MZZPG v Minister for Immigration

[2014] FCCA 1415

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZPG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1415

Catchwords:
MIGRATION – Judicial Review – whether procedural fairness had been given to the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: MZZPG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1141 of 2013

Judgment of: Judge McGuire

Hearing date: 30 June 2014

Date of Last Submission: 30 June 2014

Delivered at: Melbourne

Delivered on: 13 August 2014

REPRESENTATION

Solicitors for the Applicant: Unrepresented

Counsel for the First Respondent: Mr Sharpe

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That time for the filing of an application for judicial review be extended to 24 July 2013.

2. The application filed 24 July 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1141 of 2013

MZZPG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

Application

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made 3 December 2012 affirming a decision of the Delegate of the first respondent (the Delegate) to refuse the applicant a protection (Class XA) visa. 

2. The applicant is a citizen of Iran.  He entered Australia as an unauthorised maritime arrival on 29 March 2012. 

3. On 27 June 2012, the Minister exercised his discretion under Section 46(2) of the Migration Act 1958 (“the Act”) to permit the applicant to make an application for a protection visa.  He was subsequently interviewed by the Delegate. 

4. In a determination of 8 September 2012 the Delegate refused the application for a protection visa. 

5. On 13 September 2012 the applicant made application to the Tribunal for a review of the Delegate’s determination. 

6. Some 10 days after the Tribunal’s decision, on 13 December 2013, Schedule 2 of the Migration Regulations 1994 (Commonwealth Cth) was amended by the inclusion of a “time of decision” criterion for protection visa applications, the effect of which was to render unauthorised maritime arrivals, such as the applicant, ineligible for the grant of a protection visa.  The validity of the amendment was challenged in the High Court[1]. The court ruled the amendment invalid.

   [1] Plaintiff S297/13 v Minister for Immigration and Border Protection and Anor; Plaintiff N150/13 (by his litigation guardian) v Minister for Immigration and Border Protection and Anor;  Plaintiff S4(2014) v Minister for Immigration and Border Protection and Anor.

7. The applicant made application to this court on 24 July 2013 being, on my calculations, some 198 days outside of the 35 day time limit prescribed in the Act at section 477(1). The applicant seeks and requires an extension of time under S.477(2).

Background facts

1. The applicant put the following background matters to the Tribunal: 

   a)That he is an Iranian national and holding an Iranian passport. 

   b)That he was born of Afghan parents on 22 November 1973 (or at least one Afghan parent) but that his parents each died of natural causes when he was a young child, resulting in him being adopted by his father’s Iranian employer.  He says that he has eight adoptive siblings and that his adopted father is now deceased.  His adoptive mother lives in Iran.  The references throughout the material are to the applicant’s “step-parents” and “step-siblings” whereas they are technically his adoptive parents and siblings.

   c)That, following his “step-father’s” death, his step-siblings located his birth certificate and learned of his status and that he is ethnic Hazara.  He says that a dispute over rights of inheritance from his late step-father have resulted in family dispute.  This resulted in threats of exposure and deportation together with discrimination.  He says that one step-brother is a drug addict who has demanded money from him with menaces and has, on one occasion, wounded him with a knife with a leg.

   d)That his wife is Iranian and that she and their three children aged 12, 10 and eight continue to live in Mashhad, Iran, which had been the applicant’s habitual place of residence.

   e)The applicant says that he has suffered discrimination and threatening behaviour (apparently from exposure of his ethnicity) including: 

   (i)That he was required to operate his business under an associate’s name as he could not himself conduct business under his own Afghan/Hazara identity;

   (ii)That authorities have conducted a search of his home and confiscated his and his family’s personal documents;

   (iii)That approximately one month prior to leaving Iran, he was arrested and detained for three days by Iranian police.  He says that he was exposed and reported by a step-brother.  He says that he was beaten and humiliated during these three days.

   (iv)The applicant says that he has converted to and embraced Christianity since arriving in Australia.  In doing so, he has abandoned Islam. 

2. The arguments put before the Tribunal for a protection visa were as follows:

Persecution arising from race

1. The applicant says that he faces persecution because he is a member of the minority Hazara group.  He claims that Hazara are routinely mistreated, harassed and extorted by Iranian authorities and subject to threats of deportation.  He says that 3-4 million Hazaras live in Iran as asylum seekers or refugees and generally have no access to basic human rights.  He says that they are discriminated against as a minority group.  He referred the Tribunal to various articles and reports in support of his contentions.

