DZACW v Minister for Immigration
[2013] FMCA 46
•30 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACW v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 46 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | DZACW |
| Respondent: | MINISTER FOR IMMIGRATION AND INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 9 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baysaker |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the Respondent: | Ms Lawler |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 15 February 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 9 of 2012
| DZACW |
Applicant
And
| MINISTER FOR IMMIGRATION AND INDEPENDENT MERITS REVIEWER |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter arrived on Christmas Island in December 2010 seeking protection under the Convention.
The applicant is a 24 year old Iranian male. He left Iran following two incidents involving a local Mullah. The first was when his car was impounded in June 2010 as a result of him playing noisy pop music at a high volume on a holy day and the second when he had an argument with the Mullah and physically assaulted the Mullah. At the point at which he physically assaulted the Mullah, he heard others around calling for the Basij to be called. The assault occurred in September 2010. He says that he then went into hiding and left Iran soon after.
The particulars of the applicant’s claim are set out in paragraphs 86 and 87 of the decision of the Reviewer in the following terms:
The particulars of the claims are that:
· The claimant fears for his safety and life should he return to Iran as he has come to the attention of the Basij.
· In June 2010 the Basij impounded the claimant’s car after he angered them by playing loud music on the day of the commemoration of the death of Khomeni.
· In September 2010 he physically assaulted a local Mullah in a public place and as a consequence of this went into hiding.
· The claimant will be targeted when he returns to Iran as a spy and traitor because he sought asylum in a western country.
· He exacerbated his profile when he came to the attention of the Basij in June 2010 and September 2010 because of his membership of the social group modern young people, distinguishable amongst other things by their dress sense and taste in music.
Although not articulated by the claimant’s adviser in their submission the reviewer has also considered if the claimant could be persecuted for reasons of religion, as he assaulted a Mullah.
The applicant relies upon five grounds in his judicial review application which are conveniently dealt with by commencing with ground C.
Ground C
The applicant claims that his claim for fear of persecution was dealt with by the Reviewer only on the basis of a fear of the Basij or police and not a fear from persecution by security forces. As can be seen from the paragraph set out above, on the face of those reasons it appears that the Reviewer dealt only with the applicant’s claim to be at risk from the Basij. The precise terms of the claim which are set out in a letter from an adviser prior to the hearing are slightly different:
I left Iran due to a conflict with a mullah who lived in my area which resulted in the Basiji (revolutionary guards), Intelligence and Police targeting me as a suspect. The authorities support the mullahs (religious leaders). Politics and religion are intertwined in Iran, and the reasons for my persecution are founded both in my religious beliefs and my political opinions.
Later in that document the applicant sets out:
Who I think will harm or mistreat me when if I go back:
I fear the Basiji, intelligence and police.
The references to multiple agencies being the security forces, Basij, intelligence and police, occur at different places throughout the material and the decision. There has clearly been some looseness of language in the material and the decision as it has unfolded. It appears to me that that is a result of the nature of the claims and that, in substance, the applicant was fearful of the Iranian authorities, the police and the Basij either directly or with the assistance or on the consequential involvement of the intelligence or security forces.
At paragraph 89, the Reviewer rejected the applicant’s claims that the Basij was after him, rejecting evidence that they had attended at the house saying:
89. The reviewer does not accept the claimant’s evidence that the Basij were pursuing him after the September 2010 assault. The reviewer had had regard to the claimant’s evidence that he fled the scene of the assault because he had heard witnesses calling for the Basij. However although the reviewer accepts the claimant contacted his mother shortly after the incident the reviewer finds that the claimant embellished and exaggerated this evidence by claiming that he was told by her that the Basij had arrived at the family home to arrest him. For this reason the evidence provided by the claimant regarding events that then occurred after the assault does not lead the reviewer to the same conclusions as those reached by the claimant or his adviser. Nor does the reviewer find that the claimant was of any ongoing interest to the Basij following the June 2010 incident.
The attendants at the house were alleged to have been not only members of the Basij but plain-clothed officials. On a fair reading of the decision, the Reviewer rejected the proposition that these people did attend on the applicant’s house. Later in the decision, for example, at paragraph 91, the more general term “authorities” was referred to by the decision-maker. The difficulty with defining precisely who may be involved appears in the transcript at page 30 where the following exchange took place.
