MZYRK v Minister for Immigration
[2012] FMCA 284
•17 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 284 |
| MIGRATION – Independent Merits Reviewer – procedural fairness – particular social group – jurisdictional error identified. |
| Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381; [1997] HCA 4 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25 Applicant S469 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 214 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 119 ALD 1; (2011) 273 ALR 223; [2011] HCA 1 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; [2006] HCA 63 |
| Applicant: | MZYRK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | W. BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File number: | MLG 1412 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 29 March 2012 |
| Date of last submission: | 29 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Emily Latif |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Warren S. Mosley |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
THE COURT DECLARES THAT:
In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicant procedural fairness by not alerting the applicant to a critical issue which was not obvious on the known material.
THE COURT ORDERS THAT:
The first respondent by himself, his servants and agents be restrained from relying or acting upon the recommendation of the second respondent.
The first respondent pay the applicant’s costs fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1412 of 2011
| MZYRK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| W. BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a declaration and injunction relating to a recommendation made by an Independent Merits Reviewer.
The applicant is a citizen of Iran. He claimed to fear persecution on the grounds of his political opinion, being opposition to the government of Iran. He said:
a)he had distributed political brochures shortly before the 2009 election;
b)he began protesting against the government after the 2009 election;
c)at a protest a few days after the election, he was caught by the Basiji, hit with a baton, punched, kicked, sprayed with tear gas and arrested;
d)he was able to escape;
e)in January or February 2010, one of his friends with whom he was protesting, and the friend’s wife, were taken, presumably by the Basiji;
f)the applicant became frightened he would be identified and hanged;
g)he went into hiding;
h)the Basiji twice went to his house looking for him;
i)his friend remained in jail, and had been tortured and told he would be hanged;
j)the applicant feared that his friend would disclose the applicant’s identity under torture and the applicant would be arrested;
k)country information showed that failed asylum seekers returned to Iran had been detained and tortured on the basis that they had made refugee claims; and
l)failed asylum seekers were a cognisable group known to the Iranian authorities because of their network of informants and because of the Iranian immigration procedures.
The IMR’s recommendation
Among other things, the IMR found that:
a)the applicant had handed out election material for an opposition candidate before the 2009 election;
b)the applicant had protested against the government once following the election in 2009;
c)there was not a real chance that the applicant would be involved in political activities in the future;
d)
the applicant did not have a well-founded fear based on his
non-existent, prospective, political activities;
e)there is no “unifying element that sets [failed asylum seekers] apart from other members of society”;
f)failed asylum seekers therefore do not constitute a particular social group; and
g)the applicant may well be questioned and monitored on his return to Iran but such behaviour would not constitute persecution.
Ground 1.a: procedural fairness: no future political activity
The first aspect of the first ground of review in the amended application filed on 24 February 2012 is:
The second respondent failed to accord the applicant procedural fairness.
Particulars
The second respondent found there was “no real chance [the applicant] would be involved in political activities in the reasonably foreseeable future if he returned to Iran” at CB 186 [84], without giving the applicant an opportunity to be heard.
The applicant relied on an affidavit affirmed by his solicitor on
24 February 2012. The solicitor said that he had been informed by the applicant and believed that, if the applicant had been asked, he would have said that he would definitely participate in protests against the current government if he returned to Iran.
The applicant argued that the circumstance of this case gave rise to a requirement for the IMR to raise with the applicant the issue particularised above, namely, what political activity the applicant would engage in if he returned to Iran.
The first respondent noted that decision makers are not required to disclose their thinking processes or proposed conclusions. Nor are they required to disclose adverse conclusions that are not obvious or reasonably to be expected. As the High Court said in Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 119 ALD 1; (2011) 273 ALR 223; [2011] HCA 1 at [9]:
… Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. …
The first respondent argued that the IMR’s adverse conclusion on what political activity the applicant would engage in if he returned to Iran was obvious and was not critical to the recommendation.
As to whether the adverse conclusion on the applicant’s prospective political activity in Iran was obvious, the starting point is the issues on which the delegate’s decision turned. The High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; [2006] HCA 63:
35.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
36.It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
37.That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
38.When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously ... open on the known material", the focus of the contention must fall upon what was "obviously ... open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review". It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously ... open on the known material".
