BZABN v Minister for Immigration - [2013] FMCA 25

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BZABN v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 25

MIGRATION – Review of Independent Merits Reviewer report and recommendation in respect of an offshore entry person – applicant claiming persecution in Iran on the basis of imputed political opinion – applicant claiming persecution in Iran on the basis of membership of particular social groups – applicant not believed in critical respects – no consideration given to aspects of claim – jurisdictional error.

Migration Act 1958 (Cth), s.36(2)

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
1001288 [2010] RRTA 912

Applicant:

BZABN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

SUSAN CURRIE IN HER CAPACITY AS THE INDEPENDENT MERIT REVIEWER

File Number:

BRG 885 of 2011

Judgment of:

Jarrett FM

Hearing date:

6 February 2012

Date of Last Submission:

6 February 2012

Delivered at:

Brisbane

Delivered on:

23 January 2013

REPRESENTATION

Counsel for the applicant:

Ms O’Gorman

Solicitors for the applicant:

Refugee and Immigration Legal Service Inc

Counsel for the first Respondent:

Mr Bickford

Solicitors for the first Respondent:

Clayton Utz

Counsel for the second Respondent:

Submitting appearance

Solicitors for the second Respondent:

Clayton Utz

ORDERS

THE COURT DECALRES THAT:

In recommending to the first respondent on 30 August, 2011 that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to deal with an integer of the applicant’s claim.

THE COURT ORDERS:

The first respondent, by his department, officers, delegates or agents be restrained by injunction from relying upon the recommendation of the second respondent.
The first respondent pay the applicant’s costs fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 885 of 2011

BZABN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

SUSAN CURRIE IN HER CAPACITY AS THE INDEPENDENT MERIT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application for a declaration and injunction in relation to a recommendation of the second respondent made on 30 August 2011, whereby she found that the applicant did not meet the criterion for a protection visa as set out in s.36(2) of the Migration Act 1958. She recommended to the first respondent that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

Background

The applicant is an Iranian national who was born on 20 February, 1982. She has three children and is married.
On 16 July, 2010 the applicant arrived at Christmas Island with her three children. She sought asylum and was placed in immigration detention.
The applicant has given a number of different versions as to how she came to leave Iran. One of her accounts is that she left Iran legally on a valid passport but, when she arrived in Jakarta, she organised to be smuggled by boat with her children out of Indonesia to Australia and surrendered her passport to the people smuggler who arranged that trip.
Another version is that she gave her valid passport to a people smuggler in Iran who produced another document which she used to facilitate her exit from Iran to Indonesia. In that version, she claims that she does not know whether the passport held by her was a valid one or not.
There seems to be possibly even a third version which involves the use of illegally obtained documents, and bribes to various officials at the airport in Tehran, to facilitate the exit of her and her children from Iran to Indonesia.
In any event, upon her arrival in Australia, the applicant claimed that she was a person to whom Australia owed protection obligations. The basis of her claims expanded as her application to be permitted to apply for a protection visa moved through the administrative processes put in place for that purpose.
By the time her claim was considered by the second respondent, the applicant claimed that she feared persecution by the Basij in Iran and other militant groups on the following three grounds:
a)imputed political opinions (ie, imputed opposition to the Iranian regime);
b)imputed religious faith (ie, imputed Baha’I follower);
c)membership of any of the following social groups:
i)married women in Iran;
ii)estranged, separated or divorced women in Iran;
iii)women in arranged marriages that have not fulfilled family demands in accordance with family wishes.
On 10 December, 2010 a delegate of the first respondent determined that the applicant and her three children are not refugees as defined in the Convention and Protocol.
On 27 December, 2010 the applicant applied for independent merits review of the delegate’s decision. On 24 May, 2011 the second respondent conducted a hearing with the applicant (the IMR Hearing). The applicant’s claims were articulated in:
a)her statutory declaration dated 28 August 2010;
b)her oral evidence given at the IMR hearing on 24 May 2011;
c)written submissions from the claimant’s agent dated 31 January 2011, 9 June 2011 and 14 July 2011; and
d)oral submissions from the applicant’s agents at the IMR hearing on 24 May 2011.
On 30 August, 2011 the second respondent made a decision that found that the applicant and her three children did not meet the criteria for a protection visa under s.36(2) of the Migration Act 1958 (Cth).
By a letter dated 2 September, 2011 the applicant was advised of the second respondent’s decision. On 7 October, 2011 the applicant filed this application for judicial review.

