BHY15 v Minister for Immigration
[2017] FCCA 2083
•19 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHY15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2083 |
| Catchwords: MIGRATION – Application for review of a decision of the International Treaties Obligations Assessor – where Applicant claims to be denied procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.91R |
| Cases cited: BMF 16 v Minister for Immigration and Border Protection [2016] FCA 1530 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 MZZAL v Minister for Immigration & Anor [2013] FCCA 392 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 |
| First Applicant: | BHY15 |
| Second Applicant: | BHZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | GREGORY SCOURSE IN HIS CAPACITY AS THE ITOA ASSESSOR |
| File Number: | MLG 1584 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 19 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 May 2017 |
REPRESENTATION
| Counsel for the Applicants: | Ms Harris |
| Solicitors for the Applicants: | Maddocks |
| Counsel for the First Respondent: | Mr Moseley |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1584 of 2015
| BHY15 |
First Applicant
| BHZ15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| GREGORY SCOURSE IN HIS CAPACITY AS THE ITOA ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
In an amended application filed on 21 April 2017, the Applicants seek judicial review of an International Treaties Obligations Assessment (‘the ITOA’) made by the Second Respondent (‘the assessor’) dated 6 February 2016 wherein the assessor found that Australia did not have non-refoulement obligations in respect of the Applicants.
The grounds (not abandoned) of the application are as follows:-
“1. The Second Respondent failed to accord the First Applicant procedural fairness in the making of the ITOA.
Particulars
a) The Second Respondent did not provide the First Applicant with information about his review of the First Applicant's Facebook page that was adverse, relevant and significant or put the substance of that information to the First Applicant including:
i) that the Reviewer was unable to locate on the Facebook page printouts of pages provided at the ITOA interview and therefore Iranian authorities might not be able to either;
ii) that the spelling of the First Applicant's name on Facebook was different to the departmental records and therefore Iranian authorities might not be able to identify him;
b. The Second Respondent made findings in relation to the First Applicant which were speculative and which were not put to the First Applicant, including:
i) that the First Applicant may well delete comments on his Facebook page prior to any return to Iran;
ii) that the First Applicant, if questioned about the content of his Facebook page, would disavow himself from that content and that if returned to Iran the First Applicant would not feel compelled to publish further political content on his Facebook page.
…
3. The Second Respondent failed to consider the cumulative effect of the Applicants' claims.
Particulars
a) The Second Respondent considered the following issues:
i) the impact of Iranian authorities knowing that the Applicants were not in Iran;
ii) the impact of the monitoring of the internet usage of lranian citizens by Iranian authorities;
iii) the impact of a data breach by the Minister for Immigration and Border Protection and/or the Department of lmmigration on the First Applicant; and
iv) the impact of Facebook posts written by the First Applicant on the Applicants' claim;
but did not consider the cumulative effect of these issues on the Applicants' claim.
…
5. The First Respondent cannot lawfully act on the basis of the ITOA because it was not made in accordance with law on the grounds set out above.”
By this proceeding, the Applicants seek:-
a)a declaration that the ITOA of the Second Respondent was not made in accordance with law, by reason of the grounds of this Application;
b)an injunction restraining the First Respondent, by himself or his Department officers and delegates or agents, from acting or relying upon the ITOA;
c)an order that the First Respondent pay the Applicants’ costs of this proceeding.
The First Respondent seeks dismissal of the application on the basis that the ITOA dated 8 February 2015 is not affected by legal error or jurisdictional error. The First Respondent seeks costs.
Both parties have filed and rely upon written submissions and there is before the Court in evidence the documents and material as contained in the Court Book filed 13 October 2016.
Background
The Applicants are Iranian citizens and the First Applicant is the father of the Second Applicant. On 5 October 2010 the Applicants arrived on Christmas Island as Irregular Maritime Arrivals. Both had exited Iran on an Iranian passport issued in their own names.
On 28 November 2010 the Applicants made a request for a Refugee Status Assessment (‘RSA’). On 7 March 2011 an officer of the Department of Immigration and Citizenship (as it then was) (‘the Department’) found the Applicants were not persons to whom Australia owed protection obligations. The Applicants subsequently applied for an Independent Merits Review (‘IMR’) of the RSA decision on 17 March 2011. On 10 November 2011 the IMR found the Applicants did not meet the criteria for a protection visa.
