SZPZI v Minister for Immigration & Anor
[2011] FMCA 530
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZPZI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 530 |
| MIGRATION – Independent review of refugee claims of off-shore entry person – stateless Faili Kurd previously residing in Iran without rights of residence – whether discrimination in education and employment would amount to ‘persecution’ – harassment by agents of Iranian government of undocumented residents – Reviewer found no Convention nexus – focus on undocumented Faili Kurds – failure to address whether broader social group of undocumented residents – relief granted by declaration of legal error. |
| Migration Act 1958 (Cth), ss.36, 46A, 91R, 368, 430, 474, 476 |
| Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411 Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 Paramananthan v Minister for Immigration & Multicultural Affairs (1988) 94 FCR 28 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, (2010) 272 ALR 14 SZOUY v Minister for Immigration [2011] FMCA 347 WAEE v Minister for Immigration (2004) 75 ALD 630 |
| Applicant: | SZPZI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 365 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 6 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Counsel for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to consider in his report whether the applicant had a well-founded fear of persecution in Iran by reason of membership of a particular social group constituted by unregistered or undocumented people living in Iran.
Application otherwise dismissed.
The first respondent pay the applicant’s costs in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 365 of 2011
| SZPZI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived on a boat at Christmas Island in January 2010. On 31 March 2010 he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. He claimed that he had been a stateless Faili Kurd living in Iran, and feared persecution for a Convention reason if he was returned to that country. A negative assessment was notified to the applicant on 10 May 2010, and the applicant then applied for ‘independent merits review’ under those procedures. On 9 February 2011, the applicant was advised that Mr Connolly, acting as Independent Merits Reviewer, had recommended that the applicant “should not be recognised as a refugee”.
The applicant filed his present application to the Court on 3 March 2011, seeking a declaration that Mr Connolly’s report is affected by legal error, and an injunction to prevent the Minister and his Department from relying upon the report when implementing a threatened removal of the applicant from Australia. Throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an ‘offshore entry person’ under the Migration Act. The Minister concedes that Mr Connolly’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, (2010) 272 ALR 14 at [51]. It is to be noted that the Minister’s powers under s.46A, and the procedures by which he exercises them, are not within the list of non-compellable powers which are excluded from this Court’s jurisdiction by reason of the reference in s.476(2)(d) to s.474(7).
The Minister’s concession as to the Court’s jurisdiction extends only as far as accepting that the applicant’s prayer for injunctive relief against the Minister is not a ‘colourable’ or baseless foundation for seeking non-Constitutional declaratory relief, and he does not concede that grounds for issuing a s.75(v) injunction could be established in the present case. As in Plaintiff M61 (see [8]), this is a matter which I do not need to address further, since I am satisfied that the Minister is likely to respect a declaration which reveals a material legal error in Mr Connolly’s report, and will initiate a further review of the applicant’s refugee status and the possible exercise of his powers under s.46A, before directing or allowing the applicant’s removal from Australia without his consent.
In Plaintiff M61, the High Court explained a significant legal error revealed in a report of an Independent Merits Reviewer:
[86] Each aspect of the reviewer's reasons that has been noted reveals error.
[87] First, the determination of whether Australia had protection obligations to the plaintiff was to be made according to law. It is an essential characteristic of the judicature established by Ch III that it declares and determines the limits of power conferred by statute upon decision-makers. The various legislative powers for which the Constitution provides are expressed as being "subject to" the Constitution and thus to the operation of Ch III, in particular to the exercise of jurisdiction conferred by s 75. The reasoning supporting decisions made in particular controversies acquires a permanent, larger and general dimension as an aspect of the rule of law under the Constitution.
[88] One of the powers whose exercise was being considered was the power to lift the bar under s 46A and permit the plaintiff to make a valid application for a protection visa. Exercise of that power on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia. For the purposes of the Minister considering the exercise of power under s 46A, what the RSA Manual and the IMR Manual both referred to as "Australian legislation and relevant case law" had, therefore, to be treated as binding upon those who made the assessments and those who reviewed those assessments, not just as "aid[s] to the interpretation of the Refugees Convention".
[89] Although expressed generally -- as whether Australia owed the plaintiff protection obligations -- the fundamental question to which the assessment and review processes were directed had to be understood as whether the criterion stated in s 36(2), as a criterion for grant of a protection visa, was met. Necessarily, that question had to be understood by reference to other relevant provisions of the Migration Act, and the decided cases that bear upon those provisions. If the legislation and case law were treated as no more than aids to interpretation, the assessment or review would not address the question that the Minister had to consider when deciding whether to lift the bar under s 46A. Whether another, different, question about the application of the Refugees Convention (as amended) according to some understanding of the Convention different from that adopted in Australian legislation and case law could be relevant to the issues presented by the possible application of s 195A need not be considered.
The High Court noted that the Minister’s directions to a Reviewer required him or her to give an opinion whether the refugee claimant satisfied the criteria for the grant of a protection visa under the Migration Act, and held that the Reviewer was obliged to apply the criteria according to their terms in the Convention as adopted by the Migration Act and interpreted by Australian courts. The Minister’s directions in this respect appear to be unchanged in the ‘Guidelines for the Independent Merits Review of Refugee Status Assessments’ dated 1 April 2010, which were relevant to the making of Mr Connolly’s report in the present case. Mr Connolly interpreted the Guidelines as requiring him to report in terms of s.36(2) whether he was satisfied that “Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”, i.e. that the applicant satisfied the definition of refugee found in the Convention (see NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161 at [33], [42], [57], and my discussion in SZOUY v Minister for Immigration [2011] FMCA 347 at [9] and following). The part of that definition relevant to the present case, was:
A.For the purposes of the present Convention, the term "refugee" shall apply to any person who: ...
