DZAAE v Minister for Immigration
[2012] FMCA 752
•31 October 2012 (by telephone to Darwin)
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 752 |
| MIGRATION – Independent Merit Reviewer’s recommendation – whether applicant meets criteria for a protection visa – stateless Shia Muslim Faili Kurd from Iran – whether failure to consider an integer of claim – whether jurisdictional error. |
| Constitution, s.75(v) Migration Act 1958 (Cth), ss.5, 91R(2)(a), 476 |
| Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 DZAAA v Minister for Immigration & Anor [2012] FMCA 699 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Li v Minister for Immigration & Citizenship& Anor (2008) 102 ALD 354; [2008] FCA 902 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 SZHWI v Minister for Immigration & Multicultural Affairs (2007) 95 ALD 631; [2007] FCA 900 Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 VBAO v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 233 CLR 1; [2003] HCA 60 Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495; [2010] FCA 691 |
| Applicant: | DZAAE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 10 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 June 2011 |
| Date of Last Submission: | 23 June 2011 |
| Delivered at: | Perth |
| Delivered on: | 31 October 2012 (by telephone to Darwin) |
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 Mr P d’Assumpcao |
| Solicitors for the Second 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 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 or perceived 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 16 February 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
DNG 10 of 2011
| DZAAE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
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 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”) 67-76) 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”).
Grounds of the application
There is a single particularised ground of application as follows:
1. 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 of being “Iraqi” as a Faili Kurd which means former citizens 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 social group so constituted.
(b)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 “perceived nationality” as a Faili Kurd linked to Kurdish Separatism, “as a people with separatist aspirations” and as “supporting the Kurdish regional government in Iraq…”.
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 was born in Honagah, Ilam in Iran on 31 December 1987.
The applicant arrived at Christmas Island on 1 April 2010.[6]
[6] CB 9.
On 25 June 2010, the applicant submitted a Request for RSA[7] and Statement of Claims, which included a Statutory Declaration of the same date.[8] In his Statement of Claims, the applicant claimed that:
a)he is a stateless Faili Kurd, former resident of Iran, and is a Shia Muslim;[9]
b)he feared persecution by reason of his ethnicity as a Faili Kurd;[10]
c)in 2009 whilst with his mother and two sisters in the market the Basij[11] asked him for documents, which he could not produce, and he was attacked and subsequently detained by the Basij. The Basij demanded money for his release, and he had to pay money to be released;[12]
d)he subsequently tried to avoid the Basij, but on several occasions he was caught and had to pay money for his release;[13]
e)“…we do not have any rights; we are treated as foreigners and enemies of Iran and told to leave the country. In the absence of any papers we cannot work legally, access schooling, health facilities, open bank accounts, have insurance, have no freedom of movement, we cannot even register our marriages. We are detained at will, extorted money and tortured.”;[14]
f)he fears returning to Iran because he says that there is a real chance of physical harm, and even being killed;[15] and
g)there is a long history of discrimination against Faili Kurds, and that there are regular incidents whereby people who are Faili Kurds are detained and tortured, and that the government in Iran is not willing to help Faili Kurds.[16]
[7] “Refugee Status Assessment”.
[8] CB 6-29.
[9] CB 27.
[10] CB 27.
[11] The Basij are an auxiliary arm of the Islamic Revolutionary Guards Corp. They are a para-military force, who act as a kind of citizen’s militia, to enforce Islamic codes of behaviour and morality at a community level. They are not organised, and wear no uniforms, but have a base in most mosques in Iran. A more extensive description taken from certain country information appears at CB 52-53. And see also CB 73 at para.22.
[12] CB 27-28.
[13] CB 28.
[14] CB 28.
[15] CB 28.
[16] CB 28.
RSA decision
On 2 August 2010 a Delegate of the Minister found that Australia did not owe the applicant protection obligations, and the applicant was notified accordingly.[17]
[17] CB 40-60 (“RSA Decision”).