Persecution arising from imputed political opinion

1. The applicant says that if he is returned to Iran as a failed asylum seeker then he will be deemed a spy or traitor due to his connections with Western influences.  He says that his life or liberty will be at risk accordingly.  He says that he has a real fear of such persecution despite not being or having been politically active. 

Persecution by reason of his religious practice

1. The applicant says that he converted to Christianity in September 2012.  He says that he is a committed and practising Christian and attends the “Celebrate Messiah” church.  He says that he has a reasonable fear of harm for abandoning Islam.  He says that his apostasy of Islam is likely to be discovered and result in arrest, harm or death.  He provided an article dated 10 January 2011 from the Hudson Institute’s Centre for Religious Freedom in support of his argument. 

Persecution by reason of his membership of a particular social group

1. The applicant cites two particular groups being firstly that comprised of apostasy to Christianity and, secondly, that comprised of returnees from a western country.  He says that he will be considered a spy or a traitor for seeking asylum in another country.  He says that his conversion to Christianity will attract retribution from the authorities.  He refers to Sharia law and anticipates punishment by death or life imprisonment.  He provided further articles for the consideration of the Tribunal in support of this contention.

Failure of Iran to avail protection

1. The applicant says that he could not seek protection from the Iranian authorities in that it is they who have or would authorise and/or support the use of violence on dissidents in Iran, including converts to Christianity.  He says that he has no rights of protection in any other country.  He says that he is not excluded from coverage by the Refugees Convention (Articles 1D, 1E, and 1F) which he cites and relies on.

2. The applicant relies on the matters set out above, the materials provided and country information as evidence that there are substantial grounds for him to believe that there is a real risk of significant harm to him if he is re-fouled.

3. The applicant had the benefit of legal representation before the Tribunal.  He appears before me unrepresented.  He has assistance from an interpreter, and the applicant and the interpreter both satisfied me that they spoke the same language and were able to properly understand each other.

4. The applicant relied on his application, filed 24 July 2013, together with his affidavit, sworn 23 July 2013.  That affidavit, however, references his reasons for delay in filing the application before this Court.

5. The application seeks the following orders or relief:

   (1) A declaration that the decision of the Tribunal, dated 3 December 2012, is unlawful, void and of no force and effect.

   (2) Certiorari squashing or setting aside the decision of the Tribunal. 

   (3) Prohibition directed to the first Respondent, prohibiting him from acting upon, or giving effect to, or proceeding further upon, the decision of the Tribunal. 

   4) Mandamus, or an injunction compelling the first Respondent to consider and determine, according to law, the applicant’s application for a protection visa.

   (5) Costs. 

   (6) Such further order or other Relief, as the Court deems appropriate.

6. The application sets out the grounds as follows: 

   (1) The decision of the Tribunal:  (a) is affected by an error of law;  and (b) denied the applicant procedural fairness.

The Tribunal’s Findings and Reasons

1. The Tribunal demonstrated an understanding of the application before it and in the reasons at [82] said:

   In order to satisfy the Convention definition of a refugee, the applicant must have a well-founded fear of persecution.  He must have a subjective fear, and that fear must also be well-founded when considered objectively.  There must be a real chance that the applicant will be persecuted for a Convention reason if he returns to Iran.  The Tribunal accepts that the applicant does not want to return to his country.  The question for the Tribunal is whether the applicant’s fear of persecution is objectively well-founded within the criteria of the Refugees Convention. 

2. The Tribunal found the application to be an Iranian national [85].

3. It is clear that the Tribunal made a number of findings of credit against the applicant but appropriately proceeded with caution [83] citing Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan[2], and Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Lian and Ors.[3]

   [2] [1996] 40 ALD 445 at 482

   [3] [1996] 185 CLR 259 at [39].

4. The Tribunal concluded against the applicant’s credit in respect of the criteria of “Well-Founded Fear of Persecution.” [86]. In particular, it expressed serious concerns as to the applicant’s claim that his Iranian nationality had been revoked; that he had been detained for three days; that his house had been searched and documents removed; and as to his conversion to Christianity [86]. The reasons for those findings are set out at [90] as follows:

   The Tribunal considers that the applicant’s inability to speak Hazaragi, lack of contact with the Hazaragi community in Iran and marriage outside of that community are consistent with his claims to have grown up in an Iranian family and do not tell against his being of Afghan Haraza descent as claimed. 

5. Further, insignificantly, the Tribunal did not place reliance on the Delegate’s apparent consideration of the applicant’s physical features and appearance. 

