MZZGB v Minister for Immigration
[2014] FCCA 1019
•23 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZGB v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1019 |
| Catchwords: MIGRATION – Review of recommendation of Independent Merits Reviewer – failure to consider an integer of claims made – finding without evidence – irrational and illogical finding – failure to consider evidence – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(c), 91R(3)(b) |
| Cases: MIAC v. SZOCT (2010) 189 FCR 577 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 |
| Applicant: | MZZGB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | J. STRATHEARN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 174 of 2013 |
| Judgment of: | Judge O'Dwyer |
| Hearing date: | 17 December 2013 |
| Date of Last Submission: | 17 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenna |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 12 February 2013, as amended, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 174 of 2013
| MZZGB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| J. STRATHEARN IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 12 February 2013, later amended, the Applicant seeks to review the recommendation of the
Second Respondent (“the Reviewer”) dated 4 July 2012 (“the recommendation”). The Applicant seeks a declaration that the recommendation was contrary to law, and that an injunction be issued to restrain the First Respondent (“the Minister”) from relying upon the recommendation.
At the commencement of the verbal submissions by the Applicant, his Counsel raised an issue about missing correspondence and documents, in particular, purported warrants for arrest concerning the Applicant.
I was referred to various parts of the Court book where references were made to material that was not included in the Court book. This issue was raised late in the proceeding; that is, at the commencement of the hearing before me. It could have been raised with the Minister much earlier and would have allowed the Minister time to find the purported missing documents. The Applicant, however, did not desire an adjournment to afford the Minister time to search for the missing material, but seem to be suggesting, nonetheless, that I should be mindful of it and draw an inference somehow favourable to the Applicant in respect of one ground of review that suggests the Reviewer was in error by not considering and giving weight to the alleged warrants issued for the arrest of the Applicant. In the event, for the reason set out below, the issue of the warrants was not relevant.
I note, nonetheless that, it is for the Applicant to present his case and he chose to proceed with the hearing, notwithstanding the opportunity offered for an adjournment.
Background
The Applicant is a 33-year-old Iranian male, who for some 14 months maintained the pretence that he was born on 18 October 1993; which pretence successfully saw him moved from Christmas Island to mainland Australia as he was then believed to be a child of 17½ years. His older status was exposed and he then conceded his true date of birth. He is a Shi’a Muslim; or at least, that was the religion he claimed when he arrived as an ‘offshore entry person’ at Christmas Island on 5 October 2010. There was later an attempt to persuade the Reviewer, which was not accepted, that he converted whilst in Australia to Christianity. He also relied on documentation that was found to be altered and fraudulent.
His claims in support of his application for a Protection visa are as follows:
·In Teheran he was stopped and hit by authorities for being in the company of a girl.
·He was arbitrarily hit to the ground without any reason in front of his community.
·When working in a bookshop, the bookshop owner had him accompany him in his car whilst delivering anti-government booklets and CDs to various locations. The car was stopped by the Basij. They were first body searched, then the car and finally the Basij asked the owner to open the car’s boot, where the parcels of anti-government material was placed. The Applicant believed the parcels contained anti-government booklets and CDs because he was told so by his employer. Before the Basij had an opportunity to open the parcels the Applicant ran away. He did not know what happened to his employer afterwards and he was unable to confirm what the parcels contained as he had run away before they were opened by the Basij. He ran to a relative’s house because he feared for his life, and stayed there stayed until people smugglers were able to successfully arrange his travel to Australia.
·Since arriving in Australia he had shown interest in Christianity and had attended Christian churches. It was his intention to become baptised. He claimed that his change of religion put him at risk of serious harm if he was to be returned to Iran.
Reviewer’s relevant findings
The Reviewer’s first finding addressed the issue of the Applicant’s credibility. The Reviewer found:
160. In considering a claimant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth, especially in the context of entry interviews constrained by time and the inherent limitations of interpretation, and often before a claimant fully appreciates what is relevant and the degree of detail required. However, nor can significant inconsistencies or embellishments be lightly dismissed.
