MZYUL v Minister for Immigration
[2012] FMCA 799
•7 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYUL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 799 |
| MIGRATION – Application for a judicial review of recommendation made by an IMR Reviewer – Applicant an Iranian citizen – consideration of application of laws of general application and enforcement of such laws in a discriminatory manner – consideration of risk of harm to the Applicant – consideration of country information put to the Applicant by the Reviewer. |
| Migration Act 1958 (Cth) |
| Australian Broadcasting Tribunal v Bond(Bond Media Case) (1990) 170 CLR 321 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZHZF v Minister for Immigration and Citizenship & Anor [2007] FCA 1173 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 |
| Applicant: | MZYUL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | R. LAYTON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | MLG 95 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 18 June 2012 |
| Date of Last Submission: | 18 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lewis |
| Solicitors for the Applicant: | Maddocks Lawyers |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application in this matter is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 95 of 2012
| MZYUL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| R. LAYTON IN HER CAPACITY AS INDEPENDENT PROTECTION ASESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Background
In this matter the Applicant has applied to the Court for judicial review of a recommendation made by the Second Respondent in an Independent Merit Review (“IMR”) report dated 17 December 2011 (“the Report”). The Reviewer recommended that the Applicant should not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The Applicant seeks:
·A declaration that the recommendation in the Report was not made in accordance with law; and
·An injunction restraining the First Respondent from relying upon the recommendation.
The Applicant is a citizen of Iran. He left Iran in August 2010. He arrived at Christmas Island on a boat he boarded in Indonesia which was later intercepted by the Australian Navy, on 20 September 2010.
On 8 November 2010, the Applicant requested a Refugee Status Assessment. In support of this request he lodged a statutory declaration of the same date. He was interviewed on 15 November 2010.
On 13 December 2010, the Assessment officer found that the Applicant was not a refugee.
The Applicant sought a review of the Refugee Status Assessment. The Applicant’s representative lodged written submissions in support on 29 July 2011.
On 8 August 2011, the Reviewer interviewed the Applicant. At the interview, the Applicant was represented and gave evidence with the assistance of an interpreter.
By emails sent on behalf of the Reviewer to the Applicant’s representatives on 4, 28 and 29 November 2011, various queries about the Applicant’s claims were put to him, and extracts of country information were provided.
In an email dated 30 November 2011, the Applicant’s representatives set out a response to the matters raised in the Reviewer’s request of 4 November 2011 and a response to the separate email of 29 November 2011.
On 17 December 2011, the Reviewer issued the Report, in which she recommended that the Applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
On 2 February 2012, the application for judicial review was lodged. On 4 May 2012, the Applicant filed an amended application.
The Reviewer’s findings
The Reviewer found that the Applicant was an Iranian citizen of Persian ethnicity and a practising Shia Muslim.
The Reviewer accepted that in 1996, the Applicant had been detained by police and later sentenced to 60 lashes in respect of his contravention of an Iranian law relating to the segregation of unrelated males and females. The Reviewer also found that this occurred because the Applicant had been subject to a law of general application in Iran and that the law had not been enforced against him in a discriminatory manner for a reason set out in the Convention.
The Reviewer found that, aside from this single incident in 1996, the Applicant had no criminal record. The Reviewer also found that, aside from this incident, the Applicant had no other problems with the Iranian authorities.
The Reviewer accepted that as a result of the incident in 1996, the Applicant had a criminal record in Iran and that this criminal record precluded the Applicant from:
·Getting a government job; and
·Getting a business licence in his own name, including a taxi licence; and
·Joining a soccer club.
The Reviewer also accepted that some private employers refused to employ him. The Reviewer found however that the consequences of the Applicant’s criminal record were matters governed by laws of general application in Iran and did not give rise to serious harm.
The Reviewer noted that on the Applicant’s own evidence, the Applicant had worked from 1998 to 2010 and during that time had also studied from 2001 to 2010. The Reviewer also noted that, despite his criminal record, the Applicant had been able to obtain a driver’s licence and a passport. The Reviewer further noted that during the period from 2009 to 2010, the Applicant had travelled legally on three occasions outside of Iran.
The Reviewer found that when the Applicant left Iran to come to Australia, he did not have a subjective fear of persecution in Iran and the Iranian authorities did not have an adverse interest in him.
