MZZHY v Minister for Immigration
[2013] FCCA 1246
•7 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZHY v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1246 |
| Catchwords: MIGRATION LAW – Application for judicial review of decision of Independent Merits Reviewer – whether Reviewer fell into error in considering whether law about tattoos was law of general application – whether law adapted to legitimate needs of Iran – whether Reviewer failed to consider likelihood of multiple reasons for persecution. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 Okere v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 112 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 |
| Applicant: | MZZHY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMOGEN SELLEY IN HER CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 318 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 18 July 2013 |
| Date of Last Submission: | 18 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 7 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the first Respondent: | Mr Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r 7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 318 of 2013
| MZZHY |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| IMOGEN SELLEY IN HER CAPACITY AS AN INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of a decision of an Independent Merits Reviewer (“the Reviewer”) dated 2 August 2012.
The applicant is an Iranian who has a tattoo on his upper right arm and who fears persecution should he be returned to Iran as a result, for reasons which it will be necessary to examine in greater detail.
Criticisms are advanced of the Reviewer’s decision to the effect that, putting the matter broadly, the Reviewer failed to appropriately address the question whether the laws proscribing tattoos were a law of general application, whether such laws were discriminately applied and finally, that the Reviewer erred by expecting the applicant to take reasonable steps to avoid persecution if he returned to Iran.
Although there are some aspects of the applicant’s submissions that I think are well-founded, overall a fair reading of the Reviewer’s decision shows that the Reviewer did not fall into jurisdictional error and for the reasons that follow, the application must be dismissed.
Some uncontroversial facts
As already indicated the applicant is a citizen of Iran. In 2004 he gave himself a tattoo on his upper right arm. Thereafter, and until he left Iran in December 2010, the applicant from time to time did tattoo work at his parents’ home for various friends and clients.
In late 2008 or early 2009 the applicant was arrested at a swimming pool by the Basij who detained him and slapped and kicked him. He was released following payment of a bribe by his father.
In approximately July 2009, the applicant was at a beach, when once again, he was approached by the authorities (in this instance not the Basij but the police) who arrested him. He was fined 600,000 Toman and released when his father paid this sum. He was again assaulted during this detention.
While it is not uncontroversial, it is appropriate to record at this point that the applicant claimed that in early 2010, the police discovered that he had tattooed two other young people, Mostafa and Emir. He claimed that the police had visited his house several times seeking to find him but that he had not answered the door. The applicant claimed to have ceased tattooing thereafter and continued to work as a taxi driver.
It should be noted that the Reviewer did not accept these latter assertions, save to the effect the Reviewer found (paragraph 341, CB271):
“… I therefore accept that the claimant was for a period of approximately six years, self-employed as a tattooist in Iran, conducting his work from his home or going to the client’s premises. I find, however, that his self-employment was secondary to that as a taxi driver.”
It should be noted that a number of issues arose during the currency of the various interviews and proceedings in which the applicant has been involved. These have included his military service and the extent of his involvement with a senior officer of the Sepah, issues arising out of how he came to leave Iran via the airport at Tehran and questions as to whether he would face persecution upon return to Iran as a failed asylum seeker. None of these matters are now of any moment.
The applicant’s claims
The applicant’s claims have been articulated in slightly different ways from time to time but the kernel of them is, in my view, correctly set out at paragraph 7 of the applicant’s written submissions which themselves quote from written submissions sent by the applicant’s representative, paraphrased at CB227. The grounds are set out as follows in the applicant’s written submissions:
“7.1Actual and imputed political opinion against the Iranian regime or in favour of the West because of his work as a tattooist and his presence in Australia and having sought asylum in Australia.
7.2His religion and perceived religion on account of his religious expression manifested in his own visible tattoos and his work as a tattooist, a job perceived by the Iranian regime to be immoral.
7.3His membership of the particular social groups, ‘individuals perceived to have transgressed Islamic mores,’ ‘returnees from a Western country’ and ‘failed asylum seekers from a Western country’.
Although various other matters were articulated from time to time, in my opinion it is clear that the only aspect of the applicant’s potential persecution that is presently relevant are those matters flowing from the existence of his tattoo and his work as a tattooist. As I have earlier indicated, the matters of returnee from a Western country and failed asylum seeker are no longer pressed.
