DZACX v Minister for Immigration and Citizenship

[2012] FCA 1442

FEDERAL COURT OF AUSTRALIA

DZACX v Minister for Immigration and Citizenship [2012] FCA 1442

Citation:		DZACX v Minister for Immigration and Citizenship [2012] FCA 1442
Appeal from:		DZACX v Minister for Immigration & Anor [2012] FMCA 690
Parties:		DZACX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		NTD 26 of 2012
Judge:		MANSFIELD J
Date of judgment:		17 December 2012
Date of corrigendum:		9 January 2013
Date of hearing:	15 November 2012
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	22
Counsel for the Appellant:	A Burt
Solicitor for the Appellant:	Northern Territory Legal Aid Commission
Counsel for the Respondents:	B Ilkovski
Solicitor for the Respondents:	Clayton Utz

FEDERAL COURT OF AUSTRALIA

DZACX v Minister for Immigration and Citizenship [2012] FCA 1442

CORRIGENDUM

1.The name of the second respondent “CHRIS PACKER” has been deleted and replaced with “MICHAEL GRIFFIN” on the medium neutral citation page, the orders page and page 1 of the Reasons for Judgment.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:       9 January 2013

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 26 of 2012

BETWEEN:

DZACX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	17 DECEMBER 2012
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay to the first respondent the costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 26 of 2012

BETWEEN:

DZACX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	MANSFIELD J
DATE:	17 DECEMBER 2012
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant is a 36 year old Iranian citizen, who arrived in Australia in October 2010.  On 11 December 2010 the appellant made a request for a refugee status assessment.  A delegate of the first respondent made a decision to refuse the application for a visa on 17 February 2011.  The appellant requested an Independent Merits Review of this decision on 4 March 2011.   The appellant was interviewed by the Independent Merits Reviewer (the Reviewer) and on 13 January 2012 the Reviewer affirmed the decision of the delegate of the Minister.

2. The appellant applied for judicial review of the Reviewer’s decision in the Federal Magistrate’s Court on 15 February 2012 (and as amended on 1 June 2012) based upon jurisdictional error.  On 23 July 2012 that Court dismissed the application.  The present appeal is an appeal from the decision of the Federal Magistrate.

   THE REVIEWER’S REASONS

3. The basis for the appellant’s application for a protection visa is helpfully summarised in the Federal Magistrate’s decision at [2]-[5]:

   1.The grounds upon which the [appellant] 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 [appellant] told that his brother was a Mousavi supporter and had been a candidate in the national elections, and had requested the [appellant] to assist him.  The [appellant] did so.  He told that he organised meetings at various mosques in support of the Mousavi campaign and his brother, in particular.

   2.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 [appellant] claimed that his brother had been arrested three times and shortly before the [appellant] had left Iran his brother told his brother-in-law, from the jail, that if he could leave the country, he should do so.

   3.The [appellant] 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 [appellant] as to why this claim had never been previously made, and the [appellant] responded that he had only been asked whether he had been accused of doing anything wrong or had been in prison.  The [appellant] 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. 

   4.The [appellant] 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.

4. As to those claims, the Reviewer did not accept that the appellant was a credible witness, and found to the contrary that the appellant’s claims of detention, questioning and the associated action against his family, were “recent inventions” designed to further his claim, and that his claims of being sacked from his employment and denied further employment because of his political activities were also false.   The Reviewer states at [30]:

   Credibility is difficult to assess and should not be decided upon demeanour or reaction at interview alone.  However, where there are clear inconsistencies or where some claimed history is fanciful, far-fetched or unrealistic it may be that those claims, after careful consideration, cannot be accepted as being true.  There are significant inconsistencies in the history of the claims made by [the appellant].  For example, he has been interviewed several times by Department officials and made no mention of being taken in for questioning 9 days before he left Iran and said nothing of his brother lodging the deeds to his business to secure his release.  It appears he also said nothing of those claims to his agents.  However, one year after his arrival, he revealed those claims for the first time.  His explanation for not stating them previously is that he wasn’t asked and that the interviews were short.  I accept that there can be problems in interpretation and that the stress of an interview situation may affect memory and/or communication.  However, 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”…