On 22 December 2011 an application for judicial review of the IMR decision was lodged with the Federal Magistrates Court of Australia (as it then was). On 18 May 2012 a Post-Review Protection Check (‘PRPC’) concluded that the Applicants’ case did not meet the guidelines for referral to the Minister for consideration. On 24 September 2012 the review application against the IMR decision was dismissed. A subsequent appeal to the Federal Court of Australia was dismissed on 12 February 2013.
On 22 October 2013 an application for judicial review of the PRPC assessment was lodged with the Federal Circuit Court of Australia (‘the Court’). On 6 June 2014 by way of consent orders the Department of Immigration and Border Protection (‘the Department’) was prevented from acting or relying on the PRPC assessment and undertook to assess the Applicants’ protection claims as part of the then new ITOA regime. On 8 February 2015 the Department made its ITOA assessment that Australia did not have non-refoulement obligations in respect of the Applicants.
The Applicants’ filed an application for judicial review of the ITOA assessment in the Court on 10 July 2015.
On 11 April 2016 by way of consent orders the proceeding was adjourned pending determination by the High Court of Australia of the appeal from the judgment of the Full Federal Court in SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 (‘SZSSJ’). On 27 July 2016 the High Court determined the appeal in SZSSJ. On 12 September 2016 orders were made listing the matter for hearing.
The Applicants claim to have a fear of persecution on the basis of their imparted political opinion and membership of particular social groups. The political opinion claim included a claimed participation in anti- government demonstrations following the June 2009 presidential elections after which the Basij conducted searches of the family home/business and engaged in harassing conduct. The social group claims included “people who have sought asylum in a Western country” and “returnees from a Western country”. In addition, the Second Applicant claimed membership of the group “asylum seekers who refuse to undertake military service” and/or “young men who refuse to undertake military service” and “family” on account of the First Applicant’s political opinion against the government.
The Assessor’s Findings
A summary of the assessor’s findings is accurately and succinctly set out in the First Respondent’s submissions and adopted here:-
“5. The assessor recommended that the applicants should not be recognised as persons to whom Australia has protection obligations and Australia does not have non-refoulement obligations to them. Central to that recommendation and to rejection of the applicants’ claims were the assessor’s findings rejecting the applicants’ credibility. The assessor did not accept the applicants held political profiles that would have made them of interest to the authorities in Iran. It rejected the applicants’ claims to have been harassed and put under surveillance, issued with any summonses, had their bank accounts frozen or their residence sealed. The assessor found that the summonses had been fabricated to enhance their claims, and the claim that he was a former member of the Basij was fabricated. The assessor more generally found that the evidence of the applicants on a number of issues central to their claims was variously “inconsistent, implausible and unsupported, including by independent country information”. The assessor further found that a number of claims, (including relevantly the claim the subject of ground 1 of the application), had been first raised at the assessment interview. The Reviewer concluded that he did not find the applicants “to be reliable, credible or truthful witnesses about their experiences in Iran”.
6. The assessor concluded that the applicants did not face a real chance of persecution for a Convention reason and their fear was not well-founded. Accordingly, they were not refugees within the meaning of the Convention and Australia did not have non-refoulement obligations under the Convention. The assessor further concluded that the applicants were not persons in respect of whom Australia has non-refoulement obligations under the CAT and the ICCPR.”[1]
Consideration
[1] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); The International Covenant on Civil and Political Rights (ICCPR)
Ground 1
The Applicants assert that they were denied procedural fairness in the making of the ITOA. More particularly the Applicants claim that certain findings regarding postings on the First Applicant’s Facebook page, findings that were adverse, relevant and significant were not put to him for comment. It is not in dispute between the parties that the assessor was required to act in a manner that was procedurally fair in carrying out the ITOA.
