FEDERAL COURT OF AUSTRALIA BGR15 v Minister for Immigration and Border Protection [2016] FCA 920 Appeal from: BGR15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2849 File number: NSD 1518 of 2015 Judge: MCKERRACHER J Date of judgment: 10 August 2016 Catchwords: MIGRATION – whether the Tribunal fell into jurisdictional error by failing to consider whether the appellant would suffer 'significant harm' for a Convention related reason if the applicant returned to his home country and continued to pursue two forms of activity which he said he had pursued in the past – whether there was a substantial, clearly articulated argument relying upon established facts – whether the Tribunal satisfied the requirement of considering the claims of the applicant – relevance of professional assistance in the presentation of claims to the Tribunal and Federal Circuit Court Legislation: Migration Act 1958 (Cth) s 425(1) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 Date of hearing: 26 May 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: Mr RS Jahnke Solicitor for the Appellant: Estrin Saul Lawyers and Migration Specialists Counsel for the First Respondent: Mr T Reilly Solicitor for the Respondents: Minter Ellison Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS NSD 1518 of 2015 BETWEEN: BGR15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 10 AUGUST 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCKERRACHER J: 1 The appellant appeals from a judgment of the Federal Circuit Court of Australia in BGR15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2849 dismissing an application for review of a decision of the Refugee Review Tribunal made on 30 May 2015. The Tribunal had affirmed the decision of a delegate of the Minister who had refused the appellant a protection visa. 2 It is argued that the Tribunal (now the AAT) fell into jurisdictional error by failing to consider whether the appellant would suffer 'significant harm' for a Convention related reason if he returned to Iran and continued to pursue two forms of activity which he said he had pursued in the past. (The Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention)). 3 The appellant had professional assistance in the presentation of his claims to what was then the Tribunal, the appeal in the Federal Circuit Court and in this appeal 4 The claims as he framed them before the Tribunal clearly pertained to fear of substantial harm in light of actions carried out in the past. In relation to both of those actions, there was a possibility that he would continue or resume them if returned to Iran. He complains that there was a failure by the Tribunal to consider that possibility. The primary judge in quite detailed reasoning disagreed. GROUNDS OF APPEAL 5 The appellant contends the Tribunal fell into jurisdictional error in failing to consider whether he would suffer significant harm if returned to Iran and: (a) continued to try to obtain his daughter's birth certificate and other identification documents; and (b) continued to threaten to complain about Iran to international bodies or did so complain. BACKGROUND 6 The appellant is a 47 year old Iranian national of Khawari (Hazara) ethnicity. He entered Australia as an Irregular Maritime Arrival (IMA) at Christmas Island and participated in an IMA entry interview on the same day. His claims were as follows: (a) he experienced huge discrimination in Iran including the fact that his young daughter had no identification documents and that he had threatened to complain to international humanitarian organisations about the situation and was told that he would be introduced to the revolutionary court if he did this; (b) in a statutory declaration in support of his visa application he explained how the Ministry of Intelligence and National Security of the Islamic Republic of Iran (MISIRI) came to his family home and took their original identification documents; (c) he attended about eight meetings conducted by members of various government organisations where he was continually asked to provide proof that he lived in Iran; (d) he was invited by a delegate of the Minister to comment on a number of issues including his threat to seek help from an international organisation. His former representatives in response submitted a document which, amongst other things, said that he had been 'released upon signing and annotating that he would not speak out against the Iranian government nor approach international organisations to condemn the Iranian government.' The document reiterated the difficulties his daughter was experiencing. 