5. Having formed that adverse view about the appellant’s credibility, the Reviewer then considered the appellant’s claim that he was at risk of harm as a result of his involvement in politics or merely his Arab ethnicity, or because he will be a returnee from a Western country.  The Reviewer did not accept those claims, stating at [32]-[34]:

   I find it implausible that the Iranian authorities would wait until five months after the election to take action against the claimant for his claimed political activities.  I find it implausible that their actions would then be limited to making him redundant in his employment and denying him unemployment benefits.  I find it implausible that the authorities would somehow conspire with prospective employers to deny him employment but take no other action against him.  I draw support for this conclusion from the independent country information that describes sweeping arrests of political activists for months after the election.  [The appellant]’s description of his political campaigning in support of his brother was not credible.  I am prepared to accept his brother’s political involvement but not that claimed by [the appellant] himself.  I find it implausible that the authorities would wait for 15 months after his claimed campaigning to detain and question him.  I draw support for this conclusion from the fact that he was able to travel to Dubai on his own passport in January 2010 without attracting any adverse attention from the airport security system and then do that again 9 days after being detained.  I am satisfied that he was and remains of no interest to the Iranian authorities.  I have had regard to the documents that he has provided recently and over time.  I find nothing in them that alters my assessment of his credibility or of his claim. 

   It is beyond doubt that the government in Iran is authoritarian and repressive with an appalling record of human rights breaches (see US DOS Report).  It is apparent that many minority groups in Iran experience discrimination and that political activists are dealt with severely.  [The appellant] 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 his claim 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 that he is of particular adverse interest to the Iranian authorities or actively sought by them. 

   As to him being a risk of harm as a returnee, there 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 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. 

   THE FEDERAL MAGISTRATE’S REASONS

6. There were three grounds of review advanced before the Federal Magistrates Court:

   (1)The Reviewer failed to consider whether the appellant would be at risk of future harm by reason of his imputed political opinion:

   Particulars

   (a)       The Reviewer accepted the appellant’s brother’s political involvement.

   (b)There was country information before the Reviewer that suggested that the relatives of post-election protestors had been heavily targeted, including those who resided in Iran and those who had left and were seeking asylum.

   (c)The Reviewer failed to consider whether the appellant was at risk of serious harm on the basis of an imputed political opinion arising from his brother’s political involvement and activism.

   (2)The Reviewer failed to consider whether the appellant faced a real chance of persecution in the future by reason of his ethnicity: 

   Particulars

   (a)The Reviewer made reference to the appellant’s claim that he was at risk of persecution by reason of his Arab ethnicity.

   (b)The Reviewer found that the appellant had not suffered harm in the past by reason of his ethnicity.

   (c)The Reviewer confined its inquiry to whether the appellant had suffered serious harm for reason of his ethnicity in the past and failed to consider whether the appellant was at risk of future harm by reason of his Arab ethnicity.

   (3)The Reviewer failed to consider the claim that the appellant 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 Reviewer found that there was no credible evidence to support the claim that the appellant would be persecuted for leaving his country and considered a spy.  

   (b)The Reviewer dismissed as speculative the claim that the appellant would be suspected of being a Western spy or collaborator.

   (c)The claim advanced by the appellant was that he was at risk of persecution for reasons of an imputed political opinion as a result of seeking asylum.

   (d)The appellant also claimed that relatives of post-election protestors were heavily targeted, including those who had left and were seeking asylum.

   (e)The Reviewer failed to consider the claim advanced on behalf of the appellant, 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.

7. With respect to Ground (1), the Federal Magistrate found that the separate consideration of the imputed political opinion of the appellant on the basis of the appellant’s political opinion is found in [33] of the Reviewer’s decision, namely:

   I do not accept that his brother’s political activities have had or will in the future have any adverse effect on the claimant.

8. The Federal Magistrate considered that this responded to the claim and so Ground (1) had no merit: at [16].

9. With respect to Ground (2), the appellant submitted in essence that the Reviewer only considered the past and not the potential for the appellant to suffer serious harm in the reasonably foreseeable future.  The Federal Magistrate rejected this Ground on the basis that the Reviewer had concluded that the appellant would not be vulnerable to persecution based on his ethnicity because he had not been exposed to any ill-treatment in the past for that reason.  He stated at [20]:

   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 on the other…   

10. With respect to Ground (3), the Federal Magistrate considered the appellant’s submissions did not reflect what was put before the Reviewer for determination. The “new” submission was that the Reviewer should have considered whether or not any danger that the appellant 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 [23]. The Federal Magistrate considered that that claim was not put before the Reviewer, and that accordingly, the conclusion the Reviewer came to was open to it. The Federal Magistrate states relevantly at [24]:

    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 [appellant]’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].

