SZRUA v Minister for Immigration and Border Protection

[2014] FCA 621

FEDERAL COURT OF AUSTRALIA

SZRUA v Minister for Immigration and Border Protection

[2014] FCA 621

Citation:	SZRUA v Minister for Immigration and Border Protection [2014] FCA 621
Appeal from:	SZRUA v Minister for Immigration and Border Protection [2013] FCCA 2080
Parties:	SZRUA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and WENDY BODDISON IN HER CAPACITY AS INDEPENDENT ASSESSOR
File number:	NSD 2600 of 2013
Judge:	RARES J
Date of judgment:	26 May 2014
Cases cited:	Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZRUA v Minister for Immigration [2013] FCCA 2080 referred to
Date of hearing:	26 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	29
Counsel for the Appellant:	Mr J King
Solicitor for the Appellant:	Fragomen
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2600 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRUA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT ASSESSOR
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	26 MAY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent's costs.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2600 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRUA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT ASSESSOR
Second Respondent

JUDGE:	RARES J
DATE:	26 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Circuit Court rejecting the appellant’s claim for a declaration that the assessor’s recommendation in her independent protection assessment dated 8 August 2012, that the appellant not be recognised as a person to whom Australia had protection obligations, was not made in accordance with law:  SZRUA v Minister for Immigration [2013] FCCA 2080.

2. The appeal has been very well argued.  The sole issue is whether, in finding that the appellant did not have a well-founded fear of persecution as a member of a particular social group of adulterers in Iran, the assessor failed to consider whether there was a real chance that he would be persecuted in the future were he to return to Iran or that Australia owed complementary protection obligations in respect of such a possibility.

   Background 

3. The appellant has been represented throughout the administrative and Court processes.  He made a number of other claims that are not presently relevant.  He made a statutory declaration on 10 October 2011 when filing his application for a protection visa, in which he asserted that, in about May 2011, he began a friendship that developed into a sexual relationship with a woman called Sosan.  He claimed that, during the third time that he and Sosan had sex, the Iranian police came to the door of his family home and said that they had to search the house, asserting that they had been informed that something was going on.  He claimed that the police found Sosan in the house and then they were both taken to the police station, where he found out for the first time that Sosan was married.  He claimed that she had told him that she was divorced.  He claimed that the police put him into detention and, whilst he was detained, he was beaten and kicked.  He claimed that he then appeared in court, when his trial date was set and bail was fixed on the security of his parent’s home.  He claimed that while he was at court, he saw Sosan’s husband, who threatened to kill him.

4. The appellant claimed that he feared, were he returned to Iran, that he would be killed or imprisoned for a long time and that the government and Sosan’s family would harm him because he had had sexual relations with a married woman, being conduct that was un-Islamic and against Sharia law.

   The initial review

5. An officer of the Minister’s department conducted a protection obligations evaluation referral of the appellant’s case.  The officer found that she was prepared to give the appellant the benefit of the doubt, and so accepted that he was known to the authorities for committing adultery.  The officer found that the appellant did have a relationship with Sosan, that it was plausible that her family had come to find out about that relationship and that he subsequently feared harm from her family and tribe.  Nonetheless, the officer concluded that the adultery laws were laws of general application in Iran that did not attract any protection obligations to which he was entitled in Australia.

   The assessment

6. During the course of the assessment, the assessor appears to have proceeded on the basis that the whole of the appellant’s claims were to be re-examined, and no complaint is made of that.  The appellant’s migration advisers, who were and continue to be his solicitors, made a detailed written submission before his interview with the assessor.  In it, they submitted that he had been arrested, detained, physically abused and charged with adultery in Iran, and that by that stage, additional to what had been before the officer, three court summonses had been issued by the Iranian authorities in respect of the appellant.  They argued that it was evident that the appellant had come to the attention of the authorities in Iran for his adulterous actions, and that in light of the country information, together with his experiences, there was a real chance that he would be at risk of persecution, and not merely prosecution, owing to his adultery in Iran.