7 On 2 July 2013 a delegate of the Minister refused to grant the appellant a protection visa, but did note that the appellant said that should he be returned to Iran he will continue to fight for his daughter's rights and that 'the extent of [the appellant's] detainment was that he was questioned and threatened that he will be dealt with harshly by the Revolutionary Court, should be seek help from an international agency.' IN THE TRIBUNAL 8 The appellant was again represented by the same advisors in the Tribunal and repeated the submissions in writing and orally. The written submissions were made both before and after the hearing. The latter specified that the appellant 'wishes to emphasise that due to his threat of seeking help from international organisations to expose the Iranian government, he is at risk of harm for his imputed political opinion'. The Tribunal rejected the appellant's claims, recording (particularly at [81]) the following: The [appellant] claimed at hearing that he was tortured when he was taken by the MISIRI from his house after stating at the last meeting that he would complain to the international community. The delegate when considering his evidence on this point had doubt about the veracity of his claim and stated that it may have been embellished to strengthen his claims. However, the delegate gave the [appellant] the benefit of the doubt on the basis that he had been credible in his overall testimony and that the country information indicates that these kinds of detainments are common in Iran and accepted that his detention and questioning may have been true. The Tribunal finds that the [appellant's] evidence as to his detention was not consistent with his evidence to the delegate, in that to the delegate he indicates that while they were not polite, they did not hurt him, yet to the Tribunal he indicates they punched him and there was pain. His evidence was consistent in that he was asked about his life. While the Tribunal accepts that the [appellant] made a comment about taking the matter to the international community, he was detained a few days later and questioned further, the Tribunal does not accept that this has given him a profile as a person in opposition to the Iranian Government. The Tribunal finds that the [appellant] has exaggerated his claims to have been told that if he complains it would be like digging his grave with his hands and they would take him to the Revolutionary Court for the purposes of enhancing his application. The Tribunal does not accept after a number of years of following up on his documents, he would suddenly be of interest to the Iranian authorities that they would suddenly place his house under observation and continually ask where he was or tell the shop keeper to inform them if they see him. The applicant departed Iran on his valid passport and there would be records of his departure. The Tribunal does not accept that the [appellant] has a profile or is of any interest to the Iranian authorities because he has continually followed up on his family's identity documents or because on one occasion he threatened to complain to the international community. (emphasis added) 9 The Tribunal did not accept that the appellant was accused of fraudulently obtaining Iranian citizenship as claimed. The Tribunal found (at [76]-[77]) that the appellant could demonstrate that he was an Iranian citizen, and while he may experience some harassment by regular checking of his documentation, this also did not constitute serious or significant harm. 10 The Tribunal (at [79]-[80]) was also not satisfied that the appellant would be accused of complaining about Iran if he returned, noting that he left Iran legally, has no adverse political profile, and did not accept that the Iranian authorities wold become aware of the basis on which he sought protection in Australia. 11 The Tribunal noted that the appellant had been recognised in the past as an Iranian citizen, was able to complete education, military service and obtain employment in Iran; it did not accept that his daughter was denied access to education. It found that he had been able to earn income in various jobs, provide for his family and own his own home and other property, and, consistently with these factors, found that it was not a real chance that he would suffer serious harm or significant harm by reason of his ethnicity. 12 The Tribunal also found (although it is not directly relevant to the appeal), the appellant would not suffer serious harm or significant harm as a failed asylum seeker having regard to the Tribunal's findings as to his lack of an adverse profile and relevant country information. The Tribunal, accordingly, affirmed the delegate's decision. IN THE FEDERAL CIRCUIT COURT 13 The appellant appealed to the Federal Circuit Court. His appeal was dismissed. 14 The first ground claimed that the Tribunal failed to address a claim of the appellant, being that he 'would continue to try and obtain a birth certificate for his youngest daughter if returned to Iran' and face harm as a result. The second ground claimed that the Tribunal failed to address a claim that if he returned to Iran the appellant 'might carry out his threat to complain to international bodies' and face harm as a result. The third ground claimed that the Tribunal failed to give the appellant any notice that the question of whether the appellant had been threatened in a particular matter was an issue arising in relation to the decision under review and thereby failed to comply with s 425(1) of the Migration Act 1958 (Cth). 