arises from the applicant's reliance on the principal explained in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (Appellant S395). In DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [8] the High Court stated that:

The principle for which Appellant S395 stands is that "a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby to avoid a real chance of persecution". The principle "directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic".

1. If the applicant had been a successful businessman in Iran who experienced extortion and the Tribunal found that, upon return to Iran, he would not resume being a businessman, a failure by the Tribunal to consider why the applicant would not resume being a businessman might offend the principle explained in Appellant S395. But, as explained above, in the present case, since the applicant was not a businessman in Iran before he left in 2012, there was no relevant behaviour of the applicant "to hide or change". The issue in Appellant S395 did not arise in the present matter. I agree with the first respondent's written submission at RS [32] that "the Tribunal's reasons never contemplated that the applicant would (or could be expected to) hide, change or modify his behaviour upon his return to Iran whether or not in an effort to avoid persecution".
2. For the above reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision.
3. It follows that the application to this Court must be dismissed.

1. At the conclusion of the hearing, the parties made submissions on costs. The parties agreed that the losing party should pay the successful party's costs in the scale amount of $8,371.30. Since the application is to be dismissed, I will order that the applicant pay the first respondent's costs in the amount of $8,371.30.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.