MZALQ v Minister for Immigration

[2016] FCCA 1271

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZALQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1271

Catchwords:
MIGRATION – Independent Merits Reviewer – protection visa – whether reviewer failed to consider a written submission – whether the reviewer applied the wrong test for complementary protection.

Legislation:
Migration Act 1958 (Cth) ss.36(2)(a), 36(2)(aa)

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, (1996) 41 ALD 1, (1996) 136 ALR 481, (1996) 70 ALJR 568, [1996] 9 Leg Rep 2, [1996] HCA 6

Applicant: MZALQ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File number: MLG 1985 of 2014

Judgment of: Judge Riley

Hearing date: 13 April 2016

Date of last submission: 13 April 2016

Delivered at: Melbourne

Delivered on: 26 May 2016

REPRESENTATION

Counsel for the applicant: Ben Gauntlett

Solicitors for the applicant: Russell Kennedy Lawyers

Counsel for the first respondent: Warren Mosley

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 1 October 2014 and amended on 7 March 2016 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1985 of 2014

MZALQ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a recommendation made by the Independent Merits Reviewer on 28 November 2012 that the applicant not be recognised as a person to whom Australia has protection obligations.

2. The applicant is a national of Iran. He arrived in Australia on 20 December 2010 as an irregular maritime arrival.  He requested a refugee status assessment on 13 February 2011.  That was adverse.  The applicant then sought independent merits review.  On 19 December 2011, an independent merits reviewer (“the first reviewer”), recommended that the applicant not be recognised as a person to whom Australia has protection obligations.  The first reviewer’s recommendation was subject to an application to this court.  On 10 August 2012, by consent, Judge Lucev of this court declared that the first reviewer had made an error of law in that she had failed to consider the applicant’s claims of imputed political opinion and religion.  The matter was then considered by another reviewer (“the second reviewer”).  It is the second reviewer’s recommendation that is the subject of the application presently before the court.

The applicant’s claims

1. The applicant made claims as follows:

   a)his uncle had been a financial supporter of a particular political party;

   b)his uncle was murdered in September 2000;

   c)his father worked in the Ministry of Intelligence and Security in Tehran;

   d)in 2005, his father was killed ostensibly in a hit-and-run accident;

   e)work colleagues of the applicant’s father regularly visited the applicant’s family home and questioned the applicant about his uncle and the applicant’s lifestyle;

   f)the applicant believed that the Ministry had murdered his uncle, and, when his father investigated the murder, the Ministry murdered him as well;

   g)the applicant believed that the Ministry understood that the applicant had been given information about the murder of the applicant’s uncle, so they also wished to harm the applicant;

   h)the applicant is not a conservative Iranian and no longer wishes to follow Shia Islam;

   i)the fact that the applicant’s father worked for the Ministry exacerbated the risk of the applicant being harmed for his religious beliefs; and

   j)the applicant feared persecution based on his imputed political opinion, religion and membership of particular social groups consisting of being a member of the family of his uncle and being a failed asylum seeker or returnee from the West.

The second reviewer’s reasons

1. The second reviewer’s reasons for his recommendation extend to 45 closely typed pages.  In those reasons, the second reviewer carefully analysed the evidence relating to the deaths of the applicant’s uncle and father.  The second reviewer concluded that the applicant’s claims about the Ministry being responsible for his uncle’s death were far-fetched.  The second reviewer considered that the murder of the applicant’s uncle was not state sponsored but was a straightforward criminal act associated with a car theft.  The second reviewer considered that the applicant’s father was killed in an unfortunate hit-and-run accident that was not connected in any way with the uncle’s death or with the Ministry.  The second reviewer did not accept that the applicant faced persecution in Iran by reason of his membership of a particular social group consisting of his uncle’s family.

2. The second reviewer accepted that the applicant was a non-practising Shia Muslim, but noted that he was not an apostate.  In those circumstances the second reviewer considered that there was no more than a remote chance that the applicant would face serious harm amounting to persecution in Iran for reasons of his religion.

3. The second reviewer noted that the applicant had left Iran legally on his own passport.  For that and other reasons, which he stated, the second reviewer did not accept that the applicant faced persecution in Iran as a member of a particular social group consisting of failed asylum seekers or returnees from the West.

4. For reasons which he stated, the second reviewer did not accept that the applicant faced persecution in Iran for reasons associated with his imputed political opinion.

5. The second reviewer considered, for essentially the same reasons, that the applicant did not face a real chance of significant harm in Iran.

Ground 1

1. The first ground of review in the application filed on 1 October 2014 and amended on 7 March 2016 is:

   1. The recommendation of the Second Respondent:

   (a) Erred in failing to consider the submissions of 12 October 2011;

2. The applicant’s solicitor and migration agent sent written submissions:

   a)dated 12 October 2011 and 27 October 2011 to the first reviewer;

   b)dated 18 January 2012 to the pre-removal assessment team; and 

   c)dated 5 October 2012 to the second reviewer.