39.If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.
40.More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a "review", and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review. (emphases in bold added, citations omitted)
In the present case, the delegate largely accepted the applicant’s account. Particularly, the delegate accepted that the applicant had participated in two protests. Beyond that, the delegate’s decision becomes confusing. The delegate found at CB114.8 that the applicant had not developed a profile of sufficient magnitude that he had become or was likely to be a person of interest to the authorities. However, at CB114.10, the delegate said:
Acceptance of the claimant’s account includes acceptance of the fact that he was still a person of interest to State authorities rising (sic) from his involvement and his friends’ involvement with the State authorities (primarily in his claims, the Basij). (emphasis added)
The delegate went on to find that the harm feared by the applicant did not amount to persecution. The matters the delegate said he took into account in reaching that conclusion did not go to the question of whether the harm the applicant feared amounted to persecution. The delegate’s conclusion was unusual, given that the applicant had expressly said that he feared being arrested by the Basiji and implicitly said that he feared being tortured and hanged.
In any event, it is clear that the delegate did not reject the applicant’s claims on the grounds that the applicant would not participate in any political activities in the future.
The first respondent argued that the applicant:
a)had only participated in one protest in the past; and
b)his political activity had been only minor; therefore
c)it was open to the IMR to make the obvious finding that the applicant would not participate in any political activities in the future.
The question in determining whether procedural fairness has been afforded is whether the adverse finding would have been obvious to the applicant. The applicant did not know that the IMR, unlike the delegate, would find that the applicant had participated in only one protest. Unless he had been told otherwise, the applicant would have reasonably been under the impression that the IMR, like the delegate, would accept his claim to have participated in at least two protests in a fairly short space of time. In these circumstances, it does not seem to me to be at all obvious that the IMR would find that the applicant would not participate in any political activity at all in the future.
There was no suggestion by the first respondent that the IMR had in anyway alerted the applicant to the possibility that his claim would be rejected on the basis that he would not participate in political activities in the future. Consequently, it is necessary to consider whether the relevant finding was critical to the IMR’s recommendation.
The first respondent said that the relevant finding was not critical to the decision because there was an alternative basis for the decision. The IMR said at paragraph 84 of the recommendation:
… His involvement in June 2009 was very minor. The reviewer finds that there is no real chance that he would be involved in political activities in the reasonable (sic) foreseeable future if he returned to Iran and the reviewer finds he does not have a well-founded fear of persecution on account of future political activities that he might be involved in.
The IMR did not articulate what level of political activity the applicant “might be involved in” in the future. Rationally, the IMR could not have meant that, no matter how extensive the applicant’s prospective political activities, he would not face a real chance of persecution. The only reasonable meaning to give the sentences extracted above from paragraph 85 of the recommendation is:
The applicant is very unlikely to engage in political activities in the future, but, even if he did, they would be so minor that he would not face a real chance of persecution because of them.
That is, the IMR’s findings were that the applicant’s future political activities would be non-existent or trifling. Those findings were critical to the ultimate decision. To the extent that the finding that the applicant’s future political activities would be trifling was an alternative to the finding that the applicant’s future political activities would be non-existent, the applicant extended the particulars of ground 1.a to include the alternative ground.
The delegate’s decision did not alert the applicant to the possibility that his future political activities might be found to be non-existent or trifling. On the contrary, the delegate had found that the applicant “was still a person of interest to the State authorities”.
The findings that the applicant’s future political activity would be non-existent or trifling were not obvious and were critical to the decision that the IMR made. Consequently, it was necessary for the IMR to alert the applicant that those matters were in issue and give him an opportunity to respond. The IMR did not do so, and thus fell into jurisdictional error. Ground 1.a is made out.
Ground 1.b: procedural fairness: no anti-regime activities
The second aspect of the first ground of review in the amended application filed on 24 February 2012 is:
The second respondent failed to accord the applicant procedural fairness.
