DZAAS v Minister for Immigration and Citizenship
[2012] FCA 828
•7 August 2012
FEDERAL COURT OF AUSTRALIA
DZAAS v Minister for Immigration and Citizenship [2012] FCA 828
Citation: DZAAS v Minister for Immigration and Citizenship [2012] FCA 828 Appeal from: DZAAS v Minister for Immigration & Anor [2012] FMCA 40 Parties: DZAAS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NTD 13 of 2012 Judge: DOWSETT J Date of judgment: 7 August 2012 Dates of last submissions: 9 and 10 May 2012 Catchwords: MIGRATION – appeal from decision of Federal Magistrates Court – stateless Faili Kurd, being a citizen of neither Iraq nor Iran – Minister’s power to allow application for protection visa if considered in the public interest, pursuant to s 46A(2) Migration Act 1958 (Cth) – Independent Merits Review – whether Reviewer is obligated to refer to material which was before him in other cases – claim based on fear of persecution for reason of nationality or imputed nationality and/or membership of a social group – relevant social group Faili Kurds in Iran Legislation: Migration Act 1958 (Cth) Cases cited: Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 cited
UK Country of Origin Information Report for Iran 2010Human Rights Watch World Report 2009
Date of hearing: 1 May 2012 Place: Brisbane (via video link) (Heard in Darwin) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Appellant: Mr J Gibson Solicitor for the Appellant: Northern Territory Legal Aid Commission Counsel for the First Appellant: Mr T Anderson Solicitor for the First Appellant: Australian Government Solicitor No appearance for the Second Respondent at the hearing, he having indicated that he would abide any order of the Court, save as to costs.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 13 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DZAAS
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
7 AUGUST 2012
WHERE MADE:
BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)
THE COURT ORDERS THAT:
1.the appeal be dismissed; and
2.the appellant pay the first respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
NTD 13 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: DZAAS
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentMICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent
JUDGE:
DOWSETT J
DATE:
7 AUGUST 2012
PLACE:
BRISBANE (VIA VIDEO LINK) (HEARD IN DARWIN)
REASONS FOR JUDGMENT
INTRODUCTION
In 1987 the appellant was born in the town of Mehran in Iran, near to the Iraqi border. He is of Faili Kurd ethnicity and a Shi’a Muslim by religion. His parents were born in Iran but migrated to Iraq as children. During the regime of Saddam Hussein they were forcibly returned to Iran. As a consequence of these events the appellant is stateless, being a citizen of neither Iraq nor Iran.
On 26 February 2010, the appellant arrived at Christmas Island by boat, without valid travel documents. In those circumstances, he is not eligible to apply for a protection visa. However, pursuant to s 46A(2) of the Migration Act 1958 (Cth) (the “Migration Act”), the first respondent (the “Minister”) may, if he considers that it is in the public interest so to do, permit such an application. When a person seeks a favourable exercise of that discretion, a departmental officer prepares an assessment known as a refugee status assessment (“RSA”), in order to determine whether Australia owes protection obligations to that person. The outcome of such process is subject to independent merits review (“IMR”). It is common ground that the IMR process is subject to judicial review. In the present case both the RSA and the IMR resulted in unfavourable outcomes for the appellant. The IMR was conducted by the second respondent (the “Reviewer”). The appellant sought review of the IMR process in the Federal Magistrates Court but was unsuccessful. This is an appeal from that decision. the Reviewer has indicated that he will abide any order of the Court, save as to costs.
AUSTRALIA’S PROTECTION OBLIGATIONS
Australia’s protection obligations to the appellant depend upon Art 1A(2) of the 1951 Convention Relating to the Status of Refugees (the “Refugees Convention”) and the 1967 Protocol concerning the same subject. A person is a refugee if he or she:
… 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 [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
IN THE FEDERAL MAGISTRATES COURT
The RSA and the IMR were conducted upon the basis that the appellant claimed to fear persecution in Iran for reason of his race (Faili Kurd) or membership of a social group, namely persons who had left Iran illegally and returned, referring to his having come to Australia and, potentially, being returned to Iran. However, before the Federal Magistrate, a different approach was taken. It was submitted that the Reviewer:
… failed to address one of the claimed bases of the [appellant’s] fear of persecution which was actually and/or constructively before it 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 [appellant’s] claims being the claim that the [appellant] 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.
