SZVZL v Minister for Immigration and Border Protection

1. The appellant has leave to further amend the amended notice of appeal by deleting the second ground.
2. The appeal is 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.

RANGIAH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 26 July 2016. The Federal Circuit Court dismissed the appellant's application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent to refuse the appellant the grant of a Protection Visa. 2 The appellant is a citizen of Iran who arrived on Christmas Island by sea in 2012. He subsequently lodged an application for a Protection Visa. That application was refused by the first respondent's delegate on 22 July 2013. 3 The appellant then sought review of the delegate's decision before the Tribunal. On 11 December 2014, the Tribunal affirmed the delegate's decision, but the Tribunal's decision was set aside by the Federal Circuit Court on 24 March 2015 and the matter was remitted to the Tribunal to determine again. The Tribunal then conducted a second review of the delegate's decision, giving its decision on 10 July 2015. It is that decision which was the subject of the Federal Circuit Court judgment under appeal. 4 The appellant is of Kurdish ethnicity. Before the Tribunal, he claimed to have been involved in political activism in Iran for a separate Kurdish state. He claimed that his family had been long-standing supporters of, and activists with, the Kurdish Democratic Party of Iran (KDP). He claimed to have supported the KDP and to have handed out pamphlets for the KDP. He claimed that when he was doing compulsory military service, he was sentenced to imprisonment for three months because he refused to assist in controlling a crowd of people. He claimed to have been caught later with sensitive political papers by Iranian authorities, resulting in him fleeing Iran to avoid imprisonment or execution. He claimed to have become involved in Australia with Kurdish movements that were against the Iranian regime. The appellant claimed to fear harm from the Iranian authorities on account of his real and imputed political opinion, his Kurdish ethnicity and his membership of a social group consisting of failed asylum seekers who had departed Iran illegally. 5 The Tribunal generally rejected the appellant's claims as lacking credibility, save that it accepted his evidence as to his political activities in Australia. It accepted that the appellant had attended more than six or seven protests in Australia. It accepted that at the protests he was in charge of ensuring that water and flags were available. However, the Tribunal was not satisfied that a person with the appellant's limited profile in Kurdish groups in Australia would face a real chance of persecution for that reason on return to Iran. 6 The Tribunal went on to consider whether the appellant would be forced to act discreetly in Iran in order to avoid persecution. The Tribunal said: 64. Next, the Tribunal understands that in Appellant S395/2002 by majority, the High Court held it is an error to fail to consider whether the need to act discretely to avoid a threat of serious harm constituted persecution. The unifying principle underlying the two joint majority judgments in S395 was that asylum seekers are not required, and nor can they be expected, to take reasonable steps to avoid persecutory harm. However, the present applicant has been in Australia for over three years, he had received secondary education in Iran (though he did not finish) and he had allegedly expressed his political opinion while engaged in military service. Yet the chief responsibility for the present applicant in Australia, for the Kurdish political organisations he associates with, are ensuring water and flags are available for protestors. The Tribunal understands such tasks are necessary, however, given the applicant appears to be capable of considerably more input, I am satisfied the reason he is not more engaged in the work is that he lacks any real interest. That is why his political engagement in Australia, is minimal. The Tribunal is satisfied he would not wish to continue to engage in such groups should he return to Iran. The Tribunal therefore does not accept the applicant would have to take any steps to avoid persecution in Iran. The Tribunal has seen (for instance), the letters in support for the applicant's political work in Australia, however, I am not satisfied he has any political (or other) convictions, that would give rise to a real chance of persecution in Iran. (Citations omitted, underlining added.) 7 The Tribunal was also not satisfied that the appellant faced a real chance of persecution in Iran as a failed asylum seeker. The Tribunal was not satisfied that the appellant satisfied the criteria set out at ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth). Accordingly, it affirmed the delegate's decision. 8 The appellant then sought review of the Tribunal's decision before the Federal Circuit Court. The application focussed upon [64] of the Tribunal's reasons. The appellant submitted that the Tribunal erred in the manner identified by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 by expecting the appellant to behave discreetly in order to avoid persecution upon his return to Iran. 9 The primary judge held that the Tribunal had not made an error of the type identified in Appellant S395/2002, but had, like the Tribunal in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142, made a finding as to what would occur upon the appellant's return to Iran. His Honour also rejected a further submission that the Tribunal had failed to make any finding on a substantial, clearly articulated argument relying upon substantial facts. 