MZYSL v Minister for Immigration
[2012] FMCA 582
•6 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYSL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 582 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A) |
| Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; (2000) 58 ALD 321 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1 S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387; (2004) 206 ALR 242; (2004) 77 ALD 541; 78 ALJR 854 Z v Minister for Immigration and Multicultural Affairs [1998] FCA 1578; (1998) 90 FCR 51; 56 ALD 155 |
| Applicant: | MZYSL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1649 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 29 May 2012 |
| Date of Last Submission: | 29 May 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Mosley of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The amended application filed on 17 April 2012 be dismissed.
The applicant pay the first respondent’s costs fixed at $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1649 of 2011
| MZYSL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks a declaration with respect to recommendations made by a Reviewer under the Migration Act on 6 October 2011.
The applicant arrived at Christmas Island on 26 October 2010 and made an application for refugee status assessment in January 2011. On 17 April 2011 he sought a review by the Reviewer. Whilst the applicant is now an adult, he was a minor at the relevant time. He had attended junior high school to year 9 and was single with no children. It appears that he was born in 1994. The applicant is an Iranian citizen who had lived in Iran until he travelled to Australia. He came without any papers, saying that the people smugglers had advised him to destroy them.
The circumstances that led to the applicant’s claim for refugee status were that he had been in a relationship with a girl who was the daughter of a colonel in Sepah. He and the girl had had sexual intercourse, without having first married. When her father became aware of this, the applicant became fearful for his safety and ran away to his aunts, where he stayed for two months before leaving the country. The applicant gave evidence that a summons had been provided to his brother, which appears to be commencing proceedings against him for having breached the Sharia law with respect to having engaged in sexual intercourse out of wedlock.
The Reviewer raised a number of key issues directly with the applicant’s adviser, as recounted in the decision at paragraph [59]:
[59] The reviewer asked the claimant and his adviser to consider the following information that could be adverse and invited them to respond. These were as follows:
· Country information available to the reviewer suggested that honour killings undertaken in Iran to avenge disgrace brought upon a family were largely targeted at women by relatives and mostly occurred in rural and tribal areas.
· Country information available to the reviewer suggested that any targeting of harm on asylum seekers was restricted to those individuals known to the regime as anti regime activists.
· Would not the claimant, if punished under the provisions of Iran’s Penal code and Shari’a Law for engaging in pre marital sex, be subject to the general application of a law rather than being singled out.
· Was not the claimant’s difficulties with [K’s] father due to what he did [pre marital sexual intercourse] rather than who he was [transgressor of Shari’a law].
The Reviewer recounts the following response from the adviser at paragraph [60]:
[60] After a break in proceedings the claimant’s adviser made a oral submission:
· Honour killings were not exclusive to women.
· The claim pertaining to transgression of Shari’a law was more pressing than the law of general application because the claimant had been targeted on a personal level by a Sepah member. Because of this Sepah connection the claimant won’t be dealt with fairly by the law and he will not be afforded state protection because the harm that is feared is in effect coming from the state itself.
· The claimant is being targeted both for what he did [pre marital sex] and who he is, in this case a member of a lower social class and an orphan. (emphasis added)
The Reviewer traversed country information in some detail, noting the high level of corruption in Iran and the criticisms of Iran’s judiciary for a lack of independence and nepotism. For example, in November 2009 Transparency International ranked Iran 168th in the world corruption ratings out of 180 countries, giving it a corruption perceptions index score of 1.8 out of 10 (10 out of 10 being highly clean and zero out of 10 being high corrupt). The Reviewer also discussed the Iranian penal code and Sharia law, noting:
The Iranian penal code and Shari’a Law
[74] The severity of societal condemnation against pre marital sex in Iran is reflected in the law. Sex outside of marriage is illegal. Punishment for pre marital sex is codified in Book 11 of Hodoud [Shari’a based punishments] of the Iran Penal code.
Article 63 – Adultery is defined as the intercourse between the man and a woman whose Intercourse is inherently forbidden “haraam”, even if it is from behind, other than those case where the person has had a doubt.
Article 64 – Adultery is punished when the adulterer is mature (age 15 for male and 9 for female), sane, and acting by free will and is also aware of the offence and its punishment.
Article 88. The adultery punishment for a man or woman who not the marriage bound conditions [is unmarried] is one hundred lashes.
[75] Individual judgments in criminal matters are independent and do not exercise considerable discretion in the administration of justice. This can make outcomes highly unpredictable and often arbitrary. (Women’s Forum against Fundamentalism in Iran 2005, ‘IRAN: Official Laws against Women in Iran’ – Attachment1) (emphasis added)
The Reviewer accepted the applicant’s version of his relationship with the girl (see paragraph [95]) and that his brother had received a summons notice addressed to him (see paragraph [107]). The Reviewer also accepted the claims with respect to the girl’s father (see paragraph [108]).