At the interview with the assessor, the First Applicant claimed for the first time that he had published several negative comments about the Iranian government on his Facebook page, whilst in Australia. The assessor noted this as a new claim, requiring a consideration of the effect of s 91R(3) of the Act on this claim. Section 91R(3) of the Migration Act 1958 (Cth) was relevantly as follows:-
“Subdivision AL—Other provisions about protection visas
91R Persecution
…(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
The First Applicant proceeded to provide to the assessor four untranslated copies of his Facebook page posts which he claimed contained anti-government comments as to the Iranian authorities. The assessor rejected the First Applicant’s explanation for making the postings. The assessor put to the First Applicant “that it could be argued he had deliberately placed the statements on his Facebook account to strengthen his claims to be a refugee”.[2] The First Applicant responded “it was something that I believed within myself”.[3] The assessor found, as set out in the ITOA:-
“As stated within credibility, I have found that the client is not a witness of truth and as such I do not accept the explanation provided by the client for posting the alleged comments on his Facebook page. As per my previous finding, the client did not have a political profile nor undertake any political activities in Iran prior to his minor involvement in the protest and it appears to be somewhat out of character for the client to commence posting political comments on his Facebook page in 2013, several years after his arrival in Australia. As stated earlier, it appears to be more than coincidence that claims/incidents such (sic) the sealing of the family home, being a former member of the Basij and now the political postings on Facebook, have occurred after the client's unsuccessful RSA and IMR hearings. The new claim in relation to posting comments on Facebook appears to be following the previous pattern of bringing new claims to the department's attention after being unsuccessful in previous hearings. I also note that this new claim was not submitted as part of the representative's written ITOA submission. I am also unable to ignore the apparent contradiction in the client claiming protection due to his personal details being made available on the internet by the department, yet appearing to have no qualms about posting negative comments about the Iranian authorities on his Facebook page, under his own name.
I consider that the client has deliberately placed anti-government comments on his Facebook page in an attempt to enhance his claims for protection. I find that the client has not engaged in conduct in Australia otherwise than for the purpose of strengthening the person's claim to be a refugee (subsection 91R(3) of the Migration Act), and as such I have disregarded such conduct for the purposes of assessing the client's claim under the Refugees Convention criteria. Accordingly the client's claims in relation to the Facebook postings will be assessed under the more appropriate Australia's non-refoulement obligations under the ICCPR and CAT at Part C of this assessment record.”
[2] ITOA dated 6 February 2015 at page 35.
[3] ITOA dated 6 February 2015 at page 35.
The assessor subsequently returned to the Facebook claim, and the four untranslated copies of the Applicant’s Facebook page posts provided by the Applicant to the assessor at the interview, when considering Australia’s non-refoulement obligations under the CAT and ICCPR.
The assessor considered relevant country information (as set out in the ITOA) and stated that “whilst some international monitoring may occur, I do not accept it as plausible that all Iranian’s outside Iran have their internet content monitored by the Iranian authorities”.[4] The assessor noted the lack of country information as to the “extent or degree of success”[5] of monitoring the internet content of overseas Iranians and noted that the focus appeared to be on overseas Iranians who undertake protests, which the First Applicant had not done in Australia. The assessor went on relevantly to state:-
“The client did not provide a translated version of the alleged political comments on his Facebook page however I note that the client has not made any personal comments himself, but rather has simply passed on content that was either sent to him by others or obtained by the client himself from other Facebook pages/users. As the content of the Facebook postings has not been translated, to what element or degree he allegedly disagrees with the regime, cannot be gauged.
Whilst I was able to access some content on the client's Facebook page, I was unable to locate the content that was provided in the Facebook printouts provided at the ITOA interview. I was unable to ascertain if these had been deleted, were perhaps ‘hidden’ within the Facebook page or were only available to the clients ‘friends’ on Facebook. Clearly if I was unable to locate the claimed content, then this raises questions as to how accessible the claimed content would be to the Iranian authorities or even whether it ever was available to the Iranian authorities. I note that the spelling of the client's name on his Facebook page is different to that on the our (sic) department records (as confirmed by the clients birth certificate) so it is unclear as to whether the Iranian authorities, even if they wanted to, would be able to identify the client on Facebook based on the different spelling of his name.
As discussed earlier, I have found that the client and his son are not active politically and that the sole reason for the posting of anti-regime content on the client's Facebook page is to enhance his claims for protection. I do not believe the client has particularly strong political convictions or ideals, certainly not strong enough that he has previously felt the desire or need (prior to 2013) to make his political opinions public. This finding is further supported by the fact that the client has only provided four examples of (what appears to be) political content that he allegedly posted on his Facebook page, all dating from early 2013 until late October 2014, despite the fact that the client and his son arrived in Australia in 2010. I also note that two of the aforementioned postings appear to have been posted on the client's Facebook page shortly after he was notified of his impending ITOA interview. Given that I do not accept that the client's motive for posting the content on his Facebook was politically based at all, I am of the opinion that the client may well delete the comments from his Facebook page prior to any return to Iran. For similar reasons, I am also of the opinion that if the client was questioned about the content on his Facebook page on return to Iran, the client would be quick to disavow himself from the content. For the same reasons I am equally confident that if returned to Iran the client would not feel compelled to publish further political content on his Facebook site.
