SZSIB v Minister for Immigration

[2013] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIB v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1413

Catchwords:
MIGRATION – Review of Independent Protection Assessor’s decision – whether assessor applied correct test to assessment of complementary protection requirements – where assessor found that imprisonment for ten days to two months for dress code violations did not constitute significant harm – whether finding so unreasonable as to be absurd – where country information before assessor referred to non-state actors policing morality – whether applicant claimed before assessor to fear significant harm from non-state actors – whether assessor failed to deal with the full integers of the applicant’s claims under complementary protection.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) and 36(2)(aa)

Summary Offences Act 1995 (NT) s.53

Judicial  Review of Administrative Action 5^th Ed

Minister for Immigration & Anor v MZYYL & Anor [2012] 207 FCR 211
Minister for Immigration & Anor v SZQRB [2013] 296 ALR 525
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1KB 223
SZSGA v Minister for Immigration & Anor [2013] FCA 774
Htun v Minister for Immigration & Anor [2001] 194 ALR 244
Dranichnikov v Minister for Immigration & Anor [2003] 197 ALR 389
NABE v Minister for Immigration & Anor(No 2) [2004] FCR 1
M61/2010E v The Commonwealth [2010] 243 CLR 319

Applicant: SZSIB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIA BAILEY IN HER CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 2820 of 2012

Judgment of: Judge Raphael

Hearing date: 12 September 2013

Date of Last Submission: 12 September 2013

Delivered at: Sydney

Delivered on: 23 September 2013

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.

3. The name of the First Respondent be changed to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2820 of 2012

SZSIB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIA BAILEY IN HER CAPACITY AS THE INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Iranian citizen who arrived in Australia on 3 December 2011.  He made a request for a protection obligations determination on 18 February 2012.  A delegate recommended that he not be considered a person to whom Australia owed protection obligations.  On 17 March 2012 a determination was referred to an independent protection assessor. The assessor held a hearing which the applicant attended together with his migration agent.  On 8 September 2012 the assessor confirmed the delegate’s recommendation.

2. The applicant put his claim to be a person to whom Australia owed protection obligations in several ways.  The principal one was that in November 2011, whilst visiting a client in his cosmetics shop, he witnessed the beating, arrest and detention of the shop owner, a Baha’i.  The applicant told that this action had been taken by the Basij who were led by his father who he claimed worked for Sepah and supported a branch of the Basij.  The applicant protested against what was occurring to the shop owner and when one of the Basij officers came towards him to handcuff him he pushed the officer away and ran away.  The applicant made his way to Tehran where he stayed with his cousin.  He had heard that his father had said he would not speak to him again because of the incident.  The applicant told that he made arrangements to travel to Australia through his cousin and having left discovered that a summons had been issued against him for acting against the national security of the country and spreading lies and creating suspicion in the public mind, a charge he said carried the death penalty.

3. This claim was comprehensively rejected by the assessor for reasons which it gave and is not the subject of these proceedings.

4. The applicant made further claims relating to his apostasy by way of conversion from Islam to Christianity whilst in detention in Australia. That claim was clearly made under both ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth). Both claims were rejected. The assessor also rejected claims arising out of the applicant’s membership of what was described as a particular social group of return failed asylum seekers and returnees from a western country. These claims are also not pursued in the application before the court.

5. The claim that is pursued is the applicant’s claim to have been a member of a particular social group of modern young Iranians or the Iranian Youth Generation and/or Iranians or Iranian youth with tattoos.  These claims were dealt with by the Assessor at [205 – 210] [CB 183]:

   “[205]I accept that the claimant has tattoos on both upper arms and, as discussed above in terms of his Refugee Convention claims, that this exposes him to the possibility of some degree of future harm if he returns to Iran as a result of enforcement of the Islamic dress laws in Article 638 of the Penal Code.  For the reasons set out below, I do not accept that, as a necessary and foreseeable consequence of his removal from Australia to Iran, there is a real risk that he will suffer significant harm, as a result of his tattoos.

   [206]Prior to his departure from Iran, the claimant’s only encounter with the authorities as a result of his tattoos was being asked, on one occasion, to leave the swimming pool because he was a negative influence on other swimmers.  The lack of other incidents suggests that the claimant was not in the habit of openly displaying his tattoos in Iran and there is no evidence before me to suggest that he would do so if he were to return.

