SZRUA v Minister for Immigration

[2013] FCCA 2080

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRUA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2080

Catchwords:
MIGRATION – Persecution – review of recommendation made by independent protection assessor (“Assessor”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Assessor failed to consider a claim made by the applicant.

Legislation:
Migration Act 1958, ss.36, 46A, 195A

Cases cited:
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319
SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191

Applicant: SZRUA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: WENDY BODDISON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 1982 of 2012

Judgment of: Judge Cameron

Hearing date: 21 March 2013

Date of Last Submission: 21 March 2013

Delivered at: Sydney

Delivered on: 6 December 2013

REPRESENTATION

Counsel for the Applicant: Mr J King

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1982 of 2012

SZRUA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Iran who arrived at Christmas Island by boat on 28 September 2011.  He lodged an application for a Protection Obligations Evaluation (“POE”) alleging that he was a refugee and, as such, 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”).

2. By letter dated 24 January 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Assessor”) who, on 8 August 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention or under the complementary protection obligations found in s.36(2)(aa) of the Migration Act 1956 (“Act”).

3. The applicant was in detention at the time of his POE but was released into the community during the subsequent review.

4. The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Act, he 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.

5. 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 Assessor: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].

6. The applicant has made an application to this Court for judicial review of the Assessor’s recommendation.  He seeks a declaration that the Assessor’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation.  In order to succeed he must demonstrate that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].

7. For the reasons which follow, the application will be dismissed.

Background facts

1. The recommendation made by the Assessor was supported by written reasons.  The facts alleged in support of the applicant’s claim for protection were set out on pages 4 to 15 of those reasons and are relevantly summarised below.

Entry interview

1. The applicant made the following claims during his entry interview on 25 October 2011:

   ·three months before that interview he had commenced a relationship with a woman whom he thought was divorced but who was in fact married;

   ·his neighbours must have reported him because on the third occasion they had sex the police came to his house and told him that they had been informed that something was going on.  They searched the house and took both him and his lover to the police station.  He was beaten and detained for one night;

   ·he was transferred to a court where a trial date was set.  He was released on bail on condition that he paid 200 million toman and surrendered the deed to his family home;

   ·his family tried unsuccessfully to convince his lover’s family not to press the case against him.  His lover’s family said that they wanted to kill him.  He had no option but to leave Iran;

   ·his lover was examined and found to have had sex but her husband did not bring a case against her and she returned to her life; and

   ·he left Iran because he would have been gaoled and because his life was in danger.

POE application

1. In a statutory declaration declared on 10 December (recte: October) 2011 in support of his application for a POE, the applicant made the following additional claims:

   ·while he was in court for the setting of his trial date his lover’s husband said he would kill him;

   ·he was released from detention a few days after his family surrendered the title deed to their home as security for his bail. During his detention he had been beaten by police officers;

   ·a day after his release his lover’s family came to his house but he was not there. They told his brother that if they found him they would kill him;

   ·two weeks before he made his statutory declaration his brother told him that he had been attacked and stabbed in the leg by a man on a motorbike. His brother believed that the attacker had been from the applicant’s lover’s family; and

   ·if he returned to Iran he would be harmed because he had had sexual relations with a married woman, which was considered to be against Islam and Sharia law.  The police would not protect him from his lover’s family because he had committed a crime that was against Sharia law.

2. At his POE interview the applicant also claimed:

   ·although his family was religious, he had rejected Islam;

   ·he believed that his lover was also taken to court the day after their arrest but he was not sure;

   ·when his father and tribal elders went to visit his lover’s tribe to conduct tribal negotiations they were abused;

   ·his family had received a summons relating to his arrest; and

   ·he could not relocate because members of his lover’s tribe would find him when attended court.  If he was gaoled he would be killed because many members of his lover’s tribe were in prison.

Proceedings before the Assessor

1. The applicant provided the Assessor with a letter from the Rev. Peter Faulkner, a minister at the Christmas Island Fellowship.  Mr Faulkner stated that the applicant was a member of the Christian Fellowship and had participated in a course on basic Christian beliefs.  He stated that he believed that the applicant was sincere in his desire to be a Christian.

2. The applicant’s advisers also provided the Assessor with written submissions dated 30 April 2012 in which they made the following claims on behalf of the applicant:

   ·after the applicant’s arrival in Australia his family told him that the Ministry of Justice had issued a summons in his name;

   ·the applicant began attending church and Bible study in January 2012 and by early 2012 considered himself to be a Christian. The applicant had a well-founded fear of persecution because of his conversion to Christianity;

   ·the applicant also had a well-founded fear of persecution due to his membership of the particular social group of adulterers in Iran; and

   ·if the applicant was not a refugee then he was owed protection obligations under the complementary protection criteria.