6. The Tribunal did, however, consider the applicant’s statement that his wife did not know of his Hazaragi ethnicity before their marriage, and, agreeing with the delegate, considered it “inconsistent with his claims that he can be recognised as such throughout Iran.”  The Tribunal noted, but did not accept, the applicant’s response that “it was so obvious that it didn’t need mentioning” and considered that to be “inconsistent with his earlier evidence that his wife married him on the basis that he was an Iranian-born national.”

7. The Tribunal accepted the applicant’s claim that he was adopted at age 6 and that his biological parents were Afghan Hazaras resident in Iran [91]. It also found credible his evidence of the family dispute in respect of his adoptive father’s inheritance. However, despite those findings, the Tribunal did not accept as credible the applicant’s submissions and the country information before it that he was systematically discriminated at, sworn at, subjected to arbitrary abuse and subject to pervasive threats of deportation to Afghanistan.

8. The reasons for those findings appear at [93] of the Tribunal’s reasons and there appears to be a clear nexus between the reasons and conclusions of the Tribunal showing conscious consideration.  It follows [94] that the Tribunal did not accept “that the applicant, a recognised Iranian national, will face discrimination or harm amounting to serious harm on the basis of his actual or imputed Afghan nationality and Hazara ethnicity. 

9. The Tribunal did not accept the applicant’s claim that his Iranian citizenship has been withdrawn by the authorities resulting in him imputed with Afghan nationality and being deported to Afghanistan should he be returned to Iran.  The Tribunal relied on country information properly before it [96] including Iranian citizenship law that the Government cannot withdraw citizenship from an Iranian.  The Tribunal noted in this regard that the applicant had been issued with documents including an Iranian birth certificate, Iranian drivers licence, Iranian military service identify card, an Iranian national identify card and an Iranian passport.  The Tribunal noted the applicant’s submission that “Iran has a fascist Government”, but also Article 41 of the Iranian Constitution, giving an indisputable right of citizenship to every Iranian.

10. As to credit, the Tribunal observed that the applicant had been inconsistent in his evidence as to his interactions with Iranian authorities and the circumstances of the alleged stripping of his nationality [98]. It noted that the applicant’s interview with the Minister’s Delegate on 5 April 2012 he did not disclose that he had been detained. Rather, in that interview [98] he says only that it was getting hard to live in Iran and that there were threats to report him to the authorities and that the manifest impact had been only that he was told that he was not entitled to have a business and would “pick on his taxes or council rates.” He disclosed his alleged arrest and detention and actual report of his ethnicity only when lodging his visa application on 27 June 2012. Further, the Tribunal noted inconsistencies between the applicant’s written statement to the Delegate and his evidence before the Tribunal as to when he says his house was searched and documents taken [100].

11. The Tribunal found against the applicant on credit as to his alleged conversion to Christianity, considered it opportunistic, and contrary to his statements in respect of his alleged non-previous commitment to Islam.  The Tribunal noted the evidence adduced by the applicant that he had been attending the Christian Church in Australia from 8 September 2012 being a date coinciding with the refusal of a protection visa by the delete.  The Tribunal noted previous admissions of religious pilgrimage for the applicant and his family in August 2011.  He recorded himself as Shia Muslim in his entry documents.  The Tribunal raised these inconsistencies with the applicant and did not accept his response.

12. Consequently, the Tribunal concluded that the applicant’s conversion to Christianity was for the purpose of strengthening his refugee claims and did not therefore accept that the applicant had a well-founded fear of persecution on the basis of that conversion to Christianity if he was returned to Iran. 

13. Further, the Tribunal did not accept that the applicant was a member of a particular social group being “Apostates from Islam to Christianity”.  Inherent in its consideration, however, the Tribunal accepted the evidence of the applicant’s attendance at Christian congregation since 8 September 2012.  Nevertheless, it concluded that the applicant was a practising Muslim at the time of his departure from Iran and that his claimed conversion to Christianity was not genuine and hence that he did not present as a member of a particular social group, being “apostates who change their religion from Muslim to Christianity”.

14. Still further, the Tribunal did not accept that the applicant would be perceived to be a member of that particular social group. The Tribunal’s reasons are repeated at [110].

15. The Tribunal considered the applicant’s claims to fear physical and other harm from his adoptive brother, Mahdi, who is an alleged drug addict and alleged to have blackmailed the applicant and stabbed him.  The Tribunal noted that the applicant demonstrated a small scar on his leg but considered its general serious concerns as to his credibility in not accepting that the injury occurred in the way described by the applicant and concluded that it did not accept that the applicant had a well-founded fear of serious harm from his brother if he returns to Iran “now or in the reasonably foreseeable future”.