(2)owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it. …
Both counsel accepted as correct, Mr Connolly’s opinion that he should form his opinion by reference to the embellishing and interpreting provisions of the Migration Act in relation to Australia’s protection obligations, including the dual nationality and ‘right of entry’ provisions in s.36(3)-(5) which I explained in SZOUY, and the statutory embellishments in s.91R in relation to the meaning of ‘persecution’. Their concessions appear to me to be consistent with the relevant parts of the Minister’s Guidelines, and with Plaintiff M61, and I accept them for the purposes of the present case. It will be necessary below to consider how Mr Connolly applied s.91R.
Mr Connolly devoted a substantial part of his report to discussing whether the present applicant could acquire nationality in either or both of Iran and Iraq, and he also touched on whether the applicant had rights of entry into those countries. However, his recommendation ultimately was based upon a conclusion that the applicant’s refugee claims should be addressed under s.36(2) and the Refugees Convention as a person “not having a nationality and being outside the country of his former residence”, which was Iran. Consistent with this conclusion, it is common ground that Mr Connolly’s report and recommendation is not to be understood as having reported that Australia’s protection obligations would be excluded by s.36(3)-(5) of the Migration Act, or by the effect of the Convention itself, on the ground that he has effective protection as a national of Iran or Iraq, or is a person with rights of entry giving effective protection in either of those countries.
Indeed, Mr Connolly emphasised several times that he was not giving any opinion whether there was any country to which Australia could, in fact, remove the applicant from Australia. The country information available to the Department and Mr Connolly showed considerable uncertainty whether, in fact, the applicant had any real prospect of achieving nationality or rights of residence in either Iraq or Iran, even if the applicant was willing to seek this.
This is a significant point, since there is a recurring theme in Mr Connolly’s report, which is reflected in his opinion at [31] that “I believe the onus was on the claimant to show me that he had tried to take reasonable steps to solve his nationality problem [by applying for nationality in Iraq] rather than seeking protection elsewhere”. However, once Mr Connolly accepted that the applicant is a stateless person, his opinions on the applicant’s preference for seeking protection in Australia rather than seeking the nationality of Iran or Iran had no relevance to an assessment of Australia’s protection obligations. Mr Connolly’s opinions on this topic were not required to be given to the Minister under the IMR guidelines, which required only a “report and recommendation, as to whether the claimant is found to be owed Australia’s protection obligations” (see cl.1.6). I was therefore concerned, reading the whole of Mr Connolly’s report, that he might have been distracted by considering whether the applicant deserved Australia’s protection without first having sought it elsewhere, when reporting whether the applicant’s stateless circumstances engaged Australia’s obligations under the Refugees Convention as adopted by the Migration Act.
However, the grounds of legal error argued by the applicant’s counsel did not directly focus upon these parts of Mr Connolly’s report, and it is unnecessary for me to examine them further. It is also unnecessary for me to be considering several other difficulties presented by parts of Mr Connolly’s report, arising from his at times obscure and dubious reasoning.
Counsel for the applicant, properly, in my opinion, focused upon establishing error in three key passages in Mr Connolly’s report, accepting that the Court should not give declaratory relief, except in relation to legal error which was material to Mr Connolly’s operative conclusions and recommendation as to Australia’s protection obligations. In effect, counsel accepted that I should not order any relief, unless an error in Mr Connolly’s report was of such significance to its outcome, as would be regarded as ‘jurisdictional’ and call for relief in relation to the exercise of a statutory power of decision as to refugee status. I consider that such an approach is consistent with Plaintiff M61.
When considering the grounds of legal error submitted by the applicant’s counsel, it is relevant to note the Guideline’s directions as to the content of an Independent Merits Reviewer’s report:
12.THE FINAL REPORT AND RECOMMENDATION
Independent Reviewers’ reports must:
·clearly set out the recommendation of the Independent Reviewer; and
·set out the reasons for the recommendation.
In order to achieve this, the Independent Reviewer’s report must:
·address all the claims made by the claimant, reflect genuine consideration of them, and set out clear findings on all questions of fact that are material;
·include reference to any information or other material (eg. country information) on which findings of fact are based;
·make reference to any responses made by the claimant to material which is adverse to their case;
·where there is relevant conflicting information, explain why one piece of information is preferred over another;
·identify all the information on which a finding is based with reasons as to the finding;
·explain why any submission on a material question of fact was accepted or rejected; and
·set out all the steps in the reasoning linking the findings to the ultimate recommendation.
·Carefully proofread the report.
It is suggested that the Independent Reviewers’ reports be in the attached format (Attachment G).
In this context, it is appropriate, in my opinion, to treat Mr Connolly’s report as an equivalent to a statement of reasons given by a migration tribunal under its duties as to the content of reasons described in ss.368(1) and 430(1) of the Migration Act, at least for the evidentiary purposes of drawing inferences as to what evidence and issues were or were not considered by Mr Connolly when making his recommendation. It is well established that an inference of error by reason of a failure to consider a legally relevant matter may be drawn from the omission of discussion of a significant or essential issue raised by s.36(2) of the Migration Act, although drawing that inference requires caution and careful examination of how the refugee claims were raised and responded to by the decision-maker (cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34]-[35], [68]-[69], [75]; WAEE v Minister for Immigration (2004) 75 ALD 630 at [47]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [33]-[36]; and Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [43]-[49], [55], [72], [91]-[92], [98]).
The applicant’s refugee claims
Mr Connolly essentially accepted the truth of most of the applicant’s claimed history, except in relation to two elements. He accepted that the applicant’s parents were Faili Kurds who were expelled from Iraq in about 1980. They settled in a village in Iran, where the applicant was born in 1988 and lived until coming to Australia. His father was initially given a ‘green card’ permitting residence in Iran, but this was confiscated when his father applied to extend it to a ‘white card’ in 2001. The father was told that he did not belong in Iran, and the family members, including the applicant, thereafter lacked any documentation which would allow lawful residence, access to education and health benefits, and work permits. His father died in 2001. The applicant received a brief informal education. He fortunately had not suffered ill health, and he had worked as a farmhand until he was given unauthorised employment in a grocery shop in a local town. When travelling to work and at other times, he was harassed and subject to extortion by the revolutionary militia, the Basij, because he was an undocumented refugee.
