DZADG v Minister for Immigration - [2012] FMCA 873

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZADG v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 873

MIGRATION – Review of decision of Independent Protection Assessor – no jurisdictional error found – application dismissed – no matters of principle.

Applicant:

DZADG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

INDEPENDENT PROTECTION ASSESSOR

File Number:

DNG 20 of 2012

Judgment of:

Riethmuller FM

Hearing date:

16 August 2012

Date of Last Submission:

16 August 2012

Delivered at:

Darwin

Delivered on:

16 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms Karapanagiotidis

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the First Respondent:

Mr Anderson

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed.
The Applicant pay the costs of the First Respondent fixed at $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 20 of 2012

DZADG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

(as revised from the transcript)

This is an application by a citizen of Iran to review a decision of an assessor following his arrival on Christmas Island on 6 March 2011. His initial claim was rejected on 5 July 2011, and ultimately the assessors report was prepared on 10 February 2011, recommending against the applicant’s recognition as a person to whom Australia has protection obligations under the relevant convention. The assessor’s reasons run for some 24 pages of single line spaced, closely typed material, setting out in considerable detail various correspondence and other materials that were placed before the reviewer.
The commencement of the applicant’s claims, as they were then formulated, are set out at paragraphs 15 to 16, summarised as follows:
15. As for the reason he left Iran, the claimant told the assessor that he left because he was concerned about his safety for participating in demonstrations after the 2009 election. He participated in four or five. Asked why he was concerned about his safety he responded that a friend had seen his photo with those of other demonstrators. The friend told him this in December 2009 and said, ‘The police might come and arrest you.’ As he was travelling they could not find him. Asked why he did not leave until a year after he was told, he responded that it was after six months. Nothing happened, but he was concerned that it would. There were no other reasons for leaving.
16. Asked were there any reasons why he could not return to Iran, he responded that the government did not respect humans. He might be persecuted and detained because of the photographs. Asked how they would know he had returned, he replied that he had to return through the airport. Why he was asked, after the passage of time should something now happen? He observed that they did not know where he was before. His friend has told him that the intelligence services were ‘finding people who attended by their photos’. There were no other reasons for not wishing to return.
The claims have developed, and the letter from the applicant’s advisor in October 2011 summarises them as recounted by the assessor at paragraph 79 in the following terms:
79. The CMN letter dated 25 October 2011 stated relevantly:
‘Our client will be perceived as opposing the Iranian regime for the following reasons:
a. his participation in the following anti-regime activities:
i. Numerous demonstrations after the national elections of June 2009, including the Ashura Day celebrations in 2009;
ii. Underground meetings after 2009 to discuss political opinions.
b. his attempt to secure protection in Australia.’
Prior to travelling to Australia, the Iranian authorities prevented our client from continuing his university studies and restricted his activities while he was a university student. Additionally, the authorities closely monitored his activities after he participated in the 2009 demonstrations. In fact, his friend warned him that the Etelaat were pursuing him. In response, he was obliged to go into hiding.
Unjustifiable and discriminatory conduct directed at an individual or group is capable of being characterised as persectution.’
In substance, the case concerns a retired teacher from Iran. He had suffered various difficulties at the hands of the regime in that country throughout his life. He initially was unable to continue his preferred topic of studies at university as a result of his anti-regime activities. He then became a teacher and taught for 30 years, it seems, without incident or restriction other than that he was the subject of an interview each year, which not every teacher suffered. Although from some years, it seems all teachers were interviewed by the regime officers and other years only those that they had a higher level of concern about were interviewed, such as the applicant.
Following his retirement, he then participated in demonstrations in 2009. Following those demonstrations, he was concerned that he would have been of greater concern to the authorities and claimed that he had been photographed and would ultimately be located by internal security forces, and that he had participated in some underground activities. Some time after this, around 14 months later (see paragraphs 97 and 98 of the decision), he left Iran.
The assessor considered his claims with respect to the events that occurred in his life up until the 2009 protests and accepted, it seems, his evidence in this regard. The assessor found:
77. The Assessor found the claimant’s evidence at interview concerning his life and experiences up to the 2009 protests to be reasonably consistent with his earlier statements and interviews. However some inconsistent and contradictory evidence, concerning events during and after the protests, together with his introduction of new information are not unimportant and cannot be ignored in regard to credibility. Moreover some of his assertions going beyond his own personal experience were at variance with reliable country information. These matters are discussed later in these reasons.
