MZYTT v Minister for Immigration
[2012] FMCA 882
•24 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYTT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 882 |
| MIGRATION – Judicial review of Independent Merits Review – offshore entry persons – no failure to consider and identify a claim – whether second applicant a conscientious objector – consideration of s.91R(1) and (2) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.477, 36(2), 91R(1) and (2) 1951 Convention Relating to the Status of Refugees |
| SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] 243 CLR 319 Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 |
| First Applicant: | MZYTT |
| Second Applicant: | MZYTU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1820 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 13 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 September 2012 |
REPRESENTATION
| Counsel for the Applicants: | Ms Fitzgerald |
| Solicitors for the Applicants: | Russell Kennedy Solicitors |
| Counsel for the First Respondent: | Ms Burchell |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The application filed 22 December 2011 is dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1820 of 2011
| MZYTT |
First Applicant
| MZYTU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application filed 22 December 2011 was amended by amended application filed 17 May 2012. That amended application set out again that an application pursuant to s.477 of the Migration Act 1958 (Cth) (‘the Act’) for extension of time was being made, and then set out the grounds of application which are as follows:-
“1.The second respondent constructively failed to exercise her jurisdiction by failing to consider whether, if the applicants were returned to Iran, they would suffer persecution due to the second applicant’s refusal to perform compulsory military service on the basis of his political opinions.
Particulars
a. The second respondent was obliged to consider any claim for protection raised by the applicants.
b. In the application the second applicant stated that he did not want to and would not perform military service for the Iranian government because he did not believe in the government.
c. In the application the first applicant stated that he did not want the second applicant to perform military service because he:
i. was opposed to the second applicant assisting the Iranian government; and
ii. feared that the second applicant would be persecuted while performing compulsory military service because the Iranian government is aware of his anti-government views.
d. The statements of the first and second applicants raised a claim that, if returned to Iran, the second applicant would refuse or object to military service because of his political opinion about the Iranian government and such objection or refusal would alert the Iranian government or military to the second applicant’s political opinion and result in persecution of the second applicant and the second applicant’s family as a result of the expression of the second applicant’s political opinion.
e. In her reasons for decision the second respondent stated that she accepted the evidence of each of the applicants that neither wanted the second applicant to perform military service for the Iranian government.
f. The second respondent did not state whether she also accepted the applicants’ claims that the reason neither of the applicants wanted the second applicant to perform military service was that they are each politically opposed to serving the Iranian government.
g. In her reasons for decision the second respondent found that the second applicant’s desire to avoid military service was not a Convention claim for protection because:
i. he did not claim to be a conscientious objector, nor did the second respondent find him to be one; and
ii. the law of compulsory military service in Iran is a law of general application that would not be applied discriminatorily against the second respondent for a Convention reason.
h. While the second applicant did not claim to be a conscientious objector in the sense that he did not claim to hold the opinion that any form of war or military service is wrong, the second applicant did claim to object to military service for Iran because of his political opinion.
i. The second respondent failed to identify and consider the second applicant’s claim that he objected to military service for Iran because of his political opinion.
j. Having failed to consider and decide whether the second applicant objected to military service for Iran because of his political opinion, the second respondent then failed to consider whether, if the second applicant held such an opinion, he would express the opinion to the Iranian government by objecting to or refusing compulsory military service.
k. Having failed to consider whether the second applicant held such a political opinion and would express it, the second respondent then failed to consider whether the expression of such political opinion might result in persecution of the applicants for a Convention reason.
2.Further or alternatively, the second respondent constructively failed to exercise her jurisdiction by failing to consider whether forcing the second applicant to perform military service would itself amount to persecution.
Particulars
a. Forcing a person to perform military service, against their political conscience, may amount to persecution for a Convention reason, notwithstanding that the law requiring military service is one of general application.
b. In the application the first applicant stated that he did not want the second applicant to perform military service because he:
i. was opposed to the second applicant assisting the Iranian government; and
ii. feared that the second applicant would be persecuted while performing the compulsory military service because the Iranian government is aware of his anti-government views.
c. In the application the second applicant stated that, if returned to Iran, he would be forced to perform military service. He claimed, relevantly, that he did not want to and would not perform military service for the Iranian government because he did not believe in the government.
d. The statements of the applicants raised a claim that, if returned to Iran, the second applicant would be forced to perform compulsory military service and, because of the political opinion held by the applicants, the requirement to perform such military service would amount to persecution of the applicants for a Convention reason.