The Reviewer accepted that upon any return to Iran, the authorities might know that the Applicant had applied unsuccessfully for asylum in Australia. The Reviewer also accepted that the authorities might know of the Applicant’s 1996 conviction. Nonetheless, the Reviewer was satisfied that, in this regard, any harm suffered by the Applicant “would be limited to questioning and perhaps a fine”.[1]
[1] Court Book, page 130 at paragraph 117.
The Reviewer further found that, if the Applicant were, upon any return to Iran questioned and perhaps fined, the reason for this action on the part of the Iranian authorities would be “application of a law of general application to people returning to Iran without the documents with which they left Iran”.[2]
[2] Ibid, page 131 at paragraph 119.
The Reviewer also found that, if the Applicant were, upon any return to Iran, questioned and perhaps fined, this treatment would not constitute serious harm amounting to persecution within the meaning of the Convention.
The Reviewer did not therefore accept that the Applicant faced a real chance of Convention-related persecution in Iran.
Grounds
The Applicant raises two grounds in support of his application. The first alleges a failure to observe the requirements of procedural fairness, specifically that:
The second respondent failed to put to the applicant for his consideration and comment aspects of country information known to the second respondent which the second respondent considered may have borne upon the applicant’s claims.
Specifically, the second respondent failed to put to the applicant the reference from the report ‘Iran’, Danish Immigration Services, 30.4.09 at paragraphs 7.7-7.8 that “returnees may be fined.” (paragraph 114 of the reasons).[3]
[3] Amended Application filed 4 May 2012, pages 2-3.
The second ground alleges that the Second Respondent exceeded her jurisdiction and/or constructively failed to exercise jurisdiction in that she made findings for which there was no evidence or no probative material and/or misconstrued or failed to consider the Applicant’s claim. Specifically, the Applicant refers to the following findings of the Second Respondent:
(a)That the country information referred to and relied upon revealed that:
(i)Returnees may be fined (paragraph 114 of the reasons).
(ii)It was uncertain what, if anything else may happen to returned failed asylum seekers (paragraph 114 of the reasons);
(iii)If investigators find no evidence that the person has committed illegal offences which were unresolved before leaving Iran, the person will not have problems with the authorities upon return to Iran (paragraph 116 of the reasons.
(b)The harm that the applicant would suffer upon his return to Iran would be limited to questioning and perhaps a fine (paragraph 117 of the reasons);
(c) The applicant does not have the profile of a person who would be identified on return for systematic and discriminatory treatment for Convention reason/s by the Iranian authorities (paragraph 117 of the reasons);
(d)If the applicant returns to Iran and is questioned and perhaps fined, that the questioning and possible fine would be for the reason of a law of general application to people returning to Iran without the documents with which they left (paragraph 118 of the reasons).[4]
[4] Amended Application filed 4 May 2012, page 3.
Ground 1
The basis for ground 1 as submitted by the Applicant may be summarised as follows:
On 28 November 2011, a letter was sent to the Applicant’s solicitors on behalf of the Reviewer putting particular propositions and seeking comment on six specific questions. None of the specific questions related to the topic of failed asylum seekers returning from Western countries. The letter also included country information relating to the human rights situation in Iran, the criminal law in Iran and three paragraphs under the heading “Returnees to Iran”.[5]
[5] Court Book, pages 91-92.
The Applicant’s representative responded to the six issues raised in the letter and an issue relating to Article 62 of the Islamic Penal Code raised in a separate email.
The Applicant submits that there was nothing contained within the material put to him in writing that suggested that what might happen to him on his return, upon becoming known as a failed asylum seeker, was limited to a fine only.
The material contained in the letter under the heading “Returnees to Iran” is as follows:
The country information indicates that to exit Iran legally, Iranians need not only a valid passport but also the government required exit permits for foreign travel for all citizens: ‘Iran’, Human Rights Report 2010 DoS, 8.4.11.
According to Iranian law, Iranian citizens abroad who are not in possession of a passport cannot be forced to apply for a passport or to sign papers to obtain travel documents: ‘Iran’ Danish Immigration Service Report, April 09, paragraph 7.7. A person who enters Iran on travel documents issued by an Iranian embassy may be questioned by airport authorities upon arrival: ibid. If investigations find any evidence that the person has committed illegal offences before leaving Iran he or she may be prosecuted, but if there is no evidence against the person, the person will not have problems with the authorities upon return to Iran: ibid. If the person has left Iran legally, he or she will not face any problems with the airport authorities when entering Iran: ibid.
