DZACN v Minister for Immigration
[2012] FMCA 546
•7 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 546 |
| MIGRATION – Review of a report and recommendation of an Independent Merits Reviewer in relation to an offshore entry person – applicant claiming political persecution in Iran – difference in findings at first instance and on review in relation to a key aspect of the applicant’s claims – whether the review was procedurally fair considered – the applicant was on notice that the relevant aspect of his claims was in issue in the review. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 36, 46A |
| SZBEL v Minister for Immigration (2006) 228 CLR 152 |
SZQGA v Minister for Immigration [2012] FCA 593
| Applicant: | DZACN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | TROY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 77 of 2011 |
| Judgment of: | Driver FM |
| Hearing dates: | 25 and 29 June 2012 in Darwin |
| Delivered at: | Sydney, by videolink to Darwin |
| Delivered on: | 7 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Gilbert |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondents: | Mr T Anderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 23 December 2011 as amended is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 77 of 2011
| DZACN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| TROY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for an order restraining the first respondent (the Minister) from relying upon a report and recommendation of an Independent Merits Reviewer (the Reviewer) made on 15 November 2011. The applicant also seeks a declaration. The Reviewer found that the applicant does not meet a criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (the Migration Act) and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. The applicant is an irregular maritime arrival (IMA) and by reason of that status, is an offshore entry person, as that term is defined in s.5 of the Migration Act. He was prohibited from making a valid visa application unless the Minister was minded to exercise his discretion under s.46A of the Migration Act in his favour.
It is common ground that, an injunction having been sought to restrain the Minister from relying upon the report and recommendation of the Reviewer, the Court has jurisdiction to review it[1].
[1] See [17] below
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran who claims to fear persecution by the Iranian authorities because he assaulted a member of the Basij (Basij). He arrived at Christmas Island on 20 September 2010 and submitted claims in support of a request for a Refugee Status Assessment (RSA) on 13 November 2010[2], which included his statutory declaration[3].
[2] court book (CB) 42-82
[3] CB 63-65
On 10 December 2010, the RSA found that Australia did not owe the applicant protection obligations[4]. Relevantly, the RSA officer noted that the applicant claimed to have departed Iran on the same day as an altercation with a Basij at which time he assaulted the Basij with a rock.
[4] CB 99-110
On 19 January 2011 the applicant requested an Independent Merits Review (IMR) of the RSA[5]. The applicant made written submissions to the Reviewer via his solicitors on 1 August 2011[6]. Those submissions acknowledged that the RSA officer “found [the applicant’s] account of his reasons for fleeing Iran lacked credibility. She found his evidence vague and unconvincing and found a number of his claims implausible”[7]. Nevertheless, the applicant maintained that, “he has given a truthful account”[8]. The submission expressly addressed the RSA officer’s concerns as to the plausibility of his sudden departure[9].
[5] CB 111-116
[6] CB 117-119
[7] CB 117.4
[8] CB 117.6
[9] CB 117.9-118.1
The Reviewer conducted an interview with the applicant on 9 September 2011[10]. During the interview the Reviewer posed a number of questions concerning the applicant’s account of the altercation with the “Basiji” and subsequent departure from Iran[11]. At the conclusion of the interview the applicant's agent addressed the Reviewer as to why she should accept the applicant's account of the altercation with the “Basiji” and subsequent departure from Iran[12].
[10] Annexure A to the affidavit of Carl O’Connor affirmed 13 April 2012, CB 140-145 [36]-[63]
[11] Transcript (T) 27-41
[12] T 44
The Reviewer recommended in her report of 15 November 2011 that the applicant not be recognised as a person to whom Australia has protection obligations[13]. As with the RSA officer, the Reviewer found the applicant's account of the altercation with the “Basiji” and subsequent departure from Iran implausible. The Reviewer concluded that the altercation did not occur and was not satisfied that it led to the applicant's sudden decision to depart Iran[14].
