MZYRP v Minister for Immigration
[2012] FMCA 266
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 266 |
| MIGRATION – Application for judicial review of decision by Independent Merits Reviewer – whether additional sub-part of grounds advanced by applicant addressed by Reviewer – whether finding that the applicant was not stateless was open on the evidence. |
| Migration Act 1958 |
| Applicant: | MZYRP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | C PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1448 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 24 February 2012 |
| Date of Last Submission: | 24 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Szydzik |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr. R. Knowles |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1448 of 2011
| MZYRP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| C PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This application seeks review of a decision of an Independent Merits Reviewer (“Reviewer”) dated 22 July 2011. The Reviewer found that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention.
Although the applicant advanced a number of bases upon which he might face persecution if returned to Iran, the two primary contentions he made were that he was at risk of persecution on the grounds of his ethnicity (that of a Faili Kurd) and as a stateless person.
The Reviewer did not accept that the applicant was stateless in Iran and did not accept that he faced persecution as a Faili Kurd.
The applicant advanced two grounds in support of the review. The first was that the Reviewer failed to consider an alternative basis advanced by the applicant namely, that he faced discrimination and persecution, not only as a Faili Kurd in particular, but as Kurd more generally. The second was that there was no evidence upon which the Reviewer could find that the applicant was not stateless.
For the reasons that follow, I do not think either of these assertions is correct and it follows that the application must be dismissed.
It should be noted that the issue of an extension of time was raised in the application but was not the subject of any submissions. Following recent authority of the Full Court of the Federal Court it is of no relevance in any event.
The claim that the Reviewer failed to consider the question of the applicant’s Kurdish ethnicity
The claims that the applicant might suffer discrimination on the basis of being Kurdish are recorded, as counsel for the applicant submitted, at CB56, 80-81 and 133A. It is important to look at what the applicant actually said.
At paragraph 6, CB56, in part of his statement the applicant stated:
“6. I left Iran because my life as a Fail Kurd was extremely difficult and I found it hard to survive. It was so difficult to provide for the family. I lacked proper identification, legal rights, and a place in society. I was exploited and mistreated because I am a Kurd.”
It should be noted that the applicant had previously stated in paragraph 1 on the same page:
“I am a Faili Kurd who was born in Iran. I do not have the right to citizenship in any country.”
Read fairly, those extracts do not, in my mind, articulate two separate bases of claimed fear of persecution.
The second extract, at pages CB80-81, is part of the submissions sent on the applicant’s behalf by his legal advisers. These, likewise, referred to Faili Kurdish refugees. At CB80, having set out persecution claims made by Faili Kurds, the submission reads:
“All our clients have attributed this treatment to their race (Faili Kurd/Kurdish ethnicity) and their perceived nationality (as non‑Iranian and in many cases Iraqi). The issue of Kurdish ethnicity is inextricably linked to the political question of Kurdish separatism. The distrust of Kurdish intentions and the nervousness of the Iranian government surrounding the question of separatism makes all Kurds in Iran vulnerable to attack because as a people, their political intentions are distrusted (poor treatment is common of Kurdish and other minorities who are seen as desiring secession from Iran). …”
This position is further elaborated at CB81 and following, but it should be noted that taken fairly, the country information referred to appears to conflate being Kurdish and being a Faili Kurd. Further, it is clear that the treatment set out broadly fits the description I have earlier referred to at CB80 namely, mistreatment on the grounds of perceived secessionist or other political views.
At CB82, the submission continues:
“The Kurdish experience in Iran is exacerbated by the general Kurdish political landscape in the region. Various Kurdish groups, including the Faili Kurds, have become particularly active the politics of the Kurdish autonomous region in Iraq and Iraqi politics in general. …”
Once again, read fairly, the material would suggest to me that while claims of persecution and/or discrimination undergone by Kurds is set out in general, the Faili Kurd aspect of it is merely a sub-part of the overall picture.
At CB133A, the applicant’s submissions to the Reviewer state that:
“It is supported across a number of sources that Kurds in general face state-imposed discrimination in Iran. This has largely arisen through state suspicion of Kurds arising as a result of the activities of pro-Kurdish groups pushing for independence. The consequences of such activities have resulted in Kurds being generally perceived as anti‑government or supportive of separatist ideologies. Faili Kurds are in a particularly vulnerable to state-imposed discrimination as a result of their status in the country as refugees and their Kurdish identity.”
Once again, the issue of being Kurdish, and of being a Faili Kurd, seem to me to flow from exactly the same considerations and the Faili Kurd aspect of the matter merely accentuates the difficulties faced.
It is certainly the case that the Reviewer addressed the applicant’s claims on the basis that he was a Faili Kurd. In the end, the critical issue for the Reviewer appears to have been the fact that he did not accept that the applicant was stateless. At paragraph 106 (CB179) the Reviewer said:
“In sum, based on the evidence that I do accept, I am not satisfied that the claimant had poor, illegal employment, for scant income. I do not accept that the claimant led the disadvantaged life that he claims. ... Based upon country information and in the light of the foregoing, I accept the claimant resided in Iran but do not accept that he resided in Iran as a non‑citizen, or that in Iran he risks deportation as a non‑citizen.”
At paragraph 109, the Reviewer continued:
“Whilst the claimant is a Kurd, he has not claimed, despite ample opportunity, to have undertaken any anti‑regime activities in or outside Iran. ... However, in respect of the claimant, he has not undertaken any activities in support of Kurdish separatism or that suggest an imputed support for Kurdish separatism at all. I do not accept that the mere fact of being a Faili Kurd means that he has imputed anti‑regime political opinion. He has no political profile based on his ethnicity at all.”
In my opinion, the way in which the applicant advanced his case did not isolate being Kurdish as some distinct different social group to being a Faili Kurd, nor was it asserted that as a Kurd he would face discrimination of a sort not otherwise identified as being applicable to a Faili Kurd.
In my opinion, this criticism of the Reviewer’s decision cannot be sustained.
Ground 2: Absence of evidence
I accept the submission of the first respondent that in order to make out a finding to support this criticism, in a judicial review proceeding such as this, the applicant needs to show that there was no evidence at all upon which the Reviewer could have come to the conclusions that he did. In oral submissions, counsel for the applicant made it clear that this was indeed the submission made. It was submitted that the finding that the applicant and his family had been permitted to live in the premises where they did live for a long period of time did not give rise to legal title to the premises. The finding made by the Reviewer was said to be only that the applicant and his parents and family had a right to live there. It was submitted that this finding was inconsistent with the country information and that there was no evidence to support it.
It was submitted by the applicant, correctly enough in my view, that this was the central point in determining the applicant was not a citizen.
I accept the submissions of the first respondent at paragraphs 5.21-5.23 of the written submissions that it was at least open to the Reviewer to find that the ability of the applicant’s family to occupy the same premises over a very lengthy period of time gave rise to some sort of property rights which were not available to non‑citizens. There is nothing illogical in this conclusion, and in my opinion, the finding the Reviewer made was open to him on the materials. It follows that this ground is also not made out.
Conclusion
Since both of the grounds advanced by the applicant are not sustained, it follows that the application must be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 5 April 2012
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