MZARV v Minister for Immigration
[2016] FCCA 2898
•23 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARV v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2898 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – whether applicant’s claim of risk of persecution arising from consumption of alcohol on return to Iran was considered by Tribunal – whether such claim sufficiently articulated – whether claim arose sufficiently clearly on the materials to require being addressed by the Tribunal – applicant legally represented before Tribunal – no jurisdictional error shown. |
| Legislation: Migration Act 1958, s.477(1) |
| Cases cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | MZARV |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 276 of 2015 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 7 September 2016 |
| Date of Last Submission: | 7 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Harwood Andrews |
| Counsel for the Respondent: | Ms Symons |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application for extension of time be granted.
The application filed on 13 February 2015 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,026.
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 276 of 2015
| MZARV |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (then the Refugee Review Tribunal) dated 9 December 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
The applicant has not pursued the (wholly unspecified) ground set out in his application and has not, despite the opportunity to do so, filed an amended application. Nonetheless, from the applicant’s written submissions it is clear that the ground of application is an alleged failure on the part of the Tribunal to address an integer of the applicant’s claims, namely, what might occur to the applicant if he continued to drink alcohol if he was returned to Iran. In the alternative, it is put that this claim emerged sufficiently clearly on the materials that it should have been dealt with.
The first respondent’s contrary position is that the claim was never advanced by the applicant and did not emerge sufficiently clearly on the materials to be required to be addressed.
It should be noted that the application was filed some 30 days outside the 35 day period specified by s.477(1) of the Migration Act 1958. The applicant has filed an affidavit in support of his application, affirmed on 11 February 2015, which essentially explains the delay in his application as arising from his difficulties in understanding English (and, therefore, attending to his affairs generally) and delays as he was passed between Victoria Legal Aid and the Asylum Seekers’ Resource Centre.
While I accept the submission of the first respondent that the period of delay is not insignificant, it is sufficient to say shortly that I accept the applicant’s explanation for the delay. This, of course, is not the only consideration that arises where an extension of time is sought. The court also has to consider the merits of the claim.
Both parties, I think, accepted the proposition advanced by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [66], where her Honour relevantly said:
In my opinion, unless the grounds are hopeless in the sense I have discussed above so that simply on an impressionistic reading and consideration without full argument a judge could be confident they must fail, the better approach if the Court is otherwise satisfied it is in the interests of the administration of justice to grant an extension of time would be to do so and then to consider and determine the grounds of review with a full consideration of them. There is no reason why that cannot still be done in one hearing and in my opinion it reflects a more appropriate exercise of the supervisory jurisdiction of the Federal Circuit Court.
I have adopted that approach in this case. I will extend time and now determine the merits of the application.
It should be noted that although, of course, the parties urge different conclusions upon the court, both counsel, as I understand it, accept the that the methodology in a case like this involves the court itself looking at the materials that were before the Tribunal and making an assessment as to whether the applicant’s claim can fairly be said to have been sufficiently clearly advanced, or, alternatively, to emerge sufficiently clearly on the materials for it to have been a failure of exercise of jurisdiction on the Tribunal’s part to fail to deal with it. I will return to some case law later, but, in the end, the operative parts of the decision in a case like this are necessarily always fairly shortly expressed.
The applicant is a citizen of Iran, of Arab race. The first articulation of his claims for protection as a refugee are part of his Unauthorised Arrival interview at CB18. It is not necessary to set it out in full. It consists of a claim that as an Arab he faced discrimination and that Sepah had taken his land because of this. The claim continues at CB27 - 29, but does not, apart from adding some further claims of discrimination on the basis of being of the Arab race at CB29, expand the matter in any material way.
At CB26 the applicant gave has reasons for not wishing to return to Iran. These reasons related to his Arab ethnicity, and, on any view of the matter, did not extend to the claims now the subject of this decision.
A letter from the applicant’s representative Messrs Vrachnas Lawyers, to the department is at CB49 - 61. It is a letter concerning the claims of a number of Iranians, not just the applicant. At CB49 the letter asserts, “It addresses the main issues which have arisen in Iranian cases that we have dealt with recently. Some of these will not be relevant to all clients.”
