SZQZX v Minister for Immigration
[2012] FMCA 657
•23 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 657 |
| MIGRATION – Independent Merits Reviewer – no relevant error established. |
| Applicant: | SZQZX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RUTH LAYTON IN HER CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2997 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 23 July 2012 |
| Date of Last Submission: | 23 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant appeared in person |
| Counsel for the Respondent: | Emily Latif |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 23 December 2011 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 2997 of 2011
| SZQZX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Independent Merits Reviewer (“the reviewer”). The application was filed on
23 December 2011 by the applicant in person. The applicant has not filed written submissions. The applicant appeared in person today with the assistance of an interpreter.
The only ground set out in the application is that the reviewer made a decision that was infected with legal error. The application provides no particulars of that ground.
The applicant claimed:
a.to be a citizen of Iran;
b.to fear persecution by reason of his political opinion;
c.that he had attended demonstrations in Shiraz;
d.he was part of the Green Movement;
e.in July 2009, he had attempted to assist some protesters who were being kicked by the Basij;
f.he was punched in the face and needed to be taken to hospital;
g.after a few days he returned to work;
h.he was summarily dismissed;
i.the authorities had given instructions for his employment to be terminated because he had attended demonstrations;
j.his son was expelled from university shortly afterwards; and
k.his family had received threatening telephone calls and the authorities had gone to his house looking for him.
A departmental officer undertook the initial Refugee Status Assessment procedure. The matter was then considered by the reviewer. The applicant, at that stage, had solicitors assisting him. The reviewer accepted that the applicant was a national of Iran. However, the reviewer did not accept that the applicant was of interest to the authorities. The reviewer noted at paragraph 70 that:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue [and] any adverse conclusion which would not obviously be open on the known material ... .
The reviewer noted at paragraph 71 of her decision that, in this case, she had put the claimant on notice during the interview that she:
had doubt about his claims as to his political involvement, his claims as to changed employment and residence and the interest by the authorities after his alleged attendance at a demonstration, including by visits, telephone calls and the detention and sexual assault, and as to his eldest son being expelled or suspended or dismissed by the university.
Having put the applicant on notice about those doubts, the reviewer said that she gave the applicant the opportunity during the interview to expand upon and explain his claims.
The reviewer then proceeded to deal with each of the applicant’s claims. The reviewer identified various inconsistencies in the applicant’s evidence. At paragraph 90 of her decision, the reviewer found that the applicant’s evidence was not credible.
The reviewer found, at paragraph 91 of her decision, that the claimant was not in any way politically active in Iran. The reviewer found, at paragraph 93, that the authorities did not have any adverse interest in the applicant.
The reviewer also considered what would happen if the applicant returned to Iran as a failed asylum seeker. This issue was considered in some detail between paragraphs 96 and 104 of the decision. The reviewer concluded that, as a failed asylum seeker, in the context of having no political views contrary to the government, the applicant would not face a real chance of serious harm if he were to return to Iran.
The reviewer accepted that the applicant might be questioned and fined if he returned to Iran without a passport. The reviewer did not consider that either of those outcomes amounted to persecution under the Convention. The reviewer considered that any questioning and any fine that the applicant might be subjected to would be the result of the implementation of a law of general application. The reviewer concluded that the applicant did not face a real chance of persecution for any reason.
The only ground contained in the application is that the reviewer’s decision was infected with legal error. However, I am unable to detect any relevant legal error in the decision of the reviewer. The reasons of the reviewer appear to me to be careful and detailed. They appear to reflect a process that was procedurally fair. It appears that the reviewer considered all of the claims made by the applicant. The ground set out in the application is not made out.
Before the court today, the applicant said that the interpreter had made a mistake. He said that he had two cards from an organisation called IHMS mental health services. He said the cards showed two different dates of birth for him. One of the dates was 26 July 1962 and the other was 28 July 1962. He said that the interpreter made a mistake in calculating the date from the Persian calendar to the Gregorian calendar. However, the applicant did not say how this alleged error in interpretation had any impact on the decision that the reviewer made.
The first respondent pointed out that the applicant had made an allegation of erroneous interpretation before the reviewer.
At paragraph 50 of the reviewer’s decision, the reviewer noted the following:
The claimant said his interpreter had made a mistake and that I could listen to the recording of the RSA interview. I noted that I had listened to the RSA interview but if his adviser wanted a copy of the RSA interview and wanted to get it translated and give me evidence that there was mis-interpretation in the RSA interview, I would consider this evidence.
It seems that no such evidence was provided. The reviewer returned to this question at paragraph 78 of her reasons for decision. The reviewer said that the applicant had claimed that a certain inconsistency was due to interpreter error in the Refugee Status Assessment interview. The reviewer went on to say that:
… no evidence of mis-interpretation was submitted to me and given that the claimant’s evidence in his statutory declaration and the RSA interview on this point was detailed, and it was the same in the statutory declaration and in the RSA interview, after carefully considering the explanation, I do not accept mis-interpretation in the RSA interview is a credible explanation for the inconsistency.
The reviewer seems to have dealt fairly and reasonably with the interpretation issue that was raised before her. It is a different issue of interpretation that seems to be raised by the applicant today. However, the applicant has provided no evidence by any qualified person that there was actually an error in the interpretation relating to his date of birth. Moreover, there is nothing in the reviewer’s decision that indicates that any reliance was placed upon the applicant’s date of birth, or any interpretation of the IHMS cards. Consequently, even if there had been a misinterpretation in relation to the applicant’s date of birth, it would have had no bearing on the outcome in this case.
The second ground relied on by the applicant today was that the interview was conducted by Ruth Layton as Independent Merits Reviewer but the decision was signed by someone else. The decision appears to be signed by Ruth Layton. The cover letter is evidently signed by someone else. The applicant has provided no evidence that the decision was not, in fact, signed by Ruth Layton. There is nothing in the material to raise any doubt that the decision that was ultimately made was, in fact, made by Ruth Layton.
Consequently, neither of the grounds that the applicant has raised today is made out.
I note, finally, that the applicant asked the court to assist him on humanitarian grounds. The court has no power in that regard.
As none of the applicant’s grounds has been made out, the application must be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 1 August 2012
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