e. In her reasons for decision the second respondent stated that she accepted the evidence of each of the applicants that neither wanted the second applicant to perform military service for the Iranian government.
f. The second respondent did not state whether she also accepted the applicants’ claims that the reason neither of the applicants wanted the second applicant to perform military service was that they are each politically opposed to serving the Iranian government.
g. In her reasons for decision the second respondent found that the second applicant’s desire to avoid military service was not a Convention claim for protection because:
i. he did not claim to be a conscientious objector, nor did the second respondent find him to be one; and
ii. the law of compulsory military service in Iran is a law of general application that would not be applied discriminatorily against the second respondent for a Convention reason.
h. While the second applicant did not claim to be a conscientious objector in the sense that he did not claim to hold the opinion that any form of war or military service is wrong, both applicants claimed an objection to the second applicant performing military service for Iran because of their political opinions.
i. The second respondent failed to identify and consider the claim that the applicants objected to the second applicant performing military service for the Iranian government because of their political opinion about the Iranian government.
j. Having failed to consider the claim that the applicants objected to the second applicant performing compulsory military service for the Iranian government because of their political opinions, the second respondent then failed to consider whether being forced to perform military service, against their political conscience, would amount to persecution of the applicants for a Convention reason.
3.Further or alternatively, the IMR applied the wrong test in considering whether being a failed asylum seeker returning from the West would result in persecution in Iran.
Particulars
a. In her reasons for decision the second respondent stated, relevantly, that she was not satisfied that being a failed asylum seeker would, in itself, result in mistreatment on return to Iran.
b. The second respondent should have asked herself whether there was a real chance that returning as failed asylum seekers would result in persecution of the applicants.
c. The second respondent erred in applying a more stringent test than that required by law to the question.”
Declaratory and injunctive relief is sought by the applicants. The applicants also rely upon an affidavit sworn by Ms Sharon Van Dyk, Solicitor, on 16 May 2011. That affidavit annexes a transcript extract and a further transcript extract. The first respondent filed a response (directed to the initiating application) and maintained at the hearing of the matter that the application should be dismissed. Each of the applicants and the first respondent filed written submissions, and a court book of relevant documents has been filed by the first respondent.
Section 477(1) of the Act places a 35 day time limit on making application to the Court for review of a migration decision. However, in these circumstances the time limit does not apply as what is being sought to be reviewed is an assessment and recommendation by an Independent Merits Reviewer (‘the Reviewer’) [SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 at paragraph 31].
The applicants seek judicial review of a recommendation made by the Reviewer dated 10 November 2011, and notified to the applicants on 16 November 2011, that they not be recognised as persons to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1961 Protocol Relating to the Status of Refugees (together referred to as the ‘Refugee Convention’), or as a member of the same family unit of such person.
Background
The applicants are father and son and are citizens of Iran. They arrived at Christmas Island as offshore entry persons on 5 October 2010 and lodged a request for a Refugee Status Assessment on or about 28 October 2010. On 1 December 2010, the applicants were interviewed by a Refugee Status Assessment officer of the Department of Immigration and Citizenship. On 7 March 2011 an officer of the Department of Immigration and Citizenship found neither applicant to be someone to whom Australia owes protection obligations. This determination was notified to the applicants on that date. Subsequently and on 17 March 2011, the applicants applied for Independents Merit Review of that determination. They were interviewed by the Reviewer on 5 August 2011. Prior thereto, their migration adviser had provided written submissions to the Reviewer and referred the Reviewer to various pieces of country information. Post the hearing, the applicants’ migration adviser provided further written submissions on information put to the applicants during the hearing to the Reviewer.
The claims of the applicants are as succinctly set out in the written submissions of both parties and adopting them from paragraph 6 of the first respondent’s written submissions, they are as follows:-
“6.1The applicants claim to have a well founded fear of persecution by the Basij on the basis of their actual and imputed political opinion, their opposition to the Ahmadinejad government and their membership of particular social groups of returnees or failed asylum seekers returning from a Western country.
6.2The father applicant claimed to have participated with the son applicant in a demonstration against the June 2009 election result. The father applicant thought that the election was fake and walked in the demonstration to show his opposition to the current government. Following the demonstration, he was subjected to prolonged harassment by the Basij which included surveillance of his home and business and security checks outside his premises for more than a year.