11. The Federal Magistrate considered the appellant’s new characterisation of the claim as originally put was one of creativity, and therefore it was not a reviewable error of the Tribunal not to have not considered it in that way. 

    CONSIDERATION

12. The Federal Magistrate’s findings in respect of Grounds (1) and (2) have not been appealed against.  The appellant appeals against the Federal Magistrate’s findings on Ground (3) on the following basis:

    The learned Federal Magistrate erred in finding that the Reviewer had not failed to consider the appellant’s claim that he would be imputed with a political opinion as a result of seeking asylum in Australia and/or had not failed to accord the appellant procedural fairness and/or had not failed to take into account relevant considerations in the assessment of the appellant’s claim of risk as a failed asylum seeker. 

    As the oral submissions indicated, the issues of lack of procedural fairness and failure to take account of relevant considerations were not in fact separate issues but simply different ways of saying that the Reviewer had failed to consider one of the appellant’s claims.

    It is uncontentious that the Reviewer was obliged to consider each of the claims made by the appellant: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. Black CJ, French and Selway JJ in that case at [58] said that a claim need not be expressly advanced, provided it is apparent on the face of the material before [in that case] the Refugee Review Tribunal. However, the decision maker is not required to be creative in identifying the claims made on the material. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26, Gummow and Callinan JJ explained that the it was the failure to respond to “a substantial, clearly articulated argument relying upon established facts” that would result in a failure to accord the appellant natural justice: at [24].

13. The appellant submits that the Federal Magistrate did not in his judgement consider the appellant’s brother’s political activities and/or profile and the impact this might have on the appellant as a returnee.  This claim, the appellant submitted, was not contingent upon whether the Reviewer accepted the appellant’s evidence about his own political activities or the claimed harm he had suffered in the past.  The foundation for the claim was that the appellant would be a returned failed asylum seeker, who, according to available country information might be monitored by the authorities upon return in conjunction with his brother being well known to the authorities as a political opponent.   

14. The appellant’s claim of fearing persecution as a returnee or failed asylum seeker with that additional element of being associated with his brother was said to have been presented, as a cogent and separate claim, on the following basis:

    (1)In response to the question at the appellant’s entry interview “do you have any reason for not wishing to return to your country of nationality” the appellant answered “because if I go back to Iran, I would end up like my brother.  I would be arrested and be put in jail.”

    (2)In his statutory declaration of 11 December 2010, the appellant referred to his brother having been arrested and to the appellant leaving Iran because he too feared arrest.  He said he feared that fate if he returned.  In a separate brief paragraph he added that “As a failed asylum seeker if I return to Iran I will be persecuted”.

    (3)In the appellant’s submissions to the Reviewer (through his migration agent) it was claimed that if the appellant returned to Iran “as a failed asylum seeker he faces a real chance of arrest due to his support to the political activities of the Iranian opposition leader, Mousavi.”

    (4)It was also claimed in the same submissions that the appellant had a well-founded fear of persecution because his brother was “not an ordinary person who merely supported Mousavi’s campaign, rather [the appellant’s] brother was and still is an outspoken opponent to the Iranian regime and consequently the association and assistance [the appellant] personally provided to his brother and the Mousavi campaign, places him at a real chance of persecution if he is returned to Iran.”

    (5)In the same submission, under the heading “Would [the appellant] be persecuted for reasons of an imputed political opinion as a result of him seeking asylum in Australia if he was returned to Iran” it was stated at [92]-[93]:

    The delegate further stated that given the lack of any political profile held by [the appellant] or adverse attention directed at [the appellant] prior to his departure, he did not accept that the relatively short period of time [the appellant] had spent in immigration detention, including [the appellant’s] decision to seek asylum in Australia, would result in [the appellant] being imputed as corrupt or embracing western society.