161. In this case, the reviewer found the claimant’s direct testimony about his own history and experiences to be internally inconsistent and implausible on various issues. With respect to the conduct of the Basij and other authorities at his home there are inconsistencies with country information. There are credibility concerns about his passport, verbal and written evidence relating to his age, and is claimed abandonment of Islam. …
162. The reviewer finds that the degree and range of inconsistency in the claimant’s evidence led to an adverse inference about the overall credibility of the claimant, and that he was not a generally reliable witness.
The Reviewer found that the Applicant had provided false verbal and written evidence in order to understate his age and by so doing, gained the advantage as stated above. The Reviewer found that the Applicant had falsified verbal and written evidence on a sustained basis over time in order to gain a perceived advantage.
The above are findings of fact par excellence[1].
[1] Re MIMA: ex parte Durairaijasingham (2000) 168 ALR 407, McHugh J. at [67]
The Reviewer rejected the Applicant’s evidence that he had been targeted by the Basij or other authorities on the basis of perceived or actual anti-government activities or perceived or actual opposition to the government.
The Reviewer found that there was not a real chance that the Applicant would face serious harm in Iran by reason of political opinion, or imputed political opinion.
The Reviewer did not accept that there was a real chance of serious harm by reason of religion, including any interest in Christianity, any conversion to Christianity or any abandonment of Islam. The question of the Applicant’s interest in conversion to Christianity and abandonment of Islam was not raised until late in the process. Nonetheless, the Reviewer afforded an opportunity to the Applicant and his advisers to provide more detail, which was responded to by a claim that the Applicant was due to be baptised and that thereafter his advisers would provide further submissions – but none were forthcoming. The Reviewer found that the claim concerning abandonment of Islam was made to further strengthen his application for asylum.
The Reviewer when considering complimentary protection found that the Applicant would not be subject to “significant harm” as defined in the s.36(2A) of the Migration Act 1958 (“the Act”) because of :
(i)any existing political profile or anti regime profile;
(ii)being a returnee, failed asylum seeker, or deportee;
(iii)being against the regime or against Islam;
(iv)any abandonment of Islam or conversion to Christianity; and
(v)being in the Green movement or a homosexual in Iran.
The Reviewer noted that, from country information, Iran had a poor human rights record and also noted the arbitrary nature of the Basij’s activities which cause harm to persons in Iran. However, the Reviewer noted that, under the complimentary protection provisions, there is not a real risk that the claimant will suffer significant harm at the hands of the Basij or other authorities in Iran, and any risk of harm at the hands of the Basij or other authorities, is a risk faced generally by the Iranian population. Therefore s.36(2B)(c) of the Act, in effect, excludes the Basij’s assaults of the Applicant as a basis for complimentary protection.
Grounds of review
In the amended application the Applicant sets out five grounds of review.
Ground 1
The first ground asserts that the Reviewer’s decision was affected by legal error in that she failed to consider integers of the Applicant’s claims; namely, whether certain harm caused by the activities of the Basij amounted to “significant harm” for the purposes of s.36(2)(aa) of the Act, namely:
a.when the Basij stopped to hit him for being with a girl and the assault on him outside his family’s shop by the Basij;
b.that the Reviewer failed to consider the warrants of arrest for the Applicant from Iran, which were provided to the Minister’s Department on 19 April 2012.
Ground 2
This ground asserts that the Reviewer misunderstood the law and her core task by asking herself the wrong question and applied the wrong legal principle. She was in error when she had regard to s.91R(3)(b) of the Act when determining, under the complimentary protection provisions, whether the Applicant’s conversion to Christianity could give rise to “significant harm” or in doing so, took into account irrelevant considerations which she was bound not to take into account; namely, when she took into account his reason for his conversion to Christianity was to strengthen his claim for protection under s.91R(3).
Ground 3
The third ground alleged the Reviewer did not afford procedural fairness to the Applicant by failing to bring to the Applicant’s attention, or allow the Applicant to comment on, information from which the Reviewer drew adverse conclusions about the Applicant’s claims; namely, by taking into account that the Applicant was troubled by “psychological issues” and, because of such, he would seek comfort in his established religion, rather than converting to a new unknown religion. It is said that this information was not put to the Applicant in circumstances where the information was credible, relevant and significant to the Reviewer’s assessment of the Applicant’s claim to face a real risk of persecution should he be returned as a failed asylum seeker.
