MZYTK v Minister for Immigration
[2012] FMCA 1085
•22 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYTK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1085 |
| 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. |
MZYTF v Minister for Immigration and Citizenship [2012] FMCA 1083
MZYTJ v Minister for Immigration and Citizenship [2012] FMCA 1084
MZYTL v Minister for Immigration and Citizenship [2012] FMCA 1086
| Applicant: | MZYTK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J BLOUNT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File number: | MLG 1787 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 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.
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 1787 of 2011
| MZYTK |
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 him 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 accepted that the applicant was a Faili Kurd living in Iran. However, the assessor did not accept that he 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, he 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 he 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 (independent son) is related to the applicants in:
a)MZYTF v Minister for Immigration and Citizenship [2012] FMCA 1083 (husband and dependent daughter);
b)MZYTJ v Minister for Immigration and Citizenship [2012] FMCA 1084 (wife); 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 her 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 failed to consider an integer of the applicant’s claim and/or denied her procedural fairness by failing to consider the claim of the applicant’s inability to go outside during Moharram and the Basij’s assault of the applicant’s husband.
Particulars
(a)The applicant’s husband gave evidence to the Second Respondent at [the] hearing that he had been assaulted by the Basij for not wearing correct clothing during Moharram and that consequently he could not leave the house with his wife during this period.
(b)The Second Respondent failed to consider this integer of the applicant’s claim on its own and/or when considering the applicant’s claim that she did not have serious problems with the Basij because she “would not go outside the house”.
The husband of the present applicant also sought refugee status. The applicant and her husband were interviewed by the same assessor. Part of their interviews occurred in the presence of both of them, and part proceeded individually.
The assessor noted at paragraph 85 of his reasons that during the joint session:
The claimant’s husband said that during Moharram people are supposed to wear black clothes and when he wore a t-shirt instead he was hit on the head and arm by Basij. He could not take his wife outside during Moharram because she did not have the clothes they required. They have no right to do what they want or to have their own opinion.
The applicant said at paragraphs 72 and 73 of her written submissions:
72.In the assessor’s consideration of the applicant’s claimed harassment, or rather avoidance of harassment, by the Basij (paragraphs [159]-[163]) the assessor failed to consider this claim of the applicant and her husband.
73.The applicant’s husband stated, in the presence of the applicant’s wife and, it can be inferred, on her behalf, that he could not take her out in the Moharram months because they did not have the right clothing and because of his previous encounter with the Basij.
The first respondent noted that the assessor summarised the relevant claim at paragraph 85 of his reasons. The first respondent said that the assessor dealt with the claim at paragraphs 159 to 163 of his reasons. Those paragraphs are as follows:
159.The claimant had stated that she had had no serious problems with the Basij or other authorities; and that neither she nor any other extended family member have been detained by the Basij, police or any other Iranian authority. She said this was because she would not go outside the house. She would live in constant fear of leaving the house and being taken by the Basij or Police for some or other obscure reason. The assessor does not accept that this is correct.
160.As noted by the delegate, at the POE interview the claimant had acknowledged that she attended school, travelled back to Elam on several occasions and joined a gym. At the IPA interview the claimant now said that she had only travelled back to Elam once or twice (although it appears from their evidence that her parents had done so several times). The claimant did confirm at the IPA interview that she went out to a gym or club on a regular basis 2 or 3 days each week. This is not consistent with her staying at home, living in hiding or genuinely fearing that she will be confined to the house.
161. The assessor does not accept that being refused admission to a Muslim holy place because she was not wearing a burqa, or being expected to refrain from eating when outside her home during the annual fast, constitute serious arm or amount to persecution of the claimant.
162. There is no suggestion that the claimant or her husband have any political profile or activity whatsoever.
163. The assessor is not satisfied that the claimant’s circumstances or experiences provide the basis for a well-founded fear of harassment amount[ing] to persecution of her by the Basij or other authorities for any Convention reason or reasons.
The first respondent noted that the assessor also made findings about the restrictions on the applicant as a woman at paragraphs 171 to 172 of the assessor’s reasons, which are as follows:
171.The claimant also expressed concerns in relation to de facto restrictions on what she could wear and the use of makeup and, more generally, cultural attitudes toward women which restrict their freedom.
172.The assessor has considered these concerns but is not satisfied that in this instance these constraints (either considered separately or cumulatively with her claims as an undocumented Faili Kurd) constitute serious harm amounting to persecution of the claimant for a Convention reason.
The applicant in the present case argued that the husband’s claim, in joint session, was also made on behalf of the applicant in the present proceeding. The first respondent did not dispute that. I accept it.
The assessor did not expressly deal with the claim that the applicant could not go outside during Moharram because she did not have the clothes approved by the Basij. However, the assessor did detail this claim at paragraph 85 of his reasons for decision. The assessor also noted at paragraph 161 of his reasons for decision the applicant’s concession at the IPA interview that:
she went out to a gym or club on a regular basis 2 or 3 days each week.
The assessor noted that that concession:
was not consistent with [the applicant] staying at home, living in hiding or genuinely fearing that she will be confined to the house.
It appears that, in these passages, the assessor indicated a conclusion that the applicant was not confined to the house during the period of Moharram, contrary to her husband’s claim. Clearly, the applicant did not say that she went regularly to a club or gym two or three times a week except during Moharram.
In any event, the assessor concluded at paragraph 172 of his reasons that the applicant’s stated concerns about what she could wear and other restrictions on her freedom did not constitute serious harm amounting to persecution. In the circumstances of this case, in view of the fact that the assessor expressly summarised the relevant claim at paragraph 85 of his reasons, I consider that the passages cited above were intended to and did address that claim. This ground is not made out.
Conclusion
As grounds 3 and 4 have been made out, the usual declaration and injunction will be made. I will hear the parties on the question of costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 22 November 2012
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