SZSON v Minister for Immigration
[2013] FCCA 1153
•23 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSON v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1153 |
| Catchwords: MIGRATION – Application to review decision of Independent Protection Assessor – whether the Assessor failed to consider an integer of the Applicant’s claims or applied the wrong test in relation to particular social group. |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 SZJRU v Minister for Immigration and Citizenship and Another (2009) 108 ALD 515; [2009] FCA 315 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 |
| Applicant: | SZSON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | G. TOWNEY, INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 241 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 23 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2013 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Johnson SC |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $9,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 241 of 2013
| SZSON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| G. TOWNEY, INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a recommendation of the Second Respondent, an Independent Protection Assessor (referred to for convenience as the Assessor), dated 13 August 2012.
The Applicant, a citizen of Iran, arrived in Australia in November 2011. He made a request for a Protection Obligations Evaluation (the POE) on the basis of claims made in an entry interview, a statutory declaration on 9 February 2012 and an interview with the POE officer.
On 14 March 2012 the POE officer concluded that she was not satisfied the Applicant was a person to whom Australia had protection obligations. The matter was referred for an Independent Protection Assessment (the IPA). Further information was provided in support of the Applicant’s claims, including submissions from his then advisor. The Applicant attended an interview with the Assessor. In evidence before the Court are records of the interviews conducted with the Applicant by the POE officer and the Assessor.
In her statement of reasons the Assessor set out the claims made by the Applicant at various times, both in writing and orally, and in his agent’s submission. She recorded that the Applicant claimed that he had a well-founded fear of persecution on the basis of his perceived opposition to the Iranian regime because he participated in three anti-regime activities: installing satellite dishes, encouraging customers to watch Western media, including BBC Persian and Voice of America and because he kicked a police officer. The Applicant claimed to be perceived as a political dissident in Iran and that this threatened his ability to subsist.
The Assessor summarised in some detail what occurred in the interview she conducted on 26 June 2012, including issues raised with the Applicant and submissions made on his behalf by his then solicitor and set out independent country information, including in relation to the illegality of satellite television in Iran.
The Assessor found that the Applicant had worked in a variety of specified jobs in Tehran including, most recently, as a satellite television installer. She found that satellite television was banned in Iran but that independent country information (with which the Applicant agreed) showed that a large number of people in Tehran had satellite television.
During his IPA interview the Applicant expressed political views he claimed he held in Iran, including in relation to what he described as a “secret sect” apparently connected to President Mamoud Ahmadinejad. However the Assessor had regard to the fact that he had not expressed such political views in his previous interviews with the Australian authorities, notwithstanding that he had the opportunity to do so and/or to explain the connection between his views and his departure from Iran. In these circumstances the Assessor did not accept that the Applicant’s views regarding his political opinions and beliefs as expressed in his IPA interview were genuine and/or that they were his genuine views at the time that he left Iran.
The Assessor considered the Applicant’s evidence that he had not attended Green Movement demonstrations in Iran, but found that if he had the strong political views he purported to have had, followed the Green Movement as he claimed, and was being politically active in installing satellite television and encouraging people to watch BBC Persian and Voice of America, “he would have participated in the biggest uprising in Iran since the establishment of the Islamic Republic in 1979”. The Assessor did not accept the Applicant’s explanations that he had not attended such demonstrations because he was too busy working and training for sport or that he could not risk being apprehended because he was the main breadwinner for his mother.
The Assessor considered, but did not accept, the Applicant’s claims that he had shared his political views with the persons for whom he was installing satellite television or that he had in an argument with a named client shortly before he travelled to Australia or that the authorities approached him or his family residence either before or after he left Iran. The Assessor found that if this had occurred and if it had such a significant impact on the Applicant’s travel as he now claimed, he would have referred to his political opinions and/or the purported argument with the client in his entry interview.
Nor did the Assessor accept that the Iranian security forces had specifically targeted the Applicant due to his political opinion and/or his encouraging clients to watch BBC Persian and/or Voice of America or that they approached him during his final installation of satellite television in order to catch him in the act. The Assessor reached this conclusion because she did “not accept [the Applicant’s claim] that he was known to the Iranian authorities as a political dissident, and/or his purported political opinions were known to the Iranian authorities, and/or the authorities were aware that he encouraged clients to watch BBC Persian and Voice of America, and/or instead of pursuing him at his own residence (the address of which was apparently known to the authorities) the authorities tried to catch him in ‘a criminal act’”.
