DZAAP v Minister for Immigration
[2012] FMCA 42
•25 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 42 |
| MIGRATION – Independent merits review of refugee claims of off-shore entry person – applicant Shia Ahwazi Arab born in Iran – claims for asylum on basis of persecution as a result of ethnicity and political activities – alleged failure by reviewer to consider integer of claim for asylum raised by applicant in interview namely imputed political opinion as a result of specific social group – was such claim expressly or squarely raised – no error found – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 46A |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Hun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NBGV v Minister for Immigration & Multicultural Indigenous Affairs [2005] FCA 690 QAAT of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 18 Minister for Immigration & Multicultural Affairs v Sarasota (No2) (2001) 107 FCR 184 MZXIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1454 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 STCB v Minister for Immigration & Multicultural Indigenous Affairs (2006) 231 ALR 556 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 Minister for Immigration and Multicultural and Indigenous Affairs v Hardwar (2002) 209 CLR 597 Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | DZAAP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 23 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 27 October 2011 |
| Date of Last Submission: | 27 October 2011 |
| Delivered at: | Darwin |
| Delivered on: | 25 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid |
| Counsel for the First Respondent: | Mr d’Assumpcao |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed 21 June 2011 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 23 of 2011
| DZAAP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a Shiite Arab, who was born in Ahwaz in Iran. He arrived at Christmas Island, by boat on 16 April 2010, without a valid entry visa.
He seeks the protection of Australia on the basis that he is a refugee. He claims that he has been subject to persecution in Iran, as a result of his Arab nationality and because of his political activities. It is the applicant’s position that he took part in demonstrations protesting the result of the Iranian elections in June and December of 2009.
As a result of his activities, the applicant claimed that he came to the notice of the Basij, the volunteer militia in Iran and was subject to arbitrary arrest and torture. This treatment led to his decision to leave Iran and seek refuge in Australia.
In these circumstances, the applicant has deposed that he fears returning to Iran because he left the country illegally and, if he does return, he is liable to come to the attention of the Basij and be harmed and imprisoned again.
The applicant’s claim for refugee status depends on him satisfying the definition of “refugee”, provided by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) which provides that a “refugee” is a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Christmas Island is excised from the Australian Migration zone. As such, because of the manner of his arrival in Australia, the applicant is deemed to be an “off-shore entry person”. This designation precludes him from applying for a protection visa, to entitle him to remain in Australia, directly from the Department of Immigration & Citizenship (hereinafter referred to as “the Department”).
However, as Australia is a signatory to the Refugee’s Convention and has obligations pursuant to it, section 46A(2) of the Migration Act 1958 (Cwth) (hereinafter referred to as “the Act”) grants to the first respondent a discretion to grant an off-shore entry person a protection visa, if the Minister “thinks it is in the public interest to do so …”.
As a result of this legislative discretion, invested in the Minister, an administrative protocol was devised by the Department, which was intended to provide specific advice to the Minister as to whether Australia’s protection obligations, under the Refugees Convention, were engaged in the case of each person who arrived in Australian territory at an excised offshore place (such as Christmas Island) and claimed to be a refugee.
This protocol envisaged two distinct and independent steps. Firstly, each such arrival would be subject to a Refugee Status Assessment (“the RSA”) by officers of the Department. Secondly, there would be an Independent Merits Review (the “IMR”) of each such Refugee Status Assessment. The intention being that there would be an independent and arm’s length review of any decision made by Departmental officers, which was contrary to the applicant concerned.
The purpose of the IMR was to make a recommendation, to the Minister, about whether Australia had protection obligations to any persons claiming so. If the reviewer concerned did conclude that Australia did owe a protection obligation to any such claimant, advice would be provided to the Minister in such terms so that the discretion arising under section 46A(2) could be properly exercised.
The RSA into the applicant’s circumstances was concluded on 20 September 2010. The departmental delegate did not find that the applicant had a “well founded” fear of persecution in Iran, on account of either his Arab ethnicity or his political activities.
As a consequence of this decision, the applicant requested an IMR. This was completed by the second respondent, Mr Karas on 13 May 2011. The IMR included an interview between the applicant and Mr Karas, which took place at Darwin on 19 April 2011. The interview was transcribed and took place in the presence of the applicant’s advisor and with the assistance of an Arabic interpreter.
Mr Karas categorised the applicant’s evidence as being “vague and confusing”. In addition, Mr Karas felt that the applicant had “fabricated and embellished parts of his story” to advance his claims for protection.[1]
[1] See casebook at paragraph 66
In these circumstances, Mr Karas did not accept that there was a real chance that the applicant would suffer persecution now or in the foreseeable future, for a convention reason, if he returned to Iran on either the basis of his race or political opinions imputed to him. Accordingly Mr Karas recommended that the applicant be not recognised as a person to whom Australia owed protection obligations under the Refugee’s Convention.
