SZREF v Minister for Immigration - [2012] FMCA 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZREF v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 461

MIGRATION – IMR report – Iranian refugee complaining about social and religious oppression – reviewer found no real chance of persecution based on assessment of past experiences – whether all integers of refugee claims addressed – whether country information raised claim that conditions worsened in Iran after departure of applicant – no error of law or procedural unfairness found – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 46A, 91R, 476, 477

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Guo Wei Rong, (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319
Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441
SZPZI v Minister for Immigration and Citizenship [2011] FMCA 530
SZQDZ & Ors v Minister for Immigration and Citizenship & Anor (2012) 200 FCR 207

Applicant:

SZREF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

SUE ZELINKA, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 342 of 2012

Judgment of:

Smith FM

Hearing date:

24 May 2012

Delivered at:

Sydney

Delivered on:

24 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr T Ower

Solicitors for the Applicant:

Wotton & Kearney

Counsel for the Respondents:

Mr D Godwin

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 342 of 2012

SZREF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

SUE ZELINKA, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant arrived in Australia without valid travel documents, on a boat that was intercepted and taken to Christmas Island in December 2010. He was interviewed shortly thereafter, and explained why he had left his country of nationality, Iran. With the assistance of migration agents from the Refugee Advice & Casework Service (‘RACS’) of Sydney, he submitted a request for determination 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 an onshore protection visa. His RSA request was made on 13 February 2011.
On 12 May 2011, the applicant was notified that a Department of Immigration officer had determined that he was not a refugee as defined by the Refugees Convention, and reasons were given for that determination. The applicant then, assisted by RACS, sought an Independent Merits Review (‘IMR’) under the same administrative procedures. This review was conducted by Ms Zelinka. She interviewed the applicant at Christmas Island on 17 October 2011 in the presence of the applicant’s agent. The agent subsequently made a further written submission concerning the applicant’s refugee claims.
Ms Zelinka reported to the Minister on 14 December 2011 that the applicant did not meet the criteria for a protection visa as set out in s.36(2) of the Migration Act, and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The Court is now asked to review Ms Zelinka’s report under its jurisdiction conferred by s.476 of the Migration Act. It is well-established that the Court has jurisdiction to grant relief, and that time limits under s.477 do not apply by reference to the date of Ms Zelinka’s report or of its notification (see SZQDZ & Ors v Minister for Immigration and Citizenship & Anor (2012) 200 FCR 207). It is well-established that the Court exercises its judicial review jurisdiction in accordance with the High Court’s reasoning in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319.
Under Plaintiff M61 (supra), it is the function of the Court to consider whether Ms Zelinka’s report reveals any error of law, including denial of procedural fairness, in its reasoning or in the procedures followed in its making. It is not the function of the Court to engage in a merits review of Ms Zelinka’s finding as to the applicant’s history, nor to form its own opinions about the risks that he might face if he returned to Iran, nor to decide whether he should be given permission to apply for a protection visa or any other permission to reside in Australia.
When examining Ms Zelinka’s reasons provided in her report, I have held in other cases that the Minister’s instructions as to the contents of her report make it appropriate to examine it on the same principles as would be a statement of reasons given by a migration tribunal (see in particular SZPZI v Minister for Immigration and Citizenship [2011] FMCA 530 at [12]-[13]). These principles include the obligation not to read her statement of reasons “minutely and finely with an eye keenly attuned to the perception of error”, but to adopt a benign approach in attempting to understand ambiguity or poorly explained reasoning (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291). I have also held that the Minister’s guidelines as to the contents of IMR reports allow the Court to infer error of law from an omission of discussion of significant or essential issues raised by s.36(2) of the Migration Act and the applicant’s refugee claims, although drawing such an inference requires caution and careful examination of how the refugee claims were raised and responded to.
The applicant commenced his present application while still held on Christmas Island and without any apparent legal assistance. His original application contained no particularised grounds of review. However, at the first court date before me, a solicitor appeared on his behalf, and the solicitor has briefed counsel to present his case today to the Court.
The applicant’s counsel relied upon an amended application in relation to the following two grounds:
1.The Second Respondent made a jurisdictional error in that her decision failed to address the Applicant’s claim that his un-Islamic lifestyle would lead to future persecution based upon the increased severity of States sanctions since his departure from Iran in December 2010.
Particulars
(a)Particulars 4 to 8 of the written submissions dated 2 November 2011 of the Applicant’s representatives made submissions and provided supportive country information regarding this claim.
2.The Second Respondent failed to address the evidence submitted by the Applicant’s representatives in their written submissions dated 2 November 2011.
Particulars
(a)The Guardian report “Necklace ban for men as Tehran’s moral police enforce dress code” 14 June 2011.
(b)US Department of State, 2010 Human Rights Report: Iran (8 April 2011)
(c)Amnesty International’s May 2011 report on Iran.

