MZYVX v Minister for Immigration

[2012] FMCA 656

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYVX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 656

MIGRATION – Independent Protection Assessment Reviewer – whether reviewer erred in considering the risk faced by the applicant in the process of interrogation if he were to return to Iran.

Minister for Immigration and Citizenship v SZQPA  [2012] FCA 1025
SZQPA v Minister for Immigration and Anor [2012] FMCA 123

Applicant: MZYVX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File number: MLG 232 of 2012

Judgment of: Riley FM

Hearing date: 23 July 2012

Date of last submission: 23 July 2012

Delivered at: Melbourne

Delivered on: 10 October 2012

REPRESENTATION

Counsel for the Applicant: Gregory J Barns

Solicitors for the Applicant: Ogilvie & Co Lawyers

Counsel for the First Respondent: Catherine Symons

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 5 March 2012 and amended on 5 July 2012 and further amended on 12 July 2012 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 232 of 2012

MZYVX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a recommendation made by an Independent Protection Assessment Reviewer. 

The applicant’s claims

1. Initially, the applicant claimed that:

   a)he is an Iranian of Arabic background;

   b)he had voted for Mr Mousavi in the presidential elections;

   c)he attended a demonstration following the elections;

   d)he was imprisoned by the special forces for ten days and tortured;

   e)he was regularly interrogated by the Basij;

   f)six months after his imprisonment, he was arrested and detained for six hours;

   g)he was released after leaving his house title;

   h)he moved around frequently to avoid being arrested; and

   i)he feared persecution on the grounds of his race, being Arab, membership of a particular social group, being failed asylum seekers, and political opinion, being opposition to the government.

2. During his interview with the reviewer, the applicant claimed for the first time that he had been a member of an activist group whose leader had been tortured and killed.  He said the group had about 15 members and they would meet about 10 times per month.

The reviewer’s reasons

1. The reviewer accepted that the applicant was an Iranian national of Arabic ethnicity.  The reviewer accepted that the applicant faced discrimination and mistreatment, falling short of persecution, by reason of his Arabic ethnicity.

2. In relation to the claim about political opinion, the reviewer considered that there were numerous inconsistencies in the applicant’s claims, his claims were sketchy and unconvincing and his claim to be a member of an activist group was made late in the process.  Consequently, the reviewer was not satisfied that the applicant had participated in demonstrations, had been a member of an activist group or had been arrested or tortured.  The reviewer did not consider that the applicant would engage in political activities in the future and would not otherwise face persecution for reasons of his political or imputed political opinion.

3. Regarding the applicant’s claim as a failed asylum seeker returning to Iran, the reviewer considered that the applicant might be interrogated but he did not have a profile that would lead to him being persecuted.

4. The reviewer considered that the applicant did not face a real chance of persecution for any Convention reason.

Ground of review

1. At the hearing before this court, the applicant withdrew all but one ground of review and one set of particulars.

2. The only remaining ground of review in the application filed on

   
   

   5 March 2012 and amended on 5 July 2012 is:

   That the Second Respondent erred in law in finding that the Applicant does not meet the definition of a refugee as set out in Article 1A(2) of the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (‘the Refugees Convention’), in that she failed to understand the correct test, namely the ‘real chance’ test, to be applied under the Convention and the Migration Act 1958 (Cth) (‘the Act’).

   Particulars

   The Second Respondent acknowledged that the Applicant may face interrogation if he returned to Iran (CB 251 [77]), and acknowledged that the Applicant had suffered discrimination and mistreatment as an Arab living in Iran (CB 246 [58]), but did not enquire as to whether there was a real chance that such interrogation would amount to persecution for the purposes of the Convention and the Act.

3. This ground concerned paragraph 77 of the recommendation which is as follows:

   set out para 77

   The claimant has also claimed that he would face harm on his return to Iran as a member of a particular social group understood as a failed asylum seeker and/or a failed asylum seeker from a Western country. He claims that he would be seen as a spy and a traitor and persecuted for reason of a political opinion imputed to him as a returnee. On the basis of available country information which includes reports from Australia: Department of Foreign Affairs and Trade (DFAT), 22DFAT, the Dannish (sic) Immigaration (sic) Service report , CX255525: Iran: Response to CIS Request No. IRN11072; Return of failed asylum seekers, and the Refugee Review Tribunal’s 2010 Country Advice for Iran (“Iran-IRN37255-Asylum seekers-2009 Election Protests-Returnees-Tehran Airport-Arrival Procedures, 19 August 2010), I do not find that the claimant’s request for asylum would of itself give rise to a real chance of persecution on returning to Iran. The claimant experienced no problems exiting the country and has not indicated who would know of his seeking asylum in Australia and would seek to harm him for this reason. The claimant may face interrogation but as I have found, he does not have a particular profile that would give rise to a real chance of persecution. The country reports included in the agent’s submission which referred to persecution suffered by some returnees concerned person who had been imputed with a profile that would place them at risk.

4. The applicant relied on the decision of Driver FM in SZQPA v Minister for Immigration and Anor [2012] FMCA 123. His Honour said:

   28.At [59] of his reasons the Reviewer accepted that the applicant would undergo scrutiny upon return to Sri Lanka because he had fled the country illegally and would return without documentation. However, the Reviewer reasoned that he would not be of significant interest to the authorities because he was not an active LTTE member or fighter.

   29.In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.