The applicant filed his present application to the court on 21 June 2011, seeking a declaration that Mr Karas’ recommendation is affected by legal error. In addition, he seeks an injunction restraining the minister and his department from relying upon Mr Karas’ recommendation.
The nature of the ministerial discretion, contained in section 46A(2) and the constraints on its exercise, were considered by the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[2] The High Court concluded that those making inquiries, on which the Minister would act, were bound to act according to law and afford procedural fairness to the persons potentially affected by the Minister’s decisions.
[2] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
In addition, in Plaintiff M61/2010E, the High Court held that decisions in respect of applications for protection visas, arising at the IMR stage, were subject to judicial review in the original jurisdiction of the High Court as a consequence of paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
Accordingly, as the applicant is seeking an injunction restraining the first respondent from acting upon the recommendation of Mr Karas, the original jurisdiction of the High Court is engaged. Pursuant to section 476 of the Act, the Federal Magistrates Court has been conferred with this original jurisdiction of the High Court, in relation to migration decisions. There is no dispute between the parties in this case that the Federal Magistrates Court has jurisdiction to deal with the application herein or that it has not been brought within the prescribed timeframe.
Counsel for each of the parties accept that the decision of Mr Karas is reviewable only if a jurisdictional error of the kind described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia[3] can be established. This requires the applicant to establish Mr Karas fell into an error of law by identifying a wrong issue, asking himself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion.
[3] See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Accordingly, in exercising its judicial review jurisdiction, pursuant to section 476 of the Act, it is the function of the court to consider whether Mr Karas’ report reveals any error of law, including any denial of procedural fairness to the applicant, in its reasoning or in the procedures followed before its making. This function does not comprise any consideration of the merits of the applicant’s claim to be entitled to protection in Australia pursuant to the Refugee’s Convention.
The error of law, raised by the applicant, turns to a significant degree on issues raised by the applicant in the interview between him and Mr Karas, when considered in the context of other material submitted on his behalf, in writing, to the IMR by his legal representatives.
It is the applicant’s contention that Mr Karas failed to consider an aspect of his claim for asylum, which he had articulated both in his written submission and more importantly at interview, namely that he was at risk of persecution in Iran by reason of political views likely to be imputed to him because of his familial relationship with his brother-in-law and sister.
These persons also claimed to have been subject to persecution, in Iran, at the hands of the Basij. In contrast to the applicant, they have been granted protection in Australia pursuant to the provisions of the Refugees Convention.
A failure to consider a claim raised expressly or implicitly on the material before a tribunal is a clear jurisdictional error. In Htun v Minister for Immigration & Multicultural Affairs Allsop J described the nature of the review function as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
It is the applicant’s case that one of the essential integers of his claim for asylum has not been properly considered by Mr Karas and this is necessarily a jurisdictional error. It is submitted that the claim of imputed political opinion to the applicant as a result of his membership of a particular social group of “family” was sufficiently articulated by the applicant to require attention and consideration by the IMR.
The minister’s position is that Mr Karas did respond properly to the case which the applicant advanced. The minister further contends that the IMR was not required to consider any claim for asylum which was “not expressly made or does not arise clearly on the materials before it.”[5]
[5] See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) (2004) 144 FCR 1 at [61]
The ground of appeal
In his application, filed on 21 June 2011, the applicant relies on one ground of appeal, which is formally expressed as follows:
“The decision of the Second Respondent was made in breach of an essential pre-condition to 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 and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
Particulars
The Second respondent failed to address a claimed basis of the Applicant’s fear of persecution and/or raised on the material before the Second respondent and/or to consider and/or to 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 on the grounds of imputed political opinion or membership of a particular social group of “family” being the claim that his brother and sister had been approved for [protection] visas in Australia and his sister’s husband had problems with the Intelligence Service in Iran and fled and came to Australia and the Applicant’s brother (who had the same problems as the claimant with the Basij/Sepah by participating in the Arab forums) came to Australia 3 months before the “claimant” and his sister.”
Background
a) The RSA
The RSA summarised the applicant’s claims for refugee status made by him on entry and subsequently, including at interview with the assessor. It was accepted that the applicant was an ethnic Arab, born in Ahwaz, in Khuzestan Province, in Iran. As a consequence, the applicant is an Iranian citizen.
