MZALN v Minister for Immigration

[2015] FCCA 2895

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZALN v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2895

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no particulars to grounds of review – no denial of procedural fairness – Applicant seeks review on the merits – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 425

Migration Regulations 1994 (Cth), sch2: cl.866.221
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

MIMIA v SGLB [2004] HCA 32
SZBYR v MIAC [2007] HCA 26
SZQSV v MIAC [2013] FCA 1405

Applicant: MZALN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1962 of 2014

Judgment of: Judge Hartnett

Hearing date: 9 October 2015

Delivered at: Melbourne

Delivered on: 9 October 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Murano

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application filed on 26 September 2014 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1962 of 2014

MZALN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. By way of Application filed on 26 September 2014, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 28 August 2014. In that decision, the Tribunal affirmed a decision of the First Respondent by his Delegate not to grant the Applicant a Protection (Class XA) visa (‘the visa’).

2. The grounds of the application are as follows:-

   “1.    Denial of procedural fairness;

   2.  Error of law in decision.”[1]

   [1] Application filed by the Applicant on 26 September 2014.

3. As can be observed from the grounds above, they provide no particulars. It is not for this Court to create particulars for the Applicant.

4. On 17 December 2014, Orders were made by Registrar Caporale by consent. Those Orders included that the Applicant file and serve any amended application and written submissions prior to the hearing date. The Applicant filed no amended application, nor did the Applicant file any written submissions. On the hearing of the matter, the Applicant proposed that he make oral submissions and the Court granted him leave to do so.

5. The First Respondent opposes the orders as sought by the Applicant and seeks dismissal of the Application, together with a costs order.

History

1. The Applicant was born on 14 September 1984 in Najafabad, Isfahan, Iran.  He is now aged 31 years.  He arrived as an irregular maritime arrival on Christmas Island.  He had travelled from Iran to Pakistan, and then through Thailand, Malaysia and Indonesia before arriving on Christmas Island.  Some of his travel had been by air and some by boat.  His travel was arranged by a people smuggler.  He applied for the visa on 1 September 2012.  Annexed to his Visa Application was a Statutory Declaration made by him on 1 September 2012; Written Submissions prepared by his then-representative, BMA Lawyers; and various other supporting documents, including identity documents.

2. On 4 September 2012, the Applicant was interviewed in relation to his visa application by a Delegate of the Minister for Immigration and Citizenship (as he then was) (‘the Delegate’). On 15 July 2013, the Delegate refused the application for the visa and determined the Applicant was not owed protection obligations under s.36 of the Migration Act 1958 (Cth) (‘the Act’) and cl.866.221 of sch.2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

Tribunal Procedure

1. On 17 July 2013, the Applicant applied to the Tribunal for merits review of the Delegate’s decision.  The solicitors, BMA Lawyers, continued to be the authorised recipient of the Applicant.  The Tribunal, by letter of 18 July 2013, acknowledged receipt of the application for review of the decision to refuse to grant the visa.

2. By correspondence of 1 May 2014 to the then-authorised recipient of the Applicant, being Avesta Migration and Student Services, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The Tribunal also wrote to the Applicant by correspondence of 1 May 2014, inviting him to appear before the Tribunal on 13 June 2014.  The Tribunal noted that an interpreter in the Persian language would be available to assist him.  Subsequently, by correspondence of 27 May 2014, the Tribunal advised the Applicant that a new hearing date and time had been scheduled, that being 4 July 2014 at 10am.  The Applicant and his authorised recipient completed a response to hearing invitation, indicating that both would attend.

3. Prior to the hearing and on 26 June 2014, the Applicant’s authorised recipient forwarded Written Submissions to the Tribunal in support of the Applicant’s application for the visa.

4. On 4 July 2014, the Applicant and his authorised representative attended the hearing before the Tribunal.  The Applicant was assisted by an interpreter in the Persian and English languages.  Various oral submissions were made during that hearing, by the Applicant.

5. Following the Tribunal hearing, the Tribunal sent correspondence dated 9 July 2014 to the Applicant, being an invitation to comment on, or respond to, information which the Tribunal considers would, subject to the Applicant’s comments or response, be the reason or a part of the reason for affirming the decision under review. 

6. The particulars of the information as set out in that correspondence were as follows:-

   “In your entry interview held on 22 June 2012, you stated that they had come to arrest you because you had been swearing at the president.  You did not mention that you had insulted the Supreme Leader or that you had insulted the Islamic religion and the Prophet Mohammad.  In your evidence to the Tribunal you indicated that you had insulted Mohammad, the Islamic religion and the Supreme Leader and this was why you would be at risk on return to Iran.”[2]

   [2] Letter from Refugee Review Tribunal to MZALN dated 9 July 2014.