[13] CB 133-159
[14] CB 155-156 [98]-[99]
The judicial review application
The applicant relies upon his judicial review application filed on 23 December 2011. There is one ground with two particulars contained in that application:
1.The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant 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 and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
PARTICULARS
a) The decision of the Second Respondent was affected by legal and/or jurisdictional error in that the Applicant was not afforded procedural fairness. The Second Respondent found that the third incident with the Basij prompting his flight did not occur. The RSA assessor giving the Applicant the benefit of the doubt accepted the event occurred but it was not [C]onvention-related and was a criminal offence punishable by law. This occurrence was never put to the Applicant or identified by the Second Respondent as a “live” issue. The Second Respondent rejected this part of the Applicant’s case without giving him any opportunity to address the issue.
b) The Second respondent misconstrued a criterion about which it had to be satisfied for the purposes of establishing whether the Applicant was owed protection obligations pursuant to s.36 and/or took into account an irrelevant consideration when making the finding of the Applicant tailoring his evidence based on a misapprehension that the attack on the Basij could not be for imputed political opinion but was a criminal offence punishable by law when the Basij are themselves above the law and on the country information unpredictable, violent and unaccountable and act completely at their discretion. The Applicant’s attack on the local Basij and the consequences of it could not be classified as other than one of the imputed political opinion and/or the conduct of the applicant could not be characterised as a criminal offence as any consequences flowing from his act could not be described as the enforcement of a generally applicable criminal law.
Particular (b) was abandoned at the trial of this matter before me on 25 June 2012. However, I gave leave for an amended application to be filed, raising an additional particular. This was done later on the same day. The additional particular is:
c) The Second Respondent erred by failing to identify or sufficiently identify that the applicant’s claim that the Basij attended his family home after his departure and arrested his father and detained him for one day was a live issue before the Second Respondent.
I received as evidence the court book filed on 16 March 2012. I also received the affidavit of Carl O’Connor made on 13 April 2012, to which is annexed a transcript of the interview conducted by the Reviewer on 9 September 2011.
The evidence bearing upon the additional particular raised in the amended application was dealt with by a statement of agreed facts dated 27 June 2012 concerning part of the transcript of the interview conducted by the RSA officer on 17 November 2010.
Earlier affidavits by the applicant and Mr O’Connor were not relevant to the issues ultimately requiring determination by the Court and were not read.
Both parties made written and oral submissions. The applicant’s written submissions were prepared by Mr John A Gibson of counsel who was, unfortunately, unable to appear at the trial of the matter due to serious illness. The Court wishes to place on record its appreciation for the assistance provided by Mr Gibson in those submissions. At the trial the applicant was ably represented by Mr Gilbert.
Essentially, the proposition put on behalf of the applicant is a simple one. He contends that he was not alerted by the Reviewer to the circumstance that his account of his encounter with the Basij on 13 September 2010 (the day he left Iran) and the subsequent visit by the Basij to his parents’ home (resulting in the short term detention of his father) were doubted by the Reviewer and hence live issues in the review. This is said to be procedurally unfair in the sense described by the High Court in SZBEL v Minister for Immigration[15].
[15] (2006) 228 CLR 152
In response, the Minister contends that there is no merit in the application because:
a)the RSA officer did not accept the applicant's account of the altercation with the Basij and subsequent departure from Iran (Contention 1);
b)the applicant did not interpret the RSA officer's report as accepting his account of the altercation with the Basij and subsequent departure from Iran (Contention 2);
c)the applicant was aware that his account remained in issue as a consequence of the Reviewer’s questioning of him during the interview (Contention 3); and
d)the applicant’s agent responded to the Reviewer's concerns as to the credibility of his account during the interview (Contention 4).
Consideration
It is common ground that this Court has jurisdiction to hear and determine the application.[16]
[16] SZQGA v Minister for Immigration [2012] FCA 593
The applicant concedes that he cannot succeed on this application if the RSA officer did not accept (or at least remain silent about) his account of his encounter with the Basij and their subsequent visit to his parents’ home. That is because if that account were disbelieved by the RSA, he would have been thereby on notice that the issues were live issues in the review and no further warning from the Reviewer would have been required.
The RSA officer relevantly stated[17]:
Fearful that this attack on Basij could bring upon a harsh punishment, he decided to leave the country immediately. However, the circumstance about his departure did not appear plausible to me. He claimed that right after this incident, which happened after 4 pm on the day, he managed to pack up his bags, collect his passport and money, purchase a ticket to Indonesia and the same night around 10:30 pm leave the country. I am not convinced that the claimant was able to accomplish all these tasks in such a short period of time. However, even if I accept this assertion, giving the claimant the benefit of the doubt, the incident that happened to him hitting the Baisj (sic), is not convention related. The claimant actually committed a criminal offence, punishable by law, by bashing one of the Baisji (sic) members with a rock. Therefore I cannot accept that he left the country due to his imputed political opinion for his involvement in the post-election protest but rather due to the criminal offence he committed by smashing a Basij member.