The applicant’s claims

The second respondent identified seven separate claims to protection made by the applicant in the material to which I have just referred. It was not suggested that the second respondent did not properly identify the claims made by the applicant. The applicant claimed that she fears persecution:
a)by the Basij and other militant groups in Iran because of her imputed opposition to the Iranian regime arising from:
i)the activities of her brother in law and husband in Iran; and
ii)her failed application for asylum in Australia;
b)by the Basij and other militant groups in Iran because of her imputed Baha’i faith;
c)because she was a married woman in Iran;
d)because she was an estranged/separated/divorced woman in Iran;
e)because she was a woman in an arranged marriage that has not fulfilled family demands in accordance with family wishes; and
f)because she would be regarded as a religious convert in Iran.

The second respondent’s reasons

The second respondent’s reasons provide a brief introduction; a reference to the relevant law and the definition of “refugee”, an analysis of the claims and evidence including the applicant’s evidence at the entry interview, her statutory declaration dated 28 August, 2010 the RSA interview on 31 August, 2010 and the IMR hearing.
The submissions of the applicant’s agent made on 31 January and 9 June, 2011 and the further submissions made after the oral hearing on 14 July, 2011 are referred to at paragraphs 48 to 50 which also quotes significant passages from the applicant’s advisors’ summary of their client’s case.
Country information is briefly referred to at paragraph 62 and the findings and reasons appear at paragraphs 63 through to 90.
The second respondent correctly noted that she first needed to be satisfied that the applicant was outside the country of her nationality owing to a well-founded fear of persecution for a Convention reason. She found that she was satisfied that the applicant was born in Iran and had lived all her life in that country. She found the relevant country of nationality was Iran. There is no issue as to the correctness of this finding.
She then needed to be satisfied that the applicant’s fear of persecution for a Convention reason in Iran was the essential and significant reason for her seeking asylum.
It is clear that the applicant’s credit was a significant issue for the second respondent. At paragraph 65 of her reasons, the second respondent said:
“65. As indicated above, issues of credibility are of primary importance in this case. It is not uncommon for claimant’s to make more than one claim to being a refugee and it is only necessary for them to succeed on one basis of one claim. However, in this case, there are many different claims. Every time the claimant was interviewed she would raise afresh claim. It is a factor relevant to the credibility of the claimant although by itself, it is not a determinative factor.”
At paragraph 66 of her reasons, the second respondent noted that in the submissions dated 31 January and 9 June, 2011 the applicant’s advisors argued that there were two relevant Convention grounds as follows:
a)the applicant’s fear of persecution by the Basij and other militant groups in Iran because of her imputed political opinions (opposition to the Iranian regime);
b)the applicant’s fear of persecution by the Basij and other militant groups in Iran because of her imputed religious faith (Baha’i).
In the written submission dated 14 July 2011, the advisors’ put forward further claims, including the claims based upon the applicant’s membership of particular social groups.
Each of the applicant’s claims was rejected for the reasons given by the second respondent although some of the reasons are very brief.

The grounds of the review before this Court

The amended application for review filed on 28 November, 2011 has ten grounds upon which the review is based. On 12 January, 2012 the applicant’s representatives filed written submissions in support of those ten grounds. At the commencement of the hearing however, Counsel for the applicant advised the Court that the applicant only pursued grounds four, seven and eight set out in the written submissions filed on 12 January, 2012 (which correspond to grounds four seven and eight as set out in the amended application). The balance of the grounds was abandoned.
The amended application sets out grounds four, seven and eight as follows:
4. The second respondent took irrelevant considerations into account in making the decision.
Particulars
a. When making a decision as to the applicant’s ‘Fourth Claim’, namely that the applicant was at serious risk of persecution in Iran on the basis of her membership of the social group of being an estranged/divorced/separated woman in Iran, the second respondent took into account the considerations that were relevant only to the applicant’s ‘Third Claim’, namely that the applicant was at serious risk of persecution or harm on the basis of her membership of the social group of being a married woman who is the victim of domestic violence.
…
7. The second respondent failed to take a relevant consideration into account in making the decision.
Particulars
a. When making a decision as to the applicant’s ‘Fifth Claim’, namely that the applicant was at serious risk of persecution in Iran on the basis of her membership of the social group of being a woman in an arranged marriage who has not fulfilled family demands in accordance with family wishes, the second respondent failed to take into account each of the following considerations:
i. that the applicant is in an arranged marriage;
11. that the applicant entered the arranged marriage in order to ease inter-familial tensions;
111. that the applicant’s failure to fulfil her ongoing obligations as a wife is contrary to custom and inconsistent with local religious beliefs;
IV. that the applicant’s failure to adhere to custom and local religious beliefs exposes the applicant to harm and persecution in Iran.
8. The second respondent made a decision with respect to a material fact that there was no evidence to support.
Particulars
a. The second respondent had no evidence or other material to justify the making of the following decision: that it was unlikely that the applicant would be identified as a failed asylum seeker upon her return to Iran.
Before embarking upon a consideration of each ground, it is as well to recall the statements of Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259:
“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 tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
…
Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.”