The relevant refugee claims

The narrowed focus of the two grounds means that I do not need to examine closely some aspects of the applicant’s refugee claims which were addressed in the course of his RSA application and the IMR proceedings. In particular, his claims which were ultimately not accepted by Ms Zelinka, that his period of military service had been protracted by reason of his political opinions or perceived political opinions, and that he had participated in public demonstrations at the time of the Iranian presidential election in 2009.
The above grounds of judicial review relate to a general complaint which was explained by the applicant throughout the proceedings, and which the decision-makers have accepted that he felt. This concerned the restrictions on a young man of the applicant’s age living and working in the capital city of Iran. The applicant at his entry interview complained of restrictions on social freedoms in relation to dress and personal and religious conduct, and of their policing by police, the militia known as the Basij, and other agencies of the ruling regime. He complained of being constantly stopped, having restrictions on going out with girlfriends and as to his attire, and being questioned and warned about his behaviour. He told the interviewers on arrival “I can’t take it any more. Too many problems”.
These concerns were elaborated in the statement attached to the RSA application prepared with the assistance of RACS:
Problems in Iran
7.I did not have my freedom in Iran. I could not dress the way I wanted. I could not drink alcohol without fear of arrest. I had lots of problems.
8.Every time I go out get caught by the Basij or Etalat or police. When I went out with my girlfriend I would be stopped by the authorities. We would be taken to the police station or the Basij office and detained for several hours. We were only released when they were sure we intended to get married.
9.Many times the authorities arrested me. They would take me to the police station or the Basij Headquarters or the Intelligence office. They had no evidence I had done anything wrong. They would get me to sign a paper and release me. Once they kept me detained overnight.
10.Once I was out with my girlfriend and some other friends in the north of Tehran. We were arrested and the authorities made some of us pay them bribe money to release us.
11.The Intelligence would stop me and say I was acting suspicious and arrest me. They would question me and accuse me of selling alcohol and drugs. They did this for no reason I can think of except to harass me. Sometimes the authorities would slap my face or kick me.
12.When I would go out with my girlfriend or go on holidays with my friends I would be in fear.
13.The authorities verbally abuse me and my parents.
14.It was very difficult when I worked for the government company. They would not pay me what they should. For instance they would pay me just one month’s wages for five months’ work.
15.Because of the way the government treats us and makes it so hard to live people turn to theft and crime to survive. It makes people lie and be dishonest like the government is.
…
20.During Ramadan we are not allowed to eat or drink in the day and we almost starve. If the authorities catch someone eating or drinking during the day they will beat or whip them.
21.So many things have happened to me in Iran – these are just a few of them.
What I fear would happen if I was forced to return to Iran
22.Things are getting worse in Iran. Minister Ershad said that whoever leaves Iran as a refugee and is returned to Iran will get the maximum penalty because they are betraying Iran and the Islamic Republic.
As I have noted, the applicant also made some specific claims relating to his period of military conscription, and perceived political opinions. He also claimed to fear harm upon his return to Iran as a result of having come to Australia and applied for asylum and being recognised as such a person by the Iranian authorities. Ultimately, Ms Zelinka rejected the credibility of these claims, or did not consider that there was a risk amounting to a real chance of serious harm amounting to persecution in relation to the circumstances identified by the applicant. However, her conclusions in this respect are also not the subject of the grounds of review, and I do not need to explain further the background to these parts of his case.
Essentially, the two grounds of judicial review submit that Ms Zelinka failed adequately to understand and address submissions which were made by RACS on behalf of the applicant at the end of the applicant’s interview, and then in their subsequent written submission. The agent’s oral submission was:
In the Iranian context, what is religious and what is political is often very closely linked and one doesn’t have to have a very high political profile or a great deal of political knowledge in order to be viewed as someone that holds certain political views. The beliefs that you would need to hold in order to be imputed with those anti-regime political views could just as well be your opinions about Iranian society or about the interpretation of Islam that is enforced and expected of everyone in Iran.
Now it’s not [the applicant’s] role to explain his circumstances in legal terms or to explain them in a way that bites neatly with the Convention. But it is clear that he has throughout his adult life shown an unwillingness to follow the kind of strict version of Islam that is enforced by law in the theocracy. And that is a religious belief. I would submit that behaviour that [the applicant] has exhibited such as not observing fasting during Ramadan, drinking, being out with girlfriends and certain manners of dress or hairstyle. Now all these things are a result of his beliefs about Islam and how he should practice the religion and they are all interpreted in Iran to be political as well.
