MZYVD v Minister for Immigration
[2013] FCCA 607
•24 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYVD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 607 |
| Catchwords: MIGRATION – Review of recommendation of Independent Merits Reviewer that the applicants not be recognised as refugees – unlawful employment only in country of habitual residence – whether such a threat to capacity to subsist – review dismissed. |
Legislation
| Migration Act 1958 (Cth), s.91R(2)(f) |
Cases Cited
| Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 SZPZI v Minister for Immigration and Citizenship & Anor [2011] FMCA 530 |
| Applicants: | MZYVD, MZYVE, MZYVF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WENDY BODDISON (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) |
| File Number: | MLG 180 of 2012 |
| Judgment of: | Judge O’Dwyer |
| Hearing date: | 22 August 2012 |
| Date of Last Submission: | 22 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 24 June 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr Anderson |
| Solicitors for the Applicants: | Victoria Legal Aid |
| Counsel for the First Respondent: | Ms E. Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 20 February 2012, as amended, is dismissed.
The first and second applicants pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 180 of 2012
| MZYVD, MZYVE, MZYVF |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WENDY BODDISON (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding is an application for judicial review of the recommendation made by the second respondent (the reviewer) in her report dated 30 December 2011 which did not recommend that the applicants be recognised as persons to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).
Background and claims
The first applicant is the husband of the second applicant, and both are the parents of the third applicant (a child of 3 years).
They constitute a family of Faili Kurds, born in Iran and are Shia Muslims. They claim to fear persecution by reason of their Faili Kurd race or ethnicity; and imputed political opinion as persons who have sought asylum in Australia.
They entered Australia by boat which was intercepted and taken to Christmas Island on 18 June 2010.
On 21 August 2010 they requested an assessment by the Department of Immigration of their refugee status. A negative assessment was given. In forming that assessment, the Department’s officer accepted that the applicants were stateless Faili Kurds and that Iran was the country of former habitual residence. However, the officer was not persuaded that the discrimination the applicants may have faced in Iran amounted to persecution. The officer considered that the Iranian authorities may impose punitive measures in accordance with Iranian law for breaches of travel and exit regulations, but considered these were laws of general application and would not be applied to target the applicants for any Convention reason.
In response, on 10 November 2010, the applicants applied for an independent merits review which was conducted by the second respondent, whose recommendation is the subject of this review.
The reviewer accepted that, because of their status as stateless Faili Kurds, the applicants have no lawful right to work in Iran; that they have access to privately paid medical care, but have no access to public health care or health insurance; are subject to verbal abuse and discrimination on the basis of being Faili Kurds; that a right to higher education might be denied to the child applicant; and more generally, there are limitations on their rights to employment, education and property ownership.
In his initial interview with the Department, the first applicant indicated he had worked as a labourer in a furniture making business from 2002 to 2010. He also indicated that his father had been employed. He later clarified this claim and provided a more detailed employment history. In an interview with Department staff he explained that he had to work illegally, he claimed he did not have regular income and had to change employers. During his interview with the second respondent, the first applicant stated he did not have “proper work” but that “financial constraints were not the main problem". He claimed he had been working in different places and on one occasion his employer was fined for employing him.
The reviewer summarised country information relevant to the work rights of refugees in Iran. This information indicated that the Iranian Minister for Labour had the power to grant work permits, but this rarely happened and that most refugees worked illegally, a practice which was widely, but not consistently, tolerated by the Iranian authorities. Such illegal work was temporary, spasmodic and not secure. The first applicant maintained that there was a real risk of no employment and that a lack of employment would threaten his (and his family’s) ability to subsist.
The reviewer also set out country information relevant to the third applicant's ability to obtain an education in Iran, which was a concern for the child's mother. That information indicated some Iraqi refugees have been successful in registering their children in Iranian schools without identification documents.
Following the reviewer's interview with the applicants, she wrote to them and outlined information she considered may be the reason, or part of the reason, she might find the applicants were not refugees within the meaning of the Convention. The reviewer, I am satisfied provided that invitation to the applicants and she took into consideration their response.
