MZYTF and MZYTG v Minister for Immigration and Citizenship

[2012] FMCA 1083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYTF & ANOR v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR [2012] FMCA 1083

MIGRATION – Independent Protection Assessor – whether all claims considered – Faili Kurds in Iran – claim of imputed political opinion of support for pro-Kurdish rebels and groups – claim not considered.

DZACP v Minister for Immigration and Anor (2012) FMCA 570
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; [1997] HCA 22
MZYTJ v Minister for Immigration and Citizenship 2012 FMCA 1084
MZYTK v Minister for Immigration and Citizenship 2012 FMCA 1085
MZYTL v Minister for Immigration and Citizenship 2012 FMCA 1086
SBZF v Minister for Immigration and Citizenship (2008) 104 ALD 415; [2008] FCA 1486

First Applicant: MZYTF

Second Applicant: MZYTG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: J BLOUNT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File number: MLG 1781 of 2011

Judgment of: Riley FM

Hearing date: 8 October 2012

Date of last submission: 8 October 2012

Delivered at: Melbourne

Delivered on: 22 November 2012

REPRESENTATION

Counsel for the First Applicant: Nola Karapanagiotidis

Solicitors for the First Applicant: Victoria Legal Aid

Counsel for the Second Applicant: Nola Karapanagiotidis

Solicitors for the Second Applicant: Victoria Legal Aid

Counsel for the First Respondent: Richard Knowles

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

DECLARATION

In recommending to the first respondent that the applicants are not persons to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicants procedural fairness by not considering whether the applicants faced a real chance of being persecuted in the reasonably foreseeable future by reason of a political opinion imputed to them, as Faili Kurds, of support for pro-Kurdish rebels and groups.

ORDERS

1. The first respondent by himself and his servants and agents be restrained from relying on the second respondent’s recommendation dated 27 October 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1781 of 2011

MZYTF

First Applicant

MZYTG

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

J BLOUNT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a recommendation made by an Independent Protection Assessor.  The first applicant is the father of the second applicant.  She made no independent claims of her own.  The assessor recommended that neither applicant be recognised as a person to whom Australia owes protection obligations.

2. The applicants claimed to be stateless Faili Kurds living in Iran.  They claimed to fear persecution by reason of:

   a)being stateless and undocumented Faili Kurds; and

   b)a political opinion imputed to them as a result of seeking asylum in Australia.

3. Otherwise, there was some dispute about the precise scope of the applicants’ claims, which is addressed below in relation to the various grounds of review.  A number of those grounds concern an alleged failure to consider a claim.

4. The assessor accepted that the applicants were Faili Kurds living in Iran.  However, the assessor did not accept that they were stateless.  The assessor found that the applicants had in fact been born in Iran.  As such, the assessor considered that the applicants were citizens of Iran. The assessor considered that, although the applicants did not presently have identity documents, as citizens of Iran they would be able to obtain them by making the appropriate applications.

5. The assessor noted that there was no claim that either applicant had been involved in any political activity in the past.  The assessor rejected a claim that the applicants faced a real chance of persecution if they returned to Iran as failed asylum seekers.  The assessor considered that the applicants did not face a real chance of persecution for a Convention reason as Faili Kurds without identity papers.

6. The applicants in this case (father and dependent daughter) are related to the applicants in:

   a)MZYTJ v Minister for Immigration and Citizenship 2012 FMCA 1084 (wife);

   b)MZYTK v Minister for Immigration and Citizenship 2012 FMCA 1085 (independent daughter); and

   c)MZYTL v Minister for Immigration and Citizenship 2012 FMCA 1086 (independent son).

7. The matters were heard together by the assessor and in this court.  However, separate but substantially the same reasons were given by the assessor in each case and are being given by this court in each case.

Ground 1: undocumented persons

1. The first ground of review in the application filed on

   
   

   19 December 2011 and amended on 27 August 2012 is:

   The Second Respondent denied the applicant procedural fairness and/or committed an error of law by failing to consider and/or properly consider whether the applicant was at risk of persecution for reasons of his membership of a particular social group, namely “undocumented persons in Iran”.

   Particulars

   (a)The applicant had claimed to be a member of a particular social group comprising “undocumented Faili Kurds” and “unregistered or undocumented people”.

   (b)The second respondent consistently assessed the applicant’s claims on the basis that ethnicity was a characteristic of the particular social group and failed to consider the claims against the broader social group of “unregistered and undocumented people”.