Particulars
The second respondent found any monitoring of the applicant’s activities whilst in Australia would reveal he had not been involved in any anti-regime activities in Australia at CB 187 [90], without giving the applicant an opportunity to be heard.
The applicant relied on an affidavit affirmed by his solicitor on 24 February 2012. The solicitor said he had been informed by the applicant and believed that, if the applicant had been asked, he would have said that he has told other detainees that he has a “political case” for asylum.
There was country information to the effect that:
a)Iran tracks Iranians all around the world through social media sites and a network of informants; and
b)some returnees had been monitored, interrogated, detained and physically harmed.
The delegate did not address the issue of asylum seekers being monitored in Australia, presumably because the relevant claim had not been made at that stage. Consequently, to the extent that the finding was critical to the ultimate decision and was not obvious, the IMR would have been required to alert the applicant to the issue.
However, the complication in this case is that the applicant did not claim to have been involved in any particular anti-regime activities in Australia. His claim was simply that, as a failed asylum seeker, he would face persecution in Iran.
The IMR did not accept that, simply as a failed asylum seeker, the applicant would face a real chance of persecution. The IMR’s process of reasoning seems to have been:
a)there is a real chance that asylum seekers who return to Iran will be questioned and monitored;
b)some asylum seekers who return to Iran will be ill-treated;
c)the ones who are ill-treated are not those who are simply returned asylum seekers but those who have been found to have engaged in anti-regime activities;
d)the applicant did not claim to have engaged in anti-regime activities in Australia;
e)therefore, he did not engage in anti-regime activities in Australia;
f)there is a real chance the applicant will be questioned and monitored as a returned asylum seeker, but not ill-treated, because he has not engaged in anti-government activities in Australia.
It seems to me to be obvious that, if an applicant does not claim to have engaged in a certain kind of conduct, a decision maker may well find that he has not engaged in that kind of conduct. Consequently, the requirement to alert the applicant to the issue does not arise.
In the present case, the applicant did not claim before the IMR that he had engaged in anti-regime activities in Australia. (It is immaterial in the present context that he says to this court that he conveyed to people in detention that he was anti-regime.) Consequently, it was obvious, in the relevant sense, that the IMR might find that the applicant had not engaged in anti-regime activities in Australia. There was no requirement for the IMR to alert the applicant to that issue. The IMR did not have to make out the applicant’s case for him, and did not have to ask him questions that would enable him to make a claim that he had not raised. Ground 1.b is not made out.
Ground 2: particular social group: misunderstanding test
The second ground of review in the amended application filed on 24 February 2012 is:
The second respondent constructively failed to exercise its jurisdiction by applying the wrong test, misconceiving its duty, failing to apply itself to the real question to be decided or misunderstanding the nature of the opinion it was required to form with respect to “particular social group”.
Particulars
The second respondent found failed asylum seekers who return to Iran from abroad do not constitute a particular social group for the purpose of the Convention because “there is not a unifying element that sets them apart from others in Iranian society”: CB 187 [88]. The second respondent thereby imposed a gloss on the task of assessing whether a “particular social group” exists.
The IMR said at paragraph 88 of its recommendation:
The factor that failed asylum seekers have in common is that they have sought asylum abroad. There may be many differing reasons why they have sought asylum. They may voluntarily repatriate or they may be forcibly returned. The reviewer finds that they are a disparate individuals and that there is not a unifying element that sets them apart from others in Iranian society and that this does not amount to a particular social group within the meaning the Convention. Further the essential or significant reason for the persecution feared is not membership of this postulated group but rather being imputed with an anti-government opinion of being a traitor. The reviewer finds that the claimant does not have well-founded fear of persecution for reasons of his membership of a particular social group.
The applicant argued that there was no jurisprudential warrant for imposing a “unifying element test” in cases concerning particular social groups. The applicant argued that the enquiry about whether a particular social group exists requires a multi-factored approach rather than a single factor approach, such as looking for a unifying element.
The first respondent relied on well-established authority. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381; [1997] HCA 4, Dawson J stated at 241:
The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.
That passage was cited without qualification by Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; (2004) 77 ALD 541; (2004) 206 ALR 242; (2004) 78 ALJR 854; [2004] HCA 25 at 397.
