DZAAA v Minister for Immigration & Anor
[2012] FMCA 699
•24 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 699 |
| MIGRATION – Independent Merit Reviewer’s recommendation – whether applicant meets criteria for a protection visa – stateless Faili Kurd – former resident of Iran – whether failure to consider a claim made – whether jurisdictional error. |
| Constitution (Cth), s.75(v) Migration Act 1958 (Cth), ss.5, 36(2), 91R(2)(a), 476(1) |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Li v Minister for Immigration & Citizenship & Anor (2008) 102 ALD 354; [2008] FCA 902 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 MZXIV v Minister for Immigration & Anor (No. 2) [2006] FMCA 1454 Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691 |
| Applicant: | DZAAA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 5 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 June 2011 |
| Date of Last Submission: | 22 June 2011 |
| Delivered at: | Perth |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gibson and Ms A Hanley |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the First Respondent: | Mr G Johnson SC and Ms M Hawkins |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs |
DECLARATIONS AND ORDERS
The Court declares that the second respondent, in his capacity as Independent Merits Reviewer, did not make his recommendation in accordance with the law, and denied the applicant procedural fairness, by reason of his failure to deal with the applicant’s claim alleging a well-founded fear of persecution by reason of the applicant’s imputed Iraqi nationality.
AND THE COURT ORDERS
That the first respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the second respondent’s recommendation of 31 January 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 5 of 2011
| DZAAA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application
The applicant is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth).[1] The applicant seeks judicial review under s.476 of the Migration Act 1958 in respect of a recommendation by an independent merits reviewer[2] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[3]
[1] “Migration Act”.
[2] “IMR Recommendation” (at Court Book (“CB”) 117-130) and “IMR” respectively.
[3] Collectively “the Convention”.
Orders sought
The applicant seeks the following final orders:
1.A declaration that the recommendation of the Independent Merits Reviewer was not made in accordance with law, by reason of the ground/s of this application.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying on the recommendation to the Independent Merits Reviewer.
3.An order remitting the matter to the Independent Merits Reviewer (differently constituted) for determination according to law;
4.Any other orders which the Court thinks fit;
5.Costs.
Jurisdiction
The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[4]
[4] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).
The grounds of the application
There is a single particularised ground of application as follows:
The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend 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 and/or it failed to observe the requirements of procedural fairness.
PARTICULARS
(a)the Second respondent failed to address one of the claimed bases of the Applicant’s fear of persecution and/or to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or a central element of the Applicant’s claims being the claim that the Applicant feared persecution by reason of his status as “non-citizen(s) of Iran” as a Faili Kurd and a former citizen of Iraq and his fear of harm on the basis of his nationality and/or “imputed nationality” and/or identity and/or membership of a particular group so constituted.
In the Applicant’s Contentions of Fact and Law[5] the applicant contends that:
… the decision of the IMR was affected by a discreet (sic) jurisdictional error in the approach which it took to its decision-making task [in that the IMR] exceeded and/or constructively failed to exercise jurisdiction.
and then repeats the particulars set out above.
[5] “Applicant’s Contentions”.
The Minister described the above ground as containing various iterations of a complaint that the IMR failed to consider an integer of the applicant’s claims: essentially, the fear of harm by reason of his status as “a non-citizen of Iran” (variously described), which also embraces a claim of comprising part of a particular social group.
Background
The applicant arrived at Christmas Island in March 2010.[6]
[6] CB 34.
The applicant submitted a “Refugee Status Assessment” request[7] on 21 May 2010. For the purposes of his RSA Request the applicant made a statutory declaration[8] in which he claimed that:
[7] “RSA Request”.
[8] CB 57-61 (“Statutory Declaration”).
a)he is a stateless Faili Kurd, who is a former resident of Iran having been born in Basra, Iraq in 1964;[9]
[9] CB 57 at paras.4 and 5.
b)his parents were former citizens and residents of Iraq until their deportation or forced removal to Iran in or around 1980 by the regime of Saddam Hussein;[10]
[10] CB 57 at para.6.
c)he fears that he cannot live in Iraq because Iraq does not accept Faili Kurds and he has no paperwork indicating that he or his Father were born in Iraq, and there is a lot of fighting between Sunni and Shia Muslims in Iraq;[11]
[11] CB 58 at para.11.
d)in Iran he is very lowly paid, lives in appalling accommodation, and has no real rights to education or proper or legal employment or access to medical or health services;[12]
[12] CB 58 at paras.13-14, CB 59 at paras.19-21, CB 60 at paras.25-26 and CB 61 at para.35.
e)he is of the Shia Muslim faith and since 1980 has lived in and around Hawand, in Ilam in Iran where he has worked as a shepherd for many years;[13]
[13] CB 57 at paras.7-8 and CB 58 at paras.13-14.
