DZACA v Minister for Immigration
[2012] FMCA 280
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 280 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Allegation that the Reviewer failed to consider claims made by the applicant. |
| Migration Act 1958, ss.36, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | DZACA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 62 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 April 2012 |
| Date of Last Submission: | 3 April 2012 |
| Delivered at: | Darwin |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Karapanagiotidis |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the First Respondent: | Mr T. Anderson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 62 of 2011
| DZACA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 23 June 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 10 September 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 10 January 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 31 August 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA assessment and subsequent review.
Because the applicant had no visa when he entered Australia at Christmas Island he is an “offshore entry person” who cannot make a valid application for a protection visa. However, ss.46A and 195A of the Migration Act 1958 (“Act”) provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. As well as other orders, he seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 5 of those reasons and are relevantly summarised below.
The applicant’s advisers provided submissions to the Reviewer dated 16 May 2011 summarising the applicant’s claims as follows:
a)he was born in Iran and was a Shia Muslim of Persian ethnicity;
b)prior to the election in 2009 he was a supporter of Mir-Hossein Mousavi and an opponent of the ruling regime;
c)he operated a coffee shop from 2006 to 2009. Sepah would push customers out of the shop and force them to go to Friday prayers. He was also forced to attend many times against his will. He was accused by Sepah of being against the religion;
d)the day before Ashura in December 2009 he was caught up in a large and violent anti-government demonstration. He gave a lift to four men, a couple of whom were bleeding. He believed that they were well known activists;
e)the next day he was informed that the authorities had raided his parents’ house in search of him. They had arrested his father and his brother. His father was later released but his brother remained in prison; and
f)he would face persecution in Iran as a failed asylum seeker. His advisers referred in this connection to an Amnesty International report and to a particular decision of the Refugee Review Tribunal (“RRT”).
At his interview with the RSA assessor the applicant also alleged that in 2009 he had been detained and beaten by the Basij because he had been participating in a gathering in a public place and had been disturbing people.
The applicant was interviewed by the Reviewer on 25 May 2011 at which point he made the following additional claims:
a)he had to change the location of his coffee shop about four times because the authorities kept cancelling his work permit as they did not want the youth to congregate;
b)he was driving on Ashura Day when he came upon a protest. He picked up four people who asked for his help, one of whom was injured. He dropped them off a few streets away and then went to another religious ceremony;
c)the authorities came to his father’s house to look for him but he was not living there at the time, having moved out about a year after his mother died. They arrested his father and one of his brothers instead;
d)he could not remember when his mother died as he was “not feeling well mentally”. However, he later said that it was eight or nine years earlier. He confirmed that he had not lived at his father’s house for seven or eight years;
e)his brother died in prison under torture;
f)he did not change the address details for his car registration, driver’s licence, passport and medical insurance when he moved out of his father’s house, which would account for why the authorities went there and not to his home;
g)he had been unemployed for approximately three or four months prior to this incident as the government had closed down his coffee shop;
h)he was able to afford to come to Australia as he had savings and his father supported him financially; and
i)he left Iran because the authorities were looking for him.
At the interview the applicant provided copies of a death certificate and a “burial permission” for his brother. Both documents stated that the applicant’s brother had died as a result of “impact of a hard object”.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)the substance of the applicant’s claim for protection was that he feared persecution by the Iranian authorities for political reasons because he had helped some people who were injured in an anti-government demonstration by giving them a lift in his car, people whom he believed were well known activists. However, there was nothing by way of evidence to demonstrate the basis for the applicant’s belief that the men he had picked up were in fact well known activists;
b)the applicant did not present as a credible witness as his answers to relatively simple questions were vague. In particular, he told the Reviewer that he had moved away from home one year after his mother’s death but when questioned about when she died he said that he could not remember. When the Reviewer repeated the question the applicant said that he had provided a date in a previous interview but was now “not feeling well mentally”. The Reviewer inferred that the applicant was not prepared to give a date which might contradict his earlier evidence and when he said as much to the applicant, the latter said that his mother had died eight or nine years ago;
c)the applicant stated that he was a tax-payer, had medical insurance and held a passport as well as a driver’s licence but claimed that he had not changed his official address on any of these records when he moved out of his father’s house some seven years earlier. The Reviewer concluded that this was a fabrication designed to explain his escape and the claimed arrest of his brother. The Reviewer’s conclusion was reinforced by the applicant’s confused explanation regarding his ability to fund his departure from Iran. He initially told the Reviewer that he was “financially ok”, however, when the Reviewer put to him his claimed history of failed coffee shops due to government action, the applicant said that he had been able to save while working and that his father had supported him;
d)the Reviewer found the applicant’s claims and speculations implausible and was satisfied that he had fabricated his claims about picking up well known activists and the subsequent arrest of his brother. The Reviewer had regard to the death certificate and to the burial permission submitted by the applicant but noted that they were evidence only of the fact of death by impact with a blunt object which could have been the result of any number of causes. The Reviewer therefore gave the documents little weight;
e)the applicant did not claim that the closure of his coffee shops was in some way politically significant. At most, it was said that the authorities did not like youth to gather in such places. The Reviewer found that, in any event, the closures were related to work permits and did not amount to serious harm. Similarly, the applicant’s passing references to being forced to attend prayers and being accused of being against religion did not amount to serious harm; and
f)as for the applicant’s claims that he would be persecuted in Iran as a failed asylum seeker, the Reviewer noted that there was nothing in the material provided by the applicant which would compel the Reviewer to make such a finding. Indeed, the report from Amnesty International was concerned with Iranians outside the country who had publicly expressed dissatisfaction with events in Iran. There was no evidence that the applicant belonged to that category or any reliable evidence that merely being in Australia would give rise to a real chance of persecution.