   [207]Article 638 of the Penal Code indicates that the penalty for publicly violating any religious taboo, ‘beside being punished for the act” is imprisonment for ten days to two months or 74 lashes.  The wording of this provision suggests that a judge has the discretion to impose a punishment additional to imprisonment or lashing in accordance with Islamic law.

   [208]Country information indicates that common penalties for dress code violations are the giving of a caution, the imposition of a fine, brief detention at a police station, signing of an undertaking to refrain from future violations and/or the requirement to attend Islamic guidance classes (Worldwide Religious News, 24 April 2007 and Radio Free Europe/Radio Liberty, 23 September 2009).  I have seen no reports of a penalty of lashes having carried out for a dress code violation.  While I accept that it is legally possible, I find the risk of the claimant being lashed for reasons of a dress code violation to be remote and I do not accept that it would be a necessary and foreseeable consequence of his removal from Australia to Iran.

   [209]I do not accept the imprisonment for ten days to two months or any of the commonly imposed penalties referred to above for dress code violations amount to significant harm as defined in s 36(2A).

   [210]I therefore do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Iran, there is a real risk that he will suffer significant harm as a result of his tattoos.”

6. By a Further Amended Application filed in court at the hearing the applicant sought review of the assessor’s decision on two grounds, the first of which was:

   “1.That the second respondent failed to apply the correct test under complementary protection.

   Particulars

   (a)That by focussing on the likely penalties to be accorded to the applicant as a result of enforcement of Islamic dress laws, the second respondent failed to apply the “real chance” test to the applicant’s claims under complementary protection, relying instead upon a “balance of probabilities” formulation;”

7. The test argued for by the applicant was supported by the Full Federal Court in Minister for Immigration & Anor v MZYYL & Anor [2012] 207 FCR 211[1] per Lander, Jessup and Gordon JJ. At [31] the Court opined:

   “[31]The Tribunal held, and the Minister does not now challenge, that in assessing “real risk … of significant harm” to the non-citizen under s 36(2)(aa) of the Act, that question may be resolved by asking whether there is a “real chance” that the non-citizen will suffer significant harm if he is removed from Australia to the receiving country: Decision at [153]–[154]. That element of the construction of s 36(2)(aa) is important because of the express terms, and role, of s 36(2B) of the Act.”

   [1] “MZYYL”

8. This decision was followed by that of Minister for Immigration & Anor v SZQRB [2013] 296 ALR 525 where a Full Bench; Lander, Besanko, Gordon, Flick and Jagot JJ considered an appeal in which one of the issues was the appropriate test to apply under s.36(2)(aa). The matter was considered most lengthily by Lander and Gordon JJ who opined at [242 – 243]:

   “[242]The proper test, SZQRB contended, is whether there is a real risk that if SZQRB were to be returned to Afghanistan he would be arbitrarily deprived of his life. The question of “real chance” is, of course, the test to be applied on an application for a protection visa under s 36(2)(a) when considering whether the applicant has a well-founded fear that the applicant will face persecution for a convention reason if returned to the applicant’s country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ; 87 ALR 412 per McHugh J at CLR 429; ALR 448–9 and Mason CJ at CLR 389;ALR 418, Dawson J at CLR 398; ALR 424–5, and Toohey J at CLR 407; ALR 431–2.

   [243]In Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147(MZYYL), the question of the appropriate standard was raised by the minister in his notice of appeal, in circumstances when the Refugee Review Tribunal said that in assessing a non-citizen’s risk of suffering significant harm for the purpose of s 36(2)(aa), the tribunal should consider whether there is a “real chance”. However, at the hearing, the minister did not pursue that challenge and accepted in that appeal that the test was whether there is a “real chance”: MZYYL at [31]”

9. Besanko and Jagot JJ made reference to MZYYL without criticism of it at [311] but did not otherwise consider the test. Flick J made no reference to that aspect of the matter.

10. In order to determine whether the assessor utilised the real chance test or carried out some balancing act the court will look first at the decision itself.  The decision may be illuminated by evidence from the transcript, such as remarks made by the assessor that could indicate she has adopted a particular formulation.  The transcript has been exhibited in these proceedings attached to an affidavit of Ms Sue Archer dated 22 May 2013 but I have not been taken to any part of it which is said to indicate the way in which the assessor approached this question.