As to failed asylum seekers, ‘Iran’, Danish Immigration Service, April 09, section 6.5.4, states that Iranian embassies and their network of informants are reported in general to keep asylum seekers and refugees under strict surveillance. It is reported that on return, failed asylum seekers are questioned: ibid, paragraph 7.7. Country information indicates that a person who is deported back to Iran and who is not in possession of a passport containing an exit visa will be arrested and taken to a special court which is located in Mehrabad Airport in Tehran where the court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups and any other circumstances, and then the judge sentences the person: ‘Iran’, UK Home Office COI, 28.6.11, paragraph 31.21. It is uncertain what else, if anything may happen to failed asylum seekers returned to Iran: ‘From Protest to Prison: Iran One Year After the Elections’, Amnesty International, 2010 (‘From Protest to Prison: Iran’ AI, 2010). ‘Iran’ UK Home Office COI 28.6.11 paragraph 31.24 refers to a student activist failed asylum seeker who was detained on return to Iran and paragraph 31.25 quotes an Amnesty International report which referred to a failed Kurdish asylum seeker being detained on return to Iran and to an article dated 17 February 2011 by a former Supreme Court judge of Iran which stated that ‘failed asylum seekers could be prosecuted for making up accounts of alleged persecution’.[6]
[6] Court Book, pages 91-92, ‘4. Returnees to Iran’.
The Applicant submits that the extracted section beginning “As to failed asylum seekers . . .”[7] quoted information generally consistent with the Applicant’s claim that he was at risk of serious harm if he was returned to Iran as someone who was a failed asylum seeker returning from a Western country without appropriate documentation and with a prior criminal record.
[7] Ibid at page 91.
The Applicant further submits when the Second Respondent found that any harm the Applicant would suffer on return to Iran, “would be limited to questioning and perhaps a fine”[8] the finding that the harm may be limited in this way was based, at least in part, on the Reviewer’s reference to extracted country information at paragraph 114 of her reasons, namely that “returnees may be fined”.
[8] Court Book, page 130 at paragraph 117.
With respect to that information the Applicant submits:
·The extract referred to was not included in the material provided to the Applicant.
·The information was not put to the Applicant during the hearing.
·The Applicant was entitled to be informed of the nature and context of adverse material.[9]
·The Applicant was entitled to be given an opportunity to deal with adverse information that was credible, relevant and significant to the decisions to be made.[10]
·The Applicant was entitled to understand that the extracts or summaries provided to him were the only parts of the report that were relevant.
·If properly informed, the Applicant could have pointed out that the extract ‘Returnees may be fined’ related only to Iranians returning on a ‘laisser passer’ who may be fined for an illegal exit from the country. The Applicant did not leave Iran illegally.
·The Applicant was denied the opportunity of adducing material suggesting that the difficulties facing returned asylum seekers might be more serious, in circumstances where it would be likely that authorities would know that he had made an asylum application which was refused.
[9] Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592.
[10] Ibid.
In response to the First Respondent’s submission that the Applicant’s representatives either knew or should have known about the contents of the Danish report, the Applicant makes three points.
·First, while the Applicant’s representatives did quote from the Report in their submission to the Reviewer, they did so from a secondary source – the UK Border Agency Home Office Report Relating to Iran, 28 June 2011. This does not suggest that they had a copy of the Danish Report; otherwise they would have quoted from it directly.
·Second, the Applicant was entitled to understand that he had been provided with the parts of the Danish Report that were relevant to the Reviewer’s decision.
·Third, it could not have been foreseen that paragraph 7.7 of the Danish Report would be used in the way that it was because the reference relating to returnees being fined related to those who left the country illegally and the Reviewer found that the Applicant had left legally using his own passport.
The Applicant relied in particular in support of the denial of natural justice point on the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs and Anor; Ex parte MIAH [2001] HCA 22 at paragraph [141] (“MIAH”) and the decision of Katzmann J in SZQNO v Minister for Immigration and Anor [2012] FCA 326 at paragraphs 41 and 42 (“SZQNO”); the decision of the Full Court of the Federal Court in Commissioner for ACT Revenue and Alphaone Proprietary Limited (1994) 49 FCR 576 at 592 (“Alphaone”) and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at paragraph 9 (“SZGUR”).
