AZADL and Minister for Immigration and Anor

[2013] FCCA 1501

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADL & MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1501

Catchwords:
MIGRATION – Independent Protection Assessment recommends that applicant not entitled to protection visa – review – whether reviewer applied writing test in relation to risk of persecution – whether reviewer misunderstood duty in relation to evaluation of serious harm – application refused.

Legislation:  

Migration Act 1958 (Cth), ss.474(4), (5), (6), 5E, 36(2)(aa), 36(2)(a), 91R
Commonwealth Constitution, s.75(v)

1951 Convention Relating to the Status of Refugees and its 1967 Protocol s.476

WZAPH v Minister for Immigration and Citizenship (2012) 131 ALD 365
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319
SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207
SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557
Chan Yee Kin & Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Appellant s395/2002 v MIMA (2003) 216 CLR 473

Applicant: ADAZL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: ADG 79 of 2013

Judgment of: Judge Lindsay

Hearing date: 13 May 2013

Date of Last Submission: 13 May 2013

Delivered at: Adelaide

Delivered on: 8 October 2013

REPRESENTATION

Counsel for the Applicant: Mr Charman of Counsel

Solicitors for the Applicant: Jane Cox Lawyers

Counsel for the First Respondent: Mr d’Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr d’Assumpcao

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application for review filed on 4 April 2013 be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 79 of 2013

AZADL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. Before me on 13 May 2013 was an Application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) in which the applicant sought an order of review in relation to a report of an Independent Protection Assessment Reviewer (“the Reviewer”) which report recommended that Australia be considered not to owe him protection obligations under the Refugees Convention 1951 Relating to the Status of Refugees and its 1967 Protocol.

2. The date of the publication of the Reviewer’s decision was 25 June 2012.  The review followed upon an adverse outcome from the applicant’s point of view of the Protection Obligations Evaluation conducted by the Department.  The date of that evaluation was 1 July 2011 and the outcome of that evaluation was that the applicant did not satisfy the definition of a refugee under the Convention and Protocol.

3. Pursuant to s.476 of this Act, this Court has the same jurisdiction in relation to migration decisions as the High Court of Australia has under para.75(v) of the Constitution of the Commonwealth of Australia, but the jurisdiction can only be exercised in relation to what are described as “migration decisions”. Migration decisions are carefully defined under the Act and for all practical purposes relevant to this application a migration decision is a privative clause decision or a purported privative clause decision as those expressions are used in s.474(4), (5) and (6) of the Act and s.5E of the Act.

4. I discussed in the case of WZAPH v Minister for Immigration and Citizenship (2012) 131 ALD 365 the nature of this Court’s jurisdiction in relation to applications of this nature. In particular I discussed the nature of the jurisdiction in the light of the decision of the High Court of Australia in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319, and in the light of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207.

5. I was particularly concerned in that case in identifying whether the errors relating to the preparation of the report need be jurisdictional and I referred in that judgment to the decision of Barker J in SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557, and ultimately for the reasons I discussed in that decision at [7] to [56], I was of the view that the error is not to be jurisdictional.

6. It is important to bear in mind that the migration decision which grounds the jurisdiction of this Court to hear this application is the posited reliance upon the review by the Minister in making a determination as to whether to lift the bar on the making of an application for protection status and on the decision ultimately as to whether that status will be granted to the applicant.

7. So it is the future posited reliance by the Minister upon the review which is the migration decision which grounds the jurisdiction of this Court.  

8. The applicant is a citizen of Iran. He is a Shia Muslim and he is an Arab. He is an offshore entry person within the meaning of s.5 of the Act. He was born in Iran in 1985. He undertook his primary and middle schooling there and then undertook a language study program in India for seven months, which he did not complete. He has completed military service in Iran between 2004 and 2006 and has had a variety of employment in Iran.

9. He is from an area in Iran known Khozestan, and as I indicated he is an Arab but he is a member of an Arab group or Arab tribe which has its own traditions.  He says that one of those traditions is the tradition of arranged marriages and that his difficulties in Iran arose from his being obliged to marry his uncle’s daughter.  This was a person whom he did not want to marry but whom he was told he had to marry by his family including his father.

