CDG15 v Minister for Immigration

[2017] FCCA 122

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 122

Catchwords:
MIGRATION – Judicial review of an International Treaties Obligations Assessment – applicant claim that the Second Respondent misunderstood the protection claim – no jurisdictional error – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) and (aa), 5J(4)(a)

Applicant: CDG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REBECCA COWEN (IN HER CAPACITY AS A OFFICER OF THE INTERNATIONAL TREATY OBLIGATIONS ASSESSMENT SECTION OF ONSHORE PROTECTION AUSTRALIA)

File Number: MLG 2334 of 2015

Judgment of: Judge Hartnett

Hearing date: 3 November 2016

Delivered at: Melbourne

Delivered on: 25 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Tran

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2334 of 2015

CDG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REBECCA COWEN (IN HER CAPACITY AS A OFFICER OF THE INTERNATIONAL TREATY OBLIGATIONS ASSESSMENT SECTION OF ONSHORE PROTECTION AUSTRALIA)

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant by amended application for review filed 21 October 2016, seeks judicial review of an International Treaties Obligations Assessment (‘ITOA’) made by the Second Respondent on 23 September 2015. The Second Respondent determined that Australia does not have non-refoulement obligations to the Applicant. Whilst the amended application raises two grounds of review, it is only the first ground which is proceeded with by the Applicant.

2. The ground of application relied upon is that:-

   “The Second Respondent misunderstood the claim made by the Applicant in respect of his lack of religion, and thereby constructively failed to exercise her jurisdiction.”

History

1. The Applicant is a national of Iran who arrived in Australia as an unauthorised maritime arrival on 16 March 2011.

2. On 23 September 2015, the Second Respondent (‘the assessor’), an officer of the Department of Immigration and Border Protection (‘the Department’), completed the ITOA.

3. The ITOA assessed whether the Applicant engaged in Australia’s non-refoulement obligations as reflected in the refugee and complementary protection criteria in s36(2)(a) and (aa) of the Migration Act 1958 (Cth) (‘the Act’). The assessor found that the Applicant did not engage Australia’s non-refoulement obligations.

4. Processes undertaken prior to the ITOA being undertaken, included an entry interview on 28 March 2011, and otherwise as accurately summarised by Counsel for the First Respondent in written submissions, the following:-

   a)the Applicant had been the subject of a negative Protection Obligations Evaluation (‘POE’) dated 18 July 2011. The negative POE was the subject of a negative Independent Protection Assessment (‘IPA’) dated 23 January 2012. A Post Review Protection Claims (‘PRPC’) assessment dated 19 July 2012, was also adverse;

   b)on 17 September 2014, the Department wrote to the Applicant advising that due to legal developments and changes to Departmental policy, the Department would no longer be relying on the PRPC assessment, and would undertake a reassessment of his protection claims as part of a new ITOA. The letter noted that Australia’s interpretation of its international protection obligations was reflected in various provisions of the Act and therefore, although the assessment was not an assessment of a protection visa application, it would have regard to relevant provisions in the Act;

   c)on 24 February 2015, the Department wrote to the Applicant providing him with an opportunity to comment on information relevant to the assessment of his claims;

   d)on 4 March 2015, the Applicant provided a written response to the first natural justice letter;

   e)on 8 April 2015, the Applicant provided a further, more detailed response to the natural justice letter;

   f)on 24 and 29 April 2015, the Applicant attended interviews to give evidence and make submissions in support of his protection claims;

   g)on 20 May 2015, the Applicant provided a submission including a medical report;

   h)on 29 May 2015, the Department wrote to the Applicant providing him with an opportunity to comment on new information relevant to his case. The letter was sent again on 8 July 2015, but returned to sender;

   i)on 6 August 2015, the Department wrote to the Applicant again providing him with a further opportunity to comment on issues and information and enclosing a copy of the second natural justice letter;

   j)on 19 August 2015, the Applicant responded to the further natural justice letter;

   k)the Applicant was notified of the outcome of the ITOA by letter dated 23 September 2015.

The ITOA

1. The assessor was satisfied that the Applicant is a national of Iran. In respect of his identity however, she made the following finding:-

   “I am not satisfied on the balance of probabilities that the claimant’s identity is as stated. In reaching this finding I have considered inconsistency [sic] of the claimant’s life story with his biometrics, identity documents presented, departmental systems and country information. Accordingly, although I accept that the claimant is from Iran, I find that the claimant’s identity is not supported at this time.”

2. The assessor noted that the Applicant claimed to be a 29 year old resident of Tehran; of Shia Muslim religion (though not practising); and Azeri Turk race. The assessor found that in his entry interview on 28 March 2011, the Applicant claimed that he was arrested in 2009 for drinking alcohol and punished with 80 lashes, and also ran into trouble for being out in public with his girlfriend in 2004. He also claimed to have been involved in political demonstrations in 2009.