Ground 4
This ground asserts that the Reviewer made findings of fact that were:
(a)irrational, illogical, and not based on findings or inferences of fact supported by logical grounds; and
(b)were unsupported by any evidence.
In this regard, the Applicant challenged the Reviewer’s conclusion that the Applicant could not give “first hand evidence” of the Basij finding the parcels in the employer’s vehicle’s boot or first hand evidence about whether the contents of the parcels in the boot being, in fact, anti-government materials as his employer told him, because he had not seen the materials in the parcels himself.
The reference by the Reviewer to the Applicant being troubled by “psychological issues” and that, in those circumstances, he would seek comfort in his established religion, rather than converting to a new unknown religion, has no evidentiary basis; or was irrational or illogical.
Ground 5
The final ground claimed that the Reviewer’s decision was affected by legal error because the Reviewer referred to the Applicant’s conduct in distributing anti-government material in light of the knowledge that he would be seriously harmed by authorities if caught, was conduct by choice and voluntarily entered into. This amounts, it was said, to the Reviewer misunderstanding the law which defined her core task and that she asked herself the wrong question, and took into account irrelevant considerations; namely,
i)the Reviewer asked herself whether the Applicant’s conduct in distributing anti-government material by choice and voluntarily was prudent in light of the knowledge that he would be seriously harmed by the authorities if caught, and
ii)
the “choice” of the Applicant to distributing
anti-government material was not relevant to the Reviewer’s determination of the whether the applicant met the criteria for protection
Contentions and consideration
In respect of the Ground 1, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2)[2] is authority for the principle that a decision maker is only required to consider the claims made by a claimant that were sufficiently raised on the material before the decision maker and not those depending for their exposure upon constructive or creative activity by the decision maker; and, further, that a conclusion that a decision maker has failed to consider a claim not expressly advanced is not to be made lightly. [3]
[2] (2004) 144 FCR 1 at [58]
[3] NABE (No 2) at [68]
Relevant also is the statement of Allsop J. (as he then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs[4] at [22]:
Whatever adverb, or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.
A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims.
[4] [2004] FCA 1695
This case is an example of where the decision under review has been combed through with an eye to establishing some basis to justify the orders sought. It is an example of where words and phrases that appear to be supportive of the challenge to the decision are extracted without providing the context of those words or phrases, and without providing the benefit of a fair reading of the decision.
In respect of the alleged failure of the Reviewer to consider whether the assault by the Basij of the Applicant when in the company of a woman and the assault outside the Applicant’s family’s shop, in the context of whether those instances, amounted to “significant harm”, the simple answer is that the Reviewer found both instances were minor and did not give the Applicant a profile with the Basij, or any basis to fear harm in the future. That is a finding of fact. On a fair reading of the decision, the Reviewer has not found that these events are likely to occur again. Indeed, the Applicant’s submissions on complimentary protection prepared by his lawyers did not suggest that the possible repetition of such experiences with the Basij was a basis on which the Applicant claimed to satisfy the complimentary protection provisions. In my view, there is no basis upon which a sustainable submission can be made that these two instances warranted consideration in the context of Australia’s obligations under the complimentary protection provisions of the Act. Such a claim was never made by the Applicant who had the assistance of lawyers. It was not squarely raised or apparent from the evidence presented and the submissions made before the Reviewer. In any event there was a clear finding by the Reviewer that Iranians in general were subject to the arbitrary conduct of the Basij which, under s.36(2B)(c), precludes the claims against the Basij as basis on which a successful claim for complimentary protection can be made.
