MZZKE v Minister for Immigration

[2014] FCCA 70

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKE v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 70

Catchwords:
MIGRATION – Independent Protection Assessment – whether reviewer considered the applicant’s claim for complementary protection – whether reviewer considered the real question he was required to decide – delay.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(3)

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSFK v Minister for Immigration & Anor [2013] FCCA 7
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 [38].

Applicant: MZZKE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: MLG 591 of 2013

Judgment of: Judge Jones

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Melbourne

Delivered on: 22 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Robinson

Solicitors for the Applicant: Allens

Counsel for the Respondents: Mr Riley

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The application for judicial review is dismissed

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 591 of 2013

MZZKE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a recommendation made by the second respondent (“the Reviewer”) in an Independent Protection Assessment report dated 23 July 2012 that the applicant not be recognised as a person as to whom Australia has protection obligations.

2. The grounds of judicial review are as set out in the amended application filed on 20 August 2013:

   “1.The second respondent failed to fully consider the applicant’s claim for complementary protection and/or failed to consider the real question that he had to decide in assessing that claim, in that he applied to that claim the consideration and conclusions arrived at in respect of the applicant’s refugee claim without:

   a.  taking the applicant’s religious conduct in Australia into consideration; or

   b.  considering how the applicant’s religious conduct in Australia might be perceived by others, regardless of whether his faith is ‘genuinely held’.”

3. In oral submissions, Mr Robinson for the applicant, clarified that ground 1(b) was part of the same ground as ground 19(a) but was included, “…because the issue is not just whether his faith is genuine, but how his conduct might be perceived by other people, whether or not – whatever his internal motives may or may not have been.” (Transcript, p.7)

4. There is no dispute that the Court can only grant the declaratory and injunctive relief sought by the applicant if he can demonstrate that the Reviewer failed to proceed by reference to correct legal principles, correctly applied, or acted in a way that was procedurally unfair: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at

   
   

   [78] (“Plaintiff M61”).

5. In circumstances where I find that there is error within Plaintiff M61, the first respondent submits I should exercise my discretion and refuse the relief sought because of the applicant’s delay in bringing the application. The application for judicial review was made on 1 May 2013, some nine months after the recommendation made by the second respondent.

Background

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

   
   

   23 October 2011. An entry interview was conducted with the applicant on the same day. On 6 February 2012 the applicant applied for a Protection Obligations Determination. On 6 March 2012 a delegate of the first respondent recommended that the applicant not be recognised as a refugee and his case was automatically referred for Independent Protection Assessment. The Reviewer interviewed the applicant on

   
   

   17 May 2012.

2. In a statutory declaration dated 6 February 2012 (CB 66-69) attached to the application for Protection Obligations Determination, the applicant stated relevantly at (CB 67):

   “8.I was born into a Shia Muslim house with my mother is still a Shia Muslim. I converted to Christianity about five years ago whiles in Kuwait. I was watching Christian programs (called Nejat- Surviving – “freedom from difficulty”) on Christian Missionary Farsi Channel. They were speaking Persian but it was broadcasted from the USA.

   9.I then fell in love with Christianity and asked my sister to take me to church. The father in the Church was an Arab man. I told him that I want to accept Christ. He told me that it is ok but I should not tell my friends who were Muslim about my decision. I visited the church once but that day made a decision and accepted Christ.

   10.I was scared my friends would know so I did not go back to the church but only followed Christianity on the TV.

   11.Since that day I have been living my life according to Christian principals.”

3. The applicant further stated later in the statutory declaration, “I also fear that I will be persecuted (by the Iranian authorities) for converting to Christianity” and “I am afraid I will be persecuted for my Religion…” (CB 68).

4. For the purpose of the Independent Protection Assessment, the applicant’s lawyers provided a submission and correspondence from the Prison Fellowship Australia – WA Council dated 14 May 2012 on the applicant’s behalf (CB 141).

5. The correspondence from Prison Fellowship – WA Council stated relevantly:

   “Each week, (the applicant) attends a Bible study group run by Prison Fellowship W.A.

   He also attends Livingston Adventist church each week and as a result of his request for baptism, is currently studying with Pastor Erickson Fabien.”