These findings themselves were not sufficient to persuade the assessor that the applicant should succeed, as they set out at paragraph 84, as follows:
84. In regard to prevention of his completing industrial accounting studies at university due to political views in 1979, the Assessor notes that he returned to teaching and taught until he retired in 2008. Whilst he was questioned at the start of each school year by the Herasat, so were some other teaching colleagues; on occasions all teachers were questioned. So whilst he suffered some harm by not completing accounting studies, he nonetheless had a career of over 30 years as a teacher (he commenced in 1976). s91R(1)(b) of the Act requires persecution to involve serious harm. s91(R)(2) sets out a non-exhaustive list of the types and levels of harm that will meet the serious harm test. These range from a threat to life, to significant physical harassment or ill-treatment to significant economic hardship threatening the capacity to subsist, through denial of access to basic services or the capacity to earn a livelihood, which again threatens the capacity to subsist. The Assessor, noting the contended discrimination involves removal from university and then annual questioning, whilst seeing this as harmful, finds it falls well short of the types and levels of harm needed to be qualified as ‘serious harm’. So in regard to this discrimination it does not involve serious harm and the claimant in any event had expressed no sense of concern or fear about the matter. Given all this the Assessor accepts that he had some modest subjective fear, but as the harm faced was not ‘serious harm’ there is no objective basis to his fear of persecution.
The assessor then went on to consider the subsequent events at paragraph 87, saying:
87. The claimant contends that he participated in a number of post election protests commencing in June 2009 and finishing with the Ashura Day protest in December 2009. Given the details of his involvement in protests has been reasonably consistent since his initial interview on entry to Australia, the Assessor accepts he participated as claimed. However the Assessor has concerns about matters subsequent to the Ashura day protest.
The assessor rejected the evidence with respect to the photographs and undergrounds activities at paragraphs 98 and 99 of the decision. Ultimately, the assessor rejected the claims with respect to his situation following the protests, saying as follows:
92. In regard to the claimant’s actions after the Ashura Day protest, the Assessor takes account that without hindrance he continued to process his retirement formalities with the education department, a government organisation; he continued to draw his pension until he departed Iran and it continued being paid into his account until at least September 2001 and payment may be continuing; he used teacher’s accommodation in Iran though he moved around frequently – the CMN submission mentions that he also stayed at home or in a relative’s home, the claimant did not state this at either the POE or IPA hearing; he himself applied for and obtained a valid passport though the smuggler may have bribed an official at the departure gate. It is also noted the claimant told the POE delegate that he ceased protesting after Ashura Day as he was busy processing his retirement. The claimant and the agent have mentioned at various times that the claimant went into ‘hiding’ or went ‘underground’ after being told the Etelaat was searching for him.
93. The weight of the foregoing shows the claimant continued interacting with a range of government authorities from Ashura Day until he departed Iran. He showed few if any signs that he perceived that he was being sought by the authorities. After consideration of all the available material the Assessor finds that the claimant did not go into hiding or go underground after Ashura Day or that he was in fear of persecution. Given this the Assessor does not accept the Etelaat were seeking the claimant and find accordingly.
The assessor clearly turned their mind to the persons that were involved in the protests and the resulting reactions of the regime, discussing this in some detail in paragraph 96, saying as follows:
96. There is no doubt, based on authoritative country information that thousands of people, perhaps more than 5000, were arrested after the June 2009 and Ashura Day 2009 protests. The Assessor also has little doubt that the authorities sought high visibility targets, such as human rights and student activists, journalists, bloggers, potential leaders, independent trade unionists and political dissidents. A 57 year old teacher recently retired after 30 years teaching, who marched in the middle of the protestors and in his own words was not a leader is not a high visibility activist. He had, 30 years earlier, been removed from University for political activity, but then continued teaching without impediment. He may have carried a sign or banner at a protest before the Ashura Day protest. The Assessor does note however from the Amnesty report that many of those arrested were ordinary people who were released after short periods. However Reuters/Amnesty advise in 2011 that the majority few prisoners of the 2009 protests remain detained. Account is also taken of the claimant’s assertion regarding additional people in gaol and hidden graves, but there is no supporting independent confirmation. Given all this, the Assessor does not accept that the claimant came to the adverse notice of the authorities that continues to the present. This is supported by the above finding that he neither went into hiding after Ashura Day nor was he in fear of persecution. Further support is provided by the earlier finding that the Etelaat are not seeking him. Accordingly, the Assessor finds the claimant was of no interest to the authorities resulting from his participation in protests in 2009.
