MZZEO v Minister for Immigration

[2013] FCCA 1570

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZEO v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1570

Catchwords:
MIGRATION – Independent Protection Assessor – failure to consider all claims as put.

Cases cited:
DZADH v Minister for Immigration and Anor [2012] FMCA 1112
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165; (2003) 198 ALR 59; 73 ALD 1; [2003] ALMD 5516; [2003] ALMD 5843; [2003] HCA 30

Applicant: MZZEO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: WILLIAM KENNEDY IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File number: MLG 1251 of 2013

Judgment of: Judge Riley

Hearing date: 17 September 2013

Date of last submission: 17 September 2013

Delivered at: Melbourne

Delivered on: 16 October 2013

REPRESENTATION

Counsel for the Applicant: Nola Karapanagiotidis

Solicitors for the Applicant: Harwood Andrews

Counsel for the First Respondent: Tim Reilly

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Sparke Helmore

DECLARATION

In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicant procedural fairness by not considering his claim to fear persecution on the grounds of his membership of a particular social group consisting of failed asylum seekers, exacerbated by his family’s history of anti-government activity and by the outstanding warrant for his arrest.

ORDERS

1. The first respondent by himself and his servants and agents be restrained from relying on the second respondent’s recommendation dated 18 February 2012.

2. The first respondent pay the applicant’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1251 of 2013

MZZEO

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

WILLIAM KENNEDY IN HIS CAPACITY AS
INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a recommendation made by an Independent Protection Assessor.  The recommendation was that Australia does not owe the applicant protection obligations.

2. The applicant is a citizen of Iran.  He arrived on Christmas Island on

   
   

   8 July 2011 and applied for a Protection Obligations Determination on 11 September 2011.  On 21 November 2011, a delegate of the first respondent found that Australia does not owe the applicant protection obligations.  The matter was automatically referred to the Independent Protection Assessor for assessment.  On 18 February 2012, the Assessor also found that Australia does not owe the applicant protection obligations.  The applicant applied to this court on

   
   

   23 May 2013 for declaratory and injunctive relief.

The applicant’s claims

1. The applicant claimed that:

   a)his family was known to be anti-government;

   b)the applicant was married in 2007;

   c)in 2009, he participated in post-election protests;

   d)he was affected by tear gas but not arrested;

   e)his marriage deteriorated;

   f)his wife’s family:

   i)had influence in the Iranian government;

   ii)threatened to kill the applicant and his sister when he said he would not go back to his wife;

   iii)threatened to inform the government about the applicant’s and his family’s political involvement, especially his mother’s; and

   iv)commenced legal proceedings against him;

   g)the applicant received a summons from a court but he did not attend;

   h)he was sentenced to one year’s jail in his absence;

   i)he had to flee Iran as his wife’s family threatened to persecute his whole family;

   j)a warrant was issued for his arrest; and

   k)he would face persecution as:

   i)a failed asylum seeker and member of an anti-government family; and

   ii)a failed asylum seeker for whom there was an outstanding arrest warrant.

The Assessor’s reasons

1. The Assessor accepted most of the applicant’s claims.  However, the Assessor considered that:

   a)the applicant’s family had not been politically active for almost 30 years and therefore the applicant would not be imputed with an anti-government political opinion;

   b)his wife’s family had not harmed him in the past and there was not a real chance they would do so in the future;

   c)the arrest warrant did not specify the crime for which the applicant had been convicted, so it was not possible to conclude that it had a Convention nexus;

   d)the applicant’s wife’s family was not connected to the warrant; and

   e)country information indicated that the applicant would not face a real chance of harm as a failed asylum seeker.

Complementary protection

1. The Assessor did not consider the applicant’s claims under the complementary protection provisions as they had not come into effect at the time of the Assessor’s recommendation.  However, an officer of the Department of Immigration subsequently considered the applicant’s claims under those provisions.  The officer concluded, on 16 July 2012, that Australia did not owe the applicant protection obligations under the complementary protection provisions.  That decision was overturned by consent on 11 September 2013.  Counsel for the applicant and the first respondent advised the court that the applicant’s claims might be reconsidered under the complementary protection provisions at a future date.

2. Although there is presently no effective decision in relation to the applicant under the complementary protection provisions, the applicant and first respondent jointly asked the court to proceed now to determine the application in respect of the Assessor’s recommendation.

