BXR15 v Minister for Immigration
[2019] FCCA 589
•11 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXR15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 589 |
| Catchwords: MIGRATION – Refoulement – persecution – serious harm – relevant test – Independent Treaties Obligations Assessment – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.48B, 91R, 195A, 197C, 198, 417, 474, 476 |
| Cases cited: Minister for Immigration & Border Protection v SZSSJ (2016) 259 CLR 180 Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 |
| Applicant: | BXR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | RAUL MENDOZA IN HIS CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
| File Number: | SYG 2582 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 5 March 2019 |
| Date of Last Submission: | 5 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Reynolds |
| Solicitors for the Applicant: | Asad Lawyers |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
THE COURT DECLARES THAT:
The 18 August 2015 decision of the Second Respondent that the Applicant was not a person in respect of whom Australia had non-refoulement obligations was not made in accordance with law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2582 of 2015
| BXR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| RAUL MENDOZA IN HIS CAPACITY AS INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant seeks judicial review of an International Treaties Obligations Assessment (“ITOA”) made by an officer (“Assessor”) of what is now the Department of Home Affairs on 18 August 2015. The Assessor found that the applicant was not a person to whom Australia had non-refoulement obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Refugees Convention”), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (“CAT Convention”), or the International Covenant on Civil and Political Rights 1966 and its Second Optional Protocol, aiming at the abolition of the death penalty 1989 (“ICCPR Covenant”).
The Court’s jurisdiction to entertain this matter was summarised in the applicant’s written submissions which I adopt:
The character of an ITOA decision was considered by the High Court in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180. French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ, at [56]-[73], held unanimously that the Full Court had correctly:
(aCharacterised the ITOA as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act;
(b)Held that procedural fairness was required to be afforded in conducting the ITOA; and
(c)Found that the Federal Circuit Court had jurisdiction pursuant to s 476(1) to hear and determine an application where declarative and injunctive relief was sought in respect of an ITOA decision.
Section 197C of the Act provides that, for the purposes of s 198 of the Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. However, this provision does not alter the character of an ITOA in an essential respect; namely, it retains its character as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act (SZSSJ, [57]). As such, an ITOA is a privative clause decision pursuant to the extended definition in s 474(3)(h) of the Act and, therefore, the Federal Circuit Court has jurisdiction by operation of s 474(1) of the Act to grant declaratory and injunctive relief in respect of an ITOA decision.
The High Court also said in SZSSJ that the Court’s jurisdiction conferred by s.476(1) of the Migration Act 1958 (“Act”), subject to s.476(2) of the Act, is jurisdiction in any matter in which relief is sought on a ground that a migration decision is affected by jurisdictional error and so is, in truth, no more than a purported privative clause decision (at 201-202 [61]).
BACKGROUND
The applicant is a citizen of Iran who arrived at Christmas Island as an irregular maritime arrival on 4 November 2010. His immigration history as extracted from the Court Book, which was exhibit 1, can be summarised as follows:
Date
Event
26.11.10
Applicant attends an entry interview.
11.03.11
Applicant lodges a request for a Protection Obligations Determination (“POD”).
20.04.11
POD interview conducted.
04.07.11
Protection Obligations Evaluation (“POE”) finalised – the applicant is not a person to whom Australia has protection obligations.
04.07.11
Applicant is automatically referred for Independent Protection Assessment (“IPA”).
16.10.11
IPA interview conducted.
13.02.12
IPA finalised – negative assessment.
15.06.12
A Post Review Protection Claims (“PRPC”) assessment is initiated by the Department.
27.11.12
Applicant does not meet the Minister’s guidelines for the consideration of a PRPC assessment.
22.09.14
Applicant advised that an ITOA has been commenced in respect of his claims for protection.
17.11.14
Applicant provides a written statement in support of his ITOA.
13.12.14
Written submissions provided by the applicant.
18.12.14
ITOA interview conducted.
15.01.15
Applicant provides additional documents.
18.08.15
ITOA process finalised with a finding that the applicant is not a person to whom Australia has non-refoulement obligations.
21.09.15
Current judicial review proceedings commenced.
Protection claims
The facts alleged in support of the applicant’s claims to fear persecution in his country of nationality were summarised by the Assessor in his decision record. Relevantly, the applicant made the following claims:
a)he was a Sunni Muslim of Kurdish ethnicity;
b)in May 2010 the Iranian government executed three Kurdish activists. He closed his father’s shop in protest and encouraged other shop owners in the area to do the same. He also posted photographs of the executed Kurds in front of some of the shops in the bazaar. They were later removed by the Basij;
c)a few months later, the Basij came to his father’s shop and beat him for participating in the strike. He did not return to the shop after this incident and fled Iran in October 2010;
d)he suffered discrimination in Iran because of his Kurdish ethnicity and Sunni religion, particularly in terms of education, employment and military service;
e)he was also harassed by the Basij because of his race and was often detained, sometimes for two to three days, on trumped up charges. He had to pay bribes to have the charges dismissed;
f)he was unable to practise his Kurdish culture in Iran;
g)he had renounced his religion in Australia and would be charged with apostasy if he returned to Iran;
h)he had attended functions of the Kurdish community in Sydney and was active in the Kurdish Community Centre. Various Kurdish political parties (i.e the Komalah Party of Kurdistan, YPG, Kurdish Labour Party) gathered at the centre and he supported their call for the creation of an independent Kurdish government; and
i)he had also participated in gatherings of the Iranian community in Australia where he had openly declared his renunciation of Islam. He had made similar comments on Facebook.
