AZADR v Minister for Immigration

[2014] FCCA 722

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 722

Catchwords:
MIGRATION – Application for Judicial Review of a recommendation of an Independent Merits Reviewer – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.46A

Avon Downs Pty Ltd v FTC (1949) 78 CLR 353
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Chan Yee Kin & Ors v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: AZADR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: INDEPENDENT MERITS REVIEW

File Number: ADG 181 of 2013

Judgment of: Judge Simpson

Hearing date: 3 December 2013

Date of Last Submission: 3 December 2013

Delivered at: Adelaide

Delivered on: 30 May 2014

REPRESENTATION

Counsel for the Applicant: Mr P Charman

Solicitors for the Applicant: Hamdam Lawyers

Counsel for the Respondents: Mr M J Smith

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 24 June 2013 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicants do pay the first respondent their costs fixed in the sum of SIX THOUSAND, SIX HUNDRED AND FORTY EIGHT DOLLARS ($6,648.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 181 of 2013

AZADR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

INDEPENDENT MERITS REVIEW

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Application for Judicial Review of a recommendation of an Independent Merits Reviewer (“the Reviewer”) made on 5 March 2012.  The Reviewer was required to review a negative assessment made by a delegate of the Minister on 14 April 2011.  The Reviewer considered afresh all claims for protection as they related to the Refugees Convention taking into account all available information, including information available to the Refugee Status Assessment Officer in reaching the unfavourable Refugee Status Assessment, information by or on behalf of the claimant, and any additional information that the Reviewer considered relevant.

History of orders sought and grounds relied upon

1. In his Application filed 24 June 2013, the applicant sought the following orders:

   “(a)An order that the decision of the Tribunal or Minister be quashed;

   (b)A writ of mandamus directed to the Tribunal or Minister requiring them to determine the applicant’s application according to law;

   (c)An order that a writ of prohibition be directed to the First Respondent prohibiting them from acting upon, giving effect to, or proceeding upon the decision of the Independent Merits Review on 5 March 2013;

   (d)An order that the respondent to pay the costs of the applicant;

   (e)Any other order that the Court deems fit.”

2. The grounds relied upon in the Application filed were in the following terms:

   “1.That the Second Respondent failed to exercise its jurisdiction in that it erred in law in the application of the real chance test.

   PARTICULARS

   1.1The Applicant claimed that he would be persecuted as a failed asylum seeker;

   1.2The Second Respondent dismissed this claim on the basis of country information in circumstances where the country information could not exclude as a real chance that the Applicant would be persecuted as a failed asylum seeker;

   1.3The Second Respondent constructively applied a test that was significantly higher than the real chance test and erred in doing so.

   2.That the Second Respondent constructively failed to exercise its jurisdiction in that it failed to deal with an integer of the applicant’s claim, namely persecution resulting from an imputed political belief.

   PARTICULARS

   2.1The Second Respondent dismissed the applicant’s claim as someone who had actually been politically active and was entitled to do so;

   2.2The Second Respondent did not deal with the claim that the government might, irrespective of the applicant’s limited political involvement, impute a political belief to him and persecute him on that basis.

3. On 23 September 2013, the applicant filed a document titled “Applicant’s Amended Grounds”.  The grounds relied upon in that document were in the following terms:

   “GROUND 1

   1.The Second Respondent failed to exercise its jurisdiction in that it applied the incorrect test in law as to what amounts to a real chance of persecution.

   PARTICULARS

   1.The Second Respondent in paragraph 95 of its Reasons (Appeal Books 173 to 174) found that there was no real chance that the Applicant would face persecution upon his return to Iran.

   2.The country information referred to at Appeal Book 161 to 169 indicated the following:

   2.1There was a distinction between failure asylum seekers returning voluntarily and involuntarily where involuntary returns of failed asylum seekers did not occur.

   2.2That it was uncertain as to whether a person would be imputed with political views as a result of there being a returned failed asylum seeker and that it was extremely difficult to gauge the treatment of returnees or how they were perceived by the regime (Appeal Book 169).

   3.Nothing in the country information excluded as a real chance the fact that the Applicant would be subject to persecution upon his return as a failed asylum seeker.

   4.The interpretation of the country information by the Second Respondent in paragraph 95 of its Reasons is contrary to the evidence before it and constructively indicated a fundamental misapplication of the real chance test.”