With respect to premarital sex, the reviewer found:
[110] Pre marital sex in Iran remains a social taboo even if attitudes to it in private amongst young people are changing. There is somewhat of a double standard, with pre marital sex among young men no longer considered out of bounds. However for women virginity before marriage is still seen as a moral prerequisite. Under Shari’a Law judges charged with the task of implementing punishment for pre marital sex are given considerable discretionary powers that enable them to make findings without evidentiary material. This is widely seen as increasing the ability of state authorities to bring forward successful prosecution and punishment for transgressions of the moral code. (emphasis added)
After recounting the role of Sepah in Iran as a large paramilitary organisation that was formed, in part, to be the guardians of an Islamic revolution, the decision-maker concluded:
…It is understandable in these circumstances that the claimant would have a subjective fear of [the girl’s] father if he were to be confronted by him. (See paragraph [113])
The Reviewer then goes on to squarely address the extent of the risk that the applicant has for reprisals from the girl’s father saying:
[114] The reviewer finds it an indeterminable exercise to infer that the intentions of [the girl’s] father are malicious solely on the basis that he is a member of Sepah. Indeed from the country information considered the reviewer has concluded it more likely that [the girl’s] father, as a ranking officer in Sepah, could be seen as having more to gain by subjecting the claimant to the severity of Shari’a law as a display of Sepah’s [and his own] commitment to Iran’s Shari’a Law principles.
[115] Whilst past persecution is not always a guide to whether or not there is a real chance that persecution will occur in the reasonably foreseeable future it does provide guidance. The reviewer has considered the claimant’s evidence that he spent two months at his Aunt’s. The reviewer considers that on the country information assessed the reach and scope of Sepah is such that had [the girl’s] father wanted to drack down the claimant in the two months he was at his Aunt’s it is reasonable to conclude he could have done so.
[116] The questioning of the claimant’s brother by police on two occasions and the serving of a summons for the claimant to attend court indicates to the reviewer that authorities intend to pursue the claimant through the judicial system.
[117] On the country information considered, if it were to be accepted that corrupt police or judicial officials were inclined to deny or withhold state protection then the reviewer believes this would be motivated by financial gain, for example, by accepting a bribe rather than as a result of membership of the particular group, ‘Transgressors of Shari’a Law’.
[118] The reviewer does not accept on the evidence considered that the claimant will suffer serious harm from [the girl’s] father. (emphasis added)
The decision-maker specifically acknowledged:
[121] The punishment for unmarried people who have sex is flogging with the dispensing of one hundred lashes. This is a harsh and brutal punishment by Western standards and the claimant’s reluctance to submit to this is understandable.
Ultimately, the reviewer concluded:
[125] The reviewer does not accept that punishment for pre marital sex constitutes persecution for a convention reasons as the reviewer is satisfied the law giving rise to this punishment is generally applied. (emphasis added)
…
Conclusion
[132] The reviewer does not accept on the evidence considered that there is an objective basis for the claimant’s fear of serious harm from [the girl’s] father.
[133] The reviewer has given careful consideration to the evidence and material available before him and is not satisfied that the claimant faces a real chance of harm for any reason.
[134] The reviewer has had regard to the claim that if the claimant were to alert authorities to his fears regarding [the girl’s] father he would be punished under the laws applying to persons found to have engaged in pre marital sex. The reviewer has found that these laws are ones of general application, and the claimant would not be the subject of their discriminatory application for a Convention reason.
Ground 1
The applicant only pursued ground 1(a), which was in the following terms:
The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer did not apply correct legal principles in determining that the applicant was not a person to whom Australia has obligations under the Refugee Convention.
PARTICULARS
a) The recommendation held that punishment for premarital sex would not be persecution for a Convention reason, because it is a law of general application, and has not been enacted or implemented to target a particular social group;
The applicant argued that, in practice, the Sharia law prohibiting premarital sex was implemented in an ad hoc way against men and rarely enforced. As a result, it was argued, that subjecting the applicant to this law made its application subjective. Further, the applicant argued that if the law were applied randomly or arbitrarily, it was not “appropriate and adapted” to its objective. He identified the objective of the law as being the upholding of social and religious standards.
In this regard the applicant relied upon the comments of the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; (2000) 58 ALD 321 which acknowledges that selective enforcement of a law of general application may result in discrimination. Similar acknowledgement of this general proposition appears in Z v Minister for Immigration and Multicultural Affairs [1998] FCA 1578; (1998) 90 FCR 51; 56 ALD 155. The most significant example occurs in S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387; (2004) 206 ALR 242; (2004) 77 ALD 541; 78 ALJR 854 in the High Court where a very young man was fleeing the Taliban’s conscription laws.