The second part of Ground 1 asserts the Reviewer did not consider the arrest warrants provided by the Applicant to the Minister’s Department, which arrest warrants were apparently untranslated and not before this Court. As stated earlier, an adjournment was offered to the Applicant to allow time to find the arrest warrants, but that was declined. In any event, after the inferred production of the arrest warrants on 19 April 2012, neither the Applicant nor his advisers appear to have subsequently relied upon these documents. The Reviewer made the finding that the Applicant was not perceived to have engaged in anti-government activities and would not be a target for such a reason in the future. As I understand, the Applicant now contends that if the Reviewer had the arrest warrants before her, untranslated as they were, it might be evidence of such a critical nature as to enhance the credibility of the Applicant in respect of his claims. If these documents were of such importance, on the face of them, and the Applicant seems to be suggesting same, it was for the Applicant and his advisers to make the case in this regard to the Reviewer. If they were genuine arrest warrants relating to him, it seems inexplicable that neither he nor his advisers subsequently relied upon them until, as stated before, the decision was critically combed through to find a basis, some basis, to justify a review. In my view, this ground must fail.
The applicant contends under Ground 2 that the reviewer applied s.91R(3)(b) when considering supplementary protection and in doing so erred in law as that section has exclusive application to grounds related to the Convention. Indeed, that is so.
The offending paragraph in the Reviewer’s decision appearing under the complimentary protection is said to be [246] which stated:
The reviewer finds as stated above, that the claimant has not abandoned Islam and has not converted to Christianity, but that he has recently attended Christian church activities in Australia. The reviewer noted that no claims have been made about any risk of harm due to these claims, despite opportunities to provide further information. The reviewer finds on the evidence available that there is not substantial ground for believing that, as a necessary and foreseeable consequence of being returned to Iran that the claimant will suffer significant harm due to any abandonment of Islam or conversion to Christianity. (Emphasis added)
The expression “as stated above”, the applicant contended, can only mean a reference to a finding by the reviewer pursuant to s.91R(3)(b) that his involvement with Christianity was for the purpose of strengthening his application for refugee status.
In my view, the applicant’s contention ignores a fair reading of the reviewer’s decision where no reference at all was made to this section in the decision when considering the question of complimentary protection, nor was there reference to the applicant pursuing an interest in Christianity to strengthen his claim for complimentary protection. The reviewer made reference to a finding of fact made earlier in her decision that the applicant had not abandoned Islam and has attended Christian church activities. In addition, the reviewer gave another reason for finding that the applicant had not abandoned Islam; namely the finding that the Applicant’s claim was implausible, particularly having regard to the psychological issues, the applicant was facing. Although the applicant contended that there was no suggestion of “psychological issues”, it is clear that that reference was, indeed, made by the applicant’s representatives. The reference to “psychological issues” was not some fanciful and unwarranted comment by the reviewer as was suggested. A fair reading of the decision indicates the reviewer did not believe the applicant concerning his alleged interest in Christianity. In my view, there is no basis in [246] for the applicant’s assertion that the reviewer wrongly applied to s.91R(3) (b) when considering the question of complimentary protection. The second ground fails.
In respect of ground 3, where the applicant alleges irrationality and findings by the reviewer without evidence, the offending paragraph is [206] were the reviewer stated:
The reviewer finds that the claimant was unable to give first hand evidence about whether the Basij found the parcels in the employers vehicle boot… Whether the contents were in fact anti-government materials as his employer had told the [applicant].
The applicant submitted that these findings are unsupported by evidence or logic. Having made that contention, the Applicant proceeded to recite various examples at various times and in various documents of the history given about his employer being stopped by the Basij, and the car and car boot being searched. It can be said that the recitals are all consistent. However, the Applicant appears to be implying that a consistent story, because of its consistency over a period of time, is true and the conclusion, therefore, reached by the Reviewer is illogical. Such a contention falls on premise that the evidence provided by the Applicant, a person whose credit is challenged, is to be accepted. If there is any illogicality or irrationality it is that which contends a consistent story is to be taken as true. It is trite law that a finding of fact that has a basis, even though others might find differently, cannot be challenged.
The finding of fact was that the Applicant could not give evidence as set out in [206]. It is a finding of fact open to the Reviewer to make and there is no irrationality or logical conclusion made by the Reviewer. The evidence given by the applicant, as stated above, is confirmatory of the findings made in [206]. The assertion by the Applicant that the Reviewer actually accepted the account of the incident as set out in [202] is not a fair reading. My reading of that paragraph is that the Reviewer accepted that the Basij do conduct random checks of people and the conclusion reached there does not make the findings in [206] illogical or irrational.
