CRU18 v Minister for Home Affairs
[2019] FCCA 2394
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRU18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2394 |
| Catchwords: MIGRATION – Immigration Assessment Authority – temporary protection visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a). |
| Cases cited: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 AXR16 v Minister for Immigration and Border Protection [2019] FCA 42 CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327 |
| Applicant: | CRU18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1432 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 21 February 2019 |
| Date of Last Submission: | 21 February 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr White |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the respondents: | Mr Lucas |
| Solicitors for the respondents: | Mills Oakley Lawyers |
ORDERS
The applicant’s application filed 24 May 2018 as amended on 24 January 2019 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1432 OF 2018
| CRU18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the second respondent, the Immigration Assessment Authority (“the IAA”) dated 8 May 2018. The IAA affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (“the Minister”) to refuse to grant the applicant a temporary protection (subclass 785) visa.
Background
The applicant is a male Shia Kurd from Iran. He arrived by boat in Australia on 14 June 2013 and participated in an irregular maritime arrival and induction interview.[1]
[1] Court book pages 1 to 21.
On 19 July 2016, the applicant was invited to apply for a temporary protection (subclass 785) visa (TPV) or a safe haven enterprise (subclass 790) visa (“SHEV”).[2]
[2] Court book page 22.
On or about 20 February 2017, the applicant applied for a protection visa.[3] In response to questions 89 and 90 of the application form, the applicant provided the following detailed responses:
[3] Court book pages 31 to 70.
a)he was required to attend military service once he turned 18 years of age unless he was enrolled in tertiary education;
b)his father had been among many Kurds in the 1970s who supported the revolution; however, subsequently and following his father’s death, the “authorities have systematically harassed and persecuted us (his remaining family) confiscated our family home and several pieces of our lands and deprived us from tertiary education and right to work”;
c)in 2003 after high school, he applied for and was accepted into university, but was subsequently excluded on the basis that he had not passed the ‘ideology test’;
d)he was then arrested for failing to have presented for military service on time and imprisoned and ordered to undertake an additional period of military service;
e)during this time, he was harassed, beaten, sexually and mentally molested, punished for having disclosed that his supervisor had forced him to have sex with him and with another colleague, and ultimately discharged on mental health grounds;
f)in 2004, he and his brother complained about an attempt by the authorities to forcibly confiscate his family home and were arrested, his brother was framed for drug trafficking and sentenced to life imprisonment, only to be released some five years later after bribes were paid;
g)between 2005 and 2013, the authorities confiscated the last piece of the family’s land and when the applicant, his brother and his mother complained, they were threatened with further imprisonment resulting in the applicant’s mother handing over title to the said land;
h)he was unable to find any work to support himself and his family;
i)in 2005, the applicant moved to Tehran to try and find work but felt that he was being followed and watched so he ultimately returned home where he remained for the following seven years living like a prisoner, hiding in his home and very rarely leaving his home. He said that as a result, he developed severe anxiety and depression and continued to suffer the consequences of the electric shock he had received when he was in the army;
j)he was repeatedly detained and imprisoned prior to every major event such as an election;
k)the applicant confronted a person in his village, who he believed had been spying on him and who he believed worked for the Basij and asked him to leave him alone;
l)in 2013, after another occasion on which he had been taken in for questioning by the Basij, he was leaving the station and saw this person and lost control and started abusing him. He then received notification from the Basij that a complaint had been made against him of insulting this person, Islam and the leader and he was directed to attend a court hearing in 40 days’ time; and
m)he then tried again to obtain a passport and, unlike the previous four times, it was issued and he then left Iran within a few days.
In his application, in response to a question as to what he feared if he returned to Iran the applicant said:
If I return to Iran I will be arrested and imprisoned. I am a Kurd and my family has a long history of fighting against the Islamic regime for our freedom and … rights. If I return and the authorities found out about me, they will arrest me and accuse me for working for western countries or spying on them or whatever they like. The will torture me and at the end they will kill me without mercy (sic).
In response to a question as to whether he had sought help in Iran[4], the applicant said:
I could not seek help because the authorities in Iran were the one who mistreated and tormented me because I was a Kurd and because of my father.[5]
[4] Question 92 of the applicant’s application form.
[5] Court book page 66.
In correspondence dated 20 February 2017, the applicant’s representative relevantly stated:
The applicant Arash Karimi left his country fleeing persecution by Iranian authorities due to his father, who was a Kurdish freedom fighter and also because of his Kurdish ethnicity.