10. He says that the pressure to marry his cousin commenced after the completion of his military service in 2006.  He essentially says that he was under pressure from members of the family for a period of four years.  What happened in 2010 is that he went on a student visa to India returning to Iran in about July 2011.  He returned to Iran after a period of about six months ultimately departing for Australia in February 2011.

11. Not unnaturally the subject of how he was able to avoid the pressures to marry his cousin from his family in the period 2006 to 2010 whilst he was living in Iran was the subject of some questioning by the Reviewer, as was the circumstance that he returned to Iran from India following six or seven months of the 12 months of the visa entitlement he had to study there.  He was quite frank in interview that he saw particular advantages to coming to Australia that were unrelated to his fear of persecution for a Convention reason.  He indicated that he wanted to come to a community like Australia where personal freedoms were permitted and indeed encouraged.

12. As far as the kind of experiences to which he was subject in terms of the pressure to marry his cousin there was no suggestion that there were death threats made against him and that put into some perspective his claim that there would be death threats if he were to return.  He claimed that if he were to be returned to Iran he feared that he would be physically harmed by members of his family or subjected to serious harm at the behest of the elders of his tribe.  He feared he would be seriously harmed by the cousin’s family or forced into an arranged marriage, and he said that he had made a complaint to the police and they had not responded because it was a tribal matter and he expected to obtain no assistance from the police should his fears eventuate upon his return to Iran.

13. Separately from the fears that focus upon the predicament he alleges with his family he says that he is persecuted in Iran on account of his ethnicity, and of course his ethnicity is that of an Arab. 

14. A significant piece of evidence that emerged during the course of the conduct of the hearing was in relation to his brother.  His brother is married to a Kuwaiti woman and has been since about 2005.  They married, despite the fact that his brother was expected to marry another woman who had been arranged by the tribe and, whilst they lived for a time in Kuwait, they had been living in Iran for some time before the applicant left Iran and he says that his brother and his wife and child have a home in Iran and in Kuwait. 

15. He said, though, that the brother and his wife and child are isolated and do not have anything to do with the rest of his family and, that his brother had a good relationship with his family and, of course, that is the applicant’s own family too.  When he was pressed by the Reviewer during interview as to why he thought his life would be threatened in Iran, he returned to this theme of wanting to be able to live his life according to his own belief and with a degree of freedom. 

16. There was another aspect of his claim for refugee status and that was his concern that, if he were to be returned to Iran, he would be known to have applied unsuccessfully for refugee status and he would, therefore, be imputed with an anti-government opinion for seeking protection in Australia, and that aspect led to an analysis by the Reviewer of a substantial amount of country information in relation to that topic. 

17. Country information was also accessed in relation to this general category of problem in Iran relating to honour killings and, certainly, the fear of which the applicant spoke, being a fear that arose on account of his perception as to what extended family members would do in relation to his decision not to marry a particular person, falls into that category. 

18. The Reviewer’s findings were, essentially, as follows.  Firstly, he accepted that the claimant had difficulties arising from his refusal to marry his cousin.  That is, that he was asked to marry his cousin and that, generally speaking, his extended family were disappointed in him about his decision to do so.  Furthermore, the Reviewer accepted that the applicant left Iran due to the continual pressure from family members to marry his cousin and that was against the background of the Reviewer accepting, in general terms, his explanations as to how he was able to avoid the marriage for the years in which he was living in Iran and under this pressure from family.

19. However, the Reviewer was not satisfied that there was a real chance that the claimant would suffer any serious harm as a result of the pressure to marry his cousin and it must be recognised that, to some degree, the Reviewer relied upon the experiences of his brother and that is unsurprising.  His brother, he said, had been in a similar predicament to him but he has been able to live without suffering serious harm in Iran with the Kuwaiti woman he chose to marry himself, for some time. 