6. The submission by the applicant’s lawyers set out the applicant’s claims to be recognised as a person to whom Australia owes protection obligations as follows (CB 144):

   “CLAIMS

   1.We are instructed that our client fears persecution in Iran for the following reasons:

   a.     his religion (Christianity) and

   b.     his imputed political opinion

   2.Our client will be perceived as opposing the Iranian regime for the following reasons:

   a.     his conversion to Christianity; and

   b.     his attempt to secure protection in Australia

   c.his expression of support for the United States of America by refusing to walk on the American Flag.

   3.In particular, our client fears that he will be physically abused by the Iranian regime and his ability to subsist will be threatened because of his religion, imputed political opinion and membership of the particular social group of those who suffer from mental illness in Iran.”

7. In respect of the applicant’s claims of persecution as a consequence of his conversion to Christianity the submission further expands

   
   

   (CB 146):

   “e.…any political profile our client held prior to his departure from Iran is exacerbated by his conversion to Christianity and application for asylum in Australia.

   …

   g.Our client’s commitment to his faith has now developed to a point that he engages in congregational practice, regularly attending Christian services whilst in Australia.

   h.…independent information attached indicates that converts in Iran face a real chance of persecution throughout Iran.

   i.…Our client maintains that he holds a subjective fear of persecution in Iran arising from his conversion to Christianity.”

8. The submission then notes that there is attached country information, to the effect that, “the Iranian government and society will engage in persecution of converts from Islam”. (CB 147)

9. Under the heading, Complementary Protection and Considerations, the submission focuses on the significant harm the applicant will suffer because of his perceived political opinion and being perceived as political dissident upon his return to Iran (CB 154). There is no reference to the applicant’s conversation to Christianity or his religious conduct in Australia.

10. The submission attaches lengthy extracts of independent country information under various headings. Under the heading “Part 9: Persecution of Apostates” in Iran there is reference to a report dated 14 December 2011 about a Muslim, who converted to Christianity six years ago, having had his baptism in Turkey, being incarcerated in Iran. It is stated in relation to this report (CB 196):

    “This report raises a substantial basis for a fear of persecution on the part of Iranian asylum seekers who participate in the Christian community while held in Immigration detention in Australia.”

11. Under the heading “Part 13: Persecution of Failed Applicants for Asylum”, the attachment refers to Refugee Review Tribunal country advice for Iran dated 19 August 2010 where it is stated, “…it is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto the Iranian authorities.” (CB 206)

Independent Protection Assessment Report

1. The Reviewer set out the relevant criteria under the Migration Act 1958 (“the Act”) he was required to consider in making a recommendation as to whether the applicant should or should not be recognised as a person to whom Australia owes protection obligations (CB 233 to 235).

2. The Reviewer first considered the claims and the evidence of the applicant both documentary material and the applicant’s oral evidence in the interview conducted with him on 17 May 2012.

3. The Reviewer commenced his findings and reasons by identifying the claims of the applicant as follows (CB 243):

   “77.The claimant fears returning to Iran because he claims that he will face persecution by the Iranian government authorities in the form of physical abuse and will be unable to subsist because of:

   ·     Religion, as a Christian

   ·     Imputed political opinion, because of:

   i.      His conversion to Christianity,

   ii.     His attempt to secure protection in Australia,

   iii.     His expression of support for the USA by refusing to walk on the American flag.

   ·     Membership of a particular social group (people suffering mental illness in Iran).

4. With respect to the claim of conversion to Christianity, the Reviewer’s reasoning and findings were as follows (CB 244):

   “81.Regarding the claimant’s conversion to Christianity, I accept the veracity of the reference from Prison fellowship Australia dated 27 October 2011. I lend little weight to this evidence though, as there are several issues in his claim that cause me to disbelieve the genuineness of his interest.

   82.The claimant bases his interest in, and conversion to, Christianity on a show that he watched on satellite television while in Kuwait. He showed no interest in pursuing Christianity in Iran, to the extent that he claimed there were no Christian churches in Shiraz, when country information indicates that not to be the case.