…
If the applicant is to be returned to his country, he will be subject to persecution and most certainly long term jail sentence or even death penalty, due to his ethnicity as Kurd and his family history. The applicant has experienced excessive torture and trauma since he entered the compulsory military service, which has left serious effects on his physical and mental health. Until he succeeded to leave his country, the applicant lived in constant fear and insecurity, deprived of his basic human rights like to work and education.[6]
[6] Court book pages 27 and 29.
The applicant’s representative also made the following submissions in relation to the circumstances in which the applicant’s father died:
Although (sic) applicant’s father didn’t die in battle but his death seemed also suspicious and his family believe that he was killed by injection when he visited hospital for a minor health problem. Due to the applicant’s father involvement and participation in fight against the Iran authority, his family were doomed and the authorities took every opportunity to punish them. … After eight years of struggle and trauma, he was lucky to escape the country alive and has no desire but to live a peaceful life, where he can feel safe to live, work and enjoy his freedom.[7]
[7] Court book page 30.
The applicant attended an interview with the department on 4 May 2017.
On 9 March 2018, the applicant’s application was rejected.[8] The matter was referred to the IAA on 14 March 2018.[9]
[8] Court book pages 115 to 132.
[9] Court book page 137.
IAA’s decision
In affirming the delegate’s decision to refuse the applicant’s application for a protection visa, the IAA made the following relevant findings:
a)it accepted that the applicant had suffered discrimination for reasons of his Kurdish ethnicity[10] but was not satisfied that there was a real chance that the applicant would suffer serious harm solely because of his Kurdish ethnicity now or in the reasonably foreseeable future;[11]
[10] Court book page 165 at paragraph [16].
[11] Court book pages 165 to 166 at paragraphs [17] and [19].
b)it accepted that the applicant might suffer some discrimination when seeking employment, but was not satisfied that there was a real chance that he would suffer significant economic hardship for reasons of persecution on the basis of his ethnicity which would threaten his capacity to subsist;[12]
[12] Court book page 166 at paragraph [18].
c)in coming to this view, the IAA had regard to the applicant’s evidence that he was prevented from studying at university although he had initially been accepted, because he did not pass the ‘ideology’ test;[13]
d)the IAA noted the applicant’s claims regarding his family’s long history of fighting the regime since the Revolution; however, it did not accept the suggestion that his father had been killed by the authorities by lethal injection;[14]
e)the IAA noted that the applicant did not provide any specific examples of his father’s activities as a Kurdish freedom fighter and, other than stating that his family was subject to constant monitoring and harassment over land issues, the applicant did not provide any detail about his father or any other member of his family being involved in Kurdish political activism;[15]
f)the IAA concluded that it was not satisfied that either the applicant or his family had any profile with Iranian authorities as Kurdish political or anti-regime activists in Iran[16] and concluded that it was not satisfied that there was a real chance that the applicant would suffer serious harm as defined, for reasons of his actual or imputed political opinion if he were to return to Iran, now or in the foreseeable future;[17]
g)the IAA also considered the cumulative effect of both the applicant’s actual or imputed political opinion and his Kurdish ethnicity and concluded that it was not satisfied that the applicant would suffer serious harm by reason of these matters cumulatively if he were to return to Iran, now or in the foreseeable future;[18]
h)the IAA also accepted that the applicant suffered physical and sexual abuse during his period in the military, was subsequently discharged on mental health grounds and it was likely that he had been told not to discuss what happened to him under threat of harm. The IAA also accepted that this would have been traumatic for the applicant and that he would have stayed home for some time after his discharge and that he would have been anxious about any further contact with military authorities;[19]
i)the IAA did not accept the applicant was harassed and threatened by people sent by his army supervisor for nine years following his discharge from the armed forces and found that the applicant’s evidence about being closely monitored and threatened was implausible;[20]
j)in addition to considering each of the applicant’s claims individually, the IAA also considered them cumulatively and found that whilst he may experience low-level societal discrimination if the applicant returns to Iran, this would not rise to the level of serious harm;
k)moreover, although the IAA accepted that the applicant might find it difficult to find reliable or well-paid work, it found that this was due to his lack of skills and qualifications, rather than systemic and discriminatory persecution due to his race, nationality, religion, political opinion or membership of a particular social group;[21] and
l)the IAA also considered the complementary protection provisions and stated that it was not satisfied that there was a real risk that the applicant would suffer significant harm because of his Kurdish ethnicity, his agnosticism or failure to practice Islam or for political reasons related to his protest against the appropriation of family land.[22]
[13] Court book pages 164 to 165 at paragraph [15].