7. In a post-hearing written submission, the appellant’s migration advisors made further submissions about the Islamic penal code that referred to the various penalties for committing adultery.  They contended that the Iranian authorities punished adultery in a manner that was discriminatory and arbitrary.  They contended that this conduct fell outside the scope of non-discriminatory enforcement of laws of general application that would not attract protection obligations under the Convention, and that those authorities punished adultery in a persecutory manner.  They submitted that the appellant would be subjected to persecution in Iran owing to his adulterous actions, because of the way in which the Iranian State enforced those laws, were he to return there.

8. The assessor identified the three bases on which the appellant claimed a fear of persecution as being:  his membership of a particular social group of adulterers, his religion, as he had converted in Australia to Christianity, and his being a failed asylum seeker.  The assessor rejected the latter two claims on grounds that are not now in issue. 

9. In explaining her findings in relation to the appellant’s claim based on his membership of a particular social group, she stated that he had been consistent in his account that he had had sexual relations with a woman whom he believed was divorced, but in respect of whom it transpired that she was married.  The assessor then said that there were aspects of his account that concerned her.  She took into account the need to give the benefit of the doubt to applicants in determinations of refugee status where they were generally credible, but unable to substantiate their claims, but noted that a decision-maker was not required to accept, uncritically, any or all allegations made by a claimant.  She then discussed a number of aspects of the appellant’s evidence and claims concerning the revelation of his relationship with Sosan. 

10. In substance, it is fair to say that the assessor did not find the appellant’s evidence credible.  She noted, among other matters, that the appellant had said that he had no information as to whether Sosan’s family had taken any action against her, but believed she was still alive.  The assessor said that people in their community, which the appellant said was a small community, would know if Sosan was alive, and would also know whether she had gone to court and been punished for adultery.  The assessor found that, because she was married, Sosan was in a worse position than the appellant and, for her, the commission of adultery as a married woman under the Iranian law was a capital offence.  The appellant appears to have been exposed to a potential penalty of flogging.  The assessor said that she had trouble accepting that the appellant had made no attempt in the period since the events that led him to leave Iran to find out what, if any, fate had befallen Sosan, who, on his version, had been arrested and charged at the same time as him.

11. The assessor noted that, after the interview, the appellant had provided three documents, appearing to be court summonses, in relation to him, dated 30 August 2011, 2 October 2011, and 6 November 2011, that appeared to have been delivered to his address before he was required to attend court in Iran.  She referred to the appellant’s statement at the interview with the reviewing officer on 15 December 2011 that he believed his father had received one summons.  The assessor found that, if the documents now before her were authentic, his father had received three summonses by the time of the December 2011 interview.  Next, the assessor referred to the appellant’s submission dated 30 April 2012 that stated that he had contacted his family and found out that the Ministry of Justice in Iran had issued one summons, in contrast to the three that she now had before her.  She observed that his explanations in relation to the existence of the number of summonses were at odds with his earlier evidence.  In any event, the assessor found that the three summonses did not mention the charges that the appellant was facing.  She accepted country information regarding the availability of forged court documents in Iran and found that this led her not to be satisfied that the summonses were genuine.  The assessor also observed that she would have expected the appellant to be concerned to find out whether warrants for his arrest had been issued and whether the charges had been dealt with in his absence, particularly since, at the time of his interview, six months had passed since the last summons requiring him to attend court on 6 November 2011. 

12. The assessor referred to the appellant’s statement that he would also face the death penalty as a non-Muslim who had committed adultery with a Muslim woman.  She observed that, as discussed with him, if he were a non-Muslim, the consequences were worse for Sosan, but that when he left Iran, he was a non-practising Muslim.  The assessor rejected the appellant’s claim that Sosan would have told the Iranian authorities that he was not a Muslim in order to curry favour with them.  She found that there was no reason why Sosan would raise the appellant’s non-practising Muslim status with the authorities when they did not suspect that he was a non-Muslim, because that would have made the situation worse for Sosan.  She found that the appellant’s evidence on this aspect had the tenor of being made up during the interview. 