16. The Tribunal did not accept the credit of the applicant’s claim that he would be accused of being a spy or traitor on the basis of imputed political opinion as an unsuccessful applicant for refugee status. The Tribunal noted that the applicant had departed Iran legally on his own passport and that the passport remained valid. The Tribunal noted the applicant’s concession as to no prior anti-regime behaviour, save some private discussions with a neighbour and in his profession as printing some posters and fliers. The Tribunal was satisfied that he did not have a high political profile in Iran [114]. The Tribunal concluded that the applicant did not have a well-founded fear of persecution on the basis of any actual or imputed political opinion should he return to Iran, now or in the reasonably foreseeable future.

17. The Tribunal did not accept that the applicant had a well-founded fear of persecution on the basis of his membership of a particular social group being “returnees from the west”.  The Tribunal in its reasons relied on there being no country information indicative of persecution in Iran simply by reason of returning from a western country.  The applicant could point to no specific law.

18. The Tribunal did not accept that the applicant had a well-founded fear of prosecution on the basis of his membership of a particular social group being “failed asylum seekers”.  The Tribunal noted that the applicant was not politically active and concluded that his claim for asylum in Australia would not lead to adverse interest from the Iranian Government.  The Tribunal again noted that the applicant departed lawfully on his own passport, which remains valid for a return to Iran.

19. The Tribunal having considered each of the applicant’s claims separately, then proceeded to consider them cumulatively.  It was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason.

20. The Tribunal proceeded to consider “Complimentary protection” pursuant to section 36(2)(aa) of the Act noting that it must be satisfied that there are “substantial grounds for believing there is a real risk that the applicant will suffer significant harm”. At [126] the Tribunal concluded:

    For the reasons set out in detail above, the Tribunal has not accepted that the applicant’s conversion to Christianity while in Australia is genuine, nor that he will seek to practice the Christian faith if returned to Iran.  Nor has the Tribunal accepted that the applicant holds or will be imputed to hold an anti-regime or anti-government or pro-western political opinion if he is returned to Iran, nor that he will be perceived as not supporting the Iranian Government.  Further, the Tribunal has not accepted that he has been stripped of his Iranian nationality by the Iranian authorities, nor that he is or will be imputed to be an Afghan national and deported to Afghanistan upon his return to Iran.  The Tribunal has not accepted that the applicant will be targeted for harm or mistreatment on the basis of his Hazara ethnicity, nor that he faces serious harm from Mahdi or any other member of his step-family.  The Tribunal has not accepted that the applicant is an apostate or will be perceived as such if he returns to Iran.  The Tribunal has not accepted that the applicant faces serious harm if he returns to Iran on the basis that he is a failed asylum seeker or because he has returned from a western country.

1. It is evident from its reasons that the Tribunal dealt with all material evidence provided by the applicant in respect of his application including:

   a)the applicant’s statutory declaration;

   b)copies of documents provided by the applicant;

   c)the applicant’s written submissions;

   d)the applicant’s oral evidence given at the Tribunal;

   e)country information provided by the applicant.

2. It is evident that the Tribunal applied the correct legal principles and tests in respect of the application for a protection visa and in particular:

   a)the Tribunal set out the relevant law as to the granting of a protection visa [4];

   b)the Tribunal properly set out the law regarding refugee criterion [5]–[15];

   c)the Tribunal properly set out the law regarding complimentary protection criteria pursuant to section 36(2)(aa) of the Act [16]-[18].

Proceedings before the Federal Circuit Court

1. The applicant’s application was filed 24 July 2013. He seeks an extension of time pursuant to section 477 of the Act. He grounds the application on:

   It is necessary in the interests of the administration of justice to grant an extension of time for the reasons outlined in the attached Affidavit of the applicant.

Extension of time

1. The application is opposed.

2. The applicant’s affidavit in support says that he was represented by a lawyer called “Steve” before the Tribunal.  He says that “Steve” did not receive the Tribunal’s decision and reasons until two weeks after the decision was made.  He deposes that he was advised that his file would be passed on to Victoria Legal Aid but he did not hear further from his solicitor or from Legal Aid for a further two months, whereupon he was told that he could not receive assistance from Victoria Legal Aid.  He then deposes that he wrote to the Minister himself on 3 February 2013 seeking a reconsideration of his case.  That request was rejected by letter of 20 June 2013.  He then commenced discussions with “lawyers at the Asylum Seeker Centre” and has since received assistance from that body.

