CTN15 v Minister for Immigration

[2016] FCCA 3099

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3099

Catchwords:
MIGRATION – International treaties obligation assessment – whether the issue of compulsory acquisition of land as a claim was dealt with by the Assessor only in the context of the applicant’s Convention claims and not in relation to the consideration of complementary protection – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

SZUDH v Minister for Immigration & Anor [2016] FCCA 413

SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

Applicant: CTN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ERNEST ZANATTA IN HIS CAPACITY AS MANAGER, TPV ASSESSMENT VICTORIA

File Number: MLG 2834 of 2015

Judgment of: Judge McNab

Hearing date: 17 October 2016

Date of Last Submission: 17 October 2016

Delivered at: Melbourne

Delivered on: 2 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Taylor of Counsel

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Taah

Solicitors for the Respondents: The Australian Government Solicitor

ORDERS

1. The amended application filed 5 September 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2834 of 2015

CTN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ERNEST ZANATTA IN HIS CAPACITY AS MANAGER, TPV ASSESSMENT VICTORIA

Second Respondent

REASONS FOR JUDGMENT

Nature of Application

1. By an amended application filed 5 September 2016, the applicant seeks judicial review of an International Treaties Obligation Assessment (“ITAO”) concluded on 26 October 2015. The Assessor found that the applicant was not a person to whom Australia owed non-refoulment obligations.

Grounds of Review

1. The amended application sets out one ground of review as follows:

   1. The Independent Treaties Obligations Assessor failed to consider the applicant’s claims according to law.

   Particulars

   The Independent Treaties Obligations Assessor failed to consider whether the compulsory acquisition of the applicant’s land constituted “significant harm” as set out in s36(2)(aa) and defined in s36(2A)(D) & (e), and whether he could obtain protection from that harm from authorities.

2. The applicant submits at [6] of his written submissions, that the issue of compulsory acquisition of land as a claim was dealt with by the Assessor only in the context of the applicant’s Convention claims and not in relation to the consideration of complementary protection and was thereby in error.

Background

1. The applicant is an Iranian citizen of Ahwazi Arab descent. He was born on 4 February 1984 and arrived in Australia on 16 April 2010.

2. The applicant claims that his land in Iran was compulsorily acquired by Iranian authorities because of his ethnicity and as there was oil on land. He had provided to the ITOA Assessor (“the Assessor”) a number of documents to support his claim for protection which included:

   a series of images from ‘Google Maps’ which purported to show the claimant’s family’s land, and the proximity of oil wells to the said land;

   photographs purporting to be of the claimant’s home and village; including oil wells and infrastructure;

   …

   a purportedly “confidential” Iranian government document which was said to demonstrate the Iranian government’s intention to disperse Arabs from Ahwaz.

3. The Assessor had concerns about the credibility of the applicant’s claims about the compulsory acquisition of land. The Assessor stated that the applicant had provided contradictory evidence over time as to whether he had sold land, and as to as to how much land was acquired by the Basij.[1] He found the discrepancies in the applicant’s evidence to be substantial and that they strongly suggested that the applicant had not been truthful in his evidence.

   [1] Court Book 312

4. While the Assessor accepted that the some of the applicant’s land was compulsorily acquired by Iranian authorities to construct an oil well; that that the applicant may have been inadequately compensated and that the claimant may have been assaulted in an isolated incident for challenging the authority of a Basij officer, he considered the fact that the applicant still possessed an estimated one square kilometre of land to be strong evidence that his family did not lose all their land and that this was this was nothing more than low-level land acquisition.[2] Further, the Iranian authorities did not continue to target the applicant or his family for their land on the grounds of their ethnicity.[3]The Assessor found that the applicant had embellished his core claim of low level land acquisition in order to “create a profile” that he does not have.[4]

   [2] Court Book 313

   [3] Ibid

   [4] Ibid

5. The Assessor also considered that in light of his education, training and previous work in Iran, the applicant would not be subjected to sufficiently serious economic hardship to the point that he would be denied the ability to subsist.[5]

   [5] Court Book 329

The applicant’s grounds

1. The respondent submitted that it was not necessary for the Assessor to consider the confiscation of land claim specifically under the complementary protection criteria where the finding of fact was made against the applicant. The respondent referred to the authority of SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 (“SZSHK”) where Robertson, Griffiths and Perry JJ stated at [32]:

   …

   However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

2. The first respondent submits that although the Assessor did not expressly state that the compulsory acquisition of land would not amount to significant harm, based on the decision record when read as a whole, it is clear that the Assessor was well aware of the compulsory acquisition of land when concluding that there was not a real risk the applicant would be subjected to conduct amounting significant harm.[6]

   [6] Respondent’s Outline of Submissions filed 4 October 2016 at [13]

Consideration

1. The applicant submitted that the Assessor dealt with the compulsory acquisition of land only in the context of the applicant’s Convention claims and not in the context of a claim for complementary protection and had thereby failed to consider whether the conduct alleged might constitute significant harm for the purposes of s.36(2)(aa) and 36(2A) of the Migration Act 1958 (Cth)(“the Act”). The applicant referred to length the submissions filed by the applicant’s previous representatives[7] in which submissions were made in relation to the significance of compulsory acquisition of land on the applicant’s Convention and complementary protection claims.

   [7] Commencing at Court Book 190

2. In my view, there was no error in the manner in which the Assessor adopted the findings that it made in relation to the effect of the compulsory acquisition of the applicant’s land when considering the Convention claim and then applying that finding in relation to the consideration of the complementary protection claim.

3. The Assessor gave detailed and lengthy reasons, in which he stated:

   I have considered the claimant’s claims both individually and cumulatively. Based on the country information provided above, I am not satisfied that the level of discrimination claimed meets the threshold of serious harm.

4. In my view, the decision of the full court in SZSHK referred to above is relevant, authoritative and binding. The applicant relies on the decision of this court in SZUDH v Minister for Immigration & Anor [2016] FCCA 413 at [29]-[30]. It does not assist of the applicant. I say that, as central to Nicholls J’s finding in that decision was that the Tribunal failed to address a particular claim made by the applicant which was relevant to the applicant’s Convention claim and which had not been addressed. When the Tribunal considered complementary protection, the relevant statement of reasons is found at [37] – [38] of his Honour’s judgement, where in it he stated:

   37.At [72] (at CB 358) the Tribunal’s analysis was that it relied on an earlier expressed finding that the applicant would not engage in homosexual activities if he were to return to India. The Tribunal then expressed its conclusion that there were no grounds for believing the applicant would face significant harm on return.

   38.As set out above, it was, at least, a part of the applicant’s claim to fear significant harm that he feared such harm from his family and the Sikh community if they were to become aware of his homosexual activities in Australia. On a fair reading, I cannot see that the Tribunal addressed this aspect of the applicant’s claim when it considered complementary protection at [71] (at CB 357) to [72] (at CB 358).

5. In the present case, the applicant has not identified any claim which is particularly relevant to the complementary assessment criteria which was not addressed in the Convention criteria.

6. For these reasons, in my view the Assessor’s decision is not attended by jurisdictional error. For those reasons the amended application be dismissed and orders made that the applicant pay the respondents costs fixed in the sum of $7206.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 2 December 2016