The First Respondent submitted that the Reviewer was not obliged to inform the Applicant about adverse information of which he was or should have been aware. The Applicant was represented at all times and his representative lodged written submissions which referred to the Danish Report in connection with the claimed treatment of failed asylum seekers on return to Iran.
The first piece of correspondence was sent to the Applicant’s representative on 4 November 2011. The second one, dated 28 November 2011, is the same in substance except for the addition of the country information about returnees to Iran. It makes specific reference to part 7.7 of the Danish Report.
From the Applicant’s own submissions to the Reviewer, his representatives were well aware that there were a range of options as to what a failed asylum seeker might face on return to Iran.
The First Respondent submits that Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 (“Cassim”) is analogous to the present case. In that matter, the applicant argued that the failure to put to him what was contained in ‘Cable Cl847’ led to a denial of natural justice. The cable had been brought to the attention of the Tribunal by the applicant’s solicitor who had sent the Tribunal an extract from an earlier decision of the Tribunal which referred to the cable. McHugh J found:
In its reasons, the Tribunal said that Cable Cl847 from the Department of Foreign Affairs and Trade was inconsistent with part of the applicant's evidence. The applicant claimed that he should have been given an opportunity to comment on the contents of this cable. This was a surprising claim given that the cable had been brought to the attention of the Tribunal by the applicant's solicitor. After the applicant had given evidence, the solicitor had sent to the Tribunal an extract from an earlier decision of the Tribunal. That extract referred to this cable. In this Court, the applicant contended that the Tribunal could not use the cable without giving him an opportunity to comment on it.
There is no substance in this assertion. The rules of natural justice do not require the Tribunal to reveal to an applicant that it intends to act on information that is in the public domain or on information of which the applicant is or should be aware. The extract forwarded by the applicant's solicitor referred to the cable. That being so, the Tribunal was under no obligation to ask the applicant to comment on the cable. It was for the applicant to put before the Tribunal whatever evidence or argument he relied on to support his case, and for the Tribunal to rule on that evidence and argument [Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187]]. It is preposterous to suggest that the applicant was denied a fair hearing because the Tribunal acted on information in a cable which was referred to in an extract of a judgment forwarded to the Tribunal by his solicitor.[11]
[11] Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at paragraphs 21-22.
The First Respondent referred to other cases in support of the same proposition. In those circumstances, and where there was an acknowledgement by the applicant there were a range of possible options as to what might happen should he return to Iran, the finding that the Applicant faced less serious treatment, and in particular questioning, and perhaps a fine and nothing more would not have been surprising.
The First Respondent further argued that even if there was a denial of procedural fairness, the Applicant’s request for relief should be denied because the Reviewer found that any treatment to which the Applicant was subject on return would be pursuant to a law of general application relating to ‘people returning to Iran without the documents with which they left Iran’ and not for any Convention reason. As such no useful result could ensue from the grant of such relief.
The First Respondent referred to paragraphs 27 to 29 of the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) in support of this submission.
The Applicant submits that the Second Respondent’s finding in relation to there being no Convention nexus cannot be separated from the finding that “any harm the applicant would suffer in Iran would be limited to questioning and perhaps a fine”.[12] The Applicant disputes that there was any evidence to support that finding as set out in the ground 2 of the grounds for review.
[12] Court Book, page 130 at paragraph 117.
Ground 2
The Applicant alleges that the Second Respondent made a series of flawed findings based upon a misunderstanding of the country information purported to have been relied upon, for which there was either no evidence upon which the finding could be made or, when properly analysed, the findings constitute a fundamental misunderstanding of the Applicant’s claims and which resulted in a constructive failure to deal with the Applicant’s claims.
The Applicant submits:
·The making of findings and drawing of inferences without evidence constitutes an error of law.[13]
[13] Australian Broadcasting Tribunal v Bond(Bond Media Case) (1990) 170 CLR 321 at 355-356; MZYLY v Minister for Immigration [2012] FCA 357 at [29].
·A failure to deal with a claim also constitutes a jurisdictional error.[14]
·The Second Respondent must consider each integer of the Applicant’s claim.[15]
·The fact that ‘returnees may be fined’ relied upon by the Second Respondent is not derived from the source referred to by the Second Respondent.
·The Second Respondent erred in concluding that ‘returnees’ in the article referred to ‘failed asylum seekers’.
·That error constituted not only a misunderstanding of the country information but a misconception of the Applicant’s claims.
·The Amnesty International report does not refer to what may happen to failed asylum seekers returning to Iran and cannot be a source for the finding that it was not clear what else may happen to failed asylum seekers.