f)in Iran he feared harm from the Basij[14] and other government authorities because:
i)of his Faili Kurdish ethnicity, and in particular he fears that the Basij will harm and mistreat him as a non-citizen or a stateless Faili Kurd, as the Basij believe that the Faili Kurds do not belong in Iran;[15] and
ii)as a returnee who had departed Iran illegally, he would be classed as a “spy” and that he would be killed;[16]
g)he was bashed by the Basij and said that:
In 1985 or 1986 I was walking with my friend who had Iranian citizenship to a religious place called Iman Zada Abass when we were stopped by the Basij. The Basij checked for identification cards. I was arrested with about three or four other people. I was taken to a building quite far away from where I was picked up. There was a lot of Basij in the building. I was taken to a manager there. This man asked for identity documents. I told him I was Kurdish Faili and that I was deported from Iraq. The man accused me of being a spy and said that I should go back to Iraq. I told him my grandfather was an Iranian that went to Iraq for work. This did not matter to this man. I was taken outside and beaten by about two or three Basij people. They kicked, slapped and punched me about the head and body. I was also hit with a baton across my legs. This was close to the boundary fence where the public walking passed [sic] could see me. They put a feeding sack around my neck like they do for donkeys as well as a rail or collar that go around the necks of donkeys so they can humiliate me.[17]
The applicant was later released, when his Father was told about what was happening by the applicant’s friend (who had been released because of his Iranian citizenship), but not before the Father had been beaten by the Basij and paid a bribe.[18]
[14] The Basij has been described as “a paramilitary voluntary force formally connected with the IRGC [Islamic Revolutionary Guard Corps]”: CB 219.
[15] CB 60 at para.31.
[16] CB 23 and 60.
[17] CB 58-59.
[18] CB 59 at paras.17 and 18.
RSA decision
On 8 June 2010 the RSA officer found that Australia did not owe the applicant protection obligations.[19]
[19] CB 69-74 (“RSA Decision”).
IMR Recommendation
The applicant applied for review of the RSA Decision by the IMR. An interview was conducted with the applicant by the IMR on 24 October 2010.
On 31 January 2011 the IMR recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[20]
Applicant’s submissions
[20] CB 129 at para.30.
Decision sought to be reviewed
The applicant made extensive submissions about the nature of the application for review of the IMR Recommendation and the jurisdiction of this Court to undertake judicial review of the IMR Recommendation. It is unnecessary to repeat those submissions. It suffices to observe, as the Court has done above,[21] that it has jurisdiction to determine the application. In any event, jurisdiction was not disputed by the Minister.
[21] See para.3 above.
Failure to address a claimed basis of fear of persecution
The applicant submitted that:
a)there is jurisdictional error in the IMR Recommendation which arises from a failure to consider an articulated claim made by the applicant;
b)one of the core claims of the applicant was his fear of persecution on the basis of his nationality due to his status as non-citizen of Iran, as a Faili Kurd and a former citizen of Iraq, that is, a well-founded fear of persecution in Iran based on both ethnicity and imputed Iraqui nationality;[22]
[22] See, for example, CB 59, 83, 85, 92, 93, 100, 101, 112-113 and 115.
c)the ethnicity and nationality claim was narrowly set out under “Claims and Evidence” in the IMR Recommendation,[23] but there was no express or implicit consideration,[24] let alone active intellectual consideration, of the imputed nationality claim in the IMR Recommendation;
[23] CB 126 at para.21.
[24] MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 at paras.18-19 per Finkelstein J (“MZXLB”).
d)country information supporting the ethnicity and nationality claim was set out in the IMR Recommendation as follows:
Failii Kurds are not simply persecuted due to their identity as Kurds. They are also persecuted due to their imputed identities as Iraqis. Given the continuing hostile relationship between Iraq and Iran and bitter memories on both sides of the Iran-Iraq War of 1980-1990 Faili Kurds regarded as “Iraqi” by the local Iranian population are subject to significant risks of extra-judicial violence, discrimination and occasionally arrest.
Confirming these attitudes in relation to Faili Kurds, the UNHCR have reported that:
Summing up their dilemma, Jahron Camp Manager, Gholamneza Ghasbarian said, “when they go back to Iraq, people say they’re Iranians. But here, people say they’re Iraqis and should go back. In Iraq, they face many problems – first there’s the insecurity. Also, they’ve been in exile for so long, they have no contacts, no jobs and no homes to go back to.”[25]
[25] CB 127-128 at para.21.
e)the IMR Recommendation confined the applicant’s claims to risk of harm:
i)from the Basij and Iranian government authorities because of his Faili Kurdish ethnicity; and
ii)as a returnee from a Western country who departed illegally;[26]
f)the IMR Recommendation concluded that there was not a real chance of harm to the claimant for a Convention-related reason;[27]
g)the IMR Recommendation ignored or overlooked the “imputed nationality” claim with which it was required to deal, or misunderstood the Convention test. It is no answer to rely on the information in the March 2010 Department of Foreign Affairs and Trade[28] report[29] if the separate claim of persecution based on imputed nationality is neither expressly nor implicitly considered, nor acknowledged in the “Findings and Reasons” as having been made;
h)this is not a case which can be characterised as one where the factual findings made relating to an asserted basis for protection necessarily which inevitably deny any other basis for protection,[30] or that it was unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality, or because there was a factual premise upon which the contention rests which was rejected;
i)the authorities demonstrate the requirement for dealing with the case that is put, that is to delineate the nature and content of the claims that are made and the basis and source of the fear of harm alleged, and then to consider them and make findings;[31]
j)the imputed nationality claim was clearly articulated and involved facts that were sufficiently clear so as to require the IMR to consider whether the applicant faced a well-founded fear of persecution on the basis and for the reason alleged;[32] and
k)in MZXIV v Minister for Immigration & Anor (No. 2)[33] the Court held that the wholesale reproduction of submissions and evidence is not in itself an indication that material has been “considered” in the required sense.[34] There was nothing in the IMR Recommendation “Findings and Reasons” which indicated that the IMR had in any way embarked on the process of actually fixing his mind upon the applicant’s claim that he feared persecution because of his imputed Iraqi nationality.