11. At [205] the assessor acknowledges that the applicant’s tattoos expose him to the possibility of some degree of future harm but concludes quite firmly and without any indication of a balancing act that she does not accept that there is a real risk that he will suffer significant harm as a result of them. She gives one reason for this, that the applicant was not in the habit of openly displaying his tattoos in [206] and refers to an incident in which he was asked to leave a swimming pool. At [208] she deals with the possibility of the applicant being lashed for a dress code violation but finds the risk to be remote and not a necessary and foreseeable consequence of his removal. Again, the assessor has put her views firmly and conclusively without any indication of having come there on the balance of probabilities. She has made reference to the requirement for “a real risk” to be identified and makes no suggestion that this could be something different from the “real chance test” which she is aware has to be applied in respect of s.36(2)(a).

12. The second particular of Ground 1 is aimed at the assessor’s expression of opinion in [209]:

    (b)That the second respondent erred in finding, at paragraph [209] of their Findings and Reasons, that “imprisonment for ten days to two months or any of the commonly imposed penalties referred to above for dress code violations amount to significant harm in s36(2A)” of the Migration Act 1958.”

13. He argues first that this is a balancing of probabilities although he provides no indication of how this statement of view leads to that assertion. 

14. At the suggestion of the court the applicant attempted to put a case that the views expressed by the assessor in [209] that imprisonment for ten days to two months did not amount to significant harm was a finding that could be overturned on the basis of Wednesbury unreasonableness; Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1KB 223 at [229-230]. The learned authors of Judicial  Review of Administrative Action 5^th Ed Mark Aronson, and Matthew Groves discuss unreasonableness both in English and Australian context:

    “[6.410]The courts have always called for extreme care in handling the common law’s unreasonableness ground, because it has such obvious potential for allowing disguised merits review (“merits in drag” was a New Zealand term for it).  Given the courts’ repeated denials of using judicial review to engage in an examination of the merits of the impugned act or decision, it is critical to understand both the qualitative nature of this review ground, and its scope.

    “unreasonable” has two meanings in the general context of judicial review.  First, it encompasses or is a shorthand for those grounds of review grouped in this book under the broad heading of irrationality. Secondly, it is a ground of review in its own right.  The specific grounds for which it became, in England, a shorthand in its first sense, including the relevancy grounds, and complaints about the inflexible application of policy, or about being unduly influenced by the views of others.  It used to be commonplace in England to refer to such grounds as the Wednesbury principles.

    [6.420]Taken at its lowest, the first meaning of “unreasonable” is redundant, because it encompasses the established irrationality grounds but adds nothing to them.  Unreasonableness would be nothing more than evidential basis for inferring reviewable error.

    [6.430]To qualify for the unreasonableness epithet in its second sense, the impugned decision must have been “so unreasonable that no reasonable authority could ever have come to it”.  The law reports abound with equally circular equivalents: so unreasonable that no reasonable Minister, council, tribunal, inferior court judge, Governor in Council – anyone, in fact, who is subject to judicial review.  Lord Green clearly intended this ground to represent a safety net, designed to catch the rate and totally absurd decision which had managed to survive the application of all the other grounds of review.  That would have been a rare bird indeed.” 

15. In discussing Australia the learned authors opine:

    “[6.450] “Anxious scrutiny” is not part of Australia’s judicial review language.  The Federal Court remains unimpressed by English precedents which lower the judicial review bar for challengers specifically for cases where human rights or fundamental freedoms are at stake.  At the same time, the Federal Court acknowledges that whether Wednesbury applies to any given decision will “always be a matter of degree”.

    Australia has also diverged from the current English cases in another respect.  Our “unreasonableness” ground is now tightly confined to the arena of administrative discretions.  If the complaint is about perverse outcomes (such as fact-finding), the appropriate common law grounds in this country would include “no evidence” (taken literally) and “serious irrationality”.