[14] Court book page 166 at paragraph [21].
[15] Court book pages 166 to 167 at paragraphs [21] to [23].
[16] Court book page 167 at paragraph [24].
[17] Court book pages 172 to 173 at paragraph [49].
[18] Court book page 173 at paragraph [50].
[19] Court book page 168 at paragraph [31].
[20] Court book page 169 at paragraph [33].
[21] Court book page 175 at paragraph [60].
[22] Court book pages 176 to 177 at paragraphs [69] to [72].
Ground one
The first ground of review is:
The IAA failed to consider an integer of his claim, or constructively failed to exercise its jurisdiction by failing to have regard to substantive and consequential material before it.
Particulars
1.Paragraph [21] of the IAA Decision states that during his protection visa interview the applicant made claims that his father was a Kurdish Freedom Fighter and that the applicant “had never made this claim before”. That is factually incorrect. The claim was advanced in the applicant’s representatives’ letter of 20 February 2017.
2.At paragraph [24], the IAA concluded that having “regard to the applicant’s evidence” it was “not satisfied that either he or his family had any adverse profile with Iranian authorities Kurdish political or anti-regime activists in Iran”.
3.The statement in paragraph [24] that the IAA had considered ‘the applicant’s evidence’ must be read as encompassing the alleged failure by the applicant to raise the question of his father’s involvement in the Kurdish freedom fighters prior to his protection interview.
4.The ultimate conclusion that the IAA was not satisfied that the applicant and his family had any adverse profile is affected by the IAA’s failure to appreciate that the applicant had advanced the claim that his father was a Kurdish freedom fighter on the first occasion on which he was invited to express his claims in detail.
5.By failing to appreciate that the applicant had raised this claim at an early time, the IAA failed to consider an integer of the applicant’s claim and, or in the alternative, constructively failed to exercise its jurisdiction by failing to have regard to substantial and consequential evidence. In doing so, the IAA erred.[23]
[23] Applicant’s amended application filed 24 January 2019.
It is conceded by the Minister quite properly, that the IAA were incorrect in stating that the applicant had not previously claimed that his father was a Kurdish freedom fighter. The Minister says however, that an error of fact does not necessarily result in the IAA’s reasoning being affected by jurisdictional error.
The applicant submitted that the IAA’s error is jurisdictional for two reasons:
a)firstly, the applicant’s father’s history as a Kurdish freedom fighter was a central plant to the applicant’s claim to fear harm for political reasons and therefore a misunderstanding by the IAA of the basis of that claim amounts to a failure to consider that claim; and
b)secondly, it was submitted that the error made by the IAA was material in the sense contemplated by the High Court in Hossain[24]; that is, had the IAA not made the factual error about the timing of the applicant’s claim regarding his father being a freedom fighter, the IAA could have concluded that the applicant did have an imputed political profile as a consequence.
[24] Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34.
For the following reasons, I am not persuaded by the applicant’s submissions in this regard.
The IAA’s findings at paragraph [24] must be read in context of the IAA’s reasons at paragraphs [20] to [23]; in particular:
a)at paragraph [20], the IAA noted the applicant’s claim “to have a long family history of fighting the regime since the revolution” and then summarised the applicant’s evidence in relation to that history, including that “his father initially supported the Revolution in Iran … (but) after the Revolution succeeded a dispute between Kurdish people and the central government started about Kurdish rights.” The applicant went on to give evidence about his father’s death and his belief that he was killed by the authorities;[25]
b)the IAA noted that:
i)it did not consider the applicant’s claims about the father being killed by lethal injection to be plausible,
ii)the applicant provided no details to support his claim that his father was being targeted by the authorities some 30 years after the revolution, and
iii)the applicant did not give any specific examples of his father’s activities as a freedom fighter;[26]
c)it was noted by the IAA that in the applicant’s interview with the delegate, he was asked about his personal involvement in any political protests and other than indicating that the authorities had a ‘file’ on his family due to his father’s history, he was unable to identify any other political activities he was involved in;[27] and
d)the IAA had regard to country information that stated that Kurds in the Ilam areas who are Shia “would normally face less challenges in interacting with the Government than other (Sunni) Kurds”.[28]
[25] Court book page 166 at paragraph [20].
[26] Court book page 166 at paragraph [21].