Assessor’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Assessor found that he was not satisfied that the applicant is a person to whom Australia had non-refoulement obligations under the Refugees Convention, the CAT Convention, or the ICCPR Covenant. His conclusion was based on the following findings and reasons:
a)the Assessor referred to the findings of the POE officer who, while accepting that the applicant had participated in some protest action in May 2010, did not accept that he had been a ringleader in his locality. The POE officer found that the applicant lacked knowledge about the executions, had provided inconsistent evidence about his experiences during this time and had left Iran legally without encountering any problems at the airport. This led the POE officer to conclude that the applicant had not been of adverse interest to the authorities at the time and did not face a real chance of being persecuted on account of his claimed participation in the protest action. The Assessor noted that this finding was affirmed by the IPA officer on review and the applicant did not attempt to refute either of the officers’ findings. In light of this, and given that there was no recent information which contradicted the findings of the POE and IPA officers, the Assessor found that the applicant would not face persecutory harm in Iran because of his claimed participation in the Kurdish protests in 2010;
b)the Assessor did not accept that the applicant had been subjected to persecutory discrimination in Iran due to his Kurdish ethnicity, noting that:
i)he appeared to have enjoyed basic rights such as the right to a basic education, the right to earn a livelihood and the right to practise his religion;
ii)while the applicant claimed that he had been detained on several occasions on trumped up charges, he had also been able to obtain release through extra-legal means like bribery. Moreover, he had not been able to demonstrate clearly that those instances of short detention had been racially motivated;
iii)nothing in the applicant’s statements indicated that his basic rights had been severely curtailed. His life had not been threatened and his short imprisonment appeared to be harassment rather than severe alienation of his right to liberty; and
iv)he had not been prevented from obtaining a passport and leaving Iran legally, which was proof that his freedom of movement had not been violated by the State;
c)the Assessor accepted that prohibitions in Iran on wearing Kurdish clothing and speaking the Kurdish language in public impinged on the applicant’s identity as a Kurd. However, the Assessor did not accept that those restrictions had resulted in serious harm to the applicant such as to constitute persecution;
d)according to country information, Sunni adherents in Iran did not suffer systematic persecution and the applicant himself did not claim to have suffered harm as a result of his religion. In light of this, the Assessor did not accept that the applicant would be persecuted in Iran for reasons of his (former) Sunni religion;
e)the Assessor accepted that it was plausible that the applicant had renounced his faith in Australia but was not satisfied that he had done so publicly as his evidence on this issue had been vague and lacking in detail. Consequently, the Assessor was not satisfied that the applicant’s renunciation of his Sunni faith would be known by the authorities in Iran;
f)the Assessor was not persuaded that the applicant had attended several gatherings of the Kurdish community in Sydney. The Assessor noted in this regard that the applicant had not been able to provide details of the topics discussed during the meetings, was unfamiliar with the venue of the gatherings, and lacked knowledge and facts about the various Kurdish groups represented in those meetings. For these reasons, the Assessor was not satisfied that the applicant had formed any association with those Kurdish groups or had identified himself with the Kurdish political cause, such that he would be imputed with a pro-Kurdish, anti-Iranian political opinion on return to Iran; and
g)while the Assessor questioned the applicant’s motive for maintaining a Facebook account with anti-Iranian content, he nevertheless considered whether such conduct would result in the applicant facing a real chance of persecution in Iran. On the basis of his responses during the ITOA interview, the Assessor was not satisfied that the applicant had a strong and genuine anti-Iranian regime political opinion. Given his general lack of conviction, the Assessor found that the applicant could reasonably be expected to close his Facebook account or to refrain from discussing controversial matters in it, thereby avoiding persecutory harm on his return to Iran.
PROCEEDINGS IN THIS COURT
In his further amended application the applicant alleged:
1.The Assessor engaged in legal error by misconstruing or failing to apply the correct law.
Particulars
The Assessor misconstrued or failed to apply the applicable law when it found (CB252) that it did not accept that the restrictions on the Applicant as to practicing [sic] his Kurdish culture may be considered persecution.
CONSIDERATION
Statutory background
At all material times s.91R of the Act relevantly provided:
91R Persecution
(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.
That section was repealed on 18 April 2015 but the repeal applied only to protection visa applications made on or after that date.