IMR’s Recommendation
The applicant applied for review of the RSA Decision by the IMR.
The IMR set out the applicant’s claims as made in the various written statements and interviews (including the IMR Interview) as being to claim to fear persecution because of:
a)his Faili Kurdish race or ethnicity;
b)his status as a “returnee” to Iran, and therefore, his being a member of a particular social group;
c)his being “stateless”; and
d)that he would be suspected of being a “Western spy” or a “collaborator”.[18]
[18] CB 75 at para.28.
The claims of the applicant were set out in the IMR Recommendation by reference both to:
a)the applicant’s “interviews and written statements”;[19]
b)the applicant’s Statutory Declaration of 25 June 2010;[20] and
c)the applicant’s interview with the IMR.[21]
[19] CB 69 at para.9.
[20] CB 69 at para.10.
[21] CB 70-71 at paras.11-17.
The IMR noted that the applicant had “worked all his life and had been able to obtain work almost every day in Teheran” where he had lived since 2006, and by the age of 23 he had been able to save a substantial amount of money, about US$12,000.[22]
[22] CB 70 at paras.12 and 16.
The IMR questioned the applicant about his experience with the Basij, other than the incident in the market when was stopped while walking with his sisters and mother. The applicant initially said that he had been stopped and beaten so many times he did not remember, but then said it was “10 or 20 I don’t know”. The applicant said he had no facial injuries because he was tied to a chair and his feet were beaten with a cable. When asked whether this happened ten or twenty times, he initially said that it happened a few times, and when questioned what that meant he said “once or twice”. The IMR then asked what happened on the other ten or twenty occasions and the applicant responded “punching and kicking and slapping me on the face…[in] centres called Paygars, mostly in Mosques”. The applicant could not remember how many times he had been taken to a Paygar, and when the IMR expressed surprise about this the applicant indicated that it was because he had been arrested and beaten so many times. The IMR also asked about his evidence that the last incident with the Basij was at least a year ago and why nothing had happened for a year. In response to this the applicant indicated that he was asked for the most important thing that happened in his first interview and he gave evidence about the incident in the market, and then said that there were other things which were not very serious, and he was released when he gave the Basij money.[23]
[23] CB 71 at para.17.
The IMR provided the applicant with potentially adverse country information to comment upon. That country information was an Australian Department of Foreign Affairs and Trade report[24] which indicated that Australian embassy staff in Iran were not aware of Faili Kurds being targeted because of their ethnicity, and that:
a)Iraqi refugees, including Faili Kurds, tended to be well-treated in comparison to Afghans; and
b)racially motivated violence against any group in Iran is rare, but that those that are politically active within the opposition risk targeting, but that this is not because of their ethnicity.[25]
[24] “DFAT Report”.
[25] CB 70 at para.15.
The IMR accepted that the incident with the applicant’s mother and sisters in the marketplace had occurred.[26] The IMR went on, however, to find that the applicant had fabricated the other incidents to enhance his claims for protection.[27] In this respect, the IMR made certain adverse credibility findings in relation to the applicant’s evidence. The IMR found that:
a)there were no particular and individual factors that could distinguish the applicant from the general Kurdish population to support his claim for protection;[28]
b)the applicant had lived in Iran all his life and had worked almost continuously, and for the last four years in Tehran, the capital city of Iran, and was able to save a significant sum of money to fund his departure from Iran;[29]
c)there was no reliable evidence to suggest that the applicant was of particular adverse interest to the Iranian authorities or actively being sought by them;[30]
d)the applicant had lived at the same address with his family in Tehran, and was undisturbed there by the authorities;[31]
e)as to the claims of having been assaulted by the Basij on numerous occasions and also robbed by them, the IMR found that the applicant’s evidence concerning those incidents “was vague, inconsistent and unconvincing.”[32] The IMR noted that there was inconsistency in that the applicant had said that the most recent incident was a year ago, but when asked why nothing had happened for a year, said that there had been many incidents including being taken to a Paygar and beaten with a cable, which he had not mentioned when the interviewer asked him about the most important incident, a fact that the IMR found “implausible”. The IMR found that “the claimant has fabricated the other beatings”,[33] that is the beatings other than the beating related to his arrest at the market when with his mother and sisters, and that the other beatings were recent inventions designed to enhance his claims for protection;[34]
f)in relation to the applicant’s claims as to what might happen to him, and the risk of harm to him if returned to Iran, and his being “stateless”, or being perceived as a “Western spy” or “collaborator”, the IMR found that there was no credible evidence to support any of those claims;[35] and
g)as to the abuse suffered by the applicant at the hands of the Basij while walking in the marketplace with his mother and sisters the IMR found that, whilst distressing, such discrimination and such random incidents of harassment and abuse, did not necessarily amount to persecution. The incident had to be examined or considered in the light of the applicant’s history of regular gainful employment and 23 years of undisturbed domestic life. The IMR came to the conclusion that the marketplace incident did not amount to serious harm for the purposes of the law.[36]
[26] CB 75 at para.29.
