DZACE v Minister for Immigration and Citizenship

Case [2012] FCA 945

FEDERAL COURT OF AUSTRALIA

DZACE v Minister for Immigration and Citizenship [2012] FCA 945

Citation: DZACE v Minister for Immigration and Citizenship [2012] FCA 945
Appeal from: DZACE v Minister for Immigration & Anor [2012] FMCA 378
Parties: DZACE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number: NTD 23 of 2012
Judge: MANSFIELD J
Date of judgment: 31 August 2012
Date of hearing: 27 August 2012
Place: Darwin
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 35
Counsel for the Appellant: B Taylor
Solicitor for the Appellant: Pipers Barristers and Solicitors
Counsel for the Respondents: T Anderson
Solicitor for the Respondents: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 23 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

DZACE
Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

31 AUGUST 2012

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:

1.The time within which the applicant may appeal from the decision of the Federal Magistrates Court given on 8 May 2012 is extended to 31 August 2012. 

2.The appeal of the applicant be taken to have been instituted by, and in terms of, the draft Notice of Appeal exhibited to the affidavit of William Francis Piper affirmed 1 June 2012, and to the extent necessary compliance with the Federal Court Rules 2011 to otherwise regularise the appeal be dispensed with.

3.The appeal be dismissed.

4.The applicant pay to the first respondent costs of the application and 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 23 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

DZACE
Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:

MANSFIELD J

DATE:

31 AUGUST 2012

PLACE:

DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 8 May 2012 a Federal Magistrate dismissed an application by the applicant to declare that a decision of an Independent Merits Reviewer (IMR) of 9 September 2011 was tainted by jurisdictional error:  DZACE v Minister for Immigration and Citizenship [2012] FMCA 378.

  2. The IMR had recommended that the applicant does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) (the Act), so that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1976, 606 UNTS 267 (the Refugees Convention).

  3. The applicant first seeks an extension of time within which to appeal from the decision of…

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DZACE v Minister for Immigration and Citizenship [2012] FCA 945
Case
[2012] FCA 945
Decision Date

CaseChat Overview and Summary

The case of DZACE v Minister for Immigration and Citizenship involves an applicant, an ethnic Turk-Iranian who arrived in Australia and sought to be recognised as a refugee. The Federal Court was tasked with reviewing the decision of the Federal Magistrates Court which dismissed the applicant's appeal against the rejection of his application for a protection visa. The applicant claimed to have participated in a demonstration in Iran, assaulted a security officer, been detained, tortured and released on payment of a bribe. The Immigration Minister rejected his claims and found that he did not attend any political rallies, was not arrested, detained, interrogated or tortured, and did not escape by irregular means. The Federal Magistrates Court upheld the Minister's decision and dismissed the applicant's appeal.

The legal issues before the court included whether the Federal Magistrate erred in finding that the conduct of the IMR did not constitute a proper basis for concluding his decision was unlawful on the ground of reasonable apprehension of bias, whether the Federal Magistrate erred in concluding there was no jurisdictional error in the IMR's failure to adequately caution himself as to considerations relevant to findings of credibility, whether the Federal Magistrate erred in concluding there was no jurisdictional error in the IMR's failure to proceed with adequate caution in making findings on credibility, whether the Federal Magistrate erred in deciding that concerns as regards past trauma would be relevant only if past trauma had been found, and whether the Federal Magistrate erred in deciding that the IMR did not need to be positively satisfied, in the Briginshaw sense, before effectively finding that the applicant had fabricated his claims.

The court found that the Federal Magistrate did not err in law in any of the grounds of review. The court noted that the IMR's inquiry is an inquisitorial process and that there is no formal onus of proof. However, the IMR has the responsibility of making findings of fact on contentious issues, and as such, it is necessary to make such findings to lead to the level of satisfaction required to recommend the eligibility for a protection visa. The court held that the IMR's findings were reasonable in the circumstances, and that the Federal Magistrate did not err in concluding that the IMR had not misapplied the law relevant to the nature of the satisfaction required in a way which warranted setting aside or declaring invalid the IMR decision.

