Abd16 v Minister for Immigration
[2016] FCCA 2872
•23 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABD16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2872 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to rely on amended application handed up at the hearing – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 36(2B), 499 |
| Cases cited: ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003 AEB15 v Minister for Immigration & Border Protection [2016] FCCA 2166 AIG15 v Minister for Immigration & Border Protection [2016] FCCA 891 AJB15 v Minister for Immigration & Border Protection [2016] FCCA 1005 Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 MZABA v Minister for Immigration & Border Protection (2015) 234 FCR 425; [2015] FCA 711 MZZHW v Minister for Immigration & Border Protection [2014] FCA 868 SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207; [2012] FCAFC 26 |
| Applicant: | ABD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
| File Number: | SYG 17 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 November 2016 |
| Date of Last Submission: | 2 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 17 of 2016
| ABD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived in Australia as an Irregular Maritime Arrival (that is, by boat without a visa) on 23 January 2010. As such, he could not apply for a protection visa unless the Minister exercised a personal power to allow him to do so. As part of the process of the Minister considering whether to exercise that power, the applicant applied for what was known as refugee status assessment. In essence, this application was based on his claim that he faced harm in Iran as a Faili Kurd.
The applicant was assessed as not meeting the definition of “refugee” under the Refugees Convention[1]. The applicant then proceeded to the second stage of the assessment process called the Independent Merits Review. He was also unsuccessful at that stage and his efforts to obtain judicial review in relation to that process failed.
[1] Convention Relating to the Status of Refugees 1951 as amended by the protocol in 1967.
The applicant was released from immigration detention on 9 January 2012 and remains in the community. By letter dated 22 August 2014 the Department of Immigration informed the applicant that there was a new process to determine whether there were any non-refoulement applications which would prevent the Department from progressing his removal from Australia. This procedure was called the International Treaties Obligation Assessment (ITOA) or Post Review Protection Claims Assessment.
ITOA process
The applicant was interviewed as part of the ITOA process. On 9 September 2015 an officer of the Department (“assessor”) prepared a report in which he concluded that Australia does not have non-refoulement obligations to the applicant.
The applicant seeks judicial review of the report prepared at the conclusion of the ITOA process. He also seeks an extension of the time within which to make that application.
The Minister accepts that the ITOA process was sufficiently connected to a proposed action to be taken under the Migration Act1958 (Cth) for there to be jurisdiction in this Court to determine whether the conduct of the ITOA process was affected by error. That concession is consistent with the decision of the High Court in Minister for Immigration & Border Protection v SZSSJ (2016) 90 ALJR 901; [2016] HCA 29 (“SZSSJ”) and is supported by the letter of 22 August 2014 from the Department to the applicant.
Understood in this way, the Minister submitted that there is no express time limit placed upon the making of the application. Consequently, there is no need for an extension of time for the making of the application: see SZQDZ v Minister for Immigration & Citizenship (2012) 200 FCR 207; [2012] FCAFC 26 (“SZQDZ”) at [46]. There may be a question whether the reasoning in SZQDZ conforms to the reasons in SZSSJ (see SZSSJ at [70] – [73]); however, as that issue was not argued and SZQDZ was not referred to by the High Court in SZSSJ, I will proceed on the basis that there is no relevant time limit.
The ITOA process involved consideration of whether there were any non-refoulement obligations in respect of the applicant. This included obligations arising under the Refugees Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), or the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, aimed at the abolition of the death penalty.
The applicant does not take issue with the way in which the assessor dealt with the obligations under the Refugees Convention. His complaint is that the assessor did not properly deal with the other non-refoulement obligations because he conflated the questions arising in that respect with those arising under the Refugees Convention. This error is said to have arisen in the following paragraph:
I have considered the claims of the claimant both individually and cumulatively. As discussed in Part A, section 9; Part A, section 10; and under Part B, section 4; I have found that there is not a real chance the claimant would suffer serious harm for any of the reasons under Article 1A(2) of the Refugees Convention. While I acknowledge that there are differences between serious harm under s91R(2) and significant harm under s36(2A) of the Migration Act, for similar reasons as discussed under the above sections, I also find that there is not a real risk of the claimant being subject to significant harm for the reasons under Article 1A(2) of the Refugees Convention.
