SZQFC v Minister for Immigration
[2011] FMCA 663
•26 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFC v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 663 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations – allegation that the Reviewer failed to consider claims and issues and made a finding for which there was no evidence. |
| Migration Act 1958, ss.5, 13, 14, 36, 46A, 91R, 195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 |
| Applicant: | SZQFC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 881 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Legal Aid NSW |
| Counsel for the First Respondent: | Mr G.T. Johnson SC |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 881 of 2011
| SZQFC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who claims to be a stateless Faili Kurd, arrived by boat on Christmas Island on 5 January 2010. On 11 February 2010 he lodged an application for a Refugee Status Assessment (“RSA”) alleging that he was a refugee and, as such, was a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). He is currently in immigration detention and, it may be presumed, has been so since he landed at Christmas Island. On 16 March 2010 he was assessed by a delegate of the first respondent (“Minister”) as not meeting the definition of a “refugee” under the Convention. He sought a review of that decision and on 15 March 2011 the second respondent (“Reviewer”), in his capacity as independent merits reviewer, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He has sought a declaration that the Reviewer’s recommendation is affected by jurisdictional error and an injunction restraining the Minister’s officers from acting on it.
In his entry interview on 15 January 2010 the applicant implicitly conceded that he had never held a visa to enter Australia. Section 5(1) of the Act provides that Christmas Island is an “excised offshore place”. By reason of those two matters and ss.13 and 14 of the Act, the applicant is an “offshore entry person” as defined by s.5(1) who, in the circumstances and as provided by s.46A(1) of the Act, cannot make a valid application for a protection visa. However ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa. Relevantly, those sections provide:
46A Visa applications by offshore entry persons
(1)An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3)The power under subsection (2) may only be exercised by the Minister personally.
...
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1)This section applies to a person who is in detention under section 189.
Minister may grant visa
(2)If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3)In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4)The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5)The power under subsection (2) may only be exercised by the Minister personally. …
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the independent merits reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 85 ALJR 133 at 143 [49]. In Plaintiff M61 it was held that an offshore entry person such as the applicant who seeks to engage Australia’s protection obligations under the Convention, and is detained by the Commonwealth pending the outcome of that process, must be afforded natural justice by the independent merits reviewer reviewing his case. That right requires the reviewer to conduct a review which is procedurally fair and which correctly addresses the relevant legal question or questions.
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection are set out in paras.8-19 of those reasons and in Volume 1 of the bundle of Relevant Documents which is exhibit 1. Relevant factual allegations are summarised below.
RSA Application
In a statement attached to his RSA request the applicant made the following claims:
a)he is a Shia Muslim of Faili Kurd ethnicity;
b)as a Faili Kurd he was expelled from Iraq in 1980 and has no right to return there or to claim Iraqi citizenship;
c)after being expelled from Iraq, he lived in Iran as a temporary resident with limited rights and freedoms. As temporary residents, Faili Kurds have no right to return to Iran if they leave. The Iranian authorities revoked his temporary status when he left Iran;
d)he left Iran after unbearable harassment by the authorities. He had no right to an identity card and the white card which he had held and which allowed temporary residence had made him subject to further persecution; and
e)if he returned to Iran he would be arrested and imprisoned because he has no proof of identity or nationality. He feared that he would be detained, tortured and imprisoned if he returned to Iran or Iraq because he is a Faili Kurd and because of his stateless status.
Application for independent merits review
The applicant attached to his request for independent merits review a statutory declaration declared on 22 April 2010 making the following claims:
a)when he was about 24 or 25, he began a relationship with a girl who was the daughter of one of the Arabic families in his neighbourhood. They kept their relationship hidden because if her family had found out they would have killed him. They were in a relationship for seven or eight years until 2006 when her family pressured her into marrying someone else;
b)his eldest brother and sisters are married and have children but their children do not have constant education because the “Government changes the rules”;
c)when his family was expelled from Iraq, his eldest brother was left behind and arrested by the Iraqi government. In 2006, one of his brothers had gone back to Iraq in search of his eldest brother and heard that he had been killed;
d)he started working in a radiator repair shop in 1992 but he did not work regular hours because he did not have permission to work and did not want to get caught by the authorities. His brothers did occasional labouring work or sold fruit on the street;
e)officers from the Department of Employment conducted regular checks on people working illegally. In early 2002, three or four government officers arrived at the shop where he worked and one of them had a gun. They began to argue with his boss, who was trying to protect him. The government officers started pushing and shouting at his boss and in an attempt to protect his boss, he got into a fight with one of the officials. All the other officials then came over and began to punch and kick him. He was knocked over and hit his face on a piece of exhaust pipe lying on the floor, cutting open his cheek and forehead;
f)the officials took him to a hospital and then imprisoned him for a month. Before he was released, he was made to sign a guarantee that he would not work again and that he would not tell anyone of what had happened to him. The officials told him that if he was caught again he would be deported;
g)as a Faili Kurd he had many problems just walking around the city. If he ran into police he would have to bribe them and if he did not have enough money they would make him sit on the footpath for hours, even in the middle of winter. If one argued, one would be beaten;
h)about eight months after his release, in late 2002, he found work fixing air conditioners. In 2007 “the pressure became too much” and he stopped doing air conditioning repairs;
i)he had no freedom to move around Iran. As a Faili Kurd he needed permission to go from one city to another;
j)in 2009 the pressure of living in Iran and the fear of being caught by the police had become too much to bear and he decided to leave. His brothers, brothers-in-law and father helped to pay for him to leave Iran; and
k)he feared that he would be detained, tortured and imprisoned if he returned to Iran or that he would be deported to Iraq where he would suffer greatly and might be killed.