16. It appears to the court that the only manner in which the assessor’s views can be challenged is the second sense of “unreasonable” described as “absurdity”.  A decision as to whether this assessor’s views would qualify in that sense is an intuitive one.  There was no evidence sought to be called.  The applicant tended to suggest that the absurdity lay in the proportionality of the sentence for the crime.  In other words to imprison someone for having a tattoo amounted to significant harm.  But in the court’s view this is not the appropriate test.  It is the harm that has to be tested not the reasons for inflicting.  Even if the court is wrong in that, and one can see an argument that a totally out of proportion penalty could be said to invoke serious harm, it has to be doubted whether this is one such.  When one considers the penalties that might be invoked by Australian courts for what some may consider to be minor infractions of breach of public order or creating graffiti a penalty such as that imposed in Iran for what Iranian society considers to be an insult against its guiding philosophy, Islam, is not intuitively so seriously disproportionate to allow the views of the assessor expressed here to be considered absurd.[2] 

    [2] Section 53(9) of the Summary Offences  Act 1995 (NT) includes a penalty of a “fine not exceeding $2,000 or imprisonment for a term not exceeding 6 months, or both” for the offence of obscenity, including at s.53(1): “Any person who (a) in a public place, or within the view or hearing of any person passing therein: (i) sings any obscene song or ballad, or writes or draws any indecent or obscene word, figure or representation, or uses any profane, indecent or obscene language, shall be guilty of an offence”.

17. For these reasons the court does not believe that the assessor fell into jurisdictional error in the manner claimed in Ground 1 of the Application.

18. Ground 2 of the Application is:

    “2.That the second respondent failed to deal with the full integers of the applicant’s claims under complementary protection.

    Particulars

    (a)That the second respondent failed to make a finding regarding the applicant’s claim to face significant harm from non-state actors, including vigilante groups cited by the 2010 US Department of State report on Human Rights practices seeking to enforce moral codes in Iran and as otherwise squarely raised by the applicant in the submissions raised on his behalf on 26 August 2012.”

19. The Federal Court has recently considered a claim of this nature and discussed the manner in which it should be treated; SZSGA v Minister for Immigration & Anor [2013] FCA 774 per Robertson J. His Honour considered such authorities as Htun v Minister for Immigration & Anor [2001] 194 ALR 244, Dranichnikov v Minister for Immigration & Anor [2003] 197 ALR 389 at [22 – 24, 27] and NABE v Minister for Immigration & Anor(No 2) [2004] FCR 1 at [58 – 61] and M61/2010E v The Commonwealth [2010] 243 CLR 319 at [90] before saying at [48 – 52]:

    “[48]In M61/2010E at [90] the Court said, with reference to Dranichnikov at [24] and [95] that failing to address one of the claimed bases for the plaintiff’s fear of persecution was a denial of procedural fairness.

    [49]NABE discussed, at [58], the proposition that the Tribunal was not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raised a case not articulated. The Court said that a claim not expressly advanced would attract the review obligation of the Tribunal when it was apparent on the face of the material before the Tribunal. Such claim will not depend for its exposure on constructive or creative activity by the Tribunal. At [59] the Court discounted as a general rule that the Tribunal could disregard a claim which arose clearly from the materials before it. The Court approved, at [60], the following statement by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 709; (2003) 199 ALR 364 at [18]:

    The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.

    The Court said that this did not mean that the Tribunal was only required to deal with claims expressly articulated by the applicant. It was not obliged to deal with claims which were not articulated and which did not clearly arise from the materials before it.

    [50]At [62], the Court cited with approval the statement by Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs[2003] HCA 71; (2003) 216 CLR 473 at [1]:

    “Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”

    The Court said at [63] that every case must be considered according to its own circumstances.

    [51]Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.

    [52]As I have said, in my opinion, the current claim was not apparent on the face of the material before the Tribunal or squarely or sufficiently raised by the material. The claim as now put is taken out of its original context both in the submission of the appellant’s representative and the relevant paragraph, [190], of the Tribunal’s decision.”

1. The applicant’s case is that the assessor did not deal with what he claims is the clearly articulated case found in a piece of country information referred to in the advisor’s submissions at [CB 137]:

   “The 2010 US Department of State report on Human Rights practices in Iran confirmed that vigilantes continued to attack young persons considered ‘un-Islamic’ in their dress or activities and according to press reports, morality police have stopped or detained more than two million individuals since 2007 for inappropriate or bad hijab.”

   In the applicant’s view this is a clear identification of a claim of danger from non-state actors that was not considered by the assessor.  Unfortunately, when looked at through the prism of the authorities clarity gives way to opacity. 