Whilst I am unable to assess the content of the alleged political postings on the client's Facebook site, it is clear that the number of postings is minimal. In any case, to my mind the content is largely irrelevant due to my belief that the Facebook page is unlikely to be monitored by the Iranian authorities. I have previously found that the client and his son do not have a political profile in Iran. As I have concluded the client and his son have not come to the attention of the authorities while living in Iran, there is no reason to assume the authorities would have knowledge of their activities in Australia. The client was not able to offer any evidence the authorities were actively pursuing him because of his Facebook postings.”
[4] ITOA dated 6 February 2015 at page 39
[5] ITOA dated 6 February 2015 at page 39
The purpose served by the requirement to accord procedural fairness to affected persons is the avoidance of “practical injustice”. In SZBEL v Minister for Immigration [2006] HCA 63 at [29] the Court approved the following statement of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074 at [591]-[592]:-
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
I agree with the submission of the First Respondent that there was no “practical injustice” and therefore no failure to accord procedural fairness to the Applicants. The material in question was material that the First Applicant had himself presented to the assessor only during the course of the interview. The assessor was not required to accept that material at face value. As submitted by the First Respondent, it was open to the assessor to observe that if he was unable to find the material on the Facebook page, that raised questions about whether the Iranian authorities could access it. A similar observation was made in relation to the different spelling of the First Applicant’s name, which differed from the First Applicant’s birth certificate which had also been provided by the First Applicant together with a translation. These observations or comments were open to the assessor on the basis of the material before him as provided by the First Applicant, and arose from the inability of the assessor to locate the relevant material on the Facebook page.
Further, as submitted by the First Respondent it is accepted law that, an Applicant can only succeed if a denial of procedural fairness had deprived him or her of the possibility of a successful outcome.[6] Here, the assessor rejected as not plausible, that all Iranian’s outside Iran have their internet monitored together with other relevant findings as referred to in paragraph 17 herein. All of these findings were open on the materials and evidence before the assessor. The conclusion of the assessor that the Facebook posts were unlikely to be monitored by the Iranian authorities, being a conclusion open on the material before him, was determinative.
[6] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 per Gaudron and Gummow JJ, 80; Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340, 46-48; BMF 16 v Minister for Immigration and Border Protection [2016] FCA 1530,166.
The Applicants further contended that the assessor’s stated opinions that the First Applicant could delete the comments from his Facebook page prior to return to Iran, and if questioned on return would disavow himself from the content and would not feel compelled to post further political content, were speculative. This argument cannot succeed. The assessor concluded that the Applicants were not politically active and that the sole reason for the First Applicant to post anti-regime content on his Facebook page was to enhance the Applicants protection claims. The action was not for politically based reasons at all. Thus it was open to the assessor to make the findings that he did and contrary to the Applicants submissions, there was a factual basis. There was no denial of procedural fairness in this approach.
Ground 3
As to ground three, the Applicants submit the following:-
“31. In making the ITOA assessment, the Second Respondent considered the following issues:-
a) the impact of Iranian authorities knowing that the Applicants were not in Iran;
b) the impact of the monitoring of the internet usage of Iranian citizens, including those outside the country, by Iranian authorities;
c) the impact of a data breach by the Minister for Immigration and Border Protection and/or the Department of Immigration on the First Applicant; and
d) the impact of Facebook posts written by the First Applicant on the Applicants’ claims.
32. Each of these issues was considered separately by the Second Respondent, however he did not consider the cumulative effect of these issues on the Applicants’ claim.
33. In so doing the Second Respondent failed to consider whether, in circumstances where there is international monitoring of overseas Iranian communities by the Iranian regime, where there was an online privacy breach in relation to the Applicants’ details by the Department, where the Iranian authorities were found to have known that the Applicants were not in Iran, and where the First Applicant had posted anti-regime content on his Facebook page, those findings when considered cumulatively gave rise to the Applicants facing a real chance of being subject to significant harm should they be returned to Iran.
34. In addition, the Second Respondent failed to consider whether, in light of the findings above when considered cumulatively, the Second Applicant was at greater risk should he be returned to Iran of being subject to significant harm as a person with an anti-regime profile who is required to do military service.
35. In so failing, the Second Respondent failed to consider the totality of the case put forward by the Applicants, and thereby committed jurisdictional error.”
It is not in dispute that the assessor made specific findings in relation to each and every of the claims referred to in that part of the Applicant’s submissions above. The question for the Court is whether it was necessary for there to then be a cumulative consideration?