The applicant’s reasons for leaving Iran were shortly noted in his arrival interview: “I don’t have any country to go back to anyway, none of grandfathers, father, or me have had any identity there. I don’t know what to say, we don’t have any ID’s.” In his later statement prepared with the assistance of a migration agent, he said “The Basij belong to the government, they are everywhere, they have beaten me up most of my life because I am a Faili Kurd, why would this change now, I am afraid of the Basij more than anything else.”
Mr Connolly found the applicant to be “a generally credible witness”, and accepted that he had encountered discrimination, and was subject to Basij harassment. But he was not satisfied that this harassment included a recent incident when the applicant claimed his nose was broken. Mr Connolly also did not accept the applicant’s explanation that he did not himself apply for a residence card because he feared deportation, although Mr Connolly appears to have accepted that the applicant genuinely believed that he had no prospect of obtaining Iranian residence and work permission. He also appears to have accepted that the applicant had genuine subjective fears of harm if he returned to Iran, including further discrimination in relation to education, health and employment opportunities, and harassment by the Basij as an ‘undocumented Faili Kurd’ refugee, including risks of physical assault, extortion and other detriments.
Based on the history which he accepted, Mr Connolly was obliged to consider whether the harms which the applicant might encounter if he returned could amount to ‘persecution’ within the concept of the Convention definition and s.91R, and whether an objective assessment of the risk of any such ‘persecution’ occurring allowed his fears to be characterised as ‘well-founded’. Australian refugee law has described this test of future risk as a test whether “there is a real chance of persecution”, which is satisfied “even though the possibility of the persecution occurring is well below 50 per cent” (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572).
In his report, Mr Connolly explained his findings as to the ‘well-foundedness’ of the applicant’s fears under different heads of possible future harm or detriment to the applicant if he returned to Iran. No issue is now taken by the applicant that Mr Connolly failed to consider his situation ‘cumulatively’. However, his counsel argued that material legal error was disclosed in Mr Connolly’s reasoning in relation to the risk of persecution under three of his headings: “education”, “employment” and “treatment from the Basij”
The applicant’s risk of persecution in relation to education
Mr Connolly’s discussion of this topic was preceded by reference to legal authority and country information relevant to considering whether Iran’s discriminatory denial of access to normal governmental services to its unregistered foreign residents can amount to persecution. He said:
86. The claimant has submitted that from his birth he faced ‘serious harm’ at the hands of the Iranian authorities who failed to provide effective protection to the claimant and his family as refugees because they were denied basic human rights, including the right to formal education; access to proper health care; “lawful” employment; the right to earn a living and basic services which threatened his ability to subsist in Iran.
87. I am conscious that from case law: MIMA v Haji Ibrahim [2000] HCA 55 (26 October 2000) that not all discrimination or differentiation between the rights and benefits available to citizens or non-citizens will amount to persecution. And the UNHCR’s Handbook on procedures and criteria for determining refugee status states:
Persons who receive less favourable treatment as a result of such differences [in the treatment of various groups] are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities….whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances.
88. However, where discrimination creates significant economic hardship it may - depending upon the seriousness and circumstances - amount separately or cumulatively to persecution if such discrimination was imposed for a Convention reason:
“denial of access to employment, to the professions and to education….may constitute persecution imposed for a Convention reason”, Chan v MIEA (1989) 169 CLR 379 at 431 per McHugh J.
89. In the claimant’s case I have looked at country information to assess the actual circumstances in Iran and to what extent they impacted adversely on the claimant seeking refugee status and whether in the foreseeable future his circumstances would be likely to change.
90. The current situation of Faili Kurds in Iran was addressed by DFAT in March 2010. CIR. No 10/13 - — IRAN: Faili Kurds, 18 March CX241170):
“Treatment depends upon whether individuals were registered refugees before the Iranian Government policy changed in 2001. Those who registered enjoy access to education, health care, and (informally) employment. Those without documents do not enjoy access, although access to education for children is theoretically possible because of an Iranian Government policy of allowing all children access to education. Undocumented children usually miss out on available places, because Iranian citizens and documented refugees are given priority. Also attendance at school risks bringing undocumented family members to the attention of the authorities.
Post is not aware of Faili Kurds being targeted because of their ethnicity. However, those without documents risk deportation if detected by the authorities…Iraqi refugees including Faili Kurds tend to be treated well in comparison with Afghans. Racially motivated violence against any group in Iran is rare”
91. The claimant claimed that he has suffered ‘serious harm’ as a result of the Iranian authorities not providing effective protection to refugees. S.91R(2) of the Immigration Act 1958 noted that instances of ‘serious harm’ for the purposes of assessing persecution include:
· significant economic hardship that threatens the persons capacity to subsist;
· denial of access to basic services where denial threatens the persons capacity to subsist; and
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
92. The claimant stated that as he was deprived of basic services he suffered all of the above. Consequently, such discrimination in future may depend upon whether or not it is ‘serious harm’ in the terms of s.91R and whether the circumstances - amount separately or cumulatively to persecution if such discrimination continues to be imposed for a Convention reason.
93. Education: The claimant stated that he did not receive a formal education although he did receive informal schooling in the village between 1998 and 2005 when he went to work. 1 have accepted this claim because undocumented children generally cannot access state education despite a commitment in the Iranian Constitution. There is also country information that citizen and registered refugee children take priority over unregistered children for the available school places and in 2002 UNHCR estimated that there were in excess of 200,000 Afghan and Iraqi refugee children registered and not paying fees at some 17,000 Iranian schools at both primary and secondary level. DFAT also reported that some Faili Kurds had access to university education in six Iranian cities.
