DZACX v Minister for Immigration - [2012] FMCA 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZACX v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 690

MIGRATION – Review of decision of Independent Merits Reviewer – where applicant claimed Reviewer failed to consider claim based on imputed political opinion based on political activities of brother – where Reviewer found brother’s political activities have and will have no adverse effect on applicant – whether Reviewer failed to consider integer of applicant’s claim – where Reviewer found applicant had no well-founded fear of persecution – whether Reviewer required to consider fear of future persecution – whether Reviewer failed to take into account claim of imputed political opinion as a returnee – whether Reviewer required to take into account brother’s political activity when considering applicant’s returnee status.

Migration Act 1958, s.36(2)

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 219 ALR 27

Applicant:

DZACX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 10 of 2012

Judgment of:

Raphael FM

Hearing date:

23 July 2012

Date of Last Submission:

23 July 2012

Delivered at:

Darwin

Delivered on:

23 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms N. Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondent:

Mr B. Ilkovski

Solicitors for the Respondent:

Clayton Utz Lawyers

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 10 of 2012

DZACX

Applicant

And

MINISTER FOR IMMIGRATION &CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

First Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Iran of Arab ethnicity who arrived in Australia as an authorised boat arrival in October 2010. On 11 December 2010 he made a request for a Refugee Status Assessment which found that he was not a person to whom Australia owed protection obligations. He then applied for an Independent Merits Review[1] of that decision. The applicant was granted such a review and on 13 January 2012, the Reviewer found that he did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) and recommended to the Minister 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.
[1] “IMR”.
The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations arose, principally, from his involvement with his brother, who in May 2009 became a candidate in national elections. He also made a subsidiary claim on the basis of his Arab ethnicity. The applicant told that his brother was a Mousavi supporter and had been a candidate in the national elections, and had requested the applicant to assist him. The applicant did so. He told that he organised meetings at various mosques in support of the Mousavi campaign and his brother, in particular.
He told that he arranged for publicity in favour of his brother and his political party. When questioned about how that involvement caused him to be concerned for his safety he told that his brother had been arrested several times, and that he himself had lost his position in the communications department of ESS about five months after the end of the election campaign. He said that since he had lost his job, he had been unable to find a new one and he put this down to his association with his brother. He was also refused unemployment benefits. The applicant claimed that his brother had been arrested three times and shortly before the applicant had left Iran his brother told his brother-in-law, from the jail, that if he could leave the country, he should do so.
The applicant then claimed, at the IMR hearing, that after this he was taken away for interrogation and released only because his younger brother gave the deeds to his business to the authorities as a guarantee. The Reviewer questioned the applicant as to why this claim had never been previously made, and the applicant responded that he had only been asked whether he had been accused of doing anything wrong or had been in prison. The applicant said that he thought that being fired from his job and not getting unemployment benefits would be enough to convince the authorities that he had been persecuted.
The applicant also told that, in January 2010, he had gone to Dubai with some members of his family and had returned without incident. He had also left Iran under his own passport.
In his findings and reasons, the Reviewer considered first the question of the applicant’s credibility. He found that there were significant inconsistencies in the history of the claims that had been made. He had particular concern about the story that the applicant had been taken in for questioning nine days before he had left Iran and that his younger brother was required to lodge his deeds as security. This had not been mentioned until the hearing itself, notwithstanding that the applicant had been assisted by an adviser throughout and had undergone a series of interviews about his claims:
“…I do not accept that a claimant would fail to mention the principal incident that triggered his flight from the country simply because he wasn’t asked or because the interviews were “short”. I do not accept the claimant as a credible witness. I am satisfied that his claims of detention, questioning and the associated actions against his family, are recent inventions designed to enhance his claims for protection. I am satisfied that his longstanding claims of being sacked from his employment and denied further employment because of his political activities are also false.” [30] CB 261