DZACW: I am not against one person right now. I am – there are a few organisations after me: intelligence service, Basij, security forces, so I’m dealing basically with three different organisations.
Independent Merits Reviewer: Could I just again, what evidence or proof have you got that the intelligence services are after you – just the intelligence services?
Interpreter: Yes
DZACW: If you want to – well, unfortunately, I don’t have any written document to show you they’re after me. If I had, I would present in my very first interview.
At page 21.11, the Reviewer is referring to both the Basij and the security forces together. Although, it seems, technically, there may be a difference between the two forces.
At paragraph 90 of the decision, there are a large number of dot points set out. The fourth one provides:
The claimant gave evidence that there have been no arrest warrants or summons issued or served on him or at the claimant’s family home at any time since this incident. The reviewer had regard to the claimant’s evidence that he had been told by his mother that the Basij had come to the family home on the day of the incident to arrest the claimant.
It appears from this that the Reviewer had concluded that the police had no interest in the applicant as no summons had issued and that the lack of a summons indicated to the Reviewer that others had no interest.
The substance of the case relied upon on the facts actually accepted, was that any interest in the applicant was as a result of his interaction with the Mullah and Basij. The fact that the security or other forces are often involved with the Basij is clearly noted at paragraph 90.9 which is in these terms:
Country information considered by the reviewer highlights the growing integration of the operations of the Basij and the Iranian Revolutionary Guards (Sepah). The Basij shares intelligence information with Sepah, providing the Basij with the capability of locating and identifying people whom they may be sufficiently motivated in tracking down. In addition country information considered by the reviewer suggests that the Basij routinely rely on coercive measures such as violence and torture to extract information from people.
A fair reading of the decision of the Reviewer indicates that the Reviewer has approached the case on the basis that fear of the Basij or other security or intelligence forces, outside the normal legal structures, were one aspect of the applicant’s claim and that fear of the police was a second aspect of the claim. With respect to both aspects, the Reviewer found against the applicant. This is not a case where there was anything in the material to indicate that there is any difference in the reasons for the fear between security forces, intelligence agencies, or the Basij in the context of what had taken place. The applicant’s fear was as a result of his interactions with the Basij and the Mullah. On the facts as found, there was nothing that would show any interest by non police agencies in the applicant. Nor, was there any warrant, which led the Reviewer to find that there was no interest by the police.
In the circumstances, I am not persuaded that the Reviewer has failed to deal with an integral part of the applicant’s claim.
Ground D
The applicant argued that the Reviewer failed to have regard to the fact that the Basij were outside of the normal legal structures when making the decision. The applicant referred to the fact that in the primary decision, it was accepted that the Basij were outside of the normal legal structures. This is addressed by the decision of the Delegate of the Minister at page 109 of the Court Book:
…[DZACW] suggested that no warrant had been issued because the Basij intended to resolve the matter outside of the legal framework, where they could not be held accountable for their actions. I find it difficult to accept that a person accused of the crime of assault would not have been handled within the standard legal framework in Iran, regardless of the fact that the victim of the assault was a religious person. However, it is clear from country information that rogue elements of the Basij do take matters into their own hands and it is possible that this is the case here. As such, I accept that the local Basij may seek to punish [DZACW] for the assault in a manner that is not in accordance with the standard criminal justice framework in Tehran. Because the victim of the assault was a man of religious standing in the area, I accept that the local Basij may take more serious action against [DZACW] that may result in serious harm amounting to persecution.
It appears clear that it was accepted the Basij can’t issue a summons and that the police undertake such work. However, it is clear from dot point 9 of paragraph 90 (set out above) that it was found that the Basij and Sepa do operate outside the law and, as was found by the Reviewer, do use violence and torture to extract information from people if they wish to. I am not persuaded that the Reviewer failed to appreciate that the claim was that the Basij would operate outside the law compared to the police operating within the law. Rather, the Reviewer has clearly identified the issues relating to the police and also squarely addressed the issues relating to Basij or other non police actors in paragraph 89. I am not persuaded that the applicant has established this ground.
Ground E
It was argued that there was no notice given to the applicant that his claim relating to the Basij’s attendance at his residence would be rejected in circumstances where it appears clear that it was accepted by the decision-maker at first instance.