Ground 1

1. The first ground of review in the application filed on 23 May 2013 is:

   The Independent Protection Assessment failed to deal with an integer of the applicant’s claim, namely that he was at risk not merely as a failed asylum seeker but as a failed asylum seeker who was from a political and anti-government family and/or as a failed asylum seeker with an outstanding warrant for his arrest.

   Particulars

   (a)It was a clearly articulated claim that the applicant feared returning to Iran because the “authorities [would] be aware of his family’s history and [would] impute him with an anti-government profile [and that] he [would] be arrested and detained upon arrival in Iran due to the court proceedings which were brought against him”.

   (b)At hearing, the applicant’s representative also submitted “now that [the applicant] had sought asylum in Australia, there would be increased attention to him should he return to Iran and that his family’s political history would become relevant.”

   (c)In considering the applicant’s claim as a failed asylum seeker returning to Iran no reference was made to the additional factor of his family’s political history.

   (d)The assessor considered the applicant’s claim of imputed political opinion based on his family’s history and his claim as a failed asylum seeker separately and failed to consider whether combined, the authorities might impute to the applicant an adverse political opinion, placing him at risk.

   (e)The assessor made reference to the outstanding warrant when considering the failed asylum seeker claim but found that it was an irrelevant consideration because the warrant was not connected to a Convention reason.

   (f)The assessor erred in dismissing the warrant as irrelevant to the claim and/or in failing to consider to [sic] whether the existence of an outstanding warrant would increase the risk of maltreatment by the authorities upon return to Iran as a failed asylum seeker.

2. The first respondent did not dispute that the applicant had made the claims alleged. 

3. At paragraph 82 of the reasons for his recommendation, the Assessor noted the claims made through the applicant’s adviser that the applicant feared persecution due to:

   ·His imputed political opinion, being “anti-government, pro-Western and failed asylum seeker”; and

   ·His membership of a particular social group, being “returnee from a Western country”.

4. At paragraph 84 of the reasons for his recommendation, the Assessor noted that the applicant’s claims of an imputed political opinion of being anti-government and pro-Western was based on his family’s anti-government activism and his having sought asylum in the West.

5. The Assessor, at paragraph 85 of the reasons for his recommendation, said that:

   The evidence of [the applicant’s] family being anti-Government is all historical.  There is documentary evidence that his mother lost her job about 30 years ago and he claims that his uncle was forced to flee Iran at about the same time, and that somewhat distant relatives (by marriage) were executed, also nearly 30 years ago.  He has offered no evidence of recent political activity and acknowledges that his family has not been politically active for at least the past two decades.  I do not accept that there is a realistic possibility  that [the applicant] would be imputed to have a political opinion based on what members of his family might have done nearly 30 years ago (when he was no more than a newborn) given that there has been no adverse contact with the authorities in the intervening decades.

6. The Assessor turned specifically to the failed asylum seeker issue at length in paragraphs 92 to 108 of the reasons for his recommendation.  He accepted that the applicant belonged to a particular social group consisting of failed asylum seekers.  The Assessor also accepted that, as a failed asylum seeker, the applicant would come to the attention of the authorities if he were to return to Iran.  After citing and analysing country information, the Assessor concluded that failed asylum seekers who had previously come to the attention of the Iranian authorities by reason of their opposition to the religious or political beliefs of the regime faced a real chance of serious harm upon their return to Iran.

7. The Assessor said, at paragraph 103 of the reasons for his recommendation, that:

   As I have found that [the applicant] has not come to the attention of the authorities (other than in relation to the civil matter of his divorce) the task is to determine whether simply because he is an asylum seeker there is a real chance that he would face serious harm.

8. At paragraph 105 of his the reasons for his recommendation, the Assessor said:

   I have accepted that as a failed asylum seeker [the applicant] will come to the attention of the Iranian authorities. There is a clear body of evidence suggesting that there is a real chance that if he had already come to the attention of the authorities for any reason which could suggest a political opinion or religious belief that is considered to be opposed to the opinions and beliefs of the regime he would face serious harm.