The written submission goes on to say under the heading Background: The Current Regime in Human Rights in Iran (CB49):
It is widely acknowledged the current government of Iran is a repressive regime that is prepared to take any measure necessary to hold on to power and that will not tolerate political dissent or deviation from what is viewed as the correct religious path. The available evidence suggests that these attitudes are hardening, the repression has been intensifying and that the situation is likely to worsen in the foreseeable future.
It should be noted, of course, this letter was dated 23 April 2011.
I note that at CB54 - 55 the letter dealt with Iranians of Arab ethnicity and Ahwazi Arabs in particular (of whom the applicant is one), and referred to discrimination to which they are subject. The submission also referred at CB56 - 57 to religious intolerance and the difficulties of apostasy. None of the other matters raised are relevant for present purposes.
The applicant also forwarded a statutory declaration at CB91 - 93. This gave details of his life. At CB92, under the heading The reasons I left Iran, the applicant deposed:
12. I couldn’t study in my own language because this was not allowed for Arabs, I didn’t have access to any medical cover because this was also not allowed for Arabs, Arabs were not allowed to open a shop if they wished because permits were not granted to Arabs, I could only work for myself or another Arab because no one will employ an Arab other than another Arab and even this was done secretly.
13. I wasn’t allowed to speak in Arabic because this is illegal to us in Iran.
14. I provided documents issued by the Iranian authorities evidencing that no work was to be given to Arabs, the Iranian government brought Turkish people to Ahwaz, gave them work and didn’t allow Arabs to work.
The rest of the statutory declaration does not meaningfully expand upon that claim.
The applicant was the subject of a Protection Obligations Evaluation. The decision of the officer is at CB120 - 129. I note that the applicant, in addition to relying upon the matters I have already traversed, underwent an interview on 24 April 2011 (CB122). None of the matters the applicant raised touched on the matters now under consideration.
The matter was thereafter automatically referred for Independent Protection Assessment. And, on 24 November 2011 Messrs Vrachnas Lawyers wrote again to the department (CB131 - 150). At CB131, the submission relevantly asserted:
In summary, our client fears persecution on the basis of his ethnicity. We maintain our submission, based on the country information cited below, that the applicant has a well-founded fear of serious harm amounting to persecution for that reason. Also, the applicant has alerted us that he was previously summonsed in relation to the possession of alcohol. We have translated summonses which are attached. We submit this presents him with a real chance of serious harm based on religion (as argued below).
The submission relevantly continued on CB132:
We submit that the Iranian authorities, including their proxy security force and religious police, the Basij paramilitary, systemically target anybody perceived as opposing the political regime or the Sharia State that has been established as part of the Islamic Revolution, including the targeting of anyone suspected of involvement in what the authorities deem to be unacceptable activities or behaviour.
It should be noted that the primary matters asserted in the bulk of the remainder of the submission were concerned with the applicant’s Arab Ahwazi ethnicity. The written submission went on to assert, albeit in somewhat generalised terms, at CB138:
Our client fears he will encounter serious harm because of behaviour viewed as unacceptable by the Iranian authorities and many in Iranian society in general. He fears serious physical assault by the Iranian authorities and groups such as the Basij who zealously pursue their role as moral and religious police responsible for enforcing appropriate behaviour.
At CB139 the submission asserted:
As noted above, in a country such as Iran, consumption of alcohol is seen as an offence against religion by many and in these circumstances our client is at risk of harm for reasons of religion.
I may have overlooked something, but so far as I can see the reference to the prior passage (“as noted above”) is a reference to the brief reference to the possession of alcohol and the related summonses on CB131.
The translated summonses are at CB144, 146 and 147. The charges in each instance are, “the use of alcoholic drinks and the establishment of a corruption house.” (The latter being, apparently, a euphuism for a brothel.)
These documents are either unheaded (CB144) or are described as letters of warning (CB146 and 147). CB149, there is a translated arrest warrant dated 23 December 2010, on which, according to the terms of the document, detention was to commence on 23 December 2010 on the charge “the establishment of a corruption house and the use of alcoholic drinks”.