[27] Court book page 166 at paragraph [22].
[28] Court book page 166 at paragraph [23].
It is clear from a fair reading of the IAA’s reasons that it understood that the applicant’s claim was based, in part, on an imputed political belief as a result of his family history, including his father’s activities. The fact that the IAA incorrectly concluded that the applicant had not previously raised the issue of his father being a freedom fighter does not detract from that understanding.
It is in context of the IAA’s findings at paragraphs [20] to [23] that they went on to make the findings they did in paragraph [24]. The IAA did not rely solely on its incorrect understanding that the applicant had raised the issue of his father being a freedom fighter late, but rather relied on a number of factors, including the lack of particularity about the father’s alleged political activities, the applicant’s lack of any evidence about his own political activism and its conclusions about the lack of plausibility of the applicant’s theories about his father’s death.
It was on the basis of these factors that the IAA concluded that it was not satisfied that either the applicant or his family had an adverse profile with Iranian authorities as Kurdish political or anti-regime activists in Iran. Those conclusions were open on the evidence before the IAA.
Moreover, a fair reading of the tribunal’s reasons does not indicate that the IAA’s comments in paragraph [21] noting incorrectly that the first time that the applicant stated that his father had been a freedom fighter, is indicative of a finding by the IAA that it was a matter of recent invention, which then infected the IAA’s credibility findings generally.
The IAA incorrectly noted that this was a claim made late. It did not go on to say that as a result, it was not credible. The IAA’s comments were only directed to the claim that the applicant’s father was a ‘freedom fighter’. As stated, it is evident from paragraph [20] that the IAA understood that the applicant had claimed that his family, including his father, had a long history of fighting the regime since the Revolution.
The applicant relied upon the decision of Lee J in CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260, in particular the conclusions reached at [34] and [35].[29] In CKC16, it was conceded that the tribunal made two errors of fact not dissimilar to that in this case; namely, that the applicant had not, prior to the hearing, raised a claim about:
a)his father’s alleged official position within the Catholic church; and
b)having shouted a political statement.
[29] The applicant also relied on BKQ16 v Minister for Immigration and Border Protection (2019) FCA 40 at [89]–[90].
However, in CKC16, not only did the tribunal make a factual error insofar as the applicant had previously raised both of these issues, but in its reasons, the tribunal made the following comments in relation to the claim about his father:
…the Tribunal notes the applicant’s evidence regarding his father’s alleged official position does not appear to have been raised by him until after the hearing with the first Tribunal and given the lateness of this claim, and the Tribunal’s general concern about the applicant’s credibility, it does not accept that the applicant’s father was a member of the board of the church or the church administration. The Tribunal finds the applicant has embellished this aspect of his claims in an effort to establish a profile for his family as something more than just ordinary adherents of the Catholic faith.[30]
[30] CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [5].
The tribunal also made the following comments about the applicant’s claims:
The Tribunal notes the applicant made no mention about shouting this political statement until his hearing with the first Tribunal. Given the applicant’s evidence in the hearing was that this statement had a significant impact because he was abusing the regime, the Tribunal finds it implausible that if he had said this, that he would not have raised this either in his statement outlining his claims attached to his protection visa application or during the interview with the delegate.[31]
[31] CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [9].
It was in the context of these comments and findings as to credibility and plausibility that Lee J concluded, after referring to the decision in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562:
… the erroneous findings here, that the appellant had recently invented his evidence about his father’s role, or about the making of the relevant political statement, were not peripheral to assessing the creditworthiness of the appellant. No other fair reading of the reasons seems to me to be available. It is understandable that the Tribunal member would have serious concerns about the appellant’s overall credibility, given the misapprehension held as to the Religious Claims Error and the Political Statement Error. As I noted in SZTFQ at [45]:
To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs …:
… decision making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.[32]
[32] CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [34]–[35].
Lee J rejected the “Minister’s submission that errors in rejecting the claims were not critical to the end result.”[33] Importantly in CKC16, Lee J did not accept that the other reasons relied upon by the tribunal to reject the religious claims were in themselves not supported by a logical or rational process of reasoning. Nor was his Honour satisfied that there was any truly independent basis for the conclusion that the political claim was implausible.[34] Lee J therefore found that the tribunal’s reasons were affected by jurisdictional error.
[33] CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [35].
[34] CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [35].