9. At paragraph 107 of his the reasons for his recommendation, the Assessor said:

   However I do not accept that [the applicant] would be perceived to be an opponent of the regime and therefore the RRT advice [concerning people perceived to be opponents of the regime] is not relevant to the consideration of whether as an asylum seeker [the applicant] would be subject to persecution.

10. The Assessor also considered that, if the applicant were to return to Iran, he may well come to the attention of the authorities because of the outstanding arrest warrant.  However, the Assessor considered that, as the arrest warrant had no connection to the Convention, it was irrelevant.

11. The Assessor concluded that the applicant did not face a real chance of serious harm.

12. The applicant did not argue that there was a particular social group consisting of failed asylum seekers from families with a history of anti-government activity, or a particular social group consisting of failed asylum seekers in respect of whom there were outstanding arrest warrants.

13. Rather, the applicant argued that the he was a member of a particular social group consisting of failed asylum seekers and, as additional factors, he came from a family with a history of anti-government activity and there was an outstanding warrant for his arrest.  The applicant argued that the additional factors needed to be considered cumulatively in determining whether the applicant faced persecution as a failed asylum seeker.

14. The applicant relied on the decision in DZADH v Minister for Immigration and Anor [2012] FMCA 1112. In that case, the Assessor accepted that the applicant had been detained by the Iranian authorities for two or three days because he had transported some demonstrators in his taxi. The applicant claimed that he would be at risk as a failed asylum seeker, particularly in view of his previous detention. The Assessor did not consider the previous detention in the context of considering the failed asylum seeker issue. Riethmuller FM, as his Honour then was, held at [33] that:

    The case called for a clear discussion of this Applicant’s individual circumstances and the potential cumulative effect of the incidents.  In the absence of appropriate consideration of this central feature of his case, the Applicant must succeed on this ground.

15. The first respondent argued, at page 19 of the transcript of the proceedings in this court, that:

    We accept that the claim to fear harm as a member of a social group of failed asylum seekers was put on the basis that the applicant’s fear for that reason would be exacerbated because of his family history and the arrest warrant.  However, we say that, on a fair reading, in accordance with Wu Shan Liang, the assessor has dealt with both of those aspects of the claim.  In relation to … the applicant’s family background, it’s true that the assessor does not in terms refer to that when considering the issue of the applicant being a failed asylum seeker.

    However, the findings at paragraphs 85 and 86 make perfectly plain that the applicant’s family background is just a historical fact which is of no current relevance in terms of him being perceived to have some anti-government profile.  Now, to read the assessor’s consideration of the applicant’s fear of harm as a failed asylum seeker as if … those previous findings about his family background had not been made or at least do not inform the subsequent findings about the fear of harm as a failed asylum seeker is just a contrived reading, in my submission.  It can’t possibly be the case that the assessor has forgotten what he has found about the applicant’s family history only two pages before when dealing with the issue of him being a failed asylum seeker.  At page 220, and the very first sentence on that page, the assessor says:

    As I have found that the applicant has not come to the attention of the authorities –

    That can only be a reference to the previous findings, including the findings in relation to the applicant not having a profile with the Iranian authorities, not having an adverse profile because of his family history.  And we say therefore the only fair reading is that that matter is implicitly considered by the assessor when addressing the issue of the applicant’s claim to fear harm as a failed asylum seeker.  It just can’t sensibly be read in any other way. 

16. In relation to the arrest warrant, the first respondent argued, at pages 21 to 22 of the transcript of the proceedings in this court, that:

    When the assessor then considers the issue of harm as a failed asylum seeker, the assessor explicitly refers to the arrest warrant at paragraph 108 and says that:

    The applicant may very well be of interest to the authorities because of the warrant, but as this is not connected to a Convention reason, it’s not relevant to this consideration.

    Now, I suppose the argument might come down to what the assessor means by not relevant to this consideration.  … in the previous paragraph, paragraph 107, the assessor had used the same form of words when dealing with the country information about failed asylum seekers.  In the second sentence of paragraph 107, the assessor says:

    However, I do not accept the applicant would be perceived to be an opponent of the regime, and therefore the RRT advice is not relevant to the consideration of whether, as an asylum seeker, the applicant would be subject to persecution.  

    So it appears that when he says “not relevant”, he ultimately means not determinative, not completely irrelevant in a more general way. 