In the RSA, country information regarding the position of ethnic Arabs in Iran was summarised. They are a minority in Iran, which is predominantly Persian by ethnicity. Ahwazi Arabs have been subject to the eradication of their nationality identity, culture, language and customs over many centuries. They were subject to discrimination during the Iran/Iraq war.
Due to its oil resources, Khuzestan Province is one of the wealthiest areas of Iran. However, large numbers of Ahwazi Arabs endure endemic poverty. The province itself is subject to military control and international observers are excluded.
The RSA also summarised the applicant’s specific personal claims of having suffered persecution. He stated that, as an Arab, he had been prevented from wearing his traditional Arabic garb and was not taught Arabic at school. He claimed that his family land had been confiscated.
In his entry interview, the applicant stated that Arabs were systematically discriminated against by the Iranian government in Ahwaz. They were not allowed to seek medical treatment in public hospitals or to obtain employment in any government department. He further stated that Arabs, in Ahwaz, were subject to mistreatment by the Basij.[6]
[6] The Basij is the paramilitary or auxiliary arm of the Islamic Revolutionary Guards. Members of the Basij actively monitor the activities of Iranian citizens. They were active in forcibly dispersing protestors following the disputed Iranian elections of 2009.
More specifically, the applicant claimed that one of his brothers had been killed by members of the Basij during the Eid ceremony of 2005. He claimed that his brother had been attacked at the mosque. When his father had asked for an explanation from the Basij for its conduct, he (the father) was threatened with death.
The applicant also claimed that he had taken part in demonstrations following the contested election, in Iran, in June and December of 2009. He stated that he had been forced to go into hiding, following one of the demonstrations. During his absence, the Basij visited his home looking for him.
Seven months after the disputed election, the applicant stated that he had been arrested by the Basij at his home and detained for 23 days, during which he had been tortured. This incident was the catalyst for his decision to leave Iran and seek asylum in Australia.
The RSA accepted that, like the majority of Ahwazi Arabs, the applicant had been marginalised and discriminated against by the Iranian authorities, including the Basij. It did not however accept that this unfavourable treatment amounted to persecution for a convention reason.
Moreover, the RSA doubted some aspects of the applicant’s claim to have been arrested and tortured, by the Basij, following the 2009 election protests. The assessor rejected the applicant’s claim that he was of interest to the Basij seven months after his alleged involvement in the election protests.
On this basis, the RSA did not accept that the applicant met the definition of refugee set out in the Refugees Convention on the basis that it was not accepted that he was subject to a real chance of persecution, if he returned to Iran.
Following the RSA, the applicant requested an independent merits review of this decision, as he was entitled to do. He was assisted in his application for an IMR by a firm of solicitors, Florin Burhala of Melbourne. The solicitors made further representations on the applicant’s behalf.
b) The applicant’s further written submissions
Florin Burhala provided a lengthy written submission to the IMR, which was supplemented by a further submission. In the first of these submissions, it was claimed on the applicant’s behalf that he was seeking asylum because of persecution arising from his race and imputed political opinion.
In particular, more detail was provided of the applicant’s account of what had happened to him following the June 2009 demonstrations following the contested Iranian elections. In particular, it was said that the applicant:
“… was associated with the Green Party which was the opposition leader’s party. He was considered a political dissident who was against the Iranian government. During the protests, the Basij shot the applicant and his friend was arrested.
Following this, the applicant became afraid of what would happen to him, and went into hiding at his uncle’s house. Whilst he was there the Basij came to his family home numerous times to find him. After a few days of hiding, he returned home.
After returning home the applicant believed the pre-election problems had died down, however the Basij returned approximately seven months after the elections to look for him again. This time they arrested him, blindfolded him and took him away as a prisoner. He was placed in a dark room, tortured, and he did not know where he was. After twenty-three days had passed, he was released and told that he should now have learnt his lesson.”[7]
[7] See casebook at page 147
c) The interview between the applicant and Mr Karas
Mr Karas interviewed the applicant, in Darwin, on 19 April 2011. During this interview, the applicant had the assistance of an Arabic interpreter. Also present at interview was Ms Fatima Awad, his advisor.
In this interview, the applicant was asked by Mr Karas about the situation of his family. He responded as follows:
“INTERPRETER: I have two brothers deceased and one of my brothers, he came to here. His name is Hatam. He came after me within 17 days and he is now in Sydney. Another sister, her name is Maria. She came here after me within six months and she got the visa and she is going now to Sydney and the rest of the family in in Ahwaz.”[8]
[8] See transcript at page 4
At a later stage of the interview, the following exchange took place.
“MR KARAS: Is there anything you'd like to ask or anything you'd like to say before we bring this matter to a close?