CKC16 is distinguishable on the facts from the present case. Whilst the IAA incorrectly understood that the applicant had only first raised the issue of his father being a freedom fighter at the protection hearing interview, it is clear from its reasons at [20] that the IAA understood the more general claim that the applicant’s family had a long history of fighting the regime since the Revolution. It is also evident that the IAA understood the applicant to have claimed that his father had initially supported the Revolution until a dispute emerged between the regime and the Kurdish people.
A fair reading of the IAA’s reasons reveals that the applicant was claiming that his family, including his father, had been involved in activities in opposition to the regime for many years. It is clear that the IAA understood that the applicant claimed that his father had lost his life as a result of the ongoing dispute between the Kurdish people and the regime.
In this context, the IAA’s misunderstanding of the applicant’s claim about his father having been a freedom fighter being made late is not material.
Moreover, unlike the decision in CKC16, whilst the IAA incorrectly noted that the freedom fighter claim had not previous been made, the IAA did not go on to make the same findings as in CKC16; namely, that this was a claim of recent invention, an embellishment or that this fundamentally went to his credibility.
Rather, the IAA found:
a)the applicant’s claim that his father had been killed by the regime when he attended the hospital for chronic headaches was implausible;
b)the applicant was unable to give any examples of his father’s alleged anti-regime activities in the 30 years between the Revolution and his death;
c)the applicant did not give any examples of his father’s activities as a Kurdish freedom fighter;
d)the applicant was not able to provide any particular political activism in which he was involved, other than the disputes about the family land; and
e)the applicant did not give any details of his father or other family members’ involvement in Kurdish political activism.
Having regard to this evidence and relevant country information, the IAA was not satisfied that either the applicant or any member of his family had an adverse profile with the Iranian authorities as Kurdish political or anti-regime activists in Iran.
Unlike CKC16, the IAA did not make any specific adverse credibility findings on the basis of its incorrect understanding that the applicant had not previously raised a claim that his father was a Kurdish freedom fighter. It simply weighed this claim together with the other evidence before it. The IAA’s ultimate conclusions were reasonably open to it on the basis of the evidence before it.
The applicant also referred the court to the decision in AXR16 v Minister for Immigration and Border Protection [2019] FCA 42 (“AXR16”) in which Thorley J said:
There are cases in which an adverse credibility finding is supported by alternative findings of fact each independently capable of supporting the adverse finding, or strands of reasoning which are independent of, and untainted by, findings or reasoning affected by error. However, a conclusion that a person has been dishonest on a particular issue might affect, consciously or subconsciously, a decision-maker’s assessment of credibility overall or in relation to other specific issues. Where such a conclusion is erroneous, it may taint the assessment of credibility on those other issues or the overall assessment of credibility.[35]
[35] AXR16 v Minister for Immigration and Border Protection [2019] FCA 42 at [42].
Whilst this is accepted, the IAA did not make a finding of dishonesty in this case. The erroneous finding that the applicant had not previously raised the fact that his father was a freedom fighter was made in the context of the IAA accepting that the applicant had claimed that his family had a long history of fighting the regime which led to the death of many people, including his father.
The facts in this case are therefore distinguishable from those in AXR16.
For each of these reasons, the IAA’s error does not result in their reasons being affected by jurisdictional error.
Consequently, ground one is not made out.
Ground two
The second ground of review is:
The IAA erred because a critical conclusion reached by it was illogical or irrational.
Particulars
1.At paragraph [60] of the Decision, the IAA accepted the applicant's claim that, if returned to Iran, he may have some difficulty finding reliable and well-paid work. The IAA concluded that this "difficulty" arises from reasons related to the applicant's lack of skills and qualifications, rather than systemic and discriminatory persecution for reasons of his race, nationality, religion, political opinion or membership of a particular social group.
2.The IAA's reasoning and conclusion fails to have regard to the applicant's evidence that he was prevented from attending university to obtain the relevant "skills and qualifications" because he had failed the "ideology test". That is, the IAA failed to appreciate that the applicant's difficulty finding reliable and wellpaid work was a consequence of the applicant's exclusion from university on ideological grounds - that is, on the basis of his Kurdish ethnicity or his actual or imputed political opinion.
3.Having accepted that the applicant was excluded from university for reasons that include his Kurdish ethnicity or his actual or imputed political opinion, it was not open to the IAA to then conclude that the harm the applicant could suffer by reason of his inability to find reliable or well-paid work was not a result of systemic persecution.