The fourth ground

The applicant argues that the second respondent took irrelevant considerations into account in making her decision with respect to the applicant’s claim to asylum that was based on her membership of the social group of estranged, separated or divorced women in Iran. This claim asserted that the applicant was at serious risk of persecution in Iran because she was an estranged, divorced or separated woman in Iran.
This claim, as articulated by the applicant’s advisors in their written submission to the second respondent dated 14 July, 2011, was that:
a)estranged/divorced/separated women in Iran constitute a particular social group for the purposes of the Refugee Convention;
b)The applicant was effectively prevented from divorcing her husband “due to social, cultural, religious and legal obstacles present in Iranian society and institutions”;
c)The applicant was unable to divorce her husband legally in Iran because Iranian law only permitted the male spouse to institute divorce processes;
d)Without the ability to divorce her husband, the applicant and the couples’ children would continue to be subjected to a serious risk of harm, namely the domestic violence from which the applicant claimed she and the children had suffered in the past at the hands of her husband.
In their written submissions, the applicant’s representatives summarised the claim in the following way:
Our client’s inability to access divorce on the basis of her gender constitutes political and religious persecution in that it forces her to accept the societal and religious norms of Iranian society, which prevent our client from living a ‘normal’ life as a woman and denies our client and her children any avenue of escape or legal redress against the risk of physical violence at the hands of our client’s estranged husband.
…
In summary, our client is clearly a woman at risk of persecution in Iran; from her estranged husband as well as from the Iranian authorities. She has three young children who are also at risk of persecution and violence, and cannot rely on either family support systems or the Iranian authorities to protect her. Our client is estranged from both her family and that of her husband, denying her access to the familial support networks that she might otherwise have relied upon in Iran. Our client is effectively separated from her husband, and in any event he is allegedly imprisoned at this time.
As to our client’s husband’s imprisonment, it is not known why he may have been imprisoned. Upon his release, our client fears that she would again be subjected to his brutal and violent behaviour.
In the meantime, were our client to return to Iran now, she would be doing so with the profile of a single woman without familial support networks. This profile exposes our client to a significant risk of societal, cultural and legal persecution in Iran.
That claim was independent of the applicant’s other claim to the effect that she was at serious risk of persecution in Iran on the basis of her membership of another particular social group, namely married women in Iran who are victims of domestic violence. As to that claim, the second respondent found that the claim had not been made out because the second respondent did not accept the applicant’s claims about domestic violence at the hand of her husband. The second respondent was concerned about the applicant’s veracity and set out in her reasons the claims and evidence given by the applicant. Those claims and that evidence was analysed and, insofar as the claims about violence at the hands of her husband were concerned, the second respondent said:
81. …I do not accept the claimant as a reliable witness when it comes to recounting harms she has suffered.
82. I reject the claimant’s evidence in respect of being a victim of domestic violence and therefore of being at risk of persecution as a married woman in Iran.
It was not suggested by the applicant in argument that the second respondent made any reviewable error in rejecting the applicant’s claims about being a victim of domestic violence.
After expressing the conclusions I have just set out above, the second respondent moved to deal with the applicants claim based upon her membership of the particular social group constituted by estranged/divorced/separated women in Iran. The second respondent dealt with that claim in one paragraph as follows:
Fourth Claim: Estranged/Separated/Divorced women in Iraq (sic)
83. Effectively the claims put forward in this regard are of the same nature as the claims put forward in regard to the third claim and the threat of domestic violence which were rejected above. The claimant said that she does not think that there is any chance of a reunion with her husband. There is however no evidence that the couple are separated other than physically. I reject the claim.
The applicant argues that when making the decision as to this claim, the second respondent took into account considerations that were relevant only to the applicant’s earlier claim based upon her membership of the married women in Iran social group. The claims relevant to that social group that the second respondent rejected were that:
a)the claimant and her children would be at risk of violence at the hands of her husband on returning to Iran; and
b)the Iranian state fails to provide protection to married women who are the victims of domestic violence and do not allow them to divorce their husbands.
The applicant argues that the claims that she put forward with respect to the estranged/separated/divorced women in Iran social group are not of the same nature as the claims put forward with respect to the married women in Iran social group. She argues that the rejection by the second respondent of her claims about domestic violence do not, and cannot be dispositive of her claims arising out of her membership of the estranged/separated/divorced women in Iran social group.
The claims advanced by the applicant through her advisors in that regard were that: “were our client to return to Iran now, she would be doing so with the profile of a single woman without familial support networks. This profile exposes our client to a significant risk of societal, cultural and legal persecution in Iran.”
However, as the extract from the applicant’s advisors submissions set out above at paragraph 27 makes clear, her claims based upon the two separate social groups shared a common element. That was the applicant’s claims about domestic violence at the hands of her husband. That claim was clearly rejected.
That finding was sufficient to dispose of that part of the claim that based upon her husband’s violence and the inability or unwillingness of the applicant’s family to protect her from it. The balance of the claim was dealt with because the second respondent did not accept that the applicant was in fact separated from her husband in the relevant sense. They were separated physically, but that is all. The second respondent clearly apprehended that the applicant’s claim were broader than mere physical separation of the applicant and her husband. Those claims of separation or estrangement on a wider basis were rejected by the second respondent.