Whilst the applicant was not formally told that this Reviewer could make findings less favourable to him than the first instance officer, this would have been abundantly clear from the terms of the interview. The details of the events that took place after he said he assaulted the Mullah were the subject of detailed and focussed questioning by the Reviewer as appears at pages 19, 21, 22, 25 and 30 of the transcript.
[Page 19]
[Reviewer] Now, could I just say at this point in time I’m having trouble understanding the story as you’re putting it today against what you put in the previous interview in that at both the entry interview and the RSA interview and in the submissions from your advisor, the story you gave is that your father was taken down to the Basij station whilst you had – in the period shortly after your escape and that…
[DZACW] Yes. Yes, that’s correct. Yes, I said to him – to put me in the pressure to (indistinct) myself.
[Reviewer] Why didn’t you mention this today, though, because I’ve asked you several times what had happened in that period and you did not say?
[DZACW] Unfortunately, I didn’t have assistance with someone to help me to review my application, my file, that what happened – what I told before, what I said before so…
[Reviewer] This is something where, I think again, a reasonable person would take the view that if a parent had been taken away, that would be something that you would remember.
[DZACW] I didn’t know that you would ask me these questions. I was – if you want me – if you ask me, I can tell you all the details as well.
[Reviewer] That’s why I’ve asked you and I just simply have to say I note that you’ve made no effort to talk to me about that incident when it figures fairly prominently because he’s gone down to the – you say in the previous two interviews – station. He’s held. You’ve been told that by your mother. You’ve said…
[DZACW] Yes.
[Reviewer] And that they’ve held him because they wanted to get you to come down to the station. Now, that’s a fairly significant turn of events in a period shortly after this event with the mullah and you have not referred to it today. Now, I’ll just clearly make that point.
[Page 21]
[Reviewer] Now, can I put it to you that if the Iranian security forces wanted to find out where you were and were questioning your father, that they probably would have found out? Can I just put that to you from what I have read about how the security forces and Basij work, and I certainly understand the concern that people have about the way they work, that it would be a reasonable proposition knowing how they work to assume that if they really wanted to find out where you were, they would have found out.
[Page 22]
[Reviewer] Could I ask what had occurred, though, to lead you to believe that you needed to escape? I’m asking it in the context that there’s no summons or warrant issued; that your father was released, your whereabouts remained unknown?
[Page 25]
[Reviewer] Okay. I’m just putting it to you that again if security forces wanted to know where you were, it’s, for me, hard to understand why they would not be able to obtain that information from a 63-year-old man who, I would have thought, again putting myself in the shoes of a reasonable person, would have felt very uncomfortable being interviewed by security forces.
[Page 30]
[Reviewer] So for me the issue is whether or not there is the motivation on behalf of who you perceive to be your potential persecutors to track you down in that way in the absence of there being any evidence to date that they have bothered to do so. Now, the other issue is one that I think was previously raised in the RSA and I would raise it again and that is something that is put on the table as adverse information. It’s the more general application. I think you may have addressed that in your submission, but I raise it. Is it the issue that at the end of the day, (DZACW), your concern is that you assaulted someone and you don’t want to confront the consequences of that in the context of the particular Iranian legal judicial system?
[DZACW] Yes. This system will decide for me – very different than the normal person because having problem with the mullahs is very different than having…
[Reviewer] The issue, I suppose, that I raise with you – I put to you is that anyone in Iran under their criminal law system who assaults someone can be arrested and charged and then go before a judge. So the issue is how would you be treated differently? That is, how would you be particularly targeted for committing a possible felon that other people could have committed and be subject to the same treatment on? That’s an issue that’s been raised and I’ll raise it again.
There is no doubt, when one reads this transcript, that the Reviewer had real doubts as to the applicant’s version of events. The applicant was asked many questions about this. In these circumstances, I am not persuaded that the applicant was not effectively on notice that this was a live issue for the Reviewer to consider.
I therefore refuse this ground of the application.
Grounds A and B
In grounds A and B, the applicant argues that the Reviewer failed to turn their mind to whether or not the laws relating to criminal sanctions for assault, particularly of a Mullah, are discriminatory in their application and argued that there was no evidence that a five year maximum punishment was the appropriate maximum for the facts of this particular case.