7. The invitation to comment on or respond to information, further advised the Applicant that the information was relevant to the review, because due to his failure to mention insulting the prophet and the Islamic religion and insulting the Supreme Leader in his entry interview, the Tribunal may not accept his account of what occurred at the factory in February 2012.  It said ‘it may regard your later evidence as a recent invention.’

8. The Tribunal further said in the above correspondence:-

   “If the tribunal relies on this information in making its decision it may not accept that you insulted the Islamic religion, the Prophet Mohamed and the Supreme Leader or even that you insulted the President.  It may not accept that your employer was arrested or that the Iranian authorities were looking for you and had taken your passport.  It may not accept that they had taken you (sic) father for questioning.  This could lead the Tribunal to find that you are not owed protection obligations and would be the reason or a part of the reason for affirming the decision under review.”[3]

   [3] Letter from Refugee Review Tribunal to MZALN dated 9 July 2014.

9. On 7 August 2014, by way of evidence from a National Accreditation Authority for Translator and Interpreters Ltd (NAATI) accredited Persian translator, in response to the Tribunal’s invitation to comment on or respond to information, the Applicant so responded.

10. The response from the Applicant’s authorised recipient of 7 August 2014 was relevantly as follows:-

    “I am writing to confirm that I have reviewed your client… [the applicant’s] Audio recording ADD2012/816117 - Entry Interview Recording Part 2 upon your request and his consent and have located the following inaccuracy in the translation of his response from Persian to English in the 24^th minute of this recording to the best of my ability.

    At the 24^th minute, your client produces the following response when asked about his reason for leaving Iran. 

    Client’s response: “Confrontation with the intelligence officer and swearing the leader.”

    The interpreter produces the following translation:

    “So involvement with the intelligence and humiliated the president.”

    “… and swearing to the president of Iran.”

    Such translation was provided by a Ms Amiri, NAATI Accredited Paraprofessional Interpreter/Professional Translator (Persian to English and English to Persian).

11. By a letter dated 29 August 2014, the Tribunal notified the Applicant of its decision on 28 August 2014 to affirm the decision under review and not grant the Applicant the visa.

The Tribunal hearing

1. The Applicant claimed to fear harm in Iran from:-

   a)the Iranian Ministry of Intelligence and Security (‘MIOS’) (also known as the Etelaat), the Basij or the Sepah on the basis of his:-

   i)imputed political opinion against the Iranian government;  and

   ii)imputed religious views against Islam

   arising from his involvement in an argument in his former workplace, in which Mohammad, Islam, the Supreme Leader and the Iranian President were criticised;  and

   b)Iranian authorities generally because:-

   i)they will think he has taken information from Iran to the outside because he departed Iran illegally;  and

   ii)he will be imputed with political views against the Iranian government, because he unsuccessfully sought asylum in Australia.

Tribunal decision

1. As set out accurately in paragraphs 10 and 11 of the First Respondent’s Written Submissions, the Tribunal found:-

   “10. On the basis of inconsistencies between evidence presented to the Department and to the Tribunal and the changing of the applicant’s claims over time, the Tribunal did not accept the applicant’s evidence that the following incident occurred in Iran, prior to his arrival in Australia:

   (a)     at work one day, the applicant’s boss began insulting Mohamed, Islam, the Supreme Leader and the Iranian President and the applicant concurred with those remarks;

   (b)     as a result of agreeing with those insults, the applicant became involved in a physical altercation with a colleague who objected to the remarks and, unbeknown to the applicant, was a member of MIOS, the Basij or Sepah;

   (c) Members of MIOS, the Basij or Sepah subsequently:

   i)  arrested the applicant’s boss;  and

   ii) searched for the applicant because, as a result of agreeing with the insults levelled at Mohamed, Islam, the Supreme Leader and the Iranian President, he was considered an apostate.”

   11. The Tribunal then proceeded to make the following findings:

   (a) it did not accept that the applicant’s father had been taken for questioning and mistreated by Iranian authorities after the applicant left Iran because the applicant’s evidence was “vague and confused”;

   (b) the applicant does not fall within the categories of people who are at risk of harm in Iran, such as student activists, protesters, Arabs, Kurds, and religious and ethnic minorities;

   (c) the applicant does not have a well-founded fear of persecution based on his political opinion, imputed political opinion or religion;

   (d) the applicant does not have a profile that would result in him facing harm on return to Iran for having departed the country illegally;  and

   (e) it [the Tribunal] accepted that, upon return to Iran, the Iranian authorities would assume the applicant had been to Australia and applied for asylum, but found that:

   (i) any penalty the applicant would be subject to on return to Iran would be imposed by Iranian laws of general application;  and

   (ii) the applicant does not fit the profile of people who are at risk upon return to Iran because neither the applicant, nor his family, have ever been involved in political activities opposing the Iranian government;

   (f) it [the Tribunal] did not accept that Iranian authorities would detain and torture the applicant during any investigation conducted to determine why the applicant had sought asylum in Australia;

   (g) when his claims were assessed individually and cumulatively:

   (i) there was no real chance the applicant would be persecuted for a Refugee Convention (Convention) reason in the reasonable foreseeable future on the basis of being a man who departed Iran illegally and subsequently sought asylum in Australia;  and

   (ii) the applicant’s fear of persecution upon return to Iran was not well-founded.