This argument relies upon the decision of Judge Driver in SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7 in which his Honour found, at [90] and following, that the decision in question was flawed because there was no attempt to distinguish the different tests posed by sub-s.36(2)(a) (which, broadly speaking, is the Refugees Convention criterion) and s.36(2)(a) (which equates to the other non-refoulement obligations).
It will not always be the case that a decision will be flawed by reliance upon the same findings made under the Refugees Convention for purposes of the other non-refoulement obligations. Each case must depend on its own facts and on what the decision-maker’s reasoning in fact was: SZSGA v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCA 774 at [56] – [57] (Robertson J); SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125 at [35]; (2013) 138 ALD 26; SZTKE v Minister for Immigration & Border Protection [2015] FCA 1002 at [87]; SZTIV v Minister for Immigration & Border Protection [2015] FCA 108 at [10]; MZZHW v Minister for Immigration & Border Protection [2014] FCA 868 at [6]; MZABA v Minister for Immigration & Border Protection (2015) 234 FCR 425; [2015] FCA 711 at [92]; AIG15 v Minister for Immigration & Border Protection [2016] FCCA 891 at [17].
The issue must be determined by taking the following two steps: first, an examination of the nature of the claims made by the applicant; and secondly, an analysis of the reasons for which the assessor disposed of the refugee claims.
Matter arising at the hearing
Before turning to those two steps, it is necessary to deal with an issue that arose at the hearing of the matter.
At the commencement of the hearing counsel for the applicant handed up a document entitled “Applicant’s supplementary submissions.” This document had not been filed and had only been given to counsel for the Minister immediately before the hearing. Although, at first, counsel for the applicant contended that the document did not raise any new argument, it is plain that it did. It stated, at [16]:
The crux of ground one is that the Tribunal failed to take into account the matters identified in PAM 3 Refugee and Humanitarian Complementary Protection Guidelines (Guidelines).
The Guidelines were not mentioned in the ground in the application. What the applicant sought to do was to rely on the decision of Judge Driver in SZUQZ v Minister for Immigration & Border Protection [2015] FCCA 1552, namely, that the assessor had failed to comply with s.499(2A) of the Act. Section 499 of the Act relevantly provides:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
The submission was that the Minister made Direction No.56 under s.499 and that that Direction requires that “the Tribunal ‘take into account’ the matters identified in the Guidelines to the extent that they are relevant to the decision under consideration.”
At the conclusion of argument, I refused the applicant leave to amend the application to rely on this ground. I said that I would give my reasons for refusing leave when I delivered reasons on the substantive matter.
There are several reasons for the refusal of the application to amend.
First, neither Direction No.56 nor the Guidelines was in evidence and counsel for the applicant could not say whether the Guidelines relevant to this case were the same as those considered in SZUQZ. For that reason, the ground lacked a rudimentary factual basis.
Secondly, the ground (and SZUQZ) was addressed to the obligations of the Refugee Review Tribunal as “a person or body having functions or powers under” the Migration Act and thus, one subject to direction by the Minister under s.499. However, when asked, counsel for the applicant could not explain whether the assessor also fell within that description. Counsel asked for more time to consider this question and for leave to file written submissions addressing it. That request was refused.
A final hearing is not some unimportant mid-point in judicial proceedings. It ordinarily constitutes the sole opportunity for parties to present all of their evidence and to make oral submissions in support of their application, or in opposition to, the application by the opposing party. Of course, procedural fairness must be observed and what that entails depends on the circumstances of each case. It may be, for example, that a party who is taken by surprise by a new point arising at final hearing can be afforded procedural fairness by being given leave to make further submissions in writing. That is not the case here. Simply put, the applicant attempted to raise an argument without properly considering that argument. His failure to do so is entirely his fault and there is no reason why the Minister should be put to any extra time or expense to make up for it. More importantly, there is no reason why the Court should tolerate such a lack of preparation in circumstances where there has been plenty of time and opportunity for it.
