BEN16 v Minister for Immigration

[2018] FCCA 168

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEN16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 168

Catchwords:
MIGRATION – Application for judicial review – protection application – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Applicant: BEN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ERNEST ZANATTA IN HIS CAPACITY AS MANAGER, TPVA ASSESSMENT VICTORIA

File Number: MLG 924 of 2016

Judgment of: Judge Riethmuller

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Melbourne

Delivered on: 30 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Hosking

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Mr Mosley

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 924 of 2016

BEN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ERNEST ZANATTA IN HIS CAPACITY AS MANAGER, TPVA ASSESSMENT VICTORIA

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks declaratory and injunctive relief in relation to an Independent Treaty Obligations Assessment (ITOA) made by the second respondent on 22 March 2016.  The reviewer found that the applicant was not a person in respect of whom Australia has protection obligations under the Refugees Convention, the Convention against Torture, or the International Covenant on Civil and Political Rights.

2. The applicant is a citizen of Iran born in 1990 and of the Shia Muslim faith.  He left Iran in 2010 and arrived by boat in Australia at Christmas Island that year.

3. In April 2011, a Refugee Status Assessment was made with respect to the applicant, where the assessing officer concluded that he was not a person to whom Australia owed protection obligations. 

4. In late 2011, his representative made submissions for an Independent Merits Review assessment.  In February 2012, the Independent Merits Review found that the applicant was not a person to whom Australia owed protection obligations. 

5. In January 2012, a Post-Review Protection Claim assessment was made with respect to the applicant, who was again found not to meet the Minister’s guidelines under that process. 

6. In October 2013, the applicant applied for judicial review of the Post-Review Protection Claim to the Federal Circuit Court and was successful.  The matter was then placed before the Independent Treaty Obligations Assessment reviewer who provided a hearing in September 2015, and allowed written submissions thereafter in December 2015, before making the decision the subject of this application on 22 March 2016.

7. The applicant’s application was based upon claims that he had been involved with anti-government protests in 2009 and had escaped from a Basij base in January 2010.  He also claimed to fear harm on the basis of being a member of a particular social group, being young pro-western people in Iran, and also as a member of a social group of failed asylum seekers.  He also claimed that his mental health would further deteriorate if he were returned to Iran. 

8. The reviewer found against the applicant on each of the bases of his claim.  With respect to harassment by the Basij, the reviewer said:

   Harassment by the Basij

   11. The claimant advised at his ITOA interview that the harassment from the Basij had occurred prior to the June 2009 elections where he had been arrested in excess of 6−7 times due to his hairstyle, clothing, being out in public with his girlfriend and eating during the month of Ramadan. At times he would be stopped and questioned by the Basij though on other occasions he would be arrested and taken to the Basij base or police station where he would be detained for one day and at times kept overnight. He would not be detained for more than 24 hours prior to being released. He advised that despite being questioned and detained he continued to wear the same clothing and hairstyle as he hated to be forced to change as it is his human right. His friends would also be treated, questioned and detained, in the same manner. The treatment ceased approximately two months prior to Ashura Day in December 2009.

9. At para.36 of the decision the reviewer accepted that the applicant “had been harassed by the Basij prior to the 2009 elections”.  However the reviewer specifically rejected the claim that he had been detained by the Basij and escaped (see para.37).

10. With respect to harassment by the Basij, the reviewer said:

    Harassment by the Basij

    53. With regards to the harassment by the Basij the claimant claimed that in 2009, prior to the elections he had been arrested due to his hairstyle, being in a public place with his girlfriend and caught eating during the month of Ramadan. The Basij are employed as overseers of civilian behaviour, enforcing dress codes, emergency management and the suppression of dissident gatherings. They monitor the activities of civilians and make arrests for violating the dress code or those youth attending mixed gender parties or being in public with members of the opposite sex [CX254214: IRAN: Profile: Basij militia force, British Broadcasting Corporation (BBC), 18 June 2009]. The claimant, at interview, admitted that this treatment had applied to his friends as well and as such I consider are laws of general application. I consider that the claimant has not been treated differently compared to other Iranians to a degree that would amount to persecution. The claimant also advised at interview that the harassment ceased approximately two months prior to the 2009 elections. I therefore do not consider that the claimant has an outstanding issue with the Basij or that he would be treated differently in the future in comparison to other Iranians that would amount to persecution.

