MZYTL v Minister for Immigration
[2012] FMCA 1086
•22 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYTL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1086 |
| 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
MZYTK v Minister for Immigration and Citizenship [2012] FMCA 1085
| Applicant: | MZYTL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J BLOUNT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File number: | MLG 1798 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 1798 of 2011
| MZYTL |
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. He 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)MZYTK v Minister for Immigration and Citizenship [2012] FMCA 1085 (independent daughter).
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 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 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.
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 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.
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 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.
In his written submissions, the applicant said:
73.The decision record notes that at hearing the assessor raised with the applicant the issue of nationality. The assessor put to the applicant the relevant provisions of the Iranian Civil Code (CB 200 [84]).
74. The applicant responded at hearing that (CB 201 [89]):-
He was “not really sure but he knew that a lot of people who had fled from Iraq could not get citizenship or any other cards or documents. His parents had tried many times and could not get anything. Many Faili Kurds were targeted by the Basij or other organisations.
75.The applicant’s claim was supported by country information before the assessor, including DFAT cable of 19 March 2010 CX241170 which relevantly provided as follows:
R.1. Evidence Required to Prove Iranian Ancestry. Our advice from 2001 has not changed. Documents other than official identity documents are considered by Iranian authorities, but it would be extremely hard to establish Iranian ancestry using these. Many of the official documents were issued more than fifty years ago. While some Faili Kurds are Iranian, their ancestors may not have registered with the authorities at the time, with the consequence that ancestry is now impossible to establish.
This ground is in reality a complaint that the assessor did not expressly deal with an item of evidence. Assessors are not obliged to expressly refute particular items of evidence. They are able to make findings of fact contrary to the weight of the evidence, provided that there is some rational and probative evidence in support of their conclusions.
In any event, the assessor appears to have taken into account the relevant statements made by the applicant personally. At least, the assessor noted them in his reasons at paragraph 89. The assessor also stated at paragraph 130 of his reasons that he had referred to country information submitted by the applicant’s adviser. The assessor listed in paragraph 133 of his reasons (sixth bullet point) the country information mentioned by the applicant in paragraph 75 of his written submissions. Where an assessor is bound to take a particular matter into account, he is only required to consider it. He is not required to accept it.
Moreover, even if the assessor had been satisfied that it would be impossible for the applicant to obtain documentation in Iran, it would have made no difference to the decision. The assessor considered that, even if the applicant remained undocumented, he would not suffer persecution by reason of that fact, and, even if he did suffer persecution by reason of that fact, it would not be for a Convention reason. This ground is not made out.
Ground 6
The sixth 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 harm by the Basij by reason of his membership of a particular social group of unregistered and/or undocumented persons.
Particulars
(a)The applicant claimed to have been harassed by the Basij on several occasions.
(b)The Second Respondent accepted that the applicant had encountered the Basij “on up to four occasions” and subjected to “opportunistic extortion”.
(c)The Second Respondent made a finding that the applicant had not been targeted for attention because of his ethnicity.
(d)The Second Respondent failed to consider whether the applicant had been targeted and/or harmed for reason of his membership of a particular social group of unregistered and/or undocumented persons.
The applicant said in his written submissions:
80.The applicant claimed to have been stopped, harassed and beaten by the Basij on a number of occasions (CB 59).
81.The assessor did not accept all of the applicant’s claims and made some adverse credibility findings against the applicant. Importantly however the assessor did accept that the applicant had “on up to four occasions over a number of years been checked by the Basij and found to be without ID, then subjected to opportunistic extortion” (CB 214).
82.The assessor found it significant that on none of these occasions was the applicant arrested or charged or deported (CB 215 [188]. The assessor concluded as follows (CB 215 [189]):-
Although these incidents demonstrate the venality and impunity of the Basij, the assessor is not satisfied that they represent a systematic course of conduct directed against the claimant or that they occurred for a Convention reason or reasons. The evident concern of the Basij had been to check for ID (which is part of their general remit as neighbourhood enforcers) and then opportunistically to extract money if it is not forthcoming. It is significant that on the last occasions described, other Faili Kurds with the claimant were not targeted, indicating that the claimant is not targeted for attention because of his ethnicity.
83.The above finding demonstrates that the assessor failed to consider the claim against the social group of unregistered or undocumented persons but confined the query to whether the applicant was harassed by the Basij for reasons of his ethnicity.
84.The assessor’s own findings appear to accept that on those occasions the applicant had been targeted by the Basij on account of his undocumented and/or unregistered status.
The applicant’s submission in paragraph 83 misunderstands the assessor’s reasons. The assessor said that the Basij checked for identity papers pursuant to a law of general application and those who did not produce identity papers were required to pay the Basij money. The assessor expressly said that he was not satisfied that the conduct of the Basij was for a Convention reason. The assessor referred to other Faili Kurds with the applicant simply to emphasise that the Basij did not target the applicant for ethnic reasons.
The assessor apparently did accept that the applicant was targeted for extortion by the Basij because he was unable to produce identity papers. However, for reasons discussed elsewhere, the assessor was not satisfied that the applicant lacked identity papers for a Convention reason. 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-five (25) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 22 November 2012
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