   83.The claimant was unable to say what Easter signified, nor could he name any different denominations of Christianity other than Catholic and Protestant. He had done no research into Christianity other than watching the satellite show in Kuwait, nor had he undertaken any examination of other religions prior to expressing an interest in Christianity. I accept that a person’s familiarity with a religion should grow as they practice it, however in the five years that he claimed to have converted to Christianity he also claimed to have visited a church only once. These actions are not those of someone who has formed a close connection with Christianity. I find that his claimed interest in Christianity has been submitted because he believes that this will improve his chances of gaining asylum, and his lack of credibility is as a result of his lack of interest in the religion rather than his mental health condition.

   84.Given his overall credibility issues regarding religion, I believe that the claimant has engaged in his religious activities in Australia for the sole purpose of strengthening his claim. As I advised the claimant during my interview with him, in these circumstances s.91R(3) requires me to disregard this conduct in determining whether the claimant has a well-founded fear of persecution.

   85.Given that I have had cause to disregard the claimant’s conduct in Australia regarding his conversion to Christianity, and that the claimant has never come to the attention of the Iranian authorities previously for any religious reason, nor has he publicly questioned Shi’s Islam, I do not believe that the claimant is a genuine follower of the Christian faith.

   86.Given this, I do not believe that he is, or would be perceived to be Christian and/or an apostate on return to Iran. Consequently I do not believe that there is a real chance that he would be likely to suffer persecution for reasons of religion based on conversion to Christianity either now or in the reasonably foreseeable future.”

5. The Reviewer then proceeded to set his reasons and findings in relation to s.36(2)(aa) as follows (CB 247):

   “101.Although I have disregarded the above conduct for the purposes of the claimant’s refugee claims, I have had regard to the conduct in assessing the claimants’ claims relating to s.36(2)(aa). Because I do not accept that the claimed conversion is genuine or that he would be perceived to be a Christian convert, or as someone who has abandoned, or would be perceived to have abandoned Islam, or that he has, or would be imputed with an anti-regime political opinion either now or in the reasonably foreseeable future I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).”

Applicant’s submissions

1. With the benefit of oral submissions by Counsel, the applicant’s argument in relation to both Grounds 1(a) and 1(b) for judicial review are that the factual findings made by the Reviewer when considering the applicant’s claim pursuant to s.36(2)(a) did not dispense in their entirety with the claims made under the complementary protection provisions. The applicant submits that the circumstances in this case are to be distinguished from those in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) in which Robertson J stated at [54] and [56]:

   “54.The factual basis of the claim under the complementary protection provisions was rejected by the Tribunal. Thus the claim as articulated under the complementary protection provisions failed. The claim could not succeed in light of the Tribunal’s rejection of the various causes in relation to which the appellant claimed he would be harmed, with or without detention.

   …

   56.There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.”

2. The applicant points to the consideration by Judge Driver in SZSFK v Minister for Immigration & Anor [2013] FCCA 7 (“SZSFK”), stating at [32] (footnotes omitted):

   “32.Secondly, at [52] the Reviewer found that the applicant’s conduct in working on the street in a public place demonstrates a lack of fear of the Basij.  That was a questionable assumption.  The applicant worked on the street illegally in order to subsist.  He might well have done so because his need to subsist was stronger than his fear of the Basij”

3. The applicant submits that, notwithstanding the Reviewer’s statement that he had regard to the applicant’s conduct in Australia in assessing the applicant’s claims relating to s.36(2)(aa), the Reviewer in fact did not do this. This is because the Reviewer’s finding that the applicant would not be perceived to be a Christian on return to Iran at [86] followed directly from a finding that the applicant was not a genuine follower of the Christian faith at [85]. That finding was arrived at in intentional disregard (in accordance with s.91R(3)) of the applicant’s religious conduct in Australia. The applicant submits that because the Reviewer did not take the conduct in Australia into account, he failed to consider what risk might arise from a potential persecutor perceiving that the applicant was a Christian, irrespective of whether the applicant was a genuine Christian; Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [38].

4. The applicant submits that there was material put before the Reviewer in the applicant’s submissions regarding the risk of harm borne by persons identified as Christian in Iran (CB 183) and Iranian asylum seekers who participate in the Christian community while held in Immigration detention in Australia (CB 196) and the ability of the Iranian authorities to find about Iranian citizens who apply for asylum in Western countries (CB 206).