   (h) even when the applicant’s “situation is viewed cumulatively there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Iran there is a real risk he will suffer significant harm”.”

2. Further, in paragraphs 35 and 36 of the Tribunal’s Decision Record (‘the Decision Record’), the Tribunal said:-

   “35. The difference between the applicant[‘s] claims in his entry interview and his subsequent evidence was put to him pursuant to s424A of the Act. In response the applicant claimed that there was an interpreting error in the entry interview. It was submitted on behalf of the applicant that an accredited interpreter has listened to the interview and noted:

   At 24^th minute, your client produces the following response when asked about his reason for leaving Iran.

   Client’s response:  “Confirmation with the intelligence and swearing the leader”

   The interpreter produces the following translation:  “so involvement with the intelligence and humiliated the president” “... and swearing to the president of Iran”.

   36.  The Tribunal notes that this does not indicate that the applicant initially claimed that he insulted Mohammad and Islam and it is ambiguous as to whether he insulted the Supreme Leader as ‘leader’ could mean the President or the Supreme Leader.”

3. The Tribunal said further, in paragraph 46 of the Decision Record, the following:-

   “The Tribunal regards the shift in the applicant’s evidence regarding who was after him as significant.  The Tribunal has considered the applicant’s claim that there were interpreting errors however the Tribunal does not accept this to be the case or to adequately explain the shift in the evidence.  The Tribunal has also considered the applicant’s claim that he was not comfortable expressing his claims in front of an (assumed) Muslim interpreter.  The Tribunal is of the view that even if the applicant was not comfortable the Tribunal would have expected him to state that he had insulted Islam even if he did not provide the words he used or the details. As discussed below insulting Islam is seen as different to insulting the government.  Further if the applicant is claiming that he was prepared to make derogatory comments about Mohammed in a gathering at work in Iran it seems inconsistent that he would not be prepared to say insulted Mohammad and Islam in a private interview in Australia. The Tribunal accepts that the focus of the entry interview is not on the assessment of protection claims however the applicant was asked why he left Iran and provided a relatively detailed response and the Tribunal does not accept that he declined to mention he insulted Mohammad and Islam because it was a perfunctory interview.”

Consideration

1. On the hearing of the matter before the Court this day, the Applicant made oral submissions, which in essence were an attempt to cavil with the factual findings of the Tribunal. Those findings are a matter for the Tribunal and not this Court. Further, the Applicant restated those matters he had raised before the Tribunal as to an interpreting error. The Tribunal dealt with those matters in its Decision Record as referred to in these reasons. There is nothing in the Decision Record which points to jurisdictional error on the part of the Tribunal. Its findings were open to it on the evidence before it.

2. The Tribunal set out the correct legislative framework and relevant law in its Decision Record.  Its decision was not so unreasonable that it could only be seen as illogical or irrational.[4]  On the face of its reasons it does not appear that the Tribunal formed its opinion in an arbitrary, capricious or irrational manner such that jurisdictional error would be present.[5]

   [4] MIMIA v SGLB [2004] HCA 32 at [37] – [38] per Gummow and Hayne JJ.

   [5] SZQSV v MIAC [2013] FCA 1405 at [8] per Greenwood J.

3. The Tribunal considered the Applicant’s evidence and relevant country information and concluded that the Applicant would not be subjected to serious harm and persecution within the meaning of the Refugees Convention.[6]  Furthermore, the Tribunal clearly set out and applied the correct legal framework in assessing the real risk threshold for complementary protection, and did not otherwise fall into error.

   [6] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

4. The Tribunal did consider the Applicant’s claims in detail and either rejected the factual foundation of each of them or alternatively found that the claims did not amount to serious or significant harm under the Refugees Convention,[7] or under the complementary protection regime.  The Tribunal is not obliged to consider unarticulated claims or claims which clearly did not arise from the material before it.

   [7] Ibid.

5. The Tribunal was required to afford the Applicant procedural fairness in accordance with Part 7, Division 4, of the Act. The Tribunal did so. It complied with s.425 of the Act in its hearing invitation letters and s.424A of the Act in its correspondence of 9 July 2014 to the Applicant.

6. Otherwise the Tribunal’s thought processes, preliminary views and adverse conclusions about inconsistencies in, and even the entirety of the Applicant’s evidence, do not constitute “information” for the purpose of s.424A of the Act and therefore were not required to be specifically put to the Applicant.[8] 

   [8] SZBYR v MIAC [2007] HCA 26 at [18].

7. The Application will be dismissed and costs follow the event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 October 2015