Grounds for review
In an amended application, the applicant set out 4 grounds for review. At the hearing, however, the applicants abandoned grounds 2(c) and 3, leaving the following extant grounds:
1.The recommendation of the Independent Merits Reviewer (IMR) was affected by an error of law in that the Reviewer did not apply correct legal principles in determining that MZYVD was not a person to whom Australia has obligations under the Refugees Convention.
PARTICULARS
(a)The IMR considered whether MZYVD was at a real risk of serious harm in accordance with section 91R(2)(f). The IMR considered whether there was a real chance that MZYVD would not be able to obtain unlawful employment which will afford an acceptable livelihood.
(b)This was the wrong test to apply.
(c)The proper test to be applied was whether there was a real chance that denial of lawful employment to MZYVD threatened MZYVD’s capacity to subsist.
2.The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Independent Merits Reviewer's recommendation was irrational or illogical.
PARTICULARS
(a)Ground 2(a) - The conclusion that MZYVD and his father had continuous, albeit low paying, employment in the past was irrational, in that it could not be sustained on the evidence available to the reviewer in the absence of adverse credit findings.
(b)Ground 2(b) - The conclusion that “there is no real chance that MZYVD will not be able to obtain employment, albeit at a low wage, in the reasonably foreseeable future” is irrational, in that this conclusion is not open on the basis of MZYVD’s evidence and country information considered by the IMR.
(c)Ground 2(c) – [abandoned].
3.[abandoned].
4.The recommendation of the Independent Merits Reviewer was affected by an error of law in that the Independent Merits Reviewer's recommendation was irrational or illogical.
PARTICULARS
(a)The IMR’s found that MZYVF (the child) would not suffer serious harm as envisaged by section 91R(2)(f) of the Act.
(b)Implicit in the IMR’s finding that MZYDF had no “real chance” of being denied a basic education.
(c)This finding is irrational given the country information contained at CB255, which was implicitly accepted.
Submissions and Consideration
I have had the benefit of written submissions on the part of both parties as well as oral submissions made before me.
Ground 1
The applicants rely, in ground 1, on s.91R(2)(f) of the Act in determining the question of whether an individual is a victim of persecution for the purposes of the Convention as a consequence of suffering serious harm. Section 91R(2)(f) defines “serious harm” as including a “denial of capacity to earn a livelihood of any kind, where the denial threatens the persons capacity to subsist”.
Significant emphasis was placed by the applicants on the difficulties the first applicant would suffer in Iran, should he be returned there, in securing lawful employment. Indeed, his past employment in Iran which he had undertaken was highlighted to the extent of its illegal nature. The applicants contended that the correct legal test to be applied in considering a capacity to subsist was whether a denial of lawful employment to the first applicant threatened his capacity to subsist. The applicants contended that the reviewer was in error in looking at the past employment of the first applicant in Iran and thereafter concluding that it exhibited continuous employment, notwithstanding the illegal nature of it. To thereafter find that there was not a denial of capacity to earn a livelihood, thereby threatening a person's capacity to subsist, was applying the wrong test. The applicants contended that the illegal nature of his employment amounted to a threat to the first applicant's capacity to subsist, whose earning capacity also reflected on the other two applicants’ capacity to subsist.
In short, it was contended that the reviewer failed to give proper consideration to the aspect of the “threat” to the first applicant’s capacity to subsist, a threat heightened by being returned to Iran from Australia. The proper question, it was contended, was whether there was a real chance that the first applicant’s capacity to subsist would be threatened.
In response to this general contention, the first respondent referred to the decision of Smith FM in SZPZI v Minister for Immigration and Citizenship & Anor[1] where, in effect, his Honour found that where there is a denial of lawful employment it is open to the decision maker to assess the practical as well as the legal effects of such laws and to conclude, if the evidence allows such a conclusion, that there is no real chance of a claimant, lacking a work permit, (as was relevant to that case’s circumstances) will not be able to obtain unlawful employment which will afford an acceptable livelihood. The first respondent contends that the reviewer applied the rationale in that case; that there was evidence before her on which she could conclude that, “there is no real chance that MZYVD would not be able to obtain employment, albeit at a low wage, in the reasonably foreseeable future.”