In respect of the other particular set out in ground 3; namely, the rejection by the Reviewer of the Applicant’s claimed Christianity, the offending paragraph is said to be [184]:
… are not plausible as the reviewer considers that it is more likely, in a situation where the claimant’s troubled by psychological issues that he would seek comfort in his established religion, rather than to convert to a new unknown religion.
The applicant contends that the above constitutes information which necessarily, as a matter of procedural fairness, is required to be put to the applicant for comment as it is the reason or part of the reason for the adverse decision made by the reviewer.
The Minister relied upon the decision of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR[6] where it was said:
Procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of a statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
[6] (2011) 241 CLR 594 at [9]
In my view, the Reviewer did not have to give advance notice of her reasoning for the finding that the Applicant’s claim to have converted to Christianity was not plausible. In my view, there is nothing particularly surprising about the sentence in [184] that the reviewer finds the claims are not plausible, as the Reviewer considered that it is more likely, in a situation where the Applicant is troubled by psychological issues, that he would seek comfort is his established religion, rather than to convert to a new unknown religion.
That statement is not a question of evidence. It is the expression of the Reviewer’s reasoning, utilising background knowledge about normal human behaviour, which we all possess, and the conclusion reached by the Reviewer has a basis in fact in that the Applicant’s representative alluded to his “highly agitated state and is ‘mentally struggling’ which in my view allows the Reviewer to summarise those complaints as ‘psychological issues’ and the finding that, in his circumstances, he would not reject Islam is illogical or irrational.
In respect of ground 4, a fair reading of the decision and analysis of the Applicant’s own evidence does not preclude the Reviewer, in my view, accepting the Applicant’s evidence about the incident with his employer being searched by the Basij, and then finding that the Applicant could not give “first-hand evidence” that the Basij found the parcels in his employer’s vehicle’s boot or that there was anti-government material in the boot. In [200] the Reviewer found that the Applicant left the scene before any action was taken to explore the contents of the parcels in the boot and further found that the Applicant does not know what happened at the scene thereafter as he ran away. The reviewer found in [206] that the Applicant was unable to give first hand evidence about whether the Basij found the parcels in the vehicle’s boot. The choice of the words “found the parcels” in [206] is unfortunate, but read in conjunction with [200] can properly, in my view, be read as stating “exploring the content of the parcels”. In any event, should I be wrong, any discernible illogicality is not such as to condemn the entire decision. The Applicant, in my view, has failed to demonstrate that the Reviewer’s ultimate recommendation is illogical or irrational. The matters complained of by this ground, being only some of a number of separate independent concerns raised by the Reviewer, cannot be said to render the ultimate recommendation illogical or irrational.[7] This ground is not sustainable
[7] See M IAC v. SZOCT (2010) 189 FCR 577 at [83]-[84]; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 ; SZNKO v MIAC [2013] FCA 123 at [111]-[113], [125]; SZRLO v MIAC [2013] FCA 566 at [66]
In respect of the final ground, the Applicant claims the Reviewer erred in law because the Reviewer questioned the Applicant about his willingness to deliver anti-government material, suggesting that such conduct “would not necessarily be prudent conduct”. The Applicant contends that the Reviewer considered that the Applicant could return to Iran free from risk, if he was prudent and ceased handing out
anti-government material. Again, this is an example of taking very selective wording out of context to establish and buttress grounds for review. A fair reading of [196] where the supposedly offending phrase was used, in my view, amounts to a recital by the Reviewer of her exploration of the motivation of the Applicant, his conviction and wish to do this activity in full knowledge of the ramifications if caught. Although expressing a view about the prudence of such activity, nowhere in the decision does the Reviewer require the Applicant to alter his political views or the expression of them if he is to return to Iran. In my view the Applicant’s submission in respect of the Reviewer’s reference to prudent conduct as offending the principles in Applicant S390/2002 v MIMA[8] is not sustainable. This ground also fails.
[8] (2003) 216 CLR 473
Conclusion
For the above reasons. The application filed on to old February 2013, as amended, should be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer
Associate:
Date: 23 May 2014
[5] Ibid at [15]
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