The court dismissed the applicant's appeal and ordered that the time within which the applicant may appeal from the decision of the Federal Magistrates Court be extended to 31 August 2012. The court also ordered that the appeal be taken to have been instituted by, and in terms of, the draft Notice of Appeal exhibited to the affidavit of William Francis Piper affirmed 1 June 2012, and to the extent necessary compliance with the Federal Court Rules 2011 to otherwise regularise the appeal be dispensed with. The court further ordered that the applicant pay to the first respondent costs of the application and of the appeal.

Orders

Orders of the court

1. The time within which the applicant may appeal from the decision of the Federal Magistrates Court given on 8 May 2012 is extended to 31 August 2012.

2. The appeal of the applicant be taken to have been instituted by, and in terms of, the draft Notice of Appeal exhibited to the affidavit of William Francis Piper affirmed 1 June 2012, and to the extent necessary compliance with the Federal Court Rules 2011 to otherwise regularise the appeal be dispensed with.

3. The appeal be dismissed.

4. The applicant pay to the first respondent costs of the application and of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As is apparent, and as was developed in the course of submissions, there is some overlap between the grounds of appeal. Counsel for the applicant chose to argue the fifth ground of appeal first, as it to a degree encapsulated some of the points which were otherwise separately addressed.BACKGROUND AND CLAIMS The applicant is an ethnic Turk-Iranian who lived in Tehran until 2010. He arrived at Christmas Island on 18 August 2010. He promptly indicated that he wished to be recognised as a refugee under the Refugees Convention. An internal refugee status assessment was completed on 1 November 2010, and on 20 April 2011 his application was rejected. That was followed by the IMR assessment. The applicant claimed to be a person to whom Australia owed protection obligations under the Refugees Convention by reason of actual or imputed political opinion. In essence, he said that he and a friend were supporters of the Opposition Leader Moussabi in the 2009 elections, and on 12 June 2009 some weeks after the election, he and that friend attended a demonstration at which the applicant assaulted a security officer. He and his friend had helped to move some barricades to block off a street, and had joined in the chanting of “death to the dictator” and “death to Khamenei”. In the course of that, some security officers had attacked the protesters and tried to force the applicant’s friend into a van. The applicant claimed he had assaulted a security officer to drag him off his friend, and had seriously injured that officer. He and his friend were then forced into the van and blindfolded. He said they were taken to a remote location, about an hour and a half drive away. He was there detained for a week during which he was interrogated twice a day and bashed with batons. He claimed that, as a result of one of the guards at that location recognising his name as the son of the officer’s friend, the opportunity arose for his family to pay a bribe and for him to be released. He was collected by his brother, and taken to a remote country location where he stayed for some time until he left Iran. His brother had arranged for him to travel out of Iran, on a lawfully issued passport in the name of another person who, apparently, looked sufficiently like him for that purpose. He travelled to Bangkok where he destroyed that passport. After working for a time in Bangkok he then procured a Turkish passport to enable him to leave Bangkok and travel eventually to Christmas Island. He claimed that, because the security officer he had assaulted had been badly injured, the authorities were still interested in him despite his release on payment of a bribe. He claimed to fear that if he were to return to Iran, he might be recognised, re-arrested and returned to custody. His friend, he said, had not been seen or heard of since the day he was taken off in the van. In the course of his interview by the IMR, he also said the officer who had secured his release by payment of a bribe had also disappeared.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The IMR interviewed the applicant on 8 July 2011, in the presence of his migration agent, and with the assistance of an interpreter. In the course of that interview, it emerged that the applicant had been to a shop where the owner distributed leaflets and green fabric in support of the Opposition Leader Moussabi, but he reiterated that he was not himself politically active at all prior to the particular demonstration. It is also clear that, during the interview, he was asked in detail about the circumstances in which he came to attend the demonstration and what happened there.THE IMR DECISION The IMR, after reciting the evidence and independent country information, under the heading “Findings and Reasons” expressed his conclusions. He observed that, consistently with the applicant’s evidence, his attendance at the 20 June 2009 protest was somewhat out of character. However, he also regarded there to be “implausible elements, inconsistencies and other deficiencies in his evidence about attending the protest” especially in the light of his previous apolitical public persona. The IMR in particular noted the failure to previously refer to the involvement with the production of campaign material for Moussabi, and the apparent inconsistencies in the circumstances in which the applicant and his friend came to attend the demonstration, including the time at which they arrived at that demonstration and his uncertainty as to when it was due to start. He also noted the lack of any persuasive explanation as to why the applicant attended the demonstration at all. He referred to the perceived inconsistent evidence about who he confronted, whether police, Sepah officers, or Basij members. He considered that the applicant’s evidence that he did not know where he was detained (although he was collected by his brother) or why he did not try to find out to be “highly unconvincing”. He also considered his evidence about one of his captors procuring his release for a bribe due to some family knowledge to be “far-fetched and fanciful”. He noted a continued adornment of that part of the applicant’s evidence by new claims about his cousin being in a position to report that the officer concerned had disappeared. Consequently, the IMR did not accept that the applicant attended any political rallies in Iran before or after the 2009 general elections. Nor did he accept that the applicant was arrested either for participating in a demonstration or for assaulting an officer. It followed that he did not accept that the applicant was detained, interrogated or tortured. Nor did he accept that he needed to, or was able to, escape by an irregular release involving bribery. He also found that the applicant, if he was still in Iran, would not be inclined to demonstrate either in public or in secret against the government, simply because he is not interested in doing so and is not “a political person”. He also rejected the applicant’s claim to have departed Iran on a “fake passport, as once described, or on the genuine passport of another passport who resembled him”. The IMR regarded that version as far-fetched.