2. The applicants originally claimed that they were stateless, undocumented Faili Kurds.  That was the essence of the generic submission made by the applicants’ lawyers on 7 March 2011, which concerned not only the present applicants but many others: CB78.  However, in another submission dated 28 August 2011, which was lodged a couple of weeks after the interviews with the assessor on

   
   

   10 August 2011, the applicants’ advisers said that the applicants were members of a particular social group consisting of:

   a)“unregistered and undocumented Stateless Faili Kurds” (CB127); and, alternatively,

   b)“unregistered or undocumented people living in Iran who were denied lawful status as residents and otherwise” (CB133). 

3. The relevant passages of the assessor’s recommendation are as follows:

   181.Although the assessor accepts that in Iran undocumented persons or undocumented Faili Kurds may constitute a particular social group, it is also necessary to consider whether the members of such a group have a well-founded fear of being persecuted. There is no evidence before the assessor that undocumented persons who are of Faili Kurd ethnicity are treated differently from those who are not, and the assessor does not accept that the claimant has a well-founded fear of being persecuted because he is an undocumented Faili Kurd. (emphasis added)

   182.While undocumented persons may encounter restrictions or difficulties because they are undocumented, it does not follow that they are thereby persecuted, and for the following reasons, the assessor finds that the restrictions that the claimant may face if returned to Iran do not amount to persecution in the relevant sense. (emphasis added)

   …

   185.Secondly, and in any event, the assessor is not satisfied that the restrictions that the claimant has faced, and may face in the future because he is undocumented, or an undocumented Faili Kurd, amount to serious harm as required by s.91R(1)(b) of the Act. (emphasis added)

   …

   187.The assessor is not satisfied on the evidence before him that the consequences for the claimant of living undocumented amounted to such serious harm or denial of a capacity to subsist as to amount (separately or cumulatively) to persecution. (emphasis added)

   …

   190.… The assessor does not accept that the consequences for the claimant of remaining undocumented or unrecognised amount either separately or cumulatively to persecution.  Nor does the assessor accept that these consequences arise for a Convention reason. (emphasis added)

4. The passages highlighted above show that the assessor clearly did consider both the claim that the applicants faced persecution as undocumented persons, and the claim that they faced persecution as undocumented Faili Kurds.  This ground is without substance.

Ground 2: illegal workers

1. The second ground of review in the application filed on

   
   

   19 December 2011 and amended on 27 August 2012 is:

   The Second Respondent failed to consider an integer of the applicant’s claim and/or failed to take into account relevant considerations and/or denied the applicant procedural fairness by failing to consider (i) the claim and/or recent information that there had been ‘an increase in the monitoring of illegal workers in Iran’ and (ii) the claim and/or recent information that the current political and human rights situation in Iran was deteriorating.

   Particulars

   (a)The applicant claimed to be at risk of a “denial of basic rights, including [the] right to earn a livelihood.”

   (b)The applicant also claimed that there was evidence that repression in Iran was “intensifying” and that this would impact adversely upon minority groups.

   (c)The Second Respondent failed to consider the claims as articulated on behalf of the applicant and failed to make reference to any of the relevant information supporting these claims.

2. In saying that the assessor failed to consider:

   the claim and/or recent information that there had been ‘an increase in the monitoring of illegal workers in Iran’

   the applicants are, in fact, complaining of a failure to consider certain evidence.  It is well established that a failure to consider a specific item of evidence does not amount to jurisdictional error.

3. In any event, the assessor did consider the relevant evidence.  The assessor summarised the relevant written submission at paragraphs 31 to 37 of his reasons and specifically noted at paragraph 35 that:

   The submission went on to discuss the status of Faili Kurds in Iran, particular[ly] in relation to the right to work and access services. 

4. Moreover, the assessor did not accept that the applicants were stateless, and therefore did not accept that they were illegal workers.  Consequently, the evidence concerning illegal workers in Iran was irrelevant.

5. Additionally, the assessor found that the first applicant had been able to subsist, travel, find accommodation, educate his children, obtain health care and save a significant amount of money: paragraphs 188 and 189 of the assessor’s reasons.

6. Similarly, in saying that the assessor failed to consider that:

   the claim and/or recent information that the current political and human rights situation in Iran was deteriorating

   the applicants are, in fact, complaining of a failure to consider certain evidence.  As noted above, it is well established that a failure to consider a specific item of evidence does not amount to jurisdictional error.

7. Again, the assessor did consider the relevant evidence.  The assessor summarised the relevant written submission at paragraphs 31 to 37 of his reasons and specifically noted at paragraph 36 that:

   The submission discussed the current political and human rights situation in Iran. 