MS AWAD: I have - it's probably two questions.
MR KARAS: Ask them if you want.
MS AWAD: Both his brother and his sister have been found to be refugees and have either received a visa or are awaiting their final stages, so ‑ ‑ ‑
MR KARAS: Yes, but each case has to be decided on its own facts and circumstances. I'm not aware of his brother's and sister's matters, other than what he's said.
MS AWAD: I appreciate that. The basis of my question is that I'm not asking you to go through it and say that it relates to his case, but I suppose the issue is that you asked him previously has anything else happened to family members and that seems to be a matter that hasn't been raised.
MR KARAS: Remember he said, "Nothing," so ‑ ‑ ‑
MS AWAD: Yes.
MR KARAS: Okay.
MS AWAD: Even if he's just acknowledging the fact that something has happened to his family ‑ ‑ ‑
MR KARAS: Would you like to ask him if anything has happened to his brother and sister that has meant that they have come to Australia?
INTERPRETER: Okay. For my family, my sister was married and her husband had problems with the intelligence services there and he was the one to flee the area.
MR KARAS: He fled and came to Australia and your sister joined him. Is that what you're saying?
INTERPRETER: Yes.
MR KARAS: Are you aware of how long ago your sister's husband came to Australia when he fled? Are you aware of when?
INTERPRETER: For six months and 10 days probably they've been here now and next week they might go out.
MR KARAS: So they both came together, have they?
INTERPRETER: Yes, both of them.
MR KARAS: So they both came to Australia together. Is that what you're saying?
INTERPRETER: Yes, my sister and her husband, they came together, but my brother came here three months before them.
MR KARAS: Why did your brother come? Do you know?
INTERPRETER: He has also a problem. I told you.
MR KARAS: He has a problem with the Basiji and the Sepah as well, has he?
INTERPRETER: Yes.
MR KARAS: Was his problem different from yours, do you know?
INTERPRETER: The same problem, you know. My brother Hatam, he also participated in these Arabic forums.
MR KARAS: Yes.
INTERPRETER: The same thing.
MR KARAS: What, you're saying the same thing as you?
INTERPRETER: Yes, the same thing. It's our life story.
MR KARAS: Was he also taken away by the Basiji and detained, as you said, for some days, beaten and that and your father had to pay to get him out as well, or did he only participate in Arab forums?
INTERPRETER: He was also caught or arrested, but I don't know the accurate dates for this.
MR KARAS: So he was only involved in the Arab forums. He wasn't involved in the Green Movement or anything as well?
INTERPRETER: No, I don't think so.
MR KARAS: So you don't think your brother was involved in the Green Movement, but only in the Arab forum.
INTERPRETER: Yes.”[9]
[9] See transcript at pages 36-38
It was following this interview that Florin Burhala made its further submission on the applicant’s behalf. In this second submission extensive country information was provided regarding the situation for Ahwazi Arabs in Iran.
It was submitted that whilst all Iranian citizens suffer political repression and severe restrictions on their freedom of speech, these violations were imposed more stringently upon Arabs. The basis of the applicant’s fear of persecution was put as being his ethnicity as an Ahwazi Arab and his political opinion, given his participation in demonstrations against the Iranian government.
d) The IMR
Mr Karas summarised the evidence presented by the applicant, in support of his claim for refugee status, at some length in his reasons. The salient factors are as follows:
·Following his brother’s death in 2005, the applicant and another brother participated in protests. His brother Hatam was in an Arabic forum in Ahwaz.
·The applicant and his brother Hatam were involved in the Arabic forum. They attended demonstrations and shouted slogans. He participated three or four times in demonstrations in 2005.
·After about a year, his brother Hatam was caught by “the court’s police and Basij” and was jailed.
·The applicant was involved in protests two or three days after the conclusion of the 2009 election.
·He was arrested and beaten for twenty-three days. His father had to pay a bribe for his release.
·Seven months later, the Basij and Sepah came to his house, on two or three occasions, looking for him. As a result, he went into hiding.
·The Basij were aware of his identity because they had videotaped the demonstrations, in which he had taken part. He also feared that his friends may implicate him to the Basij, if they were arrested and interrogated.
·The applicant stated that he had been picked up by the Basij around seven months after the demonstration.
·His sister’s husband had problems with the intelligence service in Iran and had fled to Australia. His brother had come to Australia three months before the applicant. This brother had the same problems as the applicant with the Basij/Sepah as a result of having participated in the Arab forums.
Following his review of the relevant country information, Mr Karas accepted that Ahwazi Arabs have been generally oppressed and discriminated against, in the allocation of resources and finances, by the Iranian government. However, he did not accept that either the applicant or other Ahwazi Arabs were specifically targeted because of their ethnicity, though some individuals might be so targeted because of their specific political activities.