·The paragraph of the Danish Immigration Service Report used to support the conclusion “if investigators find no evidence that the person has committed illegal offences which were unresolved before leaving Iran, the person will not have problems upon return to Iran”[16] does not deal with failed asylum seekers.
·The Second Respondent relied on country information erroneously in reaching her conclusions and therefore failed to adequately consider and comprehend the nature of the Applicant’s claims.[17]
·There was no evidence on which the Second Respondent could conclude that any harm to the Applicant would be limited to questioning. The UK Home Office Report does not support that finding.
·The personal factors relied upon by the Second Respondent did not relate to him returning to Iran as a failed asylum seeker from a western country with a prior criminal conviction, but instead referred to matters which pre-dated his departure from Iran.
[14] NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No. 2) [2004] FCA 927 at [55]-[63]; Plaintiff M 61/2010E v Commonwealth (2010) 243 CLR 319 at [90].
[15] VTAO v M Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 at [62]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259; SZGUW v Minister for Citizenship [2008] FCA 91 at [53].
[16] Court Book, page 130 at paragraph 116.
[17] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
The Applicant referred the Court to the decision of the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 (“NABE”)and in particular to paragraph [63] of that decision:
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]. But as the Full Court said in WAEE (at [45]):
…If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.
In that case the appellant, who was an Iranian citizen, put to the tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The court held that the tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The court held that the tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.[18]
[18] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [63].
The Applicant submits that the Reviewer failed to deal with the Applicant’s claim that he feared persecution on the basis of his status as a failed asylum seeker returning from a Western country, because of the error in her findings about what might happen to him on his return.
There was evidence that he might face serious harm in particular paragraph 31.25 of the UK Report and the evidence, accepted by the Reviewer, that “the country information indicates that Iran’s human rights record is poor and worsened after the 2009 presidential elections”.[19]
[19] Court Book, page 130 at paragraph 114.
The evidence in its totality did not allow for a finding that all that may happen would be questioning, and perhaps, a fine.
The First Respondent in addressing this issue put to the Court that the country information left it quite open as to what might occur. While the Danish Report at 7.7 did not deal specifically with asylum seekers, it was at least some evidence going to the findings related to what might happen to people upon their return. It is a high bar for a person to say that there was no evidence at all in respect of a particular factual finding.
There is no reviewable error in the Reviewer merely making a wrong finding of fact. Illogical reasoning will not, of itself, in the First Respondent’s submission, normally give rise to reviewable error unless it can be shown that that reasoning demonstrates a misconstruction or misapplication of the correct legal test. The weight to be given to respective items of evidence was a matter for the Reviewer. Among other things, the selection and weight given to particular items of country information was a matter for the Reviewer.
The First Respondent cites Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (“SZNPG”) at paragraph [28]:
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.[20]
[20] Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]
Even if the Reviewer misunderstood the relevant country information it does not follow that she misconceived his claims to be a refugee.
Further, the First Respondent submits that to make out the case for judicial review the Applicant needs to establish that there was no evidence at all upon which a factual finding of the Reviewer could have been based (see SZHZF v Minister for Immigration and Citizenship & Anor [2007] FCA 1173 (“SZHZF”) at [33] and VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 (“VWBF”) at [17]). In addition, the fact of which there is said have been no evidence must have been critical to the Reviewer’s recommendation.[21]
[21] VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [19].
The First Respondent submits that there was some evidence to support the Reviewer’s findings based on the country information, the Reviewer’s own knowledge[22] and the Applicant’s own profile. Second, the finding was not one which was critical to the Reviewer’s conclusions in relation to the Applicant’s claims because she found that any claims about the possible treatment of him by Iranian authorities on his return would occur because of a law of general application in Iran relating to ‘people returning to Iran without the documents with which they left Iran’ and therefore not for a Convention reason.
[22] ReMinister for Immigration and Multicultural Affairs; Ex parte MIAH [2001] HCA 22 at [28].
Conclusions
The issue of the Applicant being at risk of serious harm for reasons of imputed political opinion on return to Iran was first raised by his representatives in a written submission to the IMR on 29 July 2011:
. . . it is not possible to conclude that all returnees will not face problems. Many sources pointed to the fact that prosecution and persecution of returnees does not depend solely on the acts committed by the returnee. The arbitrariness in the Iranian judicial system and the need of private people to settle personal scores leaves no room for certainty as to the safety of the returnee . . . [cited in UK COI 28 June 2011 p104).[23]
[23] Court Book at page 76.