[27] CB 74-75 at para.27.
[28] CB 74 at para.27.
[29] CB 74 at para.27.
[30] CB 75 at para.27
[31] CB 74 at para.27.
[32] CB 74 at para.27.
[33] CB 75 at para.27.
[34] CB 75 at para.27.
[35] CB 75 at para.28.
[36] CB 75 at para.29.
Based on the above findings, the IMR said that he had carefully considered the claims, and the country information, and found that there was no real chance of harm to the applicant for a Convention related reason.[37] The IMR therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[38]
Applicant’s submissions
[37] CB 75 at para.30.
[38] CB 76 at para.31.
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 the judicial review of the IMR Recommendation. It is unnecessary to repeat those submissions. It suffices to observe, as the Court has done above,[39] that it has jurisdiction to determine the application. In any event, jurisdiction was not disputed by the Minister.
[39] See para.3 above.
Failure to address a claimed basis of fear of persecution
The applicant submitted that:
a)the IMR Recommendation was affected by two related, but discrete, jurisdictional errors in the approach which the IMR took in his decision making process, in that the IMR failed to address the claimed basis of the applicant’s fear of persecution, that is to deal with an integer of the claim that the applicant feared persecution by reason of:
i)his status of being “Iraqi” as a Faili Kurd, which means former citizens of Iraq, and his fear of harm on the basis of his nationality or “imputed nationality”, and that “in addition to experiencing …violence on the basis of being Kurdish in Iran our clients have also reported being targeted for being ‘Iraqi’. The continuing hostile relationship between Iran and Iraq places the Faili Kurds in a particularly vulnerable position…”;[40] and
[40] CB 33.
ii)his “perceived nationality” as a Faili Kurd linked to Kurdish separatism, “as a people with separatist aspirations” and as “supporting the Kurdish regional government in Iraq”; [41]
[41] CB 33. See also CB 3 and 32.
b)apart from noting the first of the applicant’s unconsidered claims, taken verbatim directly from his Statutory Declaration,[42] nowhere does the IMR set out these claims, or recognise them as having been made;[43]
[42] CB 69 at para.10.
[43] CB 42-60.
c)although the second of the applicant’s unconsidered claims is “inextricably linked to race/ethnicity”, it is still a distinct claim and was required to be considered. There is no discussion or appreciation of the significance of the “perceived nationality” claim by the IMR, even as an aspect of the ethnicity issue;
d)these discrete claims were never set out, or expressly or impliedly considered, by the IMR;
e)country information supporting the first of the claims which was set out in the IMR Recommendation which appears in the Court Book related to DZAAA v Minister for Immigration & Anor,[44] is not cited anywhere in the papers in this matter. It was contended, however, that given the specialist nature of the IMR and the fact that the same person is involved, that he clearly had constructive knowledge, or was to be taken to have judicial knowledge, of the following information:
[44] [2012] FMCA 699 (“DZAAA”).