[26] CB 121 at para.9 and CB 128 at para.24.
[27] CB 129 at paras.28-29.
[28] “DFAT”.
[29] “March 2010 DFAT Report”.
[30] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 354 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.95 per McHugh, Gummow and Hayne JJ.
[31] In addition to MZXLB, the applicant relied upon a further eleven High Court and Federal Court authorities. It is only necessary to note Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 640-641 per French, Sackville and Hely JJ; [2003] FCAFC 184 at para.45 French, Sackville and Hely JJ (“WAEE”); Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”); and Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 per Allsop J; [2001] FCA 1802 at paras.40-42 per Allsop J (“Htun”). Each of the cases cited involved a failure on the part of a Tribunal to consider a distinct claim or integer of a claim that was raised. Each of the cases involved the setting aside of a Tribunal decision on the ground of jurisdictional error.
[32] See SZHWI v Minister for Immigration & Multicultural Affairs [2007] FCA 900 at para.15 per Allsop J.
[33] [2006] FMCA 1454 (“MZXIV (No. 2)”).
[34] MZXIV (No. 2) at paras.42-44 per Riley FM, citing Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 at 462 per Black CJ and 495 per Kiefel J.
Whether the error is reviewable
The applicant submits that:
a)the authorities stand for the proposition that a failure to consider the claims, or a claim, of an applicant is jurisdictional;[35]
b)in Li v Minister for Immigration & Citizenship & Anor[36] the Federal Court said:
In the case of an application for a protection visa, therefore, the claims which the applicant actually makes constitute the definitional elements of the application. As is clear from cases such as Htun and Dranichnikov, the courts have regarded such claims as more than merely pieces of evidence in support of a contention that there exists a fear of one of the kinds referred to in the Convention. They have been regarded, it seems, as definitional with respect to the very question which comes before the relevant decision-maker.[37]
[35] The applicant cited fifteen High Court and Federal Court authorities for this proposition. It is only necessary to note Dranichnikov; WAEE ALD at 640-641 per French, Sackville and Hely JJ; FCAFC at para.45 per French, Sackville and Hely JJ; and Htun. See also Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 to which the applicant also referred.
[36] (2008) 102 ALD 354; [2008] FCA 902 (“Li”).
[37] Li ALD at 362 per Jessup J; FCA at para.22 per Jessup J.
Minister’s submissions
The Minister submits that the IMR:
a)appears to have accepted the account of the incidents of harm at the hands of the Basij in 1986 and 1987. These are described as “unfortunate experiences…as a result of chance encounters both of which occurred well over 20 years ago”;[38]
b)rejected the applicant’s claim to fear persecution from the Basij or the Iranian authorities by reason of being a returnee to Iran,[39] and the claim to fear harm on the basis of being treated as a “spy” because he left Iran using false documents, as being merely speculative,[40]and found that any adverse attention would arise from a breach of a law of general application, and not for a Convention reason;[41]
c)accepted that some, and possibly most, Faili Kurds experience discrimination and hardship in many forms in Iran, but accepted country information in the March 2010 DFAT Report that Faili Kurds are “not targeted because of their ethnicity and that racially motivated violence against any group in Iran is rare”;[42] and
d)concluded that the applicant did not meet the criterion for a protection visa as set out in s.36(2) of the Migration Act.[43]
[38] CB 128-129 at para.26.
[39] CB 129 at para.27.
[40] CB 129 at para.27.
[41] CB 129 at para.27.
[42] CB 129 at para.28.
[43] CB 129 at para.30.