The Assessor gave a number of reasons for these findings, including the Applicant’s failure to mention during his entry interview his political opinions, the authorities’ knowledge thereof or that he encouraged clients to watch BBC Persian and Voice of America, despite being questioned about his exit from Iran. The Assessor also had regard to country information about the modus operandi of the Iranian authorities and found that this did not equate with the Applicant’s claimed experience, in particular his claim that despite the fact that they knew of his address and had an interest in him, the authorities chose to attempt to apprehend him in the criminal act of installing a satellite dish. In addition, the Assessor had regard to the Applicant’s departure from Iran on his own passport some 10 days later, despite the fact that at least some of his details, including his residential address, were known to the authorities.
On the evidence before her the Assessor found there was not a real chance the Applicant would be approached or apprehended by the Iranian authorities for the reasons claimed. The Assessor found that the Applicant did not have a well-founded fear of serious harm or persecution in the foreseeable future based on being known to the authorities as a political dissident, having argued with a client about his political opinions, sharing his political views with his clients, encouraging people to watch BBC Persian or Voice of America, or his work as a satellite television installer.
The Assessor considered the Applicant’s claims that the authorities had come to the residence where he was installing a satellite dish and/or had approached him during his last installation and/or that he had kicked a member of the Iranian authorities. The Assessor acknowledged that there was evidence in support of such claims, including the Applicant’s consistent account of this event and his skills as a kickboxer, but also took into account his ability to leave Iran legally some 10 days after the claimed event despite the fact that he claimed that his family had been told he had to report to the police station the day after the alleged confrontation and he had not done so.
The Assessor found that the Applicant was not pursued or approached by members of the Iranian authorities during his last satellite television installation in Iran, that he did not have a physical confrontation with a member of the authorities or kick a member of the authorities and hence that there was no real chance he faced serious harm or persecution for those reasons.
The Assessor concluded that the Applicant did not have a well-founded fear of serious harm or persecution based on his being known as a satellite television installer and/or having been pursued by the authorities during an installation, and/or having a physical confrontation and/or having kicked a member of the Iranian authorities.
In relation to the Applicant’s claim that he had experienced serious harm and/or persecution in the past, being emotional and psychological hurt he felt when he discussed politics and/or religion with his clients, the Assessor noted that she had found that such discussions did not take place, but went on to find that even if they had, she would have found that the claimed emotional and psychological hurt did not constitute serious harm or persecution in the sense provided for in the Refugees Convention.
The Assessor then considered whether the Applicant had a well-founded fear of persecution on the basis of being a non-practicing Muslim, notwithstanding that he did not appear to have a subjective fear on this basis. She had regard to independent country information in relation to the situation for non-practicing Muslims in Iran and religious practice or the lack thereof in the general population and found on the evidence before the IPA that there was not a real chance the Applicant would attract adverse attention from the Iranian authorities due to being a non-practicing Muslim. Relevant to the claims made by the Applicant in submissions today, the Assessor noted that while there was country information which referred to the Iranian authorities pursuing people because they had converted from Islam to another religion, that was not relevant in the Applicant’s case.
In addition, the Assessor found that the Applicant did not have a well-founded fear of serious harm or persecution as a failed asylum seeker and/or a returnee from a Western country. In making such findings the Assessor had regard to independent country information suggesting that returnees with particular characteristics (such as being known to be politically active or being converts to Christianity) had been apprehended and held for varying periods on return, but found no support in the country information for the claim that failed asylum seekers or returnees generally were apprehended on return based on their status as failed asylum seekers or returnees from the West. The Assessor took into account her findings that the Applicant was not known to the authorities for his political views and/or for installing satellite television or encouraging other people towards political channels, that he had left Iran legally on his own passport and that he had previously safely exited and returned to Iran for the purposes of a trip to Turkey in 2011.
After referring to her findings that the Applicant “was not and is not of interest to the Iranian authorities due to his being a political dissident, or [for] his political opinion, or [for] his working on the installation of satellite television, or his purchasing and storing of equipment related to the installation of satellite television; or his allegedly advising clients to watch BBC Persian and/or Voice of America”, the Assessor reiterated that there was not a real chance the Applicant would come to the adverse attention of the authorities for any of these reasons if he were to return to Iran, or due to his status as a failed asylum seeker or returnee from a Western country. In these circumstances, the Assessor found it unnecessary to consider relocation.
