MZYTD v Minister for Immigration - [2012] FMCA 590

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYTD v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 590

MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed.

Migration Act 1958 (Cth)

Applicant:

MZYTD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

THE INDEPENDENT MERITS REVIEWER

File Number:

MLG 1773 of 2011

Judgment of:

Riethmuller FM

Hearing date:

29 May 2012

Date of Last Submission:

22 June 2012

Delivered at:

Melbourne

Delivered on:

6 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Robinson of Counsel

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Ms Rayment

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 15 May 2012 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1773 of 2011

MZYTD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant in this matter arrived in Australia on 18 August 2010, arriving on a boat from Indonesia. The applicant had flown to Indonesia from Iran.
Following the applicant's arrival in Australia he received a negative refugee status assessment on 28 January 2011 and on 15 February 2011 sought a review. The review decision was made on 13 October 2011. The applicant now seeks judicial review of the review decision.
The applicant's claims are based on his claim that he was a former taxi driver for Sepah, a paramilitary organisation in Iran. He said that he commenced working for the taxi company without realising that it was controlled by Sepah, but on becoming aware of this he told his employers that he did not wish to work for them because he believed that their work was inhumane and anti-human. Despite a friend attempting to convince him to stay he took 48 hours leave and then travelled to a small village where he waited 10 to 12 days before travelling overseas.
The applicant fears persecution on the basis of being a former employee or worker of Sepah, and also on the basis of being a returned asylum seeker.
The applicant makes no challenge to the findings against him on the basis that he is a failed asylum seeker.
With respect to his claims to have been a former driver for Sepah the Tribunal made a series of findings whereby it did not accept his evidence. Whilst the Tribunal accepted that it was plausible that there may be a taxi company controlled by Sepah it did not accept that the applicant was employed by such a company as it found his evidence unconvincing. No documentary evidence was able to be provided, despite being asked for (see paragraph [65]).
The Tribunal also concluded that it did not accept that the applicant was a member of a particular social group, being people who worked previously for the Sepah, nor that he would be imputed with political opinion for refusing to work for Sepah as someone against the regime (see paragraph [66]). As a result of these findings the Reviewer did not accept that he obtained 48 hours leave and then travelled to a small village for 10 to 12 days before travelling overseas (see paragraph [67]).
With respect to leaving the country the Reviewer did not accept the applicant's evidence, noting that he appeared to have no difficulty leaving through Iran's main airport travelling on his own passport despite country information showing that there are watch lists or screening processes available. As a result the Reviewer did not accept that he was of interest to authorities nor that he was placed on a black list at the airport.
These findings are findings on credibility, supported by reasons given by the Tribunal. For example, some of the evidence was new evidence given in response to questioning by the Tribunal which gave the impression of being made up to overcome problems raised by the Reviewer (see paragraph [68]). At paragraph [26] the Reviewer outlines the queries raised with the applicant about the boldness of challenging Sepah in the workplace, the plan to leave the country so long after the 48 hours leave and it would have been obvious to Sepah that he was not returning (see paragraph [30]), contradictions in his version of events with respect to this time period (see paragraph [31]), the improbability of the method by which he left the country if Sepah was seeking him, (particularly of claims that a warrant had been issued to search his home) (see paragraph [32]).
Notably the applicant was concerned that he would be arrested at the airport, put in prison and killed (see paragraph [40]), yet had explained that he may have been able to pass through the airport as he was not dangerous and was not a person Sepah were after (see paragraph [33]).
It is clear that the Reviewer, based upon the evidence before her, wholly rejected the credibility of the applicant. In these circumstances the applicant's case before me appears to effectively seek a merits review. The applicant, however, sought to class the case as being one where the Reviewer had failed to ask the right question in determining whether or not there was a real risk to the applicant. In this regard the applicant's counsel argued that the findings by the Tribunal, not using stronger terms such as reject, but rather "he's not satisfied" and "does not accept", was indicative of the Reviewer being unsure, rather than entirely rejecting the applicant's account. In these circumstances it was argued that the Reviewer ought to have assessed the risk to the applicant and the possibility of harm or persecution in the future.
It appears to me that this is a meticulous reading of the reasons that attempts to place too much weight upon language that is cast in terms to politely express a rejection of the applicant's credit. There is no question, when one reads the decision as a whole, that the Reviewer carefully assessed the applicant's credibility and rejected his evidence entirely (save as to the most mundane aspects of his circumstances and travel to Australia). Having rejected the applicant's evidence it is difficult to determine how the Reviewer could have gone on to consider the risk to the applicant, given that there was no other evidence to suggest any risk to the applicant.