4.The conclusion in paragraph [60] is illogical or irrational and, or in the alternative, mischaracterises the nature of the applicant’s claim.[36]
[36] Applicant’s amended application filed 24 January 2019.
By this ground, the applicant asserts that there was an illogical process of reasoning involved in the IAA concluding that the applicant’s inability to work was not for a convention reason, in circumstances where it had accepted that the applicant was unable to undertake further education because he had failed the ‘ideology test’.
In support of this submission, the applicant referred to the following excerpt from the IAA’s reasons for decision:
... I accept that he may have some difficulty finding reliable and/or well-paid work, but this is for reasons related to his lack of skills and qualifications, rather than systemic and discriminatory persecution for reasons of his race, nationality, religion, political opinion or membership of a particular social group.[37]
[37] Court book page 175 at paragraph [60].
The applicant argued that this conclusion was illogical or irrational having regard to the applicant’s evidence that the reason for his inability to access education was because he failed the ‘ideology test’ and therefore, his difficulty in finding reliable or well-paid employment was because of his Kurdish ethnicity and/or his actual or imputed political opinion.[38]
[38] Applicant’s written submissions filed 24 January 2019 at paragraph [24].
The applicant referred to his evidence at [15] of the IAA’s decision record and the IAA’s finding that the “applicant has suffered discrimination for reasons of his Kurdish ethnicity”.[39] The applicant submitted that when read together, it is clear that the IAA accepted that the applicant was not permitted to undertake university studies because of his Kurdish ethnicity or his actual or imputed political beliefs. The applicant further argued that there is a causal nexus between his inability to access further education for convention reasons and his present inability to obtain regular and/or well-paying work.
[39] Court book page 165 at paragraph [16].
It was then argued that having made this finding, it was not open to the IAA to conclude that the harm that the applicant would suffer by reason of his inability to find reliable or well-paid work was itself not the result of systemic persecution.[40] The applicant therefore argued that the findings at paragraph [60] were illogical or irrational or alternatively, mischaracterised the applicant’s claim.
[40] Applicant’s written submissions filed 24 January 2019 at paragraph [27].
The Minister conceded:
… IAA had made a positive finding that the applicant had experienced discrimination accessing higher education and reliable employment in the past, and that he would experience some low-level discrimination if he returns to Iran.[41]
[41] Transcript page 16 at lines 10 to 13.
It is evident that when read in the context of paragraphs [16] to [18], the IAA had regard to the discrimination that the applicant suffered including discrimination in accessing education.
In considering whether illogicality or irrationality is made out, regard must be had to the statutory task being undertaken. Section 36(2)(a) of the Migration Act 1958 (Cth) relevantly provides:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee…
Section 5H then defines a refugee as a person who is “outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country…”[42]
[42] Migration Act 1958 (Cth), s. 5H.
Section 5J provides that a person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a) …[43]
[43] Migration Act 1958 (Cth), s. 5J.
The test in section 5J includes a consideration of ‘future harm’. It applies to whether a person has a fear of ‘being persecuted’; that is, in the future, and whether there is a risk of further persecution on one of those grounds in the future if the person were to return.
In this instance, the IAA accepted that the applicant had been discriminated against in the past on the basis of his Kurdish ethnicity in terms of access to education. That arguably impacted upon his capacity to obtain future employment. However, that does not, as is suggested by the applicant, create a causal nexus required to satisfy the definition of a refugee between his Kurdish ethnicity and any future difficulty he might have in finding suitable employment. The residual impact of past discrimination is not sufficient to establish that nexus when looking at future harm.
The IAA concluded that any future difficulties faced by the applicant in obtaining employment would be due to his lack of skills and qualifications rather than systemic discrimination on the basis of his race, nationality, religion, political opinion or membership of a particular social group.
That finding was open on the evidence before the IAA, recognising the future focus of its inquiry. As submitted by the Minister, this inquiry is a factually distinct one from an assessment of the basis of any harm which the applicant may have suffered in the past.
The question facing the IAA was, ‘looking to the future, was there a prospect that the applicant would suffer discrimination in the future for a convention reason?’ It concluded that the answer to this was no. The IAA was satisfied that to the extent that the applicant might experience difficulty in finding reliable or well-paid employment, this was due to his lack of skills and qualifications and not to a convention ground. These findings were reasonably open on the evidence before the IAA. There is no illogicality or irrationality in this reasoning.
For these reasons, ground two is not made out.
Ground three
The third ground of review is:
The IAA erred by failing to perform its statutory function according to law.