The Assessor found that if the Applicant were to return to Iran he may or may not continue with the illegal work of satellite television installation, but that if he was to do so it would not be for a Convention reason. In addition, while the Assessor accepted that satellite television installation was illegal in Iran, she found that the Applicant would be subject to laws of general application prohibiting such work and that there was no evidence to suggest that such law was discriminatory in its terms, either in intent or on its face. Hence the Assessor found that if the Applicant was apprehended due to such employment, it would be under laws of general application and on the evidence before the IPA he would not be targeted or discriminated against in the application of this law and nor would it be selectively enforced. The Assessor was also of the view that the Applicant could, in any event, rely on his previous alternative employments or pursue his interests in martial arts to secure other employment options.
Finally, the Assessor considered the complementary protection criterion, which had been outlined earlier in the statement of reasons. The Assessor applied such provisions in relation to the findings of fact outlined above, noting that the receiving country to which the Applicant would be returned was Iran, that the Applicant was not and is not of interest to the Iranian authorities due to his being a political dissident, his political opinions, working on the installation of satellite television, his purchasing and storing equipment related to such installation, or for allegedly advising clients to watch BBC Persian and/or Voice of America and also that there was not a real chance he would come to the adverse attention of the authorities on return as a failed asylum seeker and/or returnee from the West. Based on these facts the Assessor was not satisfied on the evidence that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia there was a real risk he would suffer significant harm.
The Assessor concluded that the Applicant did not meet the criteria for a protection visa and recommended that he not be recognised as a person to whom Australia had protection obligations.
The Applicant sought review by application filed in this court on 11 February 2013. The application, prepared at a time when the Applicant had legal representation, contains two conventionally expressed and properly particularised grounds. However the Applicant is no longer legally represented and did not file written submissions.
Before considering these grounds it is convenient to consider the matters that the Applicant raised in oral submissions. I note generally that insofar as the Applicant sought to reiterate his claims about what he said had occurred in Iran and about his claimed fear of persecution, he seeks impermissible merits review.
The Applicant appeared to raise a claim that he had changed his beliefs and could choose his own religion in Australia. He explained from the bar table that his involvement in another religion occurred after he had been rejected by the Assessor.
There is nothing in the material before the Court to support any claim that the Applicant made any claim to the IPA about a change of religion in Australia. The Assessor was clearly aware of the possibility that converts to Christianity may have to be considered specifically as failed asylum seekers. No error is apparent in the observation that such a situation (and information referring to the Iranian authorities pursuing persons because they had converted) did not apply to the Applicant.
If what the Applicant said in submissions was intended to suggest more generally that the Assessor failed to consider his claims insofar as they were based on religion, such claim is not made out. The Assessor did not fall into error by failing to consider a claim that had not been made and did not arise on the material before the IPA. The Assessor recorded the Applicant’s claims that he had discussed his political opinions which included his then views about religion in Iran. She also considered, but rejected, the claim that he had suffered serious harm or persecution consisting of emotional and psychological hurt when he discussed politics and/or religion with his clients. In addition, the Assessor specifically considered whether the Applicant had a well-founded fear of persecution as a non-practising Muslim. In the absence of any other claim made to the Assessor based on religion, the issues that the Applicant raised in this respect do not establish any reviewable error.
The Applicant also appeared to claim that the Assessor was in error as she had failed to consider his political beliefs. First, the fact that the Assessor did not accept the Applicant’s claims in this respect does not mean that they were not considered. As set out above, the Assessor dealt with the Applicant’s claims regarding his claimed expression of political opinions and that he was perceived as a political dissident in various ways. Relevantly, the Assessor did not accept that the claims the Applicant made at the IPA interview about his political opinions were in fact genuine or that they were his genuine views at the time he left Iran. Such findings were open to the Assessor on the material before her for the reasons given as was the Assessor’s failure to accept that the Applicant had expressed his political beliefs in the ways in which he claimed. It is apparent that the Assessor considered, but rejected, any general claim based on political opinion as well as the specific ways in which the Applicant claimed to have expressed such opinion and to be perceived to have such an opinion.