20. Significant in the Reviewer’s assessment of the risk of serious harm was the circumstance that no actual death threats had been made against him over these years of his refusal to marry the cousin, and what the reviewer was, essentially, dealing with was the applicant’s apprehension as to something that might occur in the future.  This led to the Reviewer categorising the applicant’s fears in this regard as “speculative in nature” (see [131] of the Reasons). 

21. The Reviewer took into account the occurrence of honour killings in the Arab tribes in Iran but, ultimately, was satisfied that there was not a real chance that the claimant would be physically harmed or killed by the tribe for transgressing the wishes of the elders as to whom he should marry. 

22. The Reviewer also dealt with that aspect of the applicant’s claim that related to a contention that his emotional wellbeing would be compromised by his isolation from the tribe and that the isolation, itself, amounted to persecution, but the Reviewer was not prepared to give that submission a great deal of significance, given the applicant is seeking permission to remain in Australia, which was manifestly living apart from his tribe and, also, the clear expressions by the applicant, during the course of his interview, as to his determination to live his own life and not be dictated to by the wishes and traditions of his tribe. 

23. In terms of the general position of Arabs within Iran, the Reviewer’s attitude to this aspect of the claim was affected by the circumstance that the applicant could not point to any past harm which he suffered on account of his ethnicity.  Whilst the Reviewer acknowledged that the country information pointed to social and economic discrimination against minorities, including Arabs, it was also faced with the fact that he had lived his life without difficulty in Iran for a period of about 26 years.  In short, there was an absence of any contextual embedment of this alleged fear of persecution in terms of past experiences.

24. With respect to the claim relating to his status if he were to be returned as a failed asylum seeker, the Reviewer took the view that the country information was “inconclusive” (see [144] of the Reviewer’s Reasons).  It did consider that the country information indicated that, if the applicant were to be returned to Iran involuntarily, there would be a degree of interaction between Australian and Iranian authorities, which would likely bring him to the attention of the authorities at the airport and that he would be, in all likelihood, entering on newly issued travel documentation, without an exit stamp, from Iran. 

25. The Reviewer accepted the possibility, then, that the authorities in Iran would learn that he applied for asylum in Australia and it acknowledged that the country information indicated some evidence of some returnees from Western countries being subjected to ill treatment, although the country information indicated that it was, generally speaking, those returnees with a high public or political profile who were likely to encounter difficulties upon their return, and the Reviewer noted that there was no suggestion that the applicant had been politically active either in Iran or in Australia. 

26. Having regard to all of these matters, the Reviewer was not satisfied that there was a chance now or in the reasonable foreseeable future that the claimant would be subjected to serious harm as a result of being imputed with an anti-government opinion because of his Arab ethnicity and/or for seeking asylum in Australia (see [147]). 

27. The first ground of review is that the Reviewer applied the wrong test in relation to the evaluation as to whether the applicant was at risk of persecution for a Convention reason because of his status as a failed asylum seeker, in the event that he was returned to Iran. The focus is upon the concession by the Reviewer that the country information was, firstly, inconclusive. That is [144]. Secondly, the Reviewer accepted the “possibility” that the authorities will learn that he had applied for asylum whilst in Australia.

28. It is argued by the applicant that the Reviewer constructively failed to exercise jurisdiction by substituting an incorrect test as to the risk of serious harm.  It is said, and I accept, that the relevant test is that which is described in Chan Yee Kin & Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [388]-[389] per Mason CJ and at [429] per McHugh J.

    I agree with the conclusions reached by McHugh J that a fear of persecution is well-founded if there is a real chance that the refugee will be persecuted if he returns to his country of nationality … I do not detect any significant difference in the various expressions to which I have referred.  But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia; … If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than 50 per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.  (Mason CJ)

    The decisions in Sivakumaran v Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur.  As the United States Supreme Court pointed in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his or her fear should be characterised as “well-founded” for the purpose of Convention Protocol (McHugh J).

29. Whilst the submission was couched in terms of identification of jurisdictional error, I accept that the submission is essentially that a legal error was committed by the application of the wrong test on the question of the existence of serious harm. 