    And on that reading, all that the assessor had found at paragraph 108 is that there’s nothing to indicate that this arrest warrant, which he’s already found is not for a Convention reason, …  would mean that the applicant would be thought to be of some sort of anti-regime profile.  The assessor has already found that he’s not, and paragraph 108 can only sensibly be read as the assessor concluding that an arrest warrant for a non-Convention reason wouldn’t add to that conclusion that the applicant is not of interest to the Iranian authorities as an opponent of the regime.

17. The first respondent relied on Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165; (2003) 198 ALR 59; 73 ALD 1; [2003] ALMD 5516; [2003] ALMD 5843; [2003] HCA 30 at [14], where Gleeson CJ said that:

    Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

18. However, that passage deals with a somewhat different point.  It concerned a question of bias, and whether the structure of the Tribunal’s reasons revealed that it had determined certain points without taking into account corroborative evidence.  What is alleged in this case is that the Tribunal failed to consider certain matters cumulatively.

19. I do not accept the first respondent’s submissions about what the Assessor meant by the arrest warrant not being relevant to the consideration of the failed asylum seeker issue.  I see no reason to infer that the Assessor meant that the warrant was “not determinative”.  Even if the Assessor had meant that, it would not amount to considering the claims cumulatively.  

20. It is clear that the Assessor meant that the warrant was irrelevant to the failed asylum seeker issue because the warrant was not issued for a Convention reason.  That is an error.  Even if the warrant had been issued for a non-Convention reason, in theory at least it may add to the interest that the Iranian authorities might take in the applicant as a failed asylum seeker.  That was the claim that was put, and that is the claim that had to be considered. 

21. Additionally, I do not accept that, reading the Assessor’s reasons as a whole, the Assessor’s finding at paragraph 85 that the applicant would not be perceived to be an opponent of the regime because his family’s anti-government activity was historical can be imported into the Assessor’s consideration of the failed asylum seeker issue.

22. The claim that was put was that the applicant was at risk as a failed asylum seeker, exacerbated by the facts that he was from an anti-government family and there was an outstanding warrant for his arrest.  The Assessor needed to consider that combination of circumstances but failed to do so.  This amounts to a denial of natural justice consisting of a failure to consider the claims as put. 

1. The first respondent submitted that this ground was simply seeking merits review and noted that the Assessor had found that the authorities would show no interest in the applicant for any Convention reason.  However, the Assessor came to that conclusion without assessing all of the claims that the applicant had made.  Consequently, the error cannot be described as merely an error of fact.

2. In the event that the court found relevant error in this case, the first respondent submitted that relief should be denied because the applicant had delayed in bringing the application.  The Assessor’s recommendation was made on 18 February 2012.  The application was filed on 23 May 2013.  In the interim, there was a complementary protection determination that was made on 16 July 2012.  The application to review that determination was filed on 17 December 2012.  As mentioned above, that determination was overturned by consent on 11 September 2013 in proceeding MLG1608 of 2012.

3. The applicant affirmed an affidavit on 11 September 2013 in which he addressed the issue of delay.  The evidence contained in that affidavit was not challenged and I accept it.

4. The applicant said in his affidavit that:

   a)he was released from detention on 20 December 2011;

   b)lawyers assisted him with his submissions to the Assessor in late January 2012;

   c)the applicant was interviewed by the Assessor on 10 February 2012 and his recommendation was dated 18 February 2012;

   d)the applicant obtained new migration agents, who referred the applicant to the Public Interest Law Clearing House (“PILCH”) on 9 March 2012;

   e)the applicant’s case was rejected by an officer of the Post Review Protection Claims section in July 2012 [this is the complementary protection decision];

   f)PILCH advised the applicant on about 9 October 2012 that they were unable to assist him;

   g)on 14 December 2012, the applicant filed an application in this court in respect of the Post Review Protection Claims decision;

   h)Shine Lawyers provided some assistance with that application;

   i)in early 2013, the applicant applied for legal aid;

   j)in February 2013, the applicant commenced work as a meat worker, earning about $600 per week;

   k)on 27 February 2013, Victoria Legal Aid (“VLA”) informed him that, as a result of his employment, he no longer qualified for legal aid;

   l)VLA referred the applicant to PILCH, who referred him to Harwood Andrews, in March 2013;

   m)the applicant found the legal processes complicated;

   n)he has a limited understanding of the English language; and

   o)he needed the assistance of lawyers to conduct the proceeding.