As such, it was Mr Karas’ conclusion that a person’s identity, as an Ahwazi Arab, did not of itself cause him or her to fall within the Refugees Convention definition.
In assessing the applicant’s individual claims of persecution, Mr Karas found that there were significant inconsistencies in the applicant’s account, particularly in terms of his alleged involvement with the Basij and Sepah. As such, Mr Karas had considerable doubt about the applicant’s claims to have participated in Arab rights protests and the post-2009 election demonstrations.
Mr Karas found the applicant’s overall evidence, particularly that given at interview, to be “vague and confusing”. As such, he believed that the applicant had “fabricated and embellished parts of his story” to better advance his claims for refugee status. Fundamentally, Mr Karas found it “implausible” that the Basij had not approached the applicant’s workplace or home earlier if they were interested in him.
Accordingly, Mr Karas found as follows:
“… I do not accept that the Basij and Sepah are interested in him as claimed given the alleged incidents and his evidence regarding his imputed political associations or opinions with the Arab forum or the Green Movement although he stated he had no political involvement or activity other than his participation in protests and in the Arab forum, his detention by the Basij and Sepah, his treatment by them and his release as presented.”[10]
[10] See casebook at page 211
As a corollary of this finding, Mr Karas was not satisfied that the applicant would suffer persecution at the hands of either the Basij or Sepah, if he returned to Iran on either the basis of his race or any political opinion imputed to him. As such, Mr Karas recommended to the first respondent that the applicant not be recognised as a person to whom Australia protective obligations under the Refugees Convention.
The applicant’s submissions
Mr Gibson, counsel for the applicant, concedes that the majority of Mr Karas’ findings are not open to challenge. However, it is his contention that Mr Karas has failed to consider in any way whatsoever, certainly not in a meaningful or constructive way, a specific claim for protection clearly raised by the applicant – namely he was liable to persecution in Iran, because of political views likely to be imputed to him because of his membership of a social group, namely his family, which comprised his brother-in-law, sister and brother.
It was submitted that the issue of persecution arising to the applicant, because of his relationship with his brother-in-law and sister, was raised with Mr Karas, by the applicant, at the interview of 19 April 2011, specifically when in response to a question whether there was anything further the applicant wished to put. He said his brother-in-law “has problem with the intelligence services [in Iran] and he and his wife [the applicant’s sister] had been forced to flee Iran and had been granted asylum in Australia.
It was also submitted that in the same section of the interview, the applicant had raised the same concerns relating to his brother Hatam, who had “a problem with the Basij and the Sepah” because of his participation in Arabic forums. It was submitted that this issue of imputed political beliefs, through familial connections, was summarised by the applicant in the statement “yes the same thing, it’s our life story.”
In his written submissions, Mr Gibson summarises this aspect of his case as follows:
“This claim of imputed political opinion, or membership of a particular social group of “family”, was, it was submitted, sufficiently articulated as to require attention and consideration by the IMR. The crucial link of the sister’s husband’s problems with Iranian intelligence creating a basis for a successful refugee claim for the sister and brother was also arguably present in the Applicant’s case by reason of the familial relationship, as was the brother Hatam’s activities (e.g. with the Arab forums) which also formed the grounds for a successful claim. The country information (see e.g. CB 128) provided ample foundation for a fear of persecution for any Arab seen to be involved in anti-regime activity and by reason of their race.”[11]
[11] See applicant’s contentions of fact and law at paragraph 30
It is Mr Gibson’s contention that Mr Karas has fallen into jurisdictional error by not considering this integer or component of the applicant’s case. As such, his otherwise comprehensive reasons for decision cannot “save” it from vitiation. In this regard, Mr Gibson relies on NBGV v Minister for Immigration & Multicultural Indigenous Affairs.[12]
[12] See NBGV v Minister for Immigration & Multicultural Indigenous Affairs [2005] FCA 690
In that case, Bennett J considered a range of discrete and distinguishable claims made by an applicant for refugee status. The court dismissed all but one of these grounds, which was sufficient to vitiate the decision of the Refugee Review Tribunal, which was subject to review. In the case, Her Honour found as follows:
“… the Tribunal failed to consider the applicant’s claim to have a well-founded fear of persecution in Afghanistan by reason of his secular conduct and by reason of being perceived as someone who has abandoned Islam. That failure amounts to jurisdictional error. …”
In the case concerned, the applicant had raised other considerations relating to his ethnicity, as a Hazara and a Shia as well as other grounds. Bennett J considered that these integers of the case had been properly considered by the Tribunal.