The Reviewer’s decision runs from CB216-283 and runs to 410 paragraphs. The applicant’s counsel has made an excellent, if not heroic, endeavour to paraphrase the Reviewer’s findings at paragraphs 10-35 of the applicant’s Contentions of Fact and Law. Given the sheer volume of the Reviewer’s decision, however, in this instance I think the most practical way to proceed is to address each of the articulated Grounds of Review seriatim.
Ground 1 - the Second Respondent committed an error of law and/or denied the applicant procedural fairness by misconstruing or misapplying the applicable law, or otherwise failing to ask itself the right question when considering whether the relevant laws under consideration were of “general application”.
PARTICULARS
(a)The Second Respondent rejected certain claims made by the applicant on the basis that the consequences or conduct feared by the applicant fell under the law of general application.
(b)The Second Respondent committed an error of law and/or denied the applicant procedural fairness by:-
(i)Failing to determine whether the laws were of general application or whether they targeted the particular social group of “individuals perceived to have transgressed Islamic mores”; and/or
(ii)Failing to consider whether the laws were appropriate and adapted to achieving some legitimate object of the country of residence.
In substance, the two matters of which complaint is made are those set out in particular (b) to ground 1. The first is whether the Reviewer did in fact determine whether the laws with which she was concerned were of general application and whether they targeted the particular social group of individuals perceived to have transgressed Islamic mores and second, whether those were laws that were appropriate and adapted to achieving some legitimate object of the country of residence.
It should be remembered that as the Reviewer set out in paragraph 106 (CB227), the applicant had claimed, inter alia, to be a member of a social group being individuals perceived to have transgressed Islamic mores. It should be noted that the Reviewer did not accept the applicant’s evidence in relation to claims of investigation for tattooing his two clients and made a finding, at paragraph 340 (CB271), that:
“… the extent to which the claimant claims to have been pursued by the police for tattooing is not supported by independent evidence.”
That finding of itself is not open to challenge and has indeed not been challenged in this proceeding.
The Reviewer was well aware of the way in which the applicant put his claims in relation to tattooing.
At paragraph 343 and following the Reviewer noted:
“343. The claimant has submitted that it is illegal in Iran to have a tattoo and to work as a tattooist. He submits that this illegality stems from the Hadiths, which along with the Quor’an, are a source of Islamic religious law.
344. I accept that the Hadiths are a source of Islamic religious law and moral guidance. I find that chapters of the Hadiths are dedicated to dressing, medicine and trade and that these contain prohibitions on both the possession of tattoos and the practice of tattooing. Some of the relevant Hadiths are directed only to women; others are not gender specific. I find that Iran is an Islamic state and, therefore, Islamic law applies to all Iranian citizens and others in Iran.
345. I further find that independent information unequivocally relates the Iranian authorities’ opposition to tattoos and tattooing to two concerns. The first, as identified by media reports in 2000 from the BBC and AFP and a 2008 report from DFAT, is that tattooing is considered to be a public health problem and is linked by the Iranian authorities to the spread of HIV. The second and more contemporary concern is that the display of a tattoo in public may be offensive to the morals and values of its citizens and can threaten public safety.”
At CB273-274, paragraphs 353-358, the Reviewer found:
“353. As Brennan CJ identified in Applicant A, the persecution feared by the claimant must be discriminatory. Persecution for reasons of one of the Convention grounds ‘excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application’. It does not matter, as Dawson J stated, that the penalties could be considered harsh and repugnant to Australian social values.
354. I find that the current equivalent of Articles 638 and 639, Article 8 of the Constitution and the Hadiths about tattoos and tattooing are such generally applicable laws. On their face, these laws apply to the whole population of Iran.
