DZACT v Minister for Immigration
[2012] FMCA 557
•27 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 557 |
| MIGRATION – Review of a report and recommendation of an Independent Merits Reviewer in respect of the claims of an offshore entry person – applicant claiming a fear of imputed political opinion in Iran – alleged chance encounter with a well known dissident figure – applicant not believed in part and found to have exaggerated or embellished his account – no reviewable legal error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 46A |
| Minister for Immigration v SZMDS (2010) 266 ALR 367 MZYQZ v Minister for Immigration & Anor [2012] FMCA 265 NABE v Minister for Immigration (No 2) (2005) 144 FCR 1 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 S76 of 2003 v Minister for Immigration [2005] FCAFC 120 SDAQ v Minister for Immigration (2003) 129 FCR 137 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZJEZ v Minister for Immigration [2008] FCA 1741 SZOOR v Minister for Immigration [2012] FCAFC 58 SZOXI v Minister for Immigration [2011] FCA 911 SZNOEv Minister for Immigration [2012] FCA 96 SZQFR v Minister for Immigration [2011] FMCA 785 |
| Applicant: | DZACT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | TROY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 6 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 27 June 2012 |
| Delivered at: | Darwin |
| Delivered on: | 27 June 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 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 6 of 2012
| DZACT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| TROY BARTY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a report and recommendation of an Independent Merits Reviewer (“the Reviewer”) in respect of the claims for protection of an offshore entry person. The report and recommendation was dated 18 December 2011 and was notified to the applicant by a letter dated 21 December 2011. The Reviewer found that the applicant does not meet the criterion for a protection visa, and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The applicant is from Iran and had made claims of a fear of persecution upon the ground of imputed political opinion. 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 an Iranian who claims to fear persecution for imputed political reasons after having had brief contact with a political dissident. 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[1], which included his statutory declaration[2]. The applicant’s solicitors made general submissions dated 7 December 2010 on behalf all their Iranian clients for the purposes of the RSA[3].
[1] Court book (“CB”) 44-94
[2] CB45-46
[3] CB95-102
On 26 September 2010, the applicant participated in an entry interview[4].
[4] CB18-42
On 13 December 2010 a RSA found that the applicant did not meet the definition of a refugee as set out in the Convention[5].
[5] CB 111-122
On 11 January 2011 the applicant requested an Independent Merits Review (IMR) of the RSA[6]. The applicant made written submissions to the Reviewer via his solicitors dated 22 July 2011[7]. The applicant was interviewed by the Reviewer on 8 September 2011[8]. The applicant’s solicitors subsequently made further written submissions in response to a request from the Reviewer[9].
[6] CB123-127
[7] CB129-130
[8] CB154-157 at [36]-[59]
[9] CB131-145, CB158-159 at [60]
Applicant’s claims
The applicant’s claims can be summarised as follows:
a)The applicant is a 25 year old man, born in Tehran, Iran. The applicant had never been married and had lived his whole life in Tehran. He completed approximately 12 years of schooling and before he left Iran he worked for a company that made ovens.
b)The applicant’s central claim was that he was at risk of persecution because he had his photograph taken with Emadeddin Baghi, a well known political activist and leader of the Green movement[10].
c)The applicant claimed that consequently the Basij and authorities were looking for him[11].
d)Approximately 19 or 20 days later a friend of the applicant’s father (Hussein Mortazari) who worked for Sepah, told his father that he had seen a photograph of the applicant with Mr Baghi and that there would be trouble. Mr Mortazari told the applicant’s father that he could delay things for 20-30 days but after that they would come and get the applicant[12].
e)The applicant’s brother and father organised the applicant’s departure[13].
f)After the applicant had left Iran he had been told by his family that they had come looking for him once or twice[14].
g)The applicant claimed that the authorities think that anyone that Mr Baghi talks to could be politically involved[15].
h)The applicant also claimed to have attended the June 2009 post election protests for a couple of hours[16].
[10] [56]
[11] [39]
[12] [48]
[13] [52]
[14] [39]
[15] [51]
[16] [53]
The advisers, on behalf of the applicant, also submitted that he was at risk of persecution by reason of his political opinions and/or imputed political opinions and because of his status as a failed asylum seeker returning to Iran[17].
