DZACQ v Minister for Immigration
[2012] FMCA 564
•7 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACQ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 564 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer – applicant an offshore entry person claiming persecution in Iran as a Faili Kurd – applicant disbelieved in important respects – whether the Reviewer committed a legal error in making a finding about the applicant’s nationality considered – no reviewable error. |
| Migration Act 1958 (Cth), s.5 |
| DZACI v Minister for Immigration & Anor [2012] FMCA 379 |
SZNOE v Minister for Immigration [2012] FCA 96
SZOOR v Minister for Immigration [2012] FCAFC 58
SZOXI v Minister for Immigration [2011] FCA 911
SZREF vMinister for Immigration & Anor [2012] FMCA 461
| Applicant: | DZACQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 3 of 2012 |
| Judgment of: | Driver FM |
| Hearing dates: | 28 June 2012 at Darwin |
| Date of Last Submission: | 4 July 2012 |
| Delivered at: | Sydney, via videolink to Darwin |
| Delivered on: | 7 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondents: | Mr T Anderson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 13 January 2012 as amended is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG3 of 2012
| DZACQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS 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 the second respondent (the Reviewer). The report and recommendation is dated 7 December 2011 and was notified to the applicant by letter dated 9 December 2011.
The following statement of background facts is derived from the submissions of the parties.
The applicant is an offshore entry person, as that term is defined at s.5 of the Migration Act 1958 (Cth) (the Migration Act). He is a Faili Kurd and a Shia Muslim from Iran who claims to fear persecution on account of his race. He arrived at Christmas Island on 17 November 2010 and submitted claims in support of a request for a Refugee Status Assessment (RSA) on 4 February 2011[1], which included his statutory declaration.[2] The applicant’s agents made general submissions dated 6 February 2011 on behalf of all of their Faili Kurd clients for the purposes of the RSA.[3]
[1] court book (CB) 36-49
[2] CB 37-39
[3] CB 69-77
On 4 April 2011, the RSA found that Australia did not owe the applicant protection obligations.[4]
[4] CB 86-105
On 16 June 2011 the applicant requested an Independent Merits Review (IMR) of the RSA.[5] The Reviewer interviewed the applicant on 3 October 2011.[6] The applicant made written submissions to the Reviewer via his agents on 22 November 2011.[7] The Reviewer invited further written submissions from the applicant’s agents on 22 November 2011.[8] A response was provided by way of further written submissions dated 29 November 2011.[9]
[5] CB 106-111
[6] CB 194-197 [47]-[75]
[7] CB 152-170
[8] CB 131-149
[9] CB 174-183
The applicant claimed to be a stateless Faili Kurd residing in Iran. In particular, the applicant made the following claims:[10]
a)His mother and father were born in Iraq but they were not Iraqi citizens. They did not hold identification in the form of white or green cards issued by the Iranian authorities to refugees from Iraq.
b)The applicant’s paternal grandfather was born in Musi village in Ilam province. His mother’s father was also born in Jahr Jafta village in Ilam province. The grandfather had been born in Iran and then moved to Iraq. The grandparents died in Iraq and his parents moved back to Iran without any documents.
c)The applicant’s most recent address was in Musi village, Ilam, where his parents and siblings continued to live in tent conditions.
d)The applicant undertook schooling between the ages of 7 to 10.
e)The applicant was employed as a shepherd from the age of 12 and then worked as a panel beater in a mechanic shop in Ilam city for three years. During this period, the applicant also lived at the same place, upstairs at the mechanic shop. Every three months he saw his family.
f)The applicant has never held a “white” or “green” refugee card in Iran. The applicant and his family could not prove their nationality so they have never held documents.
g)The applicant was arrested and beaten by the Basij. The applicant’s employer paid a bribe for his release. The Basij took the applicant outside the city and released him. He signed a paper to say he would not work there again and otherwise would be jailed. This occurred approximately two and a half months before the applicant left.
h)The applicant feared persecution on the grounds of being an undocumented Faili Kurd. The applicant also feared returning to Iran on the basis that he would be accused of spying and might be jailed or killed.
