MZYTJ v Minister for Immigration
[2012] FMCA 1084
•22 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYTJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1084 |
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.
MIGRATION – Independent Protection Assessor – whether applicant denied procedural fairness – assessor took into account evidence received in the absence of the applicant – assessor did not alert the applicant to the gravamen of that evidence – denial of procedural fairness.
| MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083 |
| Applicant: | MZYTJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J BLOUNT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File number: | MLG 1790 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 8 October 2012 |
| Date of last submission: | 18 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 22 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Nola Karapanagiotidis |
| Solicitors for the 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 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 considering whether the applicant faced a real chance of being persecuted in the reasonably foreseeable future by reason of a political opinion imputed to her, as a Faili Kurd, of support for pro-Kurdish rebels and groups.
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 receiving evidence in the absence of the applicant and not alerting the applicant to the gravamen of that evidence.
ORDERS
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 1790 of 2011
| MZYTJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| J BLOUNT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a recommendation made by an Independent Protection Assessor. The assessor recommended that the applicant not be recognised as a person to whom Australia owes protection obligations.
The applicant claimed to be a stateless Faili Kurd living in Iran. She claimed to fear persecution by reason of:
a)being a stateless and undocumented Faili Kurd; and
b)a political opinion imputed to her as a result of seeking asylum in Australia.
Otherwise, there was some dispute about the precise scope of the applicant’s 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.
The assessor considered that aspects of the applicant’s evidence were vague, evasive and implausible. The assessor considered that the applicant was inclined to embellish her account and say what she thought would be helpful to her case.
The assessor accepted that the applicant was a Faili Kurd living in Iran. However, the assessor did not accept that she was stateless. The assessor found that the applicant had in fact been born in Iran. As such, the assessor considered that the applicant was a citizen of Iran. The assessor considered that, although the applicant did not presently have identity documents, as a citizen of Iran, she would be able to obtain them by making the appropriate applications.
The assessor noted that there was no claim that the applicant had been involved in any political activity in the past. The assessor rejected a claim that the applicant faced a real chance of persecution if she returned to Iran as a failed asylum seeker. The assessor considered that the applicant did not face a real chance of persecution for a Convention reason as a Faili Kurd without identity papers.
The applicant in this case (wife) is related to the applicants in:
a)MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083 (husband and dependent daughter);
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).
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
The first ground of review in the application filed on 20 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 [sic] 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”.
This ground is the same as ground 1 in MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083. For the reasons there given, this ground is not made out.
Ground 2
The second ground of review in the application filed on 20 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.
This ground is the same as ground 2 in MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083. For the reasons there given, this ground is not made out.
Ground 3
The third ground of review in the application filed on 20 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 her 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.
This ground is the same as ground 3 in MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083. For the reasons there given, this ground is made out.
Ground 4
The fourth ground of review in the application filed on 20 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 she 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.
This ground is the same as ground 4 in MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083. For the reasons there given, this ground is made out.
Ground 5
The fifth ground of review in the application filed on 20 December 2011 and amended on 27 August 2012 is:
The Second Respondent denied the applicant procedural fairness by: (i) using the applicant’s husbands (sic) evidence to undermine the applicant’s claims and not providing the applicant with an opportunity to respond; and (ii) by referring to evidence concerning the applicant’s husbands (sic) attempts to obtain documentation without providing the applicant with an opportunity to respond
Particulars
(a)The Second Respondent interviewed the applicant and her husband in part separately and together.
(b)The Second Respondent used part of the applicant’s husband evidence in a manner adverse to the applicant’s interests ([163] [164]-[166]).
(c)In the circumstances of the case, procedural fairness required the Second Respondent to provide the applicant with an opportunity to respond to this evidence.
This ground was only raised by the present applicant, and not by her family members.
The first respondent initially said that there was no evidence that parts of the husband’s evidence were given to the assessor in the absence of the wife. However, following the hearing, and with the leave of the court, the applicant filed a transcript of the interview with the assessor and the first respondent filed further written submissions.[1]
[1] Affidavit affirmed by Sarah Fisher on 16 October 2012.
In those submissions, the first respondent conceded that the husband may have given evidence in the absence of the wife concerning his ability to travel within Iran and his efforts to obtain Iranian identity documents. It is clear from the transcript that:
a)the assessor began the interview by giving general procedural information to both the husband and the wife together[2];
b)the assessor then asked the wife to leave while the assessor interviewed the husband and the wife did leave[3];
c)the assessor then asked the wife to return to the interview room and asked the husband to leave while the assessor interviewed the wife and the husband did leave and the wife did return[4];
d)the assessor then asked the husband to return to discuss general country information with both the husband and the wife and the husband did return[5]; and
e)the assessor then asked the dependent daughter to come into the interview room to be interviewed in the presence of both of her parents and the daughter did come in to the interview room[6].
[2] Transcript page 1
[3] Transcript page 4
[4] Transcript page 19
[5] Transcript page 25
[6] Transcript pages 30 and 31
The first respondent argued that there was no indication that, prior to the interview with the assessor, the wife did not know of the evidence that would be given by the husband. This argument is spurious. Although the wife may have known the relevant facts of the husband’s life, she did not know that the husband would be asked about those matters or exactly what he would say.