30. When the Reviewer referred to the country information being inconclusive, it was with respect to a general reference to the “topic” of returned asylum seekers at [144]. I take that to be an indication that there was no authoritative determination as to whether failed asylum seekers were at risk or no unambiguous position that emerged from a consideration of all of the country information.

31. That does not mean, of course, that all that an applicant has to do in such a case is to posit himself as being in the category of a failed asylum seeker, and to then match that with a submission that the country information is inconclusive and to say that there is some chance, perhaps a 10 per cent chance, that he would be at risk of persecution for a Convention reason and that in those circumstances any finding other than that there was a real chance of him suffering such persecution must constitute a legal error. 

32. What is said to be the inconclusivity of the country information then has to be matched against the applicant’s own circumstances and the case that he puts, and the Reviewer’s assessment of the country information indicated that those who were at risk were, generally speaking, those who had a high political or public profile and the applicant did not fall into that category. 

33. The Reviewer assessed the matter upon the basis of accepting that, if there was to be an involuntary return to Iran, that it was certainly possible that the applicant would come to the attention of the Iranian authorities.  So there is the possibility of that happening.  There is a somewhat complicated position that maintains, with respect to the position of returnees to Iran generally.  But when the Reviewer considered the applicant’s own circumstances, it was not satisfied, on the basis of all of the information that pertained to him, that there was a real chance that the applicant would suffer harm for a Convention reason on account of his status as a failed asylum seeker. 

34. The application of the wrong test is something that the applicant wants me to infer from these circumstances.  There is no explicit application of an inappropriate test by the Reviewer.  It is an inference that the applicant seeks to be drawn.  In my view, having read the Reviewer’s findings, which begin at [144] and which go to [146], in relation to this topic, I am unable to identify the application of a wrong test.  The country information was given consideration, the salient material extracted from it and evaluated against a consideration of the applicant’s own particular circumstances.  I am unable to identify any error associated with the way the Reviewer went about its task when assessing that aspect of the applicant’s claim. 

1. The second ground of the review is about the way in which the Reviewer dealt with this issue of serious harm in itself, and that was a matter that had to be evaluated against the Reviewer’s findings with respect to all aspects of the applicant’s claim, which included the problems arising from his refusal to submit to pressure to marry his cousin; the occurrence of honour killings in Iran; the position of Arabs, generally, in Iran; and the unwillingness or incapacity of the police to respond to any difficulties that the applicant might find himself in.

2. Section 91R of the Act provides:

   (1).For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b) the persecution involves serious harm to the person; and

   (c) the persecution involves systematic and discriminatory conduct.

   (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a) a threat to the person's life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill-treatment of the person;

   (d)  significant economic hardship that threatens the person's capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

   (3) …

3. There are two aspects to the ground raised in relation to the question of serious harm.  Firstly, what is said to have happened is that the Reviewer did not consider whether the applicant would suffer serious harm by members of the Arabic community, without any State protection because of his Arabic background, should he act on his beliefs, that is, should he continue not to respond to the pressure to marry his cousin.  In other words, the submission appears to be that the Reviewer failed to deal with the aggregate effect of all of these matters.  It looked at them individually but failed to consider whether there would be a risk of serious harm, having regard to the combination of these events, should the applicant continue to resist the pressure from family to marry the cousin.

4. One of the claims by the applicant was that he would suffer psychological harm, amounting to persecution, by having to live apart or be ostracised from his Arabic community in Iran if he adhered to his decision not to marry his cousin but, as I have already indicated, that risk was not something that was accepted by the Reviewer. 

5. A specific complaint is made about the Reviewer’s findings at [135]. That is where the Reviewer deals with the question of psychological harm arising from his ostracism from his tribe.

6. True it is that psychological harm is not one of the kinds of harm that is specifically instanced by s.91R(2). But the section does not identify the instances given as being the only kind of serious harm that will be sufficient to constitute persecution.  But there was no history of physical persecution here.  It was a fair characterisation of this aspect of the applicant’s case as to fear of persecution to say it was a fear of harm of a psychological nature. 