3. The assessor noted that in his POE, the Applicant had claimed to fear harm because of his participation in demonstrations, and his attempts to obtain asylum in Australia.

4. The assessor found that the Applicant had maintained the same claims when his case was assessed in the IPA. He also claimed to have been involved in a workplace accident in 2004 where he suffered injury to his hand, and to have been forced into an unfavourable settlement by his employer, who had connections to authorities.

5. The assessor found that the Applicant had not raised any new claims in the subsequent PRPC.

6. At the commencement of the ITOA, the Applicant was invited to submit his claims for protection. On 8 April 2015, he made a new submission outlining his fears of persecution, the major claims of which were as follows (as set out in paragraph five of the ITOA):-

   “ (a) he was detained by the Basij on multiple occasions;

   (b) he withdraws his claims of persecution relating to his injury compensation claims;

   (c) authorities obtained photos of his motorcycle and licence plates at the political demonstrations he attended;

   (d) he had known X for eight years. He went missing 20 days after demonstration [sic];

   (e) he will continue to be politically active in the future;

   (f) he believes that authorities ‘might target people who are merely attending’ demonstrations (because of the imputed political links) as well as people with a high political profile;

   (g) he disputes that his punishment for drinking was law of general application;

   (h) he asserts that he will be persecuted as a failed asylum seeker from (a) Western country;

   (i) he departed from Iran in 2011 on a fake passport in the name of Y. He does not have the passport now as it was lost enroute to Australia;

   (j) there have been raids on his family home, with the latest nine months ago. He believes that neighbours may have told the Basij he was in Australia;

   (k) he fears punishment and interrogation that is extreme, disproportionate and unfair.”

7. In his ITOA interviews of 24 and 29 April 2015, the Applicant made further submissions including relevantly (given the ground of judicial review) that:-

   “(a) he believe(d) in God but does not observe any religion. His lack of religious beliefs caused him to oppose the Basij; and

   (b) he experienced problems with the Basij for his clothes (wearing short sleeve clothes) and felt oppressed because he didn’t share their religious or moral beliefs.”

8. Additional claims as to the Applicant’s political activities, friendship with X and the circumstances of X including his arrest and torture were made in submissions of the Applicant of 19 August 2015. Additionally, a quantity of country information about the situation in Iran for people of the Applicant’s claimed profile was provided.

9. The assessor accepted that the Applicant was of Azeri Turk race, and  a non-practising Shia Muslim. The assessor also accepted that the Applicant was detained by the Basij for appearing in public with his girlfriend, and that he was arrested, convicted and lashed for drinking alcohol in 2009.

10. The assessor noted that the Applicant asserted in his ITOA of 24 April 2015 interview that he believes in God but does not currently practise any religion in Australia. He does not attend mosque, pray, fast or participate in any religious celebrations in Australia. The assessor noted that:-

    “the [Applicant] has self-identified as a Shia Muslim in several interactions with the Department, and was found to be a Shia Muslim in his most recent IPA Assessment. This leads me to conclude that the [Applicant] is a non-practising Shia Muslim.”

11. Additionally the assessor made the following findings of fact:-

    “The claimant departed Iran on 31 December 2010 on an Iranian passport in his own name. He has not held a false passport.

    He did not reside in Malaysia for the majority of 2010 as claimed. Rather, he has deliberately misled the Department about his movements and whereabouts between 2009 and 2011.

    He participated in Green Movement demonstrations in the 10 days following the 2009 Presidential elections. He has not engaged in any political activity since this time.

    He did not distribute any political communications materials prior to the 2009 Presidential elections and does not have an adverse political profile as a result of his connection to a person called X.

    He has experienced low level harassment at the hands of the Basij, which has been random, opportunistic and has not resulted in any ongoing adverse consequences.

    His home was not raided by the Basij prior to his first departure from Iran or following his arrival in Australia. His home was not raided by the Basij in December 2010 and he did not subsequently depart Iran for this reason.

    He may be identified as a failed asylum seeker from a Western country by Iranian authorities if returned to Iran.

    He does not fear his former employer for obtaining (for) him a false passport.”

12. The assessor when looking to the Refugees Convention made the following findings:-

    a)the assessor accepted that the two political opinions in relation to which the Applicant claimed to fear persecution, namely in favour of the Green Movement and in opposition to the current regime; and that as implied against the Iranian regime as derived from his profile as a failed asylum seeker from Australia, were the essential and significant reasons that the Applicant feared persecution. The assessor also considered that this political opinion could be represented as membership of a particular social group ‘pro-Green movement protestors’;

    b)the assessor did not however accept that the Applicant’s Azeri Turk race, religion and prior conviction for drinking alcohol were the reasons he feared Convention based harm.