94. In view of the UNHCR information above, I am not satisfied that being the child of an unregistered refugee would automatically result in them being denied access to free formal education in future. Nor did I find that it was ‘serious harm’ in terms of s.91R, that at his age, the claimant would be unable to resume formal education. In the event that he obtains a White card these issues would be unlikely to arise in future.
Counsel for the applicant submitted that Mr Connolly’s reasoning in paragraph 94 revealed material errors of law and a failure to address relevant issues in a manner required by the Convention definition. His arguments were refined in the course of oral submissions to the following points:
i)The conclusion in the first sentence was not logically supported by the evidence it cited, since ‘the UNHCR information above’ showed only that children of registered refugees might be obtaining access to education.
ii)That sentence also applied a test of probability which reversed or failed to apply the ‘real chance’ test, by requiring evidence which proved ‘automatic’ denial of access, i.e. 100% probability of discrimination in access to education against an unregistered resident such as the applicant.
iii)The second sentence arrived at a characterisation which was not open, as a matter of law, on the true construction of ‘persecution’ under the Convention read with s.91R.
iv)The third sentence made an assumption that the applicant could obtain a white card, which was inconsistent with the relevant country information previously identified by Mr Connolly.
v)Even if the country information raised a possibility that the applicant might obtain a ‘white card’, Mr Connolly failed to consider under the ‘real chance’ test the possibility that he could not do so.
Counsel for the Minister contested these arguments. His principal argument was that, even if Mr Connolly’s reasons for dismissing a concern as to denial of access to education given in the first and last sentences of paragraph 94 revealed legal error, the second sentence provided an independent and self-supporting reason. In relation to the second sentence, he submitted that it was open to Mr Connolly to characterise the denial of access to formal education to a person when they were age 22 or older as not amounting to ‘persecution’.
Not without some hesitation, I accept that the second sentence should be read as providing an independent reason for finding that the applicant had no well-founded fear of persecution in the nature of denial of access to education. This would be conformable with my general obligation to give poorly expressed statements of reasons a reading which supports validity, if this is reasonably possible (cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 29). As I have indicated above, I have also accepted that the applicant needs to identify a material error of law, i.e. one affecting a finding which was indispensible to Mr Connolly’s ultimate recommendation. I shall therefore address the applicant’s third contention first.
Whether a discriminatory denial of access to ‘formal’ education to a person aged 22 or more, who previously was excluded from all childhood formal education, necessarily amounts to persecution, as a matter of law, is not easily addressed. Counsel for the applicant cited McHugh J’s opinion in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, which was also cited by Mr Connolly in the passage extracted above, and did not cite any other authorities on the point. He also argued that such a denial necessarily is ‘serious harm’ within s.91R(2)(e): “denial of access to basic services, where the denial threatens the person’s capacity to subsist”, without citing any authority for this proposition. Both counsel acknowledged that this paragraph can only be treated as illustrative of one form of ‘serious harm’, and that other deprivations and discrimination in relation to human rights can amount to ‘persecution’ under s.91R(1). Counsel for the applicant suggested that rights to education were acknowledged in international human rights instruments, without taking me to them.
In circumstances where I have arrived at a confident conclusion favouring the applicant in relation to another part of Mr Connolly’s report, and in view of the undeveloped nature of the applicant’s submissions on this point, I shall give my opinion on the point tentatively and shortly.
I agree that it might be conceivable that a denial of access to education throughout a person’s life could amount to persecution, but I am not persuaded that as a matter of law it must amount to persecution in all conceivable situations. In the present applicant’s situation found by Mr Connolly, I am not persuaded that it was not open to Mr Connolly to find that a past and future discrimination in relation to his access to education would not amount to persecution if he returned to Iran. I am not persuaded that it was not open to Mr Connolly to conclude that there was no ‘real chance’ that the applicant’s lack of formal education would impact on him with a sufficient degree of hardship to be described as ‘involving serious harm to the person’ within s.91R(1)(b).
I am therefore not satisfied that the applicant has established grounds for a declaration of legal error materially affecting this part of Mr Connolly’s report.
Since I consider that Mr Connolly’s conclusion can be independently supported by the finding in the second sentence of paragraph 94, I do not need to consider the applicant’s above contentions concerning the first and second sentences of paragraph 94, although I am inclined to accept that they identify non-material errors of law.
The applicant’s risk of persecution in relation to employment
Mr Connolly’s assessment of this was:
97. Employment: I have also accepted the claim that without documentation he was precluded from obtaining “legal” work, except as approved for refugees by the Ministry of Labour, However, the claimant was permanently employed by an Iranian Kurdish friend of his father’s in his grocery shop in (a nearby town) on satisfactory terms which included accommodation during the week and salary advances when needed. In view of this, I did not find that the claimant suffered ‘serious harm’ in terms of s.91R because of the discrimination which he faced in employment as an undocumented Faili Kurd refugee; nor is there a real chance that he would do so in the foreseeable future. I am not convinced that he was systematically and selectively discriminated against on ethnic grounds because he was a Faili Kurd. I am also satisfied that in his particular situation, the discrimination he would suffer on his return to Iran would not be for the ‘essential and significant’ reason that he was a Faili Kurd or for any other Convention reason.
98. 1 have further noted that the value of Green and White cards has changed over time and in 2008 the Iranian Government allowed refugees to register for unrestricted employment. I have rejected the claimant’s claim that he feared deportation if he tried to register for a card, and I have not found any substantive reason why the claimant could not endeavour to register for a White card with which he would be able to access a range of benefits not presently available to him as an unregistered refugee.
99. If for whatever reason, the Iranian authorities refuse to accept his application for a White card, I have no evidence before me which would lead me to conclude that his present situation would change for the worse. I am satisfied that in the foreseeable future the discrimination he would suffer would not amount to ‘serious harm’ as set out in s.91R(2) of the Act.