7. Essentially, the Reviewer found in that paragraph that the applicant had not indicated that he had any problems with the majority race in Iran, who were Persian people, and that, in general terms, he lived his life in Iran for many years without difficulty and, indeed, that he maintained a relationship with a  Persian woman, to which matters the Reviewer added the circumstance that he was prepared to contemplate living in Australia outside the protection of his tribe and community, or outside the support of his tribe and community in Iran.

8. I am unable to perceive in the way in which the Reviewer dealt with this issue any legal error.  Each aspect of the claim for fear of serious harm, or rather each claim of fear of persecution giving rise to threat of serious harm was evaluated as it needed to be, discretely, but there has been no failure to consider the totality of the risks presented by what the applicant said were his fears of persecution for a Convention reason. 

9. The other aspect of this ground that is agitated is that which relates to the issue that arose for consideration by the High Court in Appellant s395/2002 v MIMA (2003) 216 CLR 473. The Reviewer there had made a finding that two Bangladeshi homosexuals would live discreetly if they were returned to Bangladesh and thereby avoid the risk of persecution which would have ensued if they lived in an openly homosexual way. The majority of the High Court considered that analysis erroneous. Two members of that majority (McHugh and Kirby JJ) said at [43]:

   The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a Reviewer of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality.  This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group.  In cases where the applicant has modified his or her conduct, there is a natural tendency for the Reviewer of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.  The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.  In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.  In such cases, the well-founded fear of persecution held by the applicant is the fear that unless that person acts to avoid the harmful conduct, he or she will suffer harm.  It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.  To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

10. The applicant argues that the Reviewer in this case has assumed that the applicant will either fall in with the request to marry the cousin chosen for him by the tribal elders or that he will remain silent about the ostracism that would follow his refusal to marry her. 

11. But the Reviewer did not consider that he would accede to the marriage.  On the contrary, at [140], the Reviewer finds unambiguously that the applicant’s father continued to support the applicant’s brother when he refused to marry the wife chosen for him and married someone else and supported the applicant throughout the years when pressure was said to have been brought to bear on him.  The Reviewer found the father’s continuing support not to succumb to the pressure himself would be a major factor in the applicant not being forced into the arranged marriage.

12. As to the risks of his “speaking out” against the ostracism – and, implicitly, that leading to the advent of persecution entailing serious harm – I do not think that arises as a reasonable or relevant interpretation of the information given by the applicant in support of his application.  The example of his brother’s experience indicates his likely ability to continue to live tolerably safely and without the risk of serious harm even if the tribal tradition is flouted by him and he chooses another bride.  That would be a form of his “speaking out” and probably the only relevant form in which it could arise.  The Reviewer is not so much assuming passive or silent acceptance of the choice of bride that has been made for him, on the one hand, or of the ostracism that would follow from a refusal, on the other.  Rather, it is made a clear finding that ongoing refusal to comply with tribal expectations by him will not entail a risk of serious harm for him.

13. I find that the way in which the Reviewer dealt with the issue of serious harm did not give rise to error.  Any future reliance by the Minister upon the report would not give rise to liability of review on account of such error.

14. The final ground is a contention that the Reviewer fell into error in its consideration of the complimentary protections provisions set forth in s.36(2)(aa) of the Act. It is said that the Reviewer ought to have found that there were substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to Iran that there was a real risk that he will suffer significant harm as that expression is defined in subsection (2A). The argument is advanced for the same reasons advanced in relation to the applicant’s entitlement to a visa under s.36(2)(a) but I do not consider that the Reviewer has misapprehended its obligation to apply the “real chance of persecution” test in this context any more than in the protection visa context. Furthermore the matters that the Reviewer relied upon in coming to a view that the applicant was not at risk of serious harm as defined in s.91R (2) also applied, a fortiori, to the consideration of the graver consequences contemplated by the complimentary protection provisions relating to “significant harm”.

15. None of the grounds advanced are indicative of legal error.

16. The application will be refused.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Associate: 

Date:  8 October 2013