15 The primary judge noted that the delegate had found the appellant generally credible but had exaggerated some aspects of his claim, particularly in relation to his detention by the MISIRI. In relation to the claims of threats after seeking help from the international community the primary judge noted that the Tribunal said (footnotes omitted): ... I have some doubt about the veracity of the [appellant's] claim to have been detained as described above. By the [appellant's] own assertion he has been struggling with this problem for twenty years and it seems the only time he has been personally questioned and detained is after he 'spoke out' and threatened to go to an international organisation to complain about his treatment. Even though this claim may have been embellished to strengthen his claims, on the basis that the [appellant] has been overall credible in his testimony and that country information supports that these kind of detainments by intelligence officers are common in Iran, I will afford the [appellant] the benefit of the doubt and accept it as true. 16 In relation to the daughter's claim and fear of harm the primary judge noted (at [8]-[10]): 8. The [appellant] also provided a statutory declaration which relevantly said (CB85-86): 14. My daughter has no identification documents. We were unable to take her with us whenever we travelled to another country. My daughter's school sent her back home every day. She was humiliated among other students. 15. I told them that if they could not resolve the matter I would go to international organisations to seek assistance. 16. After two nights, two men from MISIRI came to my home at night. 17. I was blindfolded and was taken to a place I believe is the MISIRI Office in Marshhad. I was detained overnight where I was questioned. They threatened me and said that if I were to say that I would seek assistance from international organisations again, they would deal with me harshly and take me to the Revolutionary Court. 18. They do not know that I had a passport. If they knew I would be seriously punished. 19. I have struggling with this problem for around 20 years and feel as if I have no identity. I still do not know where I am from. 20. I decided to flee Iran. I travelled using my genuine passport to Qatar and Malaysia. I then found a smuggler to assist with my travels to Australia. 9. Relevantly, in that statutory declaration underneath the heading "What I fear may happen if I return to that country", the applicant said: 22. I fear I will be arrested and imprisoned if I return to Iran. 10. Under the heading "Why I think I will be harmed / mistreated if I return to that country", the applicant said relevantly: 25. I will be harmed and persecuted because I am Hazara. I will be investigated and authorities will insist that I am not a citizen of Iran. I will be accused of having obtained fraudulent documents in Iran. 17 The primary judge (at [13]) specifically highlighted the fact that the Tribunal had recorded that the appellant had stated in an interview that should he be returned to Iran he would continue to fight for his and his daughter's rights. The primary judge outlined the analysis by the Tribunal in his Honour's reasoning (at [15]-[16]). 18 Dealing with ground 1 and ground 2 of the amended application before his Honour, the primary judge addressed those (at [18]-[20]) in the following terms (before turning to consider ground 3, which is not pursued on this appeal): 18. In relation to ground 1, I accept the [Minister's] submission that there was no clearly articulated claim that the [appellant] would try and obtain a birth certificate for his youngest daughter if he returned to Iran. Whilst I accept that there is a reference in the delegate's decision at CB172 and repeated in CB174 to the [appellant] continuing to fight for his and his daughter's rights, that does not mean that there was a claim that the Tribunal was required to address, as alleged in ground 1, in respect of the obtaining of a birth certificate for the [appellant's] youngest daughter. 19. I accept the [Minister's] submission that it cannot be said that there is a substantial, clearly articulated argument relying upon established facts to the effect that the [appellant] claimed he feared harm if he returned to Iran "because he would continue to try to obtain a birth certificate for his youngest daughter". Further, I do not accept that this was a claim that can be said to have clearly arisen or to have been sufficiently identified, that it should have been addressed by the Tribunal. Accordingly, ground 1 fails to make out any jurisdictional error. 