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”. There was evidence also before him in the other matter from UNHCR regarding this nationality/identity perception of Faili Kurds in Iran.[45]
[45] Court Book for DZAAA at paras.127-128 of that Court Book.
f)the IMR confined the claims of the applicant to risk of harm from the Basij and other Iranian government authorities because of his Faili Kurdish ethnicity and because of membership of a particular social group of “returnees”[46] because he is a returnee from a Western country who departed illegally;[47]
[46] CB 69 at para.9.
[47] CB 74 at para.25.
g)the core finding of the IMR based on the DFAT Report[48] was that while accepting that some, and possibly most, Faili Kurds experience discrimination and hardship in many forms in Iran “they are not targeted because of their ethnicity…” and that “racially motivated violence against any group in Iran is rare”.[49] The conclusion was reached that there was not a real chance of harm to the claimant for a “Convention-related reason”;[50]
[48] CB 75 at para.29.
[49] CB 75 at para.29.
[50] CB 75 at para.30.
h)the IMR ignored or overlooked the:
i)imputed Iraqi nationality, because of treatment as an Iraqi claim; and
ii)the perceived nationality, based on a perceived link to Kurdish separatists claim,
with which he was required to deal. It is no answer to rely on the DFAT Report if these separate and discrete claims based on the imputed Iraqi nationality of Faili Kurds, and perceived association with Kurdish separatism, are not even acknowledged anywhere as having been made and are never expressly or implicitly dealt with;
i)there is no express or implicit consideration[51] let alone active intellectual consideration of the claims;
j)this is not a case which can be characterised as one where:
i)the factual findings made relating to an asserted basis for protection necessarily and inevitably deny any other basis for protection;[52] or
ii)it was unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality; or
iii)because there was a factual premise upon which the contention rests which was rejected;
k)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;[53]
l)the imputed Iraqi 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;[54] and
m)in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[55] 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.[56] 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.
[51] MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 (“MZXLB”) at paras.18-19 per Finkelstein J.
[52] Minister for Immigration & Multicultural Affairs vYusuf (2001) 206 CLR 323 at 354 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.95 per McHugh, Gummow and Hayne JJ.
[53] 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.
[54] See SZHWI v Minister for Immigration & Multicultural Affairs (2007) 95 ALD 631 at 634 per Allsop J; [2007] FCA 900 at para.15 per Allsop J.
[55] [2006] FMCA 1454 (“MZXIV (No. 2)”).
[56] 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;[57]
b)in Li v Minister for Immigration & Citizenship & Anor[58] 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.[59]
[57] The applicant cited sixteen 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.
[58] (2008) 102 ALD 354; [2008] FCA 902 (“Li”).
[59] Li ALD at 362 per Jessup J; FCA at para.22 per Jessup J.
Minister’s submissions
The Minister makes three short points in response to these complaints:
a)first, it is plainly not necessary for the IMR to refer to every piece of evidence and every contention made by an applicant in its written reasons.[60] There is a distinction between a claim which jurisdictionally must be considered and mere evidence, however probative, or a mere submission, in support of a claim.[61] A claim in that sense is a separate basis upon which a person may face persecution;
[60] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC 184 at para.46 per French, Sackville and Hely JJ.
[61] Htun ALR at 259 per Allsop J; FCA at paras.42 per Allsop J (Spender J agreeing at ALR 245; FCA at para.1); MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at paras.27-29 per Black CJ, Sundberg and Bennett JJ.