4. In the applicant’s document, “Applicant’s Contention of Fact and Law” filed 22 November 2013 and relied upon at the hearing, the applicant indicated that the only ‘grounds’ relied upon were:

   (a)That the second respondent failed to exercise its jurisdiction in that it failed to properly apply the real chance test as to whether the applicant would be persecuted as a failed asylum seeker; and

   (b)That the second respondent erred in that it failed to properly consider the applicant’s claim that the Iranian authorities would impute to him a political belief contrary to the beliefs of the authorities as a result of him harbouring five demonstrators in the house.

5. During the hearing of the application, counsel for the applicant indicated that ground (b) was abandoned.  In the result, the sole ground of review was the ground identified in paragraph 5(a) of these reasons.  These reasons will therefore only address that ground.

Background facts

1. The applicant was born on 29 January 1983 and is a citizen of Iran.  He commenced making arrangements to come to Australia in September/October 2010.  He paid $700 to travel by plane from Tehran to Jakarta via Dubai and $6,000 to a smuggler for transportation by boat from Indonesia to Australia.  He arrived at Christmas Island on 24 October 2010.  He arrived without a visa and was therefore an offshore entry person for the purposes of the Migration Act 1958 (Cth) (“the Act”). As a result, he was precluded by s.46A(1) of the Act from making an application for any visa, including a protection visa, unless the first respondent (ie the Minister) exercised his or her power under s.46A(2) permitting him to do so.

2. The applicant claimed that he feared harm from his step-mother, the Basij militia and other militant groups in Iran because of the danger that he would be imputed with an anti-regime political opinion as he had harboured five people who were involved in post-election demonstrations in June 2009 and that his step-mother took photographs of him with them.  The applicant also claimed to fear harm as his status would be that of a failed asylum seeker. 

3. The applicant admitted being untruthful to the Reviewer.  Through his lawyers, he unreservedly apologised for his behaviour.

4. On or about 2 January 2011, the applicant made a request for a Refugee Status Assessment (“the Assessment”).  The Assessment was made on 14 April 2011.  As the Assessment was adverse to the applicant, on 12 May 2011, he applied to have the Assessment finding reviewed through an Independent Merits Review.

5. The applicant was interviewed by the Independent Merits Reviewer (“the Reviewer”) on 18 September 2011.  The applicant’s lawyers provided the Reviewer with numerous documents containing information and submissions between 22 June and 10 October 2011.  On 5 March 2012 the Reviewer made her recommendation and published her reasons.  She recommended to the Minister that the applicant not be recognised as a person to whom Australia owed protection obligations under the Refugee Convention.

The Reviewer’s findings

1. The Reviewer found that the applicant was not a credible witness.  The Reviewer relied upon the applicant’s willingness to give false evidence to support her adverse credibility finding. 

2. The Reviewer did not accept the applicant’s claim that his step-mother took photographs of him and the five protestors so that she could blackmail him into having sex with her.  This was a claim that was raised for the first time when the applicant was before the Reviewer. 

3. The Reviewer nevertheless accepted that the step-mother had taken photographs of the applicant and the five other people who had stayed in his home for 24 hours but did not accept that the Iranian authorities would be able to infer anything from them or to identify the other people in the photo. 

4. The Reviewer did not accept that the applicant’s step-mother had reported him to authorities. 

5. The Reviewer relied on accepted country information which indicated that the applicant would not be targeted because he had sought asylum in Australia. 

6. On this basis, the Reviewer did not accept that the applicant faced a real chance of persecution as a failed asylum seeker. 

7. The Reviewer found that after considering the applicant’s claims individually and cumulatively, he did not have a well-founded fear of persecution in Iran in the reasonably foreseeable future.

Applicant’s submissions

1. The applicant, through his counsel, submits that it is well settled law that the Reviewer was required to deal with the claims before her in accordance with law and is required to ask the correct questions flowing from the claim before her.[1]  Further, they submit that it is well settled law that the ‘real chance’ test does not require the probability of whether a person would suffer serious harm to be in the balance of probabilities:  It can be a chance which is as little as 10 percent.[2] 

   [1]     Avon Downs Pty Ltd v FTC (1949) 78 CLR 353 at 360; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351.

   [2]     Chan Yee Kin & Ors v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 388 to 389 per Mason CJ and 429 per McKew J.