The representative cites a passage from the Danish Immigration Service Report as quoted in the UK Country of Origin Information (COI) Report on Iran dated 28 June 2011. That part of the Danish Report refers specifically to sympathisers and former members of the MKO (Mujahedin-e Khalq Organisation), an Islamist socialist organisation and not to failed asylum seekers.
It is reasonable that, having raised the issue of the possibility of the risk of serious harm should the Applicant return to Iran as a failed asylum seeker, the Applicant might expect the Reviewer to put relevant information concerning ‘returnees to Iran’ to the Applicant for comment.
The Danish Report itself does not deal specifically with ‘failed asylum seekers’ apart from the reference in paragraph 6.5.4, “in general, asylum seekers and refugees are kept under strict surveillance by any Iranian embassy and its network of informers”.[24] Part 7 of the Report is headed “Exiting and Entering Iran”.[25] Part 7.4 deals with “Illegal Exit”, Part 7.6 with “Issuing of travel documents at Iranian representations abroad” and Part 7.7 with “Entering Iran”.[26] There is no reference to failed asylum seekers in paragraph 7.7 of the Report.
[24] Affidavit of Sophie Eloise Garland, affirmed 4 May 2012, Attachment SEG-3.
[25] Ibid.
[26] Ibid.
In particular, the reference in the email of 28 November 2011 to the Applicant, at page 91 of the Court Book, “It is reported that on return, failed asylum seekers are questioned”, is not a statement from the Danish Report at 7.7. A further statement, “It is uncertain what else, if anything may happen to failed asylum seekers returned to Iran”[27] (which follows a quote about persons deported back to Iran and who are not in possession of a passport containing an exit visa) is attributed to the Amnesty International Report ‘From Protest to Prison: One Year After the Elections’ but not to any particular part of that Report. It appears not to have been derived from that Report.
[27] Court Book at page 91.
Had the Applicant read those source documents, it is unlikely that he would have been on notice that they would form a basis for the Reviewer’s findings.
The paragraphs of the Report which are relevant to this matter are contained at paragraphs 112 to 118 of the Report:
112. The claimant claimed that because he has a criminal record, he has sought asylum in Australia, he no longer has his passport with which he left Iran, and he has applied for asylum in Australia, if he returned to Iran he would be arrested by the authorities and accused of being a spy, or of going against his religion, or of having an adverse political opinion, or of other false charges.
113. On the other hand, as to the claimant returning to Iran without the passport with which he left Iran, I note that the country information indicates that Iranian citizens abroad who are not in possession of a passport cannot be forced to apply for a passport or to sign papers to obtain travel documents, according to Iranian law: ‘Iran’, Danish Immigration Service Report, 30.4.09, paragraph 7.8. As well, I note that the country information indicates that Iranian Embassies are reported in general to keep asylum seekers under strict surveillance: ‘Iran’, Danish Immigration Service, 30.4.09, paragraph 6.5.4; ‘Iran: Returned Asylum Seekers’, Landinfo, 19.4.11. After considering the evidence and the country information, I accept that if the claimant is returned to Iran there is a chance he will be known to have sought asylum in Australia, from his not having the passport which he used to leave Iran, and, if he does not arrange for a passport for himself and agree to return voluntarily, from the process by which he is returned, and/or because the Iranian Embassy in Australian has learnt through its network that he has sought asylum in Australia. I find that if the claimant returns to Iran, he will face a chance, which I cannot dismiss as remote, that the authorities would know of his seeking asylum in Australia. I also accept that if the claimant returns to Iran, he will face a chance, which I cannot dismiss as remote, that the authorities at the airport would know of his 1996 criminal conviction.