The Minister also submits that:
a)the applicant’s complaint is without merit;
b)it is well established that a failure to consider an integer of an applicant’s claim can amount to a jurisdictional error.[44] Htun distinguishes between a failure to consider a claim, sounding in jurisdictional error, and failing to attend to evidence, even probative evidence, and by such route committing a factual error;[45]
c)this is not a case involving a misunderstanding or misconstruction of the claim. The applicant’s non-citizenship of Iran was advanced, intertwined with and, in substance, subsumed in and part of his claim to fear harm as a Faili Kurd. The IMR was alert to that claim, and dealt with it. The applicant did not clearly articulate any fear of persecution as a non-citizen of Iran that was independent of his being a stateless Faili Kurd;
d)the IMR set out how the applicant put his case.[46] That included reference to the applicant being a non-citizen of Iran, which is evidence that the IMR appreciated that fact and that claim. The fact that the IMR appreciated that the applicant is a non-citizen of Iran is also supported by the IMR’s description of Iran, only as being “the applicant’s place of habitual residence since 1980”,[47] and by the IMR’s apparent acceptance that the applicant is “stateless”;[48]
e)a fair overall reading shows how being a non-citizen of Iran was put forward as, in substance, part of the claim to fear persecution as a Faili Kurd;[49]
f)the IMR’s dismissal of the applicant’s claims to have a well-founded fear of persecution upon the basis of his being a stateless Faili Kurd should accordingly be seen as embracing any claim that he faced persecution of a non-citizen of Iran;[50]
g)the application of principles set out in WAEE should lead to the rejection of the applicant’s argument; [51]
h)the IMR’s finding about “serious harm”[52] needs to be read in the context of the IMR Recommendation as a whole. This includes the IMR’s acknowledgement that not only must the harm be of “such a nature and degree as to amount to persecution for the purposes of the law and there must be a real and not remote chance of it occurring”,[53] as well as the IMR’s finding that there is “not a real chance of harm to the claimant for a Convention-related reason”.[54] The IMR found that the accepted past harm did “not amount to serious harm for the purposes of the law”.[55] To the extent that this is expressed as being because “it has been more than 20 years since the claimant suffered any physical harm and he has been able to work, save money and raise a family”, the IMR was focusing, as he was entitled, upon the absence of a real chance of the harm recurring. If there was no real chance of the harm recurring, the seriousness (or not) of the past harm would not matter. That is, it could have no effect upon the outcome. As was pointed out in VBAO v Minister for Immigration & Multicultural & Indigenous Affairs & Anor[56] with respect to s.91R(2)(a) of the Migration Act “[t]he serious harm in question, by hypothesis, is future harm”;[57] and
i)in this respect also, there was no jurisdictional error. Alternatively, if there was jurisdictional error in failing to find whether the accepted past harm was serious, the IMR Recommendation has not been affected, and relief, which is discretionary, should be refused because the IMR was, at least impliedly, satisfied that there was no real chance of recurrence such as to give rise to the requisite well-founded fear of persecution.
Consideration
[44] Htun.
[45] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J; see also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20-21 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at para.63 per Black CJ, French and Selway JJ.
[46] CB 121 at para.10.
[47] CB 128 at para.24.
[48] Particularly at CB 129 at para.27.
[49] CB 121 at para.10.
[50] CB 128-129 at paras.26-29.
[51] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
[52] CB 129 at para.28.
[53] CB 128 at para.23.
[54] CB 129 at para.30.
[55] CB 129 at para.28.
[56] (2006) 233 CLR 1; [2006] HCA 60 (“VBAO”).
[57] VBAO CLR at 5 per Gleeson CJ and Kirby J; HCA at para.2 per Gleeson CJ and Kirby J; see also CLR at 17 per Callinan and Heydon JJ; HCA at para.50 per Callinan and Heydon JJ, as to past serious harm being insufficient absent some real chance of recurrence.
The claim
Shorn of its various iterations, the applicant alleges that the IMR failed to consider the applicant’s claim that he had a well-founded fear of persecution if returned to Iran by reason of his imputed Iraqi nationality. The applicant’s imputed Iraqi nationality arose by reason of his birth in Iraq, his residence in Iraq until 1980, and his being a Faili Kurd who was a non-citizen of Iran.
The law
The applicable law is not in dispute in this case, but rather its application to the facts of the matter.
In Dranichnikov the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;[58]
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[59] and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[60]
[58] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[59] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ. See also Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider.
[60] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
The High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.[61]
[61] Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[62]
[62] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.[63]
[63] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker.”[64]
[64] Li ALD at 362 per Jessup J; FCA at para.22 per Jessup J.
What is required of the decision-maker was described in practical terms by this Court in MZXIV (No. 2) where the Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”[65] and of “a specific consideration of the claim”.[66]
[65] MZXIV (No. 2) at para.44 per Riley FM.
[66] MZXIV (No. 2) at para.45 per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in WAEE, namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 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.[67]
[67] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
Was the claim of persecution on the basis of imputed Iraqi nationality claim made?
In the Statutory Declaration the applicant said that:
a)he was born in Iraq, had lived there until 1980, and was a stateless Faili Kurd who had lived in Iran since 1980;[68]
b)when he encountered the Basij, and was beaten by them in 1985 or 1986, he was told he “should go back to Iraq”;[69]
c)he feared being harassed by the Basij as a non-citizen,[70] and that the Basij believed that stateless or non-citizen Faili Kurds did not belong in Iran;[71] and
d)he could not show that he belonged in Iran.[72]
[68] CB 57 at paras.4-7.
[69] CB 58-59 at para.16.
[70] CB 60 at paras.27 and 31.
[71] CB 60 at para.31.
[72] CB 61 at para.36.