The applicant participated in two independent merit reviews. Relevantly, he was interviewed on 17 January 2011 by the independent merits reviewer who is the second respondent in these proceedings. Essentially he repeated his previous claims, but added that:
a)he gave up work fixing air conditioners in 2007 because it involved him going into houses and he was afraid that his way of speaking would be noticed and “what happened previously would re-occur”;
b)he had not married because he did not want to make the mistake that his father had made by having seven children;
c)he had held either an Iranian green card or an Iranian white card, the Iranian refugee registration document, all his life;
d)he had cancelled his white card because if he had not, he would not have been allowed to leave Iran. He left Iran on a forged Iraqi passport; and
e)Faili Kurds were not allowed to work and they had to pay ten times more than Iranians for health care.
After the Reviewer’s interview, the applicant’s representative made further submissions in writing.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That decision was based on the following findings and reasons:
a)the Reviewer did not consider the applicant’s claims by reference to Iraq because the applicant did not have Iraqi citizenship and had not lived there since he was six years old, Iran being his country of habitual residence since 1980;
b)the Reviewer accepted that the Iranian government was authoritarian and repressive with a record of human rights breaches. He also accepted that many minority groups in Iran experienced discrimination and that political activists were dealt with severely. However, the Reviewer found that there were no particular and individual factors which distinguished the applicant from the general Kurdish population and which would support his claim for protection. The Reviewer found that the applicant had lived in Iran for thirty years, and undisturbed at the same home address for ten years prior to his departure, and had worked for over fifteen years. The Reviewer accepted that the applicant had feared that his accent would result in trouble with the authorities because of one incident five years earlier but said that this had to be considered in the context of the remainder of his working life of over fifteen years. The Reviewer also found that the applicant’s brother and his brothers-in-law, all Faili Kurds, also worked and were able to raise a significant amount of money to fund the applicant’s departure from Iran. The Reviewer found that the applicant had been registered as a refugee and had held a green card and then a white card which he voluntarily cancelled to leave Iran;
c)the Reviewer found that the applicant gave inconsistent evidence about marriage. He found that the applicant claimed that he was unable to marry yet the evidence showed that his six siblings were all married and that the applicant had chosen not to marry for financial reasons;
d)the Reviewer found that there was no credible evidence to support the applicant’s claim that he would be persecuted for a Convention reason because he had left the country illegally and was stateless. The Reviewer found that if the applicant came to the attention of the authorities for departing illegally, this would arise out of the application of general law and not necessarily be for a Convention reason. He found that being stateless and subject to deportation was not of itself persecution under the Convention. He found that the claim that the applicant would be considered a Western spy or collaborator was mere speculation and that there was no objective evidence to support it; and
e)the Reviewer accepted that some Faili Kurds (and other minority groups) experienced discrimination and many forms of hardship in Iran but accepted advice from the Department of Foreign Affairs and Trade (“DFAT”) that they were not targeted for their ethnicity and that racially motivated violence against any group in Iran was rare. The Reviewer found that it had been almost ten years since the applicant suffered a single, albeit serious, incident of physical harm and that since then he had been able to work, save money and live undisturbed at home with his family. He found that a likely crackdown or enforcement of a work ban against Faili Kurds was speculative and that there was no evidence to support a conclusion that there would be one. The Reviewer found that the applicant’s circumstances did not amount to serious harm for the purposes of the law.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The second respondent (the IMR) failed to consider claims made by the applicant and so committed jurisdictional error.