Proceedings in this Court
Ground 1
Applicant’s submissions
The first ground of the applicant’s application was pleaded as follows:
1.The Reviewer misconstrued and/or failed to consider the Applicant’s claims.
Particulars
(a)The Reviewer made a finding that the applicant had not claimed that the closure of the coffee shops “was in some way politically significant” for the applicant.
(b)Contrary to this finding and/or assessment of the applicant’s claims, the applicant claimed that such closures were as a result of targeted, repressive Government action.
The applicant submitted that his allegation that his coffee shops were closed as a result of targeted, repressive government action was made in his statement of 10 September 2010 lodged in support of his RSA application where he had said:
When I had my coffee shop, I was forced many times by the Sepa [sic] to go to Friday prayers, even though this was against my wishes. When my coffee shop was crowded on Fridays they would push my customers out to the mosque and force me to close while accusing me of being against the religion. This firmed up my opposition to the regime.
The applicant submitted that this claim had been acknowledged by the RSA assessor in her decision record and had also been discussed during his interview with the Reviewer. He submitted that it was clear on the evidence that he had claimed that the closures of his businesses were politically motivated and/or related.
The applicant submitted that, despite this, the Reviewer found that he had not claimed that the closure of the coffee shops “was in some way politically significant”. He submitted that the Reviewer misconstrued his claim and in doing so failed to consider and/or failed to consider properly whether the incidents were Convention-related and capable of amounting to persecution.
Consideration
Initially it must be observed that the motivation for closing the applicant’s coffee shops could only have relevance to the Reviewer’s consideration if it was relevant to the applicant’s claim to fear persecution upon a return to Iran. If the allegations concerning the coffee shops were not relevant to that claim, then the Reviewer would not err by not considering what motivated them.
Importantly in this regard, it is apparent that the Reviewer did not understand the applicant to be alleging that his claimed fear of persecution by reason of his actual or imputed political opinion arose out of or was related to the authorities’ treatment of his coffee shop business. At para.29 of his reasons the Reviewer said:
It is not claimed that the closure of the coffee shops was in some way politically significant for the claimant.
This statement followed the Reviewer’s identification, at para.26 of his reasons, of the claims which the applicant did make:
The substance of [DZACA’s] claim for protection is that he fears persecution by the Iranian authorities for political reasons. This is because he helped some people who were injured in an anti-government demonstration by giving them a lift in his car.
This statement reflects what the applicant’s own advisers had said in their post-hearing submission to the Reviewer dated 1 July 2011:
The substance of the claim made by this claimant is that he was driving close to a place where a demonstration had taken place or was taking place. He was asked to stop and help several people one of whom was injured. He says he picked up four people and he took them to a place which they directed him to. He says that at the time he didn’t know there were protests but he said he stopped because they ask [sic] for help and he wanted to help them. When asked why, he said that he thought like them and they were demonstrating for everyone.
It is true that prior to the submission of 1 July 2011 the applicant had referred to what had happened to his coffee shop business but his allegations concerning its repeated closure by the Iranian authorities and the related treatment of him and his customers were not expressed to be part of the reasons why he claimed to fear persecution in Iran. At all times that was said to arise out of the help which he allegedly gave to some protesters. Rather than forming part of the basis for the applicant’s claimed fear of persecution, the closure of his coffee shops and the fact of his enforced attendance at Friday prayers appear to have been proffered as background for his claimed opposition to “the regime” which in turn gave some logical context to his decision to assist the protesters.
Consequently, the Reviewer correctly understood that the claim articulated by the applicant was that he feared persecution because of the assistance which he claimed to have provided to four protesters and the political opinion which that action represented or might be inferred to represent.
Consequently, the Reviewer was not required to consider why the applicant’s coffee shops had been closed by the Iranian authorities.