20. In relation to ground 2, I accept the [Minister's] submission that this again was not a claim, that was clearly articulated, that the [appellant] might carry out his threat to complain to international bodies if the [appellant] returned to Iran or that he might refrain to carry out his threat to complain to international bodies because of harm he might fear if he carried out that threat. In my opinion, no such claim clearly arises or was sufficiently raised on material before the Tribunal and the Tribunal was not required to address the matter raised in ground 2. Accordingly, ground 2 failed to make out any jurisdictional error. THE APPELLANT'S ARGUMENT 19 The appellant refers to the observations in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (with whom Spender J agreed) (at [42]): The requirement to review the decision under s 414 of the [Migration Act] requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. 20 Reliance is also placed on the well-known decision of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 where the Full Court (Black CJ, French and Selway JJ) said (at [58]): The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 21 Finally, reliance is placed on observations in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 (at [38]) where Young J said: In my view, it is a natural consequence of the inquisitorial process, to paraphrase Merkel J, that the Tribunal must consider the case that arises from the evidence before it, regardless of how that case is specifically put by the applicant. While the authorities make it clear that the Tribunal is not required to make the applicant's case, it is bound to consider a case on a basis not articulated by the applicant if it is raised by the evidentiary material that is before the Tribunal or by the Tribunal's findings based on that evidence. It is a not an obligation that can be discharged simply by reference to the terms in which the applicant articulates his claim. 22 In relation to each of the two claims, the appellant then goes on to identify locations at which a reference was made in relation to future conduct and references from which future conduct may be inferred in the case of both claim 1 and claim 2. In relation to claim 1, in a claim which did not expressly raise specifically an intention to fight for the future rights of his daughter, the delegate nonetheless recorded the fact that the appellant would continue to fight for his (the appellant's) and his daughter's rights as part of her process of decision-making. Similar references were made in pre-hearing written submissions to the Tribunal and in the acknowledgment in the Tribunal's decision that of the appellant's 'claim to continue to fight for his and his daughter's rights as he has being doing this for the past 20 years'. 23 In relation to claim 2, the appellant makes reference to use of the future tense when the appellant said in his IMA entry interview: 'I will go to international humanitarian organizations and tell them the situation in Iran… They said if you proceed, we will introduce you to the revolutionary court', as did the statutory declaration attached to his protection visa application, the post-interview written submissions made to the delegate and a post-hearing written submission to the Tribunal. 24 The appellant argues that these claims about what would occur in the future were not adequately considered by the Tribunal and raise a strong inference that they have been overlooked within the sense discussed by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (at [47]). The appellant complains that the Tribunal addressed the risk of harm brought about by the appellant's past actions but did not take into account the appellant's future intended actions and their possible ramifications. The Tribunal did not, it is argued, apparently understand or undertake that task. CONSIDERATION 25 In my respectful view the arguments were correctly rejected by the primary judge. The starting point is that the focus of the essential claim for the appellant was a fear of persecution in Iran for reason of being Khawari (Hazara) ethnicity. More broadly, the appellant claimed to fear persecution in Iran by reason of his ethnicity, imputed political opinion and membership of an alleged social group of 'returnees from a Western country'. His claim was that Khawari people were discriminated against in Iran. Specifically he said that this was exemplified by his consistently being asked to confirm his nationality by Iranian authorities despite being born in Iran, and by the number of meetings he had with Iranian officials. He claimed that after he threatened to take the matter to 'international organisations' about six months before his departure from Iran for Australia he was taken home by the MISIRI officers, held overnight, handcuffed, punched and threatened that if he complained about Iran he would be harmed. He claims that he would be killed if he returned to Iran because they would know he had complained about Iran. He also claimed to have been accused of fraudulently obtaining Iranian citizenship. 