In paragraph 81 of her reasons, the second respondent had specifically referred to the applicant’s claims that she had been persecuted by her family since she was 13; that her family had kidnapped her children while she was at work with the intention of giving them to her husband’s family; that she did not have money to bribe the Police and that her maternal uncle was a person of influence; that she had sought legal assistance but the lawyer wanted her to go through a relationship ceremony with him; that when her family wanted her to return to her husband she was captured by her brothers in the house and beaten.
I accept the first respondent’s submissions that on a fair reading of the reasons, all of these claims were rejected by the second respondent because of the general unreliability of the applicant’s evidence.
I accept that this is not a case where the claim was not considered at all, or misunderstood by the second respondent. The claims were clearly articulated in the second respondent’s reason and were the subject of analysis. There is nothing in the second respondent’s reasons that suggests that she did not fully apprehend the nature of the claims being made. The claims were rejected because:
a)The second respondent did not accept the applicant’s claim about violence; and
b)Was not satisfied that the applicant was separated from her husband as the applicant claimed.
Those matters were findings of fact that informed the second respondent’s findings in relation to the subject claim. This ground of review is not made out.

The seventh ground

One of the claims made by the applicant was that she was at serious risk of persecution in Iran because she was a woman in an arranged marriage who had not fulfilled family demands in accordance with family wishes. She argues that the second respondent failed to take relevant considerations into account in making her decision with respect to that claim and in particular:
a)that the applicant is in an arranged marriage;
b)that the applicant entered the arranged marriage in order to ease inter-familial tensions;
c)that the applicant’s failure to fulfil her ongoing obligations as a wife is contrary to custom and inconsistent with local religious beliefs;
d)that the applicant’s failure to adhere to custom and local religious beliefs exposes the applicant to harm and persecution in Iran.
As both the applicant and the first respondent point out, it is well accepted that a failure to consider an integer of a claim to be a refugee (or a contention that, if accepted, might establish a well-founded fear of persecution) is a ground for review.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 French, Sackville and Hely JJ said:
‘It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked”. Toro Martinez v Minister for Immigration & Citizenship [2009] FCA 528 per Rares J at [46].’
The applicant argues that the second respondent failed to deal with her claim based upon her arranged marriage. Although the second respondent dealt with the claim, she did so only in the following passage:
‘Fifth Claim: Women in Arranged Marriages that have not fulfilled family demands in accordance with family wishes. As indicated under the third claim above, I do not find the claimant a reliable witness regarding harm caused to her. I reject this claim.’
In so dismissing the claim, I accept that the second respondent failed to indicate whether she accepted or rejected the contentions of fact relied upon by the application to establish this claim. Moreover, the applicant’s claims regarding violence at the hands of her husband had no part to play in this particular claim and so, the second respondent’s findings about that matter could not have been dispositive of this claim. It is entirely unclear to what it was that the second respondent was referring by her use of the word “harm” in the above passage. It might have been the violence alleged to have been perpetrated by the applicant’s husband, or it might have been something broader, but it is impossible to tell.
In my view, this ground of review is made out because the second respondent has not dealt with this claim in any substantive sense and the orders sought by the applicant should be made.