[10] see [47]-[75]
At the IMR interview the applicant, at the outset, admitted to telling lies about his personal details at the RSA interview, because of warnings or advice that other people had given him.[11]
The Reviewer’s findings[12]
[11] see [49]
[12]References to the IMR decision are by paragraph
The Reviewer accepted that the applicant was a Faili Kurd of Shia religion and that he and his family lived in the Ilam province.[13]
[13] [121]
On the basis of country information, the Reviewer found that the “overwhelming number of Faili Kurds in Iran are Iranian nationals”.[14]
[14] [125]
The Reviewer did not accept that the applicant was an undocumented Faili Kurd refugee.[15]
[15] [126]
The Reviewer found that the applicant’s father was an Iranian national through descent and that the applicant was born to an Iranian father.[16]
[16] [127]
The Reviewer found the applicant not to be a witness of truth because of his admission that he had fabricated evidence from his entry interview on 13 December 2010 up until the IMR interview[17].
[17] [131]
In light of the adverse credibility findings, the Reviewer made the following findings:[18]
a)the applicant lived all his life in the family home up until he departed to Iran;
b)his commencement of work at a young age did not demonstrate that he was prevented from accessing schooling for any Convention reason;
c)the applicant did not live and work in Ilam city and consequently the Reviewer did not accept that the applicant worked as a stoneworker or village labourer or farmer;
d)the applicant – or his whole village – did not live “under a tent” with no electricity or running water;
e)throughout his life he had no problems with Iranian agents;
f)the applicant was not assaulted or injured by the Basij.
[18] [134]
The Reviewer also found that other evidence showed the applicant and his family had a legal basis for residing in Iran and were able to evidence this. The following factors indicated that they were not living as non-citizens or undocumented refugees:
a)the family lived a “peaceful life” in Musi village which showed they were well settled;[19]
b)the apparent peaceful lives of the applicant’s other relatives in the region, namely his married brothers and their families, a paternal uncle and his children and a maternal uncle;[20]
c)the fact that the applicant’s brothers had families and worked.[21]
[19] [137]
[20] [138]
[21] [139]
The Reviewer concluded that the applicant was able to raise the 8 million toman needed to leave the country not through “forced thrift” but “because [he and his family] were able to earn a reasonable income for the work they performed”.[22]
[22] [141]
The Reviewer could not discount the possibility that the applicant’s brothers had been detained by the Basij as claimed however found that their ready release indicated that they had relevant documents presentable to the Basij that satisfied the Basij of their identity.[23]
[23] [143]
Having rejected that the applicant was undocumented, the Reviewer went on to consider whether the applicant would face persecution on the grounds of being a Faili Kurd. The Reviewer did not accept that the country information showed that the mere fact of being a Faili Kurd meant that the applicant would be imputed with an anti-regime political opinion.[24]
[24] [148]
In terms of returning to Iran, the Reviewer accepted that the applicant would likely be detained, questioned and fined and “perhaps monitored” on return but did not accept that such treatment amounted to serious harm.[25]
[25] [149]
The judicial review application
The applicant relies upon his judicial review application filed on 13 January 2012. There are two particularised grounds in that application:
1. 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 a non-citizen in Iran or an undocumented or displaced and stateless Iraqi refugee.
(b) The finding was based upon country information and in particular the application of Article 976 of the Civil Code of Iran.
(c) The second respondent made a finding that the applicant’s “family history” and “continuing family ties” would “reasonably provide evidence to satisfy the Iranian authorities of the father’s Iranian nationality and hence the claimant’s nationality.”
(d) The finding of the second respondent that the applicant was an Iranian national through his father was not based upon evidence and/or was unreasonable.
2. 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 the applicant’s “family history” and “continuing family ties” would “reasonably provide evidence to satisfy the Iranian authorities of the father’s Iranian nationality and hence the claimant’s nationality.”
(b) 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.”
(c) In addition, the finding of the second respondent failed to take into account the application of Article 983 of the Civil Code of Iran.
At the trial of the matter before me on 28 June 2012 I permitted the applicant to add an additional ground:
The [R]eviewer failed to ask itself the correct question in considering whether the applicant was a national of Iran as opposed to whether the applicant would not be recognised as a national of Iran by the Iranian authorities and broader community.