In a submission to the IMR by the applicant dated 24 September 2010,[73] claims were made that the applicant:
a)had a well-founded fear of persecution in Iran because:
[of] his ethnicity (Faili Kurd), his nationality (born in Iraq) and his membership of a particular group … stateless persons who …have no access to the basic rights afforded to citizens[74]
Insofar as the phrase “non-citizens of Iran”, in the case of the Faili Kurds, means former citizens of Iraq, the Faili Kurds are subject to discrimination on the basis of their nationality if not for their ethnicity. (Indeed our client has claimed that the Basij ordered him to “go back to Iraq”). Therefore, they are subject to state-imposed discrimination for a Convention reason, at least to some degree.[75]
b)had:
… suffered continual persecution amounting to serious harm in both Iraq and Iran on the basis of his ethnicity, nationality and membership of a particular social group; being a stateless Faili Kurd expelled from Iraq with few or no demonstrable rights in Iran. He has experienced harassment, physical abuse and on occasion detention and abuse, combined with the systematic discrimination caused by statelessness.[76]
[73] “ 24 September 2010 Submission”.
[74] CB 83 (bold emphasis added).
[75] CB 85 (emphasis in original).
[76] CB 92 (emphasis added).
In an undated submission made to the IMR by the applicant[77] after the 24 September 2010 Submission, claims were made that:
a)persecution of Faili Kurds:
… within Iran can only be considered within the context of persecution of individuals of Kurdish ethnicity more broadly. Although we continue to submit that Faili Kurds are also persecuted on the basis of their nationality (as imputed Iraqis) and their statelessness, persecution on account of these aspects of their identity is exacerbated by their Kurdish identity;[78] and
b)the Basij were playing an increasingly central role in eliminating threats to the Iranian regime, and increasingly targeting Faili Kurds as a group with ambitions for political autonomy, but for whom:
The perceived affiliation of Iranian Faili Kurds with their Iraqi counterparts and the Iraqi state more generally place Faili Kurds within Iran at an increased risk of being targeted by the Basij.[79]
[77] “Undated Submission”.
[78] CB 92 (emphasis added).
[79] CB 101.
In a submission to the IMR by the applicant dated 13 January 2011,[80] claims were made:
a)that Faili Kurds “are persecuted on the basis of their nationality (as imputed Iraqis) and their statelessness, these aspects of their identity are exacerbated by their ethnicity as Kurds”;[81]
b)on the basis of supporting country information,[82] that:
Faili Kurds are not simply persecuted due to their identity as Kurds. They are also persecuted due to their imputed identities as Iraqis. Given the continuing hostile relationship between Iraq and Iran, and bitter memories on both sides of the Iran-Iraq War of 1980-1988, Faili Kurds, regarded as “Iraqi” by the local Iranian population, are subject to significant risks of extrajudicial violence, discrimination, and occasionally arrest;[83] and
c)that the applicant, if returned to Iran, “will suffer serious harm or persecution because of his status as a Stateless Faili Kurd.”[84]
[80] “13 January 2011 Submission”.
[81] CB 112-113
[82] Being that set out at para.13(d) above.
[83] CB 115.
[84] CB 115.
The 24 September 2010 Submission, the Undated Submission and the 13 January 2011 Submission[85] make it clear that the applicant was making three distinct claims as a basis for a well-founded fear of persecution in Iran. Those distinct bases were:
a)the applicant’s ethnicity as a Faili Kurd;
b)the applicant’s nationality, or imputed nationality, because of his birth and former residence in Iraq; and
c)the applicant’s membership of a particular group of stateless persons.
[85] “Three Submissions”.
In some respects the three claims ran side by side, but it is clear on a reading of the Three Submissions, as referred to and set out above, that nationality was put as a distinct and separate claim, as were ethnicity and membership of a particular social group, as bases for a well-founded fear of persecution. There were elements of these three distinct claims that overlapped, but that, of itself, is not unusual in claims of this type. It cannot, in the circumstances, be said that the claim of persecution on the basis of imputed Iraqi nationality was simply a sub-set of, or subsumed by, the claim of persecution on the basis of Faili Kurd ethnicity. In the circumstances, the Court considers that there was a separate express claim of persecution on the basis of imputed Iraqi nationality made by the applicant.
Was the claim of persecution on the basis of imputed Iraqi nationality identified and considered by the IMR?
The IMR Recommendation
Examining whether the claim of persecution on the basis of imputed Iraqi nationality was identified and considered by the IMR requires the Court to be cognisant that it ought not cross the line between judicial review and merits review.[86]
[86] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
The IMR Recommendation begins by indicating that it “will consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information”.[87] The relevant article of the Convention defining a refugee is set out, including the reference to a well-founded fear of persecution for reasons of “race” and “nationality”.[88] The IMR Recommendation notes that the relevant IMR and Departmental files relating to the applicant, including the applicant’s claims to engage Australia’s protection obligations under the Convention, submissions from the applicant and the applicant’s agent, and the contents of interviews on Christmas Island, are before the IMR.[89] The IMR Recommendation summarises the applicant’s claims in relation to persecution if he was to return to Iran, or to Iraq where he was born, as being due to:
· His Faili Kurd race/ethnicity; and/or
· His membership of a particular social group of “returnees”.[90]
[87] CB 120 at para.2.
[88] CB 120 at para.4.
[89] CB 120 at para.8.
[90] CB 121 at para.9.
The applicant’s Statutory Declaration is then set out in full in relation to its substantive parts, including the matters referred to above.[91]
[91] See para.8 above; CB121-123.