The case run by the applicant appears to me to be unrealistic on the findings provided.
The applicant also argued that the use of country information was inappropriate as the Reviewer allegedly failed to carefully ascertain the specifics of this case that were relevant to the country information. In this case the main use of the country information that was pointed to was the airport screening process or watch list. The applicant argued that the country information referred to people who have committed crimes, and "other relevant reasons" for which they were not allowed to leave the country.
It was argued that the Reviewer had not specifically addressed whether the cases brought by the applicant fall within other relevant reasons. It seems to me to be implicit that if an organisation such as Sepah is seeking the applicant and he is at risk of real harm that this would be a relevant reason that they would seek to stop him at the airport. I am not persuaded that the Reviewer has misused the country information in the context of this particular case. Whilst the Reviewer was not bound to use the country information for the conclusions reached it was certainly open to the Reviewer to do so.
In the circumstances I find no merit in these arguments.
The final argument was a claim that the applicant was denied procedural fairness on the basis that he was not warned that parts of his version of events that were accepted by the delegate may be rejected.
The recounting of the evidence set out in the Tribunal decision from paragraphs [16] to [41] makes it clear that the Tribunal member asked many questions about the facts and circumstances that were the foundation of the applicant's claim.
The transcript of that interview was not initially placed before the Court in evidence, despite directions requiring a transcript to be filed and served if it was to be relied upon. At the hearing leave was granted to the applicant to make application to reopen the case to provide the transcript (if done so within 14 days) if the applicant wished to do as counsel held a copy of the audio file which he was able to listen to. No such application was forthcoming. However, an affidavit annexing the 42 page transcript was filed on 12 June 2012.
Further submissions were made by the applicant and the respondent on 14 June 2012 and 18 June 2012 respectively.
The applicant relies on the passage at page 38, line 31 to 46 where the following exchange occurs:
[Reviewer]: Okay. I’m just going to check, I think you were asked in an earlier interview whether you had any contracts of employment or anything that showed that you had worked for this company but I think that you said that they had all – you know, you signed the documents and you returned them to the company so you, yourself, didn’t have anything. Is that correct?
[The Interpreter]: Correct.
[The Interviewer]: Okay.
[The Interpreter]: That is correct. They are the government agency and any information about this company they won’t allow that to get out.
[Reviewer]: I also understand that you said that once you had left Iran the – as far as you know, the company came and took the taxi that was at your house.
[The Interpreter]: Correct.
This passage does not appear to give the impression that the Reviewer accepted earlier findings.
The respondent relies upon a number of passages, where these exchanges take place. At page 9, line 41 to page 10, line 46 the transcript provides as follow:
[Reviewer]: When did it click for you? How did you realise that it was Sepah?
[The Interpreter]: Okay. In my company they started to ask me to do the things which they were not logical, so I started to suspect gradually. They were asking me to do the things which they were not humane. It was against humanity and we call them selling people.
[Reviewer]: Can you remember when you finally realised – you went from thinking this is not logical or this is odd, to thinking this is Sepah?
[The Interpreter]: I cannot remember the exact date but earlier on when I – after I started to work for this company I realise what they expected me to do.
[Reviewer]: And did you ever – were you ever able to confirm with them or any other means that it actually was Sepah 100 per cent?
[The Interpreter]: You mean I ask them if I am working for Sepah?
[Reviewer]: Yes. Even in the late stages when you were leaving, if Sepah was mentioned or if there was ever an open acknowledgement from them, or open from you that you know it Sepah or you know exactly who they are?
[The Interpreter]: I was sure about that first of all because the company I was working was the government sector, and also Sepah means government. In every government department Sepah exists.
[Reviewer]: So do you mean in every government sector there is always Sepah?
[The Interpreter]: Yes, and they are on top of the department.
[Reviewer]: And how do you know the company you were working for was government?
[The Interpreter]: By the sign of that – in front of the building it is obvious.
[Reviewer]: If you are saying to me that it’s obvious they were government, so I’m assuming it was obvious before you started work for them and that Sepah was involved in every government organisation, wouldn’t you have known from the beginning that Sepah would be involved with this organisation?
[The Interpreter]: First I thought I was just the ordinary taxi driver, I didn’t know that I have to sell people, I have to spy.
[Reviewer]: So you were prepared to work for the government department but you didn’t realise what would be asked of you?
[The Interpreter]: That is correct. That is correct because working for government sector it is not a problem, you may work for electricity or power company, water company.
[Reviewer]: You then started to hate the job.
[The Interpreter]: Yes.
At page 30, line 11 to 15 of the transcript provide as follows:
[Reviewer]: I would think that if someone came to the attention of Sepah that I can understand there is implications from that and things would flow from that. The issue that has to be decided in this case is whether you have come to the particular attention of Sepah.
