Federal Court Denies Visa Appeal Extension

FEDERAL COURT OF AUSTRALIA

[NAME] v [NAME] & Border Protection [2015] FCA 1276 Citation: [NAME] v [NAME] & Border Protection [2015] FCA 1276

Appeal from: Application for an extension of time: [NAME] v [NAME] & Anor [2015] FCCA 179

Parties: [NAME], SZSYJ, SZSYK, [NAME] v [NAME] PROTECTION and REFUGEE REVIEW TRIBUNAL

File number: NSD 355 of 2015

Judge: GILMOUR J

Date of judgment: 19 November 2015

Catchwords: MIGRATION – application for an extension of time to file notice of appeal – applications for protection visas – whether the primary judge erred in not finding that the Tribunal erred in holding that the [NAME] applicant had made no claim for complementary protection – whether the Tribunal considered if the applicants had a claim under complementary protection.

Legislation: Migration Act 1958 (Cth) ss 36(2)(a), (aa) Federal Court Rules 2011 (Cth) r 36.03, 36.05

Cases cited: [NAME] v [NAME] Affairs (2003) 197 ALR 389 [NAME] v [NAME] for Immigration and Multicultural Affairs (2001) 73 ALD 321 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 [NAME] v [NAME] Protection [2014] FCA 237

Date of hearing: 4 August 2015

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 49

Counsel for the Applicants: [redacted]

Solicitor for the Applicants: [redacted]

Counsel for the First Respondent: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for the [NAME] Respondent: [redacted]

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 355 of 2015

BETWEEN: [NAME], SZSYJ, SZSYK, [NAME]

Applicants

AND: [NAME] PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

[NAME] Respondent

JUDGE: GILMOUR J DATE OF ORDER: 19 November 2015 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed. 2. The applicants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BETWEEN: [NAME], SZSYJ, SZSYK, [NAME]

Applicants

AND: [NAME] PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

[NAME] Respondent

JUDGE: GILMOUR J DATE: 19 November 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The applicants seek an extension of time to appeal from the judgment of the Federal Circuit Court of Australia delivered on 30 January 2015 – [NAME] v [NAME] [2015] FCCA 179 – dismissing an application for judicial review of a Refugee Review Tribunal (Tribunal) decision dated 15 May 2013.

Background 2 The applicants are a husband, wife and their two children, and are citizens of Iran. Only the [NAME] made claims to be entitled to refugee status. The applicants arrived in Australia on 23 July 2012. The applicants lodged applications for protection visas on 16 October 2012. 3 The first applicant, the [NAME], advanced the following claims in support of the application. He affirmed that: (a) he grew up in Tehran, Iran; (b) his father was a bus [NAME] in the military, his mother was a housewife; (c) he was a Shia Muslim who practices his religion but does not go to mosque "except on special occasions"; (d) after he completed his compulsory military service he started working at the Ministry of Foreign affairs on a contract basis as a security guard. 4 He further affirmed: In 1999, there were some problems in a dormitory of the University of Tehran. Some students were protesting. The protests resulted in clashes with the police and the clashes spilled out of the campus. The Basij that were stationed in the Ministry asked us to go to and spy on people and find out information about when and where the next demonstrations would occur. …I didn't want to do this because I didn't think it was part of my job. I was employed by the Ministry, not by law and order. I didn't want to spy on people and do law enforcement. 5 He provided an account of falling out and being treated with suspicion by the Ministry. This culminated in his refusal to take part in the crack downs on protestors during the 2009 elections. Upon returning to work, it was discovered that his assigned weapons had gone missing and he was taken to a house and detained. 6 He was then posted in Syria, at which point his wife joined him. They then discovered that their home had been broken into. 7 On his return to Iran he received a threatening letter. His pay had been reduced and he took new jobs as a [NAME] and at a [COMPANY]. 8 In approximately early 2011, his brother left Iran. This was soon reported back to the Basij. Two months after this, his [NAME] was accused of murdering a member of the security forces. 9 The first applicant then made an application for a tourist [NAME] to Australia. This was rejected. He resigned in April 2012. 10 His family left Iran on 8 May 2012. 11 On 9 November 2012, the Refugee Advice and Casework Service provided submissions in support of the applicants' protection [NAME] applications received on 16 October 2012. These submissions included the following claim: Based on well-known information about the conditions of detention and interrogation techniques in Iran, we submit that if the applicants are detained even for a short period of time in Iran, there is a real chance that they would be subject to physical mistreatment and torture. (Footnotes omitted.) 12 I have set out below the history of the proceedings before the Tribunal and the Federal Circuit Court, which is drawn from the written submissions of the first respondent (Minister). None of this is controversial. 13 A delegate of the Minister refused the applicants' [NAME] applications on 21 February 2013. The applicants sought review by application to the Tribunal lodged on 25 February 2013. The Tribunal convened a hearing on 22 April 2013. On 15 May 2013, the Tribunal affirmed the decision under review refusing the applicants' [NAME] applications.