That evidence is set out in the reviewer’s reasons and includes references to the significant history of the first applicant’s employment, albeit unlawful, and also that of his father and brothers. In my view, the reviewer did not apply the wrong test and, indeed, made findings which are supported by the evidence, despite assertion by the applicants to the contrary.
[1] [2011] FMCA 530.
There was no evidence proffered that suggested that the first applicant was unable to support his family in the past due to employment difficulties, nor was there any evidence to suggest he was denied the right to subsist. The question of whether his right to subsist is “threatened” by a requirement that he work unlawfully is not supported by the evidence.
In my view, a fair reading of the reviewer’s report shows she gave due regard to the issue of the unlawful nature of employment for the first applicant, should he be returned to Iran. The evidence presented about the work experience of the first applicant was provided by him, which in my view, entitles the reviewer to conclude he was in “continuous employment”, notwithstanding there may have been periods of unemployment for short times, from 2002 to 2010. This ground is not sustained and must be dismissed.
Ground 2(a) and (b)
In a similar fashion, the contention in grounds 2(a) and (b) which referred to the irrationality of the conclusion reached by the reviewer about the applicant’s employment is not sustained.[2] A fair reading of the reasons for the decision of the reviewer, in my view, did not support a conclusion of irrationality and did not support the conclusion that no other reviewer could not have reached the same conclusion based upon the evidence. The evidence of past crackdowns on unlawful employment was particularly old and the first applicant was able to give evidence of his relatively continued employment during such periods. The example offered by the first applicant of the precarious nature of employment when an employer was forced to sack him after his illegal employment, was reported, on the evidence of the first applicant is refuted as he found, in any event, employment soon afterwards. Also, there is the continued and apparent significant full time employment of his father and his brothers who are also in the same position as the first applicant in that they have to find unlawful employment.
[2] See Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 for principles applying to determination of illogicality and irrationality.
There was no evidence proffered that suggested that the first applicant was unable to support his family in the past due to employment difficulties, nor was there any evidence to suggest he was denied the right to subsist. The question of whether his right to subsist is “threatened” by a requirement that he work unlawfully is not supported by the evidence. On the material before the reviewer, I find that it was open to the reviewer to conclude, given the first applicant’s past employment experiences, that there was no real chance he would be unable to find employment in the future and that there was not a denial of his capacity to subsist.
This evidence, in my view, contradicts the applicants’ general contention that the reviewer’s recommendation was irrational or illogical. The reviewer, in reaching her recommendation, applied a probative logic to the evidence available to her and the applicable law.
This ground is also not sustained and should be dismissed.
Ground 4
This ground relates to the third applicant’s (i.e. the child’s) rights to an education, employment and property ownership. The reviewer concluded that the child’s rights would be limited, but nonetheless, such did not amount to serious harm as envisaged by s.91R(2).
In respect of employment, the reviewer found that, like the child’s father and grandfather, the child’s capacity to subsist would not be threatened. She also found that, again like the child’s father and mother who had limited education (the father 9 years and the mother 5 years), there was the prospect of an education; but in any event the limitations and difficulties that may face the child in these areas did not amount to serious harm and therefore persecution which enlivened the obligation on Australia to provide him protection under the Convention.
Again, the applicants contend that the findings of the reviewer in respect of the child applicant are irrational. I am not of the view the findings are irrational. They are, in my view, the probative and cogently logical product of the claims, evidence and country information that was before the reviewer. The reviewer addressed the issues of education raised by country information, acknowledging, as appropriate, the limited access to education, but takes the further step, again as appropriate, of determining the extent to which such limitation amounts to serious harm. She determined, as a question of fact, after a balanced exposition of the relevant material that it did not amount to harm of the requisite kind. The findings are consistent with the evidence before the Tribunal and they were open to it. I am satisfied that this ground is not made out such that it supports a finding of jurisdictional error.
Conclusion
For the above reasons, I am not satisfied the Second Respondent has committed an error of law in how she has considered the applicants’ claims, on the evidence before her and how she has applied the law. Accordingly, the application filed on 20 February 2012, as amended, should be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge O’Dwyer
Date: 24 June 2013
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