Ratio Decidendi

Legal Principle Established

The Federal Magistrate also rejected the grounds of review concerning the asserted failure to give or recognise an appropriate direction as to the nature and extent of caution required in assessing credibility. His Honour also rejected the third ground of review as to the standard of satisfaction as to the falsity of statements made by the applicant, having regard to the gravity of the consequences of making such findings. In the light of the decisions to which the Federal Magistrate referred, namely Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 (QAAH); Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 (Durairajasingham); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32 (SGLB) and SAAK v Minister for Immigration (2002) 121 FCR 185 (SAAK), the Federal Magistrate concluded that the IMR had not misapplied the law relevant to the nature of the satisfaction required in a way which warranted setting aside or declaring invalid the IMR decision.CONSIDERATION The grounds of appeal are as follows: 1.The hglearned Federal Magistrate erred in law in finding the conduct of the second respondent did not constitute a proper basis for concluding his decision was unlawful on the ground of reasonable apprehension of bias.2.The learned Federal Magistrate erred in law in concluding there was no jurisdictional error founded by the second respondent’s failure to adequately caution himself as to considerations relevant to findings of credibility, or that he did adequately direct himself as to credibility.3.The learned Federal Magistrate erred in law in concluding there was no jurisdictional error founded on the second respondent’s failure to proceed with adequate caution in making findings on credibility.4.The learned Federal Magistrate erred in law in deciding that concerns as regards past trauma would be relevant only if past trauma had been found.5.The learned Federal Magistrate erred in law in deciding that the second respondent did not need to be positively satisfied, in the Briginshaw sense, before effectively finding that the appellant had fabricated his claims. The enquiry by the IMR is an inquisitorial process in respect of which there is no formal onus of proof: QAAH at [40]. In Abebe v Commonwealth (1999) 197 CLR 510 at [28] the Court pointed out that, in a practical sense, responsibility lies upon a visa applicant to satisfy a reviewer as to matters necessary to be eligible for a protection visa under the Act. Nevertheless, the IMR has the role and responsibility of making findings of fact on contentious issues, and as counsel for the applicant pointed out, findings of fact which potentially have very significant adverse consequences to the applicant. It is necessary to make such findings to lead to the level of satisfaction required to recommend the eligibility for a protection visa. In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362 Dixon J said that a reasonable satisfaction is one which may vary depending on the consequences of the findings to be made. He said that: … reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answered question whether the issue has been proved to the reasonable satisfaction of the Tribunal …