5. The applicant submits that the two extracts of country information from the applicant’s submission (see [15] and [16] above) were not considered in the Reviewer’s findings of fact at [81] to [86] (CB 244). This material, it is submitted, was relevant to the applicant’s claims made in his submissions. The material is described as the “possible risks to Iranian asylum seekers who participate in the Christian community in Australia, and the risk that (the Iranian authorities) can find out about Iranian citizens who do this” (Transcript, p.8). Consequently, it was not open to the Reviewer to adopt wholesale his earlier findings of fact made in relation to the applicant’s refugee claim as the basis for considering the applicant’s claim under the complementary protection provisions.

First respondent’s submissions

1. Mr Riley submitted correctly in my view (at Transcript, p.10):

   “…the ground as formulated claims that the reviewer failed to consider the real question that he had to decide in that he applied to the claim the considerations and conclusions arrived at in respect of the applicant’s refugee claim without (a) taking the applicant’s religious conduct in Australia into consideration, or (b) considering how the applicant’s religious conduct in Australia might be perceived by others, regardless of whether his faith is genuinely held.”

2. The first respondent submits that sub-ground 1(a) of the applicant’s grounds for review are simply misconceived because the Reviewer explicitly says at [101] (CB 247), “… I have had regard to the conduct in assessing the claimants’ claims relating to s.36(2)(aa).”

3. As to Ground 1(b), the first respondent submits that, as the complementary protection provisions are only engaged where a person has already been found not to be owed protection obligation under the refugee Convention, there will have needed to be factual findings made in the course of considering whether someone is owed protection under refugee Convention. Generally, those same factual findings will be relevant to whether someone is owed protection under the complementary protection provisions which, while expressed in different language are similar in that they involve a real chance test and involve a significant degree of harm as defined in the definition of significant harm. Consequently, in general, it is appropriate that the decision maker does not have to re-engage in the exercise of making factual findings that he or she has already made when considering complementary protection. The first respondent relies on the statement in SZSGA at [56]:

   “There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant’s other claims.”

1. The first respondent submits that the decision of Judge Driver in SZSFK is one where the Reviewer explicitly used language deriving from the refugee convention and from s.91R(3). There is no such language used by the Reviewer in this case. The Reviewer has applied the correct tests and the correct language.

2. The first respondent submits that the material of country information attached to the submissions by the applicant to the Reviewer says nothing about how, if the applicant’s religious practice did become known in Iran, it would have any impact on the applicant. The first respondent submits that there was no failure by the Reviewer to deal with a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24].

3. The first respondent submits that, in reality, the applicant is seeking merits review as the Court is being asked to find that the Reviewer’s conclusion at [101] is wrong because, taking into account the bible study which explicitly the Reviewer accepts the applicant has engaged in, the Reviewer should have come to a different conclusion.

Consideration

Ground 1(a)

1. I am satisfied that the Reviewer took into account the applicant’s religious conduct in Australia in the section dealing with the complementary protection provisions. Although, the language in the first sentence of [101] (CB 247) is not as precise as it could be, on a fair reading, it is clear that the Reviewer is stating that he is now taking into account the applicant’s conduct in Australia which he disregarded in relation to the applicant’s refugee Convention claims pursuant to s.91R(3) of the Act.

Ground 1(b)

1. I agree with the first respondent’s submission that there was not a substantial, clearly articulated argument relying on established facts that the applicant feared harm because, as a consequence of his religious conduct in Australia, he would be perceived by others as Christian, irrespective of whether his faith was genuinely held. In SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125, the Full Court stated at [37]:

   “We do not suggest there is a formula to assess whether the case put has sufficiently raised the relevant issue but relevant matters to be taken into account are whether or not the claim for complementary protection clearly arises from the materials and, where the claimant is represented by professional advisers, whether the advisers have articulated the case which is later said not to have been dealt with by the tribunal of fact. We do not accept the appellant’s submission that merely because material is put as giving rise to a claim on Refugees Convention grounds it automatically follows that that claim is required to be considered as a claim for complementary protection.”