However, the issue of the applicant’s secular conduct, which was held to be a substantial and clearly articulated argument, had not been properly considered and this amounted to jurisdictional error, notwithstanding the comprehensive and correct nature of the findings in respect of the other grounds for asylum raised by the applicant.
In Mr Gibson’s submission, the situation prevailing in NBGV is analogous to the present case, in which several grounds for asylum have been advanced by the applicant, one of which has not been considered by the decision maker concerned. The asserted failure to consider that discrete ground is sufficient to vitiate the recommendation made by Mr Karas.
It is well established that being part of a family can amount to “membership of a particular social group” for the purposes of the Refugees Convention.[13] In Sarrazola, it was said as follows:
“In my view there can be little doubt that persecution by reason of being a member of a particular family can constitute persecution for reasons of membership of a particular social group for the purposes of Art 1A(2). That conclusion does not, however, answer the question of what is the relevant "social" group, albeit that it is a family, in a particular case. A "family" in its ordinary and natural meaning can mean, inter alia, parents and their children; a group of persons closely related by blood; all persons descended from a common progenitor; or other meanings which may be appropriate to the particular cultural, or any other relevant, context in which the question arises.”
[13] See QAAT of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 18 and Minister for Immigration & Multicultural Affairs v Sarrazola (No2) (2001) 107 FCR 184 at 193 per Merkel J
In the submission of Mr Gibson, Mr Karas simply did not recognise the existence of any possible “convention-related family linkages” which would bring the applicant within reach of one of the protection criteria, arising from the convention, namely that he was liable to be persecuted because of his familial relationship with his brother-in-law, sister and brother Hatam.
Mr Gibson asserts that Mr Karas tangentially referred to this particular integer of the applicant’s claim, in the reasons for decision, when he said as follows:
“His brother had the same problems as the claimant with the Basij/Sepah by participating in the Arab forums.”[14]
However, it is asserted that Mr Karas has failed to give any consideration to this issue or certainly not the attention a discrete ground for asylum warrants.
[14] See casebook at page 192
Given the significance of this component of the applicant’s case, it is Mr Gibson’s submission that Mr Karas needed to do more than allude to it in his reasons for decision. Rather, he was required to give the issue of persecution arising from familial connection and whether that connection comprised a social group for Convention purposes, an active consideration.
It is Mr Gibson’s position that what is required of the IMR, in it requirement to consider this particular component of the applicant’s claim, is one characterised by an active intellectual process, which is not satisfied by a mere regurgitation of material or recital of facts.[15] What is required is for the decision maker to fix his mind upon each of the aspects of the applicant’s claim, which have caused him to seek protection in Australia.
[15] See MZXIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1454 at [41] – [44] per Riley FM
It is submitted by Mr Gibson that the claim for protection, on the basis of membership of a particular social group, was clearly articulated by the applicant, particularly in the interview with Mr Karas and involved facts of sufficient clarity, so as to require the IMR to actively engage with the issue in its decision making process.
In this context, reliance is placed on the statement of the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[16] where it was said as follows:
“If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by section 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.”
[16] See Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 75 ALD 630 at [45]
In this particular case, it is Mr Gibson’s submission that Mr Karas did fall into jurisdictional error because the facts put forward by the applicant did throw up the issue as to whether or not there might be a particular social group, subject to persecution, of which the applicant might be a member.
As Mr Karas did not consider this issue, he failed to complete his jurisdictional task. Essentially, it is unclear from Mr Karas’ reasons for decision whether or not the applicant can or cannot be regarded to be a member of a particular social group, namely a family comprised of his brother-in-law, sister, brother Hatam and himself.[17]
[17] In this regard see SZHWI v Minister for Immigration & Multicultural Affairs & Anor [2007] FCA 900 at paragraph 15 per Allsop J
Finally, Mr Gibson asserts that the present case cannot be characterised as one where factual findings made in relation to one asserted basis for protection necessarily and inevitably deny any other ground for protection.
Essentially it is asserted that the claim for protection on the basis of the applicant’s membership of a particular social group is a distinct and discrete one, which cannot be subsumed into findings of greater generality or because there was a factual premise, upon which the contention rested, which had been rejected by the decision maker concerned.
The first respondent’s submissions
Mr d’Assumpcao, counsel for the Minister, submits that there was no failure by Mr Karas to consider a claim which was either explicitly articulated by the applicant or was apparent from the materials before him. Essentially, it is his position that the applicant did not clearly articulate a claim for protective status on the basis of his membership of a particular social group comprised of his family.