11. Ultimately, the reviewer concluded:

    72. I have considered all of the claims of the claimant, both individually and cumulatively. As has been discussed above, I am satisfied that there is not a real chance that the claimant will be detained, tortured and/or killed for any of the reasons he has put forward. Therefore I find that there is not a real risk that the claimant will suffer significant harm for these reasons if he returns to Iran.

12. In the amended application for the review, the applicant sets out two grounds.

Ground 1

1. The first ground relied upon by the applicant (with significant particulars) is as follows:

   1. The second respondent (Reviewer) failed to afford the applicant procedural fairness in connection with the ITOA, and/or failed to conduct the ITOA in accordance with law, in that the Reviewer’s finding that the public morality laws in Iran would not be enforced against the applicant in a discriminatory manner (ITOA at[53]) was irrational or illogical, or otherwise affected by an error of law.

   PARTICULARS

   (a) The only reason given by the Reviewer for finding that the public morality laws enforced by the Basij were laws of general application that would not be applied to the applicant in a discriminatory manner was that “[t]he claimant, at interview, admitted that this treatment had applied to his friends as well” (ITOA at [53]).

   (b) However, like the applicant, the applicant’s friends who had been harassed by the Basij were members of the particular social group of young pro-Western people in Iran.

   (c) Thus, the Reviewer reasoned that, because the public morality laws had been enforced against other members of the particular social group to which the applicant belonged, they would not be enforced against the applicant in a discriminatory manner for Convention reason.

   (d) That reasoning could not logically have led to the conclusion that the public morality laws in Iran would not be enforced against the applicant in a discriminatory manner.  The applicant’s friends were not relevant comparators, because they shared with the applicant the characteristic on which the claimed discrimination was based.

   (e) In order to conclude that the public morality laws in Iran would not be enforced against the applicant in a discriminatory manner, the Reviewer needed to compare the treatment of the applicant to the treatment of other persons who did not share the characteristic on which the claimed discrimination was based.  The Reviewer failed to do so.

   (f) It follows either that the Reviewer failed to apply the correct legal test in determining whether the public morality laws would be applied to the applicant in a discriminatory manner, or that the Reviewer’s finding that those laws would not be applied to the applicant in a discriminatory manner was so seriously illogical or irrational as to amount to an error of law.  

2. The particulars in this case provide a convenient summary of the applicant’s argument.  Neither party placed before the Court the country information referred to by the reviewer in order to clearly contextualise the comment that was made in the third sentence of para.53.  However, in the country information provided by the applicant in submissions by his advisor, it is indicated that the Basij operate against people of all ages. For example, at court book 146, extracted country information provided:

   …The preservation of internal security is the primary role of the Basij.  Although it also nominally exists to contribute to external defence, as in the case of the Iran/Iraq war when large numbers were deployed, given its size and paramilitary nature the main utility of the Basij members to the government is to act as the eyes and ears of the Islamic republic. In carrying out their ideologically−based duties, Basij members act as moral police in towns and cities by enforcing the hijab, arresting women for violating the dress code, prohibiting male-female fraternisation, monitoring the activities of citizens, seizing 'indecent' material and satellite dish antennae, intelligence gathering and even harassing government critics and intellectuals. Basij volunteers also act as bailiffs for local courts. [61d] (Security and Foreign Forces) [emphasis added].

3. In the first part of the reasoning of the reviewer, it appears that consideration was not focused upon whether or not young people were generally treated differently to those of other age groups by the Basij.  However, the reasons must be taken in the context of the decision as a whole.  In this case, the applicant had alleged that he was harassed by the Basij and, importantly, that he had been arrested and harmed by them until he escaped (although the latter claim had not been accepted by the reviewer). 

4. In the context of the case as put, the statement that the applicant had not been treated differently to his friends indicates that the reviewer was focused upon whether or not the Basij had, in fact, singled out the applicant for harm and acted towards him in a different way to which it was acting towards others within his peer group.  At this point, it does not appear to me that the reviewer was considering whether or not the social group of young people were being treated differently to others. 

5. The earlier part of the relevant paragraph in the discussion indicates that the reviewer took the view that the Basij monitored civilians generally.  As the country information referred to therein was not put before me, it was not possible to determine whether or not that statement was, in fact, supported by the country information cited.  A claim based upon the treatment of young people generally would not have been supported by the country information put to the reviewer by the applicant (quoted above).  For these reasons, I am not persuaded that the reviewer erred in the way in which it is alleged in the argument.