And I would submit that one could just as easily construct the idea of a social group that shares those same features, so it’s a real confluence of the potential nexuses. And although [the applicant’s] political views might not be particularly sophisticated that behaviour is viewed as highly anti-Islamic and therefore anti-regime. The reviewer in this case is open to find that [the applicant] has a fear of being persecuted for those reasons even if he doesn’t have any greater political profile. And even if he is recognised only by those factors, rather than by his name or his reputation.
In terms of the harm that [the applicant] has suffered as a result, he has described punching, slapping, kicking and many short periods of detention. I’d submit that this potentially meets the definition of serious harm under the Act. And in any case that definition is inclusive.
…
In any case, that definition is an inclusive one, not an exclusive one. But more important the focus of the inquiry today must be not what has happened to [the applicant] in the past but a consideration of what might happen in the future. Given that [the applicant] will continue to hold these religious beliefs and therefore continue to be imputed with a certain political belief.
I would like to have the opportunity to give written submissions in relation to the failed Asylum Seeker Claim and the photo that we referred to.
His written submissions included:
Claims for protection
3.[The applicant] fears that if he were forced to return to Iran he would be at risk of serious harm inflicted by the Iranian authorities. The essential and significant reasons for his fear of persecution are:
o   his imputed political opinion;
o   his religious beliefs; and
o   his membership of a particular social group which may be characterised as “failed Iranian asylum seekers returned from a Western country.”
Religious beliefs and political opinion
(a)     Religious belief and political opinions generally
4.In the context of the Iranian theocracy, deviation from state enforced religious norms has strongly political implications. While [the applicant’s] political views are not sophisticated, his imputed anti-regime opinion is a consequence of his views on the regime’s enforcement of religious laws in Iranian society. As such, [the applicant’s] imputed political opinion stems from the behaviour that is indicative of his religious beliefs.
5.The acts engaged in by [the applicant] which were or may result in persecution at the hands of the security forces include, violations of Iranian Islamic dress code; wearing his hair in a way recognised as Western or anti-Islamic; being with women in public; failure to observe fasting during Ramadan; and listening to music at Muharram. These acts are contrary to the strictly enforced version of Shia Islam enforced in the laws of Iran. [The applicant’s] religious beliefs are such that his behaviour is frequently contrary to this version of Islam, and he has been repeatedly stopped, searched and detained as a result. As described in his RSA and IMR interviews, he has also been subject to physical abuse.
6.On 15 June 2011, The Guardian reported that thousands of members of the security forces had been deployed in the streets of Tehran to crackdown on ‘un-Islamic’ clothing and haircuts. Similarly, the US Department of State reported that throughout 2010, vigilantes continued to attack persons considered to be ‘un-Islamic’ in their dress or activities.
7.The objective basis of the harm feared by [the applicant] is also supported by Amnesty International’s May 2011 report on Iran, which observes that:
Security officials, generally in plain clothes and without showing identification or arrest warrants, continued to arrest arbitrarily government opponents and people seen to be dissenting from officially approved values on account of their views or lifestyle... Those arrested were often held for long periods during which they were denied contact with their lawyers or families, tortured or otherwise ill-treated, and denied access to medical care. Some were sentenced to prison terms after unfair trials. Others sentenced after unfair trials in previous years remained in jail.
8.If returned to Iran, there is no reason why [the applicant] would not continue to hold the religious belief described above, and continue to exhibit the behaviour that previously brought him to the attention of the authorities (nor, at Australian law, would he be required to live more discreetly in order to avoid harm). On this basis, applying the forward-looking test for well-foundedness, it is submitted that there is a real chance that [the applicant] will be subject to persecution if returned to Iran.
…
20.[The applicant] fears that if forced to return to Iran, he would be subjected to serious harm at the hands of Iranian authorities as a result of his religious beliefs and imputed political opinion. Separately, there is a real chance that [the applicant] will be persecuted as a consequence of having sought asylum in Australia.
21.Country of origin information on Iran indicates that individuals who refuse to follow laws enforcing the official interpretation of Islam; people perceived to possess an anti-regime political opinions and failed asylum seekers returned from the West are all at risk of serious harm. Accordingly, we submit that the Applicant is a person to whom Australia owes protection obligations under the Refugees Convention.