Particulars
(i) The [R]eviewer concluded that Iranian citizenship laws operated to establish the applicant’s nationality.
(ii) The [R]eviewer failed to consider whether, notwithstanding the operation of Iranian citizenship laws, the applicant would be perceived to be an Iranian national.
(iii) The applicant had claimed that he had a well-founded fear of persecution for several reasons, including his “perceived nationality as an Iraqi.” (paragraph 116).
I have before me as evidence the court book filed on 3 April 2012. I also received as evidence the affidavit of Carl Damian O’Connor made on 9 May 2012 and the affidavit of Ambrith Abayasekara made on 15 June 2012. Those affidavits introduce additional country information apparently before the Reviewer but not included in the court book.
Both parties made written and oral submissions. The applicant contends that the Reviewer fell into error in considering the threshold issue of his nationality. The applicant contends that the Reviewer’s finding that the applicant is an Iranian national was made without evidence and was unreasonable. The applicant further contends that in assessing the applicant’s nationality or citizenship, the Reviewer failed to ask himself the correct questions and failed to take into account relevant considerations. The additional ground raises the contention that the Reviewer failed to address the question of whether the applicant would be recognised as a national of Iran by the Iranian authorities and the broader community as opposed to the strict legal issue of whether the applicant would be entitled to claim Iranian nationality.
Consideration
It is common ground that this Court has jurisdiction to hear and determine the application.[26] The dispute between the parties centres upon the fundamental issue of the applicant’s nationality.
[26] SZQGA v Minister for Immigration [2012] FCA 593
The applicant complains that the Reviewer’s findings with respect to his alleged statelessness were made without evidence, alternatively were unreasonable (Ground 1), or failed to have regard to relevant considerations (Ground 2), or failed to ask himself the right question (Ground 3).
In response, the Minister contends that the Reviewer's findings:
a)were not made in the absence of any evidence;
b)were not unreasonable, illogical or irrational;
c)did not fail to have regard to relevant considerations;
d)addressed the right question; and
e)the Reviewer’s dissatisfaction with the applicant’s claims was independently supported in any event by his finding that the applicant was “not a witness of truth”.[27]
[27] CB 219 [144]
I prefer the Minister’s submissions. This matter is indistinguishable from a recent application dismissed by Raphael FM on 23 April 2012.[28] That matter concerned almost identical claims, which were dealt with by the same Reviewer, whose findings were impugned on the same grounds. The outcome should be the same.
[28] DZACI v Minister for Immigration & Anor [2012] FMCA 379
As in DZACI, the applicant’s evidence was that his paternal grandfather was Iranian.[29] It cannot therefore be said that there was no evidence for the Reviewer’s dissatisfaction (in very similar terms to that employed in DZACI) that the applicant was stateless.[30]
[29] CB 194 -195 [54]-[55]
[30] DZACI at [19]-[23]
To succeed on the basis of unreasonableness the applicant must establish that the Reviewer’s recommendation was so unreasonable, illogical or irrational that no reasonable reviewer could ever have made it.[31] The correct approach is to ask whether it was open to the Reviewer to engage in the process of reasoning he did and to reach the conclusions he made on the material before him.[32] The recommendation cannot be considered unreasonable, illogical or irrational if there is room for a reasonable, logical or rational person to reach the same conclusion on the material.[33]
[31] Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at 643 [119] and 645 [123]
[32] SZMDS at 648 [133]
[33] SZMDS at 649 [135]). See also SZOXI v Minister for Immigration [2011] FCA 911 at [45]-[47]; SZNOE v Minister for Immigration [2012] FCA 96 at [84]-[87]; and SZOOR v Minister for Immigration [2012] FCAFC 58 at [2]-[15], [75]-[85], [112]-[113]
In the application of the above principles it is also necessary to recall that the Reviewer was entitled to interpret and place such weight as he considered appropriate on the country information before him.[34]
[34] NAHI v Minister for Immigration [2004] FCAFC 10 at [10]-[14]
The Reviewer’s non-acceptance of the applicant's claims was principally reached on credibility grounds. Thus it is also worth recalling the oft quoted observation of McHugh J in Re Minister for Immigration; Ex parte Durairajasingham[35] that findings on credibility are “the function of the primary decision-maker par excellence”.