3. The applicant was interviewed by the Assessor on 2 May 2012 at which point he made the following additional claims:

   ·the police did not have any evidence that he and his lover had had sex other that they found them alone in an otherwise empty house;

   ·he was not sure of the court in which he had appeared, but he assumed it had been the Revolutionary Court;

   ·when he was threatened by his lover’s husband he did not go to the police, instead his family tried to negotiate a peace deal. He had not thought the police would do anything for him;

   ·since he left Iran his father had received three summonses, the first one before he was interviewed by his lawyer in Australia and the other two after his POE interview. He did not know if a warrant had been issued for his arrest or if any steps had been taken to hear his matter in his absence;

   ·his lover was also facing adultery charges. The crime they had committed was a capital offence for both of them because he, a non-Muslim, had had sex with a Muslim. His lover might have told the police that he did not believe in Islam;

   ·his family had not tried to find out what had happened to his lover and he had no information about her. The applicant then said that he did not know if her husband had forgiven her but she had been released and had not been harmed by her husband because he loved her. He believed that she was still alive because if she had been killed her husband or other people would have talked about it;

   ·he did not do anything against Islam but he hated it. He had not had any information about Christianity before he travelled to Australia;

   ·initially he had not wanted to explore Christianity because he had had a bad experience with religion and did not want to follow another one. However, following some encouragement from his friends, after his POE interview he started reading the Bible and in the month following his release into the community he attended church on three occasions. He had not been baptised at Christmas Island because he had not been able to and when he was released from detention he did not know who in the community was responsible for baptisms. He had told his family that he had converted to Christianity and although they had not said anything, he was sure they were very unhappy with his decision;

   ·before he left Iran he was continuously employed as an electrician. It was difficult to get a job in Iran without a referral letter from a mosque or local religious council;

   ·the Iranian authorities would not like the fact that he had sought asylum because they would know that in doing so he would have criticised the government and said that Iran was not a good place to live; and

   ·he would be treated more harshly in relation to the adultery charges because he had sought asylum in Australia.

4. Following that interview, the applicant’s advisers provided the Assessor with submissions dated 16 May 2012 attaching three summonses addressed to the applicant. The applicant’s advisers submitted that the adultery laws in Iran were not laws of general application because country information suggested that judges had wide discretion and could use their own knowledge which resulted in most adultery trials being unfair. They further submitted that owing to the applicant’s anti-Islamic beliefs and recent conversion to Christianity, both of which he believed had been divulged to the Iranian authorities by his lover’s family, he would be likely to receive a more severe penalty.

5. On 18 July 2012 the Assessor wrote to the applicant inviting him to comment on information that forged court documents could be obtained in Iran. The Assessor also invited the applicant to comment on the fact that although the three summonses he had provided had been issued and presumably delivered before his POE interview, two of them having been delivered before his statutory declaration in support of his POE had been signed, he did not mention any of them in his statutory declaration and only mentioned one in his POE interview.

6. In submissions in response, dated 6 August 2012, the applicant’s advisers said that it was only after his POE interview that the applicant had spoken to his father and learnt of the summonses.

Assessor’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before her, the Assessor found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2)(a) and (aa) of the Act. The Assessor consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations.

2. The Assessor was not satisfied that the applicant had been accused of adultery; that he had been arrested, interrogated and physically abused; that he faced court charges; that his lover’s husband and her family were pursuing him and had threatened to harm him; or that his brother had been attacked by the woman’s family in his stead. In this regard, the Assessor noted:

   ·the applicant gave inconsistent evidence about what had happened to his lover;

   ·the applicant gave evidence that he had appeared before the Revolutionary Court but that court did not hear the type of offence with which he had been charged, the Public Court was the relevant court;

   ·the applicant’s evidence about when he received the three summonses from his father was inconsistent;

   ·certain sections of the summonses provided by the applicant, such as the “date notified” and “notifying officer confirmation” sections, were blank and they did not mention the charges faced by the applicant. The Assessor referred to country information regarding the availability of forged court documents in Iran and was not satisfied that the summonses were genuine;

   ·the applicant did not know whether a warrant had been issued in his absence or whether the charges against him had been dealt with in his absence. The Assessor said that she would have expected the applicant to have found this out and to have had some idea of the progress of his court case; and

   ·the applicant claimed that his lover had told the authorities that he was not a Muslim in order to curry favour with them. The Assessor found that if the authorities had not suspected that he was a non-practicing Muslim there was no reason for his lover to have raised it with them as it would have made her situation worse. The Assessor was unimpressed by this evidence.

3. For the following reasons, the Assessor did not accept that the applicant was a genuine convert to Christianity:

   ·the applicant’s conversion to Christianity was very quick in that he started reading the Bible after his POE interview held on 15 December 2011 and by the beginning of 2012 regarded himself as a Christian. The applicant had also not been baptised;

   ·the letter from Mr Faulkner did not indicate how long the applicant had attended Bible studies or whether he had attended church;

   ·whilst accepting that he had studied the Bible, the Assessor nevertheless found that the applicant had had difficulty responding to conceptual questions about Christianity;

   ·the applicant did not give the impression of having undergone a genuine, subjective spiritual journey at any stage in his recent life; and

   ·the applicant could not explain why he felt the need to follow an organised religion in light of his statements about not needing organised religion. The Assessor did not accept that the applicant was a Christian convert and found that his Christian activities in Australia were undertaken solely to enhance his claim for refugee status. Consequently, the Assessor disregarded them in accordance with s.91R(3) of the Act.