Although the Reviewer had thus dismissed the applicant’s substantive claims, he went on to consider others. In particular, that the applicant was at risk of harm because he was involved in politics with his brother, and because he would be a returnee from a Western country. The Reviewer concluded that he could not accept those claims because he found it implausible that the Iranian authorities would wait until five months after the election to take action against him for his claimed political activities, or that if any action was taken against him, it would be limited to making him redundant and not paying him unemployment benefits. The Reviewer noted that there were sweeping arrests of political activists for months after the election and it can be implied that he assumed that if the applicant’s actions had stirred the authorities into antipathy towards him, it would have resulted in an arrest. The Reviewer did accept the applicant’s brother’s political involvement but not that claimed by the applicant himself. He noted that the applicant had left Iran for Dubai on his own passport in January 2010 without attracting any adverse attention and was then able to depart nine days after he was purportedly detained:
“I am satisfied that he was and remains of no interest to the Iranian authorities.” [32] CB262
The Reviewer then went on to consider the applicant’s claim that he would be badly treated should he return to Iran by virtue of his ethnicity:
“Mr Applicant claims that Arabs like him are badly treated in Iran. However, he has not provided any evidence of being mistreated or subjected to serious harm in any form on the basis of his ethnicity. He went to school, did military service, has worked almost continuously and was able to raise a significant sum of money to fund his departure from Iran. I do not accept that his family has subsequently suffered as a consequence. I do not accept that his brother’s political activities have had or will in the future have any adverse effect on the claimant. I am satisfied that he has fabricated the claims. There is no credible evidence to suggest he is of a particular adverse interest to the Iranian authorities or actively sought by them.” [33] CB 262
Finally, the Reviewer considered the applicant’s claim that he would be subjected to harm as a returnee on the basis that he had left the country and would be considered to be a spy. The Reviewer considered there was no credible evidence to support that claim and drew particular comfort from the fact that he had managed to go to Dubai in 2010 and return without any difficulty.
The applicant has sought review of the Reviewer’s decision from this court, and his grounds for asserting that the Reviewer fell into jurisdictional error in the manner in which he reached his decision are contained in an amended application filed on 31 May 2012. There are three grounds to that application.
The first ground is that:
“The second respondent failed to consider whether the applicant would be at risk of future harm by reason of his imputed political opinion.”
The imputed political opinion to which the applicant refers is a political opinion imputed to him by virtue of being his brother’s brother, as opposed to the imputed political opinion claimed for him by his advisers, so it is said, of being a Mousavi supporter. At CB206 in a submission from the advisers they say at [60]:
“Mr Applicant states that he fled Iran because he feared he would be arrested and detained by the Iranian authorities as a result of the assistance and support he provided to his brother at Mousavi’s Presidential Election campaign in 2009.”
And at [63]:
“We submit as a result of Mr Applicant’s conduct in assisting and supporting his brother and Mousavi’s presidential election campaign, Mr Applicant will be imputed with an adverse political opinion.” [63] CB 206
The advisers continue:
“Furthermore the delegate found that Mr Applicant’s statements that he and his family had suffered adverse treatment and continued harassment by the Iranian government, because of his brother [sic] involvement in Mousavi’s campaign in 2009, were not credible. The delegate stated the reason for the lack of credibility was because Mr Applicant had provided no information to support such claims.” [87] CB 210]
What the applicant is seeking to do before me is to separate his claims on the basis of his own activities from those claims that he makes as an associate of his brother’s, for which the opinion will be imputed. He argues that although the Reviewer rejected the claims on the basis of his own actions, it did not really consider those claims on the basis of his association with his brother. It is important to understand that the Reviewer rejected the whole story that the applicant had put up, that he had assisted his brother in the elections, and had done so on the basis of his credibility, in respect of which there is no challenge in this court. The Reviewer says at [32] CB 262:
“Mr Applicant’s description of his political campaigning in support of his brother was not credible.”
However, he does accept the brother’s involvement in politics. The applicant says that this must include everything that was said about the applicant’s involvement in all the submissions made and that if one looks at these, one can see a substantial argument that a person associated with him, whether he helped him or not, might have an imputed political opinion. Whilst I doubt whether the Reviewer’s remarks about his belief in the brother’s political activity would stretch quite as far as that suggested, I think that the better answer is what is found in [33] of the Reviewer’s decision when he says:
“I do not accept that his brother’s political activities have had or will in the future have any adverse effect on the claimant.”
That seems to me to respond to the claim, and for this reason I am unable to find any merit in ground 1.