Thirdly, and critically, the applicant was earlier given two opportunities to amend his application but failed to do so. On 8 March 2016 the Court granted leave to the applicant to file and serve an amended application by 15 April 2016. He did not take that opportunity. Then, on 19 May 2016 the Court set this matter down for hearing and made the following order:
2. Any application for leave to amend the application is to be:
a)made by an application in a case;
b)supported by an affidavit;
c)filed and served by 26 May 2016 together with submissions in support of the application no more than 3 pages in length.
The applicant did not comply with that order, seeking as I have noted, to amend by simply handing up “supplementary submissions” on the morning of the hearing. This is the latest of many instances in which this counsel has been involved in a similar conduct: see for example, ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003; AJB15 v Minister for Immigration & Border Protection [2016] FCCA 1005; AXD15 v Minister for Immigration & Border Protection [2016] FCCA 1006; BUY15 v Minister for Immigration & Border Protection [2016] FCCA 1736; AEB15 v Minister for Immigration & Border Protection [2016] FCCA 2166; BSV15 v Minister for Immigration & Border Protection [2016] FCCA 2461. Such recalcitrance cannot be tolerated and ought never to be encouraged.
Consideration
The applicant made the following claims in support of his claim to be owed protection obligations:
a)The applicant’s mother and father were born in Baghdad in Iraq but were expelled in 1980 and went to Iran. The applicant’s mother was pregnant with the applicant at the time.
b)The applicant is a Faili Kurd and so had no access to basic human rights or facilities such as schools, medicine or protection by the authorities. He has to pay more for services than other people in Iran.
c)He was harassed and beaten up by the Basij, kicked, punched and slapped around. They continuously harassed the applicant and would take the goods he was selling and the money he had earned during the day. He had to pay bribes in order not to be detained or assaulted and had to take steps to avoid the authorities.
d)He has no identity documents and so was unable to do anything that required registration and was forced to work illegally selling goods on the street.
e)He left Iran with the use of a false passport just after the elections in 2009 and so will be accused of having an anti-government political opinion. He will also be accused of involvement with terrorist organisations.
f)As a returnee from a Western country he will be accused of being a spy.
For these reasons, the applicant claimed that he would face the same discrimination, cruel, inhuman and degrading treatment as he had faced his whole life and would be interrogated, imprisoned, tortured and even killed.
After an interview with the assessor, the applicant also claimed that he had multiple health problems that would prevent him from working in Iran.
The assessor’s reasons were divided into a number of parts. In part A, the assessor set out the applicant’s claims and referred to a number of other matters before setting out, in section 10, its findings concerning the factual claims made by the applicant. The assessor accepted the following claims:
· The applicant was a Faili Kurd who has resided in Iran for most of his life;
· His parents were born in Iraq and the applicant may be perceived as an Iraqi by the Iranian authorities;
· He previously worked as a street vendor and labourer in Iran. His brother continues to work there in the same profession;
· The applicant had never been issued with any identity documents and so is an undocumented person;
· He was involved in two incidents with the Basij:
i.When he was 18 years old he was a fruit vendor and the Basij confiscated his fruit and he was told “to go”;
ii.In 2007 the applicant was kicked and slapped by the Basij when he was unable to evidence identification.
· If the applicant returned to Iran he would be returned as a failed asylum seeker from the West;
· He departed on a false passport more than six months after the June 2009 Presidential elections;
· The applicant is not part of any political organisation (including Kurdish groups);
· He has not engaged in any political activities against the Iranian government either in Iran or Australia; and
· The applicant has several health complaints including back pain and depression.
However, the assessor did not accept that the applicant had been beaten by the Basij in a mosque or with batons as he had claimed.