Submissions
The applicant’s case concerned the Assessor’s finding that the restrictions placed on his cultural rights did not amount to persecution. The relevant passage from the assessment was:
The claimant stated that he was prevented from practising his Kurdish culture. He was not allowed to speak Kurdish in public or to wear traditional Kurdish clothing. I accept that these prohibitions impinge on the claimant's identity as a Kurd. However, I do not accept that the restrictions imposed on him have resulted in serious harm such as to constitute persecution. There is no indication that his existence was threatened as a result of the restrictions imposed on his cultural rights. Given this, I do not accept that the restrictions imposed on the claimant may be considered persecution. (emphasis added)
The applicant submitted that the sentences emphasised in that quotation indicated that the Assessor had applied an incorrect test. The applicant argued that in reasoning in this way, the Assessor could be seen to have understood a ‘threat to existence’ to be a necessary element or requirement of the definition of serious harm, when it was not. He submitted that serious harm could be found in less grave circumstances and that the Assessor misconstrued or failed to apply the correct law.
Another matter which the applicant advanced in support of his argument was the absence from the assessment of a statement of the relevant law, the implication being that the terms of the relevant test were not front of mind when the Assessor deliberated and so the law was not applied correctly.
For his part, the Minister argued that when the assessment was read as a whole it could be seen that the Assessor had not misunderstood the relevant test. In this regard, reference was made to a statement three pages before the passages quoted above, where the Assessor said:
The claimant claims that he will be seriously harmed, arrested or even executed by the authorities should he be returned to Iran. Section 91R(2) of the Act states that a threat to the person’s life or liberty is considered serious harm. The harm feared by the claimant may therefore be considered serious as it involves a threat to his life and liberty. The harm is also systematic and discriminatory conduct as the claimant was specifically targeted for Refugees Convention reasons.
The Minister submitted that the Assessor could, from this passage, be seen to be aware of the definition of serious harm found in s.91R(2).
Reference was also made to a statement made in the paragraph following the one relied on by the applicant. There the Assessor said:
The claimant also claimed that he was harassed several times due to his preference for western music. While I accept that the claimant was strongly discouraged from listening to western music, I do not consider such restriction as to the type of music to listen as amounting to persecution. Prohibiting a person from listening to particular types of music in Iran does not amount to a threat to one's existence or other serious harm. Such prohibition would not result in the claimant suffering significant harm. (emphasis added)
The Minister argued that it could be seen from the words emphasised that the Assessor knew that serious harm was not limited to life threatening circumstances. A similar argument was mounted in relation to another passage in the assessment where the risk of harm was discussed by reference to a qualitative assessment. It was argued that the terms of this discussion indicated that the Assessor knew that satisfaction of the relevant test could be satisfied by circumstances which were less serious than ones involving a threat to a person’s existence.
Discussion
The assessment should not be construed with an eye keenly attuned to the perception of error and it is not inappropriate to consider the document as a whole to better understand the Assessor’s thinking. Having regard to that caution and having read the relevant passage in its wider context, I am persuaded that the assessor erred as the applicant has alleged.
The passage about which the applicant complains does disclose a very limited appreciation of what might amount to serious harm under s.91R, at least in the context of that discussion. The fact that some earlier, limited reference was made to s.91R(2) does not suggest otherwise as it was made in the context of a claim to fear harm much more serious than a denial of cultural expression. Most significantly, and in the context of the cultural claim, the assessor stated that “given” that there was no indication that the applicant’s existence was at risk, the related restrictions on his cultural expression did not amount to persecution. That was an incorrect statement of the relevant test.
Further, the Assessor appears not to have had regard to relevant authorities which are to the effect that persecution is not limited to punishment for the exercise of rights but may take the form of a prohibition on the exercise of those rights: Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 at [20]. See also Islam v Minister for Immigration & Multicultural Affairs [2002] FCA 525 and Win v Minister for Immigration & Multicultural Affairs [2001] FCA 1451. Although s.91R did not apply in those matters because the visa applications in those cases pre-dated its introduction, it is to be recalled that the definition of serious harm in s.91R(2) is not exhaustive. A consideration of the applicant’s allegations in accordance with law would have included a consideration of the principles to be derived from those cases.
CONCLUSION
I find that the Assessor erred by applying an incorrect test and so exceeded his jurisdiction.
The applicant has sought a declaration that the assessment was not made according to law and an injunction restraining the Minister and those working for him from relying on the assessment. He will have the first- prayed relief but not the second. As the Full Court of the Federal Court said in SZSSJ v Minister for Immigration & Border Protection (No.2) (2015) 234 FCR 1 at 38 [152]:
There is no reason to issue the injunction sought as no decision by the Minister to act on a report declared by this Court to have resulted in procedural unfairness could itself be valid. No injunction is sought to restrain SZTZI’s removal pending the outcome.
Similar considerations apply in this case.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 11 March 2019
0
5
2