Ground 2 is:
“The second respondent failed to consider whether the applicant faced a real chance of persecution in the future by reason of his ethnicity.”
The gravamen of the applicant’s complaint in this regard is that the Reviewer considered only the past and not the future. It will be recalled that the Reviewer, whilst accepting that Arabs like the applicant were badly treated in Iran, found that there was no evidence of the applicant being mistreated for that reason.
“He went to school, did military service, and has worked almost continuously and was able to raise a significant sum of money to fund his departure from Iran.” [33] CB 262
The way in which the Reviewer’s decision record is written certainly does not specifically make mention that he would not suffer serious harm for that reason “now or in the reasonably foreseeable future”. But perhaps it will be best to look at whether or not the Reviewer answered the real question which, as the respondent points out in his helpful submissions, was whether the applicant had a well-founded fear of persecution for a Convention reason.
In regard to any fear that the applicant was alleged to have based upon his ethnicity, it would seem that the Reviewer has come to the conclusion that he had none because his existence in Iran until the time of his departure had not given rise to any concern. If you do not have a well-founded fear, there is no need for a Reviewer to consider whether or not you will be persecuted should you return to your home country now or in the reasonably foreseeable future; the one is dependent upon the other. I agree with the applicant that perhaps it would have been better practice to utilise the standard wording, but failure to do so does not constitute a jurisdictional error and on that basis the second ground cannot be sustained.
The third ground is:
“The Second Respondent failed to consider the claim that the applicant would be imputed with a political opinion as a result of seeking asylum in Australia and/or failed to take into account relevant considerations.
Particulars
(a) The Second Respondent found that there was no credible evidence to support the claim that the applicant would be persecuted for leaving his country and considered a spy.
(b) The Second Respondent dismissed as speculative the claim that the applicant would be suspected of being a Western spy or collaborator.
(c) The claim advanced by the Applicant was that he was at risk of persecution for reasons of an imputed political opinion as a result of seeking asylum.
(d) The Applicant also claimed that relatives of post-election protestors were heavily targeted, including those who had left and were seeking asylum.
(e) The Second Respondent failed to consider the claim advanced on behalf of the applicant, namely that he was at risk of persecution for reasons of an imputed political opinion as a result of seeking asylum in Australia and/or failed to take into account relevant considerations”
It would appear that it was necessary for the applicant to insert these particulars because at [34] CB262, the Reviewer deals specifically with the claim of risk of harm as a returnee. He states:
“… [T]here is no credible evidence to support the claim that he will be persecuted because he left the country and will be considered to be a spy. I draw support for this conclusion from the fact that he went to Dubai in 2010 and returned without any difficulty. The claim that he would be suspected of being a western spy or collaborator is speculation and there is no objective evidence to support that claim.”
What the applicant seeks to do before this Court is to say that as a separate claim, the Reviewer should have considered whether or not any danger that the applicant might have feared as a returnee may have been enhanced or made more poignant or relevant because of the political opinion of his brother. At first sight, that claim may have some attraction because although it was not put that way, it could have been argued that his leaving the country may have aroused suspicions in the mind of those interviewing the applicant upon his return that he had more to do with the Mousavi opposition than they had originally thought.
Had it been put that way, it should have been dealt with. But as it was not, so far as I can see, one is left with the Reviewer’s clear view expressed at [33] CB 262, and already extracted, that the brother’s political activities would not have any adverse effect on the claimant. The Reviewer was, to my mind, entitled to come to that view and should not be found to have fallen into error because he did not consider a way of putting the applicant’s claim that was not put and which one would not really class as a, “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95].
As their Honours in the Full Court, Black CJ, French and Selway JJ said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 219 ALR 27 at [58]:
“The review process is inquisitorial rather than adversarial. The tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] ... a claim not expressly advanced will attract review obligations of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal.”
The exercise which I have carried out in considering the manner in which the claim could have been made appears to me to be one of creativity which that authority makes clear is not a failing on the part of a reviewer or tribunal. For this reason, ground 3 also fails and in those circumstances, I must dismiss the application. I order that the applicant pay the Respondent’s costs assessed in the sum of $6,471.00.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 8 August 2012