4. The Assessor did not accept that the applicant would want to practise Christianity on his return to Iran or that there was a real chance that he would be seriously harmed as a Christian convert in Iran.  She found that any fear of persecution the applicant had in this regard was not well-founded. In this connection, the Assessor noted:

   ·independent country information indicated that many people in Iran did not practise their religion and, apart from censure by his parents, the applicant had had no problems in Iran by reason that he did not practise Islam; and

   ·whilst it was difficult to get a job in Iran without a referral letter from a mosque or local religious council, the applicant had had continuous employment in Iran prior to travelling to Australia and had not been denied the capacity to earn a livelihood in Iran because he did not practise the Muslim faith.

5. In relation to the applicant’s claims to fear persecution as a failed asylum seeker:

   ·after referring to country information suggesting that Iranian foreign agents reported on failed asylum seeker’s activities abroad, the Assessor found that if the applicant had been monitored by Iranian agents whilst in Australia, such monitoring would have revealed that he was not involved in any anti-regime activities;

   ·whilst accepting that the Iranian authorities might be aware that the applicant had sought asylum in Australia, the Assessor found that they would not be aware of his reasons for doing so. The Assessor found that even though there was a real chance that the applicant would be questioned and monitored on his return to Iran, such treatment would not amount to serious harm and persecution within the meaning of the Convention; and

   ·the Assessor found that the applicant had never been involved in any political or anti-regime activities in Iran or Australia, did not have a political profile and had never been accused of being involved in anti-government activities in Iran or imputed with anti-government political opinions.  The Assessor found that there was no reason and no real chance that the applicant would be imputed with an anti-government political opinion in the reasonably foreseeable future for having sought asylum in Australia.

6. After considering on a cumulative basis the applicant’s claims that he was a non-practising Muslim who had travelled to a western country, overstayed his exit permission and subsequently sought asylum in Australia, the Assessor found that there was no real chance that the applicant would be persecuted for a Convention reason and that his fear of persecution was not well-founded.

7. Although she accepted that country information indicated that Iranian authorities monitored Iranians outside Iran, the Assessor did not accept that those authorities would be aware of the applicant’s private Bible studies, his participation in Bible studies at Christmas Island and his attendance of a church on three occasions. Additionally, given that he said that he and his family had had no contact with his lover’s family, the Assessor did not accept that they had disclosed his conversion to Christianity to the authorities.  For these reasons, the Assessor also did not accept that the applicant would continue to practise Christianity on his return to Iran. The Assessor found that there was no real risk that the applicant would suffer significant harm if he was removed to Iran.

Proceedings in this Court

1. The sole ground of the amended application was pleaded as follows:

   1.The Assessor failed to make a finding on or respond to the applicant’s claim to be at risk of persecution if returned to Iran, for reason of his membership of the particular social group of adulterers in Iran. In doing so, the Assessor:

   a.constructively failed to exercise her jurisdiction; and/or

   b.failed to observe the requirements of procedural fairness.

1. Although the applicant’s argument was elaborated at some length at the hearing of this application, it was essentially a simple one.  The applicant submitted that he had made a claim that he was a member of a particular social group, adulterers in Iran, but the Assessor had not considered it even though a natural reading of her reasons led to the conclusion that she accepted that he had committed adultery.  The applicant submitted that the Assessor had focused on whether he had been accused of adultery and had not considered whether he faced harm because of his membership of the particular social group of adulterers in Iran.

2. While the applicant’s alleged adultery in Iran was relevant to his claim to fear persecution, the determination of this aspect of his claims turned on a different issue, namely whether the claimed fear was well-founded.  The applicant’s claimed fear of persecution arose out of him allegedly having been discovered by the police in compromising circumstances which led to him being accused of adultery as well as to all the other consequences said to have flowed from that event.  He made no claim to fear persecution which was independent of the alleged intervention of the police.  However, to all intents and purposes the Assessor rejected that allegation in para.122 of her reasons when she concluded that the applicant had not been arrested or accused of adultery.  In circumstances where the Assessor rejected the foundational allegation on which the objective element of the claim to fear persecution was based, it was sufficient that she say so without engaging in further discussion of other elements of the applicant’s claims which could not have affected the review’s outcome, including his claimed membership of the particular social group of adulterers in Iran.

3. Moreover, I am not convinced that the Assessor did accept that the applicant had had an adulterous relationship in Iran.  Her discussion of that issue commenced at para.110 of her reasons where she said:

   The claimant has been consistent in his account that he had had sexual relations with a woman who he believed was divorced but it transpired that she was married.  However there were aspects of the claimant’s account that concerned the reviewer.

   She then went on to discuss the details of this part of the applicant’s claim in terms which did not denote acceptance of the applicant’s allegations, a discussion which culminated in the conclusion at para.122 that the applicant had not been arrested or accused of adultery.  I infer that the Assessor was not persuaded that the applicant had committed adultery but nevertheless contented herself with expressing a more limited finding based on her critical analysis of the evidence concerning the events said to have arisen out of the discovery of the alleged adultery.

Conclusion

1. The applicant has not demonstrated that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  6 December 2013