Ms Zelinka’s report

In Ms Zelinka’s report, she recounted the material that was before her, explaining how it had been presented, and its contents, in the chronological order in which it had been presented in the course of the RSA and IMR proceedings. She recounted the applicant’s evidence at the interview with her, a large part of which addressed elements in his personal history which ultimately Ms Zelinka did not accept, and in relation to which she had discussed her concerns with the applicant.
She also said:
We moved on to the question of why the claimant wanted to leave Iran. He said “they” (by whom I gathered he meant the authorities in general) stopped him lots of times and he got sick of it. He would be stopped when returning home late (he worked nights) and asked what he was doing. He would sometimes be slapped by the basiji or the police. He would be stopped for wearing a t-shirt and be taken to the paygah (basiji office) where he would have to sign a statement saying he would not wear such items again. This happened many times. I put it to him that the statements could not have any force if he had to keep signing new ones. He said they were not official undertakings, just bits of paper, and they happened at different paygahs in different locations. He also said he had been stopped when he was with with (sic) a woman. They were taken to the paygah and both sets of parents were called before they could go. He also had a problem with religion: he does not want to fast during Ramadan but has to do this in Iran. He did not do it on Christmas Island. He does not go to the mosque and he does not pray. I asked him if there had been any consequences and he said there had not.