b)second, here, there was no “substantial, clearly articulated argument relying upon established facts” or “clearly emerging from the material” before the IMR.[62] There was no claim that the IMR was jurisdictionally obliged to consider that was not at least implicitly considered by the IMR and rejected:
i)the Tribunal found no well-founded fear of persecution upon the basis that the applicant would be a “returnee”, or was “stateless”, or a person who may be suspected of being a “Western spy” or “collaborator”, rejecting all of those claims;
ii)with respect to the core claim of facing harm as a Faili Kurd, the IMR acknowledged that “some, possibly most, Faili Kurds…experience discrimination and hardship in Iran”,[63] but he accepted independent country information that Faili Kurds are “not targeted because of their ethnicity and racially motivated violence against any group in Iran is rare”.[64] The IMR had also found nothing to distinguish the applicant from the general Kurdish population that would support his claim for protection,[65] referring to the amount of time that the applicant had spent in Iran, including Tehran, his ability to save a significant amount of money and what it found to be the absence of “reliable evidence that the applicant is of particular adverse interest to the Iranian authorities or is actively sought by them”.[66] The IMR rejected as “vague, inconsistent and unconvincing” claims of mistreatment going beyond the abovementioned market incident,[67] which it saw “in the light of the claimant’s history of regular gainful employment and his undisturbed domestic life for 23 years”,[68] and, at least impliedly, as not thereby grounding a well-founded fear of persecution for a Convention reason; and
iii)given the findings that he did make, and what the applicant had put, it was not necessary for the IMR to descend any further into expressly dealing with the detail of what had been said by the applicant; and
c)finally, as to the IMR’s finding about “serious harm”[69] the Minister submits that that finding needs to be read in the context of the reasons 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”,[70] as well as the IMR’s finding that there is “not a real chance of harm to the claimant for a Convention-related reason”.[71] The IMR found that the past harm that he accepted did “not amount to serious harm for the purposes of the law”.[72] To the extent that this is expressed as being because the incident was “considered in the light of the claimant’s history of regular gainful employment and his undisturbed domestic life for 23 years”,[73] the IMR was focusing, as was permissible, upon the absence of a real chance of the harm recurring. If there was no real chance of past harm recurring, the seriousness (or not) of that 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,[74] with respect to s.91R(2)(a) of the Migration Act “…the serious harm in question is, by hypothesis, future harm”,[75] and thus, in this respect also, there was no jurisdictional error; and
d)alternatively, if there was jurisdictional error in failing to find whether the accepted past harm was serious per se, the IMR’s Recommendation could not have been affected, and relief should be refused in the discretion of the Court, 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
[62] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 68 per Black CJ, French and Selway JJ.
[63] CB 75 at para.29.
[64] CB 75 at para.29.
[65] CB 74 at para.27.
[66] CB 74 at para.27.
[67] CB 74-75 at para.27.
[68] CB 75 at para.29.
[69] CB 75 at para.28.
[70] CB 74 at para.24.
[71] CB 75 at para.30.
[72] CB 75 at para.28.
[73] CB 75 at para.29.
[74] (2006) 233 CLR 1; [2006] HCA 60 (“VBAO”).
[75] 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
Although not expressed succinctly in the particularised ground, 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 or perceived Iraqi nationality, arising from him being treated as an Iraqi, or from a perceived link to Kurdish separatists, both of which arose from his being ethnically Kurdish Faili.
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;[76]
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[77] and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[78]
[76] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[77] 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.
[78] 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.[79]
[79] 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.[80]
[80] 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.[81]
[81] 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.”[82]
[82] 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”[83] and of “a specific consideration of the claim”.[84]
[83] MZXIV (No. 2) at para.44 per Riley FM.
[84] 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.[85]
Was the claim of persecution on the basis of imputed or perceived Iraqi nationality actually made and clearly articulated?
[85] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
In the Statutory Declaration the applicant said that:
There we do not have any rights; we are treated as foreigners and enemies of Iran and told to leave the country.[86]
[86] CB 28.
The applicant went on to assert a lack of health, education, banking and insurance facilities, and restrictions on movement and the registration of marriages, as well as arbitrary detention, extortion and torture by reason of his being a Faili Kurd in Iran, and the possibility of physical harm or death if he returned to Iran.