It is Mr d’Assumpcao’s assertion that the matters raised by the applicant, through his advisor, towards the conclusion of the interview between him and Mr Karas were at best “opaque” in respect of any reference to a claim for persecution on the basis of membership of a social group. In this regard, Mr d’Assumpcao made the following written submission:
“On any reading of the transcript, the Applicant did not say that he feared persecution by reason of an imputed political opinion attributed to his brother. Nor was he saying that he formed part of a particular social group in connection with his brother’s activities. In truth, the Applicant was using his brother’s plea for asylum to bolster the veracity of his claims. In reply to the Reviewer’s questioning on the brother’s problems with Arabic forums, the Applicant said: ‘Yes, the same thing. It’s our life story’.”[18]
[18] See first respondent’s contention of facts and law at paragraph 21
In this regard, Mr d’Assumpcao submits that a claim for protection cannot rely on the creative activities of the decision maker, who is not required to construct a claim for asylum, which is not apparent from the materials before it.[19]
[19] See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) (2004) 144 FCR 1 at [19]
In support of his contention that nowhere in the applicant’s statements or submissions was there a claim expressly made in respect of protection on the basis of membership of a particular social group, Mr d’Assumpcao points to the fact that the applicant was represented by a firm of solicitors throughout the review process in the various submissions which were made on the applicant’s behalf. The specific asylum claims put forward were that the applicant feared persecution on the basis of his ethnicity as an Ahwazi Arab and his political opinion, given his participation in demonstrations following the elections of 2009.
In addition, Mr d’Assumpcao points to the fact that in his completion of the proforma application for a refugee status assessment, the applicant did not take the opportunity to provide information in response to the question “have you or any accompanying family member applied for asylum, or refugee status, in any country?” other than indicating that his brother and his wife were on Christmas Island. By necessary implication, it is the first respondent’s position that this was a perfect opportunity for the applicant to articulate a claim for protection on the basis of membership of a particular social group.[20]
[20] See casebook at page 45
Finally, it is Mr d’Assumpcao’s submission that, even if the claim for protection on the basis of membership of a particular social group (namely the applicant’s family), had been clearly advanced by the applicant, it was doomed to fail as a consequence of the provisions of section 91S of the Act. This section reads as follows:
“For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.”
The intention of this section was to modify the convention ground of the fear of persecution by reason of membership of a particular social group consisting of family by requiring a decision maker to disregard any persecution or fear of persecution that the person or any family member has experienced, if it is not based on a convention ground.
The provision arose because of claims for asylum in Australia, which were made by persons who feared persecution as a result of potential retaliation arising from the commission of criminal offences by other family members, who were considered to consist of a particular social group with the applicant concerned.[21]
[21] See STCB v Minister for Immigration & Multicultural Indigenous Affairs (2006) 231 ALR 556 at 561
In these circumstances, I am not sure that I fully understand this aspect of the first respondent’s submissions.
Conclusions
An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[22]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[22] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Essentially, an administrative decision which involves a jurisdictional error is regarded, in law, as no decision at all.[23] In addition, an administrative tribunal carrying out a review function must exercise the jurisdiction conferred upon it, in the sense that it is required to consider all aspects of the case put before it. Otherwise, a decision made without reference to such material constitutes a failure to exercise jurisdiction.[24]
[23] See Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at [45]
[24] See Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 per Callinan J at [63]
In the context of cases involving claims for asylum, the principle was expressed as follows by the Full Court of the Federal Court in Dranichnikov v Minister for Immigration and Multicultural Affairs:[25]
“The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.”
[25] Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]
The applicant asserts that in answer to an open-ended question, posed to him by Mr Karas, he put his case as best he could. He raised issues germane to his relationship with his brother-in-law and his sister, whom he asserted had fallen fowl of the intelligence services in Iran and, as a consequence, had fled to Australia. It is Mr Gibson’s assertion that it was not up to the applicant to articulate his claim to any greater degree or to pick with specificity the “correct convention label” which applied most appositely to his situation.
On the other hand, it is contended by the first respondent that this issue was not sufficiently articulated by the applicant to render it necessary for Mr Karas to have given it any consideration, particularly given the otherwise thorough and exhaustive nature of his reasons in the matter, which largely rested on Mr Karas’ rejection of the credibility of the applicant’s account of his involvement with the Basij.
In my view, it cannot be said that the applicant has expressly put a claim for refugee status on the basis of his membership of a particular social group, namely his family. In this regard, I have regard to the applicant’s extensive and professionally prepared submissions to the IMR which rested his claims for protection on the basis of his ethnicity as an Ahwazi Arab and his imputed political opinions arising from his involvement in demonstrations against the Iranian government. Accordingly, the question arises as to whether the ground of persecution based on membership of a particular social group was nonetheless raised by the applicant, although in an implied or constructive fashion, rather than expressly.