8. Moreover, the assessor specifically noted at paragraph 170 of his reasons that:

   The claimant did not claim to have been targeted or harassed or mistreated by the authorities (including the Basij) because of his ethnicity or imputed political opinion other than disadvantage experienced as a result of lacking ID or documents.

9. The assessor also noted that the applicants had it within their power to obtain identity documents, because they were not foreigners, but were Iranian Faili Kurds.  Consequently, even if the current political and human rights situation in Iran was deteriorating, there was no reason to suppose it would affect the applicants.  The particular passage relied on the applicants at CB86 referred to “stateless Faili Kurds”.   The assessor’s finding was that the applicants were not stateless.

10. This ground is not made out.

Ground 3: future persecution

1. The third ground of review in the application filed on

   
   

   19 December 2011 and amended on 27 August 2012 is:

   The Second Respondent failed to consider whether the applicant was at risk of future persecution on account of his race/ethnicity as a Faili Kurd and/or membership of a particular social group comprising stateless Faili Kurds and unregistered/undocumented people living in Iran.

   Particulars

   (a)The Second Respondent confined itself to a consideration of whether the applicant had suffered persecution in the past on account of being an undocumented Faili Kurd.

   (b)The Second Respondent erred in confining itself to this question and failing to consider whether the applicant faced a real chance of persecution in the reasonably foreseeable future on the grounds advanced.

2. As will become apparent, this ground is closely connected with ground 4.

3. In paragraphs 191 to 197 of his reasons, the assessor clearly considered whether the applicants faced a real chance of harm in the future as unsuccessful asylum seekers.  However, the applicants’ complaint is that the assessor did not consider whether the applicants faced a real chance of harm in the future on account of:

   a)their race/ethnicity as Faili Kurds;

   b)their membership of a particular social group consisting of stateless Faili Kurds; or

   c)their membership of a particular social group consisting of unregistered/undocumented people.

4. The applicants accepted that it is entirely appropriate for an assessor, in determining whether there is a real chance of a claimed event occurring in the future, to consider whether the claimed event has occurred in the past: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. However, the applicants also submitted that a finding that a person had not been persecuted in the past for a particular reason did not necessarily answer the question of whether that person faced a real chance of persecution in the future for that reason. Lander J held in SBZF v Minister for Immigration and Citizenship [2008] FCA 1486 at [50] to [52] that a failure to address and answer that question was a jurisdictional error.

5. In the present case, the assessor did not need to consider whether the applicants faced future persecution as stateless Faili Kurds living in Iran because the assessor did not accept that they were stateless.

6. The assessor did consider whether the applicants faced future persecution by reason of being undocumented.  The assessor said at [182] of his reasons:

   While undocumented persons may encounter restrictions or difficulties because they are undocumented, it does not follow that they are thereby persecuted, and for the following reasons, the assessor finds that the restrictions that the claimant may face if returned to Iran do not amount to persecution in the relevant sense. (emphasis added)

7. The assessor then said at [185] of his reasons:

   … the assessor is not satisfied that the restrictions that the claimant has faced, and may face in the future because he is undocumented, or an undocumented Faili Kurd, amount to serious harm as required by s.91R(1)(b) of the Act. (emphasis added)

8. The assessor went on to say at [190] of his reasons:

   … The assessor does not accept that the consequences for the claimant of remaining undocumented or unrecognised amount either separately or cumulatively to persecution.  Nor does the assessor accept that these consequences arise for a Convention reason. (emphasis added)

9. Paragraphs 182 and 185 of the assessor’s reasons expressly deal with the prospect of future persecution.  By using the word “remaining” in paragraph 190, the assessor was clearly considering what would happen to the applicants if they returned to Iran and stayed undocumented.  The assessor, rightly or wrongly, considered that if the applicants remained undocumented, the consequences for them would not amount to persecution.  Moreover, the assessor considered that, whether or not the consequences amounted to persecution, the consequences did not arise for a Convention reason.

10. In relation to the applicants’ race or ethnicity as Faili Kurds, the applicants’ primary claim was that they were stateless Faili Kurds: the first applicant’s statutory declaration at CB68.  The claim that the applicants faced serious harm because of their ethnicity, as opposed to their statelessness, was not made by the applicants personally, but was made by their advisers in generic submissions that were made on behalf of numerous Faili Kurds. 