2. The first point raised by Ms Francois for the Minister, was that this claim had not been raised until 8.30a.m. on the morning of the hearing in the Further Amended Application. At paragraph 30(c) of the Applicant’s submissions dated 1 September 2013 he says:

   “30(c)That the Reviewer simply failed to deal with the claims to fear harm from non state actors – as squarely raised by the applicant.”

   No further particulars were provided.

   The court was then taken through the Court Book to see whether the matter had been raised.  At [CB 22] there is space for the applicant to say what he thought would happen to him if he returned to his country of nationality.  He says:

   “Exactly I am not sure but they will kill me.  The Government.  If the Government don’t kill me then my father will.”

3. And at [CB 28] there is another form copied which deals with the applicant’s fears.  He states:

   “In November 2011 I witnessed a police raid on a businessman’s shop because I was there on a marketing job at the time.  The Basij arrived with my father who was the local leader and I tried to stop them beating up this man, I swore at them and raged against the religion and the regime and no they know me and I am being hunted down.”

4. At [CB 31] in another box the applicant has said:

   “I have been summonsed acting against the national security of the country and spreading lies and creating suspicion in the public mind.”

5. The applicant gave a statement through his migration agent, part of which is found at [CB 54] where in response to the question “Who I think may harm/mistreat me in that country and why” he says:

   “56. I believe if I return to Iran, I would be at a real risk of facing serious harm by the powers in government/religious leaders (they are the same thing), including my father.  He has great influence and the ability to find out anything about anyone.

   57.I have never been a political person, or even wanted to vote or to join in rallies or protects, because I knew that the result would be inevitable, but I was always against the government in my mind since I grew up, because I do not believe they act for our people.”

6. In the delegate’s decision under the heading “Imputed Political Opinion” there is a paragraph relating to the incident with the shopkeeper but again there is no reference to persons other than the Basij.  There commences at [CB 109] a lengthy submission from the applicant’s migration agents.  At [CB 117] they say:

   “[117]Our client is a modern young Iranian and as such is also likely to come to the attention of authorities and be targeted on account of this.  The characteristics such as having a tattoo for example is not only permanent but is not considered acceptable with a strict dress code being imposed on people in Iran… The US State Department also reported during the year vigilantes continue to attack young persons considered un-Islamic in their dress or activities, invade private homes, abuse unmarried couples and disrupt concerts.  In May according to press reports authorities launched an intensified campaign to enforce the mandatory Hijab and issued a list of acceptable men’s hairstyles.”

   At [CB 121] the agents say on behalf of the applicant:

   “Mr Applicant is unable to seek the protection of authorities in Iran as the threat to him is from state agents.”

7. At [CB 139] the agents say:

   “The human rights abuses being committed by corrupt members of state agencies like the Basij were also referred to in the US Department of States 2009 Country Reports on Human Rights for Iran.  In this report it was stated:

   “The Basij and informal groups known as Anwar Hezbollah were aligned with extreme conservative members of the leadership enacted as vigilantes.  On October 4 the Government announced the merger of the Basij into the IRGC Ground Forces.”

8. I was also taken to the transcript where at [T39] the advisor says:

   “Mr Applicant is unable to seek the protection of the authorities in Iran as the threat to him is from state agents and then just touching on the complementary protection provisions we submit that he would be entitled to complementary protection.  We contend there are substantial grounds for believing that as an necessity and foreseeable consequence of being removed from Australia to Iran there is a real risk that he will suffer significant harm.  Specifically we submit that Mr Applicant would be tortured and/or subjected to cruel or inhuman treatment or punishment at the hands of the authorities in Iran.”

9. The court is of the view that it is clear from these extracts (and none were cited contrary to them) that the applicant’s case was not clearly articulated as being one of fear of vigilante groups.  It was clear that he feared the Basij.  Mr Bodisco for the applicant, argued that the Basij was a vigilante group but a reading of the court book and in particular the applicant’s own submissions, through his agent, reveals that at all times the Basij were being considered estate agents and not as anything separate.  I am satisfied that this is not one of those cases where the assessor has failed to consider an integer of the claim as understood in the authorities cited above and for that reason the second ground of application cannot be sustained. 

10. It follows from these findings that I am unable to offer the applicant the review he seeks.  The application is dismissed.  The applicant must pay the first respondent’s costs assessed in the sum of $6,646.00.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  23 September 2013