114. Also, I note the claimant’s evidence that he had heard of a fellow asylum seeker on the same boat with a criminal record who was arrested shortly after he returned to Iran and that he learnt on the internet that the Iranian authorities had said that any Iranian resident who has committed a crime outside of Iran will be punished and that applying for asylum will be considered a crime. I note that the country information above, and referred to in oral submissions made at the review interview, indicates that a person who enters Iran on travel documents issued by an Iranian embassy may be questioned upon arrival by a Court at the airport where the court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations of groups and any other circumstances: ‘Iran’, UK Home Office COI, 28.6.11, at paragraph 31.21. Returnees may be fined: ‘Iran’, Danish Immigration Service, 30.4.09 at paragraphs 7.7 and 7.8. It is uncertain what, if anything else, may happen to returned failed asylum seekers: ‘From Protest to Prison: Iran One Year After the Elections’, AI 2010. As well, I note the country information which indicates that the authorities may prosecute failed asylum seekers for making up accounts of alleged persecution (‘Iran’, UK Home Office COI, 28.6.11, paragraph 31.25). I also accept that the country information indicates that Iran’s human rights record is poor, and worsened after the 2009 presidential elections: ‘Iran’, Human Rights Report, DoS, 8.4.11.
115. Also, although questioning on return of a national who returns without the documents with which they left their country would be in the course of the application of a law of general application for an appropriate and/or legitimate object of Iran, that is, border control, 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: Wang v Minister for Immigration and Cultural Affairs [2000] FCA 1599 (2000) 105 FCR 548, per Merkel J at paragraph 65.
116. On the other hand, I note that the country information indicates that if investigations find no evidence that the person has committed illegal offences which were unresolved before leaving Iran, the person will not have problems with the authorities upon return to Iran: ‘Iran’, Danish Immigration Service Report, 30.4.09, section 7.
117. After carefully considering the evidence and the country information, I find that if the claimant returns to Iran and is questioned at the airport, while there is a chance that he would be identified as a failed asylum seeker returned from a Western country, who in 1996 received a sentence of 60 lashes, I am satisfied that any harm the claimant would suffer in Iran would be limited to questioning and perhaps a fine for the following reasons. While the claimant has a criminal record, it is for an incident in 1996, he has incurred no other offences before or other than that time. When he left Iran, he had no outstanding issues with the Iranian authorities as demonstrated by the fact that in 2009 to 2010, he was able without problems, legally, on his own genuine passport, to leave and to re-enter Iran three times to go on holidays in 2009 to 2010, and to leave Iran in 2010 when he left intending to come to Australia. Further, I note the country information indicates that groups identified in the country information as at differentiated risk are members of minority religions or minority ethnicities, human rights activists, political activists, students and lecturers actually or perceived as being political activists, homosexuals, lawyers, journalists, converts from Islam and proselytisers of minority faiths: ‘Iran’ UK Home Office COI, 28.6.11, paragraphs 7.01 to 7.12, 21.01 to 21.45 and 23.01 to 23.77, paragraphs 9.23 and 14.01 to 14.17; ‘Iran’ Danish Immigration Service Report, April 09, paragraphs 6.1 to 6.7. I note that from 2001 to 2005 and from 2008 to 2010 the claimant was a student in Iran, but he was not politically active and he has not been politically active since he left Iran. Also, in 2009 to 2010, he was able without problems, legally, on his own genuine passport, to leave and re-enter Iran three times to go on holidays in 2009 to 2010, and to leave Iran in 2010 when he left intending to come to Australia, which indicates strongly that he was not of any adverse interest to the authorities. The claimant is a Shia Muslim which the country information indicates is the majority religion in Iran: ‘Iran’, International Religious Freedom Report 2010, DoS, 17.11.10. As well, before or after leaving Iran, he has not been politically involved, and he has not engaged in any problematic religious activities such as conversion of his religion. After considering all the evidence and the country information, I find that the claimant does not have the profile of a person who would be identified on return for systematic and discriminatory treatment for Convention reason/s by the Iranian authorities.
118. After considering the evidence and the country information, I find that if the claimant returns to Iran and is questioned and perhaps fined, I am satisfied that the questioning and perhaps a fine would be for the reason of application of a law of general application to people returning to Iran without the documents with which they left Iran, and not because of systematic and discriminatory treatment for a Convention reason such as his being a member of a particular social group ‘men with a criminal record due to offences against religion in Iran’, and/or the particular social groups of ‘failed asylum seekers’ and/or ‘failed asylum seekers returned from a Western country’, and/or ‘returnees from a Western country’, and/or for actual political opinion and/or political opinion imputed to him for him being a failed asylum seeker and/or a failed asylum seeker returned from a Western country, and/or a returnee from a Western country and/or his having been a student in Iran.[28]
[28] Court Book, pages 31-33 at paragraphs 112-118.