The Tribunal's decision 14 The first applicant claimed, in summary, to fear persecution for reason of his imputed anti-government political opinion. 15 The Tribunal accepted, at [44], that the first applicant was employed in the [NAME], which represented the Ministry of Intelligence and state security apparatuses, within Iran's Ministry of Foreign Affairs (MFA). However, it doubted the plausibility of his claim that he was under scrutiny or considered himself to be under scrutiny, because of concerns about his loyalty to the regime. The Tribunal outlined its reasons for this doubt from [45]-[50]. 16 The Tribunal did not accept that at the time the first applicant left Iran there were outstanding charges against him, or any investigations into the first applicant for passing on weapons to anti-government protesters. The Tribunal did not accept that he was regarded with any suspicion by the Iranian authorities before he left Iran. The Tribunal did not accept that he was under scrutiny or considered himself to be under scrutiny because he was a person who was not loyal to the regime. 17 The Tribunal considered the first applicant's claim concerning his relatives' links with the [NAME] ([NAME]), his claim concerning being a failed asylum seeker, from [61], and further related claims from [64], including being put at risk of mistreatment because of his brother's attempt to seek asylum in Australia. 18 The Tribunal found that the first applicant did not satisfy the complementary protection criterion at [73]. 19 The [NAME] applicant, the [NAME], claimed to fear harm for reason of her being a member of her husband's family and her parents' family. 20 The Tribunal accepted that the [NAME] applicant's parents were supporters or members of the [NAME] and were imprisoned 33 years ago for that reason. The Tribunal accepted that her father and her had lived normal lives free from harassment since her father's release from prison. The Tribunal noted that it was not claimed that her mother continued to be politically active in any way since the 1980s nor, until the recent claims of arrest, had she been subjected to any ongoing harassment or harm over many years. The Tribunal noted it was also not claimed that her sister (in Iran) had been harmed or harassed because of her mother's past. The Tribunal did not regard a particular article as a reliable source of evidence. 21 The Tribunal was satisfied the [NAME] had not been imputed with anti-government views because of their link with the [NAME] applicant's parents. The Tribunal found that the [NAME] applicant's chance of being arrested and interrogated for any reason arising from her parents' political histories or from her mother's current plight was remote. 22 The Tribunal considered remote the chance that the [NAME] applicant would be arrested and interrogated as claimed because of any problems associated with the first applicant's previous work for the MFA. It found the chance of the [NAME] applicant being perceived to be against the [NAME] for any reason, including arising out of her legal departure from Iran, was remote. 23 The Tribunal found that the [NAME] applicant had made no complementary protection claims: at [107] of its reasons.

Proceedings before the Federal Circuit Court 24 The applicants commenced proceedings in the Federal Circuit Court by application filed on 19 June 2013. The matter was listed for a directions hearing before [NAME] Judge Raphael on 12 December 2013, at which procedural orders were made and the matter was set down for a final hearing on a date to be advised. The first applicant appeared in person on this occasion. 25 On 15 January 2014, the Minister and the applicants' then counsel were notified by email that the matter had been listed for hearing at 10.15am on 23 May 2014 before Judge Manousaridis. [ADDRESS] convened a hearing on that date and time, at which the applicants were represented by counsel, who appeared with an instructing solicitor. At the hearing on 23 May 2014, the applicants were granted leave to amend their application. [ADDRESS] reserved its judgment, which it handed down on 30 January 2015. The applicants' counsel attended the judgment delivery. [ADDRESS] ordered that the application be dismissed with costs. 27 The issue arising for determination was whether the Tribunal failed to consider the applicants' complementary protection claims under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). [NAME] held that the Tribunal dealt with all claims relevant to whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants' removal to Iran, there was a real risk of significant harm. In particular, it was held that the Tribunal had considered the matters the applicants' counsel said were not considered: at [25] of [NAME]'s reasons.