[35] (2000) 168 ALR 407; [2000] HCA 1 at [67]
The Reviewer's non-acceptance of the applicant's claim to be stateless was not unreasonable, irrational or illogical and does not demonstrate any legal error. Ground 1 fails.
Ground 2 was also dealt with in DZACI.[36] The circumstances are almost identical here. As in DZACI, the only reasonable reading of the Reviewer’s report is that he considered the applicant and his parents would have been able to establish their Iranian nationality notwithstanding the bureaucratic requirements. Indeed, he stated that the evidence of the applicant which he accepted “shows he and his family had a legal basis for residing in Iran, and are able to evidence this”.[37] (emphasis added)
[36] at [26]-[29]
[37] CB 218 [136]; emphasis added
There is no proper basis to infer that the reviewer failed to consider relevant country information that was before him.[38] As noted above, the Reviewer was entitled to interpret and place such weight as he considered appropriate on the country information before him.[39]
[38] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [33]; as recently applied by Smith FM in SZREF vMinister for Immigration & Anor [2012] FMCA 461 at [39]
[39] NAHI v Minister for Immigration [2004] FCAFC 10 at [10]-[14]
Further, the relevant part of the Civil Code of Iran was put to the applicant for comment in what the Reviewer called his “natural justice email” which attached country information.[40] In his response[41] the applicant did not seek to draw the support for his claims from the Code (or DFAT reports), that he does now. In these circumstances nothing can fairly be read into the fact that the Reviewer did not expressly address that material.
[40] CB 199 [78], CB 139 [24]
[41] CB 174 -183
In relation to Ground 3, the Reviewer had available to him, but apparently did not refer to, country information that only some 760 Faili Kurds from the province of Ilam in Iran have been able to negotiate their way through the complex and slow bureaucratic process of establishing Iranian nationality.[42]
[42] See DZACP v Minister for Immigration & Anor [2012] FMCA 570 at [61], footnote 62
On the other hand, it was significant in this case that the Reviewer appears to have proceeded on the basis that the applicant’s Iranian nationality had already been recognised by the Iranian authorities. At [150] of his report, the Reviewer stated:[43]
The claimant has not provided the Iranian passport he used to travel to Indonesia. He claims the smuggler took it. However, in light of the foregoing I do not accept that he purchased a false passport, when he would have had no need. It follows that I do not accept he got through the airport security checks because the smuggler organised payment of a bribe or bribes. At my interview I queried what the Immigration officer did, and the claimant stated he looked at the passport and ticket, stamped the passport and said to have a good trip. I conclude he had no difficulties at Imam Khomeini International airport because he had a genuine Iranian passport. I do not accept that he departed Iran illegally.
[43] CB 221
That finding is the short answer to the applicant’s contention that the Reviewer failed to consider whether the applicant would in fact be recognised as an Iranian national, even if Iranian law supports a claim of Iranian nationality.
The applicant takes issue with the Reviewer’s finding at [128]:[44]
The claimant’s story revolves around his parents’ expulsion from Iraq to Iran and being unable to prove their Iranian heritage. If his claim that the parents had been born in Iraq is true, then it may be that the parents had no birth certificates from Iran to show their Iranian nationality. Alternatively, the parents might always have lived in the home village and had not been born or lived in Iraq at all. In the former case, I note the claimant states the parents went to Musi village which had been the paternal grandfather’s birthplace. The claimant states the grandfather’s residence in the village was distant in time and not many or any people who knew him are still alive. However, his claim that they settled in the home village in Ilam province leads me to conclude the father had personal and family ties there such that the father returned to the place of his forebears. There would have been relatives and/or families in the village area that remembered the grandfather’s family. In either case, this family history and the continuing family ties there would reasonably provide evidence to satisfy the Iranian authorities of the father’s Iranian nationality and hence the claimant’s nationality.