Ms Zelinka then described parts of the hearing concerning other matters. She expressly referred to the post-hearing submissions received from RACS, as follows:
The adviser sent a written submission stating that the claimant feared serious harm at the hands of the Iranian authorities for reason of his imputed political opinion, his religious beliefs and his membership of a particular social group constituted by failed asylum seekers returned from a western country. He noted that the claimant’s political views were “not sophisticated” and his imputed anti-regime political views are really a consequence of his “views on the enforcement of religious views in Iranian society”. The adviser conceded that laws about public behaviour in Iran are laws of general application, but argued that such laws loose their legitimacy where detainees are subjected to mistreatment.
The adviser also conceded that the claimant had limited knowledge of politics and demonstrations and noted that I had put it to the claimant that he had not attended any demonstrations. However, he noted that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt”.
The adviser then addressed the issue of “failed asylum seeker” noting that seeking asylum is a political act and citing country information that “it is likely that the names and details of those who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto Iranian authorities”. …
Ms Zelinka then briefly referred to some country information, before setting out her findings and reasons.
She first examined, and rejected, the elements in the applicant’s history in which he claimed to have expressed political opinions or given rise to a perception by authorities that he held political opinions adverse to the regime. She then addressed his general social and religious complaints:
The claimant has made general complaints about Iran such as the attitude of the basiji about the immorality of wearing western t-shirts and being with a woman to whom the man is not married. I accept that he may have been taken to the paygah (basiji base) on a number of occasions and questioned about his breaches of the strict moral code upheld by the basiji. However, he has suffered no serious consequences. He has, on his own admission, signed many statements saying that he will not commit this offence or that again, but as he said, “they are only bits of paper”. They clearly have no force and there has been no follow-up if he has committed the same offence again and received the same sanction (signing a statement). The claimant has stated that he has been slapped by the basiji but he did not make any claims at hearing, nor does the evidence suggest, that he has ever suffered serious harm. He also said that he did not follow the expected rituals of Shi’a Islam and when I asked him if he had suffered any adverse consequences for this in Iran, he said he had not.
The claimant said that he was aggrieved by his employer who withheld his wages. However, that is not a Convention matter and in any case, the claimant remedied the situation himself by taking other employment.
He made no claims, nor does the evidence suggest, that there was any particular adverse event that prompted him to leave Iran on 5 December 2010. It would seem that the claimant simply does not like living in Iran and would rather be elsewhere. I note that the claimant was able to apply for a passport in his own name and that he had no problem with the authorities in getting one. He also brought his own air ticket to Indonesia and had the proper exit visas etc. I am satisfied that this indicates that he is not regarded adversely by the Iranian authorities.
On all the evidence, I do not find that any serious harm has befallen the claimant in Iran in the past for any Convention reason. I am not satisfied that he has ever participated in any political demonstrations or that he is of any possible interest to the authorities for reason of any political opinion or imputed political opinion. I do not find that he has a well-founded fear of persecution on the grounds of political opinion. I accept that he may not be a devout observer of Islam but he appears to have behaved as he wished in Iran (not attending mosque, not wearing a beard, wearing t-shirts etc) without incurring any real punishment - certainly without any harm befalling him. Therefore there is no reason for him to change his behaviour when he returns to Iran and there is no reason to believe that any adverse consequences will ensue. I do not find that he has a well-founded fear of persecution on the ground of religion.
Ms Zelinka then addressed the applicant’s claims that he was at risk as a failed asylum seeker returned from the West, and concluded that he did not face a real chance of serious harm amounting to persecution.