Counsel for the applicant submitted that several legal errors were revealed in this reasoning:
i)It was not open to Mr Connolly in paragraphs 97 and 99 to characterise the denial of work permission to the applicant as not amounting to ‘serious harm’ within s.91R(2).
ii)The alternative conclusion in paragraph 97, that “the discrimination he would suffer” would not be for a Convention reason, failed to address the Convention nexus arising from the applicant’s membership of a particular social group in Iran, being in his submission: “undocumented people in Iran”.
iii)Mr Connolly’s suggestion in paragraph 98 that the applicant could “register for a white card” so as to gain lawful access to employment, had no support in the evidence before him.
iv)That suggestion also reversed or failed to apply the ‘real chance’ test, by not considering whether there was a real chance that the applicant would not gain a white card so as to gain access to lawful employment.
Country information about unregistered refugees’ access to a ‘white card’, which appears to have been regarded as reliable by Mr Connolly, was cited by him earlier in his report:
77. 1 have given him the benefit of the doubt that his father was initially issued with a Green card upon arriving in Iran but, for whatever reason, the authorities failed to update it. His father subsequently died and the family comprising the claimant and his mother remained undocumented
78. According to country information (See: CX33601: Effective protection of Iraqi nationals in Iran, CIR No 34/99, 11 Feb 1999. Faili Kurds expelled from Iraq by the Hussein regime were granted Iranian citizenship where they could provide documentary proof of their Iranian ancestry or family links. The vast majority of the others who initially entered refugee camps were, according to UNHCR, issued with identity documentation in the form of Blue, Green or White cards depending upon date of issue. (See: CX 237017: UNSCRI World Refugee Survey - 2000; Iran, June 2000). The Green cards which were most common in the later l980s were used as residence permits and gave a formal identity and thus were of genuine value to the holder and his family. They did not give access to the same benefits as the White card, namely the right to work, Convention travel documentation and exemption from certain taxes, and educational and health benefits.
79. In June 2004 the Australian Embassy reported in CX96056: Faili Kurds in Iran that Iran allowed refugees to work, although in reality the government issued few work permits. Consequently, most refugees worked illegally and “the practice is widely but not consistently tolerated by the Iranian authorities”. Refugees were also effectively barred from owning property without an Iranian ISD, subject to bilateral agreements with foreign governments for reciprocal arrangements.
80. The US State Department in its 2008 Human Rights Report: Iran, stated that the Iranian government, at times, failed to grant residence or work permits to Afghan and Iraqi refugees thus effectively preventing them from gaining health insurance coverage and salary caps were also placed on Iraqi professionals. While this would appear to be discrimination against refugees, including Faili Kurds, the Report did not suggest that the Iranian government had in place a pattern of persecution directed against Faili Kurds on account of their ethnicity, but was based upon labour needs within the Iranian economy.
81. For this reason, I took note of the USCRI World Refugee Survey - Iran. 17 June 2009, that Iran has maintained a reservation to the 1951 Convention provisions regarding the right to work and that the 1963 Regulations allow recognised refugees “employment in the fields authorized for foreign nationals and in those fields deemed appropriate”. The 1990 Labour Law mandated the Ministry of Labour and Social Affairs to issue, extend and renew work permits to refugees subject to the agreement of the Ministries of the Interior and Foreign Affairs. Work permits cost around $US75 and are valid for one year and renewable. I also noted that according to UNHCR refugees were encouraged to apply for work permits as recently as 2008.
Counsel for the applicant also took me to a passage from a 2003 Human Rights Watch Briefing paper, which was extracted by Mr Connolly:
Contrary to the government’s current preference for housing new refugees in camps, the vast majority of Iraqis in Iran live in urban areas: mostly in Shiraz, in the south, and in Qom, in central Iran. The preference for camps often makes refugees in cities (both new arrivals and those who have lived there for many years) extremely vulnerable to police abuse and discriminatory treatment. In fact, some policies curtailing refugees’ rights are already in place in Iran. In June 2001, restrictions on refugees’ access to employment were tightened even further, so that all refugees except those with old work permits were classed as illegal workers and thereby subject to expulsion under a law known as Article 48. A new policy of fining and imprisoning the employers of undocumented workers was also introduced. Many refugees were instantly fired from their jobs and thereby also lost their homes and all entitlement to medical care. They had absolutely no access to state social security or any other safety net. Although it was decreed that even undocumented children would be permitted to attend school, many local authorities continued to deny refugee children entrance to public schools and forcibly closed down those organized by refugees themselves. In short, many Iraqi refugees were systemically denied the means to subsist in Iran by Iranian law
It is clear, in my opinion, that Mr Connolly failed to apply the real chance test in accordance with the above authorities, when considering the likelihood that the applicant would obtain access to lawful employment by obtaining a ‘white card’ work permit, and thereby avoid discrimination in relation to employment. Mr Connolly should have asked himself whether there was a real chance that the applicant would not achieve this outcome. On the country information, it is difficult to see how that question could have been answered in the negative. Instead, Mr Connolly reasoned that there was no reason why the applicant could not apply for a white card, but then failed to address the pertinent issue on the hypothesis that he would apply. I can find no implication elsewhere in his report that he addressed this question according to law, and would infer on a fair reading of his report that he did not do so.
Since this element in Mr Connolly’s reasoning reveals overt error of law, it is unnecessary also to consider whether there was sufficient evidentiary support for his reasoning concerning the applicant’s access to a ‘white card’.
For reasons which I shall explain below, I am also satisfied that Mr Connolly failed to appreciate that the applicant’s claims, and the country information which was before him, raised for his consideration whether there was a ‘particular social group’ in Iran constituted by unregistered or ‘undocumented’ people living in Iran who were denied lawful status as residents and otherwise. Instead, Mr Connolly addressed the applicant’s risk of persecution in relation to employment and, as I shall show, at the hands of the Basij, as if the only relevant social group was the sub-group of undocumented Faili Kurds, i.e. a particular sub-group of unregistered residents who are also distinguished by their race and religion.