I also find that the claimant's decision to leave the country through the airport indicates a lack of fear on his part… It is for this reason that I am in a positive state of doubt that the claimant was actually fearful of the authorities for any of the convention grounds when he left Iran.
… Even if I accept that the Basij had come looking for him after he left Iran, the reason was not due to his imputed political opinion for participating in the protest but rather due to his criminal offence he committed by bashing one of the members of the Basij.
… I find that he did not have a well-founded fear of persecution at the time that he left the country. Whether he faces persecution due to convention unrelated ground (sic) in the future should he return to Iran is an issue that has to be resolved (emphasis added).
[17] CB 108.6-109.5
In my view, the applicant’s case falls at that first hurdle because, on a fair reading, the RSA officer’s reasoning cannot be deconstructed into two parts, as the applicant seeks to do. The applicant seeks to divide the RSA officer’s reasoning into first, the acceptance of his encounter with the Basij but secondly, the rejection of his account of the manner of his leaving Iran. The additional particular asserts in effect that the RSA officer was silent on the issue of the Basij’s visit to the applicant’s parents’ house on that day, which was rejected by the Reviewer. The agreed facts in relation to that particular are:
1. During the interview of the applicant (via an interpreter) on Christmas Island on 17 November 2010 by the RSA Assessor, Sonja Valcic (the assessor), the applicant said that the Basij came looking for him at the family home “on the same night, the next morning” following his departure from Iran.
2. The applicant was asked when he found out about this. He said that he spoke to his father by telephone from Christmas Island but “he didn’t say anything to me” about it.
3. The assessor responded, “He didn’t tell you that a Basij came after you when you rang your father?”
4. The applicant replied, “My father didn’t want to make me afraid, my father was thinking that I was still in Iran”.
5. The assessor then told the applicant that she could not accept that his father would not have told him that the Basij had come to get him. She then asked, “wouldn’t the first thing he tell you (sic) that the Basij came to get you? Wouldn’t that be the normal reaction of a father concerned for his son to ask you, to ask you, now where are you, things are really bad here, people came for you, wouldn’t this be the first thing a father would say to his son?”
6. The applicant responded:
“I am calling my brother …. A few days ago I am calling my mother … My father is 70 years old, my mother is 59 years old…I do not know the exact date of the birth of my mother but my father was born in one thousand twenty nineteen (?) ….
My brother told me about out tenant, our upstairs tenant, and that they took my father on the same day, they took my father, he was arrested and interviewed for 24 hours and they asked him to submit your son or bring your son in.
What I am talking I am hearing this from my brother.”
7. The assessor then asked about a different topic.
As is apparent from the passage of the RSA’s reasons quoted at [19], this was not an unqualified acceptance of the applicant’s account. The applicant should have been in no doubt from the RSA officer’s decision that his credibility was in issue generally. As a general statement on credibility, the RSA officer said[18]:
That said, after discussing his evidence at the RSA interview, I found the claimant’s account to be unconvincing, vague and unsubstantiated. Whilst I attempt to remain sensitive to the difficulties the claimant faces in his situation and also give the benefit of the doubt where appropriate, I note the relevant facts of the case should be supplied by the claimant in as much detail as is necessary to enable the assessor to establish the relevant facts. In this case, and after having discussed his claims at the RSA interview, I am not satisfied the claimant responded to my relevant questions with a level of detail and spontaneity that might be anticipated from a person who was recalling evidence within their personal experience. Furthermore, based on the evidence before me, I am not satisfied there is any plausible reason he was unable to do so.
[18] CB 107
On a fair reading of the extract at [19] above and read in context with the RSA’s reasons as a whole, the correct interpretation of those reasons is that contended for by the Minister. In other words, the RSA officer did not find the applicant’s account of his encounter with the Basij plausible but, on the assumption that it might be true, found that the incident was not Convention related.
Further, and contrary to the applicant’s contentions, the RSA officer did deal with the applicant’s account of the visit by the Basij to the house of his parents after he had departed that day. The RSA officer said:[19]
The claimant declared at the RSA interview that the Basij came to his parents place seeking for him on the night he escaped. He did not provide this information either to his IAAAS provider nor he mentioned it at his entry interview. He explained that he only told this information to his psychologist. Even if I accept that the Basij had come looking for him after he left Iran, the reason was not due to his imputed political opinion for participating in the protect but rather due to his criminal offence he committed by bashing one of the members of the Basij.