There are two statements in paragraph 114 upon which the Reviewer seeks to rely, at least in part, in reaching the conclusion that the most serious impact on the Applicant of being returned to Iran as a failed asylum seeker was being questioned and perhaps fined. Those are, “Returnees may be fined”, for which paragraphs 7.7 and 7.8 of the Danish Report are cited and, “It is uncertain what, if anything else, may happen to returned failed asylum seekers” for which the Amnesty International Report is cited.[29] The only mention in those two sections of the Danish Report of persons being fined is the statement, “A person entering Iran on a laissez passer, issued by an Iranian representation abroad, might be fined for illegal exit or subjected to one or two hours interrogation”[30] (my emphasis).
[29] Ibid, page 130.
[30] Affidavit Sophie Eloise Garland dated 4 May 2012 at Attachment SEG-3. page 39 at paragraph 7.7.
The Amnesty International Report contains nothing which would support the statement attributed to it.
I accept the basic contentions of the Applicant that the information given to the Applicant in the 28 November email and the source material from which that information was said to derive could not have alerted the Applicant to the possibility that the Reviewer would find that the Applicant could be fined on re-entry to Iran. It could not have alerted the Applicant to that possibility because the parts of the Danish Report and the Amnesty International Report from which the information is said to derive authority do not provide an evidentiary basis for the statements, relied upon by the Reviewer.
The Applicant was therefore denied procedural fairness when he was not given the opportunity to respond to the proposition that he might be fined on re-entering Iran as a failed asylum seekers who had left the country legally.
The Reviewer, however, did not rely entirely on those pieces of evidence in arriving at the conclusion that the Applicant was unlikely to suffer harm of such seriousness as to amount to persecution, for the purposes of the Convention. The Reviewer also relied upon her findings about the profile of the Applicant himself. Those findings derive, essentially, from the information given by the Applicant himself in support of his claim, and from the country information concerning those likely to be persecuted in Iran. From that information the Reviewer concluded that “the claimant does not have the profile of a person who would be identified on return for systematic and discriminatory treatment for Convention reason/s by the Iranian authorities”.[31] That was a finding open to her on the country information including the Danish Report, the UK Report and the Amnesty International Report.
[31] Court Book at page 33, paragraph 117.
The country information before the Reviewer dealt with the general issue of returnees to Iran who did not have the documentation with which they left. That was relevant to the Reviewer’s conclusions about what the Applicant might face on return. The Applicant was not a person who had been politically active in Iran and nor had he been involved in criticising the government of Iran since his departure. He was not a member of any of the groups about which the Reports cited had raised concerns. While there was no evidence to support a finding that the Applicant might be ‘fined’ on return to Iran, there was evidence that it was uncertain what, beyond questioning, he might suffer.
The conclusion as to the degree of seriousness which could be attributed to any harm which might befall the Applicant on return to Iran was a matter for the Reviewer. Beyond the single statement that “failed asylum seekers could be prosecuted for making up accounts of alleged persecution”[32] (my emphasis) there was no material to suggest that a failed asylum seeker who had no political involvement prior to departing Iran or since leaving Iran would be treated any differently to other persons returning to Iran without proper documentation and who had not left illegally or when wanted for alleged criminal offences in Iran.
[32] Ibid at page 92.
The finding that the Applicant may be fined was not one which was critical to the Reviewer’s conclusion that he would not suffer serious harm and that any harm he faced was as the result of the application to him of a law of general application.
As such, any denial of procedural fairness would not have a material bearing on the outcome and to grant relief on that basis would not be an appropriate exercise of discretion because of the finding that the Applicant’s claim lacked the requisite Convention nexus.
Further, the error of the Reviewer in finding that the Applicant might face a fine on his return to Iran does not mean that the Reviewer failed to understand or deal with his claim in relation to a risk of ‘facing serious harm for reasons of imputed political opinion’ should he return to Iran. The Applicant’s own profile both before and since leaving Iran were relevant considerations in determining if he might face a real risk of serious harm for reasons of imputed political opinion.
For these reasons, I am not satisfied that the relief sought by the Applicant in this matter should be granted. The Application is therefore dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 7 September 2012
CORRECTIONS
Page 2 of Cover sheet and Orders, the named Second Respondent “Refugee Review Tribunal” has been amended to “R. Layton in her Capacity as Independent Protection Assessment Reviewer”.
Page 1 of Reasons for Judgment, the named Second Respondent “Refugee Review Tribunal” has been amended to “R. Layton in her Capacity as Independent Protection Assessment Reviewer”.
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