DZACI v Minister for Immigration

[2012] FMCA 379

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACI v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 379

MIGRATION – Review of decision of Independent Merits Reviewer – whether reviewer made finding based on no evidence – whether evidence relied upon mere speculation – where reviewer found applicant not credible witness – whether separate basis for conclusion on claim – whether reviewer failed to ask correct question – whether failure to take into account relevant information.

Migration Act1958 (Cth) s.65

Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZMIB v Minister for Immigration & Anor [2008] FMCA 1433
QAAA of 2004 vMinister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

Applicant: DZACI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: DNG 71 of 2011

Judgment of: Raphael FM

Hearing date: 23 April 2012

Date of Last Submission: 23 April 2012

Delivered at: Darwin

Delivered on: 23 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 D’Assumpcao

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Application be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 71 of 2011

DZACI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision by an independent merit’s reviewer made on 16 September 2011 to recommend to the Minister that the applicant claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.

2. The availability of judicial review of this type of decision has been accepted since the decision of the High Court in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319. The task of this court is to consider and make findings upon whether or not the reviewer, when he made his recommendations, did so lawfully.

3. The applicant is a Faili Kurd who lived in Iran, having been born there on 31 December 1983.  He lived with his parents, four brothers and two sisters.  He told that his grandfather, who was originally Iranian, had moved to Kufa in Iraq for a job, but he and his family, the applicant’s parents, had been expelled from Iraq in 1979/1980 and returned to Iran.  There they occupied a property apparently owned by a friend of the family and the applicant had worked as a farmer.  The applicant’s father had worked as a gardener on the property of the family friend.

4. The applicant claimed that he was a person to whom Australia owed protection obligations because he was a stateless Faili Kurd against whom there was an imputed political opinion of opposition to the government and against whom there was actual likely persecutory conduct should he return because of accusations made against him and his family of having enticed or influenced the village in which they lived not to vote in the 2009 general elections. 

5. I should state that I have some concern about the assumption made in the decision, and by all those appearing before me, that this applicant was undocumented.  If one turns to page 3 of the reviewer’s decision one will see the bio data information provided [CB 2] it will be seen that this gentleman has a Green Card.  At [CB 244 – 245] there is a report from Post dated 13 September 2009 that states:

   “A residence permit and a Green Card are one and the same.  Technically they do not entitle the holder to apply for residence status or to automatic grant of residence status. Rather, as advised above, they grant the holder residence for” an indefinite period of time”.  Should an individual with residence permit depart Iran then this individual has no re-entry rights whatsoever, in contrast the rights of individuals with refugee booklets.  Individuals with a refugee booklet can depart Iran and subsequently re-enter the country.”

6. Although this initially has caused me some concern, it would appear that further on in the Court Book in reference to the initial interview at [CB 9] the Green Card reference has been crossed out and the words “No, never had ID cards of any kind” substituted.  This is the basis upon which the reviewer proceeded. 

7. The applicant told that he and his family had been accused of influencing other villagers not to vote in the 2009 Presidential election.  He and his father had been arrested and taken to the police station where they were interrogated for a lengthy period.  They both denied the charges and they were finally released.  Five days later the Etelaat came to his home and beat the applicant and other members of his family severely.  He ran away to the mountains.  He remained in the mountains overnight and travelled to a family friend’s house.  He managed to remain there working on this gentleman’s farm.

8. He was told that it was not safe for him to return home any more, and arrangements were made for him to flee the country.  He left Iran on what he stated was either a forged passport or a passport in respect of which the photograph had been tampered with.  He claims that should he return he would be persecuted as a result of the alleged activities in 2009 as well as for being a returnee.  He also stated that his entire family was stateless and had no documentation.  They had no rights as citizens.  He has to live illegally and work illegally without protection from the authorities.  He believed he would be exploited and harassed based upon his statelessness.

9. At the review hearing, the reviewer first took up with the applicant the question of his identity and his claim to be an undocumented Faili Kurd.  The applicant told the reviewer that his grandmother had been born in Kufa in Iraq but that his grandfather had been born in Iran and that both his grandparents on his mother’s side had also been born in Iran. 

