DZACG v Minister for Immigration - [2012] FMCA 377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACG v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 377

MIGRATION – Review of decision of Independent Merits Reviewer – persecution on grounds of ethnicity – whether reviewer failed to consider possibility of future persecution – where reviewer considered reasons for applicant’s prior detention – whether reviewer erred in not considering possible convention reason of ethnicity for prior detention – where reviewer considered prior detention irrelevant due to time elapsed – whether reviewer’s error within jurisdiction – where reviewer found that applicant would not be subject to persecution as a returned asylum seeker – whether finding made without evidence or unreasonable – whether reviewer required to consider possibility of authorities discovering reason for asylum application and consequences.

Migration Act 1958 (Cth), s.91R(1), (2)

Minister for Immigration & Anor v Guo [1997] 191 CLR 559
Minister for Immigration & Citizenship v SZMDS [2010] 240 CLR 611
SBZF v Minister for Immigration [2008] FCA 1486
Okere v Minister for Immigration & Anor [1998] 87 FCR 112
Minister for Immigration & Anor v Sarrazola [1999] FCA 1134
SZQPA v Minister for Immigration & Anor [2012] FMCA 123

Applicant:

DZACG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 68 of 2011

Judgment of:

Raphael FM

Hearing date:

24 April 2012

Date of Last Submission:

24 April 2012

Delivered at:

Sydney via video link to Darwin

Delivered on:

8 May 2012

REPRESENTATION

Counsel for the Applicant:

Ms N Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondents:

Mr T Anderson

Solicitors for the Respondents:

Clayton Utz

ORDERS

THE COURT DECLARES THAT:

The recommendation of the second respondent that the applicant was not a person to whom Australia owed protection obligations was not made in accordance with law by reason of the failure of the second respondent to complete the review by failing to consider whether the applicant was at risk of future persecution on account of his Arab ethnicity.

THE COURT ORDERS THAT:

First Respondent pay the Applicant’s costs assessed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 68 of 2011