[19] CB 109
The fact that the applicant’s credibility on these matters was in issue was recognised by his migration agent in a submission to the Reviewer dated 1 August 2011. Relevantly, that submission reads[20]:
[20] CB 117-118
The RSA decision and our response
The Case Officer found [the applicant’s] account of his reasons for fleeing Iran lacked credibility. She found his evidence vague and unconvincing and found a number of his claims implausible. In particular, she did not accept that he would have been identified and detained so quickly after participating in a demonstration or that he would have been able to arrange his departure from Iran as quickly as claimed. She also noted that he had not mentioned that the Basij had visited his parents home on the day he left Iran during his entry interview, which she found cast doubt on this claim. In addition, she found that his release after only short time in detention and his ability to leave Iran through the airport in Tehran using his own passport indicated that he was not of serious interest to the Iranian authorities.
[The applicant] maintains that he has given a truthful account of his reasons for fleeing Iran. He believes that he responded in an appropriate manner to the questions he was asked and states that he would have provided additional information if he had been asked.
[The applicant] has no specific knowledge of how he was so quickly identified and located by the Basij, but states that based on his knowledge and experience as an Iranian, the Basij have considerable resources and are well-connected right down to the local level, so it should not be seen as surprising that he was found so quickly.
[The applicant] cannot give a specific reason for his relatively brief period of detention, but notes states it is not unusual for the Basij to release people and detain them again at a later date. This is in keeping with evidence that confirms that the Basij often act in an arbitrary and even irrational manner.
With regard to [the applicant’s] ability to leave Iran so quickly, he states that he contacted a friend who knew a travel agent and who was able to arrange a flight for him the same night. He borrowed money from his mother, packed a few possessions, caught a train from the station near his house and made his way to the airport. Because of the speed with which he was able to arrange to leave Iran, his name was not placed on any lists and he was able to leave the country without any difficulty.
With regard to [the applicant’s] failure to mention the fact that the Basij came to his family home the night that [he] fled the country in his entry interview, he states that he was not aware that this had occurred at the time of the first interview. It was only during later telephone conversations with his family that he learned that this had happened.
The ground of review advanced by the applicant therefore is not established.
Although it is not strictly necessary to do so, I also accept the Minister’s alternative contentions bearing upon the applicant’s case.
Contention 2
The applicant's response to the RSA report (see [24] above) demonstrates that the applicant appreciated that the RSA officer had not accepted his account of the altercation and sudden departure. The applicant was clearly aware that it was a live issue before the Reviewer.
Contention 3
Even if the applicant had been in any doubt that his account of the altercation and sudden departure remained in issue prior to his interview with the Reviewer, the Reviewer's questioning during the interview should have removed any such doubts.
Questions concerning this matter commence at T 27.15. Thereafter the applicant was closely questioned about the detail of his account and inconsistencies with previous versions of the story. At various points the Reviewer expresses difficulty with details of the account (T 31.38, T 33.5, T 33.18-38, T 34.7–31, T 35.15–23, T 37.17–40, T 38.14, T 38.31–39.1, T 39.38, T 40.9, and T 40.34). While there is no direct expression of disbelief by the Reviewer about the applicant’s account there did not need to be. The detailed questioning was sufficient for the applicant to understand that his account was in issue.
The applicant correctly identifies SZBEL v Minister for Immigration[21] as the leading relevant authority. Drawing upon that authority, this is a case in which the Reviewer’s “statements or questions” during the interview sufficiently indicated to the applicant that his account of the altercation and subsequent departure were in issue, and he was asked to expand upon and explain why it should be accepted[22]. Conversely, it is not a case in which the Reviewer “did not challenge what the applicant said”, or “did not say anything to him that would have revealed to him that these were live issues”[23].
[21] (2006) 228 CLR 152
[22] at 165-166 [47]
[23] at 165 [43]
Contention 4
The High Court granted relief in SZBEL because the appellant was not given a sufficient opportunity to give evidence or make submissions about determinative issues[24]. That is not the case here. The applicant gave extensive and detailed evidence about the relevant matters to the Reviewer, in response to her questioning. Further, the applicant’s agent then addressed the Reviewer about that evidence, seeking to persuade the Reviewer of its credibility[25]. There is nothing in SZBEL from which the applicant can gain any comfort on the facts of this matter. There was no failure to accord procedural fairness in this case.
[24] at 165 [44]
[25] T 43.31-45.8
Conclusion
The applicant has failed to demonstrate reviewable legal error in the report and recommendation of the Reviewer. It follows that the application should be dismissed and I will so order.
As to costs, I see no reason to depart from the Court scale.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,471 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 August 2012
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