3. In oral submissions the applicant said that he needed to collect documents and to make contact with members of his biological family in Afghanistan.  He claimed that his case was “unique” in that he could not get assistance from Legal Aid or further assistance from “Steve”.  He says that he has since received assistance from the pastor of his church and he has received some pro bono assistance from a lawyer only in the past two or three months.  He says that he cannot afford a private lawyer.

4. In opposing the extension of time, counsel for the respondent noted annexure 2, the applicant’s own affidavit sworn as long ago as 23 July 2013 and dated 20 June 2013 advising personal consideration by the Minister who decided it would not be in the public interest to intervene.

5. The respondent noted the time limit of 35 days for the filing of the application before this Court but that the application was some 198 days out of time.

6. The respondent made no submissions as to prejudice to the respondent in granting the extension.

7. On consideration, I am of the view that the applicant has given some reasons  and explanation for the delay.  The applicant’s lack of English language skills is noted.

8. On a consideration of the reasons for delay, the length of the delay, and issues of prejudice, I exercise my discretion in favour of the applicant and allow an extension of time for the filing of his application to 24 July 2013. 

The grounds of the application

1. The applicant’s application sets out two grounds for consideration being:

   a)That the decision of the Tribunal is affected by an error of law;

   b)That the applicant was denied procedural fairness.

2. Despite orders and directions by the Registrar, the applicant has filed no written submissions in support of his application. 

Alleged error of law

1. The applicant’s contention is not particularised.  The applicant pointed to no alleged jurisdictional error in his oral submissions before this Court.  Given the matters set out above, I am satisfied that the Tribunal properly set out the relevant legal principles.  I am satisfied that the Tribunal gave reasons for each of its findings and demonstrated conscious consideration of the matters raised by the applicant before the Tribunal.

2. I am satisfied that issues of credit were open for findings by the Tribunal and that it gave reasons for the findings of credit made. 

3. It is trite to emphasise that it is not the role of this Court to conduct a hearing on the merits.  It is only a finding of jurisdictional error in the Tribunal that will give the relief sought by the applicant.  The applicant pointed to no jurisdictional error.  None is apparent from the reasons of the Tribunal. 

Alleged denial to the applicant of procedural fairness before the Tribunal

1. The applicant provided no written submissions in respect of this ground. 

2. With the assistance of his interpreter, the applicant made oral submissions to the effect that his interpreter did not speak the same language as the applicant.  During the course of those submissions I understood the complaint in this regard by the applicant to relate to the proceedings before the Tribunal.  My inquiry of counsel for the respondent showed a similar understanding by him.  Upon hearing submissions from counsel to the respondent to the effect that the documents completed by the applicant and before the Tribunal demonstrated a consistency of a Persian interpreter being both required and provided to the applicant, the applicant sought to make submissions in response.  Those submissions alerted the Court (and counsel for the respondent) that, in fact, the applicant was making this complaint in respect of the hearing before the Delegate.  Whether or not that be the case, it is apparent that the applicant raised no complaint in respect of misunderstandings with or by his interpreter in the proceedings before the Refugee Review Tribunal.  That Tribunal offered the applicant a hearing de novo on the merits.  As such, even if there was a difficulty before the delegate there can be no substance or merit to his submission.

3. The applicant offered no other submissions or complaint in respect of a denial of procedural fairness.

4. In other respects I accept that the submissions of counsel for the respondent as follows:

   a)That the Tribunal rejected the applicant’s application largely on an assessment of the applicant’s credit;

   b)At the hearing on 12 November 2012 the Tribunal raised with the applicants its concerns as to the inconsistency of his evidence and clearly elicited and permitted response from the applicant;

   c)That it was open to the Tribunal to critically reject the allegations and submissions of the applicant and that the findings of fact and credit were open to the Tribunal;

   d)That the Tribunal accepted the credit of the applicant’s contentions in some respects and rejected them in others and that questions of weight are a matter for the Tribunal;

   e)That the Tribunal properly raised with the applicant and elicited response from the applicant in respect of its concerns as follows:

   i)His claim as to being detained and mistreated by Iranian authorities;

   ii)Independent country information contrary to his claims of revoked Iranian citizenship and treatment of return to asylum seekers.

   iii)His alleged conversion to Christianity;

   iv)The credibility of his claims as to his ethnicity and persecution of Hazaris in Iran.

Conclusion

1. The applicant has identified no error of law on the face of the Tribunal’s decision.  I find no error of law in that decision.  The applicant has effectively directed any allegations of denial of procedural fairness at the determination before the Delegate.  He was provided with a re-hearing on the merits.  I otherwise find no breach of procedural fairness. Consequently there is no merit to the two grounds of argument and the application will be dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 13 August 2014