The Independent Protection Assessment decision is at CB186 - 205. Relevantly for these purposes, there is a record of the review interview on 13 January 2012 at CB189 - 192. Having noted the summonses (as the four documents are described) served by the police, and that the applicant explained why these had not been provided earlier by saying that he had not realised they would be so important, the decision records at paragraphs 39 - 41 (CB190 - 191):
The assessor asked the claimant what he understood these summonses were for. The claimant responded that they were because of his alcohol consumption. The claimant said the police knew he had left the country, did not want him to return and that is why they served the summonses. The claimant said his mother was illiterate and initially thought the summons were electricity bills and this is why she had not made him aware of these until he had arrived in Australia.
The assessor asked the claimant if other than the interest the police had in his possession and consumption of alcohol were there any other illegal activities he had engaged in that may have caused the police to raid his family home. He said that there were not.
The assessor put to the claimant that as he has said his fear of being arrested for alcohol consumption was the trigger for him to leave Iran why hadn’t he referred to this matter previously. He responded that he thought the authorities may have forgotten about his case after he left Iran and it was only when his mother told him of the summonses that he realised he was still of interest. He said that in addition he had been fearful of raising the alcohol issue at the earlier interviews as he thought this was not relevant to his refugee claim. He said he thought if he talked about the confiscation of his land and his elbow scar that this would be enough to support his claim.
At paragraph 48 (CB191) the decision recorded:
The assessor asked the claimant to speak about the fears he had of returning to Iran. He said that if he returned he would be killed immediately or face life imprisonment as he is Arab, and would be considered a spy for other countries. He said his biggest fear on returning were the outstanding summonses.
The decision dealt with the issue of alcohol at CB198 - 199 and set out country information relating to punishment for consumption of alcohol in Iran. I note that the country information included the possibility of a death penalty for persons regarded as hardened and incorrigible drinkers, and that the death penalty may be applied to a person caught drinking for a fourth time.
I note that the assessor accepted the authenticity of the warrant and summonses and accepted that the applicant purchased alcohol on the black market and consumed it in his own home and that the police, when they became aware of it, sought to arrest him (CB200). The assessor found, however, that the laws in relation to alcohol were of general application and dismissed this part of his claim on that footing (see CB202).
The applicant subsequently lodged the application which has given rise to this proceeding, once again with the assistance of Vrachnas Lawyers. The statutory declaration in support at CB261 - 262 is identical with that at CB91 - 92 and, of course, does not mention the alcohol claims.
The next relevant development is the letter sent by Vrachnas Lawyers to the delegate, dated 9 November 2002, at CB286 - 290, which, in my opinion, does not take the matter further.
The next matter is the decision of the delegate, which is at CB326 - 349. At CB331 the delegate noted that during the Independent Protection Assessment interview on 13 January 2012 the applicant introduced new claims to the effect that he started drinking alcohol in order to forget and/or deal with the harsh circumstances in Iran. The police raided the family home in the attempt to arrest the applicant for alcohol consumption. Since he would have been liable to have to pay a hefty fine which he had no means to pay, the applicant decided to leave Iran. The delegate noted the four summonses served by the police at CB332. On the same page the delegate noted that the claims relating to alcohol consumption had not been assessed against the complementary protection framework. At CB334 the delegate noted:
In his written statement of claims the applicant stated that the police had come to his house in 2010 to arrest him for drinking alcohol. The applicant stated that he believed the black market seller from whom he had purchased the alcohol had given his name to the police (in spite of his written statement, the applicant stated during his PV interview that an undercover Sepah officer sold him the alcohol). He escaped being arrested by fleeing to his uncle’s house. The applicant claims he fears returning to Iran because of his alcohol consumption and outstanding court matters, that if he returns he will be arrested, ill-treated, detained and killed. To further assess the applicant’s claims concerning the repercussions of alcohol consumption and offences, I have taken into account the various sources of country information that will be detailed in the well-founded section as this matter is significantly lengthy. At this point, I highlight that the information was not presented consistently through the PV interview as well as his supported documents that contradicts his written statement/information put forward by the applicant.