[17] [60]
In his entry interview, the applicant also claimed to have experienced harassment and physical violence at the hands of the Basij[18].
[18] CB 38
Reviewer’s findings
The Reviewer referred to relevant country information[19].
[19] [61]-[81]
The Reviewer (somewhat reluctantly) accepted that the applicant had greeted a well-known political dissident, Emadedin Baghi, on the street near his home in Tehran in July 2010[20]. However she concluded:
a)that their contact was limited to a greeting[21];
b)the encounter was not such “that would cause the authorities to target the claimant”[22];
c)he was not “of interest to the authorities as a result of a brief exchange with Mr Baghi”[23];
d)the authorities were not planning to arrest him because they held a photograph of him speaking to Mr Baghi[24]; and
e)the applicant did not leave Iran because he feared persecution as a result of his contact with Mr Baghi[25].
[20] CB169 at [84], CB172 at [99]
[21] CB169 at [85]
[22] CB170 at [86]
[23] CB170 at [87]
[24] CB170 at [88], CB169 at [85] – third dot point
[25] CB170 at [90]
Specifically, the Reviewer made the following findings:
a)the applicant was an Iranian citizen[26];
b)it was plausible that the applicant “may have seen and greeted Mr Baghi on 24 or 25 July 2010”[27];
c)due to a number of purported inconsistencies, it was not accepted that the conversation or interaction between the applicant and Mr Baghi would have resulted in his becoming of interest to the authorities such that he was under threat from them[28];
d)although country information reported family and sometimes friends of activists were targeted by the authorities, there was no evidence that “persons who have brief conversations in the street with a person who is of interest would be a target”[29];
e)the applicant had not been subject to any harm for reasons of his imputed political opinion[30];
f)the applicant did not have a political opinion that would motivate him to engage in any conduct that would result in political activity that would bring him to the attention of the authorities[31];
g)the previous claims that the applicant was beaten by the Basij were not accepted[32];
h)the applicant would not suffer harm upon return as he left Iran legally and did not have a high political profile that might attract attention to him by the authorities[33].
[26] [83]
[27] [84]
[28] [85], [88]
[29] [86]
[30] [88]
[31] [89]
[32] [95]
[33] [92]-[98].
She was not satisfied that, if the applicant had been beaten by the Basij (a claim made in his entry interview but not mentioned thereafter[34]), it was Convention related.
[34] CB38, CB 171at [95]
These proceedings began with a judicial review application filed on 25 January 2012. The applicant now relies upon an amended application filed on 3 May 2012. There are four particularised grounds in the amended application:
1. The Second Respondent failed to have regard to relevant material and/or failed to make findings on material questions of fact in a manner that affected the exercise of its jurisdiction and/or denied the applicant procedural fairness
Particulars
(a) The second respondent accepted that the applicant had encountered and greeted prominent “author, journalist and activist” Emadeddin Baghi on 24 July 2010.
(b) Central to the applicant’s claims were: (i) the authorities had photographed the applicant with Mr Baghi; and (ii) the applicant’s father had been told about the photograph by his friend.
(c) The second respondent made a finding that it did not accept that the applicant was of interest to the authorities as a result of his encounter with Mr Baghi.
(d) However, the second respondent failed to make findings on the specific claims advanced by the applicant.
(e) The failure of the second respondent to consider and/or make findings on relevant, critical matters was sufficiently fundamental to amount to jurisdictional error.
2. The second respondent failed to properly consider the applicant’s claim that he was at risk of persecution by reason of his imputed political opinion
Particulars
(a) The applicant claimed that by reason of his encounter with Mr Baghi he would be imputed with a political opinion.
(b) The second respondent did not accept that there was a real chance in the reasonably foreseeable future that the applicant would suffer harm amounting to persecution for reasons of political opinion (real or imputed).
(c) The second respondent made this finding without considering the claim advanced by the applicant.