10 The appellant's amended notice of appeal before this Court relied upon two grounds. At the hearing, the appellant sought leave to further amend the notice of appeal by deleting the second ground. That leave should be granted. The remaining ground is as follows: Ground 1: Error of Law 1. The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question. Particulars a) The Tribunal erred at [64] by finding that the 'Tribunal understands such tasks are necessary, however, given the applicant appears to be capable of considerably more input, I am satisfied the reason he is not more engaged in the work is that he lacks any real interest' and that the 'Tribunal is satisfied he would not wish to continue to engage in such groups should he return to Iran.' b) The primary judge erred by failing to apply the principle of the two joint majority judgments in Appellant S395/2002 that asylum seekers are not required, and nor can they be expected, to take reasonable steps to avoid persecutory harm and in so doing, restricted the applicant's free expression of his political opinion based on his Kurdish ethnicity in Iran. 11 Counsel for the appellant submitted that the unifying principle underlining the two joint majority judgments in Appellant S395/2002 was that asylum seekers are not required, nor can they be expected to take, reasonable steps to avoid persecutory harm. The appellant's counsel then submitted that: In order to evade the authority in S395, the Tribunal erred by minimising or trivialising the applicant's expression of political opinion in Australia based on his Kurdish ethnicity and, in so doing, effectively restrained the applicant of his free expression of his political opinion in Iran which he cannot do now without the real risk of harm from Iranian authorities. 12 The submission continued: I just simply highlight, your Honour, that there was significant evidence and testimony before the Court, before the Tribunal, which showed that his - the appellant's political opinion was not something that could just be wished away by the Tribunal in order to avoid the finding that he would be at a real risk of harm. 13 Further, the appellant's counsel submitted that: The Tribunal said, "Just go back, behave, but you've been discreet in the past, be discreet in the future, and you will escape your persecution". 14 The submissions do not accurately reflect the findings made by the Tribunal, nor do they reflect a complete understanding of Appellant S395/2002. 15 In Appellant S395/2002, Gummow and Hayne JJ said at [80]: If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be ''discreet'' about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences. (Underlining added.) [See also McHugh and Kirby JJ at [43]]. 16 In Applicant NABD of 2002, Hayne and Heydon JJ at [162], summarised the effect of Appellant S395/2002 as follows at [162]: In Appellant S 395/2002, the Tribunal was held to have erred by dividing the genus of homosexual males in Bangladesh into two groups - discreet and non-discreet homosexual males. That led, in that case, to the Tribunal assigning the appellants to the former group, without it considering how the appellants wished or intended to behave if returned to Bangladesh. Moreover, the classification which was adopted was one which appeared to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. More fundamentally, however, the reasoning adopted by the Tribunal in that case revealed that it had not made the essentially individual and fact-specific inquiry which is necessary: does the applicant for a protection visa have a well-founded fear of persecution for a Convention reason? (Citation omitted, underlining added.) 17 In Minister for Immigration and Citizenship v SZSCA (2014) 254 CLR 317, the plurality held at [17]: The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct enquiry was directed - whether the fear of persecution was well founded - had not been addressed. (Citation omitted, underlining added.) 18 In Applicant NABD of 2002, Hayne and Heydon JJ held at [168]: At no point in its chain of reasoning did the Tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask (as the Tribunal had asked in Appellant S395/2002) whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the Tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted. (Underlining added). [See also Gleeson CJ at [11]]. 19 In the present case, the Tribunal's finding that it was not satisfied that the appellant faced any real chance of persecution in Iran was not based upon any view that he could avoid persecution by acting discreetly by avoiding engaging with political groups. Instead, the Tribunal was satisfied that the appellant "would not wish to continue to engage in such groups should he return to Iran". That finding was based upon the Tribunal's satisfaction that the appellant "lacks any real interest" in Kurdish political organisations and its lack of satisfaction that he had "any political (or other) convictions, that would give rise to a real chance of persecution in Iran". Those matters, in turn, reflected the Tribunal's earlier findings that the appellant's involvement in protests in Australia had been limited and that he had not been truthful in his claims to have been involved with the KDP in Iran. 20 The Tribunal did not suggest that the appellant was not at risk of harm because he could avoid persecution by being discreet in the expression of his political opinions. Rather, the Tribunal found that the appellant would voluntarily choose to not engage in political protests in Iran, not because of fear, but because he had no interest in doing so. The Tribunal considered what might happen to the appellant if he returned to Iran, as it was required to do, as part of its consideration of whether the appellant faced a well-founded fear of persecution. The primary judge was correct to hold that the Tribunal had made no error in its consideration and application of Appellant S395/2002. 21 The appellant's counsel also repeated the submission made before the primary judge that the Tribunal had failed to make a finding on a substantial, clearly articulated argument. He did not identify any such argument. The primary judge found that the Tribunal had made findings upon all the arguments that were put to it. That finding has not been demonstrated to be erroneous. The submission must be rejected. 22 Some of the submissions made by the appellant's counsel suggested bias or bad faith on the part of the Tribunal, without squarely alleging those matters. For example, the appellant's counsel submitted that "the Tribunal erred by minimising or trivialising the appellant's expression of his political opinion" and that "the appellant's political opinion was not something that could just be wished away by the Tribunal in order to avoid a finding that he would be at a real risk of harm". If counsel was not prepared to develop these serious imputations, they should not have been suggested. I wish to make it clear that there is absolutely nothing to support these suggestions of bias or bad faith. 23 The appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.