Consideration of the grounds of review

Counsel for the applicant submits that there is absent from Ms Zelinka’s reasoning which I have quoted above, a discussion of a claim which Ms Zelinka was required to address, or a misunderstanding of a claim raised by the applicant’s evidence and submissions.
Essentially, counsel for the applicant relied on well-established principles. Under these principles, it is well-established that a person making a determination as to refugee status by reference to s.36(2) of the Migration Act and the Refugees Convention errs in law in relation to their jurisdiction, or denies procedural fairness, if, in the language of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63], that person “…makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or part upon the claims they misunderstood or misconstrued.” Their Honours said this error “is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error”. In the High Court, a similar error has been identified as denial of procedural fairness (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389). In Plaintiff M61 (supra), the High Court held that it would amount to a denial of procedural fairness in relation to an IMR report, and would warrant a declaration of error.
In NABE (supra), their Honours also pointed out at [60] that the decision-maker “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it”. At [62] they said: “Whatever the scope of the tribunal’s obligations, it is not required to consider criteria for an application never made” (see also Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [1], [28] and [31]).
In the present case, counsel for the applicant submitted in his written submission that Ms Zelinka’s reasoning in relation to the applicant’s concerns about social and religious oppression had “downplayed” the extent of harm that the applicant complained of in the past. However, he recognised that this complaint would not itself point to any legal error or denial of procedural fairness, since it went to the merits of her assessment of the evidence.
His written submission then continued:
10.By focusing entirely upon what had happened to the applicant in the past, the IMR ignored the specific submission and evidence put on behalf of the applicant by his representative at pp. 2 to 3 in the post interview letter dated 2 November 2011. In particular, the submissions argued for the IMR to apply a “forward looking test for well-foundedness”.
11.Although the IMR referred to parts of the post-interview letter, no reference was made to claims made concerning the government and vigilante crackdown on anti-Islamic behaviour subsequent to the applicant’s departure from Iran, the supportive evidence provided, or the submission that these matters be considered when applying a “forward looking test for well-foundedness”. Simply no finding was made in relation to these matters.
Explaining his submissions, counsel took me to the RACS written submission of 2 November 2011, which he said had raised a claim, in effect, that if the applicant returned to Iran he would face a degree of social and religious oppression which would be materially greater than that encountered by him before his departure from Iran. It was therefore insufficient for Ms Zelinka to assess the applicant’s future risk of serious harm of this nature only by an assessment of his past experiences. He submitted that, even if the applicant did not himself articulate such a claim in his own evidence, it was raised by the country information cited in paragraphs 6 and 7 of the RACS submission quoted above.
Counsel submitted, therefore, that the applicant’s refugee claims concerning social and religious oppression in Iran were wrongly perceived by Ms Zelinka as being sufficiently addressed on the approach which was described in Minister for Immigration and Ethnic Affairs v Guo Wei Rong, (1997) 191 CLR 559 at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
Counsel submitted that by failing to perceive a claim, in effect, that there was an increasing level of social oppression in Iran in Tehran which would be encountered in the future if the applicant returned, Ms Zelinka had misunderstood or misconstrued the applicant’s refugee claims within the principles identified in NABE (supra), so as to have established Ground 1. He submitted that Ground 2, in effect, provided particulars of this error insofar as Ms Zelinka’s reasoning had failed to identify the relevant country information presented by the applicant’s agent which raised this claim.
In this respect, counsel took me to a report from The Guardian newspaper which was cited in the RACS submission. This is a short newspaper item published on 14 June 2011, headed ‘Necklace ban for men as Tehran’s ‘moral police’ enforce dress code’. It reported on “the latest crackdown by the Islamic regime on ‘un-Islamic’ clothing and haircuts”. It referred to bans on men wearing necklaces and on dog ownership, and said that “with the summer heat sweeping across the country, many people, especially the young, push the boundaries and run the risk of being fined, or even arrested, for wearing ‘bad hijab’ clothing.” The report also said that “women, in particular, are under more pressure because of the restriction on them to cover themselves from head to toe. Men are allowed to short-sleeved shirts but not shorts.” Reference is made to Iran’s moral police under the leadership of the supreme leader, and to the release, “last summer” of a list of approved hairstyles.
However, contrary to the submissions of the applicant’s counsel, I am unable to read in The Guardian report, a suggestion that a significantly different level of social oppression had been instituted in Iran after the applicant had left that country in late 2010, which rendered unreliable the applicant’s past experiences as a guide to the future. Rather, it appears to me to be a report showing a continuance or repetition of previous campaigns by the Iranian moral police of the nature which the applicant complained of encountering in the past.