Thus the claim is now said to be based on fear of persecution for reason of nationality or imputed nationality and/or membership of a social group. However the relevant social group seems not to be the social group of “returnees” considered in the IMR. Rather, the relevant social group seems to be Faili Kurds in Iran. As far as I can see, the “new” case based on nationality is, itself, a recasting of the case advanced in the IMR, alleging fear of persecution for reason of race. In the Federal Magistrates Court, the appellant did not challenge the Reviewer’s rejection of his claims based on race and on membership of a social group, namely “returnees”. Before the Federal Magistrate and on appeal, the question has been whether or not the appellant, at any relevant time prior to, or in the course of the IMR raised these alternative cases. In order to determine that question, it is necessary that I examine the various statements made by the appellant, or on his behalf, before and in connection with the IMR process.
INTERVIEW ON ARRIVAL
The appellant was interviewed shortly after his arrival in Australia. When asked why he had left his country of residence he said:
I don’t have any right for education, my brothers can’t go to school either. I can not get any work because I don’t have citizenship in Iran, no documents to prove my ID - so I don’t have any rights.
I don’t have right to get married, when I applied to get married I was asked for where I worked, my ID and when I couldn’t produce them they denied me right to get married.
He also said:
I can not live freely, I can’t go out, can’t get a job – that’s the effect that we have in our life.
THE STATUTORY DECLARATION
On 2 May 2010, he completed a statutory declaration, apparently with legal assistance, in which he said, under the heading “Why I left my country”:
I fear I will be killed or seriously harmed. My father was chased by the Basij approximately 19 years ago. They chased him for being an illegal resident and Kurdish Faili. He slipped over the side of a cliff and lost his arm. There was no opportunity for him to seek proper hospital treatment and ended up losing the use of his arm.
The Basij is a voluntary militia established in Iran in 1979, following the overthrow of the Shah. It operates throughout Iran and is regarded as an instrument of government.
The appellant also asserted that he had worked as a metal cutter, and that his employer was able to exploit him because he was a Faili Kurd, with no basic rights, such as the right to education or work opportunities. He said that on one occasion, the Basij were searching for Faili Kurds who were working as illegal labourers. He ran into the bush, presumably to escape them. His friends were caught and bashed to death. The appellant said that as he was in grave danger and being heavily exploited as a stateless Kurdish Faili, he made arrangements to leave Iran immediately, obtaining money from his family. Two days later, he left Iran. The Reviewer identified serious inconsistencies in these aspects of his evidence, including his claim to have left Iran at that time. The appellant asserted that:
As Kurdish Faili we have nowhere to go and no one to turn to. We have no right to documentation or residency. We are denied basic civil rights such as the right to residency, education, work opportunities and health care. I have only had 2 years of informal education, which took place in a tent. I have never been given a chance, been offered opportunities or guaranteed safety in Iran.
He claimed that he would never be able to live in Iran without routine discrimination, hardship and the threat of death. He claimed to fear that the Basij would kill him.
Of particular importance for present purposes is the following extract from the statutory declaration:
The Basij are always targeting Faili Kurds as they believe we have no place in Iran. Kurdish Faili have no identity or rights.
The Basij believe that we Kurdish Faili do not belong in Iran and should go back to Iraq. They call us ‘Arab insect eaters’. They say ‘this is our country, what the hell are you doing here?’
I cannot seek protection from the Iranian authorities. The Basij are far more powerful than the authorities. The Basij are a ruthless group with too much power in Iran.
WRITTEN SUBMISSIONS
The appellant’s solicitors made written submissions in support of his application for an IMR. They submitted that he “claims protection on the basis of his ethnicity, namely that he is Kurdish Faili, stateless and living illegally in Iran”. The submission then referred to the content of the statutory declaration and the history of the Faili Kurds. They comprise an ancient segment of Iraqi society which ruled parts of that country at the beginning of the 16th century. They were prominent in the trade and commerce sector, and were persecuted by the Saddam Hussein regime because of their social adaptability and mobility, hard work, economic advancement, openness and non-sectarian attitudes. After 4 April 1980 many were forcibly deported from Iraq. It is said that up to half a million were eventually deported. Many now live in Iran.