3. The second reviewer provided detailed reasons for the recommendation, which included headings as follows:

   a)Submission dated 27 October 2011;

   b)Submission dated 18 January 2012; and

   c)Submission dated 5 October 2012.

4. There was no express mention of the written submission dated 12 October 2011 in the reasons for the second reviewer’s recommendation.

5. However, the first respondent said that the second reviewer must have meant that submission when he referred to “the submission” when summarising the information discussed in the interview conducted by the first reviewer on 17 October 2011 at [104] of his reasons, because at that stage, the submission dated 12 October 2011 was the only submission before the first reviewer.  That may be correct, but the reference to “the submission” at that point does not convey any intellectual engagement with it.

6. Moreover, the first reviewer’s reasons for her recommendation do not include any express reference to the written submission dated 12 October 2011.  There is a reference at page 5 of the first reviewer’s reasons to the adviser sending “a written submission” and a reference at page 9 of the first reviewer’s reasons to a “post-hearing submission”.  However, it is not clear from the first reviewer’s reasons that she meant two different written submissions, one dated 12 October 2011 and one dated 27 October 2011.  Consequently, the fact that the second reviewer was clearly aware of the first reviewer’s reasons does not necessarily mean that the second reviewer was aware of the written submission dated 12 October 2011.

7. In any event, the applicant argued in paragraph 7 of his written submission to this court that the second reviewer’s apparent overlooking of the submission dated 12 October 2011 amounted to a failure to take into account a relevant consideration because it included four references that provided independent confirmation of four claims that were said to have been made by the applicant. 

8. The first of those claims and the relevant reference was “…the decline of persecution due to religious freedom in law and practice during the applicants (sic) departure from Iran;”: Amnesty International, Iran must acknowledge abuses before UN Committee, 17 October 2011.

9. That reference was not included in the submission dated 12 October 2011.  It had not been published as at that date.  In any event, it was included in the submission dated 27 October 2011 at footnote 7 (CB143).  The applicant has not suggested that the second reviewer overlooked the submission dated 27 October 2011.  Moreover, the second reviewer said at [183] of his reasons for decision that he:

   …had regard to country information specifically referred to and cited in the submissions provided on behalf of the claimants and cited in the RSA and by Reviewer 1.  Particular country information sources I have accessed include:

   ….

   Amnesty International reports found at: >

   In these circumstances, there seems to be no reason to believe that the second reviewer overlooked the Amnesty International article dated 17 October 2011.  I am unable to identify anything in the submission dated 12 October 2011 that relates to “the decline of persecution due to religious freedom in law and practice during the applicant’s departure from Iran” or anything like it. Clearly, the second reviewer considered the claim that the applicant faced persecution for reasons of his religion, or lack thereof.

10. The second claim and the relevant reference was “the vigilante attacks and the government crackdown against ‘un-Islamic’ dress”: Refugee Review Tribunal, RRT Research Response, IRN35006 (24 June 2009).  However, reference to this document was included in the submission dated 27 October 2011 at footnote 11 (CB144).  In addition, the words “vigilante attacks and the government crackdown against ‘un-Islamic’ dress”, and the associated reference, were included in the submission dated 27 October 2011 at dot point 9 under the heading Religion and Political Opinion at CB144. The applicant did not suggest that the second reviewer overlooked the submission dated 27 October 2011.  In these circumstances, there seems to be no reason to believe that the second reviewer overlooked the RRT Research Response, IRN35006 and the associated claim. 

11. The third claim and the relevant reference was: “that in March 2011, Mahmood Amiry-Moghaddam a spokesperson for Iran Human Rights had urged authorities in Norway and all other Western countries to immediately stop extradition of Iranian asylum seekers to Iran”: Iran Human Rights, 2011, ‘An Iranian-Kurdish asylum seeker extradited from Norway to Iran is in danger of torture, ill-treatment [or] death at Tehran’s Evin Prison’, pub 23/3/2011 in Mission Free Iran: The Islamic Republic’s Position on Iranians Outside of Iran Who Oppose the Regime, Including Asylum Seekers/Refugees on 28/4/2011. 

12. However, reference to this document was included in the submission dated 27 October 2011 at footnote 14 (CB145).  In addition, the words, “in March 2011, Mahmood Amiry-Moghaddam a spokesperson for Iran Human Rights had urged authorities in Norway and all other Western countries to immediately stop extradition of Iranian asylum seekers to Iran” were included in the submission dated 27 October 2011 at dot point 3 under the heading “Returnees”.  The applicant did not suggest that the second reviewer overlooked the submission dated 27 October 2011.  In these circumstances, there seems to be no reason to believe that the second reviewer overlooked the Iran Human Rights document and the associated claim.

13. The fourth claim and the relevant reference was: “the uncertainty regarding the treatment of returnees by the Iranian authorities and paramilitaries”: Refugee Review Tribunal, Country Advice Iran – IRN37255 – Asylum seekers – 2009 Election Protests – Returnees – Tehran Airport – Arrival procedures (19 August 2010).