Particulars
1.At paragraph [71], the IAA accepted that the applicant might be questioned on his return to Iran but held that this would not constitute "significant harm". At paragraph [72], the IAA stated that it had considered "the treatment the applicant would experience as a whole" and was not satisfied that the applicant was at real risk of significant harm.
2.Despite the conclusion in paragraph [72], the IAA did not consider whether the "low level discrimination" the applicant would suffer constituted "significant harm", taking into account the applicant's "particular vulnerabilities".
3.The IAA failed to have regard to whether the discrimination it found the applicant would face on return to Iran constituted "significant harm" taking into account:
(a)the applicant's history of sexual and physical abuse; and
(b)the applicant's severe depression (about which no findings were made); and
(c)the electric shocks the applicant received during his military service which had damaged his nervous system and caused him memory loss.
4.By failing to have regard to the particular frailties of the applicant when considering whether the low-level discrimination he will face on his return to Iran constituted "serious harm", the IAA failed to exercise the jurisdiction conferred on it in relation to s 36(2A) and failed to perform its statutory function according to law.[44]
[44] Applicant’s amended application filed 24 January 2019.
Ground three relies on an argument that in considering whether the criterion for complementary protection is made out, the IAA failed to consider an integer of the applicant’s claim; namely, “whether the ‘low level discrimination’ the applicant would suffer constituted ‘significant harm’ taking into account the applicant’s ‘particular vulnerabilities”.[45] In making this submission, the applicant relied upon the decision in AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 (“AGA16”).
[45] Applicant’s written submissions filed 24 January 2019 at paragraph [32].
It is submitted that such a claim clearly arose on the materials.[46]
[46] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58].
In AGA16, the appellant argued that the tribunal failed to consider the applicant’s claim for entitlement to a protection visa arising from her membership of a particular social group, constituted by women in Egypt.
Moreover, it was argued that the tribunal failed to consider the following matters which formed part of the appellant’s claim, namely that:
a)if she was required to return to Egypt, it was likely that she would experience further instances of sexual harassment or sexual assault, including unwanted physical contact and the threat of gender-based violence; and
b)because of her history and medical condition, experiencing further instances of sexual harassment or sexual assault would cause serious harm or significant harm to the appellant.
In AGA16, the Federal Court held that the tribunal had failed to consider two critical issues that were relevant to the appellant’s claim to fear harm if returned to Egypt for reason of her membership of a particular social group in Egypt. Consequently, the court concluded that the tribunal had constructively failed to exercise its jurisdiction.[47]
[47] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [42], [57].
It was submitted by the applicant in this case that the IAA similarly failed to have regard to whether the discrimination which it found the applicant would face on return to Iran constituted ‘significant harm’ to the applicant, taking into account:
a)the applicant’s history of sexual and physical abuse;
b)the applicant’s severe depression; and
c)the electric shocks to which the applicant was subjected during his military service.
It was argued that in failing to have regard to the applicant’s particular frailties in considering this issue, the IAA failed to perform its statutory task pursuant to section 36(2A) of the Migration Act 1958 (Cth).
The applicant’s argument gives rise to the following questions:
a)whether a claim by the applicant that any level of discrimination or harassment he would experience on his return would necessarily amount to serious harm, having regard to the applicant’s personal vulnerability fairly arising on the material; and
b)if so, whether that claim was considered by the IAA.
It was submitted on behalf of the Minister that no such claim was made, nor did such a claim fairly arise from the material before the IAA.
In this regard, the IAA accepted that the applicant:
a)suffered abuse whilst he was in the military;
b)was discharged on mental health grounds;
c)was likely told not to discuss what happened and threatened if he did;
d)this would have been traumatic;
e)he stayed at home for some time after his discharge; and
f)he was anxious about further contact with military authorities.[48]
[48] Court book page 168 at paragraph [31].
However, the IAA did not accept that the applicant was harassed and threatened for nine years following his discharge from the army. The IAA found the applicant’s evidence about being monitored was implausible and went so far as to find that the applicant’s statement that he was imprisoned at least ten times prior to major events over that time was a fabrication.
The facts in this case are distinguishable from the facts which gave rise to the decision in AGA16.
