MZAKL v Minister for Immigration

[2015] FCCA 1107

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAKL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1107

Catchwords:
MIGRATION – Judicial review – grounds for review not particularised – no jurisdictional error – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.42, 31, 30, 36, 91R

Federal Circuit Court Rules 2001 (Cth), r.31, sch.1

AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: MZAKL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1783 of 2014

Judgment of: Judge Harland

Hearing date: 31 March 2015

Date of Last Submission: 31 March 2015

Delivered at: Melbourne

Delivered on: 1 May 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr L. Brown

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant shall pay the costs of the first respondent fixed at $6646.00 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1783 of 2014

MZAKL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applied for a judicial review of the decision made by the Refugee Review Tribunal on 28 July 2008 affirming the Delegate’s decision to refuse the applicant’s application for a protection visa.

2. In his application for judicial review the applicant set out two grounds. The first is that he was denied procedural fairness because the Tribunal did not properly considered his claims. The second is that the Tribunal failed to take into account relevant material. The applicant does not provide any particulars of his complaints.

3. On the 19 November 2014 Registrar Caporale made the consent orders providing for the applicant to file any amended application including any additional grounds for review and particulars of each ground and any affidavit in support by 14 January 2015. The applicant was to file any transcript and submissions and authorities 14 days before the hearing. The applicant did not file any further material.

4. The applicant is a citizen of Iran. The applicant had legal representation before the Delegate and the Tribunal. He represented himself before this Court and had the assistance of an interpreter.

5. At the hearing the applicant asked for an adjournment so that he could find a lawyer. He acknowledged receiving the Minister’s written submissions and supplemental submissions and being aware that the matter was listed for hearing on 31 March 2015.

6. The Court refused the application for an adjournment and the hearing continued. The applicant has had ample time to seek legal assistance. It is an unfortunate reality of modern litigation in general that many people have to represent themselves.  The High Court AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175 outlined the impact that adjournments have on the court’s case management and consequent delay in other cases.

7. After refusing the adjournment, the Court explained the hearing process to the applicant. It is not the function of the Court to engage in the merits of the applicant’s case.[1]

   [1] See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

The Legislation

1. The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows

   The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.

   It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).

   The Act provides for classes of visas: s 31.  Visas may be permanent or temporary: s 30.  One class of visa is a protection visa: s 36(1).  The criterion for a protection visa is provided for in s 36(2).  It relevantly provides:

   (2)    A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

   Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:

   … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.

   Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.

   If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order.  First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.

   Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.

2. Shortly before this matter was listed for hearing, the Full Court of the Federal Court of Australia handed down its decision in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39. In this decision the Full Federal Court held that WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 was wrongly decided. The Full Court held that s.91R(2)(a) should not be read as meaning any deprivation of liberty amounts to serious harm pursuant to s.91R(1)(b) of the Migration Act and Article 1A(2) of the Refugees Convention. This is relevant because the Tribunal rejected the applicant’s claims that he would be persecuted as a failed asylum seeker if he returned to Iran. The Tribunal accepted that the applicant may be questioned upon his return but that would not amount to significant harm. This means that it is permissible for the Tribunal to make that qualitative assessment as to any potential deprivation of the applicant’s liberty.

3. The applicant did not expand on his grounds for review at the hearing.

4. The first ground complains about procedural fairness. This claim cannot be made out in circumstances where the applicant was assisted by legal representation and an interpreter before the Delegate and the Tribunal.  In addition to appearing before the Tribunal, the applicant’s lawyers sent both the Delegate and the Tribunal written submissions. The applicant was given the opportunity to put his case and did so.

5. The Tribunal complied with its obligations set out in sections 425 and 425A inviting the applicant to appear before the Tribunal. The Tribunal raises issues that were adverse to the applicant’s claims and gave him the opportunity to respond.

6. The applicant claimed that he had a well-founded fear of persecution if he was returned to Iran for the following reasons:

   a)He converted to Christianity;

   b)An imputed political opinion;

   c)Being a failed asylum seeker.

7. The applicant provided a certificate which claims he was baptised in Melbourne on 1 December 2012. In his visa application the applicant returned to his fear of being persecuted because he did not believe in Islam. The Tribunal did not find the applicant to be a credible witness and did not find that he had legitimately converted to Christianity.