355. I also find that the current equivalents of Articles 638 and 639 and Article 8 all have their origins in a principle of the Quor’an and that specific prohibitions on tattoos and tattooing are found the Hadiths themselves and that all these rules seek to promulgate Islamic values in Iranian society. However, in and of itself, this does not make these laws discriminatory; against other religions, against Muslims in Iran who might be seen to hold liberal views of Islam or against non-practising Muslims, such as the claimant. As Justice Tambelin noted in Lama v MIMA:
“The fact that the law of a country may enshrine particular religious values does not mean that such laws can be described as targeting members in that society who do not adhere to the religion in question. In the present case ... although it is unlikely that a Hindu may kill a cow, in the event that he or she does so, the prescribed penalties apply. What is governed by the law is that act of killing the cow and not the social or political or religious beliefs of the person who commits the killing (at p 29).”
356. What is governed by all of the laws in question in this matter is the act of offending a moral or religious value in public. Whilst it may be less likely, for example, that a practicing Muslim would breach these laws than a non-practicing Muslim, should he or she do so, the prescribed penalties apply. Or, in the case of the Hadiths, a penalty of a judge’s discretion could be imposed. This issue is considered below.
357. As a corollary, I reject that claim that the claimant, as a tattooist, would, on the face of such laws, be considered to be an apostate, and punished under the laws relating to apostasy. Something more is required.
358. The claimant has claimed for several reasons, these laws of general application are discriminatorily enforced against people with tattoos and tattooists. Having given careful and extensive consideration to these arguments, however, for the reasons below, I find no evidence to support them and reject them completely.”
In these circumstances, the complaint in ground 1(b)(i) that the Reviewer failed to determine whether the laws were of general application or whether they targeted a particular social group of individuals perceived to have transgressed Islamic mores seems to me unsustainable. The Reviewer said, in terms, that this was a law of general application. It made it quite clear that the law relating to tattooing was part of the law relating to those who transgressed against Iranian social mores generally. This was the social group which the applicant claimed to be a part of. In my opinion, the assault upon this aspect of the Reviewer’s reasoning can not be upheld. It runs contrary to what the Reviewer actually found.
The next question is whether the Reviewer properly addressed the issue of whether the law of general application was one properly adapted to achieving some legitimate object of the country of residence.
This aspect of the debate produced a sharp distinction between the parties. The first respondent submitted that when read properly the observations of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, as exemplified in subsequent authority, did not require any consideration of whether the law was indeed appropriate and adapted to achieving some legitimate object of the country concerned. This was because the decision of McHugh J, it was submitted, first required consideration of whether or not the law of general application would discriminate against the applicant for any reasons set out in the Convention or otherwise. It was submitted that the Reviewer had found at paragraphs 355-366 (CB273-276) that the law was neither discriminatory nor enforced in a discriminatory manner (see first respondent’s Contentions of Fact and Law, paragraph 38).
Needless to say, the applicant’s submissions were to the contrary effect.
The discussion of this aspect of the matter began with the observation of McHugh J in Applicant A at page 258 where his Honour said:
“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.”
At page 259, his Honour continued:
“In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws.”
The matter was considered again in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 where the majority of Gleeson CJ, Gaudron, Gummow and Hayne JJ said relevantly at [21]:
“To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.”
Counsel for the applicant also drew the Court’s attention to Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23, a case in which by majority the Full Court of the Federal Court held on the facts of the case that the Tribunal had failed to make an appropriate set of inquiries as to whether the law under consideration in that case was, or was not, reasonably appropriate and adapted.
The passage of the Reviewer’s decision to which the first respondent refers at paragraphs 356-366 (CB 273-276) certainly does find that people who offend against the moral dress code generally are not perceived and will not face discrimination or persecution on the basis of political opinions. It is, however, the case that the Reviewer found that this social group could face the force of the law of general application.
Whether the finding goes as far as the first respondent asserts:
“Finally and most importantly, the Reviewer did not accept that these laws were discriminatory or enforced in a discriminatory manner (paragraph 38, first respondent’s Contentions of Fact and Law)”
is open to question.
At this point, it is as well to remember the observations of the High Court in Minister for Immigration and Ethics Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272:
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
When read fairly and as a whole, it seems to me that the Reviewer found that having a tattoo was a subpart of the general group of those who might offend against Islamic dress code generally in Iran. This group faced, according to the Reviewer, lesser penalties on any view than those who might commit more serious offences. The Reviewer plainly thought that this was a law of general application and expressly found that there was no evidence that the applicant, as a tattooist, would face any greater penalties than anyone else.