In AGA16, Moshinsky J’s findings turned on the particular findings made by the tribunal as follows:
The country information above, discussed with the applicants, indicates that there is some low level discrimination against Coptic Christians as described above but that generally, Copts and other Egyptians live side by side without difficulty. Though the applicants have suffered incidents of significant and serious harm in the past, I note that the applicants though now retired have both been well educated and employed professionally for long periods. … I have also taken into account information in the recent DFAT report on Egypt … as it relates to women. This report notes that sexual harassment is a frequent occurrence across the socio-economic spectrum. It refers to a May 2013 study … that found that 99.3 per cent of women experienced some form of sexual harassment, whilst 91.5 per cent reported experiencing unwanted physical contact: however, I do not consider that such treatment necessarily amounts to either serious or significant harm (emphasis added).[49]
[49] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [21].
The tribunal then went on to accept that the appellant suffered three incidents of a sexual nature in early 2013 but concluded that the appellant did not face a real chance of persecution on account of her membership of a particular social group.[50]
[50] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [21].
The error in AGA16 was ultimately that having left open the question of whether sexual harassment or unwanted physical contact might amount to significant harm in certain circumstances, and having found, on the basis of country information, that a significant number of women in Egypt experienced some form of sexual harassment or unwanted physical contact, the tribunal failed to consider whether such conduct amounted to significant harm in the case of the appellant, having regard to the particular frailties of the applicant.
Moshinsky J stated:
Further the Tribunal did not consider and make a finding as to whether gender-based violence, sexual harassment or unwanted physical contact amounted to ‘serious harm’ or ‘significant harm’ to the appellant. The matters referred to in the second half of [51] do not address whether gender-based violence, sexual harassment or unwanted physical contact would amount to serious or significant harm to the appellant. No reference was made to the appellant’s personal circumstances, including her vulnerabilities, in connection with gender-based violence, sexual harassment and unwanted physical contact. To the extent that a finding was made as to serious or significant harm, it related to societal discrimination, not to gender-based violence, sexual harassment or unwanted physical contact.[51]
[51] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [45].
In this case, a claim that low-level discrimination against the applicant would amount to significant harm was not made by the applicant, nor indeed can it be said to arise from the material before the IAA. The applicant did not claim that in light of the treatment he received whilst undertaking military service, any discrimination he would receive on his return to Iran, irrespective of how low level it was, would amount to significant harm.
Rather, as is evident from the applicant’s application and correspondence from his representatives, he claimed to fear being arrested and imprisoned on his return to Iran because of his ethnicity and/or because of his actual or imputed political opinion.[52]
[52] See court book at pages 29 and 62.
In those circumstances, it cannot be said that the IAA failed to consider and make findings in respect of a ‘substantial, clearly articulated argument relying upon established facts’ such that there has been a constructive failure to exercise jurisdiction.[53]
[53] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]-[25], [95]; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55].
The IAA’s findings at paragraph [72] must be read in the context of the findings made overall. That is, they must be read in the context of the IAA’s conclusions that:
a)the applicant suffered discrimination for reasons of his Kurdish ethnicity;
b)notwithstanding this, it was not satisfied that there was a real chance that he would suffer serious harm solely for reasons of his Kurdish ethnicity if he were to return;
c)the applicant might suffer some discrimination when seeking employment but that he would not be denied the capacity to earn a livelihood;
d)neither the applicant nor his family had any adverse profile with the authorities as Kurdish political or anti-regime activists;
e)neither the applicant nor his family were harassed and threatened by the people sent by his supervisor in the army for nine years following his discharge from the army;
f)the applicant’s evidence about being imprisoned more than 10 times prior to major elections was a fabrication;
g)the applicant was not involved in protesting to the authorities about the acquisition of his family’s land in 2004;
h)the applicant did protest the authorities’ acquisition of his family’s land in 2011 and that he was detained for a day at that time although not charged;
i)the primary reason he departed Iran is because the family no longer owned any land and the applicant was forced to seek poorly paid agricultural and labouring jobs;
j)the applicant was not identified as having any adverse political opinion or profile prior to his departure from Iran in 2013;
k)the applicant did not face a real chance of serious harm on return to Iran for reasons of non-belief in Islam and or failure to practice Islam; and
l)whilst the applicant might be questioned on his return to Iran, he would then be released and therefore there he does not face a real chance of serious harm on the basis of being a failed asylum seeker or because he had lived in a Western country for a lengthy period.
Unlike the facts in AGA16, the applicant did not claim that his experiences in the military in 2004 gave rise to a risk of serious or significant harm. The claim as now framed, does not arise from the material before the IAA. If anything, it arises from the IAA’s findings.
For each of these reasons, ground three is not made out.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 30 August 2019
6
2