6.3The son applicant was approached by the Basij to spy on his family and friends but declined.
6.4The applicants left Iran in September 2010 and soon after two summonses were issued against the father applicant.
6.5The father applicant’s wife and daughter who remained in Iran were assaulted and the father applicant’s bank account was shut down and his business sealed.
6.6The son applicant, who is 17 years old, did not want to return to Iran as he would be required to perform compulsory military service for two years and he did not want to live there.”
Findings of the Independent Merits Reviewer
The Reviewer made the following findings which led the Reviewer to conclude in a statement of reasons dated 10 November 2011 that the applicants did not meet the criterion for a protection visa:-
“(a)the Reviewer found that the applicants’ evidence on a number of issues central to their claims were variously inconsistent, implausible and unsupported, including by country information;
(b)the Reviewer found that the applicants were not reliable, credible or truthful witnesses about their experiences in Iran and rejected their key claims on the basis of adverse credibility findings;
(c)accordingly, the Reviewer found that the father applicant and his family were not subjected to harassment and surveillance by the authorities because of an imputed anti-government political opinion;
(d)the Reviewer found that whilst the applicants may have attended the demonstration claimed before watching from their roof, she did not accept that they were involved in a stone throwing encounter with a security officer or that they were subsequently targeted by the Basij as a consequence. Further the Reviewer did not accept that the applicant father’s son suffered harassment amounting to persecution by the Basij as a result of his or his father’s imputed political opinion;
(e)the Reviewer did not accept that the son applicant was approached by the Basij to spy on his family as the Reviewer had already rejected the father applicant’s claim that his family was under surveillance;
(f)the Reviewer gave no weight to the two summonses submitted by the father applicant. She noted that no charges were specified in the summonses and in light of the identified inconsistencies in his evidence as well as country information on the availability of false court documents, found that the documents were fabricated by the father applicant after he had received a negative Refugee Status Assessment decision in order to advance his claims;
(g)the Reviewer accepted that the father applicant did not want his son to do military service for the Iranian government and that the son did not wish to do this. However, the Reviewer found that the son applicant did not claim to be a conscientious objector and was not satisfied on the evidence before her that he was. The Reviewer was satisfied that the military service in Iran was a result of a law of general application and was not satisfied that it would be discriminately applied against him for a Convention reason;
(h)the Reviewer noted that the applicants’ own evidence was that they had left Iran on their own genuine passports and encountered no difficulties during their departure. Further, the father applicant had contacted the passport officer prior to their departure to establish that there was no impediment to them leaving Iran, suggesting that he was not fearful of the authorities for any reason;
(i) the Reviewer was not satisfied that the father applicant would face a real chance of serious harm on return to Iran on the basis of his actual or imputed political opinion;
(j)the Reviewer did not accept that the father applicant would face serious harm for reasons of membership of a particular social group of people who have variously sought asylum in/left Iran for/and those who are returnees or failed asylum seekers returning from a Western country;
(k)the Reviewer was not satisfied on the basis of country information that being a failed asylum seeker would, of itself, result in mistreatment on return to Iran. Having rejected the father applicant’s claims to already be of interest to the Iranian authorities, the Reviewer was not satisfied he would be identified and arrested on return to Iran.
(l)the Reviewer was not satisfied that the father applicant would be suspected of being a spy for the Australian government;
(m)the Reviewer said at paragraphs 125 and 126 of her reasons:-
“125.Given that I did not accept that the claimant was being targeted by the authorities for political reasons, I do not accept the father applicant’s unsupported claims that his wife and daughter were assaulted and had to flee their house, that his bank account was frozen, business sealed and deeds to his house seized by the authorities because of his imputed political opinion. Given that all these events are alleged to have taken place after the applicants received their negative Refugee Status Assessment decision, as well as the unreliability of the applicants’ evidence on other issues, I considered that they were fabricated to advance their claims at review.
126.The claimant’s claims in regard to these events, which he said took place in April 2011, are further undermined by the fact that in June 2011, while she was allegedly in hiding, the claimant’s wife visited the Australian Embassy in Tehran to apply for a tourist visa to Australia. As I put to the claimant several times, given that the Iranian security guards stationed outside foreign embassies were able to monitor people entering and leaving, this was not an act of someone in genuine fear of the authorities, especially as his wife had been told that he was suspected as a foreign spy. The claimant said his wife had told him she was frightened of the Iranians at the front door of the embassy, but simply repeated that he had assured her that the Australian authorities would not disclose her information to anyone. He also confirmed that nothing had happened to his wife since her visit to the embassy.”