8. The Tribunal also rejected the applicant’s claim that he had mental health issues which would explain his difficulty in providing details of his experiences. The Tribunal observed that the applicant did not provide any medical evidence and gave concise and detailed information about uncontested aspects of his evidence and that this contrasted with his in vague evidence about the keys points of his claim.

9. The Tribunal addressed claims by the applicant that he and his girlfriend were attacked by the Basji when they were in the park.  The applicant was unable to recall his girlfriend’s family name and his description of meeting her was vague. It is clear from the Tribunal decision it raised its concerns about aspects of the applicant’s evidence with him and gave him an opportunity to respond[2]. The Tribunal noted that his account of the Basji attacking him and his girlfriend was implausible and inconsistent with the country information. The county information indicates that unrelated couples of different sexes may be given “moral guidance” and be harassed. The applicant describes an unprovoked physical attack where he says he was slashed with a knife in the stomach yet he claims that the wound did not bleed much and that he and his girlfriend were able to escape. The Tribunal member did not accept the applicant’s explanations when addressing the concerns that the tribunal identified.

   [2] See paragraphs [27], [29] of the Tribunal’s decision

10. The Tribunal decision details the inconsistencies in the applicant’s claims that he was detained and assaulted[3]. The tribunal was satisfied that the applicant had fabricated the claim.

    [3] See paragraphs [33-37] of the Tribunal’s decision

11. The Tribunal details the applicant’s claims to have converted to Christianity. Again the tribunal was unsatisfied as to his explanations about his faith and his inability to relate why Bible stories are significant to his faith. The Tribunal also pointed out the inconsistency in his application, stating he did not believe in religion at all, to claiming to have converted to Christianity, being baptised a month later. The applicant was unable to give a plausible explanation.

12. The Tribunal member found that the applicant was not a witness of truth and did not accept his evidence. The Tribunal rejected his claims of being attacked by the Basji. The Tribunal was satisfied that the applicant had not come to the attention of the Iranian authorities. The Tribunal also found that the applicant had not converted to Christianity. Assessments of credibility and finding of fact are matters for the Tribunal and not the Court[4].

    [4] See Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407; Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

13. I am satisfied that the applicant was accorded procedural fairness by the Tribunal. The applicant was given the opportunity to appear before the Tribunal to give evidence. The Tribunal put its concerns about the inconsistencies and implausibility of the applicant’s evidence and gave him the opportunity to respond to those concerns. Having considered the material I am satisfied that the Tribunal did consider the whole of the applicant’s claims.

14. For these reasons ground 1 must fail.

15. The applicant does not give any particulars as to what information he claims the tribunal failed to take into account  or what irrelevant country information the applicant claims the Tribunal considered.

16. The Tribunal specifically addressed the country information provided by the applicant and rejected it. The Tribunal considered other country information which it is entitled to do. It is a matter for the Tribunal to determine what weight to place on county information[5]

    [5] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

17. The Tribunal found that he would not be harmed on his return to Iran because of religion or imputed religion. The Tribunal also found that he would not come to harm because of the tattoo on his shoulder.

18. The Tribunal found that the applicant left Iran legally using his passport he now no longer has. The Tribunal rejected the country information provided by the applicant’s lawyer because it referred to people who had left Iran illegally which is not what the applicant did. The tribunal considered more recent country information relating to people who did leave Iran legally. The Tribunal found that the applicant had not undertaken political activities either in Iran or Australia and that there was no reason for the authorities to impute any political activities to him.

19. The Tribunal satisfied that the most that would happen would be that the authorities would question the applicant on his return. He would not face serious harm or in questions and the country information indicates that failed asylum seekers do not face difficulty in finding work and shelter upon their return. Based on this information the tribunal was satisfied that there was not a real chance of the applicant suffering serious harm upon his return to Iran. While being questioned does not amount to significant harm, the Tribunal found that the applicant did not satisfy the criterion to be a refugee and was not a person in respect of whom Australia has protection obligations.

20. Ground two must also fail.

21. I will dismiss the application and make the usual order for costs.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  1 May 2015