DZACG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application for a declaration and injunction relating to a recommendation made by an Independent Merits Reviewer in respect of an applicant who arrived in Australia as an unauthorised boat arrival on 15 May 2010. The applicant received an independent merits review of his claims to be a person to whom Australia owed protection obligations that was determined by way of a negative recommendation on 13 September 2011. The applicant has, as he is entitled to, sought judicial review of that decision in this court and has articulated his claims in an Amended Application filed on 27 March 2012.
The applicant is an Iranian Arab and a Shiite Muslim who has always lived in Ahwaz, an Arab dominated town. He claimed, and the Reviewer accepted, that he was harassed by the intelligence services over a period of time up to 2006. He was last approached by the security services in October 2009 but he was not then taken in for questioning. The applicant told that when he had been taken in for questioning it was because a number of his friends had converted from the Shia Muslim faith to the Sunni Muslim faith and they thought that he might have done the same or, if he had not done so, then he could inform upon his friends for the intelligence services. He told that during these interrogations:
“Every time I was detained the intelligence services would assault me and torture me by pouring freezing water over me to make me confess and give information about others.” [CB 147]
The applicant also claimed that he had a well founded fear of persecution should he return to Iran because of his Arab ethnicity:
“[53]He said that he did not have the rights and benefits of an Iranian citizen, e.g. he could not go to university. He had no health insurance and received no welfare benefits because of his ethnicity. They were not really very different from stateless people. He knew that his problems with the authorities would start again in the future. He would have ended up in trouble and eventually be executed.” [CB 152]
It is not necessary to rehearse in any detail the questioning of the applicant because the decision did not turn on the applicant’s credibility. The essential finding of the Reviewer which is called into question by the application, is found at [94] [CB 160]:
“[94]The reviewer must consider whether there is a real chance that the claimant will suffer serious harm in the reasonable foreseeable future if he returns to Iran for reasons of being Arab or for reason of being suspected of having converted to Sunni Islam. The reviewer finds that the claimant has not been persecuted in the past for these reasons. The essential or significant reason for the interrogations was not because he was an Arab or because the authorities believes that he had converted it was to gain information about others. Further any interest in the claimant seems to have waned since 2006. The reviewer finds that there is no real chance that he would be persecuted in the reasonable foreseeable future on account of being Arab or for being perceived as having converted and his fear of persecution is not well-founded.”
There are three grounds to the Amended Application, a fourth having been abandoned. I shall deal with each in turn.
Ground 1
“The Second Respondent failed to consider whether the Applicant was at risk of future persecution on account of his Arab ethnicity.
Particulars
(a)The Second Respondent accepted that the Applicant had been discriminated against on account of his Arab ethnicity in the past but found that such treatment did not amount to serious harm for the purpose of the Convention.
(b)The Second Respondent was required to consider the risk of future persecution and to assess this risk in light of all the circumstances, including the Applicant’s previous experiences.
(c)The Second Respondent confined its enquiry to whether the Applicant had suffered discrimination amounting to serious harm in the past and failed to consider the risk of future persecution on account of the Applicant’s ethnicity.”
At [81] the Reviewer finds:
“[81]The reviewer accepts that he claimant had been discriminated against in the past on account of being Arab. However the treatment complained of did not amount to the denial of basic services that threatened his capacity to subsist nor was he denied the right to earn a livelihood. The reviewer finds that this treatment did not amount to serious harm within the meaning of s91(2) of the Act or otherwise amount to serious harm for the purpose of s91R(1)(b) of the Act and was not persecution within the meaning of the Convention.”
The applicant’s argument is that in respect of this claim the Reviewer looked only at the past and did not assess the risk in the future as informed by country information. The requirement to do this was formulated by the High Court in Minister for Immigration and Ethnic Affairs v Guo [1997] 191 CLR 559 where at [574 – 575] the majority Brennan CJ, Dawson, Toohey, Gauldron, McHugh and Gummow JJ said:
“In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 166E(1) of the Act). It then used those findings as the basis for its conclusion that there was no chance of future persecution. But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities.
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
In SBZF [probably correctly SZBZF] v Minister for Immigration [2008] FCA 1486 Lander J opined at [51] after making reference to Guo:
“[51]However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.”
[52]In this case the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered in that sense it did not exercise the jurisdiction which is bestowed upon it under the Act.”
The extracted finding from [81] of the Reviewer’s findings and reasons certainly deals with the past. If one looks at the decision record thereafter one will see that [82 – 86] deal with the applicant’s detention and questioning by the authorities. Paragraph 87 deals with some independent country information about demonstrations that resulted in scores of Arabs being killed, hundreds injured and hundreds more detained between 2005 and 2006. Paragraphs [88 – 89] deal with the questioning and conversion, [90] deals with the fact that the applicants took a holiday to Dubai in 2009 and returned to Iran, [91 – 93] also deal with detentions and whether or not the applicant was a person of a significant interest to the authorities. There is thus no further reference to the general discrimination claim until [94]. This court must avoid trying to read that paragraph closely with an eye attuned to the perception of error (Minister for Immigration & Citizenship v SZMDS [2010] 240 CLR 611 at [634], per Heydon J. But the paragraph must be looked at closely to reveal what are, in the court’s objective opinion, the real findings of the Reviewer. The applicant argues that the whole paragraph should be read as one and that it clearly indicates that in reference to the applicant’s claim of persecution for being an Arab the findings are predicated upon the Reviewer’s views of the interrogation and in no way encompass her views as to the future in respect of the discriminatory conduct. The finding by the Reviewer is that the interrogation was not carried out because he was an Arab. The applicant argues it is in that context that the Reviewer said in the second sentence he had not been persecuted in the past. When the Reviewer deals with the future she is dealing with the future as thus contextualised and this context excluded the general discrimination claim.
The respondent argues that the paragraph should be read by reference to the separate sentences. He argues that “for reasons of being an Arab” includes general discrimination. The reference to the finding that the applicant had not been persecuted in the past for these reasons includes the finding at [81] and the finding in the third sentence deals only with the interrogations. The finding in the final paragraph relating to the future includes the discriminatory conduct and is made by inference that the past conduct is a guide to the future.
Both arguments are well put. The court appreciates that its findings upon them may well not accord with those of others who might look at the same question. On balance it prefers the view promoted by the applicant. The failure to make any specific reference to the claim concerning discriminatory conduct in the future coupled with the concentration on the claims of physical persecution leads to the view that the better interpretation is that there was no consideration of persecution for general discriminatory conduct in the reasonably foreseeable future and thus the Reviewer did not complete the task that she was set.