5. The present application was filed on 23 May 2013.  There is, of course, no time limit on applications of this nature.  In all of the circumstances of this case, it seems to me that the applicant’s delay in filing the present application was not excessive. 

6. As a result, there will be a declaration that the recommendation was made without consideration of all of the applicant’s claims.

Ground 2

1. The second ground of review in the application filed on 23 May 2013 is:

   The Independent Protection Assessment denied the applicant procedural fairness by failing to put the applicant on notice that the political influence exerted by his ex-wife’s family was a live issue under review.

   Particulars

   (a)The applicant claimed that his ex-wife’s family were a legally and politically influential family and that the warrant for his arrest and detention was as a consequence of their interference and influence.

   (b)The assessor found that the claim that the applicant had suffered persecution as a result of their influence was unsupported by the evidence and that there was no connection between the arrest warrant and his in-laws.

   (c)The assessor found that there was not a real chance that the applicant would face harm as a result of the actions of his in-laws at any time in the reasonable foreseeable future.

   (d)At hearing, the applicant offered to provide more evidence as to the influence and power of the family, including a letter from his lawyer. The assessor responded by indicated (sic) that this was unnecessary and that if he were to arrive at a conclusion that he did not accept his wife’s political connections that he would put the applicant on notice and provide him with an opportunity to respond.

   (e)The assessor failed to put the applicant on notice that his wife’s family’s political connections and the extent of their influence was a live issue at the hearing.

2. This ground concerns paragraphs 87 and 88 of the Assessor’s reasons for his recommendation.  Those paragraphs are as follows:

   87.[The applicant] also said that his wife’s family could use their influence to persecute him, as they had used their influence in the past. His evidence of this use of influence relates to two court appearances. The first was an attempt to order him to pay maintenance. When he showed that he was already paying maintenance the court declined to make such an order. It instead ordered that the couple attempt a reconciliation. The second was an attempt to force him to pay the dowry. When he showed that he had demanded his wife return to the marital home and she had failed to do so, the court declined to issue an order. As both court appearances resulted in the court declining to accede to the request of [the applicant’s wife’s] family his claim that he has suffered persecution as a result of their influence is unsupported by his evidence.

   88.While the test is a prospective one, the chance of [the applicant] suffering persecution in the reasonably foreseeable future is informed by past events. These events show that his in-laws have depended on the judicial organs to pursue their interests and that they continued to do so even when their aims were frustrated. Although [the applicant] claims that he has been threatened he has provided no evidence of any action to carry out such threats. His evidence is that his lawyer and his in-laws are engaged in negotiations. Based on the evidence available I conclude that there is not a real chance that [the applicant] would face farm as a result of the actions of his in-laws at any time in the reasonable (sic) foreseeable future. 

3. As can be seen, the Assessor did not conclude that the family of the applicant’s wife was not politically influential.  Rather, the Assessor concluded that they had not used their political influence in the past against the applicant and there was not a real chance that they would do so in the future.  These conclusions were supported by the applicant’s own evidence that his wife’s family had used proper legal channels to pursue their claims against the applicant and had been unsuccessful in those forums. 

4. There is no substance in this ground.

Ground 3

1. The third ground of review in the application filed on 23 May 2013 is:

   The Independent Protection Assessment failed to consider an integer of the applicant’s claim, namely whether he would be denied state protection because of a Convention reason.

   Particulars

   (a)The assessor considered that “even if” the warrant resulted from the corrupt use of influence, it was not Convention related.

   (b)In this context, the assessor failed to consider whether the applicant would be denied state protection because of his actual and/or imputed political opinion.

   (c)The applicant had clearly articulated a claim that “the authorities [would] not protect someone who comes from an anti-government family.”

2. The Assessor did not accept that the applicant faced persecution.  Consequently, he did not need state protection, and there was no error in not considering whether the applicant would be denied state protection for a Convention reason.  This ground is not made out.

Ground 4

1. Ground 4 in the application filed on 23 May 2013 was abandoned at the hearing before this court.

Conclusion

1. As one of the applicant’s grounds has been made out, there will be the usual declaration, injunction and order for costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  16 October 2013