The assessor ultimately found that the applicant didn’t face a real chance of serious harm due to his actual or imputed political opinion of opposition to the regime as a result of the various activities that were claimed, saying in paragraph 101:
101. In light of the foregoing, the Assessor does not accept that there is a real chance the claimant will face serious harm due to his actual/imputed political opinion of opposition to the regime by way of participation in protests in 2009, underground activities around the time of the protests, or student activities over 30 years ago or that due to any of the foregoing his pension payments would be stopped. The Assessor finds accordingly.
The assessor then went on to consider the future, bearing in mind that it seems apparent from the material that the applicant would continue to hold his political views and continue to participate politically in a similar way to what he had done in the past or, at least, in 2009. In dealing with this aspect of the matter, the assessor said:
105. In the 25 October 2011 submission CMN contents that the claimant will continue to oppose the Iranian regime on his return. No evidence was offered, but the claimant himself told the Assessor that he could only return to Iran should his safety be guaranteed. The Assessor has found that he participated in protests after the 2009 elections. Having regard to that it seems in essence that the claimant would continue to take part in such activities. The Assessor has found that he would not be persecuted for his previous activities. Given all this, the assessor is not satisfied he would face a real chance of suffering persecution should he continue to take part in such activities.
Ultimately, the claim was rejected.
The argument on behalf of the applicant is that the assessor failed to deal with an integer of the claim. The integer claim was a consideration of him having a fear of persecution that was well-founded, by reason of his profile, that is, his political profile that had developed over the years. It was argued that the assessor had turned their mind to a specific incident but not considered his risk on the basis of his political profile.
The reference using the word “profile” appears in the material, for example, the eighth dot point at paragraph 59 of the decision where part of the claim was recounted as follows:
The claimant has a profile; he was monitored as a teacher and has been photographed. The Etelaat never give up.
And also in passing in the transcript, for example, at page 49.50. Whether the actual word “profile” was used or not is not really determinative of the question. The real issue is whether or not this is an apparent part of the claim that ought to have been dealt with by the assessor.
The unusual feature of this case is that the applicant remained in Iran for some 14 months after the various events, which were accepted by the assessor, took place. This effectively allowed a considerable period of time from which one could assess the impact of his overall activities in Iran from his earliest days to date.
It was found that there was no adverse action against him or interest taken in him during this time which fuelled the finding that he was not at risk. It seems to me that this can be distinguished from many cases that are seen in this jurisdiction where the person leaves the country very soon after or immediately after significant events that either add to their risk or create the risk that they rely upon. Or, if they don’t leave immediately after, go into hiding for a short period before leaving, thus making clear the need to consider not just what had occurred to them in their own country but the nature of their political profile should they return to their country.
Here, however, the actual impact of his overall political profile over a 14-month period was before the assessor. This provided an opportunity to make findings with respect to his actual risk during that 14-month period. It did not absolve the assessor from considering the future. However, given the circumstances of the case, it does not appear to me that it required lengthy discussions rather than references to the findings that had substantially been made. To this extent, paragraph 105, in considering the future, squarely deals with this aspect of the claim.
Ultimately, I am therefore not persuaded that the assessor failed to deal with an integer of the claim, namely, the applicant’s profile, as he certainly dealt with the totality of the applicant’s circumstances and the totality of those as viewed against the possibilities of action by the regime, with the benefit of the evidence of what occurred over the 14-month period prior to the applicant leaving and also specifically considering the future if he were to return and continue to participate in the way in which he had in the past at paragraph 105.
For these reasons, I would refuse the applicant’s application.
It was also argued before me that the question of profile itself had not been squarely raised. It seems to me that in this case attempting to separate profile from the actual circumstances the assessor had to consider is more a matter of academic distinction than practical reality because of the unusual feature of the lengthy period of time that the applicant remained in Iran before leaving, and the fact that nothing of significance occurred either during that lengthy period or since he left Iran.
In these circumstances, I am not persuaded that there is necessarily a separate integer. And to the extent one would describe it as an integer, it appears to me it has been dealt with. Certainly, the relevant facts and circumstances of this aspect of the claim have been squarely assessed.
In the circumstances, I therefore refuse the application.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 18 September 2012