11. The submission dated 7 March 2011 said at CB78:

    Case officers have generally accepted that Faili Kurds face discrimination in Iran on the grounds of their race (Faili Kurd) or membership of a particular social group variously described as stateless Faili Kurds, stateless foreigners, Iraqi refuges or something similar. (emphasis added)

12. It is generally accepted that discrimination is harm that falls short of persecution.  In any event, the assessor clearly considered the various harms that the applicants personally identified and concluded that they did not amount to persecution, they did not occur for a Convention reason and that assessment of the situation also applied to the reasonably foreseeable future the future.  To the extent that the applicants personally raised any claim that they faced persecution in the future simply by reason of being Faili Kurds, the assessor addressed with the specific issues raised by the applicants.

13. However, the submission dated 7 March 2011 also went on at CB78 to raise the issue of Faili Kurds facing persecution for reasons of their imputed political opinion:

    We submit that in addition many Faili Kurds are at risk of persecution for reasons of political opinions imputed to them because of their Iraqi or Kurdish background, which has caused some Iranians to accuse them of disloyalty to Iran. (emphasis added)

14. Arguably, by saying “many Faili Kurds” are at a particular risk, rather than “all Faili Kurds”, the advisers did not, at that stage, expressly raise a claim that the particular applicants in the present case face that risk.  However, the claim at CB78 was elaborated at CB84.  At CB84 and CB86 the applicants’ advisers said:

    Threat of harm as a member of an ethnic and national minority and on suspicion of support of Pro-Kurdish rebels/groups:  Country information continues to report that ethnic minorities, particularly the Kurds, are being targeted for violence within Iran.  Faili Kurds have a history of persecution at the hands of the authorities and non-state agents in Iran for ethno-religious reasons, for their imputed political opinions and accusations that they are Iraqi nationals who should return to Iraq.

    …

    Given the continuing conflict between Kurd rebels and Iranian authorities, the history of persecution of Kurds in Iran and conflict between Iran and Iraq, we submit that there is a real chance that our clients may face persecution on the grounds of their ethnicity as a Kurd and on imputed political beliefs that they may support Pro-Kurdish groups or the Iraqi government.…

15. By saying:

    … our clients may face persecution on the grounds of their ethnicity as a Kurd and on imputed political beliefs that they may support Pro-Kurdish groups …

    the advisers clearly raised a claim that the particular applicants in this case faced persecution by reason of their ethnicity and their consequent imputed political opinion. A claim raised by an adviser is as much a claim as a claim raised in an applicant’s personal statements.  For these reasons, I do not accept the first respondent’s argument that this claim was not raised at all by the applicants in this case.  

1. The first respondent then argued that the claim was raised in the context of the applicants claiming to be stateless Faili Kurds.  I do not accept that argument.  On its face, the claim concerns all Faili Kurds, whether they are stateless or otherwise.

2. The first respondent then argued that the applicants did not claim that they had personally been accused of being Iraqi nationals or spies.  That is not relevant to the present issue.  The question was whether the applicants faced a real chance of being persecuted in the reasonably foreseeable future by reason of a political opinion imputed to them, as Faili Kurds, of support for pro-Kurdish rebels and groups.

3. The first respondent then argued that the applicants did not claim to have been accused of support for or involvement with any pro-Kurdish group.  That submission does not address the present issue, which is whether the assessor considered the risk of the applicants facing future harm arising from them, as Faili Kurds, being imputed with a political opinion of support for pro-Kurdish rebels and groups.

4. The first respondent referred to certain comments made by the assessor during the interview.  The comments were summarised at paragraphs 100 to 101 of the assessor’s reasons.  Those comments concerned the separate and presently irrelevant issue of whether the applicants would be imputed with anti-government opinions if they returned to Iran as failed asylum seekers.  In any event, the comments were not in the findings and reasons part of the assessor’s recommendation.  Consequently, the comments do not indicate that the assessor actively considered the matter.

5. The first respondent then noted a passage in the assessor’s reasons, which said that most country information that identified difficulties faced in Iran by Faili Kurds actually concerned Iraqi Faili Kurds rather than Iranian Faili Kurds.  That may be so.  However, it does not squarely address the claim that was raised, namely, that Faili Kurds, in general, and the applicants in particular, face persecution by reason of being imputed with a political opinion of support for pro-Kurdish rebels and groups.

6. The first respondent then referred to the assessor noting at [168], and apparently accepting, country information from the Department of Foreign Affairs and Trade which stated:

   Post is not aware of Faili Kurds being targeted because of their ethnicity. …

   Racially-motivated violence against any group in Iran is rare.