Insofar as the Applicant may be seen as suggesting bias or apprehended bias, actual bias is not made out and there is nothing in the material before the court to support a claim of apprehended bias viewed from the perspective of the appropriately-informed reasonable lay observer (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [73]). The Applicant’s disagreement with the Assessor’s findings is not indicative of legal error in this or in any other respect.
In submissions in reply the Applicant repeated some of the claims he made to the Assessor about events in Iran. He reiterated that the Assessor did not consider his case as an expression of political opinion and that if he returned home his life may be in danger. As discussed, there is no substance in any contention that the Assessor failed to consider any integer of the Applicant’s claims. The Applicant’s disagreement with the Assessor’s rejection of his claims is not such as to establish reviewable error. As I endeavoured to explain to him, merits review is not available in this court.
Turning to the grounds in the application, the first ground is in essence that the Assessor (described as the reviewer) failed to consider an integer of the Applicant’s claims, being a claim that he had a well-founded fear of persecution on the basis that he was “a member of a particular social group, being satellite television installers in Iran”.
It was contended in the application that this claim was made explicitly and/or was squarely raised on the material before the Assessor and that while the Assessor found that the Applicant was a satellite television installer in Iran and that satellite television installation was illegal in Iran, in making her recommendation the Assessor failed to consider whether the social group to which the Applicant claimed to belong, being satellite television installers in Iran, constituted a particular social group for the purposes of the Refugee Convention and failed to consider the Applicant’s claim to have a well-founded fear of persecution on the basis of membership of such particular social group.
In other words, it appears to be contended that because the Assessor failed to deal expressly with the issue of whether installers of satellite television in Iran were a particular social group, she failed to consider an integer of the Applicant’s claim in that respect.
As submitted for the First Respondent, the short answer to this ground is that, assuming that such a claim was made or clearly emerged on the material before the IPA, the Assessor was not obliged to address expressly the issue of whether satellite television installers in Iran were a particular social group given that she in fact considered whether the Applicant had a well-founded fear of persecution by reason of being an installer of satellite television in Iran.
The discussion of this issue by McKerracher J in SZQMA v Minister for Immigration and Citizenship and Another (2012) 127 ALD 305; [2012] FCA 433 is in point. At [22] to [23] his Honour summarised the authorities in relation to the issue of whether a group or class to which an Applicant claims to belong is a particular social group for the purposes of the Refugees Convention. McKerracher J referred in particular to the steps to be taken by the decision-maker considered by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [26] and noted the emphasis placed by Gleeson CJ and Kirby and Gummow JJ in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 on the need for accurate identification of a particular social group.
However in SZQMA his Honour went on (at [24] – [26]) to consider decisions of the Federal Court in which it had been found that the decision-maker did not need to go through each of the steps set out in Dranichnikov. Thus, in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 Finkelstein J held it was not necessary to do so in circumstances where the basis of the claim in terms of the Refugees Convention had already been rejected. In SZJRU v Minister for Immigration and Citizenship and Another (2009) 108 ALD 515; [2009] FCA 315 such reasoning was applied in circumstances where the decision-maker, the Refugee Review Tribunal, had found that a claimed fear was in relation to the application of a law of general application. This was found to exclude it from the Refugees Convention no matter which Convention basis it rested upon (see also BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543).
McKerracher J also referred to the decision of Greenwood J in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] in which it had been held that unless the decision-maker made a jurisdictional error on the question of fact of whether the Applicant held “a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error [arose] by the mere failure to identify and consider the precise social group to which the applicant claims membership” (SZNOE at [78]).
Relevantly, in SZQMA McKerracher J acknowledged (at [36]) that in the decision in question the reviewer had not specifically identified or articulated the claim as one involving membership of a particular social group. The same may be said in this case. However, as his Honour went on to point out (at [36]): “[t]his, however, does not amount to jurisdictional error in circumstances where the underlying factual claims that gave rise to [the Applicant’s] claims were addressed and were the subject of specific findings made by the reviewer”.
Similarly in this case the underlying facts relied on by the Applicant in support of his claim that he had a well-founded fear of persecution as a satellite television installer in Iran were the subject of specific findings by the Assessor, both in relation to any fear based on the Applicant’s past activities in that respect and also in relation to any fear on the basis of any such future activities.