Protection findings

1. The Applicant first advised in his ITOA interview of 24 April 2015, that he does not currently practise any religion and that his lack of religion formed the basis of a claim to fear persecution. There were no specific claims made by the Applicant before this time in respect of persecution, including past persecution, due to a lack of religion. Prior to this interview, several Departmental records indicated that the Applicant self-represented as a Shia Muslim. The assessor did not accept that the Applicant’s religion was the essential and significant reason that he feared persecution for the following reasons as set out in the ITOA Part B paragraph two:-

   “Firstly, the claimant’s fear of the Basij relates to his political activities and/or his opposition to their morals and their perceived or actual oppression of his freedoms.  When describing the latter, the (Applicant) spoke in terms of his inability to wear western clothes, own a dog, drink alcohol, walk out with his girlfriend and/or congregate with other young people without harassment. He also opposes the Basij’s practise of spying on Iranian citizens and/or harassing people for their perceived moral transgressions. These are not religious issues, but rather moral standards set and upheld by the Basij and the state. I further note that the (Applicant) specifically stated that he ‘does not agree with the policies of the regime’; this would speak more of  a political view rather than a religious one.

   Secondly, the (Applicant)has not made any claims that he will be persecuted on account of his lack of religion if returned to Iran, and it is not my role to anticipate this claim. Nor has the (Applicant) indicated that he intends to denounce or otherwise oppose the Shia religion in Iran in a way that might invite future persecution.

   Therefore, on the information before me, I find that whilst the (Applicant’s) lack of religion is a feature of his profile, it is not the essential and significant reason he fears persecution in Iran.”

2. As set out accurately by Counsel for the First Respondent in submissions what followed thereafter was:-

   a)the assessor proceeded to consider the risk of harm to the Applicant for reason of his political opinion and participation in the 2009 demonstrations. The assessor concluded that the Applicant does not face a real chance of harm on these bases, finding that he is of no interest to authorities. In particular, the assessor found that the Applicant was one of a very large number of participants in the protest, and that his participation took part over a short period of time more than five years ago. The assessor also had regard to country information which suggested that a person with the Applicant’s profile would not be targeted by authorities. The assessor also placed particular weight on the evidence that the Applicant had remained in Iran for some eight months after the protests without being harmed by authorities for reason of his activities. The assessor also placed particular weight on the evidence that the Applicant had been able to obtain a new passport in 2010 and depart the country without coming to the adverse attention of authorities. The assessor found that the Applicant has not, on his own evidence, engaged in any further political activities either inside or outside Iran so as to raise his profile;

   b)the assessor further considered the risk of harm to the Applicant as someone who had sought asylum in Australia. The assessor found that the most recent and authoritative country information before it about the risk of harm to returned failed asylum seekers did not support the Applicant’s claims;

   c)the assessor concluded that the Applicant does not have a well founded fear of persecution;

   d)the assessor considered whether the Applicant faces a real risk of significant harm for the purposes of the non-refoulement obligations codified in s36(2)(aa) of the Act. In relation to the Applicant’s political opinion and activities and his status as a failed asylum-seeker, the assessor relied upon her findings that there is no real chance (or real risk) of harm. The assessor considered also the real risk of the Applicant being harmed as a result of the incidents with his girlfriend and being caught drinking, or otherwise being targeted by the Basij;

   e)the assessor was not satisfied that the Applicant faces a real risk of significant harm as a result of these incidents or from the Basij more generally.

Consideration

1. It is clear by reference to paragraph 19 above that the assessor did actively deal with the claim made by the Applicant as to his lack of religion constituting persecution for a Convention reason. It was a claim properly understood and determined by the assessor, contrary to the assertion of the Applicant in his submissions. The assessor, having considered the claim, was not satisfied that it was the essential and significant reason (s.91R(1)(a) now s.5J(4)(a)) for the Applicant’s fear of persecution. The assessor found instead the basis of the Applicant’s fear was not religious issues but rather moral standards set and upheld by the Basij and the State. Such a finding was not a ‘false dichotomy’ between claims based on religion and claims based on moral values as suggested by Counsel for the Applicant. The assessor accepted that the Applicant’s “lack of religion is a feature of his profile” but it was not the essential and significant reason that he feared persecution in Iran based on the “limited material”, as accepted by the Court and submitted by Counsel for the First Respondent, put by the Applicant to the assessor in the interview of 24 April 2015. There was no claim put by the Applicant as to past persecution for reasons of religion. It cannot be said that the assessor failed to consider a clearly articulated claim established on the factual findings.

2. The application is dismissed. Costs will follow.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  25 January 2017