The submissions then addressed “The Situation in Iran”. Some care must be taken in reading this part of the submission. Firstly, it consists of substantial extracts drawn from various sources, interspersed with comments and/or submissions. The point at which citation of an extract stops and submissions start is not always clear. Secondly, much of the material relates to the position of Faili Kurds in Iraq, not Iran. Further, much of it, in dealing with Iran, addresses the position of Kurds generally, rather than Faili Kurds. The material demonstrates that whereas most Kurds are Sunni Muslim, Faili Kurds are Shi’a Muslim. Shi’a Islam is the state religion of Iran. At p 14 of the submissions there is a suggestion that Shi’a Kurds are not discriminated against in Iran to the same extent as are Sunni Kurds. Another problem is that some of the material has been extracted from sources apparently designed to encourage Faili Kurds living outside of Iran to support those living inside Iran.
The appellant submitted that there is little, if any protection for Faili Kurds in Iran, and that they are persecuted and denied national recognition and basic human rights. He submitted that they are subjected to routine and cumulative discrimination, amounting to persecution. They are denied basic civil rights with respect to education and work opportunities, the right to a lawful marriage and citizenship. However, as I have said, little of the country information seems to deal with Faili Kurds as distinct from Kurds generally. For this reason it is difficult to identify evidence which supports these submissions.
The Reviewer understood the appellant to claim that he would face a real chance of suffering persecution if returned to Iran due to:
·his Faili Kurdish race/ethnicity; and/or
·his membership of a particular social group, namely “returnees”.
He failed on both aspects. Clearly, the appellant’s claim was that Kurdish Faili are not welcome in Iran, and that Iranians consider that they should return to Iraq. It is accepted that they constitute a recognizable ethnic group. It seems generally to be accepted that they have no nationality. However the appellant now submits that the Iranians consider the Faili Kurds to be Iraqi, and that they are discriminated against on that basis. It seems unlikely that Iranians would believe that Faili Kurds have Iraqi nationality in the sense of recognition by Iraq as Iraqi citizens. It is more likely that the Iranian perception is that they belong in Iraq rather than Iran. Concepts of race, nationality (particularly perceived nationality) and social grouping may overlap. No doubt there are circumstances in which it is necessary to decide precisely which category is appropriate to describe the perceived motivation for feared persecution but, in many cases, it may not make any difference.
THE PRESENT CASE
As in all cases of this kind, the starting point must be the alleged fear of persecution for a Convention reason. The appellant certainly articulated a fear of persecution for reason of his being a Faili Kurd and as a potential returnee from Australia. These claims were rejected. Such rejection was based upon the Reviewer’s rejection of much of his evidence, particularly that concerning the Basij’s pursuit of him and the killing of his friends, the absence of evidence concerning persecution of returnees and country information that Faili Kurds are not targeted in Iran for reason of their ethnicity. Racially motivated violence against any group is said to be rare in that country. The Reviewer also concluded that any possible discrimination would not amount to persecution. The appellant obviously believes that these adverse findings are not a bar to success in connection with his claims to fear persecution for reason of nationality or membership of a social group, namely Faili Kurds in Iran. This belief seems to depend upon unusual circumstances. It is said that evidence in another case, which evidence was not before the Reviewer in this case, supports the new claims.
IMR NO TRI016
The Reviewer interviewed the appellant at Christmas Island on 15 October 2010. His report is dated 2 February 2011. It seems that on 31 January 2011 the Reviewer had published a report in another, similar IMR, described as No TRI016 (“TRI016”). The Reviewer interviewed the appellant in that matter on 24 October 2010. In his report in TRI016, the Reviewer cited an extensive passage from submissions made on behalf of the applicant in that case. As in the present case, it contained numerous citations from various sources, interspersed with submissions or comment. The Reviewer observed that the submissions were in response to adverse country information. The extract from the submissions is contained in para 21 of the TRI016 report. It commences with an introductory paragraph, followed by a heading, “Discrimination against Kurds in Iran”. There is then a further short paragraph, followed by an extract from the “UK Country of Origin Information Report for Iran 2010” (“UK Iran Reports), of which paras 20.02, 20.03, 20.04, 20.05, 20.09 and 20.12 are cited. There is then a reference to the Human Rights Watch World Report 2009. The citation is precisely as follows:
The Human Rights Watch World Report 2009, released 15 January 2009, stated that:
“Iran’s ethnic and religious minorities are subject to discrimination and, in some cases, persecution. In the northwestern provinces of Azerbaijan and Kurdistan, the government restricts cultural and political activities by the Azerbaijani and Kurdish populations, including the operation of NGOs that focus on social issues. The government also restricts the promotion of minority cultures and languages.