The IMR then sets out the course of his interview with the applicant on 24 October 2010. The incident of abuse set out above,[92] was clarified by stating that the Basij had screamed at the applicant that “You (Faili Kurd), all spy for the Iraqi government”.[93] There was also an alleged further incident of mistreatment at the hands of the Basij in 1987 put before the IMR.[94]
[92] See para.8(g) above.
[93] CB 123 at para.11.
[94] CB 123 at para.11.
The applicant was asked what happened when he and his family first went to Iran, but there is no mention of Iraq as such, other than the reference to the applicant spying for the Iraqi government set out above.[95] Indeed, there is no reference to “Iraq” or “imputed Iraqi nationality” at all in the IMR Recommendation’s recounting of the IMR’s interview with the applicant.
[95] See para.34 above.
The IMR Recommendation then sets out relevant country information, including the potentially adverse country information which it had referred to the applicant for comment,[96] and the applicant’s response to that potentially adverse country information, including country information concerning the applicant’s claims with respect to imputed Iraqi nationality as set out in the 13 January 2011 Submission.[97]
[96] CB 125 at para.20.
[97] CB 125-128 at para.21.
The IMR Recommendation notes that part of the 13 January 2011 Submission which refers to The Foreign and Commonwealth Office’s Annual Report of 2009 for Iran published in March 2010 (that is, at or about the same time as the March 2010 DFAT Report) and which stated that:
Members of Iran’s ethnic minority groups from …, Kurdistan, … face increasing intimidation. Large numbers have been detained on charges of endangering national security. The days after the election result saw a series of mass execution in Iran’s border regions, viewed by many as a warning sign to the local populations.[98]
[98] CB 126 at para.21.
Apart from the March 2010 DFAT Report none of the country information cited in the IMR Recommendation suggests that the treatment of Faili Kurds after the Iranian election is anything other than the ongoing or increased suppression and persecution of an ethnic minority.
The IMR Recommendation moves finally to its “Findings and Reasons”. No adverse finding in relation to the applicant is made with respect to credibility, although the IMR notes that inconsistencies may result in certain claims not being accepted as being true.[99]
[99] CB 128 at para.22.
The IMR then moves to an “Assessment of claims”. Having noted that there must be a real chance of alleged harm from persecution,[100] the IMR Recommendation then assesses the applicant’s claims as follows:
24.It is submitted on behalf of the claimant that he is at risk of harm from the Basij and other Iranian government authorities. He is said to be of adverse interest to them because of his Faili Kurdish ethnicity and because he would be a returnee from a Western country who departed illegally and because he has no identification papers. He is said to have suffered and will continue to suffer discrimination and mistreatment. He is also said to be at risk of harm in Iraq, his country of birth. I have not considered his claims against Iraq, as he does not have Iraqi citizenship (although he may have the right to apply for Iraqi citizenship), he has not lived there since he was 16 years old and Iran has been his place of habitual residence since 1980.
25.It is beyond doubt that the government in Iran is authoritarian and repressive with an appalling record of human rights breaches (see US DOS Report). It is apparent that many minority groups in Iran experience discrimination and that political activists are dealt with severely.
26.In the claimant’s case there are no particular and individual factors that distinguish him from the general Kurdish population and that would support his claim for protection. He has lived in Iran for almost 30 years and has been able to marry and raise a family. He has worked for all of that time and was able to save a significant sum of money to fund his departure from Iran. He claims to have not been registered as a refugee and not had a Green or White card because his father did not want to expose him to possible military service. I find that claim implausible. On his own evidence he was at least 16 years of age when he was officially released from the Jahrom Camp in 1980 and 22 and 23 years old respectively when he was first spoken to by the Iranian authorities in 1986 and when he attended the Ministry of Interior in 1987. At that time and indeed, throughout the period 1980-1990 Iran was at war with Iraq. I do not accept that he was able to avoid military service simply by not registering for a card. I do not accept that he would be released from Jahrom without official registration. In any event, it is clear that he was not at any time sought out for adverse attention by the authorities. He had two unfortunate experiences with the authorities involving physical abuse as a result of chance encounters both of which occurred well over 20 years ago. He is not a political activist and has no public profile.
27.As to him being at risk of harm as a ‘returnee’, there is no credible evidence to support the claim that he will be persecuted for a Convention reason because he left the country illegally and is stateless. Being stateless is not of itself a sufficient basis for protection under the law. It may be that the claimant would come to the adverse attention of the authorities for departing Iran illegally but that would be pursuant to the application of the general law and not necessarily for a Convention reason. The claim that he would be suspected of being a Western spy or collaborator is mere speculation and there is no objective evidence to support that claim.
28.I accept that some, possible most, Faili Kurds (and other minority groups) experience discrimination and hardship in many forms in Iran. However, I accept the Department of Foreign Affairs and Trade advice that they are not targeted because of their ethnicity and that racially motivated violence against any group in Iran is rare. This is not inconsistent with the other country information quoted earlier which details discrimination, harassment and also the harsh treatment of activists. In this instance, it has been more than 20 years since the claimant suffered any physical harm and he has been able to work, save money and raise a family. I find that his circumstances do not amount to serious harm for the purposes of the law.