Moreover, it appears to me that a fair reading of the RACS submission had presented The Guardian article as evidence or confirmation of what the applicant had suffered in the past, and as supporting a finding that it was likely to continue into the future, and not as part of a claim of a materially greater or different level of oppression which would be faced by the applicant. The RACS submission, in my opinion, sought to confirm the continued relevance of the applicant’s concerns arising from his past harassment, and, in effect, invited the Guo (supra) approach which Ms Zelinka took in her reasoning. This was to consider whether the applicant’s past experiences had exposed him to persecution by way of “serious harm” (see s.91R(1)(b) and (2)), for the purposes of predicting and assessing the future risks.
Nor can I find in the passage from the Amnesty International report cited by the RACS submission, evidence of such a significant change in circumstances so as to render the applicant’s past experiences irrelevant or not open to the significance given to them by Ms Zelinka when assessing his future risks of persecution. As counsel for the Minister pointed out, the Amnesty International report dated May 2011, and the US State Department report dated March 2010, which were both cited by RACS, appear to be referring to events bearing on the level of human rights throughout 2010, and including the period in which the applicant had been living in Iran and encountering difficulties causing him to seek refuge in Australia. The gist of the RACS submission was that this material evidenced a past and continuing level of social and religious oppression, rather than a sudden change or heightening in the level of that oppression after the applicant left Iran.
Moreover, as a side observation, I note that the RACS submission had sought to take more from the Amnesty International report than probably a fair reading of the relevant part could carry. This was the result of the omission of a critical sentence, which I shall emphasise in the following complete extract of the relevant section of that report, and which might suggest that the second paragraph had little relevance to the applicant’s own history:
Arbitrary arrests and detentions
Security officials, generally in plain clothes and without showing identification or arrest warrants, continued to arrest arbitrarily government opponents and people seen to be dissenting from officially approved values on account of their views or lifestyle. Among those arrested were human rights activists, independent trade unionists, students and political dissidents.
Those arrested were often held for long periods during which they were denied contact with their lawyers or families, tortured or otherwise ill-treated, and denied access to medical care. Some were sentenced to prison terms after unfair trials. Others sentenced after unfair trials in previous years remained in jail.
I consider that, even considering only the parts of the Amnesty International report which were quoted in the RACS submission, it did not suggest that the applicant would face a future risk of serious harm by way of long detention, torture or similar ill treatment which was significantly different than that which he had faced before he left Iran.
In summary, on my reading of the submission made by RACS and the country information cited in the course of it, it did not raise any claim as to the risk of future persecution which was required to be addressed by Ms Zelinka, and was not addressed by her.
In my opinion, it was open to her as a matter of law to construe the relevant claims put forward by the applicant in his evidence, and in the submissions of his agent, as inviting her to draw a conclusion as to a requisite future risk of persecution, which was based her assessment of his past experiences, and to proceed on the basis that his past experiences provided a reliable guide as to the future.
It is clear from the last sentence of the passage which I have extracted above, that she did assess those risks with a “forward-looking test”, using the language of the RACS submissions. She concluded that if he returned to Iran “there is no reason to believe that any adverse consequences will ensue” if he did not change his behaviour.
I am certainly not of the opinion that there was any claim which clearly arose from the submissions put to Ms Zelinka which was not addressed by her. I would not infer from the terseness of her reasoning that she overlooked anything contained in the RACS submissions made at the hearing or in the post-hearing submission.
Ms Zelinka’s clear reference in her report to the post-hearing submissions would lead me to conclude that she probably did read its contents and reflect upon it, insofar as they were relevant to an understanding of the applicant’s claims, and I would not infer otherwise (cf. Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [33].)
For all the above reasons, I am not persuaded that Grounds 1 or 2 have been established, so as to support the relief sought in the present application. In my opinion, the application should be dismissed.
It is accepted that costs should follow the event, and, in my opinion, the appropriate assessment of party/party costs would be to follow the scale amount of $6,240. I do not accept the submissions made on behalf of the Minister that the matter justified a higher award, even discounting his solicitor’s unnecessary reproduction of country information in the court books.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 12 June 2012