If these two legally faulty elements in Mr Connolly’s reasoning as to the risk of discrimination in relation to employment were essential parts of his reasoning in this part of his report, then the applicant would, in my opinion, have established grounds for a declaration of legal error which materially vitiated his ultimate recommendation to the Minister.
However, albeit with hesitation, I have concluded that I should accept the submission of counsel for the Minister, that Mr Connolly’s reasoning concerning persecution in employment can be supported purely upon his finding in the middle of paragraph 97, which is implicitly invoked in paragraph 99, that: “I did not find that the claimant suffered ‘serious harm’ in terms of s.91R, because of the discrimination which he faced in employment as an undocumented Faili Kurd refugee; nor is there a real chance that he would do so in the foreseeable future”. As with his similar finding in relation to education, I have not been persuaded that his finding as to the absence of ‘serious harm’ facing the applicant as a result of discrimination in employment was not open to Mr Connolly, as a matter of law.
I do not accept the submission of counsel for the applicant that the mere existence of labour laws prohibiting employment without a permit necessarily constituted persecution for the purposes of the Refugees Convention and s.91R of the Migration Act. In my opinion, it is open to a decision-maker to assess the practical as well as the legal effects of such laws, and to conclude – if the evidence allows the conclusion – that there is no real chance that a claimant lacking a work permit will not be able to obtain unlawful employment which will afford an acceptable livelihood. When addressing this future issue, it is open to the decision-maker to take into account the claimant’s past history in relation to employment without a permit (cf. Guo (supra) at 576). Contrary to the submission of the applicant’s counsel, I consider that this is consistent with the qualifying words at the end of s.91R(2)(f): “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.” I have not been taken to any authority inconsistent with such an interpretation.
In the present case, there are a number of assumptions made by Mr Connolly, when concluding that the applicant’s past ability to obtain illegal employment established that there was no real chance that the applicant would suffer hardship amounting to persecution as a result of lacking an Iranian work permit in the future. These include that the applicant could re-enter Iran, and that there was no real chance that he might not be able to resume his former employment nor find equivalent illegal employment. These assumptions might well be debatable on their merits. However, I am not persuaded, on a generous reading of his report, that Mr Connolly did not address these questions according to law before making his adverse finding that there was no real chance that in the future the applicant would face discrimination in employment amounting to ‘persecution’.
I am not persuaded that Mr Connolly’s reference to ‘as an undocumented Faili Kurd refugee’ in this finding, should be treated as materially contaminating what should be read as a general finding as the risk to the applicant of hardship in employment amounting to ‘persecution’. Even if Mr Connolly erroneously considered this risk by reference only to a Faili Kurd sub-group of persons affected by the Iranian labour laws and practices in relation to undocumented residents, I am not persuaded that this error affected the gist of this sentence.
I therefore am not satisfied that the applicant has made out grounds for relief in relation to this part of Mr Connolly’s report.
The applicant’s risk of persecution by the Basij
Mr Connolly included in his report a ‘profile’ of this body of government agents:
The Basij
BBC News has provided a helpful profile of the Basij (‘Profile: Basij militia force’, BBC News, 18 June 2009, The report states that:
The Basij militia is an Iranian volunteer force of Islamic government loyalists which is often called out onto the streets at times of crisis to dispel dissent.
…The size of the militia is an open question.
A 2005 study by the Centre for Strategic and International Studies in the United States, estimated 90,000 full-time, uniformed, active-duty Basij members and 300,000 reservists. There are also believed to be about a million affiliates who can be mobilized if need be.
The Basij-e Mostaz’afin, (literally Mobilization of the Oppressed in Farsi) is officially known as the Basij Resistance Force (Nirouye Moqavemate Basij), has branches in every town
It is commanded by a senior cleric and is an auxiliary arm of the powerful Iranian Revolutionary Guard.
…there is no doubt that Mr Ahmadinejad still has large support from within the Basij militia, which is made up, in large part, of boys from poor, religious families, often from rural areas, who have benefited from government policies in the last four years
Aside from being used to quell civil unrest, Basij are employed as overseers of civilian behaviour, enforcing dress codes, emergency management and the suppression of dissident gatherings.
Another source stated:
The mission of the Basij as a whole can be broadly defined as helping to maintain law and order; enforcing ideological and Islamic values and combating the “Western cultural onslaught”; “, assisting the IRGC in defending the country against foreign threats; and involvement in state-run economic projects.
In terms of maintaining law and order, Basij members act as “morality police” in towns and cities by enforcing the wearing of the hijab; arresting women for violating the dress code; prohibiting male-female fraternization; monitoring civilian activities; confiscating satellite dishes and “obscene” material; intelligence gathering and even harassing government critics and intellectuals
Source: (Iran’s Basij Force - The Mainstay of Domestic Security Secutity/1357081.html).
His reasoning in relation to the applicant’s claimed fear of persecution at their hands was:
100. The country information noted above, paints a picture of the Basij as a disorganised militia which supports the ideals and policies of the government. The methods used by the Basij to enforce law and order and their brand of Islamic morality include physical assault and its members are known to rob and take bribes from people, regardless of their national status when they are accused of being as transgressors. By all accounts, the Basij is feared by Iranians and non-Iranians alike.
101. I have found the claimant’s evidence about his relations with the Basij to be at times, inconsistent and contradictory:
102. He claimed that during 2009 he was regularly stopped by the Basij at least three or four times a month and bullied when he failed to show an ID. He claimed that all people without ID were punished by the Basij, but did not explain his assertion that Faili Kurds were treated “ten times” more harshly. I noted from DFAT information (below) that Faili Kurds were treated comparatively well as compared to Afghan refugees.