7. The assessor did not expressly rely on that country information to state any explicit conclusions about the prospect of the applicants facing persecution by reason of an imputed political opinion arising from their Faili Kurd ethnicity.  The assessor’s noting of that country information, in my view, is not sufficient for the court to conclude that the assessor made an implicit finding that the applicants did not face a real chance of persecution in the future by reason of an imputed political opinion based on their Faili Kurd ethnicity.

8. The first respondent then said that the assessor stated:

   163.… [the applicant] was not known to or of particular concern to the authorities.

   …

   170.The claimant did not claim to have been targeted or harassed or mistreated by the authorities (including the Basij) because of his ethnicity or imputed political opinion other than disadvantage as a result of lacking ID or documents.  He stated that there was only a problem with the authorities if one undertook activity against the regime (which he had not).  He had himself approached the police and other authorities without any particular adverse consequences. … Having regard to the claimant’s own evidence, the assessor did not accept his wife’s claim that they lived in hiding and were unable to travel freely.

   …

   196.… There is no suggestion or claim that the claimant has any prior involvement in political activity against the Iranian Government, whether in Iran or abroad.

9. Those passages self-evidently concern past events, rather than providing an assessment of the risks the applicants may face in the future.  Obviously, the fact that the first applicant conceded that he had not been involved in political activity in the past did not mean that he had not been imputed with a political opinion and did not mean that he might not be imputed with a political opinion in the future.  The passages cited by the first respondent do not deal with the issue.

10. The applicant relied on DZACP v Minister for Immigration and Anor (2012) FMCA 570 at [25] to [48]. The first respondent said that case is limited to its own particular factual circumstances and is distinguishable. Obviously, the question of whether a claim has been raised in a particular case can only be answered by an examination of that particular case. However, DZACP also makes the point, with respect, entirely correctly, that a claim made by an agent is just as much a claim as a claim made by an applicant.  If the applicant does not himself or herself say anything in support of that claim, it may be unlikely to be accepted.  However, it still needs to be considered.

11. The applicant’s advisers in the present case squarely raised the claim about imputed political opinion.   The submission concerning that issue spanned about one and a half pages.  The assessor was required to address it.  However, the assessor did not do so. Consequently, the assessor made a jurisdictional error.

Ground 4

1. The fourth ground of review in the application filed on

   
   

   19 December 2011 and amended on 27 August 2012 is:

   The Second Respondent denied the applicant procedural fairness by failing to consider the applicant’s claim of being at risk of persecution on the grounds of a “suspicion of support of Pro-Kurdish rebels/groups” and/or “accusations that they are Iraqi nationals”.

   Particulars

   (a)On behalf of the applicant it was claimed that he was at risk of persecution because of being suspected of supporting pro-Kurdish rebels/groups or for being imputed with an Iraqi nationality.

   (b)The Second Respondent failed to consider this claim and thereby denied the applicant procedural fairness.

2. For the reasons given in relation to ground 3, this ground is made out.

Ground 5

1. The fifth ground of review in the application filed on

   
   

   19 December 2011 and amended on 27 August 2012 is:

   The Second Respondent denied the applicant procedural fairness and/or failed to consider an integer of the applicant’s claim and/or relevant considerations namely that it was impossible to obtain identity documents without formal documentation.

   Particulars

   (a)The applicant had claimed that to obtain citizenship, formal documents were required.

   (b)The applicant’s claim was consistent with the country information before the assessor.

   (c)The Second Respondent failed to consider this claim and/or the relevant country information and instead made a finding that the applicant had not done all that “might reasonably be expected” to acquire citizenship.

2. Although the applicants have described the impossibility of obtaining identity documents without formal documentation as a claim, it is in reality an item of evidence.  The relevant claim was that the applicants faced persecution because they were members of a particular social group consisting of people who do not have identity documents.  The assessor considered that claim in considerable detail. 

3. This ground is an attempt to treat evidence as a claim. There is no jurisdictional error in preferring some evidence to other evidence.  Indeed, there is no jurisdictional error, in most cases, in making an error of fact. 

4. In any event, the assessor considered in detail the applicants’ claims about being unable to obtain identity documents.  The assessor considered that the applicant’s story had significantly varied over time.  The assessor also noted that the first applicant did not claim to have sought to obtain evidence of his birth from the most obvious places, being the mosque and officials in the village where he was born. 

5. Moreover, the assessor considered that the applicants were not denied identity documents for a Convention reason, and any detriments they suffered as a result of not having identity documents did not amount to persecution and did not occur for a Convention reason.

6. This ground is not made out.

Conclusion

1. As grounds 3 and 4 have been made out, there will be the usual declaration and injunction.  I will hear the parties on the question of costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riley FM

Date:  22 November 2012