   “I indicated country information shows that under Iranian law, nationality is passed through Iranian males.  I pointed out this suggests that as the grandfathers had been born in Iran, they were Iranian and their children were also Iranian nationals.  The claimant stated that he accepted this, but they went to Kufa when they were children.

   I queried why his parents were not Iranian nationals as their fathers had been Iranian nationals.  The claimant stated that his grandparents had not been accepted as Iranians as they had no documents. Also, the parents had no documents.” [39 – 40] [CB 170]

10. The reviewer’s questioning continued about life in the village in which his family had been resident for 30 years and the applicant’s schooling which he completed to grade 5.  The applicant, when asked why the family friend would not support an application for citizenship, stated that this gentleman did not want to do this because he did not want to put his life in danger.  The reviewer then questioned the applicant at considerable length about certain telephone conversations that he had had with his family in respect of which the applicant gave the answers which the Tribunal considered indicated that his evidence came as he was being asked questions.  The reviewer put to the applicant certain independent country information concerning the treatment of Faili Kurds in Iran [84 CB 174].  It also put to him independent country information relating to The Civil Code of Iran, Book 2, Article 976 concerning nationality, and pointed out to the applicant that in that Code the following persons were considered to be Iranian subjects:  “those born in Iran or outside whose fathers are Iranian”.  It might also have included “persons born in Iran of foreign parents, one of whom is also born in Iran”, for that was undoubtedly the case of his mother.  The reviewer also put to the applicant certain independent country information relating to departure from Tehran airport.

11. The reviewer commenced his findings and reasons at [121] [CB 184].  He refers at [122] to the applicant’s claims, principally of being a stateless Faili Kurd and of suffering discrimination concerning lack of access to education, work, insurance, public medical care and subsidisation, freedom of movement within the country, property ownership, marriage registration and recourse to the law.  He claimed that he had been taken advantage of and paid much less wages than Iranian nationals.  The reviewer then refers to the events after the June 2009 election.  At [129] [CB 186] the reviewer deals with the claim of being stateless.  At [132] the reviewer rejects that claim and at [133-134] gives his reasons for so doing.  The first reason was that according to the applicant’s evidence he would be an Iranian citizen by descent from his paternal grandfather.  The reviewer states:

    “[…] it is reasonable to consider the existence of an Iranian grandfather who had resided in Iran would provide evidence to satisfy the Iranian authorities of the father’s Iranian nationality.  Additionally, the mother’s parents had also been born in Iran, which similarly suggests the mother was an Iranian national.  It follows that the claimant was born to Iranian nationals and would similarly be an Iranian national.”

12. At [134] the reviewer continues to make findings that the claimant did not live in Iran as a non-citizen, basing this upon the lengthy period that they had lived in one village in a property owned by an old friend of his grandfather:

    “Nonetheless, the family’s long and continuous residence in the same home in the small village in Ilam province suggests that they had some other basis for residing there other than MGs goodwill and employment.  It suggests they were well settled and not living there as non-citizens.”

13. The reviewer refers to the applicant’s education and the fact that he, and his father and brothers, had worked and had not been prevented or excluded from working:

    “It suggests he had a legal right to work and that he did not live in Iran as a non-citizen.”

14. Finally, the Tribunal stated that because the applicant’s older brother lived in Tehran and had done so for some time working as a security guard:

    “S’s employment in the responsible position of a security guard in Tehran suggests the brother has a legal right to work and that he does not live in Iran as a non-citizen.  This in turn suggests the family were not undocumented non-citizens as the claimant claims.”

15. At [135] the reviewer commences with the words:

    “In addition I find the claimant to not be a credible witness and I have other serious concerns with his story.”