13. Critically, the assessor found:

    “122.For all the above reasons the reviewer is not satisfied that the claimant has been accused of adultery.  The reviewer is not satisfied:

    •     that the claimant was arrested and interrogated and physically abused

    •     that the claimant is facing court charges

    •     or that the husband of Sosan and her family are pursuing him and threatened to harm him.

    •     Or that his brother has been attacked by Sosan’s family in his stead.

    123.The reviewer finds that the claimant does not have a well-founded fear of persecution for a Convention ground on account of being accused of adultery.”

    
    
    

14. When the assessor came to deal with the complementary protection ground, she dealt with the adultery issue in the first sentence of three much longer paragraphs at the commencement of her consideration, saying:

    “The reviewer has not accepted that the claimant has been accused of adultery arrested and detained and physically abused in Iran.”

15. Throughout the balance of the three paragraphs, the assessor discussed the appellant’s other claims for complementary protection and made findings that there were no substantial grounds for believing that there was a real risk that, were he returned to Iran, he would suffer significant harm in relation to his practice of the Christian religion in Australia or for being a failed asylum seeker and a westernised returnee who had studied Christianity in Australia.

16. The assessor did find that there was a real chance that the appellant would be questioned and monitored on return to Iran, but that this treatment did not amount to serious harm or persecution within the meaning of the Convention.

    The decision of the trial judge

17. The trial judge considered the appellant’s argument and rejected it.  He said that, while the alleged adultery in Iran was relevant to his claim to fear persecution, the determination of the claim turned on a different issue, namely, whether the claimed fear was well-founded.  He found that:

    “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.”

18. Next, his Honour said that he was not convinced that the assessor had accepted that the appellant had had an adulterous relationship in Iran and inferred that she was not persuaded that he had committed adultery.  He found that she had proceeded on the basis of expressing a more limited finding, based on her critical analysis of his evidence concerning the events said to have arisen out of the discovery of alleged adultery.  For those reasons, his Honour dismissed the application.

    The appellant’s submissions

19. The appellant argued that the trial judge erred in inferring that the assessor did not accept that the appellant had committed adultery in Iran with Sosan.  The Minister does not suggest that that finding was defensible.  In my view, it was not.  It was plain that the assessor had proceeded on the basis that she accepted that the appellant had had a sexual relationship with Sosan but then had proceeded to deal with the appellant’s claims concerning how that relationship had been exposed in his community and the consequences of that exposure.

20. The second argument put by the appellant was that his Honour had erred in holding that the assessor did not need to respond to the appellant’s claim to fear harm for reasons of his membership of the particular social group of adulterers in Iran.   He argued that his express claim, based on the circumstances he relied on as founding his fear of persecution in respect of his membership of a particular social group of adulterers were he to return to Iran, also would have raised by implication, as an aspect of that claim, the question whether even if his allegations of past harm were not made out, he had a genuine fear of persecution based solely on the fact of his having committed adultery with Sosan.  In essence, the appellant contended that the finding at [123] of the assessor’s reasons did not follow from any evaluation of the facts of his simply being an adulterer so as to assess whether he had any such well-founded fear.  He argued that such an examination was required on the basis of the reasoning in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. He argued that the assessor’s findings in both [122] and [123] were, in terms, confined to the evaluation of his overall claims on the basis that he had been accused of adultery. He said that the assessor’s reasoning did not engage in an evaluation of whether, by reason of his having committed adultery in the past (without having been accused of that), he had a well-founded fear of persecution in the future were he to return to Iran.

    Consideration

21. In my opinion, the primary judge’s reasoning process was inaccurate.  He asserted that the appellant had made no claim to fear persecution that was independent of the alleged intervention of the police.  That was not the case.  The appellant’s claims were also based on his assertions, rejected by the assessor, that Sosan’s husband and family were pursuing him and had threatened to harm him, and that his brother had been attacked by the husband’s family in his stead.