[The Interpreter]: Definitely.
At page 36, line 29 to page 37, line 10 the transcript provides as follows:
[Reviewer]: Okay. I’m just going to clarify the information that I had earlier, which is Sepah or Army of the Guardians of the Islamic Revolution. And it’s an official part of the armed forces. It controls Basij and other voluntary units but it’s actually an official part of the army that you are saying was who employed you.
[The Interpreter]: Yes.
[Reviewer]: Yes. And they are also – just for the sake of everyone in the room – they are referred to also as the Revolutionary Guards or the Guardians. So this is the Revolutionary Guards but they are not part of the irregular forces or part of the volunteer forces.
[The applicant’s agent]: Right.
[The Interpreter]: Yes. Okay. The people who are volunteers and they join Basij forces, Basij is of the lower level and these are usually people that goes are young people. They want some sort of benefit from what they do. They don’t want to go to military service, or they want to go to military service and serve instead of two years – stay with military service for two months. These are the type of people that join Basij. Okay. And every Thursday night, because the Friday is the public holiday in Iran, these Basij people, with the weapons and some military equipment, stay on the streets with a uniform and stop the cars which they suspect. What they are doing like that, it is nothing to do with the police force.
[Reviewer]: Yes, I understand from your earlier interviews that this is not the group that you are talking about. You are saying that the group that was affecting you is Sepah or the Army of the Guardians of the Islamic Revolution.
[The Interpreter]: That is correct, yes.
At page 37, line 23 to page 38, line 15 the transcript provides as follows:
[Reviewer]: I have raised the issues that I’m concerned about during the hearing. At this stage I’m not going to be pointing to anything else. There is evidence that supports the claimant’s concerns that he has raised here, but as I think I have made clear the issue is whether this particular claimant is affected by it. So the evidence would be that Sepah is an organisation, the history, you know, we’ve referred to a bit through the interview today. The issue will be whether or not this claimant in particular is a particular subject or victim of them.
[The applicant’s agent]: Well, there are two points there. One is he was employed by them and 
[Reviewer]: That is his evidence.
[The applicant’s agent]: left their employ, quite.
[Reviewer]: Yes.
[The applicant’s agent]: And the second is that they visited looking for him after he had left. Again, that is his evidence but this tribunal is – it makes decisions on the basis substantially of the evidence given by claimants, and tests their credibility and [Reviewer]: That’s right, that’s my role.
[The applicant’s agent]: Yes.
[Reviewer]: I’m going to take into account his evidence, I’m going to take into account any changes in his evidence from the beginning to the end, and I’m going to take into account country of origin information and, of course, submissions by you. But, yes, it’s something that is going to be weighed up and it’s something that I certainly haven’t made a decision on as yet. I’m going to call an end to the hearing but I will let you know that I will give your agent 21 days to make any further submissions to me. So if there is anything that comes to you when we’re finished the hearing or when you’re not under the pressure of the hearing that you would like me to know about, please let your agent know and your agent can make a submission to me in the next three weeks.
[The Interpreter]: Yes.
[Reviewer]: That being the case, I won’t be making a decision until that three week period has passed to allow for further submissions.
All of these passages tell against the applicant’s argument. Importantly, the parameters of the hearing were stated by the reviewer at page 4, line 23 to page 5, line 4, page 6 lines 19 to line 25 of the transcript where the Reviewer said:
[Reviewer]: My role is to undertake a fresh re-hearing of your claims. I then make a recommendation to the Minister as to whether or not you are found to be a refugee. My role is to make a recommendation only; it is then up to the Minister, if I find you to be a refugee, to decide whether to lift – to allow you to apply for a visa.
[The Interpreter]: Yes.
[Reviewer]: You understand?
[The Interpreter]: Yes.
[Reviewer]: The purpose is to take a fresh look at your case.
[The Interpreter]: Yes.
[Reviewer]: I consider the evidence that you give today and the evidence that you’ve given in previous interviews. And I consider evidence that’s been given on your behalf, such as through your agent. I make a recommendation on the basis that you give your agent, your agent gives, and country of origin information. So the information supplied by agencies such as Amnesty International or other government organisations. You must – you should answer all questions truthfully and fully today.
[The Interpreter]: Definitely.
[Reviewer]: And include all details – sorry – all include all details about your situation.
[The Interpreter]: Yes.
At page 6 lines 19 to line 25 the transcript provides:
[Reviewer]: Now, the way I plan to do it is I’ll go through – as I said, I’ve listened to the previous interview, so I will give information that I have taken from the previous interview and then I will ask you on areas that I would like you to expand on. But also if there is any areas that you wish to expand on, please let me know.
[The Interpreter]: Definitely.
The parameters of the hearing were clearly stated and the issues the subject of questioning. On the material before me I am not persuaded that there was a failure to provide the applicant with procedural fairness.
In the circumstances the application will therefore be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 6 July 2012