26 This was the essence of the appellant's claims, but it is not to say that the matters to which he now points on appeal were not mentioned. The Tribunal examined the claims closely in what counsel for the appellant fairly conceded as being an otherwise competent decision. The Tribunal was not overly critical of the appellant. Indeed it found him 'generally credible', but was of the view that he had exaggerated some aspects of his claims, particularly in relation to the claims of detention by the MISIRI. It also found that contrary to his claims that he was stateless, that he was an Iranian citizen having been born in Iran to an Iranian father. The Tribunal accepted that the appellant was of Khawari ethnicity and that Khawari's are discriminated against in Iran. 27 The claim is now put that the Tribunal failed to address a claim of the appellant that he 'would continue to try to obtain a birth certificate for his youngest daughter if returned to Iran' and face harm as a result. As the primary judge correctly found, this suggestion was not ever a clearly articulated claim that was put to the Tribunal. He did not expressly state to the Tribunal that he would act in that way, nor that he would suffer those consequences if he were returned to Iran. As expressed to the Tribunal, the fear of harm was that he would be killed because he would be regarded as complaining about Iran. The fact that he is recorded incidentally as stating in the interview before the delegate (but not to the Tribunal) that if he returned to Iran he would 'continue to fight for his and his daughter's rights' does not elevate this remark to a claim that the appellant feared persecution for this reason in the future. 28 I accept the submission for the Minister that on no view can there be said to be a 'substantial, clearly articulated argument relying upon established facts' as referred to in Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 197 ALR 389 (at [24]) and in NABE (at [68]) that the appellant claimed before the Tribunal to fear harm in Iran because if he was returned there he would continue to try to obtain a birth certificate for his youngest daughter. There was no claim of substance to that effect at any point and the primary judge was correct to conclude that the Tribunal could not be criticised for failing to address such a claim. 29 Taken in isolation, the mixture of tenses in the material outlined above (at [22]-[23]) tends to pertain more to conduct in the past, rather than possible conduct in the future. As counsel for the Minister points out, in the appellant's written submissions before the Tribunal it was claimed that the appellant 'was' threatened with harsh consequences if he continued to try to obtain his and his daughter's birth certificates, and that he had left Iran to avoid the threatened harm. In my view, the Tribunal could not be criticised for failing to consider the consequences of the possibility of future actions, when the claim was clearly cast on the basis of past events by professional advisers. 30 In relation to the second claim, currently in ground 1(b), that the Tribunal failed to address a claim that if returned to Iran the appellant 'might carry out his threat to complain to international bodies' and face harm as a result, again this is simply not a claim put in the 'clear' sense discussed in the authorities. There was no reference to the fear of persecution if he complained to unidentified 'international bodies' if returned to Iran. It cannot be said that such a claim would 'clearly arise' on the material before the Tribunal so as to, nevertheless, require the Tribunal to address it within the principles identified in NABE. 31 In any event and of some importance, in relation to both of the claims, it might well be thought that the conclusions of the Tribunal would encompass the future possibility as well as the past in that, in each case, the Tribunal accepted that the relevant conduct had occurred and may occur in the future but ruled that the conduct had not given the appellant the profile of a person in opposition to the Iranian government. It was not, in the view of the Tribunal, conduct of interest to the authorities. Nothing was put in argument to suggest that if hypothetically such conduct continued, the position would for some reason change adversely for the appellant. Having carefully assessed the impact of such conduct in the past, the Tribunal can hardly be criticised for failing to comprehensively predict the outcome of unclaimed conduct of the same nature that might occur in the future. A substantial body of material and claims was put before the delegate and the Tribunal. 32 Further, the fact that the appellant has been represented throughout the process is a relevant consideration on the question of 'whether the advisors have articulated the case which is later said not to have been dealt with by the tribunal of fact': SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 per Robertson, Griffiths and Perry JJ (at [37]). 33 As with the claims about continuing to try to obtain a birth certificate for his youngest daughter, the Tribunal had found the appellant's claims exaggerated and that the Iranian authorities had no interest in him. 34 The primary judge was correct to conclude that no jurisdictional error was demonstrated. CONCLUSION 35 For these reasons, the appeal will be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 10 August 2016