I further find that the applicant’s evidence and submissions concerning events related to the coffee shops should not be understood to amount to an unarticulated claim which the Reviewer should have considered. In the context of the RRT Allsop J said in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
A claim to fear persecution for reasons associated with the events surrounding the applicant’s former coffee shop business does not arise tolerably clearly from the material before the Reviewer. This is because the applicant did not suggest at any time that the Iranian authorities:
a)had any particular interest in or knowledge of him, whether as the proprietor of coffee shops where young people congregated or as an insufficiently frequent participant in Friday prayers; and
b)imputed to him a political opinion because of the way he operated his coffee shops or because he failed to attend Friday prayers sedulously; or
c)knew that he had a political opinion which in some way was manifested by the way he operated his coffee shops or failed to attend Friday prayers;
such that there was a real chance that he would face persecution if he returned to Iran.
A claim to fear persecution for political reasons cannot be said to emerge tolerably clearly or at all from the simple fact that the applicant allegedly had a political opinion at the relevant time and also experienced some mistreatment or unfairness at the hands of the Iranian authorities. As the RSA assessor said:
The claimant did not advance any reasons which would identify a Convention ground in relation to these incidents.
Consequently, there was no unarticulated claim to fear persecution arising out of the mistreatment suffered by the applicant in connection with his coffee shop business and the Reviewer did not err by not considering such a claim.
Ground 2
Applicant’s submissions
Ground two of the application was pleaded as follows:
2.The Reviewer failed to consider whether the applicant was at risk of persecution because of his opposition to the Government and ruling regime.
Particulars
(a)The applicant’s [sic] claimed to have been opposed to the ruling regime.
(b)The applicant claimed that the Iranian government was condemned throughout the word [sic] for its human rights violations and that it sought violent retribution against people perceived to be opposed to it.
(c)The Reviewer failed to consider whether the applicant was at risk of persecution by reason of his opposition to the Government.
The applicant alleged in his statement of 10 September 2010 that he was politically opposed to the Iranian government. He submitted that this allegation was separate to and independent of his claim to have given a lift to the protesters and that his advisers indicated this in their submissions of 16 May 2011 where they said that he feared harm in Iran because of “his actual/imputed political opinion of being opposed to the Iranian regime”.
The applicant submitted that the claim in question was that he was at risk of persecution by reason of his actual or imputed political opinion and/or his opposition to the Iranian government. He submitted that this claim was sufficiently raised on the material such that the Reviewer was obliged to consider it but he failed to do so.
Consideration
Although the applicant did allege in his statement of 10 September 2010 that he was politically opposed to “the regime”, as observed earlier in relation to the first ground of the application, he did not link such views to any awareness or suspicion on the part of the Iranian authorities that he held such views. For the reasons given in relation to the first ground of the application, to the extent that this allegation relates to the events associated with the applicant’s coffee shop business, it does not disclose error on the Reviewer’s part.
To the extent that this allegation is concerned purely with the applicant’s subjective political opinion, to which he also referred in his statement, the mere holding of a particular opinion does not, without more, amount to a claim to fear persecution, even an unarticulated one, particularly when the applicant’s advisers have characterised the claim quite differently in their submissions to the Reviewer. Without more, an asserted political opinion does not amount to a substantial clearly articulated argument relying upon established facts which the Reviewer would have to consider: Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394 [24]; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 22 [68].
For these reasons, the second ground of the application is not made out.
Ground 3
Applicant’s submissions
The applicant alleged in the third ground of his application that the Reviewer failed to consider his claim that in late 2009 he had been detained and beaten by the Basij.
This claim arose during the course of his RSA interview and was recorded by the assessor both in her handwritten notes and in her decision record. The applicant submitted that the Reviewer’s report did not refer to his temporary detention by the Basij at all and that, in the circumstances, it should be inferred that he failed to consider or deal with the issue. The applicant submitted that the issue might have had a bearing upon the Reviewer’s assessment of his other claims, such as whether he was at risk upon being returned to Iran or whether in the closure of his shops he was being targeted for a Convention reason.
The applicant implied that the Reviewer’s failure to consider this issue amounted to reviewable error.
Consideration
The matters which the Reviewer was obliged to consider are not to be seen in isolation from the way the applicant’s case on review was advanced. As noted earlier in these reasons, the claim articulated to the Reviewer by the applicant’s advisers was that he feared persecution because of the political opinion which the Iranian authorities might attribute to him or detect in him as a result of the assistance he gave to the protesters. The applicant’s advisers made no reference in their submission to the overnight detention which the applicant had allegedly suffered at the hands of the Basij and instead characterised the claim in the manner quoted above at [20].
But in any event, as with the applicant’s allegations to have made claims to fear persecution because of his claimed political opinion and the actions taken against his coffee shop business, the applicant did not link the actions of the Basij to any possible future action which might be taken against him by the Iranian authorities if he was to return there. Although the applicant’s alleged detention and assault at the hands of the Basij appears to have been an act of political oppression, even on the applicant’s own version of events, it happened some time ago for a specific reason and had apparently not been repeated. Further, nothing was advanced by the applicant to suggest that that conduct would be repeated or would be the basis of future action of a persecutory nature.
In such circumstances there was, relevantly, no claim which the Reviewer was obliged to consider.
Ground 4
The fourth ground of the application was not pressed.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 5 April 2012
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