6. In any event, the reviewer’s finding in the third-last sentence of the paragraph indicates that the applicant had not established sufficient harm as to bring himself within the relevant test, even if he were in a social group that were being treated differently.

7. I am persuaded that the last sentence of the paragraph, which summarises that the applicant did not have an outstanding issue with the Basij (a personal fear that the Basij would be targeting him personally rather than as a member of a particular social group), nor that he would be treated differently in future in comparison to other Iranians, deals with both the aspects of his claim. 

8. To the extent that it is possible to read the paragraph otherwise, it appears to me that this is a reading that requires one to approach the case with an eye finely attuned to finding an error, in a way warned against by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 where Kirby J said at 291:

   The reasons under challenge must be read as a whole.  They must be considered fairly.  It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

9. I am not persuaded that this ground has been made out.

Ground 2

1. The second ground, also with significant particulars, is framed as follows:

   2. The Reviewer failed to afford the applicant procedural fairness in connection with the ITOA, and /or failed to conduct the ITOA in accordance with law, in that the Reviewer failed to consider whether there was a real risk that the applicant would face significant harm in returned to Iran by reason of being a young pro-Western person.

   PARTICULARS

   (a) There clearly arose from the material before the Reviewer a claim that the applicant would face a real risk of significant harm if returned to Iran by reason of being a member of the particular social group of young pro-Western people in Iran, as well as a claim that the applicant had a well-founded fear of persecution for that reason.

   (b) The Reviewer found that the applicant did not have a well-founded fear of persecution by reason of being a young pro-Western person in Iran on the basis that:

   (i) the applicant’s claim to fear persecution arose from the enforcement of public morality laws in Iran; and

   (ii) those laws are laws of general application that would not be applied to the applicant in a discriminatory manner.

   (c) Having rejected this claim for the Refugees Convention-related reason that it did not involve systematic and discriminatory conduct, the Reviewer did not consider whether there was a real chance that the applicant would in fact face harm of the kind claimed.

   (d) In considering whether the applicant would face a real risk of significant harm if returned to Iran, the Reviewer said (ITOA at [72]), “As has been discussed above, I am satisfied that there is not a real chance that the claimant will be detained, tortured and/or killed for any of the reasons he has put forward”.  On this basis, the Reviewer found that there was not a real risk that the applicant would face significant harm if returned to Iran.

   (e) However, the Reviewer had not considered whether there was a real chance that he applicant would face harm of the kind claimed by reason of being a young pro-Western person in Iran.  This was not a matter that was “discussed above”, because the Reviewer had rejected the applicant’s claims to have a well-founded fear of persecution on the basis of his membership of that group for a Refugees Convention-specific reason.  Accordingly, the Reviewer failed to consider whether there was a real risk that the applicant would face significant harm if returned to Iran by reason of being a young pro-Western person.

2. The applicant again develops the argument that the reasons given in para.53 focus upon him in comparison to other members of the social group of young pro-western Iranians, and that in this way the argument fails to differentiate between harm or persecution on the basis of his social group, that is, it fails to compare the social group of young pro-western Iranians to Iranians generally.  It is argued that the reviewer only compared this applicant to other members of his own social group.

3. In this case, there was a finding that the Basij’s harassment of the applicant ceased prior to the 2009 elections: see para.36.  The reviewer rejected the claim that the applicant had been held for an extended period by the Basij and escaped: see para.37.  In substance, the applicant is left with a case where it was accepted he may have been arrested six or seven times due to his appearance, and otherwise breaching rules relating to being in public with his girlfriend and eating out during Ramadan, and that he was stopped or questioned by the Basij on other occasions.  It was not accepted that he would be detained for more than 24 hours prior to release.  The more serious harm that he claimed with respect to an incident where he said he escaped was rejected by the reviewer. 

4. It is difficult to conclude that the reviewer erred at law in finding that the applicant would not suffer persecution in these circumstances.  It was open to a reviewer to conclude that arrests leading only to detention overnight would not fall within the definition of significant harm.  For these reasons, the applicant’s claim necessarily failed even if the applicant were able to demonstrate that the harm was because of his membership of a particular social group or, alternatively, that the harm accepted by the reviewer was imposed upon him for any other reason. 

5. As the risk of harm accepted by the decision maker was found not to be sufficient to engage the relevant provisions for a protection visa, the applicant could not succeed. 

6. In the circumstances, I therefore refuse the current application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  30 January 2018