At CB336 the delegate did not accept the applicant’s uncertified photocopies of court documents submitted were authentic and did not accept the applicant’s claim, description, timeline and explanation about the incident concerning his alcohol consumption and outstanding court proceedings.
From the discussion of the alcohol issue at CB340 - 342, it is apparent that the delegate explored in some detail the question as to how much alcohol the applicant had bought and consumed from time to time. At CB341 the delegate noted:
The applicant responded in a confusing, indirect, and desultory manner. The applicant evaded answering specific questions asked; he constantly kept on responding without a sequential order or rational connection whilst attempting to explain and respond to questions asked about his claimed timeline of events. He began discussing the timeline event in question but without finishing recounting details of that event, he would immethodically incorporate other timeline events to his response that had no connection to the specific question which at times was impossible to follow or make a clear understanding of his responses.
I note that the applicant stated that he had purchased alcohol ‘a few times’ thus he is more than likely an occasional drinker. The applicant stated in his written claims that he believed the black market seller from whom he purchased the alcohol gave his name to the police. Yet at his PV interview, the applicant stated that an undercover Sepha officer sold him the alcohol. The contradicting information provided by the applicant leads me to question as to how the authorities became aware of the applicant’s alcohol consumption considering he purchased alcohol from time to time (“few times”). The applicant did not provide a satisfactory reasoning; as to how he happened to come under the authorities’ raider/surveillance considering he purchased alcohol from the black market a (“few times”), also why the authorities did not arrest him at the time of purchase considering he stated he purchased alcohol from an “undercover Sepha officer” and there would be no reason to delay the arrest. I further emphasise that the authorities would have not found the alcohol until they entered the premises, the applicant was not present in his home during the claimed raid therefore he was not actually caught consuming alcohol.
The delegate went on to find at CB342:
However, considering the significant flaws in his testimony, I find it is more than likely the applicant has not experienced the claimed events and therefore could not recount or coherently describe the events revolving around the claimed incident, authorities pursuing him for alcohol consumption, and outstanding court proceedings.
The delegate went on at CB342 to find that the applicant’s explanation for the delay in putting forward his information about alcohol was not reliable or truthful.
The delegate went on to find, and this is not a matter of challenge, that the documentation provided by the applicant in relation to the alleged summonses and warrant were not genuine. There has been no challenge to that finding. The delegate rejected the applicant’s claim for Protection on a comprehensive basis.
The applicant applied for review to the Refugee Review Tribunal and the submission of Messrs Vrachnas Lawyers on his behalf begins at CB392 and runs to CB408. His claims of fear of persecution, set out at CB393, unsurprisingly list first his claims as an Arab and as a Shia and then go on to deal with matters which ultimately, at the last point, involve those who transgress religious moral codes. It should be noted that at all times the claim that involved the consumption of alcohol was put as the last, almost subsidiary, of the claims put. The claim in relation to consumption of alcohol is relatively brief and set out at CB398 - 399.
The applicant’s post-hearing submission at CB429 - 430 takes the matter no further.
The Tribunal at CB435 traversed the history of the proceedings and noted that “the delegate did not accept that the applicant’s account of his alcohol consumption and outstanding court proceedings were true, nor that court documents produced by the applicant were genuine.”
The Tribunal noted at paragraph 9, CB436, that:
At hearing the applicant told the Tribunal that he was forced to flee Iran after he was discovered by Sepah to have purchased and consumed alcohol, leading to the commencement of court proceedings against him.
The Tribunal member discussed her concerns about the applicant’s truthfulness of his claims to be wanted by the Iranian authorities for the consumption of alcohol and the genuineness of court documents and noted these matters at paragraph 10 (CB436 - 437). Paragraph 10 records a number of alleged inconsistencies in the applicant’s evidence. The Tribunal’s conclusion at paragraph 11 (CB437) that the applicant was not the subject of interest from the authorities as a result of consuming alcohol, and that the purported court documents were not genuine, is not now the subject of challenge. The Tribunal went on to reject all of the applicant’s claims, both under the Protection Convention and the complementary protection regime, and dismissed the application.