In a generic submission to the IMR on 19 July 2010 the applicant’s migration agent made claims that:
a)“nearly all our clients have attributed this treatment [that is treatment similar to that outlined above] to their race (Faili Kurds/Kurdish ethnicity) and their perceived nationality. The issue of Kurdish ethnicity is inextricably linked to the political question of Kurdish separatism. The distrust of Kurdish intentions and the nervousness of the Iranian government surrounding the question of separatism makes all Kurds in Iran vulnerable to attack because as a people being Kurds, their political intentions are distrusted.”;[87] and
b)“In addition to experiencing distrust and violence on the basis of being Kurdish in Iran, our clients have also reported being targeted for being ‘Iraqi’. The continuing hostile relationship between Iran and Iraq placed the Faili Kurds in a particularly vulnerable position. Many of our clients have reported being labelled ‘Iraqi’ and this has been the reason for a range of discrimination by members of the public or attacks on them by the Basij. Some of our clients have even reported attacks on their young children by other children who label them as Iraqi and inflict violence upon them. Given the history of the relationship between the two countries, this is not an implausible suggestion.”[88]
[87] CB 30.
[88] CB 33-34.
The Court is of the view that the claim of persecution on the basis of imputed or perceived Iraqi nationality has been put before the IMR by the applicant and the applicant’s migration agent, by reason of what was said in:
a)the Statutory Declaration of 25 June 2010 by the applicant concerning the treatment of Faili Kurd as:
i)foreigners; and
ii)enemies of Iran,
which are both descriptors which might apply to persons in Iran imputed with Iraqi nationality; and
b)the generic submission from the applicant’s migration agent which identifies alleged mistreatment and persecution of Faili Kurds because of the imputed or perceived Iraqi nationality of Faili Kurds.
The fact that the claim, or part of it, is a generic claim, does not detract from the fact that it is a claim made by the applicant’s migration agent on behalf of the applicant, albeit amongst others.
The claim as made is sufficiently articulated to be clear to any person attempting to understand its content.
The generic claim made is one of substance, setting out in detail the circumstances of stateless Faili Kurds, especially those, such as the applicant, born in Iran.[89] Much of the material refers to the general mis-treatment and persecution of Faili Kurds, but there is specific reference to the involvement of Faili Kurds “in Iraqi politics” as consolidating an Iranian government view that they harbour “political aspirations for autonomy in Iran”.[90] A 2008 Amnesty International Report is cited in support of further observations that Iran fears minority communities, such as the Faili Kurds, because they wish to secede from Iran,[91] and that discrimination and repression of these communities has intensified in recent years.[92] Such reports are not inconsistent with treatment the applicant says he has received as a consequence of being a Faili Kurd, and in particular, in this context, that he is treated as a foreigner and enemy of Iran and told to leave the country.[93]
[89] CB 31.
[90] CB 32.
[91] CB 32.
[92] CB 33.
[93] CB 28.
The applicant has put nationality as a distinct and separate claim to that of ethnicity and membership of a particular social group, as a basis for a well-founded fear of persecution. Elements of those matters no doubt overlap, but the claim of persecution on the basis of imputed or perceived Iraqi nationality was separate to, and not simply a sub-set of, the claim of persecution on the basis of Faili Kurd ethnicity. The Court therefore considers that there was a separate and clear claim of persecution on the basis of imputed or perceived Iraqi nationality made by the applicant. That claim was one of substance, based on country information cited in the applicant’s generic claim, and information in the applicant’s own claim, and capable of objectively founding an argument that the applicant had a subjective fear of persecution for a Convention reason if returned to Iraq.
Was the claim of persecution on the basis of imputed or perceived Iraqi nationality identified and considered by the IMR?
In examining whether the claim of persecution on the basis of imputed Iraqi nationality was identified and considered by the IMR, the Court is cognisant that it ought not cross the line between judicial review and merits review.[94]
[94] 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”.[95] 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”.[96]
[95] CB 68.
[96] CB 68.