The first respondent then said that it was unclear how the husband’s evidence was significant in the assessor’s decision about the wife. However, it was significant enough for the assessor to state explicitly at [163] of his reasons that:
Although … the claimant said that they lived in hiding and in fear and were unable to travel freely, this is not consistent with her earlier evidence … or her husband’s evidence … and the assessor does not accept that this was the case.
Additionally, at [164], the assessor accepted that it was for the applicant’s husband to try to secure identity documents for both of them. The assessor went on to refer to the report he had prepared in relation to the husband and said, “there was significant variation in his evidence on this issue”. Some of that evidence was given in the husband’s interview with the assessor on 10 August 2011: see [175] of the assessor’s reasons for his recommendation in relation to the husband.
Based in part on the variation in the husband’s evidence, the assessor concluded at [167] of his report in the present matter that the applicant did not lack identity documents for reasons of her ethnicity or for any other Convention reason. However, the assessor also considered that, in any event, the lack of identity documents did not result in persecution, or persecution for a Convention reason.
However, in concluding that the difficulties that the applicant faced did not amount to persecution, the assessor apparently did not accept that the applicant faced the difficulties she had claimed of living in fear and in hiding and being unable to travel freely. The assessor did not accept those claims partly because of the husband’s evidence given in the absence of the wife.
It is not clear that, if the assessor had considered that the difficulties that the applicant faced included living in fear and in hiding and being unable to travel freely, the assessor would have concluded that the applicant’s lack of identity documents did not result in her being persecuted and did not result in such persecution being for a Convention reason. Consequently, the assessor was required to alert the applicant to the gravamen of the evidence given by her husband.
The first respondent said that the assessor did just that. The first respondent referred to the transcript of the assessor’s interview with the husband and the wife at page 23 lines 12 to 45, page 31 lines 6 to 12 and pages 36 line 25 to 39 line 14. However, nowhere in those passages did the assessor bring the relevant matters to the wife’s attention.
At page 23, the applicant said that she was unable to travel and assessor said nothing about the substance of the husband’s evidence. At page 31, the assessor interviewed the applicant’s daughter, who is the second applicant in MZYTF and MZYTG v Minister for Immigration and Citizenship [2012] FMCA 1083. That interview appears to have occurred in the presence of the husband and the wife. The questions concerned the daughter’s school. They did not afford the wife natural justice about the issues presently under consideration.
At pages 36 to 39, the assessor asked the daughter if she had had any direct difficulty with the Basij, and then asked the husband and wife if they wished to say anything else. They both replied briefly. The assessor said that he would give the husband and wife 21 days to provide written submissions or further materials. The adviser asked for a “natural justice break”. They were given 10 minutes.
The assessor did not at this stage, or at any other, tell the wife the gravamen of the husband’s evidence. Giving a 10 minute break to discuss the case generally with an adviser does not satisfy the obligation to tell an applicant the gravamen of an issue.
The first respondent submitted that the 10 minute break with the adviser, plus the subsequent opportunity to present written submissions, satisfied the obligation to provide procedural fairness. However, in the absence of any indication from the assessor about the gravamen of the issue, those opportunities did not afford the applicant procedural fairness.
The first respondent then argued that the precise requirements of procedural fairness vary with the circumstances. In this case, the first respondent said that the requirements of procedural fairness were satisfied because the applicant had an adviser present throughout the interviews with both the husband and the wife.
The first respondent cited no authority in support of that proposition. However, there is authority to the contrary. Brennan J, as his Honour then was, said in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 508:
Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. (emphasis added)
That case concerned the Administrative Appeals Tribunal. However, the fundamental principles are the same. Another case to similar effect concerning the Administrative Appeals Tribunal is Naisauvou v Minister for Immigration and Multicultural Affairs (1999) 89 FCR 435 at 442, where Moore J said:
27… the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing Mr Leone in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inqury. As Deane J said in Kioa v West[1985] HCA 81; (1985) 159 CLR 550 at 632 in relation to a denial of an opportunity to be heard before a deportation order was made:
Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.
28 The critical issue is whether the applicant was deprived of the opportunity of doing so in circumstances where he might have desired to do so. He was and this, in my opinion, constituted a denial of procedural fairness. …
Ashley J, in the Supreme Court of Victoria, in Stewart v Shuey [1999] VSC 114 [23] to [28], found that a policeman charged with disciplinary offences was not denied natural justice when an investigator did not permit the policeman to remain in the hearing room when witnesses were giving oral evidence against him. However, in that case, the policeman’s advocate remained in the hearing room while the oral evidence was being given, the advocate was given a copy of the tapes of the evidence, the advocate and the policeman were given the opportunity to confer and then the advocate was given the opportunity to question the witnesses, albeit through the agency of the investigator. Clearly, the opportunity given to the advocate and the policeman to listen together to the tapes of the evidence, then confer together and then ask questions during a continuation of the hearing makes Stewart v Shuey different to the present case.
It is possible that the agent in this case was able to get the hearing tapes promptly. However, there was no evidence to that effect. Moreover, it is by no means apparent that the agent was able to have a reasonably thorough conference with his client. The agent was with a legal firm based in Melbourne. The applicant was in detention in Inverbrakie in South Australia. It is apparent from the transcript that the agent was not able to communicate with the applicant without an interpreter.
In all of the circumstances, I do not consider that the assessor afforded the applicant procedural fairness in this case.
Consequently, ground 5 is made out.
Conclusion
As grounds 3, 4 and 5 have been made out, there will be the usual declarations and injunction. I will hear the parties on the question of costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 22 November 2012
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