   30.The Reviewer was entitled to conclude on the basis of the material before him, that ultimately the applicant would be found not to constitute a risk to Sri Lanka’s security and would presumably be released. However, having accepted that the applicant’s four brothers had been killed because of their imputed membership or association of the LTTE, that the applicant had provided assistance to the LTTE (of whatever kind) and that the applicant would be detained and interrogated upon return to Sri Lanka the Reviewer needed to consider whether that process of detention and interrogation would expose the applicant to a risk of serious harm amounting to persecution, having regard to the country information available to him about the arbitrary nature of detentions occurring, of human rights abuses during detention and interrogation and of the impunity of those responsible. It might have logically followed that because the applicant was able to convince the Reviewer that he was not a LTTE member or active supporter but that he had simply been caught up in the civil war by reason of his ethnicity, family associations and location, that he would also be able to convince the Sri Lankan authorities when he was detained and interrogated. The Reviewer could not, however, assume that the process of interrogation would be as benign as that which the Reviewer himself had employed.

5. The Minister appealed against that judgment.  The appeal was dismissed by Gilmour J in Minister for Immigration and Citizenship v SZQPA  [2012] FCA 1025.

6. The applicant said in his written submissions that the reviewer fell into error by not focussing on the process of interrogation.  The applicant submitted that the process of interrogation might lead the applicant to restate his participation in an anti-government demonstration, to reveal that he had previously been tortured by the authorities and to reveal his scars.  The applicant said that the consequence of those matters was that the applicant might face more rigorous interrogation, which could amount to serious harm for a Convention reason.

7. The difficulty with this submission is that the reviewer did not accept that the applicant had participated in an anti-government demonstration, or had previously been tortured by the authorities, or had been scarred by torture by the authorities.  Consequently, it makes no sense that the applicant would say such things under interrogation.

8. This case is quite different to SZQPA.  Gilmour J summarised the reviewer’s findings in that case as follows:

   13.The Reviewer accepted the first respondent’s assertion at [51] of his Statement of Reasons (SOR), that he had never been an LTTE member or supporter; that his brothers were associated, or presumed to be associated, with the LTTE, and that two of them had been killed and the other two were missing and presumed killed by the Sri Lankan authorities or the Indian Peacekeeping force; that he spent a considerable period of his life in LTTE controlled areas of Sri Lanka and had been forced by the LTTE to assist them with his boat; and that his son had briefly been detained by the authorities.

   14.On the basis of country information, the Reviewer accepted that, upon his return to Sri Lanka, the first respondent “would be likely to undergo scrutiny by the Sri Lankan authorities to determine whether he represents a security risk” and that the authorities may, either at the airport or subsequently, become aware of his brothers’ history, that he lived in LTTE-controlled areas and was forced to assist them, and that he fled Sri Lanka to seek asylum abroad. The Reviewer also accepted that the authorities may wish to question the first respondent as to his knowledge of the location of hidden LTTE “caches of materials”.

   15.Nonetheless, the Reviewer did not accept that there was a real chance that the first respondent would be persecuted on the basis of his Tamil ethnicity or imputed political opinion. He regarded as “determinative” the fact that the first respondent had never been an LTTE fighter or member (or so accused by the authorities), or detained. The Reviewer found that the first respondent having assisted the LTTE with his boat, the death of his brothers, and the interrogation of his son, would not lead the authorities to see him as an active LTTE supporter.

   16.The Reviewer considered the first respondent’s fear that the authorities might consider that he had specific knowledge of hidden LTTE weapons and supplies and found that he would not be considered to have any such knowledge. He also found that the first respondent’s fear of torture was not well-founded, given “his very minor role in the transport of goods, his non-involvement in their final destination, and his not being an active LTTE member or fighter”.

9. By contrast, in the present case, the reviewer did not accept the applicant’s core claims to have attended an anti-government demonstration, to have been tortured, to have scars from the torture and to have been a member of an activist group.  The reviewer considered that the applicant did not have a profile that would give rise to a real chance of persecution.

10. In SZQPA, the applicant was found by the reviewer to have a profile that might have been expected to cause difficulty for the applicant.  However, the flaw in the reviewer’s reasoning was that the reviewer concluded that the applicant would eventually be released, without considering what might be involved in an interrogation of a person with the applicant’s profile.

11. As the applicant in the present case did not have a profile that might lead to difficulty in his re-entry interrogation, there was no need for the reviewer in the present case to dwell on the interrogation process. Indeed, the reviewer specifically noted at [77] of the reasons that:

    The country reports included in the agent’s submission which referred to persecution suffered by some returnees concerned persons who had been imputed with a profile that would place them at risk.

12. Consequently, I do not consider that the reviewer in the present case made an error of the type identified in SZQPA.

13. The applicant also said in his written submissions that the reviewer failed to take account of country information set out at CB185 to the effect that the applicant might be subjected to “intense scrutiny” or “harsher penalties”.  However, the passage relied on by the applicant at CB185 specifically says:

    persons perceived to be … opponents of the regime are currently subject to more intense scrutiny and harsher penalties [than they were previously].

14. It seems to me, on a fair reading of the reviewer’s reasons, that the reviewer did take that country information into account in concluding that the applicant did not have a profile that would place him at risk upon return.  In any event, the selection of, and weight to be given to, particular items of country information are matters for the reviewer. 

    
    

    It is not for this court to engage in merits review.

15. In oral submissions, the applicant took issue with the reviewer’s assessment of various items of country information.  However, provided that there was some material on which the reviewer’s findings were based, the court cannot intervene.  In the present case, it seems to me that there was country information that supported the reviewer’s findings that, as the applicant did not have an anti-government profile, he was not at risk of being interrogated in a way that would amount to persecution. 

16. For example, at CB184, there is country information from the Danish Ministry of Immigration that:

    … [a] person who has left Iran illegally and who is not registered on the list of people, who cannot leave Iran, will not face problems with the authorities upon return, though the person may be fined …

17. The ground relied upon is not made out.  Consequently, the application must be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Riley FM

Date:  10 October 2012