The Assessor expressly rejected the claim that the Applicant had a well-founded fear of harm based, inter alia, on his work as a satellite television installer. She did so after giving detailed consideration to this claim. The Assessor also rejected any claimed fear based on the Applicant being known as a satellite television installer. She found he “was not and is not” of interest to the Iranian authorities due to his working on the installation of satellite television or his purchasing and storing of equipment related to the installation of satellite television and that there was not a real chance he would come to the adverse attention of the authorities for any such reasons.
As discussed, the Assessor also found that if the Applicant was to engage in such activity in the future it would not be for a Convention reason, thus addressing the claim made by his advisor and by the Applicant that the installation of satellite dishes was a political activity. Importantly, in addition the Assessor found that if the Applicant was apprehended due to such activity it would be under a law of general application which made such work illegal and that there was no evidence to suggest that the Applicant would be targeted or discriminated against in the application of that law.
Given the detailed analysis and consideration of the Applicant’s specific claims, the Assessor was not obliged to also address the legal issue of whether installers of satellite television in Iran constituted a particular social group. As submitted for the First Respondent, such question was no more than academic given that the Assessor considered but was not satisfied that the Applicant had a well-founded fear of persecution by reason of being an installer of satellite television in Iran.
Such conclusion makes it unnecessary to determine whether in fact the Applicant made such a particular social group claim explicitly and/or whether such a claim was squarely raised on the material before the Assessor. There may be some doubt in that respect, given the manner in which the Applicant articulated his claims before the Assessor compared to in his entry interview, but I have proceeded on the basis that such claim was made. Nonetheless the Assessor did not fall into error in the manner contended for in ground one in the application.
The Assessor considered the integer of the Applicant’s claims that he had a well-founded fear of persecution as a satellite television installer in Iran. Hence she did not fall into error in failing to consider expressly whether satellite television installers in Iran constituted a particular social group for the purposes of the Refugees Convention.
As suggested for the First Respondent, it may be that one could categorise the approach of the Assessor by reference to the principle that it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]). The Assessor did not fail to consider an integer of the Applicant’s claims. Given her findings concerning the claims made by the Applicant, in particular that he did not face a real chance of persecution on the basis of being a satellite television installer in Iran or for any of the associated reasons, it was unnecessary for her to make an additional separate finding as to whether the social group now contended for constituted a particular social group for the purposes of the Refugee Convention claims.
These findings also lead to the conclusion that ground two is not made out.
Ground two in the application is that the Assessor applied the wrong test for determining whether the social group to which the Applicant claimed to belong, being satellite television installers in Iran, constituted a particular social group for the purposes of the Refugees Convention. In essence it was contended that the Assessor erred in not adverting to the correct test, as set out in Dranichnikov, as to whether a class or group is a particular social group for the purposes of the Refugees Convention and that this amounted to a failure to apply the correct test.
However, as set out above, having regard to her findings, the Assessor did not have to advert to the test in Dranichnikov. The Assessor considered whether the Applicant had a well-founded fear of persecution as a satellite television installer. The Assessor’s failure to advert to the test as discussed in Dranichnikov (and also see SZQMC v Minister for Immigration and Citizenship and Another (2012) 125 ALD 230; [2012] FCA 128) is not such as to establish application of the wrong test or other error in the manner contended for in ground two of the application.
As none of the grounds relied on by the Applicant has been established, the application should be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs. The Applicant claimed that he was not aware that there may be costs when he discussed his legal proceedings with the Red Cross and that he had no means to pay the amount sought by the Minister.
The Applicant was represented at the time of the initial directions. His assertion that there was some failure by those associated with him to draw the possibility of an adverse costs order to his attention is not such as to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. The Applicant’s lack of funds may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
As to the amount sought, I bear in mind that these proceedings involved a recommendation of an Independent Protection Assessor and the additional complexity of such matters, the fact that the Applicant’s claim was originally pleaded with professional assistance and that the solicitors for the First Respondent saw it as appropriate to brief senior counsel to put before the court all relevant legal arguments. I also bear in mind that any apparent complexity in the grounds relied on has to be seen in light of the fact that the Applicant did not file pre-hearing written submissions and became self-represented at a time prior to the hearing. In other cases of a similar nature it would be usual for costs to be awarded in a lesser amount than sought in this case, albeit in an amount greater than that provided for in the Federal Circuit Court Rules. On balance, doing the best that I can on the material before me, in all the circumstances an appropriate and reasonable amount for costs is the sum of $9,000.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 20 August 2013
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