In part B of his reasons, the assessor assessed whether these facts raised a non-refoulement obligation under the Refugees Convention. This part was, in turn, divided into a number of sections in which the assessor discussed the different components of the definition of a refugee in Article 1A(2) of the Convention. Thus, the second and third parts dealt with the questions whether the harm feared was for a Convention reason[2] and whether it amounted to persecution. The fourth part was dedicated to the question of whether the fear was well-founded. It is under this part that the assessor addressed each of the applicant’s claims. This part was also divided into different parts identified by sub-headings relating to the applicant’s claims.
[2] That is, for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The first sub-heading was “Fail Kurds”. In this respect the assessor accepted country information to the effect that:
a)Faili Kurds were not targeted for reasons of their ethnicity and that Iraqi refugees including Faili Kurds were treated well in comparison with Afghans;
b)Racially motivated violence against any group in Iran was rare;
c)There were no reports of Faili Kurds being targeted for extortion or being subject to harassment, detention or physical assault, although it was possible in individual cases;
d)There was no information that Shia Kurds were facing any serious problems in Iran simply because of their Kurdish ethnicity.
Given that he did not accept that the applicant had a political profile, the assessor did not accept that there was a “real chance of persecution from the Iranian authorities or any other agent, for the reason of perceived involvement with terrorist organisations based on his Kurdish ethnicity”.
The next sub-heading was “Statelessness in Iran”. The assessor referred to information indicating that stateless people in Iran did experience adverse treatment in various areas including employment, health care and property ownership; however there was other information to the effect that access to those services was possible and normally tolerated by the authorities. The assessor found that the Basij’s interest in the applicant was financially motivated and that their treatment of him did not amount to persecutory harm. He concluded that, in spite of the discriminatory nature about the access to various services, the applicant was not denied access to employment, education, health care or marriage and that his main reason for departing Iran was to obtain an identity and he was not subject to persecutory harm.
The assessor then examined more closely the question of whether the discrimination faced by the applicant might amount to persecution. The assessor was not satisfied that the applicant would encounter significant economic hardship that would threaten his capacity to subsist and amount to serious harm within the reasonably foreseeable future in Iran because he was a Faili Kurd, stateless or undocumented.
The next sub-heading was “Failed Asylum Seekers”. Here, the assessor accepted country information that indicated that the risk of mistreatment was proportionate to a person’s individual political profile in Iran and/or involvement in political activity while abroad. As the applicant had no political profile, the assessor found that he had no real chance of persecution on the basis of being a failed asylum seeker in Iran.
The assessor then considered the claims arising from the applicant’s “Association with the West”. The assessor found that there was no real chance of persecution in Iran for two reasons:
i.there was no country information that indicated that a stay in a Western country, by itself, would result in harm to a person in Iran; and
ii.those who had been harmed on return to Iran had had political profiles, whereas the applicant did not.
In the next section the assessor considered the impact of the applicant’s “Departure from Iran”. He was not satisfied that the applicant’s departure from Iran more than six months after the June 2009 Presidential election would associate him with any political profile or any anti-Iranian government opinion. In light of the lack of any other political profile, the assessor found that the applicant’s departure at that time did not give rise to a well-founded fear of harm.
The assessor next considered the claim that the applicant faced harm on the basis of his departure on a false passport. On the basis of country information the assessor accepted that the applicant may suffer some penalty for this action; however, he found that that would not amount to persecutory harm. This was because the imposition of a penalty for breaking a law of general application where it is applied in a non-discriminatory manner, did not give rise to a well-founded fear of persecution for a Convention reason.
Finally, the assessor considered the applicant’s claims based on his Iraqi background. In this respect the assessor considered relevant country information, some of which supported the claim, as well as the lack of detail in the applicant’s claim and concluded that his fear of harm based on imputed nationality was not well-founded.
The assessor then stated his conclusions that the applicant’s fear of persecution was not well-founded, that the applicant was not a refugee within the meaning of Article 1 of the Refugees Convention and that Australia did not have non-refoulement obligations to him under that Convention.