I accept the submission from counsel for the applicant that the Reviewer did not find in terms that this was a law adapted appropriately for the needs of the country of residence. Nonetheless, it is, in my view, clear that the Reviewer must have regarded this as being the case to the extent that it was necessary. The Reviewer referred in terms to the decision of Applicant A at paragraph 353, CB273.
Furthermore, although the matter is one of nice judgment, I think that the better view of the characterisation of the Reviewer’s decision is that the laws were not discriminatory in the context of the Convention in any event. So much may be inferred from paragraph 353, including the reference to the judgment of Dawson J in Applicant A at that paragraph.
Ground 2 - The Second Respondent committed an error of law and/or denied the applicant procedural fairness by misconstruing or misapplying the applicable law, or otherwise failing to ask itself the right question when considering whether the relevant laws of “general application” were applied against the applicant in a discriminatory manner.
PARTICULARS
(a)The Second Respondent failed to consider whether the laws it assessed to be of general application were applied in a discriminatory manner against the applicant because of his membership of a particular social group, comprised of people with tattoos or tattooists.
(b)The Second Respondent instead reasoned and confined its inquiry to whether the applicant would be considered to be “any more Satanic, dirtier or more un-Islamic than others who express themselves with or supply un-Islamic clothing or adornments”.
(c)In addition, the Second Respondent’s assessment of the applicant’s past mistreatment at the hands of the authorities was based on a false dichotomy and a failure to recognise that the authorities could have multiple motivations to harm the applicant, or differentially treat him, including for reasons of thuggery and his membership of a particular social group.
So far as subparagraph (a) of the ground is concerned, in my view, it can be dealt with relatively briefly. The law of general application that arose to consideration in this regard was the law against offending the Islamic dress code. The Reviewer said, at paragraph 371 (CB277):
“In summary, I reject the claimant’s claims that in the event that he is harmed on returning to Iran because of his tattoos or his work as a tattooist, that such harm would be for the substantial reasons of his actual or imputed political opinion or religion. Whilst I accept that there exists a particular social group of tattooists of whom the claimant is a member, I reject that claim that this would be the substantial reason for him being harmed by the Iranian authorities. Whilst I accept that there may exist a particular social group of individuals perceived to have transgressed the Islamic dress code and, if so, the claimant, by publicly showing a tattoo and by being a tattooist may, in certain circumstances, be a member of it, I find that any harm that might arise to the claimant is the result of general laws of application applied without discrimination against persons with tattoos and against tattooists and cannot therefore amount to persecution.”
It seems to me that this was exactly the issue the Reviewer confronted.
So far as subparagraph (b) of the ground is concerned, I accept the submission of the first respondent that read fairly and as a whole the Reviewer’s decision was not restricted to the matters set out in paragraph 365 of the decision (CB275). The Reviewer was merely considering one aspect of the claim in the context of the suggestion that the applicant as a person with a tattoo might be targeted over others offending the Islamic dress code. The Reviewer did not accept that this was so.
I accept that Branson J in Okere v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 112 characterised as a false dichotomy the distinction between facing harm for reason of your religion or facing harm by reason of what you have done as an individual. As her Honour pointed out at page 118:
“The RRT was required in this case, in my view, to ask itself whether, applying common sense to the facts which it accepted, the applicant has a well-founded fear of persecution the true reason for which is his religion.”
This criticism arises out of the fact that the applicant was the subject of assaults on each of the occasions he was detained by the authorities. The Reviewer found at paragraph 367 (CB276) that:
“… I find that this violence stems from a culture of thuggery and impunity within the LEF, the expression of which is arbitrary. As Brennan CJ stated in Applicant A (at 384):
The persecution must be ‘for reasons of’ one of those categories. This qualification excludes indiscriminate persecution, which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms.”