2.The IMR failed to consider issues raised in submissions made on behalf of the applicant and on the material before the IMR.
3. The IMR made a finding of fact in the complete absence of evidence.
Reviewer failed to consider claims
The particulars of the allegation that the Reviewer failed to consider claims made by the applicant were:
(a)That the applicant was working in Iran without permission to do so.
(b)That after about the year 2000 the applicant had had to take precautions against being caught for fear of the “authorities”.
(c)That the treatment that he received upon arrest and in custody was not just of physical harm (as seems to be asserted by the IMR at CB 151 [27]) but involved a severe deprivation of liberty.
(d)That he was only released upon signing a “guarantee” that he would not work.
(e)That his siblings did not have permanent jobs, and that they worked irregularly at whatever work was available.
(f)That the applicant was subject to extortion at the hands of the police.
The matters which the applicant particularised were ones which he had raised in his statutory declaration of 22 April 2010. He submitted that he had thereby made clear claims of having worked illegally, of having had to avoid the Iranian authorities, of working in fear of the authorities and of being extorted. He characterised each of these matters as a separate claim and, in particular, said that his fear of extortion was clearly an integer of his claims and was “an entirely separate reason for his fear of persecution”. In this connection the applicant referred to the statement of Allsop J in Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42] in the context of reviews by the Refugee Review Tribunal:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225.
The allegation that the Reviewer failed to consider claims made by the applicant to fear specific examples of Convention-related persecution must be considered in light of the way in which the Reviewer expressed his reasons. It must also be considered by reference to what amounts to an integer of a claim.
In relation to how the Reviewer expressed his reasons, as summarised above at [11], he relevantly stated that although the applicant had been concerned about the adverse consequences of speaking with an accent because of an incident five years earlier, he had worked almost continuously for almost fifteen years and his brother and brothers-in-law all worked; that it had been almost ten years since the applicant had suffered the physical assault and he had been able to work since then, save money and live undisturbed at home with his family; and that the possibility of a crackdown or enforcement of a work ban against Faili Kurds was speculative, the Reviewer preferring the DFAT evidence on the question of employment in light of the employment history of the applicant and of his own extended family.
Although expressed in a somewhat abbreviated fashion, the Reviewer’s decision addressed the treatment which the applicant had received in Iran and which he claimed he would be likely to receive were he to return. The matters which the applicant particularised as having been overlooked by the Reviewer were little more than particular details of the applicant’s claims which the Reviewer did in fact consider, albeit in a broad and comparatively undetailed fashion.
To the extent that the matters particularised by the applicant were not encompassed by the Reviewer’s findings referred to above at [16] they were dealt with when the Reviewer addressed the integers of the applicant’s claims, in the sense that those particulars of this allegation which depend on the applicant’s Faili Kurd ethnicity and statelessness were dealt with when the Reviewer considered whether those characteristics provided a basis for the applicant to fear persecution in Iran.
In this case, the Reviewer concluded that there were no particular and individual factors which distinguished the applicant from the general Kurdish populations and which would support his claim for protection; that although Faili Kurds experienced discrimination and hardship in many forms in Iran, this was not by reason of their ethnicity; that there was no credible evidence to support the claim that he would be persecuted for a Convention reason because he had left Iran illegally and is stateless; and that being stateless and subject to deportation did not amount to persecution under the Convention. By doing so the Reviewer considered the integers of the applicant’s claim to fear persecution, namely his Faili Kurdish background and his statelessness.
It might also be noted that the applicant’s submissions confused instances of the persecution which the applicant claims to fear with the reasons for that persecution. As Allsop J’s reasons in Htun make clear, the integers of a claim are the different bases for the persecution alleged, not the individual, and potentially disparate, manifestations of such persecution. As his Honour said:
If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation – that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. (at 259 [42])
Consequently, a fear of extortion was not an integer of the applicant’s claims but was an example of the persecution the applicant claimed to fear by reason of one of those integers, his ethnicity.
Although expressed in a somewhat abbreviated fashion, the Reviewer’s decision addressed the claims made by the applicant as well as the integers of those claims. For that reason, the first ground of the amended application does not disclose error on the Reviewer’s part.
Reviewer failed to consider issues
The submissions which the applicant alleges the Reviewer failed to take into account were particularised as having been:
(a)That the cumulative effect of the treatment and deprivations to which the applicant had been subject amounted to persecution.
(b)That the denial of a legal right to work was in itself persecution.