3. The second respondent’s finding that the applicant’s encounter with Mr Baghi would not cause the authorities to target the applicant was unreasonable and/or made without evidence
Particulars
(a) The second respondent referred to country information that suggested that family and friends of activists were sometimes targeted by the authorities to put pressure on the activists.
(b) The second respondent found that there was “no indication that greeting a person in the street would cause that person to subsequently become of interest to the authorities.”
(c) The second respondent’s finding was based on a failure of the country information to refer to the specific and individual claims of the applicant.
(d) In all the circumstances, the finding was unreasonable and/or made without evidence.
4. The second respondent denied the applicant procedural fairness by failing to direct the applicant to the live issues under review
Particulars
(a) The second respondent referred to the applicant’s previous claims of having been beaten by the Basij on two occasions.
(b) The second respondent made a finding that, in the absence of any evidence of these events, she was not satisfied that they occurred or alternatively, that they were Convention related.
(c) The applicant had not abandoned the claims that he had previously made.
(d) The [R]eviewer proceeded to make positive findings on this issue without raising it with the applicant.
(e) In the circumstances of this case, the [R]eviewer denied the applicant procedural fairness.
I have before me as evidence the court book filed on 5 April 2012.
Both parties took the opportunity to make written and oral submissions.
On the first ground, the applicant contends that the Reviewer failed to have regard to relevant material and failed to make findings on material questions of fact in a manner that affected the exercise of her jurisdiction and/or denied procedural fairness. It is probably inappropriate to talk in terms of reviewers having a jurisdiction, certainly of any kind akin to the Refugee Review Tribunal, which has a defined jurisdiction under the Migration Act.
As has been found by the High Court and the Full Federal Court, decisions of Reviewers are reviewable in this Court because they exercise a function incidental and hypothetically leading up to an exercise of power by the Minister under s.46A of the Migration Act. The issue for the Court in relation to reports and recommendations of Reviewers is whether the report and recommendation is tainted in some way by a legal error, for example, because of a failure to correctly apply correct legal principles, or because of a want of procedural fairness.
The applicant’s contentions in relation to the first ground are set out in paragraphs 14 through to 24 of his submissions. I prefer, however, the submissions of the Minister, detailed in paragraphs 10 through to 13.
Despite the applicant’s contentions to the contrary[35], the only fair reading of the Reviewer’s report is that she was not satisfied that the applicant faced a real chance of persecution because the Iranian authorities had a photo of him greeting Mr Baghi. Although she did not expressly state that there was no such photo, it is clearly implicit from the findings made at CB 168-170[36] that either there was no photo or, if there was, it was not a matter of significance.
[35] at [21]-[23]
[36] at [83]-[90]
The Reviewer's discussion of the matter commences with her noting the applicant's principal proposition: “The claimant fears persecution for reason of political opinion on the basis that the authorities were in possession of a photograph of him talking in the street with Emadeddin Bahgi”[37]. However she was[38]:
not able to accept this evidence as there were a number of inconsistencies such that the claimant’s accounts as a whole was unreliable and the claimant appeared to tailor his evidence during the interview, for example: … I do not accept that the conversation took place as the claimant has described. I do not accept that they spoke for 10 minutes and concluded that the claimant’s evidence about the length of the time they spoke was exaggerated or constructed to make it more feasible that he could have been photographed during that time and imputed with a political opinion as a result. ( emphasis added)
[37] at [83]
[38] at [85]
Then at [88] she said:
The claimant’s evidence is that there was a photograph of him and that Ettela’at were planning to arrest him … I have concluded that he was not of interest to the authorities as a result of his conversation with Mr Baghi and as a result I do not accept the security forces were looking for him at any time, including after he left Iran. (emphasis added)
On this issue she concluded “that the claimant does not have a well-founded fear of persecution. I find that the claimant left Iran for reasons that are not related to his refugee claims”[39]. Properly understood, this is a finding that the applicant did not actually have a fear of persecution because he believed the Iranian security forces had a photograph taken whilst he was talking to Mr Baghi. This finding was fatal to his claim[40]. The Reviewer clearly rejected the substance of the story as a fabrication, notwithstanding she was prepared to concede there may have been a brief greeting.