103. At his interview on 31 March 2010 the claimant stated that the last time he was stopped by the Basij was in December 2009, two weeks before he left Iran. The Basij approached him and asked for his ID. As he was unable to comply they took him to a mosque where he was detained for 3-4 hours, his nose was broken and his money taken. He couldn’t go to hospital without documentation and had no money to see a private doctor. His nose remained crooked. This was the reason why he left Iran
104. At the IMR interview before me on 4 April2010, he repeated the substance of the above adding that this was the “first time” he had been detained and beaten by the Basij. He also stated that the Basij hate Kurds and do not consider them to be Iranians and accused them of killing Iranians during the war; consequently, he asserted that he was targeted because he was a Faili Kurd. He made no mention, at this interview of the Basij breaking his nose or of his inability to obtain medical help. I have found that while the claimant may have had a broken nose, I am not convinced it was caused by the Basij, nor did he claim before me that he was accused as a Faili Kurd of killing Iranians during the war, which due to his age was impossible.
105. I do not regard it as plausible that after many incidents when his ID was requested, which I have accepted, the claimant would have had his first and only detention two weeks before he left Iran, and that this incident was the “deciding factor” in him leaving the country in view of his earlier claims that he “thought about coming to Australia two months previously.” (November 2009).
106. I asked the claimant how the Basij at an ID check point could determine whether a person was or was not a Faili Kurd, before speaking to them. He was unable to give me a plausible response. He agreed at the RSA interview, that based on his own account, the Basij mistreat anyone without documentation in the same manner, regardless of ethnicity and or citizenship. I have not made a finding on his claim that Faili Kurds were treated “ten times worse” than others, because he did not explain what that entailed and I found no country information which supported that conclusion. The UNHCR guidelines do not require me to make the claimant’s case for him.
107. Given the pervasive role of the Basij in Iranian society, I have found that it is plausible that the claimant would have been asked by the Basij for identification on a number of occasions as they would ask other passers by. It is also plausible that on occasions he was harassed before being allowed to pass and expected to provide a bribe.
108. In reaching my decision I have given greater weight to the DFAT advice than to the claimant’s claim:
“Post is not aware of Faili Kurds being targeted because of their ethnicity. However, those without documents risk deportation if detected by the authorities….Iraqi refugees including Faili Kurds tend to be treated well in comparison with Afghans. Racially motivated violence against any group in Iran is rare.”
109. Furthermore, I am satisfied that the legitimate subjective fear which the claimant may have had regarding the Basij was also shared by the population as a whole. I have found on the evidence, that the claimant was subjected to abuse and other indignities by the Basij when he was unable to show an ID. However, I am satisfied that this treatment was similar to that given to other Iranians who came to the attention of the Basij, and not because he was a Faili Kurd, or for any other Convention reason.
In my opinion, a fair reading of this reasoning is that Mr Connolly concluded that the applicant’s fears of harassment by the Basij did not engage Australia’s protection obligations, because it would not be suffered for any one of the Convention reasons. He rejected, for reasons which may or may not have been correct, that there was not an ethnic or religious element in the past harassment of the applicant. He appears to have accepted, or not rejected, the claim that the harassment which was feared would amount to ‘persecution’, and also that there was a real chance that it would recur if the applicant returned to Iran and resumed his previous life. This seems implicit in his reference in paragraph to “the legitimate subjective fear which the claimant may have”, and I doubt that any contrary finding on these matters would have been open to him.
Mr Connolly’s reasons for finding no Convention nexus for this persecution must be found in paragraph 109 of his report. They cannot, in my opinion, be found elsewhere in his report, and counsel for the Minister did not attempt to do this. If the finding was affected by error of law, then Mr Connolly’s adverse finding in relation to harassment by the Basij, and his ultimate adverse recommendation, were also materially affected.
Counsel for the applicant submitted that the reasoning in paragraph 109 revealed two errors of law made by Mr Connolly:
i)He failed to appreciate that a finding that the whole population was exposed to persecutory harassment by the Basij for every species of misconduct policed by them, including the non-possession of ‘documents’, did not necessarily answer a claim that this particular refugee claimant was at risk of that harassment for a Convention reason. He should have “entered upon the questions whether there was a causal connection between” the circumstances of the possible future harassment of the applicant and the possible Convention reasons for it, raised by the applicant’s claims (citing Paramananthan v Minister for Immigration & Multicultural Affairs (1988) 94 FCR 28).
ii)If Mr Connolly’s reference to “not because he was a Faili Kurd” purported to do this, he failed to assess the risk faced by the applicant on the basis that the material also raised the question whether the applicant was also the member of a ‘particular social group’ comprising a more general group in Iranian society who were residing in Iran without ‘documents’, and thereby was at risk of the feared persecution.
I am persuaded that an error of the latter kind is established on a fair reading of Mr Connolly’s report.
It is well established that a refugee decision-maker must address and make findings on “a substantial clearly articulated argument relying upon established fact” which could establish a Convention nexus for a well-founded fear of persecution. He or she cannot avoid consideration of a possible nexus arising from membership of a relevant “particular social group” which is raised in the material, by misconstruing or confining the “social group” relevant to the feared persecution, either too broadly or too narrowly (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at [55]-[63]). A failure in this respect is undoubtedly a ‘legal error’ warranting a declaration of the type made in Plaintiff M61, whether characterised as error of law, failure of procedural fairness, or jurisdictional error (see Plaintiff M61 at [90]).
Counsel for the Minister submitted, in the alternative, that:
i)either the material considered by Mr Connolly did not ‘clearly raise’ a claim or issue whether there is a group of unregistered or undocumented residents of Iran which could constitute a ‘particular social group’; or
ii)if such a claim was raised it was addressed and answered by Mr Connolly in his unexplained reference to “or for any other Convention reason” in the last sentence of paragraph 109.
However, I do not accept either of these submissions.
In Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 at [36], Gleeson CJ, Gummow and Kirby JJ said:
[36]Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand.
In my opinion, the accepted history of the applicant and his family, in the context of the country information which was cited by Mr Connolly, clearly raised the issue whether the existence of significant numbers of ‘undocumented’ foreign refugees in Iran, and the existence and operation of its laws and practices which discriminated against them, had resulted in or evidenced a group of unregistered or undocumented residents who shared a common attribute apart from their particular ethnic or religious backgrounds, and that its members were distinguished by that attribute from ‘society at large’.