The first particular refers to one aspect of the applicant’s migration agents’ written submission to the Reviewer of 14 February 2011 where it was said:
We believe it would be an error to fail to take into account the combined affect of all of the claims raised by [the applicant]. We would submit that the combination of the denied rights that he has experienced in Iran together with the threats to life and liberty resulting from the Iranian authorities’ attitudes to Faili Kurds does have a combined and sustained effect that amounts to the serious harm or persecution that is covered by the Convention.
The applicant submitted that a failure to take into account the cumulative effect of his claims was a failure to deal with the case he raised and was a denial of natural justice.
Although the Reviewer did not say, in terms, that he had considered the applicant’s claims in a cumulative sense, paras.24-28 of his reasons under the heading “Assessment of claims” indicates that that is exactly what he did. In short form, the Reviewer considered whether characteristics peculiar to the applicant marked him out for persecution, whether a returnee to Iran would face persecution and whether Faili Kurds generally were targeted because of their ethnicity and he considered the applicant’s allegations in the context of those broad categories. The Reviewer went on to say:
I have carefully considered the claims, evidence and independent country information. In all the circumstances, I find that there is not a real chance of harm to the claimant for a Convention related reason. (emphasis added)
Having considered the applicant’s claims individually and by reference to the broad categories already mentioned, the Reviewer then reached his ultimate conclusion “in all the circumstances”, indicating thereby that, when viewed cumulatively, the matters raised by the applicant did not support his claim for protection.
As to the second particular, in a written submission dated 3 May 2010 the applicant’s migration agents said that
As a Faili Kurd refugee, he faced the “choice” between trying to work, while constantly fearing possible arrest and detention, or not working, and thus losing his means of basic survival. We submit that this harm does constitute “persecution” as understood in the context of the Convention and its Protocol.
The applicant submitted that the Reviewer’s statement that the evidence was that he had worked continuously for fifteen years as had his brother and brothers in law was entirely inadequate. He submitted that this said nothing about him working illegally or having to take precautions against being caught for fear of the authorities, about the physical harm and severe deprivation of liberty he had suffered, about him signing a guarantee that he would not work, about his siblings not having permanent jobs or about fearing detention and extortion at the hands of the police.
Although the Reviewer did not, in terms, address the applicant’s assertion that the inability to work legally amounted to persecution, he implicitly did so when he found, by reference to his finding that Faili Kurds were not targeted in Iran because of their ethnicity, that the applicant had been able to work, save money and live undisturbed since the incident ten years earlier, that the possibility of a crackdown or enforcement of a work ban on Faili Kurds was speculative and lacking evidentiary support and that the applicant’s circumstances did not amount to serious harm for the purposes of the Act. It is apparent that the Reviewer was of the view that the applicant had sufficient work rights such that any limitations on those rights which he suffered did not amount to persecution: see s.91R of the Act.
For these reasons, the second ground of the amended application does not disclose error on the Reviewer’s part.
No evidence for finding
The applicant submitted that the Reviewer’s finding that Faili Kurds are not targeted in Iran because of their ethnicity was expressed to be based on a DFAT advice that Faili Kurds “are not targeted” for that reason whereas the report actually said that the embassy was “not aware of Faili Kurds being targeted because of their ethnicity”. He submitted that not being aware of whether somebody is targeted does not mean, and cannot mean, that they are not targeted.
This ground of the amended application depends on the Reviewer having not only misquoted the DFAT report when expressing the factual conclusion in question but also of having misunderstood what the DFAT report actually said and having proceeded on a false factual assumption. However, in paras.19 and 23 of his reasons the Reviewer correctly quoted the DFAT report as stating that the embassy staff in Iran were “not aware” of Faili Kurds being targeted because of their ethnicity. The relevant passage from the DFAT report was:
Post is not aware of Faili Kurds being targeted because of their ethnicity, but those without documents risk deportation. Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans. Racially-motivated violence against any group in Iran is rare.
Plainly the Reviewer knew what the DFAT report said but, in his conclusions, paraphrased it to give the sense which he drew from it. It was open to the Reviewer to conclude, particularly when the statement in question (“Post is not aware of Faili Kurds being targeted”) is read in the context of the second sentence of the passage, that what the report was actually saying was that Faili Kurds were not targeted because of their ethnicity. Further, even if the Reviewer drew too long a bow on this point, it was not a factual conclusion for which there was no evidence, simply a conclusion which could be argued to be incorrect because it went beyond the evidence on which it was based.
As a consequence, the third ground of the application does not disclose error on the Reviewer’s part.
Conclusion
As the Reviewer’s reasons have not been demonstrated to have been erroneous, the application will be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 26 August 2011
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