In part C of his reasons the assessor considered whether the applicant was owed non-refoulement obligations under the ICCPR and CAT. It is here that the applicant argues that the assessor failed to address his claims. I have set out the passage of the reasons relied on by the applicant at [9] above but for ease of reference set out again the sentence in that passage that is said to contain the essential error:
… While I acknowledge that there are differences between serious harm under s91R(2) and significant harm under s36(2A) of the Migration Act, for similar reasons as discussed under the above sections, I also find that there is not a real risk of the claimant being subject to significant harm for the reasons under Article 1A(2) of the Refugees Convention.
Before considering whether this sentence does reveal the error asserted by the applicant, it is necessary to make three comments about it. First, it is clearly not ideal to give reasons in this way. The fact that the reasons were “similar” leads to the question of whether there were any differences in the reasoning and, if so, what those differences were. Secondly, it leaves it up to the reader to trawl back through the previous reasons to see if, and how, the claims were dealt with. Thirdly, read literally, the sentence contains an obvious error because it refers to “significant harm” under the Refugees Convention. That error supports the applicant’s argument; however, given the context, it is clearly a mistake and properly understood, the assessor was dealing with the non-refoulement obligations under the other Conventions.
The context of this sentence is also important to the larger question of whether the assessor actually considered the applicant’s claims in the context of those other Conventions. Here, there are four important indicators that he did: first, Part C of the assessor’s reasons commences with a summary of the tests relevant to the other Conventions. The applicant does not contend that that summary was incorrect.
Secondly, that summary includes a definition of “significant harm”. It will be recalled that, in the impugned sentence, the assessor acknowledges that there are differences between “serious harm” which is relevant to the Refugees Convention and “significant harm”.
Thirdly, the assessor refers to the decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33. That reference is important because in that case, the Full Court determined that the “real risk” test relevant to the other Conventions was the same as the “real chance” test relevant to the Refugees Convention.
Fourthly, all but one of the claims made by the applicant were based on a Convention claim. That is, with the exception of the claim based on his health, all of the harm feared by the applicant was said to arise from his race, imputed political opinion, membership of a particular social group, or imputed nationality. Those claims were all dealt with in Part B of the reasons in connection with the Refugees Convention whereas the health claim was only dealt with under Part C. That reveals that the assessor understood, correctly, that a Convention nexus was not a necessary element of a claim in relation to the ICCPR or CAT.
In light of those matters, subject to one possible exception, I am not satisfied that the assessor failed to distinguish between the different tests involved. That exception concerns the claim that the applicant faced harm because he had left Iran on a false passport. The assessor dealt with this claim in the context of the Refugees Convention on the basis that persecution does not arise from the non-discriminatory application of a law of general application. However, as I have noted, generally speaking, discrimination is not necessary in order to give rise to non-refoulement obligations under the ICCPR and CAT. Thus, at first view, there is an argument that, if the assessor had properly understood and distinguished the differences between the two tests, he would have separately considered the false passport claim.
The answer is that there is a qualification to the general rule provided by s.36(2B) of the Act which states:
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
The effect of this provision is that the penalty imposed for breaking the law of a country that applies generally cannot amount to significant harm within the meaning of sub-s.36(2)(aa) and s.36(2A) of the Act: SZSPT v Minister for Immigration & Border Protection [2014] FCA 1245 at [11]-[13] (Rares J); see also BBK15 v Minister for Immigration & Border Protection (2016) 241 FCR 150; [2016] FCA 680 at [30] (Buchanan J). Given that the assessor’s finding under the Refugees Convention was that the applicant may be penalised under a law of general application, his conclusion there applied mutatis mutandis to the non-refoulement obligations under the ICCPR and CAT. I note in this respect that the applicant did not contend that s.36(2B) had no application to the determination of the matter by the assessor.
Conclusion
For those reasons the applicant has not established that the assessor has fallen into any error and the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2016
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