Finally, the Reviewer noted in paragraph 111 of her decision the following: -
“By his own evidence, backed up by that of his son, the claimant had no political profile, had never been politically active or had any encounters with the authorities until he participated in a protest with his 15 year old son and thousands of other Iranians several days after the 2009 elections. Although well sourced country information about the human rights situation in Iran in the wake of the 2009 elections, including that provided by the claimant’s adviser, indicates that ordinary Iranians without a political profile were among those beaten, arrested and detained by the authorities at the time of the protests and immediately after, the claimant and his son were able to return home without any untoward consequences.”
The Reviewer concluded that on the evidence before her, and having considered the matters raised both separately and cumulatively, she could not find the applicants to satisfy the definition of a refugee.
Consideration
As the decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] 243 CLR 319 establishes, the assessment and review conducted by the Reviewer must be procedurally fair and must involve a correct application of the legal principles governing whether the criterion stated in s.36(2) of the Act is met.
Grounds 1 and 2 of the applicants’ claims deal with their contention that the Reviewer failed to address whether the applicants would suffer persecution due to the son applicant’s refusal to perform compulsory military service on the basis of his political opinion and whether forcing the son applicant to perform military service would itself amount to persecution. Justice Gray considered these matters in Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814 at paragraph 28 where he said the following: -
“It therefore appears that, when an issue of refusal to undergo compulsory military service arises, it is necessary to look further than the question whether the law relating to that military service is a law of general application. It is first necessary to make a finding of fact as to whether the refusal to undergo military service arises from a conscientious objection to such service. If it does, it may be the case that the conscientious objection arises from a political opinion or from a religious conviction. It may be that the conscientious objection is itself to be regarded as a form of political opinion. Even the absence of a political or religious basis for a conscientious objection to military service might not conclude the inquiry. The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. See Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 (2000) 105 FCR 548 at [65] per Merkel J. Forcing a conscientious objector to perform military service may itself amount to persecution for a Convention reason.”
I find the applicants’ claims in their totality were considered by the Reviewer and rejected. The Reviewer went further to comment adversely on the applicants’ credibility. The Reviewer specifically asked the son applicant about the requirement for him to do military service and as part of that dialogue the son applicant said:-
“What if I don’t want to do the military service for that country? Cause when I don’t believe in a country I’m not gonna do military service for them.”
His father said:-
“I did not want him to do military service for that government.”
The Reviewer considered this evidence in the totality of the evidence before her. She made a factual finding, as stated in her reasons, that the son applicant was not a conscientious objector and that his refusal to undergo military service did not constitute a conscientious objection. In doing so and on a reading of her reasons as a whole, it is implicit that she also dealt with the claim as to whether the conscientious objection was itself a political opinion. The Reviewer had already rejected the claims made by the applicants that they had a well-founded fear of persecution because of their actual or imputed political opinion. She did so as part of her fact-finding task, which included adverse credibility findings, on the evidence before her. Such a finding was open to her and it is not for this Court to dispute. As submitted by Counsel for the first respondent, and upon a reading of the reasons as a whole, the Reviewer applied the correct legal principles as set out in the decision of Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814 where the applicants’ specific claims in this regard were addressed and rejected and otherwise subsumed into a finding of greater generality.
The applicants claim the Reviewer applied the wrong test in considering whether being a failed asylum seeker returning from the West would result in persecution in Iran. I do not find that to be the case. The Reviewer did undertake the required speculation on the chance of persecution emerging from a consideration of the whole of the evidence before her. She found the applicants did not hold a well-founded fear of persecution as contemplated by s.91R(1) of the Act for any Refugee Convention reason. The Reviewer made findings of fact which were open to her on the evidence. No jurisdictional error is apparent on this ground.
Section 91R(2) of the Act prescribes instances of serious harm for the purposes of the Act. I accept the first respondent’s submission that the Reviewer turned her mind to this question and was not satisfied on the basis of country information that being a failed asylum seeker would, of itself, result in mistreatment on return to Iran. Having rejected the father applicant’s claims to already be of interest to the Iranian authorities, the Reviewer was not satisfied he would be identified and arrested on return to Iran.
The applicants’ application shall be dismissed and costs will follow the event.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 24 September 2012
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