16. The reviewer then goes on to explain why he believes that the applicant is not a credible witness, mostly because of some inconsistencies and changes in the story that he gave to the reviewer during the course of the interview when compared with previous evidence and the evidence given earlier in the interview:

    “I have summarised the claimant’s evidence concerning the phone conversations he had from Christmas Island in some detail as I conclude he significantly changed and tailored his evidence as I tested it.  At my interview when I discussed his changeable evidence, he stated after one year he cannot remember everything properly.  I accept the details of the story may change over a number of tellings, however, the details are particularly significant to his claims to be a refugee and concern happenings just in the past 12 months:  they are not distant in time.  His changeable evidence causes me serious concern.”  [138] [CB 189]

17. The reviewer, having concluded that the applicant was not a witness of truth and that he was not satisfied that any of his story was true, went on to consider his position as a Faili Kurd and as a returnee to Iran.  There is no necessity for me to deal with these matters in any detail because they do not form part of the claims made before me.

18. On 6 January 2012 an amended application was filed with this court seeking review of the reviewer’s decision.  There were two grounds of application.  The first was:

    “The Second Respondent’s finding that the Applicant was an Iranian national was made without evidence and/or was unreasonable.

    Particulars

    (a) The Second Respondent made a finding that the Applicant was an Iranian national or otherwise rejected the Applicant’s claim to be an undocumented, non-citizen residing in Iran.

    (b) The finding was based upon the Applicant’s family background and family circumstances (paragraphs [133] and [134] of the IMR report).

    (c) The particular reasons for the finding were as follows:-

    a. The applicant was born to Iranian nationals and would similarly be an Iranian national.

    b. The Applicant’s family had resided in the same home for some 30 years.

    c. The Applicant and members of his family had worked.

    d. The Applicant’s brother held the “responsible position of a security guard in Tehran.”

    (d) The finding of the Second Respondent was based upon impressions and assumptions and not evidence. In addition, or in the alternative, the finding of the reviewer was unreasonable.”

19. The gravamen of the complaint is found at Particular (d).  I have been provided with some helpful written submissions by counsel for the applicant.  She argues that the finding that the applicant was a non-citizen was a central finding, so that if it was found to have been made in a manner that constituted jurisdictional error, it would permit me to find, that the review was made unlawfully.  It is argued that the reviewer was making findings about the ability of the Iranian authorities to come to their own satisfaction that the applicant fell within one of the categories of person who would be considered an Iranian citizen.  It is suggested that the evidence relied upon and found at [133] and [134] of the reviewer’s reasoning is mere speculation rather than evidence and that speculation is not sufficient:  SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; SZMIB v Minister for Immigration & Anor [2008] FMCA 1433; QAAA of 2004 vMinister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918. The importance of these cases is that they establish there has to be no evidence to support the conclusions made by a reviewer or a tribunal in order to make out the applicant’s claim. Where there is some evidence available, the argument cannot succeed. In this particular case, the most effective evidence of the applicant’s nationality is his own. He accepts that his grandfather was an Iranian. It is that evidence which allows the reviewer to make factual findings concerning the Civil Code in Iran and its naturalisation sections.

20. The finding by the reviewer, being one of fact, cannot be interfered with by this court unless there was no evidence of upon which it was based.  But there is evidence, as I have stated, so I do not believe that I can interfere with the finding that the applicant is an Iranian and is therefore not stateless.

21. The applicant argues, however, that whilst this may be the situation, in reality it is one that has to be established to the satisfaction of the Iranian authorities and the reviewer made some findings about that at [134] which the applicant says are not based on evidence but upon speculation.  But if one looks carefully at the wording of the reviewer’s decision the furthest the reviewer goes to is to say that the evidence “suggests” the claimant did not live in Iran as a non-citizen. 

22. Having made three findings as to why in the applicant’s own evidence of his circumstances “suggest” that he did not live in Iran as a non-citizen, the reviewer concludes that he cannot be satisfied that the applicant was a stateless Faili Kurd. It must always be remembered that these decisions by reviewers and by the Refugee Review Tribunal are decisions made on the basis of satisfaction. In the case of the Tribunal that is the statutory requirement, because the Tribunal is sitting in the shoes of the Minister who is required to be satisfied on matters by virtue of s.65 of the Migration Act1958 (Cth) and I do not believe that it is suggested that a reviewer is in any different position as he is making a recommendation to the Minister as to the status of the person whose application is being reviewed.