The second ground of the Amended Application is:
Ground 2
“The Second Respondent erred in its assessment of whether the Applicant’s previous detention and treatment by the authorities amounted to serious harm and/or Convention related persecution.
Particulars
(a)The Second Respondent accepted that the Applicant had been questioned and detained by the local security forces on about 6 occasions between 2003 and 2006.
(b)The Applicant claimed that he was targeted by the authorities because he was an Arab and because they had suspected him of having converted to Sunni Islam.
(c)The Second Respondent made a finding that “the questioning [the Applicant] was subjected to, related to finding out information about others; it was not punishment for having converted.
(d)The Second Respondent made a finding that the essential or significant reason for the interrogation was to gain information about others.
(e)The Second Respondent failed to consider and/or properly assess whether an essential or significant reason why the Applicant was targeted by the authorities included this imputed religion and/or political opinion and his ethnicity. This was separate to the question of the purpose of the interrogation, which was namely to “gain information about others.”
This ground also looks at the findings in [94]. The applicant accepts that the purpose of the interrogation was either to discover whether he had converted to Sunni Islam or to obtain from him information about others who may have, but does not accept that the reasons for targeting him for that purpose should exclude his ethnicity. In the applicant’s statutory declaration made to the authorities in August 2010 extracted at [2] in these reasons, he does not distinguish between the reasons for his being interrogated and tortured. It was “to make him confess and give information about others”. At [85] the Reviewer in her findings and reasons notes:
“[85] The reason why he was being questioned was because:
·They wanted information about his friends who had converted to Sunni Islam.
·They wanted the claimant to spy on his friends who had changed religion or who were encouraging others to change religion.
·They suspected him of converting to the Sunni faith.
·In his interview with the reviewer he stated that he was also questioned about his friends’ political activities.”
At [86] the Reviewer accepts that between about late 2003 and 2006 the applicant was taken in for questioning by the local security forces on about six occasions. The applicant argues that the court cannot confidently dismiss the failure to make a finding in relation to his ethnicity being a reason for the interrogation and bad treatment as being made irrelevant by the finding that nothing had occurred since 2006 as it might have looked differently on the future if the Reviewer had considered that one of the reasons for the past treatment was the applicant’s ethnicity.
The Federal Court has provided numerous examples of error on the part of tribunals and their attempts to distinguish conduct undertaken for a convention reason and conduct not so taken. In Okere v Minister for Immigration & Anor [1998] 87 FCR 112 at [177] Branson J found that it was necessary to apply common sense to the facts of each case:
“In this case the RRT did not, in my view, seek to apply common sense to the facts of the case when it concluded:
“In the present case it is clear, in my view, that it is because of what he has done as an individual, in refusing to lead the followers of traditional religion in his village, that the applicant faces harm; it is not for reason of his race or his religion.”
The above conclusion of the RRT was, I consider, based on a false dichotomy: that is, that within the meaning of Art 1A(2) of the Refugees Convention the applicant either faces harm for reason of his religion or he faces harm by reason of what he has done as an individual. The Refugees Convention does not, in my view, require the imposition of such a dichotomy upon the facts of any particular case. The RRT was required in this case, in my view, to ask itself whether, applying common sense to the facts which it accepted, the applicant has a well-founded fear of persecution the true reason for which is his religion.”
Similar views are expressed by the Full Bench; Einfeld Moore and Branson JJ in Minister for Immigration & Anor v Sarrazola [1999] FCA 1134 at [11], [13] and [17]. See also Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113, Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at [33].
It would seem to me that in applying common sense it would have been difficult for the Reviewer to have escaped the finding that the reason the applicant was interrogated was because he was an Arab. His friends were Arabs and the interrogators wanted information about his friends. It was Arab Shias who had converted to Sunni and the interrogators suspected him of doing the same. In my view this Reviewer fell into the dichotomy identified by Branson J in Okere.
The finding discussed above related to the past. The Reviewer’s task was to consider whether there was a well founded fear of persecution that extended into the future. My reading of [94] is that the Reviewer’s conclusion on this was conditioned on the fact that nothing had occurred since 2006 save for the visit in 2010 which resulted in the intelligence services leaving when the applicant told them he would not let them in. In my view that was the basis of the Reviewer’s finding that the applicant would not suffer persecution should he return to Iran in the reasonably foreseeable future. The incorrect finding that the past persecution was not directed at him by reason of his ethnicity did not contribute to that finding and so it is an error within jurisdiction and not of jurisdiction.
The third ground of application (Ground 4) is:
Ground 4
“The Second Respondent erred in its assessment of whether the questioning and/or monitoring of the applicant upon return to Iran was capable of constituting serious harm and/or Convention related persecution.
Particulars
(a)The Second Respondent accepted that the Applicant’s email and internet use might be monitored in Iran as submitted on behalf of the Applicant given Iran was a repressive society.
(b)The Second Respondent however went on to find that such treatment did not indicate that the Applicant was wanted by the authorities and did not amount of serious harm.
(c)The Second Respondent failed to provide any reasons for such a finding or any basis upon which such a finding could be supported.
(d)The Second Respondent erred in its assessment of the Applicant’s claim and it’s [sic] finding was made without evidence and/or was unreasonable.”
At [102] the Reviewer finds:
[102]The reviewer has examined the country information referred to in RRT decision 1001288 and quoted in the agent’s submission. The Danish information referred to, suggests that returned asylum seekers would be kept under surveillance. A network of foreign agents would reported on a failed asylum seeker’s activities abroad. In the reviewer’s view any monitoring of the claimant’s activities in Australia would reveal that he has not been involved in any anti-regime activities in Australia. Although the Iranian authorities might be aware he applied for asylum they would not be aware on what basis he applied for asylum. There could be many reasons for the claimant to seek to remain in Australia. The reviewer accepts that there is a real chance the claimant would be questioned and monitored on return to Iran but finds that this treatment does not amount to serious harm and persecution within the meaning of the Convention.
In the applicant’s written submissions at [33] and [34] he takes issue with these findings on the basis of conflicting country information. So far as this forms some basis for the ground I dismiss it as seeking impermissible merits review. The applicant then turns to a different submission at [36] of the submissions:
“[36]The reviewer failed to turn its mind to the actual process of monitoring and interrogation and consider whether this might amount to serious harm. In particular it failed to turn its mind to (i) what the process of interrogation might involve up until the point that the authorities were able to satisfy themselves that the applicant had not been involved with, or expressed, anti-regime opinions: (see SZQPA v Minister for Immigration & Anor [2012] FMCA 123 (29 March 2012); and (ii) it also failed to consider what the situation would be if the monitoring and interrogation did happen to disclose the basis upon which the applicant applied for asylum. In other words, it was required in this case to consider the “what if I am wrong test” as provided for in MIMA v Rajalingham (1999) FCR 220.