Application for extension of time 28 The application seeks an extension of time, pursuant to r 31.02(1) of the Federal Court Rules 2011 (Cth), in which to appeal against the judgment of the learned primary judge. This rule is not apt to this appeal. This case is an appeal from a Federal Circuit Court decision and therefore the relevant rule is r 36.05. 29 Factors relevant to the grant of an extension of time include whether the applicants can successfully articulate an acceptable explanation for the delay, and the merits of the substantive application: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 30 The last day within which the applicants could have lodged any appeal within time was 20 February 2015: see r 36.03(a). This application was filed on 9 April 2015. The application is therefore moderately out of time. Counsel for the Minister, reasonably in my view, informed the Court that she was prepared to make submissions on the application confined to the question of the asserted merits of the putative appeal. I am satisfied that the applicants were not the cause of the delay. 31 The Minister submits that the ground of the draft notice of appeal lacks sufficient prospects of success, such that an extension of time should not be granted. This asserts that the primary judge erred at [24] of his reasons: [24] The Tribunal's statement that the [NAME] applicant made no claim for complementary protection may reflect a belief that the only harm the [NAME] applicant claimed she feared if she returned to Iran is harm that would flow from a [NAME] reason. Whatever the Tribunal may have meant by stating the [NAME] applicant made no claim for complementary protection, I am satisfied the Tribunal did consider whether the [NAME] applicant, as well as the first applicant, had a claim under complementary protection. In relation to both the [NAME], the Tribunal in terms considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Iran, there is a real risk they will suffer significant harm. For both the [NAME], the Tribunal found there was no such risk. 32 The applicants referred to a number of passages from the transcript of the Tribunal hearing. First the Tribunal member stated the following: Tribunal Member: Okay, the other way in which you can get Australia's protection is through what's called complementary protection. So I'll just explain what refugee status is and what complementary protection is, briefly. I'm sure that your representative has already explained those things, but just briefly I'll remind everyone what they are. So a refugee is a person who has a well-founded fear of being persecuted in their own country for reasons of race or religion or nationality or membership of a particular social group or political opinion; and sometimes a combination of those reasons. Persecution involves some serious harm and when we say must have a well-founded fear of being persecuted; that means that there must be a real chance, a chance that isn't remote that you will be persecuted. Complementary protection involves significant harm. Slightly different wording - there must be substantial grounds for believing that is a necessary and foreseeable consequence of a person being removed to, in your case, Iran. There is a real risk that person will suffer significant harm, for any reason. So as you know, the immigration department decided that that did not apply to anyone on your application. So the Tribunal is not part of the Immigration department; it's independent. That means I'll be looking at all of the evidence anew. And the hearing today gives you a chance to add anything or explain anything that you think might not have been clear when you were interviewed previously. The hearing is completely confidential, so nothing that you say will be made public in any way that might identify you. [Emphasis added.] 33 The applicants submit that the statement by the Tribunal amounts to an express undertaking that the evidence before the Tribunal will be considered anew for the purposes of the applicants' claims for protection under ss 36(2)(a) and 36(2)(aa) of the Act. 34 Subsequently, the following exchange occurred with the first applicant: [redacted] First Applicant: [redacted] 35 Then the following exchange occurred with the [NAME] applicant, who was also called to give evidence: Tribunal Member: Yes, okay. Okay, yes. Okay, so I mentioned at the beginning complementary protection, which requires that you would have to be facing some significant harm for any reason. I just want to make sure that you've told me all the reasons why you are concerned about being harmed if you go back to Iran. [NAME] Applicant: [redacted] Tribunal Member: That's all, okay. [NAME] Applicant: [redacted] Tribunal Member: Well, basically - I'm going to summarize it very briefly. If you're a refugee, you have to face a real chance of being persecuted because of your race, religion, nationality, membership of a particular social group or political opinion. And with complementary protection, those reasons - race, religion and so on - are not required. You can fear significant harm for any reason. [NAME] Applicant: [redacted] Tribunal Member: Yes, but you'll end up in the same place if you fit the criteria in either of them. It's just that complementary protection gives a further opportunity for protection that refugee status doesn't give. Now, is there anything we haven't discussed that you think is important? [NAME] Applicant: [redacted] 36 In dealing with the [NAME] applicant's claims under the complementary protection provision (s 36(2)(aa) of the Act), the Tribunal stated in its reasons at [107]: She has made no claims under the Complementary Protection criteria, which as noted above require that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Iran there is a real risk she will suffer significant harm. On this point I find that there is no such risk. 37 The applicants submit that a fair reading of the Tribunal's reasons is that the Tribunal considered that the [NAME] applicant abandoned or did not make a claim for complementary protection. In oral submissions, counsel for the applicants outlined that if one accepts that that occurred with respect to the [NAME] applicant, one might infer therefore that it also happened with respect to the first. 38 The applicants submit that [24] of the reasons of the primary judge, set out fully at [31] of these reasons, amounted to a quasi-merits based analysis of the Tribunal's reasons and thus disclosed error:

24. The Tribunal's statement that the [NAME] applicant made no claim for complementary protection may reflect a belief that the only harm the [NAME] applicant claimed she feared if she returned to Iran is harm that would flow from a [NAME] reason. Whatever the Tribunal may have meant by stating the [NAME] applicant made no claim for complementary protection, I am satisfied the Tribunal did consider whether the [NAME] applicant, as well as the first applicant, had a claim under complementary protection. 39 The applicants submit that the passages from the transcript disclose that the [NAME] applicant did not understand and was not conversant with the nuances of the [NAME] and hence was not abandoning her claim or in any way limiting the ambit of her claim to the [NAME]. 40 It is then submitted that having misdirected himself about whether the applicants had narrowed their claim, [NAME] then engaged in "merits' based" analysis, to the effect that even if the applicants had made a claim it would have been futile in any event. 41 This was, they contend, a flawed analysis in that the primary judge used a hypothetical result to justify a flawed process. 42 The applicants submit that this amounted to jurisdictional error by a failure to have regard to the actual nature of the legal inquiry required to be undertaken, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. 43 The applicants accept that they did not, in express terms, raise claims under the complementary protection provisions with any specificity. Nonetheless they submit that: (a) a fair reading of the factual claims is demonstrative of the proposition that the claims were raised under both the [NAME] and the complementary protection criterion; (b) the factual claims were regarded by the Minister's delegate as having raised both a claim under the [NAME] and the complementary protection criterion; (c) a fair reading of the exchanges with the Tribunal do not admit the inference that the factual propositions put in regards to the generic claim were abandoned in regards to the complementary protection claim; (d) in light of the express undertakings made at the commencement of the hearing, the undertakings made by the then Minister in his [NAME] reading speech and the existing authority of this Court, this material should have been considered under the alternative criterion.

Consideration 44 As the applicants correctly submit a decision maker is required to correctly construe and consider claims, and component integers thereof, made by an applicant or apparent on the face of the material before him: [NAME] v [NAME] for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J (with whom Spender and Merkel JJ agreed); [NAME] v [NAME] Affairs (2003) 73 ALD 321 at [22]-[24], [27] per Gummow and Callinan JJ; at [88]-[89] per Kirby J; at [95] per Hayne J. 45 I accept the Minister's submission that the Tribunal in its reasons, including at [107], did not conclude that the applicants had abandoned any aspect of their factual claims as relevant to complementary protection. When the Tribunal said that no claims under the complementary protection criterion had been made, read in context, this meant no more than that, as was the fact, no express claims in this respect had been made. Certainly, as the Minister correctly observes, no separate or additional factual claims were asserted that were reliant specifically on the complementary protection criterion. In the final sentence of [107], the Tribunal made an express finding that the relevant risk, referrable to the complementary protection criterion and its findings of fact, did not exist. There would have been no reason to so find had the Tribunal thought the [NAME] applicant had abandoned any reliance on the complementary protection criterion. The Tribunal, I find, did engage with the complementary protection provisions. 46 The Tribunal's findings of fact with respect to the [NAME]' factual claims, were germane to its assessment of the [NAME]' claims to fear persecution under s 36(2)(a) of the Act as well as s 36(2)(aa), the complementary protection criterion. There was no need for any separate consideration of these same factual matters in relation to the complementary protection criterion. 47 Those adverse factual findings were sufficient warrant to dispose of any complementary protection claims adversely to the applicants. Such was the case too in [NAME] v [NAME] Protection [2014] FCA 237, although the [NAME] there placed express reliance on the complementary protection criterion. 48 I reject the applicants' submission that they were denied procedural fairness. 49 I find that there is insufficient prospect of success on the merits. The application for an extension of time will be dismissed. The applicants should pay the Minister's costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 19 November 2015