    We submit the delegate has erred when making the decision and has not considered all relevant information when making this adverse finding, including that:

    [T]he relatives of post-election protestors have been heavily targeted, [including] those of persons residing inside Iran, those who have left and are seeking asylum, and those who were already abroad and engaged in protests outside Iran.  [Emphasis in submission.]

1. In addition, the appellant submitted the following country information before the Reviewer  was also relevant:

   If the [Iranian] regime is aware that an individual that has claimed political asylum overseas has returned to Iran, it is possible it will seek to at least monitor that individual.  We are not/not aware of a widespread pattern of maltreatment by authorities of returning failed asylum seekers.  However it is possible in isolated cases.  If the regime was aware of a failed asylum bid, it could use this information to pressure individuals with regard to other issues.

   And separately, in the country information update:

   We would add that those who disagree with the regime, particularly post-election protestors, are now frequently labelled ‘seditionists’ and not ‘political dissidents’.

2. The first respondent submitted that the Federal Magistrate was correct in his finding that the particular claim was not put before the Reviewer, and that the appellant’s present contention did not constitute a substantial, clearly articulated argument or claim requiring separate consideration by the Reviewer.  Further, the Reviewer addressed the potential future harm that the appellant claimed at [16] of the reasons, stating “I do not accept his claim 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.”

3. In my judgment, the Federal Magistrate is not shown to have erred in the conclusion that the particular claim, namely that the appellant was at risk of persecution as a failed asylum seeker who would be of particular interest to the authorities because of his brother’s anti-regime activities need not have been considered by the Reviewer.

4. The Entry Interview is an extensive document.  Part C comprises 22 questions.  The first asks why the appellant left Iran.  The answer concerned the appellant’s active support for his brother’s campaign for Mousavi, and including that since he had left Iran his brother had in fact been arrested.  As noted, the Reviewer did not accept that the appellant had done what he claimed to have done to support his brother and concluded the appellant was of no interest to the Iranian authorities.  It was specifically rejected that his brother’s activities have had or will in the future have any adverse effect on the appellant.  The final question concerned the appellant’s reasons for not wishing to return to Iran.

5. The answer, referred to above, does not in context indicate a more extensive claim to fear persecution by reason of being a failed asylum seeker.  In context, it is simply another way of the appellant saying what he had earlier said in answer to the first question.

6. Nor do I consider that his statutory declaration of 11 December 2012 signals the independent or additional claim of fearing persecution as a particular type of failed asylum seeker, that is, one whose family is associated with anti-regime activities.  Again, the consistent theme of that relatively brief document is fearing persecution because of an imputed political opinion arising from conduct in support of his brother which the reviewer did not accept.  The separate claim to fear persecution as a failed asylum seeker was not in any way said to be enhanced because of his brother’s activities.

7. Finally, I do not consider that that refined claim as a failed asylum seeker was expressed or identified clearly in the submissions to the reviewer.  Certain parts of that document are somewhat loosely expressed.  Its primary focus, not surprisingly, is upon the political opinion that might be imputed to the appellant because of his support of his brother’s activities.  One section of that submission does contend that the relatives of post-election protesters have been heavily targeted, including those who have left and are seeking asylum.  In context, despite the emphasis added in the submission (noted above) that does not amount to a claim that the appellant was at greater risk because he had left Iran and might return as a failed asylum seeker than if he had remained in Iran.  There are simply three categories of relatives who have been identified, but the reviewer has expressly found that the appellant was not among them.  In one sentence of that lengthy submission, referred to at [14(3)] above, reference is made to him facing arrest as a failed asylum seeker due to his support of the opposition leader’s activities.  That is the claim which the reviewer rejected.  The reviewer did not accept that he had provided that support.  It is not, in my view, a claim that he was more vulnerable to persecution as a failed asylum seeker because of his brother’s profile.

   CONCLUSION

8. For those reasons, my view is that the Federal Magistrate did not err in the manner asserted.  I am not persuaded that the appellant expressed a claim to be vulnerable to persecution as a failed asylum seeker whose brother had a particular anti-regime profile.  It follows that the appeal must be dismissed.  The appellant is to pay the costs of the first respondent on the appeal.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:    

Dated:       17 December 2012