SZQPA v Minister for Immigration & Anor [2012] FMCA 123 is a case which should be looked at on its own facts, although I agree with the views expressed by Driver FM when he indicated that the error in the Reviewer’s approach was:
“To focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role.”
It is clear from his Honour’s findings (and those of the Reviewer) that the applicant was at high risk of being suspected of being an LTTE supporter and thus at high risk of being interrogated in a manner that might be construed as persecution. The fact that he might, in the end, convince the authorities to the contrary and be released was not to the point. The instant case is not like that at all. There is no evidence whatsoever that this applicant was considered to be actively working against the Iranian regime nor any evidence upon which the Reviewer might have found that he was likely to receive anything more than the type of questioning and monitoring described. It was the Reviewer’s job to decide whether that would constitute serious harm or persecutory conduct and it had evidence upon which it was able to make that decision in the negative. It found that the applicant did not fit the profile of those persons who appear to be at risk on return to Iran.
The applicant also argued that the Reviewer was required to apply the “what if I am wrong” test in respect of the conduct of the authorities on the applicant’s return. In this regard I concur with the views put by the respondent in its submissions:
“[28]The applicant also contends that the Reviewer was required to consider whether the applicant faced a real chance of serious harm if he disclosed under interrogation the basis upon which he had applied for asylum, as an application of the “what if I am wrong” test. This contention must fail for two reasons.
[29]First, it assumes as a matter of fact that the applicant would be interrogated by the authorities upon his return as to his reasons for seeking asylum and would disclose those reasons. No such finding was made by the Reviewer, nor was it unreasonable not to make any such finding.
[30]Second, a reviewer or tribunal is only required to consider the possibility that its findings were wrong if it has “a real doubt that its findings on material questions of fact were correct” (MIMA v Rajalingham (1999) FCR 220 at 241 [67]). Nothing in the Reviewer’s report suggests that she had any real doubt as to her findings. There is therefore no merit in this contention.”
To the extent that I have not already made it clear I am of the view that the Reviewer did not unreasonably make the finding that monitoring of the internet use and email of the applicant did not amount to serious harm or that the Reviewer did not consider that within the context of s.91R(2) of the Migration Act 1958 (Cth) or overlooked s.91R(1).
In the light of the findings which I have made in respect of the applicant’s Ground 1 I would make a declaration that the recommendation of the second respondent that the applicant was not a person to whom Australia owed protection obligations was not made in accordance with law by reason of the failure of the second respondent to complete the review by a failing to consider whether the applicant was at risk of future persecution on account of his Arab ethnicity. It is my understanding that the Minister will accept this finding (subject to appeal) and it is not necessary for me to provide injunctive relief. I will also order that the first respondent pay the applicant’s costs assessed in the sum of $6,240.00.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 8 May 2012