29.I have carefully considered the claims, evidence and independent country information. In all the circumstances, I find that there is not a real chance of harm to the claimant for a Convention related reason.[101]
[100] CB 128 at para.23.
[101] CB 128-129 at paras.24-29.
Consequently, the IMR recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention, as he did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act.[102]
[102] CB 129 at para.30.
The IMR Recommendation and the potentially adverse country information
The 13 January 2011 Submission was made in response to information provided by the IMR to the applicant for comment. That information is described in the IMR Recommendation as follows:
The potentially adverse country information that I provided to the claimant for comment is contained in a report, No. 10/13 dated March 2010, by the Australian Department of Foreign Affairs and Trade (CX 241170). It states that Embassy staff in Iran are not aware of Faili Kurds being targeted because of their ethnicity, that Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans, but racially-motivated violence against any group in Iran is rare, that the treatment of Faili Kurds after the Iranian election has not changed and that those that are politically active with the opposition risk targeting, but this is not because of their ethnicity.[103]
[103] CB 125 at para.20.
The March 2010 DFAT Report is in the materials provided to the Court. The potentially adverse country information that the IMR referred to the applicant for comment arises in the following way in the March 2010 DFAT Report. After setting out background issues, and some matters related to citizenship, the March 2010 DFAT Report moves on to the issue of “Treatment” and posits three questions, two of which are as follows:
Q.4.Is there any evidence of, or knowledge at post of, Faili Kurds being targeted by local authorities or non-state agents?
Q.5.Is post aware if following the post-election unrest stateless Faili Kurds who are unable to present identity documents face increased harassment on the streets by the security forces?[104]
[104] CB 153.
The responses to the above questions are as follows:
R.4.By Local Authorities and Non-state Agents. Post is not aware of Faili Kurds being targeted because of their ethnicity, but those without documents risk deportation. Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans. Racially-motivated violence against any group in Iran is rare.
R.5.Impact of Post-election Unrest. The treatment of Faili Kurds after the Iranian election has not changed. Those that are politically active with the opposition risk targeting, but this is not because of their ethnicity. Nonetheless, those detected without proper documents risk deportation.[105]
[105] CB 155.
The questions and responses are framed in terms of ethnicity, not in terms of nationality. The reference to Iraqi refugees being treated well in comparison with Afghans is uninformative, as there is no information as to how Afghans are treated in Iran. Effectively, it says nothing qualitative about how either Iraqis or Afghans are treated. Notably, there was no question put about Faili Kurds, and their treatment, in the context of any imputed Iraqi nationality.
The potentially adverse country information was, consistent with its content, not considered in the IMR Recommendation in the context of a claim with respect to imputed Iraqi nationality. Rather, the advice, scant as it is, is used to justify a conclusion that Faili Kurds, such as the applicant, are not targeted because of their ethnicity, and that racially motivated violence against any group in Iran is rare. This simply does not address the applicant’s express claim of persecution on the basis of imputed Iraqi nationality. It is not a consideration of the applicant’s imputed Iraqiness.
The assessment of claims
An examination of the “Assessment of claims” made in the “Findings and Reasons” of the IMR Recommendation shows that:
a)only two claims were specifically identified:
i)a claim based on the applicant’s Faili Kurdish ethnicity; and
ii)a claim based on membership of a particular social group, being a returnee from a western country who had departed illegally and had no identification papers;[106]
b)in addressing the two claims it identified, the IMR Recommendation moves from a consideration of the Faili Kurdish claim directly to the “returnee” member of a social group claim;[107] and
c)the IMR Recommendation does not deal expressly with anything other than the above claims based on ethnicity (or race) and membership of a particular social group.
[106] CB 128 at para.24.
[107] CB 128-129 at paras.26-27.
For reasons set out above,[108] the Faili Kurdish ethnicity claim cannot be considered to have subsumed the express imputed Iraqi nationality claim made by the applicant. Therefore, the express consideration of the Faili Kurdish ethnicity claim does not amount to an express consideration of the applicant’s imputed Iraqi nationality claim. The question nevertheless arises as to whether it can be implied from the IMR Recommendation, and particularly from the “Assessment of claims” that the IMR did consider the applicant’s imputed Iraqi nationality claim.
[108] See paras.30-31 above.
The “Assessment of claims” commences with a paragraph in which the IMR indicates that the applicant’s claims have not been considered against Iraq as the applicant does not have Iraqi citizenship and has not lived in Iraq since 1980.[109] Significantly, at that point, the IMR does not go on to say that there is an imputed Iraqi nationality claim which must be considered in any event. Setting aside the reference to not considering the applicant’s claims against Iraq as he does not have Iraqi citizenship, Iraq is only mentioned once more in the “Assessment of claims”. That is in relation to the Iran-Iraq war, and whether or not the applicant would have been able to avoid military service in Iran by registering for a relevant document,[110] and is not part of any consideration of whether the applicant has a well founded fear of persecution on the basis of imputed Iraqi nationality.
[109] CB 128 at para.24.
[110] CB 128-129 at para.26.