22. I am of opinion that the question whether the assessor was obliged to consider what the appellant argued was the implicit basis of his claim to fear persecution falls to be decided in accordance with the principles in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. There, Black CJ, French and Selway JJ considered the review process by the Refugee Review Tribunal, which is relevantly analogous to the process undertaken by the assessor. They held that (144 FCR at 18-19 [58]):

    “The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”  (emphasis added)

23. Where an administrative decision-maker in the position of the assessor fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction:  Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24] per Gummow and Callinan JJ. As Black CJ, French and Selway JJ said in NABE 144 FCR at 22 [68]:

    “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.”

1. The process by which an administrative decision-maker evaluates a claim for protection under the Convention was discussed in Guo 191 CLR at 572, 574-576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. They said that (at 572) “A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.” and continued, saying (191 CLR at 574-575):

   “The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”

2. I am of opinion that the way in which the assessor analysed the appellant’s claim to be a member of the particular social group of adulterers in Iran dealt with the only clearly articulated claim that was put to her.  That claim was that, by reason of a number of instances of specific past events, the appellant would be at risk of persecution were he to return to Iran in the future.  Those events concerned the exposure of his adultery, as he claimed, with Sosan and the conduct that he claimed had been visited upon him as a result.  However, the mere fact that he had engaged privately in adultery with Sosan would not have, and was not claimed by him to have, led him to have had a well-founded fear of persecution in Iran.  Rather, what gave rise to his claim to protection was the knowledge of others that such adultery had occurred or, as the assessor put it, that he had been accused of adultery.  It was that accusation that gave rise to his claims.

3. The assessor was not satisfied that any of the events involving third parties becoming aware of the appellant’s relationship with Sosan had occurred.  That is, she was not satisfied, as she found in [122], that he had been arrested, interrogated or physically abused by the authorities, that he was facing court charges, that Sosan’s husband or family were pursuing him or had threatened to harm him, or that his brother had been attacked by Sosan’s family in his stead.  Those facts were the substantive integers of the appellant’s claim to fear that he would be subjected to persecution were he to return to Iran.  Once the assessor found that she was not satisfied that those facts had occurred, in my opinion, she did not have before her any implicit, let alone clearly articulated, claim that, were he to return to Iran in the future, his past private adultery with Sosan would be exposed.

4. The assessor referred to the serious consequences for Sosan were she to reveal the affair, including that she could be exposed to capital punishment.  The appellant and his advisers did not raise expressly that, if the tribunal were to reject his account of actual persecutory conduct flowing from the exposure of the affair, nonetheless there was a real chance that in the future he might suffer such consequences were the affair later to come out into the open.  Critically, the appellant’s claims were not based on matters such as his beliefs or permanent features, such as his ethnicity or membership of a particular social group, defined by characteristics, such as being a tribe or a community.  Rather, his implicit claim was centred on a single past event, namely that, because of adultery, he had been placed permanently at risk of persecutory conduct whenever that circumstance might come to the attention of the authorities or Sosan’s husband or family.

5. Having found that she was not satisfied that any of the appellant’s claims that, in the past, others had known of or acted on the basis of his affair with Sosan, the assessor was not, in my opinion, required to consider the unarticulated claim that the appellant now asserts.  The assessor dealt with his claim of membership of a particular social group of adulterers in Iran, which had been squarely put to her in a way that the appellant does not challenge.  The assessor did not have to go on to consider, on the material before her, an unarticulated possibility that in the future there might be some exposure of his affair, were he to return to Iran, that might bring about adverse consequences, when it had not happened to date and the only two people who appear to have known of the affair, on the assessor’s findings, being the appellant and Sosan, would have no possible interest in bringing their activities to light, having regard to the state of Iranian law with respect to adultery.

   Conclusion

6. I am not satisfied that there was any obligation of the assessor to consider this unarticulated and unput claim.  For these reasons, I am of opinion that the appeal must be dismissed. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       26 May 2014