23. Looked at in this way I do not believe that an argument of no evidence can be made and, whilst there may be criticism of the reviewer’s reasoning, the applicant is effectively making a claim for impermissible merits review. 

24. The respondent points out there is another reason why the grounds should be dismissed which is because there is an additional ground made out by the reviewer that the claimant is not a credible witness.  At [140] [CB 189], as extracted earlier in these reasons, the reviewer specifically states that because of the lack of credibility he cannot be satisfied that the family are undocumented non-citizens.  He uses the phrase, “in the light of the foregoing” which was helpfully considered by McHugh, Gummow JJ in their joint decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59[1] at [45] :

    “This passage is so expressed as to indicate that the phrase "[i]n light of" is used synonymously with "by reason of" or "because", rather than in a looser sense of "against the general background". The employment of the passive rather than the active voice throughout the statement of reasons is also significant. It may tend to soften the appearance of what are the actual findings by the decision-maker, rather than expressions of opinion. The document is to be read with an appreciation that what the writer was setting out to put down were "the findings on any material questions of fact" required by s 430(1)(c) of the Act. Further, s 65 put the ultimate issue in terms of satisfaction that the criteria for a protection visa were met; if not so satisfied, the Tribunal was obliged to refuse the visa.”

    [1] “S20”.

25. I do not think that the reviewer has based his lack of satisfaction about the undocumented status of the applicant solely upon those matters contained in [134]. I believe he has made a separate finding that whatever the situation might be, the applicant’s general untruthfulness has meant that the claim cannot be accepted. This is not the same as saying that the “well of evidence has been poisoned” as elsewhere discussed in S20.  It means that the Tribunal has two bases upon which it comes to its conclusion and which means if one is wrong it does not prevent the other from being effective.

26. The second ground contained in the amended application is:

    “In assessing the Applicant’s nationality or citizenship, the Second Respondent failed to ask itself the correct questions and/or failed to take into account relevant considerations.

    Particulars

    (a) The Second Respondent found that it was “reasonable to consider the existence of an Iranian grandfather who had resided in Iran would provide evidence to satisfy the Iranian authorities of the father’s Iranian nationality” (paragraph [133] of the IMR report).

    (b) Country information before the Second Respondent suggested that “Some Iraqis had been able to prove their family links to Iran” but that “there were still applications pending of individuals claiming Iranian ancestry but who [had] not been able to substantiate their claims” (paragraph [110] of the IMR report).

    (c) In its reasons, the Second Respondent failed to consider the process by which the Applicant’s father could apply for citizenship and/or the practicality of the Applicant’s father providing sufficient evidence “to satisfy the Iranian authorities.””

1. Once again, the gravamen of the complaint is found in the final particular.  I am afraid that I cannot agree with the drafter of those grounds that the reviewer failed to consider the process by which the father could apply for citizenship and/or the practicality of the applicant’s failure to provide sufficient evidence “to satisfy the Iranian authorities.”

2. Firstly, I wonder why it is any responsibility of the father, because the relevant citizenship is that of the applicant.  But I assume what is being argued is that the applicant cannot prove his citizenship unless the father is also found to be a citizen.  But in [134] the reviewer goes into this very matter, albeit in a manner with which the applicant does not agree.  I believe that it can be inferred from what the reviewer has said that the reviewer expected that the father could approach the authorities on the basis of his lengthy period of residence in the village, his association with MG (who is apparently still alive) and the fact that all the male members of the family appear to have held down jobs.

3. So, whilst that consideration may not have been very deep, it cannot be said that it was non-existent.  Any claim of a Wednesbury type would, in my view, thus fail.  Whilst I am most grateful to counsel for the applicant for putting forward an articulate and well-argued case, in the final analysis I cannot be satisfied that the reviewer fell into jurisdictional error in the manner in which he reached his decision or that he reached his decision unlawfully. In those circumstances the application must be dismissed.  The applicant shall pay the First Respondent’s costs assessed in the sum of $6,240.00.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  4 May 2012