Eighth ground

Although strictly it is not necessary to deal with this ground given my findings set out above, I shall do so in deference to the arguments set out by the parties.
The applicant claimed that she would be identified as a failed asylum seeker if she was returned to Iran and that she would have imputed to her political opinions adverse to the ruling regime in Iran. For that, she claimed she would be persecuted. The second respondent rejected that claim and found that it is unlikely that the applicant would be identified as a failed asylum seeker. The applicant argues that the second respondent had no evidence or other material to justify making that decision.
It is necessary to put the second respondent’s decision in this regard, in context. The applicant’s claim on this ground was articulated by her advisors in their written submissions made on 31 January, 2011, 9 June, 2011 and 14 July, 2011. The submissions made on 14 July, 2011 were more extensive than those on the earlier two occasions, but all were based upon the same premises, namely:
a)the applicant departed Iran under persistent surveillance and harassment by the Basij by reason of her connection with her husband;
b)the applicant left Iran illegally;
c)the applicant no longer has a valid Iranian passport;
d)she would be required to obtain new travel documents to facilitate her return to Iran;
e)that process would identify her as a failed asylum seeker because her travel documents would not have an exit stamp indicating lawful exit from Iran.
In support, the applicant’s advisors referred to some country information, country advice issued by the Refugee Review Tribunal for Iran on 19 August, 2010 and a decision of a Refugee Review Tribunal 1001288 [2010] RRTA 912.
In the present case, the second respondent said:
85. In her statutory declaration, the claimant said that she is by now probably listed on a blacklist held by authorities at the airports, given that she escaped from the Basij and that she will be arrested and detained and then beaten or worse by the authorities or their agents if she were to return to Iran. She also claims that there is nowhere in Iran would she would be safe. I have however rejected her claim to have escaped from the custody of the Basij.
86. In her entry interview, the claimant said that she and her husband left Iran legally. Her version of leaving the country at the IMR hearing was that she wasn't sure if the passport she used to leave the country was genuine or not. She didn't sign anything. She did have a genuine passport and she sent her passport and photos of her children to the people smuggler. Her passport was stolen in Indonesia. She doesn't know why the people smuggler would use her real name if she was on a blacklist.
87. I find that the claimant left Iran legally. I do not accept that there would be problems for her on returning to Iran. I find that it is likely that she has access to a legal passport to do so. I find further that it is unlikely that she would be identified as a failed asylum seeker.
88. I reject the claim of imputed political opinion: application for asylum in Australia.
The applicant argues that the second respondent based her decision to reject the applicant’s claim of imputed political opinion based upon her application for asylum in Australia, on the existence of a particular fact, namely, the fact that the applicant was unlikely to be identified as a failed asylum seeker. The applicant further argues that the second respondent had no evidence or other material to justify the making of the decision on the basis of the existence of that fact. According to the applicant’s written submissions, the fact that the applicant was unlikely to be identified as a failed asylum seeker was inferred from the fact that the applicant ‘left Iran legally’. However, it is said that there is no reason why the basis on which an asylum seeker left a country should offer any indication as to the likelihood of the asylum seeker being identified, upon her return to the country, as a failed asylum seeker.
The applicant’s submissions should be rejected because:
a)The country information relied upon by the applicant dealt with failed asylum seekers who had left Iran illegally and who were able to be identified by a local Iranian Embassy because new travel documents to facilitate a return to Iran were necessary;
b)The RRT decision relied upon by the applicant dealt with a failed asylum seeker who had left Iran illegally.
In the present case, the second respondent found that the applicant left Iran legally with her husband and that she still had access to a legal passport to return to Iran. Having regard to the country information and the RRT Advice (referred to in relied upon by the applicant) those findings of fact were critical because it meant that there was no need for the applicant to approach the Iranian Embassy for new travel documents. Upon her return to Iran, her passport would have a legitimate exit stamp and so would not attract adverse attention.
Neither of those critical factual matters were challenged on this application. The second respondent’s finding that “it is unlikely that she would be identified as a failed asylum seeker” is nothing more than the second respondent expressing her lack of satisfaction that the applicant would be identified as a failed asylum seeker. The finding is a conclusion derived from the other facts found by the second respondent. The observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (above) about the correct approach to the interpretation of an administrative decision apply.
In my view this ground of review fails.

Conclusion

I am satisfied that the applicant has made out ground seven upon which she relied in these proceedings. In the circumstances, I make the declarations and orders set out in the commencement of these reasons.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 23 January 2013