2. The applicant submits that the Reviewer appears to have dealt with his claims as a failed asylum seeker.  He submits that the manner in which the Reviewer dealt with his claim fundamentally misconstrued the country information before her and that the only rational conclusion that can be drawn from the country information before the Reviewer, are:

   “(a)There is a significant different between failed asylum seekers returning voluntarily and involuntarily to Iran;

   (b)The fact that DEFAT is not aware of any reports of ill treatment or failed asylum seekers, does not mean that such ill treatment has not taken place;

   (c)The country information indicates that it is possible that returned asylum seekers would be detained or tortured without the department’s knowledge;

   (d)It is not possible to effect involuntary removals to Iran;

   (e)The highest that the DEFAT information gives in support of the Reviewer’s reasoning is that it is unlikely that all returned asylum seekers would suffer severe mistreatment by the regime.  This is not a proper basis for saying that an applicant would not suffer mistreatment nor is it a proper basis for suggesting that the mistreatment would not amount to serious harm; and

   (f)… (T)he country information indicates that it is difficult to gauge the treatment of returnees or how they are perceived by the regime.  However, it is likely that all persons perceived to be opponents of the regime are currently subject to more intense scrutiny.”

3. The applicant further submits that in the above circumstances, the country information was, at best, equivocal.  They contend that the information suggested that there was a real chance of the applicant being persecuted upon his return to Iran. 

4. He submits further that there is no rational explanation for the Reviewer’s findings consistent with the information before her, other than to suggest that the Reviewer failed to exercise her jurisdiction requiring her to properly consider the information in accordance with the proper application of the legal test as to what amounts to a real chance.

The respondent’s submissions

1. The respondent submits that the application should be dismissed.  They submit that the Reviewer did not misapply the ‘real chance’ test.  They submit that “(t)he gravamen of the applicant’s complaint appears to be that the Reviewer’s conclusion was apparently ‘contrary’ to the relevant country information which did not “exclude as a real chance the fact that the applicant would be subject to persecution upon his return as a failed asylum seeker” and, as such, the Reviewer misapplied the ‘real chance’ test”.

2. The respondent further submits that when properly characterised, the applicant’s complaint constitutes nothing more than an expression of dissatisfaction with the Reviewer’s factual findings.

3. The respondent submits that when considering whether there is a ‘real chance’ that a claimant will be persecuted for a convention reason, a decision-maker may have regard to relevant items of country information.  They submit that the choice of, and the weight to be placed upon, any item of country information is a matter for the decision-maker[3].  The respondent says that, as such, it was open to the Reviewer to place greater weight on items of country information that she considered authoritative, namely, the country information authored by DFAT and DIAC.  The respondent submits that an examination of the DFAT and DIAC country information indicated that neither organisation was aware of any cases in which failed asylum seekers had been ill-treated upon their return to Iran.  They further submit that for the Reviewer to use this information as the basis for the conclusion that the applicant did not face a real chance of persecution as a failed asylum seeker does not reveal a jurisdictional error.  It was open for the Reviewer to find that the country information that she cited did not suggest that returned asylum seekers are routinely imputed with a political opinion of opposition to the Iranian regime merely because they had sought asylum in a Western country.  For these reasons, the respondent submitted that the application should be dismissed.

   [3]     NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at 13.

Conclusions

1. The crucial issue in this case is whether the Reviewer correctly addressed the question of whether there was a real chance of persecution if the applicant was returned to Iran.  What is meant by ‘real chance’ is explained in the case of Chan Yee Kin & Ors v Minister for Immigration & Ethnic Affairs[4].  The following passage in the judgment of Mason CJ are of assistance (emphasis added):

   “The Convention and the Protocol do not define the words “being persecuted” in Art.1A(2). The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.

   I agree with the conclusion 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. This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran [1987] UKHL 1; (1988) AC 958. There Lord Keith of Kinkel spoke (at p 994) of the need for an applicant to demonstrate “a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country” and Lord Goff of Chieveley spoke (at p 1000) of “a real and substantial risk of persecution”. Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff. A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 94 L Ed 2d 434 where Stevens J., with reference to a statutory provision (which reflected the language of Art.1(A)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic (1984) 467 US 407, at p 425, observed (at p 453) that the interpretation favoured by the majority would indicate that “it is enough that persecution is a reasonable possibility”. 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: see the discussion in Boughey v. The Queen [1986] HCA 29; (1986) 161 CLR 10, at p 21, per Mason, Wilson and Deane JJ. 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 a fifty 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.”