In MZZAL v Minister for Immigration & Anor [2013] FCCA at [392], Burchardt J stated in respect of a ground that the Applicant’s claims were not considered cumulatively:-
“60. It is clear that there is authority tending to emphasise different conclusions in this field. In W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21] French J (as his Honour then was) said:-
“It may be accepted that in determining whether an applicant for a protection visa has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the whole of the case advanced by the applicant - Khan v Minister for Immigration& Multicultural Affairs [2000] FCA 1478. It may be that in a particular case there is a number of factors which individually might not support the existence of a well-founded fear of persecution but which taken together would support such a fear. In Khan's case these were described, in the submissions put to Katz J, as “risk factors”. They were causative factors which might collectively engender the relevant risk.”
61. In Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at [49] McHugh J said:-
“The language of “cumulative effect” adds nothing. The absence of a substantive complaint of an error of law in this ground (as opposed to a quarrel with a factual finding dressed up as an error of law), combined with the failure to make out grounds 3 and 4, compel the conclusion that ground 5 is not made out.”
62. That decision has been followed in various decisions referred to in the first respondent’s written submissions and I note the following extract from the decision in NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383, where Tamberlin J said at [21]:-
“it is hard to see how, if it is found that there is no substance in any of the individual claims, there could be any higher alternative claim based on a cumulative series of negative findings. Second, on a fair reading of the reasons for decision, it is clear that the RRT had regard to the totality of the evidence before it ...”
63. Here, of course, by no means all of the assertions made by the applicant were rejected. His claims of the 1997 and 2003 events were accepted, as were his general complaints of discrimination in childhood and adult life on the basis of his Kurdish ethnicity.
64. Nonetheless, doing the best I can to distil some element of commonality in the two lines of judicial thought referred to above, what seems to me to be said is that the Tribunal is required to consider the whole of the applicant’s claim.
65. Bearing in mind that whether or not a case should be looked at cumulatively will depend necessarily upon the claims made in the circumstances of each case, I think that the Tribunal cannot be said to have fallen into jurisdictional error in this regard. Read fairly and with an eye not overly tuned to the perception of error, it seems to me that the Tribunal had in mind all of the claims the applicant had made, and some of which it accepted. The decision was made in the light of all these materials and was cumulative in the sense indicated both by French J in W352 and by Tamberlin J in NAOI.
66. It follows that the Tribunal did not fall into jurisdictional in this regard.”
The assessor rejected all the substantive claims made by the Applicants as described in paragraph 22 above. In respect of the so called “data breach”,[7] not otherwise specifically canvassed in these reasons, the assessor found:-
“In relation to the release of the clients' information on the Internet, the representative stated that the clients' were gravely concerned that the privacy breach would result in the Iranian authorities becoming aware that they fled Iran and had sought asylum in Australia and that this would result in their safety being at risk should they return. I accept that some of the clients' information may have been released on a website on 31 January 2014 for a short period of time. However, only the clients' name, date of birth, nationality and details of detention were released, no information in relation to their claims for asylum was released. It is therefore clear that the only information that could possibly be gleaned about the situation of the clients' in Australia by the Iranian authorities would be that they had possibly applied for asylum. The Iranian authorities would not be able to access any information in relation to the clients' claims.
Furthermore, as per my previous findings the clients' have not been identified as persons of interest by the Iranian authorities (or anyone else); they have not undertaken any political activities in Australia that would likely come to adverse attention of the Iranian authorities. … The country information referred to above indicates that people suspected of applying for asylum would not face a real chance of persecution, solely for the reason that they are suspected of claiming asylum in the West. I accept the clients' may be questioned on arrival at Tehran airport however based on the profile of the clients', I do not consider that they would be detained by the authorities or that they would face a real chance of persecution.”
[7] Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29.
In relation to the impact of the authorities knowing the Applicants were not in Iran, as submitted by the First Respondent and as the Applicants note, the assessor considered and rejected all the claims arising therefrom, including the claimed issue of summonses, which the assessor found were fabricated; the sealing of the First Applicant’s house; and the freezing of his bank accounts. Given these findings, open on the material before the assessor and being logical findings of fact together with the assessor finding that neither of the Applicants were persons with an “anti-regime profile”, nor indeed had any political profile at all, the Applicants submission in respect of this ground cannot succeed.
The assessor performed the task he was required to perform and no error of law or jurisdiction arises. The application shall be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 September 2017
0
11
2