In submissions before the court, the applicant pointed to the passage in the submission from Vrachnas Lawyers at CB400 to this effect:
The Applicant fears he would continue to attract the adverse attention of the authorities in his area as someone who has not and will not adhere to the strict Islamic moral codes currently being enforced in the country. Information published in recent years supports the notion that there is a growing concentrated effort by the Iranian authorities, particularly local organisations like the Basij, on the culture of the country’s younger generation in an effort to suppress future acts of dissent or opposition to its regime or religious institutions.
It is immediately apparent that this is a submission put in somewhat generalised terms.
Essentially, what was put by counsel for the applicant was the Tribunal failed to consider what might happen to the applicant if he returned to Iran and continued to drink alcohol.
Alternatively, it was put that this was a claim that clearly arised on the materials. The Tribunal is an expert body, and had accepted that the applicant was an occasional drinker. It should have been sufficiently alert, it was submitted, to understand the claim was one that arose on the materials.
Counsel for the first respondent pointed out that the applicant was represented at the Tribunal. She drew the court’s attention to the case of SZSXE v Minister for Immigration & Anor [2014] FCCA 579 at [29], where Judge Cameron said:
In any event, if such claim was intended, it should have been advanced clearly to the Reviewer. In the circumstances of this matter the Reviewer was under no obligation to identify any claim not clearly articulated or identified by the applicant; as the applicant was represented by professional advisers, the Reviewer was entitled to assume that the claims which the applicant wished to press were the ones which were expressly articulated by him and his advisers and that none were left to be inferred: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]. The Reviewer did not err by not considering a claim which was not clearly articulated or identified by the applicant.
Counsel also referred to the decision of MZAJC v Minister for Immigration and Border Protection [2016] FCA 208, where Mortimer J said at [11]:
The assessment of what a Tribunal might reasonably be expected to appreciate should be undertaken by a reviewing court as best it can without the advantage of hindsight. The reviewing court will always have before it a formulation of the claim that was “not appreciated”, but the court should be astute not to scrutinise the Tribunal’s reasons, not the material before the Tribunal, too assiduously with that perspective of hindsight.
As I indicated at the commencement of these reasons for decision, an application of this sort involves working out as best one can what was put before the Tribunal and deciding, ultimately in somewhat short order, whether it can be fairly said that the Tribunal properly addressed an issue that was properly raised and sufficiently raised before it.
The Court Book runs to some 491 pages, although of course a certain amount of it is repetitious or irrelevant. On any view however there was copious material before the Tribunal. I think it is fair to say that the primary basis upon which the applicant raised his problems relating to the consumption of alcohol was in the context of his fear of arrest upon return because of the summonses and warrant that were found to be forgeries. They were also based on a narrative relating to his interrelationship with the criminal authorities in Iran that the Tribunal failed to accept, on grounds that are not the subject of challenge. The question then becomes whether in the scheme of things the Tribunal failed properly to address a claim either sufficiently articulated or which arose sufficiently clearly on the materials that it was likely that the applicant would re-offend upon return to Iran and face persecution as a result.
On a fair of reading of all of the materials, it is plain that the applicant never did expressly suggest that he faced risk of persecution because if he returned to Iran he would continue to consume alcohol and face persecution as a result. This leaves to one side the earlier finding by the Independent Protection Assessor that such persecution would be as a result of a law of general application in any event.
In my view, it was not unreasonable to address the applicant’s claims as they were put and the gravamen of those complaints was always concentrated on his Arab ethnicity and the resultant associated difficulties. The alcohol-related difficulties were a latecomer to the show and it is clear in my view beyond any question that the applicant never said in terms that he faced persecution because of the likelihood of his re-offending with alcohol.
The question then becomes whether the claim was sufficiently clear on the materials. The reality is that only the most glancing reference was made in the materials and only the smallest emphasis placed by the applicant’s representative upon such a possibility. In all these circumstances, it seems to me that looked at fairly the Tribunal cannot be said to have fallen into jurisdictional error in not seeing a claim advanced on such an oblique basis as being one that clearly arose upon the materials.
It follows therefore the Tribunal did not fall into jurisdictional error in failing to deal with this aspect of the matter and the application must be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 23 November 2016
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