The applicant expressly invoked membership of that broader group as the reason for his harassment by the Basij, as well as claiming an aggravating reason by reason of membership of an ethnic sub-group of it, being undocumented people living in Iran with a Faili Kurd background. This is apparent from his ‘entry interview’ which I have quoted above. His migration agent also presented it at several points in her submission to Mr Connolly, when she referred broadly to undocumented ‘Iraqi refugees’ as well as to Faili Kurds. Her submissions included:
(The Applicant) has also faced a number of incidents of physical harassment and serious physical abuse by agents of the Iranian government, the Basij. In December 2009, (the applicant) was detained and brutally beaten by Basij officers and sustained injuries including a broken nose that is now permanently disfigured. Due to such incidents, (the applicant) has lived a life of fear in Iran of being targeted by the authorities due to their lack of recognition of his status within the country and as a member of a recognizable minority group, being Faili Kurds.
……
· If (the applicant) was forced to return to Iran he would continue to live there as an Iraqi refugee and would not be entitled to the same rights as an Iranian citizen or lawful resident. (The applicant) would not be entitled to lawful employment in Iran or rights to purchase a home, open a bank account or to enrol his children in formal education or enter an officially recognised marriage. As an undocumented Iraqi refugee, (the applicant) would also face a real risk of being deported from Iran given this country’s failure to provide legal recognition to refugees arriving from 2006.
· If able to return and remain in Iran, (the applicant) would be at risk of physical harassment, detention or violence by the Basij or other Iranian state agents as a Faili Kurd and as an Iraqi refugee. As a member of an ethnic minority, Faili Kurds remain vulnerable to physical harassment and violence by state agents including the Basij.
· Following the recent elections in Iran, there has been an increased presence of the Basij around the streets of Iran which can be reasonably argued as resulting in a heightened sense of fear by members of ethnic minority groups, including (the applicant), of being targeted for extortion, harassment, arbitrary arrest and detention or other serious harm by the Basij as an undocumented Faili Kurd/Iraqi refugee.
……
The claimant would also be at risk of sever physical harassment, extortion, detention or violence by the Basij as a Faili Kurd and as he would live in Iran with status as an undocumented Iraqi refugee. As a Faili Kurd and an undocumented Iraqi refugee, the claimant would be much more vulnerable to human rights abuse by the Basij and there is a real risk that he would be at risk to a much more severe form of punishment by the Basij than an Iranian citizen if stopped during random searches.
……
The lack of any clear evidence that nationality has become available to Iraqi refugees/undocumented Faili Kurds over the thirty year or more period of their presence in Iran, only adds weight to the claims of the client that they have faced a denial of a right to nationality in Iran and face a real chance of continuing to be denied this right should they not offered protection by Australia.
……
We also note that the country information, as also referred to by the decision maker, clearly supports that the client would no longer be eligible to hold or reinstate any green or white card as he has now left Iran. As a result, any rights that may have been provided by virtue of these cards, including a right to actual return or remain in Iran are now irrelevant. The question that needs to be determined is whether the claimant faces a real risk of serious harm in the future if he was to return to Iran as an undocumented Faili Kurd/Iraqi refugee.
In my opinion, once Mr Connolly rejected the applicant’s claim that his harassment by the Basij occurred or was aggravated by reason of his being an undocumented ‘Faili Kurd’, it was incumbent on Mr Connolly to address whether the more general group of undocumented people living in Iran, whose members he implicitly accepted were targeted by the Basij by reason of their attribute of lacking registration documents, was itself ‘a particular social group’ by reason, inter alia, of that shared attribute (cf. Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157 per Perram J at [40]-[43], and [46], with whom Moore J agreed at [1], special leave refused: [2011] HCATrans 130).
This required him to address the separate issues identified in Applicant S as to the elements which can constitute a ‘particular social group’ for the purposes of the Refugees Convention, and then to address the reasons for the applicant’s future harassment by the Basij in the light of those findings. If he had properly appreciated the existence of a claim based on membership of the general group of unregistered residents, he would then have shown some attention to the task referred to by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473:
[31] In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group.
In the absence of any discussion of these issues in Mr Connolly’s report, I draw the inference that he failed to consider an important, even crucial, element in the applicant’s claims for Australia’s protection under the Refugees Convention. In the absence of that discussion, I am unable to find the necessary consideration of the relevant issues in Mr Connolly’s reference to ‘any other Convention reason’ at the end of paragraph 109. Particularly, where the IMR Guidelines required his report to “address all the claims made by the claimant, reflect genuine consideration of them, and set out clear findings of all questions of fact that are material”.
I accept the applicant’s submission that Mr Connolly made the same error in his assessment of the applicant’s fear of persecution by the Basij as was found in Applicant S, where at first instance Carr J identified elements in the material before the Refugee Review Tribunal and the findings of the Tribunal which suggested that the harms feared by the claimant could occur by reason of his shared characteristics with a group of other Afghani men, so as to require consideration by the Tribunal of whether that group was a “particular social group” within the Convention definition (see Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411 at [42]‑[48]. On appeal in the High Court, it was accepted that:
the facts presented the potential for such a case, and thus the Tribunal should have considered whether able‑bodied young men (or possibly able‑bodied young men) with the financial means to buy‑off the conscriptors comprised a particular social group within the meaning of the Convention. (See Applicant S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 (“Applicant S”) at [13] and [50]).
In my opinion, this error materially flawed Mr Connolly’s report in relation to an important element of the applicant’s claims for recognition by Australia of his status as a refugee, upon which Mr Connolly was required to report. I consider that the applicant has established an entitlement to have the error recorded in a suitably framed declaration, which I anticipate will cause the Minister to initiate a full reconsideration of the applicant’s refugee status by a different Independent Merits Reviewer.
I consider that a costs order should follow that event.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 22 July 2011
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