[44] CB 216
However, the applicant's contentions in this regard can carry no weight when the Reviewer's findings at [128] are read in the context of the report as a whole. For example, shortly after the findings at [128] the Reviewer states his conclusion that “whilst he lived in Iran [the applicant] had no difficulties in showing his Iranian heritage and nationality”.[45] The Reviewer also considered that the applicant's brothers and other family members had been able to establish their Iranian nationality in the past.[46] As I have already noted, the Reviewer also found that the applicant departed Iran on a genuine Iranian passport, implicitly his own genuine Iranian passport.[47]
[45] CB 216 [130]
[46] CB 219-220 [143]-[144]
[47] CB 221 [150]
A fair reading of the Reviewer’s report establishes to my satisfaction that he considered the applicant and his parents had been able to establish their Iranian nationality notwithstanding the bureaucratic requirements. There is therefore no merit in the contention that the reviewer only considered that the applicant would be able to establish his Iranian nationality in the future.
The applicant also complains that the Reviewer failed to consider whether he would be “seen less favourably by the general Iranian population” because he would be perceived to be Iraqi.[48] At its highest, this is an allegation of discrimination or possibly harassment, which may amount to persecution on a cumulative basis.
[48] AS [9 (c)]
In his report, the Reviewer set out the applicant's claims, including those of discrimination, and the Convention ground of perceived Iraqi nationality.[49] He expressly noted that he had considered all of the applicant's claims cumulatively.[50]
[49] CB 213-214 [115]-[116]
[50] CB 214 [117]
The Reviewer went on to consider all of the applicant's claims and expressly reject them. He found that the applicant had not suffered Convention-related discrimination amounting to persecution in the past.[51] He then concluded[52]:
I do not accept he faces the discrimination in Iran he claims. I conclude if he returns to his home area in Iran, in the reasonably foreseeable future there is not a real chance he will face serious harm amounting to persecution for a Convention reason of nationality or lack of nationality or perceived nationality as an Iraqi).
[51] CB 217-220 [134]-[144]
[52] CB 220 [145]
The Reviewer also expressly refused to accept that the applicant “would be harassed because he would be imputed to be an Iraqi or non-Iranian”.[53]
[53] CB 220 [147]
In light of these findings there is no merit in this aspect of the applicant's complaint.
The applicant complains about the Reviewer's treatment of country information bearing upon the issue of the processes for establishing Iranian nationality. The choice of country information was, however, a matter for the Reviewer. The Reviewer may have been wrong in finding that the applicant is an Iranian national but the merits of the finding are not for this Court to address.
The Reviewer asked and answered the correct questions fairly arising from the applicant's claims. Ground 3 is therefore without merit.
Finally, the Minister contends, even if the Reviewer fell into error on the question of the applicant’s nationality, the decision is independently supported by the Reviewer’s adverse credibility findings against the applicant.[54] The Reviewer’s findings in this regard are at [131]-[145] of the report and recommendation.[55] At [134][56] the Reviewer found that the applicant had fabricated claims since his arrival in Australia in order to support his case as he saw as most advantageous from time to time. The Reviewer found the applicant not to be a credible witness. The Reviewer rejected as not credible the applicant’s core claims concerning the harm he suffered in Iran. There was no doubt that the appropriate country of reference in relation to the applicant’s claims was Iran. The Reviewer comprehensively rejected those claims. That rejection did not depend upon whether the applicant was an Iranian national or not, except in relation to the issue of his entitlement to return to Iran and the treatment he might receive on return. In view of the adverse credibility findings made by the Reviewer, the Reviewer could not be satisfied that Australia owes protection obligations to the applicant, whether or not he is an Iranian national or is entitled to claim that nationality.
[54] Cf DZACI at [25]
[55] CB 216-220
[56] CB 217
On the basis of these findings, any error of the sort complained about cannot be considered to have affected the outcome and should not found relief on discretionary grounds[57].
[57] SZBYR vMinister for Immigration (2007) 81 ALJR 1190; 235 ALR 609; [2007] HCA 26 at [27]-[29], [49]-[90], and [91]; SZMCD v Minister for Immigration (2009) 174 FCR 415 at 437-439 [115]-[128]
Conclusion
The applicant has failed to establish any reviewable legal error in the report and recommendation of the Reviewer. I will, therefore, order that the application as amended be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 August 2012
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