14. However, reference to this document was included in the submission dated 27 October 2011 at footnotes 15, 16 and 17 (CB145). In addition, the submission dated 27 October 2011 included at dot point 5 under the heading Returnees at CB145 the words, “the country advice unit at the Refugee Review Tribunal considers that it remains uncertain as to whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad” (emphasis in original).  Those words are substantially the same as the words set out in paragraph 7.4 of the applicant’s submissions to this court.  The applicant did not suggest that the second reviewer overlooked the submission dated 27 October 2011.  In these circumstances, there seems to be no reason to believe that the second reviewer overlooked the RRT Country Advice, IRN37255 and the associated claim.

15. In addition to the matters set out in the applicant’s written submissions, he said in oral submissions that the submission dated 12 October 2011 contained a matter that was not included in the submission dated 27 October 2011.  That matter was set out in the submission dated 12 October 2011 as follows:

    [21] On 30 June 2011, the New Zealand Immigration and Protection Tribunal accepted that the risk of detention and physical mistreatment to those accused of being political dissidents amounted to persecution:

    “Given that the country information confirms that: the Iranian authorities continue to seriously mistreat detainees; and, instances of forced confessions of “vaguely worded political offences” arising from a detainee’s political activity and the political activity connected to the post-2009 election protests frequently form the basis of criminal convictions, the Tribunal accepts that the detention and physical mistreatment of which the appellant is at risk amounts to this being persecuted[14].”

    [22] Consequently, we consider that if the Iranian authorities were to form the view that the Applicant possessed a pro-Western and anti-regime political opinion, the Applicant would be at risk of serious harm in Iran.

    [14] Al (Iran), [2011] NZIPT 800069, New Zealand: Immigration and Protection Tribunal, 30 June 2011, available at: [accessed 29 September 2011]

16. However, in the present case, the second reviewer did not accept that the applicant would be accused of being a political dissident, or would be considered to have a pro-Western or anti-regime political opinion.  The findings in that regard rendered immaterial the submissions in paragraphs 21 and 22 of the written submissions dated 12 October 2011 regarding the mistreatment of political dissidents.

17. For these reasons, ground 1 is not made out.

Ground 2

1. The second ground of review in the application filed on 1 October 2014 and amended on 7 March 2016 is:

   1. The recommendation of the Second Respondent:

   ….

   (b) Failed to accord the Applicant procedural fairness by failing to consider these submissions;

2. For the reasons set out above, there was no denial of procedural fairness in the manner in which the second reviewer dealt with the submissions dated 12 October 2011.  Even if the second reviewer did overlook the document containing those submissions, he did not overlook their substance.  Ground 2 is not made out.

Ground 3

1. The third ground of review in the application filed on 1 October 2014 and amended on 7 March 2016 is:

   1. The recommendation of the Second Respondent:

   …

   (c) Erred by applying the wrong test when assessing whether the Second Respondent could have substantial grounds for believing that the Applicant would suffer significant harm.

2. This ground arises from paragraph 245 of the second reviewer’s reasons for his recommendation, under the heading Complementary protection.  That paragraph is as follows:

   If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if the person is a non-citizen in Australia 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 person being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s36(2)(aa) (‘the complementary protection criterion’). I recognise this is a different test to the refugee criterion. Nonetheless, in light of the foregoing, I conclude his re-entry to Iran on Iranian travel documents issued in Australia, if he returns or is removed from Australia, will not lead him to face a real risk of significant harm.

3. The applicant argued that the second reviewer misapprehended the test that applies to assessment of complementary protection claims, in that the second reviewer did not understand that it was a real chance test.  This was said to be clear because the second reviewer said that the test for complementary protection claims was different to the test for refugee claims.

4. However, it seems to me that such an argument misapprehends paragraph 245 of the second reviewer’s reasons for his recommendation.  Paragraph 245 of the reasons correctly noted that the test for complementary protection was as set out in the first sentence of paragraph 245.  The second sentence of paragraph 245 correctly noted that that test is different to the test for the refugee criterion.  There is nothing wrong in that formulation.

5. The applicant’s submission assumed that the second reviewer, by saying “this is a different test to the refugee criterion” meant that the question was not whether there was a real chance of significant harm, but whether there was some other chance of significant harm.  That interpretation does not appear to me to be available on an ordinary reading of the words of paragraph 245 of the reasons.

6. In any event, the second reviewer correctly set out the correct tests for refugee and complementary protection in paragraphs 8 to 16 and 17 to 19 respectively of the reasons for decision.  There is nothing in those paragraphs that suggests that the second reviewer misunderstood the correct tests.  As the High Court has said, where the decision-maker has set out the correct test, the court on review should not lightly form the view that the decision-maker has misapplied that test.  Moreover, as the High Court has also said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6, the reasons of an administrative decision-maker should not be viewed with “an eye keenly attuned to the perception of error”.  Finally, the applicant did not point to anything which he said demonstrated that the second reviewer applied a wrong test.  For these reasons, I am not persuaded that this ground is made out.

Conclusion

1. As the applicant has not succeeded on any of his grounds, the application must be dismissed with costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 26 May 2016