SZQTW v Minister for Immigration

[2012] FMCA 777

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQTW v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 777

MIGRATION – Review of decision of Independent Merits Reviewer – where applicant an Ahwazi Arab from Iran – where applicant had contact with Ahwazi separatist group after leaving Iran – whether applicant made substantial, clearly articulated argument relying upon established facts that contact resulted in him having a profile with Iranian authorities – whether claim that applicant was a member of the particular social group of failed asylum seekers returning to Iran was a substantial, clearly articulated argument relying upon established facts – whether Reviewer failed to consider integer of claim – whether Reviewer fell into jurisdictional error.

Migration Act 1958 (Cth), s.36(2)

NABE v Minister (2004) 144 FCR 1
MZYQA v Minister for Immigration [2012] FMCA 374
Abebe v Commonwealth (1999) 197 CLR 510

Applicant: SZQTW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MR DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2413 of 2011

Judgment of: Raphael FM

Hearing date: 28 August 2012

Date of Last Submission: 28 August 2012

Delivered at: Sydney

Delivered on: 3 September 2012

REPRESENTATION

Counsel for the Applicant: Mr C Jackson

Solicitors for the Applicant: Turner Coulson Immigration Lawyers Pty Ltd

Counsel for the Respondents: HPT Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. Application dismissed.

2. Applicant to pay the first respondent’s costs assessed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2413 of 2011

SZQTW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MR DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Ahwazi Arab born in Iran in 1984.  In 2009 he left Iran for Malaysia.  On 31 August 2010 he was detained as an unlawful non-citizen at Christmas Island.  On 23 October 2010 the applicant made a request for a refugee status assessment which found that he was not a person to whom Australia owed protection obligations.  On 10 March 2011 he applied for an independent merits review.  He was assisted by a migration agent and attended a hearing before the Independent Merits Reviewer[1]. On 4 August 2011 the Reviewer found that he did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act1958 (Cth).

   [1] “Reviewer”.

2. The circumstances of the applicant which led him to believe he was a person to whom Australia owed protection obligations were that whilst performing military service between 2003 and 2005, he met with fellow party members of an Ahwazi independence organisation known as ADPF.  He claimed that they discussed strategies for a forthcoming intifada and he distributed leaflets and raised Ahwazi flags throughout his home city of Ahwaz.  An intifada uprising took place in April 2005 and the applicant claimed that many friends of his were arrested, subjected to torture and execution.  He believed that he was subject to surveillance by the authorities.

   “As to what the claimant did after the 2005 uprising, he said he went on the webpage for the AAPDF [sic] and checked their news. He did not have email contact with them. As to how else he participated in Ahwazi politics he said he made new friends and enlightened them as to the cause. For 1 to 1 ½ months he talked to people at a sports hall but one night a teacher was listening and took a picture of them. However nothing happened as a result of this.” [22] CB188

3. The applicant was questioned about certain letters of support that he had produced from ADPF leaders in London and Canada:

   “I asked the claimant whether he had contact with the AAPDF [sic] leaders overseas in London and Canada and he said he had now but did not when he was in Iran and that his only contact was with the persons who gave them the flags. He said it was too dangerous to contact them in Iran as emails were watched by the intelligence. As to whether he was a member of the party or supporter he said that they had no memberships in Iran but all worked for the cause.” [19] CB188

4. In the Reviewer’s findings and reasons, he accepted that the applicant had some small involvement in a low-level way with a small group of Ahwazi activists and that he participated in activities such as the drawing and raising of flags, and the distribution of leaflets about Ahwazi rights.  The Reviewer accepted that the applicant was able to produce documentary  corroborating evidence, by way of the copies of the letters from the ADPF in London and Toronto.  The Reviewer did not accept the applicant’s claims to be more involved in the intifada and gave no weight to those parts of the letters of support which indicated that he had:

   “The country information set out above indicates that those involved or suspected of involvement with Ahwazi separatist politics, face sever mistreatment by the Iranian government. However, I do not accept that the claimant now or in the reasonably foreseeable future faces a real chance of persecution on account of his past very limited involvement in a small Ahwazi political group. I do so because at no point was the claimant arrested or became the subject of individual attention by the authorities. I have also previously found that his friends were not arrested. Importantly, from the period since the April 2005 uprising to his departure in January 2009, the only activity I have accepted that he undertook was to look at the AADPF website. Whilst the letter from the AADPF stated that he was forced to flee as a political activist, this is not supported by the other evidence and I have therefore given this statement no weight. The fact that he was able to depart the country legally using his own passport further indicates that he was not of interest to the authorities.” [37] CB193-194

5. The Reviewer asked the applicant what he might do if he returned to Iran, but he was unspecific about this.  The Reviewer took into account the lack of activity between 2005 and 2009 and concluded:

   “I accept the claimant has some interest in Ahwazi political issues. However, I am of the view that any discreet behaviour by him will  not be because of a threat of harm but because of a lack of commitment. I therefore find that he does not face a real chance of persecution from the state or the Basij on account of his political opinion, now or in the reasonably foreseeable future.” [38] CB194

6. On 12 January 2012, the applicant filed an amended application in this court seeking review of the Reviewer’s decision.  There was only one ground but it contained two separate particulars:

   “1. The Independent Merits Reviewer failed to consider an essential integer of the Applicant’s claim, given that the Independent Merits Reviewer accepted that those suspected of involvement with the Ahwazi separatist movement were severely dealt with by the authorities, which was whether or not he would be suspected of involvement upon return because;

   (i) He had had contact by electronic means with Ahwazi separatist groups in London and Canada since leaving Iran, and Iranian intelligence monitored email communications;

   (ii) He was returning to Iran as an Ahwazi who was a failed asylum seeker, which could head to him being characterised as an Ahwazi separatist, could lead to inquiries which uncovered his connection to the Ahwazi separatist movement, or could increase suspicion of such a connection (and see SAAC v MIMIA [2003] FCAFC 65, at [39]).”