I think there is considerable force in the submission by counsel for the applicant that the Reviewer’s reference to thuggery, set out above, might offend against this false dichotomy proposition. Nonetheless, it needs to be borne in mind that the Reviewer made findings at paragraph 399 (CB281), as follows:
“I have found that the claimant was only arrested twice for revealing his tattoo. I have found that the claimant was hit on the back of the neck, insulted and roughly handled by the Basij during his arrest and detention and that he was released the same day. I have found that police forced his head into a table, requiring stitches, and he was released the same day. I further find that he was not subjected to any further assaults during his detentions. Whilst I accept that such treatment was harsh, and there is independent evidence such as Worldwide Religious News in April 2007 that now and then, the Basij will use violence to enforce the dress code, I do not consider such actions to amount to cruel or inhuman treatment. I consider they fall short in terms of both severity and repetition. …”
In the face of these findings, it seems to me that the Reviewer did turn her mind to whether the applicant, should he return to Iran, would have, as Branson J put it, “a well-founded fear of persecution, the true reason for which is his religion.” Of course in this case, the matter under consideration was membership of a social group. While it is true that the passage I have referred to arises under the heading “Complementary Protection”, it seems to me to be equally applicable to the Convention persecution matter.
Ground 3 - The Second Respondent committed an error of law by assessing the applicant’s claims on the basis that he was expected to take reasonable steps to avoid persecution if he returned to Iran.
PARTICULARS
(a)The Second Respondent accepted that the applicant had tattooist and that he had also worked as a tattooist in Iran. (sic)
(b)The Second Respondent assessed the applicant’s claims on the basis that he could hide his tattoos and also operate as a tattooist “away from the public eye without interference from the authorities.”
(c)The Second Respondent erred by imposing on the applicant a requirement or an expectation that he take reasonable steps to avoid persecution.
It is well accepted that it is no answer to a claim for persecution to say that the relevant persecutee may avoid persecution by taking steps not to do those things that give rise to persecution. Religious worship is often cited as such an example.
In this case, it is clear that the Reviewer assessed the applicant as being a person who, in the past, had conducted his practice as a tattooist under the radar and would be likely to do so again. The Reviewer also noted that the applicant had not revisited swimming pools or beaches since his two arrests and was unlikely to do so in the future.
Counsel for the first respondent submitted that this was therefore just a matter of assessing whether the applicant would continue to do those things in the future that he had done in the past. It was submitted that the Reviewer imposed no obligation on the applicant to change his behaviour to avoid persecution.
Both sides sought to draw comfort from the decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
Both sides were correct to do so, because in a sense there is support for each. On the one hand the High Court clearly found, by majority, that merely to make a finding of fact that the applicants would live discreetly if they returned to Bangladesh did not involve error. On the other hand the majority also held that the Tribunal had erred by failing to consider why the applicants would live discreetly and whether that was a voluntary choice, uninfluenced by fear of harm if they did not do so.
As the majority noted, asylum seekers are not required to take reasonable steps to avoid persecutory harm. The Tribunal must determine how an asylum seeker is likely to live on return to his or her country of origin and assess the chance of persecution on that basis. It is not relevant to consider whether the asylum seeker could live in the country of origin without attracting adverse consequences.
The Reviewer’s finding that the applicant would continue to live in the future in Iran, so to speak, as he had in the past is in my view not open to challenge.
It seems clear to me that the reason that the applicant would live in that way would be to avoid the harm that would occur to him if he were not to do so. It would appear that all he has to do is to go to the beach or a swimming pool with his arm uncovered to attract the attention, at least on occasion, of the authorities. In this sense, I think that the criticisms advanced by the applicant are correct.
There are two things that militate against the conclusion that the Reviewer fell into jurisdictional error, however. The first is that the law that the applicant would be breaching would be one of general application, although I note that on one view it is not so much the breach of the law but the conduct itself that appears to give rise to what might be characterised as bribe-extorting activities on the part of the authorities.
The second and the significant difficulty is the findings the Reviewer made at paragraphs 399-404. The reality is that the applicant faced harsh, but relatively minor ill treatment, only twice over a period of six years. Having considered his history, the Reviewer concluded at paragraph 405 that the applicant would not face significant harm because of his tattoo or activities as a tattooist. Whilst minds could legitimately differ about this conclusion, the question the Tribunal asked itself, and its conclusion, do not in my view reveal jurisdictional error.
In the ultimate, I do not think that the applicant’s case can be made out. So in conclusion, for the above reasons, the criticisms advanced of the Reviewer’s decision are not made out and it follows that the application must be dismissed, with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 7 October 2013
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