The applicant pointed to factual matters which founded a claim of persecution in relation to imputed Iraqi nationality. Those matters were:
a)personal, including the applicant’s:
i)birth in Iraq;
ii)residence there until 1980; and
iii)being detained and beaten by the Basij in 1985 or 1986, during which there was a reference by the Basij to the applicant spying for Iraq; and
b)supported by country information referred to, including:
i)that in the 13 January 2011 Submission, citing Foreign and Commonwealth Office information indicating that post the 2009 election in Iran ethnic Kurds faced increasing intimidation, detention on charges of endangering national security, and the possibility of execution;[111] and
ii)that in support of the imputed Iraqi nationality which had actually been set out in the IMR Recommendation, and which specifically indicated that Faili Kurds were not simply persecuted due to their identity as Kurds but also their imputed identity as Iraqis, and that as a consequence of ongoing hostility between Iran and Iraq consequent upon the 1980-1990 Iran-Iraq war, persons regarded as a Iraqi by local Iranian populations were subjected to significant risks of extra-judicial violence, discrimination and occasionally arrest.[112]
[111] CB 113 and 126 at para.21.
[112] CB 115 and 127-128 at para.21.
The IMR Recommendation did not engage, intellectually or otherwise, with the imputed Iraqi nationality claim, or the material in support of that claim, despite having set it out in the IMR Recommendation in a lengthy quote from the 13 January 2011 Submission.[113] The IMR Recommendation relied upon the March 2010 DFAT Report,[114] but the March 2010 DFAT Report did not relevantly address the issue of imputed Iraqi nationality for Faili Kurds.[115] None of the country information in support of the imputed Iraqi nationality claim was referred to in the “Assessment of claims” in the IMR Recommendation. There is simply no indication that, at a practical level, the IMR gave specific consideration to the imputed Iraqi nationality claim by fixing its mind upon that claim. The mere fact that the IMR has said that it has considered all claims, and that it has quoted at length (but notably not in the “Assessment of claims”) from the 13 January 2011 Submission which refers to the imputed Iraqi nationality claim and country information in support of that claim, does not mean that the IMR has fixed its mind on the imputed Iraqi nationality claim, and specifically considered that claim.[116]
[113] CB 126-128 at para.21.
[114] Compare Htun ALR at 259-260 per Allsop J; FCA at para.43 per Allsop J; see also VBAO CLR at 17 per Callinan and Heydon JJ; HCA at para.50 per Callinan and Heydon JJ.
[115] See paras.43-47 above.
[116] MZXIV (No. 2) at paras.44-45 per Riley FM
The fact that the applicant has not suffered any physical harm for over two decades is relevant to an assessment of a well-founded fear of persecution. However, in any such assessment, it would have been necessary, had an imputed Iraqi nationality claim been considered by the IMR, for the IMR to consider that information which was before it which related to the possibility of persecution of the applicant in Iran by reason of imputed Iraqi nationality. That consideration included not only the applicant’s claims, but also the country information quoted in the IMR Recommendation from the 13 January 2011 Submission, most notably that from the Associated Press and the UNHCR, which suggested possible persecution of persons with imputed Iraqi nationality.[117] Had the IMR engaged the imputed Iraqi nationality claim and the information relevant to that claim, it is possible that the IMR’s conclusions, as to whether there was a well-founded fear of prospective persecution, might have been different.[118]
[117] See CB 127-128 at para.21.
[118] Compare Htun ALR at 259-260 per Allsop J; FCA at para.43 per Allsop J. See also VBAO CLR at 17 per Callinan and Heydon JJ; HCA at para.50 per Callinan and Heydon JJ.
Conclusion
In all of the circumstances, the Court has concluded that the IMR failed to deal with the case that was presented to it, in that it failed to respond to a separate, substantial, clearly articulated claim, which had an arguable factual foundation in the material before the IMR; namely, that the applicant had a well-founded fear of persecution by reason of his imputed Iraqi nationality. There was, therefore, either a constructive failure to exercise jurisdiction, or a denial of procedural fairness, or both. In any event, the failures identified entitle this Court, exercising the original jurisdiction of the High Court under s.75(v) of the Constitution, to consider exercising its discretion to grant relief.[119]
[119] Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ; Plaintiff M61 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Darabi FLR at 308 per Nicholls FM; FMCA at para.31 per Nicholls FM.
Relief
It follows that the Court must consider whether to exercise its discretion to afford the applicant relief, and if so what relief.
In the circumstances, where the IMR has not considered the claim of imputed Iraqi nationality made by the applicant, and where it cannot be said that the IMR’s conclusions as to whether or not there was a well-founded fear of prospective persecution might not have been different had it done so, it is appropriate to grant declaratory and injunctive relief in the terms sought by the applicant. The Court will not make an order that the matter be remitted to be heard by an independent merits reviewer other than the IMR, as the Court has no power, in the absence of an ability to issue writs of mandamus and certiorari, to compel a re-exercise of an independent merits review.[120] It follows, therefore, that it has no power to compel by whom any further independent merits review might be conducted.
[120] Plaintiff M61 CLR at 358-359 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.99-100 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Costs
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 24 August 2012
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