7. The applicant argues his case by reference to what fell from the Full Court; Black CJ, French and Selway JJ. in NABE v Minister (2004) 144 FCR 1[2].  As Smith FM said of this type of claim in MZYQA v Minister for Immigration [2012] FMCA 374[3] at [6]:

   “The ground relies on a well-recognised error of law in relation to refugee determinations, which has also been held to be jurisdictional error in relation to the exercise of a statutory power to determine refugee status. This error is the failure “to make a finding on ‘a substantial, clearly articulated claim relying upon established facts’”. In Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319 at [90] the High Court characterised the error as a denial of procedural fairness. ”

   [2] “NABE”

   [3] “MZYQA”

8. The statement of principle upon which the High Court relied is set out at [63] of NABE:

   “It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):

   ‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’” [63]

   However, at [68] the Full Bench issued a caution:

   “Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov.A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.”

9. In regard to the first claim, the applicant took me to various parts of the court book in which submissions were made on behalf of the applicant, that he argued constituted a ‘substantial, clearly articulated argument relying upon established facts’.  The first is found at CB87 where his lawyers provided a statutory declaration in which he said inter alia:

   “I have documentary evidence that states I took part in the Intifadha. It contains my name, date of birth and other people who were arrested, injured and killed in the uprising.

   These two documents were issued by the party in Canada and the United Kingdom with both containing my details. These emailed documents are being held by UNHCR however copies of these are located in Christmas Island IDC Property.”

   The actual documents do not contain details of other people who were arrested, injured and killed in the uprising, and after hearing evidence from the applicant the Reviewer came to the conclusion that he had not been involved in the intifada, notwithstanding that this had been claimed on his behalf in those documents.  I agree with the submission put by the respondent that taken in context this reference to the documents, which makes no reference to them being made available to the Iranian authorities, was made in order to strengthen the applicant’s substantive claim that he was an Ahwazi activist and was not made as part of a claim that he would be considered to be such an activist by the authorities when they obtained copies of the documents by a means unspecified. 

10. The second reference is found at CB135 in a submission by the applicant’s lawyers:

    “The applicant states that he possesses documentary evidence, issued by the APDF [sic] in Canada and the United Kingdom that he took part in the intifada and which contains his name and date of birth along with details of other people who were arrested, injured or killed during the uprising. These two documents are held on record with the UNHCR and are located in Christmas Island IDC Property.”

    This takes the matter no further than the previously mentioned statutory declaration.

11. The third reference is found at CB143 in a submission to the Reviewer:

    “He believes that the Basij in Sepah are readily able to identify him as taking part in the protests and for being involved in the APDF party. The Applicant is afraid that they can easily identify him and seek him out if he is refouled to Iran, given the publication of his name and date of birth in documents from the UK and Canadian offices of the APDF.”

    This is the most direct reference to the claim now being put forward, but it does not indicate that Iranian intelligence monitored email communications, as alleged in the application, nor does it identify how they may otherwise obtain information from those documents.  At no stage does the applicant put forward any evidence about this, and the matter was not specifically raised in the interview.  In my view it amounts to no more than an assertion and does not come up to the standard of a “substantial, clearly articulated argument relying upon established facts”.  It comes nowhere near the claim that was successful in MZYQA (supra) where the fear that the applicant had because of his profile as a young Tamil male from the north of Sri Lanka was put in terms and evidence was provided that such persons were subject to persecution.  For this reason, the ground based upon the first particular must fail.

12. The second ground proceeds on the premise that there is a well-recognised, particular social group of failed asylum seekers returning to Iran.  Any judicial officer, having experience in these matters would be aware that this is a claim made frequently not only in respect of Iranians but in respect of many other nationalities of asylum seekers.  But the fact that such a claim is commonly made does not mean that every Reviewer must automatically assume that it is a claim that the individual applicant before him or her is making and deal with on pain of successful review even if it is never articulated.  It is up to an applicant to articulate his claims, Abebe v Commonwealth (1999) 197 CLR 510, and when applicants such as the current one have the benefit of experienced advisors then there is as much an inference open to a reviewer that this type of claim is not brought for good reason as it is to assume that the applicant would have brought it had more thought been given. The applicant is unable to point to any part of the evidence where the claim is made or even where it suggested that there is a danger from merely being a returnee. What is said is that:

    “It was necessary, on the evidence before the IMR, and the evidence accepted or not disputed by the IMR, to consider whether both the Applicant’s conduct since leaving Iran, and the fact that the Applicant would pass through security checks at Tehran airport on his return, put him at risk of harm because of his political opinions, imputed political opinions, and ethnicity.”

13. The Reviewer considered the matter on the basis of the applicant’s evidence of his conduct in Iran, there was not put to him any evidence about the effect of his conduct since leaving Iran, as discussed above, and no evidence was brought to indicate that the applicant would be known to be a failed asylum seeker.  Again I do not think that the failure to consider this claim was one which constituted jurisdictional error of the type discussed in NABE or MZYQA.

14. For these reasons, the applicant’s claim must fail.  The applicant shall pay the first respondent’s costs assessed in the sum of $6,471.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  31 August 2012