The Reviewer had regard to the Iranian penal code and, from that, identified the relevant offence as described at paragraphs 79 and 80 of the decision which provide:
79. The International Federation for Human Rights (FIDH) report Iran/death penalty: A state terror policy, dated 28 April 2009, stated that:
Under the Islamic Penal Code (IPC) of 1991, punishments are divided into five types. They are: hodood, qesas, diyeh, ta’zirat and deterrent punishments. Hodood are punishments whose type and scope have been determined by the Islamic shari’a and cannot be commuted or pardoned. Qesas is a retributive “eye-for-eye” punishment meted out for a range of offences. Diyeh (referred to as bloody money) is financial compensation as determined by the Islamic shari’a and paid to the victim or his/her survivors. Ta’zirat are discretionary punishments that have not been determined by the Islamic shari’a and judges have the power to decide them. They may include imprisonment, lashing, fine etc.
80. Mission for Establishment of Human rights in Iran ( has published The Islamic Penal Code of Iran, Attacks on imams [Mullahs] are addressed under Article 513 of Book 5.
Book 5: Ta’azirat [Punishments NOT specified in Shari’a] & Deterrent Punishments.
Chapter 2; Insulting the Religious Sanctities or State Officials. Article 513-Anyone who insults the Islamic sanctities or any of the imams or her excellency Sadigheh Tahereh should be executed if his insult equals to speaking disparagingly of Prophet Muhammad. Otherwise, he should be imprisoned from one to five years.
The Reviewer obtained this information from a website. There was evidence before the Reviewer from which he could conclude that this was the relevant offence in the circumstances. This is a finding of fact with respect to the terms of the foreign law and open to the Reviewer. Whether the Reviewer is in error on this point is not for this court to review as a merits review is not available.
The Reviewer then goes on in some detail to consider the operation of that law at paragraphs 92 to 97 stating:
92. The enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention for the reason that enforcement of such a law does not ordinarily constitute discrimination. As Brennan CJ stated in Applicant A.
the feared persecution must be discriminatory and must be for reasons of one of the prescribed categories. This qualification excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non discriminatory cannot stamp the contravener with the mark of “refugee”.
93. Having invited the claimant’s evidence and submissions in relation to this matter the reviewer is not satisfied that the punishment would amount to persecution. Nor, having considered the evidence submitted by the claimant on this point, is the reviewer satisfied that there is a real chance that the law will be applied to the claimant in a discriminatory manner essentially and significantly because he is a modern young Iranian or is imputed with anti government opinion or for religion or as a returned asylum seeker from the West.
94. Country information considered by the reviewer indicates that the punishment for attacks on Mullahs is set out in Book 5, Article 513, of the Islamic penal code of Iran, ‘Insulting the Religious sanctities or State Officials’. Having regard to the claimant’s evidence as to the nature and circumstances of the assault, this punishment could result in a jail sentence of up to five years.
95. This country information identifies the relevant Article of law as coming under Ta’azirat law. The reviewer accepts that although judges are given particular discretion to determine the nature of the punishment, this law does not codify discriminatory punishment for those with imputed anti government political opinion, modern young Iranians, religious beliefs, or returned asylum seekers.
96. Further, the reviewer has considered country information and finds no evidence to support a finding that the intention of the law is persecutory in intent so that it is applied differently for individuals that fall within these convention reasons.
97. The reviewer finds that the essential and significant reason for the punishment the claimant would receive would be as a result of a generally applicable law imposed for the purposes of upholding civil, social and religious standards.
Ultimately, the Reviewer rejected this aspect of the claim concluding that the law was one of a general application and not accepting that it would be applied in a discriminatory manner.
In any event, the finding is that there was no summons issued and that, therefore, there was no police interest in the applicant. This finding of fact makes this claim academic.
Conclusions
The main thrust of the applicant’s claims before me was that the applicant’s fear was that he would be dealt with outside of the formal legal system, even though that wasn’t effectively the main thrust of the hearing before the tribunal member.
On the facts as found by the Reviewer, this could only be as a result of the applicant’s interactions with the Basij both with respect to the loud music playing from his motor vehicle and assaulting the Mullah. There is nothing else in the material to support his claims in this regard.
The Reviewer has considered his fears of being brought to the attention of both police and non police agencies or organisations and rejected those. In these circumstances, I am not persuaded that the Reviewer has failed to properly consider the applicant’s claim. I therefore refuse the current application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 30 January 2013
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