2. The material before the Reviewer was the applicant’s statutory declaration attached to his application for a protection obligations determination (see [7] and [8] above), correspondence from the Prison Fellowship – WA Council and the written submission of the applicant’s lawyers. The claims by the applicant articulated by his lawyers were squarely based on his conversion to Christianity (see [11] and [12] above). The submission prepared by the applicant’s lawyers expressed the applicant’s claim as being that he will be “perceived as opposing the Iranian regime” for reasons including “his conversion to Christianity” (see [11] above). The submission’s consideration of s.36(2)(aa) focused entirely on the applicant being perceived as a political dissident or his perceived political opinion.

3. Mr Robinson relies on two extracts from independent country information attached to his submission (see [15] and [16] above) for the proposition that the authorities in Iran will perceive the applicant is Christian.

4. As is apparent from the extracts from the applicant’s submission set out at [11] to [13] above, the claims in relation to the applicant’s religion are expressed on the basis that the applicant converted to Christianity whilst in Kuwait and his commitment to that faith by reason of his participation in congregational practices regularly attending Christian services. It is true that, in the detailed and lengthy attachments to the submissions which set out relevant country information, the extracts refer to the fact that returned asylum seekers names are passed onto Iranian authorities. Further, there is a statement that a report raises a fear of persecution on the part of the Iranian asylum seekers who participate in the Christian community while in held in immigration detention in Australia. However the report relied on in fact concerned a Muslim who converted to Christianity having been baptised in Turkey being subsequently incarcerated in Iran. I am not satisfied that the submissions by the applicant’s lawyers amount to a substantial, clearly articulated claim relying upon established facts of the sort proposed in sub-ground 1(b) of the applicant’s grounds of application for judicial review. On that basis I would conclude that the Reviewer did not fail to consider the real question he had to decide in assessing the applicant’s claim under the complementary protection provisions.

5. In response to a question from the Court, Mr Robinson stated the applicant’s round 1(b) was not necessarily an integer of claim ground (Transcript, p.4). Rather, the argument is that the Reviewer failed to consider material relevant to the applicant’s claim. I must confess to having some difficulty with this as it appears to me, at least, to beg the question; namely, what was the applicant’s claim?

6. The applicant’s claim was in essence that, by reason of his conversion to Christianity and commitment to his faith in Australia, he will be perceived as opposing the Iranian regime.

7. It is to be recalled the applicant claimed to have converted to Christianity in Kuwait some five years prior to February 2012 (see [7] above). In the Reviewer’s findings of fact at (CB 244 [81]) he accepted the veracity of the reference from the Prison Fellowship – WA Council dated 27 October 2011, however, the Reviewer stated that he gave little weight to this evidence as a consequence of several issues in the applicant’s claim that caused the Reviewer to disbelieve the genuineness of the applicant’s interests. There follows then at [82] and [83] the identification of the issues that cause the Reviewer to disbelieve the genuineness of the applicant’s interest in Christianity. These issues relate to his limited knowledge of Christianity and attendance at Church services during those five years. Given these credibility issues the Reviewer invokes s.91R(3) and disregards the applicant’s conduct in Australia. It is clear that the Reviewer finds the applicant has not converted to Christianity based on his conduct in the previous five years in Kuwait.

8. The Reviewer, in the section on Complementary Protection, then makes it clear he has now considered the applicant’s conduct in Australia and, nevertheless, finds the applicant’s claim to conversion not to be genuine nor that he would be perceived to be a Christian convert. Consequently, the Reviewer finds the applicant does not meet the criterion in s.36(2)(aa).

9. I am satisfied that, the Reviewer addressed the applicant’s claims under s.36(2)(aa).

10. Consequently, I find the Reviewer considered the applicant’s claim for complementary protection and considered the real question he had to decide in assessing that claim.

11. As I have not found that the Reviewer failed to proceed by reference to correct legal principle, correctly applied, or acted in a way that was procedural unfair; Plaintiff M61 the application for relief by the applicant is refused.

12. Given my findings regarding the applicant’s application for judicial review I am not required to consider the issue of delay.

13. The application for judicial review is dismissed with costs.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 22 January 2014