[39] at [90]
[40] SDAQ v Minister for Immigration (2003) 129 FCR 137; S76 of 2003 v Minister for Immigration [2005] FCAFC 120
In my view, the Reviewer adopted a generous attitude to the applicant’s core claim that he had a chance encounter with the celebrated human rights activist and journalist, Emadeddin Baghi, when the applicant was erecting lights in the street, and Mr Baghi happened to be passing.
The Reviewer appears to have been influenced by the fact that the applicant had maintained that claim consistently. It was a surprising claim, if, for no other reason than that the applicant claimed that Mr Baghi was a regular visitor to his parents’ home[41], and yet he feared no harm from the authorities by reason of that apparently close association, although he asserted fear of harm by reason of the single chance encounter that he recounted.
[41] See CB 155
I reject the contention in ground 1. In my view, it was not necessarily material to the Reviewer’s consideration whether a photograph of the applicant and Mr Baghi existed or not. The central consideration addressed by the Reviewer in her reasons was that this was a chance encounter of short duration, which had been exaggerated by the applicant in order to make it appear more significant. By logical extension, whether a photograph existed or did not exist of the applicant with Mr Baghi on the occasion of this chance encounter was unlikely to alter the view that the authorities held about that encounter.
It may well be, as is contended by counsel for the Minister, that it is implicit in the Reviewer’s reasons that she rejected the claim that a photograph existed. It probably would have been preferable if the Reviewer had dealt with that issue expressly. However, it was also open, in my view, to the Reviewer to have concluded that even if a photograph existed, it would not have altered her conclusions on the lack of any objective basis for the fear asserted by the applicant.
I also reject ground 2, which is, in effect, an extension of ground 1. I agree with and adopt, with respect, that aspect of the Minister’s submissions.
The applicant alleged that he would be imputed with a political opinion because the authorities had a photograph of him speaking to Mr Baghi. No other basis was put for the authorities to consider that he had a relationship with Mr Baghi (other than presumably the photographer witnessed the encounter when the photograph was supposedly taken).
However, as noted above, the Reviewer either did not accept that the authorities had any such photograph or did not consider that the existence of a photograph changed anything. Further, she considered whether the encounter itself would cause the applicant to become of any interest to the authorities and found that it would not[42]. She found unequivocally that the applicant would not be persecuted on account of an imputed political opinion, in any way related to his contact with Mr Baghi, or for any other reason[43].
[42] CB 170 at [86]
[43] CB 170 at [90], CB 172 at [99]
Ground 3 is a challenge based on unreasonableness. The Court should be cautious in approaching a challenge based upon that ground.
As has been made clear by the High Court in Minister for Immigration v SZMDS[44], mere illogicality will not, of itself, invalidate a decision, although it might be a pointer to legal error. The issue here is whether the matters dealt with by the Reviewer were matters upon which reasonable minds could differ. There is no doubt in my mind that the reviewer was entitled to come to the view she did for the reasons she gave. I otherwise agree with the Minister’s written submissions on this ground.
[44] (2010) 266 ALR 367
To succeed on this ground the applicant must establish that the Reviewer's recommendation was so unreasonable, illogical or irrational that no reasonable reviewer could ever have made it[45]. 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[46]. 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[47].
[45] SZMDS at 643 [119] and 645 [123]
[46] SZMDS at 648 [133]
[47] SZMDS at 649 [135]). See also SZOXI v Minister for Immigration [2011] FCA 911 at [45]-[47]; SZNOEv 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 she considered appropriate on the country information before her[48].
[48] NAHI v Minister for Immigration [2004] FCAFC 10 at [10]-[14]
Contrary to the applicant's contentions[49], the Reviewer's non-acceptance of the applicant's claims was principally reached on credibility grounds, not solely because of an absence of corroborative country information[50]. Thus it is also worth recalling the oft quoted observation of McHugh J in Re Minister for Immigration; Ex parte Durairajasingham[51] that findings on credibility are “the function of the primary decision-maker par excellence”.