Frank Jordans, for the Associated Press, reported:
Washington’s Envoy to the UN Human Rights Council said Iran was still discriminating against minorities and failing to safeguard freedom of expression and assembly…1
Faili Kurds are not simply persecuted due to their identity as Kurds. They are also persecuted due to their imputed identities as Iraqis. Given the continuing hostile relationship between Iraq and Iran, and bitter memories on both sides of the Iran-Iraq War of 1980-1988, Faili Kurds, regarded as ‘Iraqi’ by the local Iranian population, are subject to significant risks of extrajudicial violence, discrimination, and occasionally arrest.
1 Frank Jordans, ‘US urges Iran to fulfil human rights pledges ahead of anniversary of postelection crackdown’, Associated Press, 10 June 2010
Confirming these attitudes in relation to Faili Kurds, the UNHCR have reported that:
Summing up their dilemma, Jahrom Camp Manager Gholamneza Ghasbarian said, “When they go back to Iraq, people say they’re Iranian. But here, people say they’re Iraqis and should go back. In Iraq, they face many problems - first there’s the insecurity. Also, they’ve been in exile for so long, they have no contacts, no jobs and no homes to go back to.”2
Of the two footnotes, the first appears at the bottom of page 1. The passage commencing with the word “Confirming” appears at the top of the next page. The second footnote reference is to an internet site. Whilst the paragraph commencing “Iran’s ethnic and religious minorities” (“para 1”) was clearly extracted from the Human Rights Watch World Report 2009, it is not clear whether the citation continues past the end of that paragraph. In other words, the reference to Frank Jordans and the following lines (“para 2”) may appear to be part of the quotation from the Human Rights Watch World Report. However reference to the Human Rights Watch document on the Internet indicates that only para 1 comes from that source. Reference to the Internet also discloses that only the passage from “Washington’s Envoy” to “assembly” comes from Mr Jordans’ article. Thus it seems clear that the paragraph commencing “Faili Kurds are not …” (“para 3”) is by way of submission or comment. The balance of the extract (“para 4”) is from the identified source, the United Nations High Commissioner for Refugees.
The appellant submits that para 3 of the extract demonstrates that Iranians consider Faili Kurds to be of Iraqi nationality, which perception is said to lead to hostility towards them because of the Iran-Iraqi War (1980-1988), and to their being at risk of “extra-judicial violence, discrimination and occasionally arrest”. In other words, the appellant relies upon para 3 as justifying a fear of persecution by reason of nationality and/or membership of a social group, namely Faili Kurds in Iran. However as I have demonstrated, that paragraph was a submission in TRI016, not evidence. I am told that before the Federal Magistrate, it was assumed that it had evidentiary value. Counsel for the Minister said that counsel appearing in the Federal Magistrates Court had not, at that time, identified the correct status of the paragraph.
The appellant submits that the Reviewer ought to have taken this material into account in considering the appellant’s alleged claim to fear persecution for reason of his nationality, namely imputed Iraqi nationality, and for reason of membership of the associated social group. It is, to say the least, unusual that a party should seek to rely upon “evidence” in an entirely separate case. The appellant submits that the publication of reasons in TRI016 occurred shortly before the publication of reasons in the present matter, and that the material ought to have been in the Reviewer’s mind and considered in deciding the current case. Support for this somewhat surprising submission is said to be found in cases which have recognized that specialist tribunals acquire a reservoir of specialist knowledge. See Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 at [7] and [12]. That line of cases, as I understand it, arose in circumstances in which a tribunal had used information not placed before it by interested parties. The cases did not deprecate that practice, provided that the parties were afforded procedural fairness. In the present case counsel for the appellant suggests that those cases impose an obligation upon a decision-maker, such as the Reviewer, to recall and consider such material.
The argument is most unappealing. It is true that questions of procedural fairness do not presently arise. The Minister was not involved in the IMR process and so could not complain if the Reviewer had regard to evidence in another case. The appellant perceives the information to be favourable to his cause and so does not submit that it should have been drawn to his attention. However, if such an approach is taken in other administrative decision-making processes, questions of procedural fairness may well arise, as would other problems. Decision-makers would have to go back through earlier decisions, in order to discover whether there was any material to which they should refer in matters currently under consideration. There would be room for associated arguments about relevance and about whether, in an earlier case, a reviewer had accepted or rejected the material in question, the correctness of any such decision, and its appropriateness in the current case. Further, it is not clear why, in principle, a reviewer would not also have to consider material placed before other reviewers.