In Applicant A, McHugh J said at 264:
The use of [the term membership] in conjunction with "particular social group" connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them. If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group. Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group.
In Applicant S, McHugh J said at [69]:
Thus, although the group must be a cognisable group within the society, it is not necessary that it be recognised generally within the society as a collection of individuals which constitutes a group that is set apart from the rest of the community. To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle. As I have indicated, it is not necessary that the persecutor or persecutors actually perceive the group as constituting "a particular social group". It is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a "uniting" feature or attribute, and the persons in that class are cognisable objectively as a particular social group.
The first respondent also relied on Applicant S469 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 214 at [3] where the Full Federal Court said:
The Tribunal was not satisfied that females in Thailand constitute a particular social group. In its view all Thai women could not be said to have a unity of characteristics, attributes, activities, beliefs, interests or goals which made them a cognisable group within Thai society. This conclusion is not in conflict with the decision of the High Court in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 at 252, [36].
In view of the authority set out above, I do not accept that the IMR misunderstood the test or applied a gloss on the test for the existence of a particular social group. There is no material distinction between the concepts of “unifying” and “uniting”. It seems to me that there is ample jurisprudential warrant for the IMR’s requirement of a unifying element in any postulated particular social group. Applicant A and Applicant S make it clear that the members of a postulated particular social group must have some sort of unifying characteristic, attribute or such like.
In any event, as the first respondent submitted, there was an alternative basis for the IMR’s conclusion that the applicant did not have a
well-founded fear of persecution by reason of his membership of a particular social group. That alternative basis was the IMR’s finding that the essential and significant reason for any persecution of the postulated social group was their political opinion, rather than the fact that they were returned asylum seekers as such.
The IMR separately rejected the applicant’s claims based on political opinion. Consequently, any error in relation to the IMR’s understanding of the test for the existence of a particular social group could not have made a difference to the decision.
The first respondent also noted that there is a good deal of authority that there is no remediable error where a decision maker fails to consider a particular social group claim, but has addressed the substantive issues under the rubric of another Convention ground.[1] The applicant argued these cases did not apply where, as here, the particular social group claim and the political opinion claim did not precisely coincide. I accept that argument as a general proposition. However, I am unable to see how, in the context of the present case, the proposed particular social group claim went beyond the political opinion claim.
[1] Iyer v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 9, [2001] FCA 929 at [67]; MZWTH v Minister for Immigration and Multicultural Affairs [2006] FCA 997 at [13]; Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820 at [24] and [26]; MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [21].
Ground 2 is not made out.
Ground 3: particular social group: no evidence
The third ground of review in the amended application filed on 24 February 2012 is:
The second respondent made a finding in the absence of evidence.
Particulars
The second respondent found failed asylum seekers returning to Iran lacked a unifying element that sets them apart from others in Iranian society at CB 187 [88] in circumstances where the country information, evidence and argument provided by the applicant (and not rejected by the second respondent) tended to suggest failed asylum seekers are cognisable within their society: see e.g., CB 127-130.
The applicant relied on SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231. The Full Court of the Federal Court said in that case:
19.… If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–7; 94 ALR 11 at 37–8; 21 ALD 1 at 23–4. …
20.On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a “jurisdictional fact”, there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6; 93 ALR 1 at 24–5. It is for the tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a “bright line”, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; 136 ALR 481 at 490–1; 41 ALD 1 at 9.
21.In considering the argument now put it must be remembered that the tribunal is not limited to the evidence that is formally put before it: s 353(2) of the Act. Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the tribunal can inform itself as it thinks fit, including acting on information that is “public”. Nor should it be forgotten in this context that in the course of their duties tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information.
It is, of course, open to the IMR to prefer some evidence over other evidence. As SFGB makes clear, the IMR was able to take into account its own understanding of asylum claimants to form the view that returned asylum seekers are disparate individuals that do not share a unifying element. This ground is not made out.
Conclusion
As one of the applicant’s grounds has been made out, the application must be allowed. There will be a declaration and injunction accordingly.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 17 April 2012
0
16
0