The IMR Recommendation notes that:
a)the relevant IMR and Departmental files relating to the applicant, including the applicant’s claims to engage Australia’s protection obligations under the Convention;
b)submissions from the applicant and the applicant’s “adviser”; and
c)the contents of interviews on Christmas Island,
are before the IMR.[97]
[97] CB 68-69.
The IMR Recommendation summarises the applicant’s claims in relation to persecution if he was to return to Iran as being due to:
· His Faili Kurd race/ethnicity; and/or
· His membership of a particular social group of “returnees”.[98]
[98] CB 69.
The applicant’s Statutory Declaration is then set out in full in relation to its substantive parts, including the matters referred to above.[99]
[99] See para.9 above; CB 69.
The IMR then sets out the course of the IMR Interview with the applicant on 22 November 2010.[100]
[100] CB 71.
Although the reference to being treated as foreigners and enemies of Iran and being told to leave the country is quoted by the IMR,[101] there is no further reference to it in the IMR Recommendation. There is no reference to the relevant specific aspects of the claims made in the generic claim in the IMR Recommendation. Nor is there in the IMR Recommendation otherwise any reference to any claim of a fear of persecution based on the applicant’s claim of imputed or perceived Iraqi nationality. This claim is not expressly identified, and nor is there any implied identification of this claim, in the IMR Recommendation.
[101] CB 69.
The potentially adverse country information in the DFAT Report put to the applicant is set out above,[102] and is in the materials before the Court.[103] In DZAAA the Court dealt with the same potentially adverse country information, and of it, the Court observed as follows:
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?
[102] See para.16.
[103] Exhibit 1, pages 152-156.
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.
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.[104]
[104] DZAAA at paras.44-47 per Lucev FM (footnotes omitted).
Noting further that the applicant is not an Iraqi refugee, but a stateless person born in Iran, the comments made in the above quote from DZAAA are otherwise apposite in this case, adjusted to reflect the applicant’s claim of imputed or perceived Iraqi nationality. The same conclusion, that the IMR did not consider the applicant’s claim based on nationality, imputed or perceived, as an Iraqi, follows. In the circumstances, it is unnecessary to consider the applicant’s submission that the IMR had constructive knowledge of matters which arose in DZAAA.[105] It is unnecessary given that the IMR in this case has, in any event, not considered the applicant’s claim of a fear of persecution based on imputed or perceived Iraqi nationality.
[105] See para.20(e) above.
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]
[106] CB 74.
[107] CB 74-75.
the IMR Recommendation does not expressly consider anything other than the above claims based on ethnicity (or race) and membership of a particular social group.
The IMR did not engage with the applicant’s claim based on his imputed or perceived Iraqi nationality.[108] It was a claim which was made, and the applicant demonstrated a subjective fear of persecution and submitted objective material which the IMR ought to have considered. The preference expressed for the view in the DFAT Report does not, for reasons set out above, apply to the applicant’s claimed circumstances, and, as was said in Htun “barely begins the task of assessing the risk of persecution, and whether a real chance of persecution would exist upon return”.[109] That is particularly so in respect of an applicant, who although he may not have suffered persecution in the past, ought to have had the risk of future harm assessed having regard to his possible return to Iran, and a weighing of the possibility, that as a Faili Kurd he might have Iraqi nationality imputed or perceived, attributed to him, and as a consequence suffer a real chance of persecution upon or after his return to Iran.
[108] MZXIV (No. 2) at para.44 per Riley FM.
[109] Htun ALR at 260 per Allsop J; FCA at para.43 per Allsop J.
Conclusion and relief
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 or perceived Iraqi nationality. There was, therefore, a constructive failure to exercise jurisdiction. The failure identified entitles 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.[110]
[110] 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.
In the circumstances, where the IMR has not considered the claim of imputed or perceived 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. There will be a declaration and order accordingly.
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.[111] It follows, therefore, that the Court has no power to compel by whom any further independent merits review might be conducted.
[111] 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-four (54) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 31 October 2012
20
2