In the present case, it is an arguable inference that in TRI016, the Reviewer, in citing the extract which extends over about two pages, was indicating general acceptance of it. However it does not follow that he accepted every aspect of it. Paragraph 3 may have been irrelevant to the precise question which he was addressing or, more likely, he may have correctly identified it as being by way of submission, rather than as having any evidentiary value.
The appellant asserts that the decisions were relatively close in time and addressed similar issues, and that those circumstances placed a particular responsibility upon the Reviewer in this case. As superficially attractive as such an argument may be, it is simply incorrect. First, it is quite clear that TRI016 was a case based upon fear of persecution for reason of Faili Kurdish race/ethnicity and/or membership of a particular social group, namely “returnees”. The evidence was not led to support a case based on fear of persecution for reason of nationality or membership of a social group, namely Faili Kurds in Iran. It is also clear that the case was decided primarily upon the basis of information from DFAT that minority groups in Iran are not targeted because of ethnicity, and that racially motivated violence against any group is rare.
Finally, it would be undesirable, as a matter of policy, to encourage decision-makers to address cases in a generic way, rather than by discrete consideration of each upon its merits. I reject the submission that the Reviewer was under any duty to refer to material which was before him in other cases, even recent cases. He considered the material put before him by the appellant and also had regard to available country information. I see no error in any of this.
I should say something about the course which I have taken with respect to this matter. Given that counsel for the Minister asserted that it was not clear whether the passages from TRI016 were entirely from the identified sources or comprised submissions, it seemed reasonable to look to those sources to resolve the question. Obviously, however, it was necessary that I offer the parties the opportunity to comment and make submissions. I did so, assuming that no party would see any legitimate advantage in allowing the Court to make a decision based on a clear misconception. Curiously, however, counsel for the appellant submitted that because the Reviewer in TRI016 arguably treated the whole passage as being country information and not submission, it should be similarly treated in this case. In that context counsel for the Minister submitted that I should decide the case without regard to the sources of the extracts referred to in TRI016. Out of an abundance of caution I shall proceed accordingly. I observe, however, that to decide a case on the basis of a clear misconception of the evidence may well bring the judicial process into disrepute. Counsel should assist the Court to avoid such difficulty.
I hold that the Reviewer did not err in failing to refer to material which was before him in TRI016. He was under no obligation so to do.
WERE THE CURRENT CLAIMS RAISED BELOW?
There remains the question of whether these alternative claims were properly raised by the appellant and ought, therefore, to have been considered, even if there were insufficient evidence to support them. Inevitably, I must return to the appellant’s fear of persecution. Clearly, he asserted that the Basij, and Iranians generally, consider that Faili Kurds do not belong in Iran and should return to Iraq. This suggests discrimination based on race, but that case has been rejected. Counsel for the appellant put great store by the expression, “They call us ‘Arab insect eaters’.” Neither the Iranians nor Kurdish Faili are Arabs. As I understand it, the Iraqis are Arabs. As much was assumed by the appellant in his submissions. The epithet “insect eaters” is not so readily understood. Perhaps it suggests the ascetic habits of the desert-dweller.
Any insult intended by use of the word “Arab” is plainly racial rather than national. Counsel for the appellant submits that the term “Arab insect eaters” is, in effect, a description of persons of Iraqi nationality and raises the question of fear of persecution for reason of nationality. The logic by which it is said that the expression “Arab insect eaters” describes people of Iraqi nationality, including Kurdish Faili who are not, escapes me. At best it is a racial slur, but in any event, it is simply part of the Irani attitude towards Faili Kurds as a racial group, as is any tendency to ascribe Iraqi nationality to them. To my mind any fear of persecution was properly characterized as being for racial reasons, a claim which has been rejected. No case of fear of persecution for reason of nationality is raised. In any event, such a case would go no further than the case based on persecution for reason of race and would have failed for the same reasons. Similar comments apply to any alternative case based upon fear of persecution for reason of membership of a social group, namely Faili Kurds in Iran.
The appeal must be dismissed with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 7 August 2012
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