[49] at [37]
[50] cf SZJEZ v Minister for Immigration [2008] FCA 1741 at [50]-[51]
[51] (2000) 168 ALR 407; [2000] HCA 1 at [67]
The Reviewer's non-acceptance of the applicant's claims in this regard was not unreasonable, irrational or illogical and does not demonstrate any legal or jurisdictional error. Ground 3 must therefore fail.
The fourth ground raises an additional issue in relation to a circumstance alluded to by the applicant in his initial entry interview, but not dealt with subsequently. The Tribunal deals with that issue at [95] of its reasons:[52]
In his entry interview the claimant indicated that he had been beaten by the Basij on two occasions in the past. He has not subsequently discussed, referred to or relied on these events. In the absence of any evidence of these events, I am not satisfied that they occurred. If I am wrong and he and his friends were beaten by the Basij, I am not satisfied that these incidents occurred for any Convention reason and I find that the claimant does not face a real chance of serious harm as a consequence of these incidents in the future for a Convention reason.
[52] CB 171
I agree with counsel for the Minister that it is reasonably arguable that it was unnecessary for the Reviewer to deal with this issue at all.
Although the question of the applicant having encounters with the Basij was mentioned in his entry interview, it was not, in my view, a clearly articulated claim of a well-founded fear of persecution for that reason that required consideration. Further, as is contended for by the Minister, it is also strongly arguable that if such a claim was made, the failure by the applicant to make any later mention of it, and the failure of any advisor to make any mention of it subsequently, supports an inference that the claim had been abandoned. In that respect, I agree with the Minister’s written submissions.
It is trite that an applicant must satisfy a reviewer of their claims[53]. If it was a claim requiring consideration, the Reviewer was simply doing her job in turning her mind to it. Had she not been so thorough, she ran the risk of being accused of failing to consider an integer of the applicant's claim. A reviewer does not have to tell an applicant she will consider each and every aspect of their claims; it is to be expected. Nothing in SZBEL assists the applicant.
[53] eg. SZBEL v Minister for Immigration (2006) 228 CLR 152 at 164 [40]
However, there are several reasons why the Reviewer was under no obligation to consider the matter in any event. As she noted, there was no reliance on these matters and no evidence was given to her about them[54]. In these circumstances there was no “substantial clearly articulated argument relying on established facts” which “clearly emerge[s] from the materials”[55] requiring consideration.
[54] CB 171 at [95]
[55] NABE v Minister for Immigration (No 2) (2005) 144 FCR 1 at 22 [68]
Further, had the alleged claim ever been made, the Reviewer would have been justified in considering it to have been abandoned in all the circumstances. It was not a “live issue” as the applicant now alleges. He had killed it off by making no mention of it whatsoever after the entry interview. Hence it was not dealt with during the RSA process and effectively treated as a non-issue by the Reviewer. The reasoning of Cameron FM in SZQFR v Minister for Immigration & Anor[56] and Burchardt FM in MZYQZ v Minister for Immigration & Anor[57] can be applied in these circumstances.
[56] [2011] FMCA 785 at [38]-[48]
[57] [2012] FMCA 265 at [18]-[28]
The applicant alleges unfairness because the Reviewer made adverse credibility findings against him on the issue without advance warning[58]. However the Reviewer was not satisfied that the events occurred, or alternatively occurred for a Convention reason, because of “the absence of any evidence of these events”[59], rather than any concerns about his credibility. The adverse credibility findings made in relation to the claims the applicant did pursue were reached entirely independently.
[58] Applicant’s Contentions at [44]
[59] CB 171 at [95]
In terms of the applicant’s contentions advanced at [38]-[44] of his written submissions, in my view, this case can be further distinguished from SZBEL on the basis that the obligation addressed in that case is an obligation to ensure that the applicant understands the essential and significant issues upon which a review will turn. The issue addressed by the Reviewer at [95] of her reasons was neither essential nor significant to the outcome of the review.
I conclude that the applicant has failed to demonstrate reviewable legal error in the report and recommendation of the Reviewer. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Federal Magistrates Court scale. Counsel for the applicant did not wish to be heard on costs. 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 forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 June 2012
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