The applicant also developed an argument that the application of the law was ad hoc and inappropriate as a result of the basis upon which the Sharia law judges were found to have operated in Iran, as a result of the findings of the reviewer that:
[110] …Under Sharia law judges charged with the task of implementing punishment for premarital sex are given considerable discretionary powers that enable them to make findings without evidentiary material…
The most significant difficulty with this ground, for the applicant, is that the Reviewer did not accept that the application or implementation of the law was selective, ad hoc or random, nor that it was implemented in a way which targets particular groups, or that it would be implemented in a manner which would target the claimant for any Convention reason. The applicant argued at some length that the terms of paragraph [110] indicated that there was an acceptable proposition that the law was not uniformly applied, however it appears from a careful reading of the paragraph that it outlines the fact that social mores are changing in Iran, and some criticisms of the Sharia law judges, but does not include a finding of selective enforcement of the law. Paragraph [124] (set out above) makes specific findings that the law is uniformly applied. On the findings of the Reviewer this is a law of general application as described in S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387; (2004) 206 ALR 242; (2004) 77 ALD 541; 78 ALJR 854.
Nor could it be said that this was not a law for a real social purpose within the country. The extent of sexual conduct of citizens outside of wedlock has been the subject of social control and legislation in most countries of the world at some point, indeed for girls at the same age as that of the girl in this case (at the relevant time) there remain laws, even in Australia, that would prohibit sexual intercourse. The fact that the strictures of the law in Iran are far greater than those that are generally accepted in Australia does not make it a law for an improper purpose or a law to effect persecution for a Convention-based reason.
Whilst there may be real difficulties with respect to a legal system which operated in the way the Reviewer concluded the Sharia law judges operate in Iran, it nonetheless remains a legal system of judges determining the cases that come before them. There were no findings that the courts made determinations to effect ulterior motives, other than enforcement of this particular law (save with respect to corruption relating to money matters, which are not involved in this case). It is also noted in this case that there is, it seems, no question that the applicant has breached the relevant law.
The applicant’s counsel sought to class the applicant as being within a social group of persons who had transgressed Sharia law. It does not appear to me that this is a social group within the meaning of the Convention. There is nothing to show that the group would be recognised as a specific social group within society, nor to connect the members save for their transgression of a law of general application. A similar difficulty would arise if one cast the applicant as being a member of a social group of those who had offended members of Sepah.
What is left in this case is a case about a law of general application that imposes a penalty which, by Australian standards, would be considered cruel and unusual. Whilst this may found an application to the Minister for the exercise of a general discretion, it does not, of itself, fall within the Convention and provide a foundation for a Reviewer to make a finding that Australia has a protection obligation to the applicant.
In the circumstances, the applicant does not succeed on this ground.
Ground 2
The applicant’s counsel did not pursue ground 2 which is a claim that that Tribunal’s findings were irrational or illogical. It was an appropriate course to abandon this ground, given the nature of the findings of the Tribunal.
Ground 3
Ground 3 provided:
The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Reviewer did not apply correct legal principles in determining that the applicant was not a person to whom Australia has obligations under the Refugees Convention.
PARTICULARS
(a) The Independent Merits Reviewer considered at paragraphs [114] to [118] whether the Applicant had a “well founded” fear that [the girl’s] father and/or Sepah would commit an act of personal revenge against the Applicant.
(b) At paragraph [114] in considering whether the fear was “well-founded” the IMR considered it “more likely that [the girl’s] father would have more to gain by subjecting the Applicant to the Shari’a Law process than an act of personal revenge.
(c) At paragraph [118] the IMR stated he “does not accept on the evidence considered that the claimant will suffer serious harm from [the girl’s] father”.
(d) In doing so, rather then determining whether there was a “real chance” of [the girl’s] father committing an act of personal revenge on the Applicant, the IMR considered what the “more likely” consequence would be para [114] or whether the Applicant “would” suffer serious harm at para [118]
It appears clear that the Reviewer accepted that the applicant held a subjective fear of the girl’s father.
This ground appears to turn largely on the reading of paragraph [118] which amounts to a finding that the Reviewer did not accept that the applicant would suffer serious harm, rather than a finding as to whether there was a real risk that the applicant would suffer serious harm. However, the findings in paragraphs [132] to [134] appear to make it clear that the Tribunal applied the appropriate test. When reading the decision as a whole, it appears clear that the Tribunal member did ultimately make the findings on the appropriate standard, after having carefully considered the extent of the risk of harm from the girl’s father (particular bearing in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1).
In any event, it is difficult to see how the applicant could fall within a particular social group that would be covered by the Convention with respect to any persecution that came from the girl’s father who, it seems clear, would be persecuting him on the basis of being an angry father seeking out the young man who first had intercourse with his teenage daughter.
In the circumstances I am not persuaded that the applicant has made out a ground in this regard.
The applicant’s counsel raised at the end of the hearing section 36(2)(aa) and the definition of section 36(2A) which may have application in a case such as this. However, those provisions only commenced after the determination by the Reviewer in this case and therefore are not able to be considered in these proceedings, in the absence of any transitional provisions, none of which could be pointed to by the applicant. This may also provide a basis for an application to the Minister for the application of a general discretion.
In all of the circumstances, I therefore dismiss the application.
The parties have agreed that the costs ought to follow the event as assessed, on the Federal Magistrates Court’s scale. I therefore order that the applicant pay the first respondent’s costs fixed at $6,471.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 6 July 2012
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