   [4] (1989) 169 CLR 379.

2. Further assistance as to the meaning of ‘real chance’ is provided by the judgment of McHugh J later in the same case.  His Honour had this to say (emphasis added):

   “Courts, writers and the U.N.H.C.R. Handbook agree, however, that a “wellfounded fear” requires an objective examination of the facts to determine whether the fear is justified. But are the facts which are to be examined confined to those which formed the basis of the applicant's fear? In Sivakumaran the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant's fear. The contrary conclusion would mean that a person could have a “well-founded fear” of persecution even though everyone else was aware of facts which destroyed the basis of her fear.

   The decisions in Sivakumaran and 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 U.S. Supreme Court pointed out 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 fear should be characterised as “well-founded” for the purpose of the Convention and Protocol.”

1. In the present case, the Reviewer has, carefully in my view, examined all of the evidence, particularly the country evidence.  The findings that the Reviewer made on the basis of this evidence were open to her. 

2. The Reviewer’s finding in paragraph 93 of her reasons that the claimant was not of any interest to Iranian authorities for his political opinion (either actual or imputed) or for any other convention reason prior to his departure from Iran, was not challenged by the applicant.  It is common ground that the applicant was not politically active whilst in Iran.  The finding that since the claimant had been outside of Iran he has not engaged in any activities against the Iranian regime was also not challenged.  Further, the applicant does not challenge the finding that the applicant would not engage in political activities on his return to Iran in the future.  It was on this basis that she found that there was no real chance that the applicant would be persecuted on the basis of his political opinion if he voluntarily returned to Iran, either now or in the foreseeable future. 

3. The question that remains is whether the Reviewer properly considered whether the applicant could have a genuine fear of persecution on the basis of an imputed political opinion if he were involuntarily to be returned to Iran.

4. The Reviewer noted in paragraph 95 of her reasons that the Danish Immigration Service observed that there was a strong network of informants who keep an eye on Iranians living in certain Countries.  The Reviewer accepted that this is likely to be the case and accepts that Iranian authorities are likely to question returnees, such as failed asylum seekers, to establish if they are opponents to the regime.  The Reviewer found that the available evidence did not support a conclusion that failed asylum seekers were routinely imputed with an opposition political opinion on return to Iran merely because they may have sought to live in a Western country.  The Reviewer made this assessment after considering the information from DFAT, the most recent of which was April 2011.  The DFAT information indicated that they were not aware of any widespread mistreatment of failed asylum seekers and that they are not aware of any specific cases of returned asylum seekers being detained or tortured.  The Reviewer acknowledged that DFAT had stated that it was possible in isolated cases that, if the Iranian regime was aware of a failed asylum seeker bid, they could pressure the individual with regards to other issues. 

5. The Reviewer then indicated that having found that the claimant was not of any interest to the authorities, that she did not accept that if the claimant was returned to Iran as a failed asylum seeker, that this would be used against him.  She then mentions the information from the Returns and Removals Program Support Section at DIAC, which provides advice in relation to Australia’s procedures for returning failed asylum seekers to Iran, both on a voluntary and involuntary basis.  She says that she gave “significant weight” to this advice as she is entitled to.  She then provides details of the information and states that DIAC further advised that they were not aware of any reports of ill treatment of failed asylum seekers who had voluntarily returned to Iran as a result of being in Australia.  She mentions the lack of reports indicating mistreatment of asylum seekers for having sought asylum in the West and comes to the conclusion that the applicant does not face a real chance of persecution now or in the foreseeable future, if he were to return to Iran as a failed asylum seeker.  Persecution of the applicant is only a remote possibility.  It follows from this that the applicant should not have a genuine fear of persecution on the basis of implied political opinion as a result of him being involuntarily being returned to Iran.

6. In my view, the Reviewer has correctly performed her obligations.  She identified the correct issues and asked the correct questions.  She did not ignore relevant material nor did she rely on irrelevant material.  She has not made an erroneous finding or reached a mistaken conclusion.  In my opinion, no jurisdictional error exists.

7. The cases stress the importance of reading the decision-maker’s reasons as a whole.  It is not appropriate to comb through the words of the decision-maker with a fine appellate toothcomb, to quote Kirby J.

8. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  30 May 2014