The applicable principles which apply to cases where it is asserted a jurisdictional error arise because it is said an administrative tribunal has failed to deal with an aspect of a claim which is said to be impliedly rather than expressly put are enunciated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[26] as follows:
“The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised on the material before it…There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case are not articulated…It has been suggested that an unarticulated case must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it…The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.” (citations omitted)
[26] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
From this passage, I take it the reviewer is required to consider all claims which appear expressly on the face of the material before him whether they are specifically articulated or not. However the reviewer is not required to seek out such a ground in a creative manner. He is not required to consider a case which is not expressly made out or which does not arise clearly on the materials before him.
The failure of a reviewer to consider a claim raised by the evidence (whether or not articulated) amounts to a failure of procedural fairness and therefore leads to a jurisdictional error. However a judgement that a reviewer has failed to consider a claim not expressly advanced is not one which should be lightly made. If such a claim is required to be considered it must emerge clearly from the materials available to the reviewer.
The important distinction is that although the reviewer is required to consider claims which although not articulated arise clearly on the face of the material, it is “not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it.”[27]
[27] Ibid at [60]
The emphasis being on whether such claims arise clearly. Each such case must be judged on its own circumstances to determine whether an error of jurisdiction has arisen. In NABE the Full Court of the Federal Court said as follows:
“…a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and it is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Errors of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.’ ” [28]
[28] Ibid at [63]
In ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs[29] the Full Court of the Federal Court pointed out that a tribunal determining refugee applications, although dealing with matters of great importance was nonetheless an “administrative body operating in an environment which requires the expeditious determination of a high volume of applications.” As such, it was not necessary for such a tribunal to provide reasons of the kind that might be expected of a court or was it necessary for such a tribunal “to refer to every piece of evidence and every contention” made by an applicant.
[29] ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 at 641
In this context the Full Court reiterated the off quoted warning to courts performing a judicial review function in respect of such administrative tribunals that they were not to scrutinise the reasons of these tribunal “with an eye keenly attuned to error.” Rather, the court was required to give a fair reading to their reasons.
In this context, the Full Court in ApplicantWAEE said as follows:
“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 the 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.”[30]
[30] Ibid at 641 [47]
The central issue in this case is whether Mr Karas failed to consider the case advanced by the applicant, in all its aspects, and so failed to exercise the jurisdiction conferred upon him. However, Mr Karas is not required to consider a case which was not “squarely” before him. In this context, I accept Mr d’Assumpcao’s submission that the comments of Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs [31], albeit in dissent, are apposite:
“Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
[31] S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 quoted in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) at [62]
In this particular case, I am not persuaded that the tests in NABE of an “articulated” or “clearly raised” claim of persecution, for a convention reason, as a result of the applicant’s membership of a particular social group are satisfied.
For the applicant’s ground of appeal to be successful, it will be necessary for him to establish that the issue of his membership of a particular social group arose “clearly” in the material before Mr Karas and has not been considered by him and this, in the overall context of the matter, amounts to a denial of procedural fairness and failure to exercise the jurisdiction conferred upon Mr Karas. In my view, it would be an exercise in artificiality to construe the statements made by the applicant, at the conclusion of his interview with Mr Karas, as “clearly” raising this issue.
In any event, even if this ground was clearly articulated, in my view, this putative error has been subsumed by other findings of fact made by Mr Karas. These findings relate to the generally unsatisfactory nature of the explanations given by the applicant to Mr Karas. In the reasons, Mr Karas said as follows:
“… there was some contradictions in his evidence as reflected in his written statements and evidence at the hearings or interviews like that in Darwin regarding his and his family’s involvement with the Basij and Sepah and in politics and the Arab forum. Although the advices sought to clarify and correct aspects of the evidence presented, the reviewer notes that that very relevant information was not given consistently through the process and the claimant sought to embellish his evidence to better suit his position for asylum in Australia.”[32]
[32] See casebook at page 207-208
Essentially, it was Mr Karas’ finding that the applicant had presented information, at the latter stages of the interview process, regarding his brother-in-law and sister to embellish his own claim for asylum.
For these reasons, I am not persuaded that the reasoning of Mr Karas manifest any failure to address any element in the applicant’s refugee claims, the absence of discussion of which would show a material error of law.
It must follow from this conclusion that the application herein should be dismissed. It further follows that the applicant should pay the first respondent’s costs, which I assess at $5,850.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 25 January 2012
[4] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
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