SZSVT v Minister for Immigration & Anor

[2014] FCCA 768

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSVT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 768

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – meaning of significant harm – whether Tribunal failed to consider an integer of the Applicant’s complementary protection claims – whether necessary for Tribunal to consider whether discrimination on the grounds of race was in the circumstances inherently degrading.

Legislation:  
Migration Act 1958 (Cth)
Acts Interpretation Act 1901 (Cth)

CIC Insurance Ltd v Bankstown Football Club Limited (1997) 187 CLR 384; (1997) 141 ALR 618; (1997) 71 ALJR 312
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
East African Asians v United Kingdom (1981) 3 EHRR 76
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Maloney v The Queen [2013] HCA 28
Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; [2010] FCAFC 108
NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Newcastle City Council v GIO General Limited (1997) 191 CLR 85; [1997] HCA 53
Plaintiff M70/2011 v Minister for Immigration Citizenship & Ors (2011) 244 CLR 144; [2011] HCA 32
Polites v Commonwealth (1945) 70 CLR 60; [1945] HCA 3
Pretty v United Kingdom (2002) 35 EHRR 1
The Republic of Ireland v The United Kingdom (1979) 2 EHRR 25

Applicant: SZSVT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFGUEE REVIEW TRIBUNAL

File Number: SYG 1036 of 2013

Judgment of: Judge Barnes

Hearing date: 21 November 2013

Delivered at: Sydney

Delivered on: 17 April 2014

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1036 of 2013

SZSVT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 21 February 2013 affirming a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, who claimed to be a stateless Faili Kurd from Iran, arrived at Christmas Island on 7 May 2012.  He participated in an irregular maritime arrival entry interview on 19 June 2012.  In a written record of the interview the following is recorded under the heading “Why did you leave your country of nationality (country of residence)?”:

   Q:  Why did you leave Iran?  Because of no documents no identification cards the difficulty of being Kurdi Faili the pressure.  Didn’t have the right for work or obtain qualification.

   Q:  What specifically happened to you?  One I couldn’t go to school, didn’t have any documents, couldn’t have any official job, didn’t have any documents, couldn’t insure myself.  Couldn’t work, if I get a job I will get in trouble by the Baseej (sic).  When I came to find a job with an Iranian for example I will get one tenth pay for example.  The employer will underpay us and didn’t have the right to complain.

   Q:  Specifically, what happened to make you decide to leave Iran?  The reasons are for the oppression the reasons I pointed out, I met someone who said I can help you get out.  It’s not one reason it’s ongoing oppression.  This is the reason, at one stage the Baeej (sic) broke my shoulder.  The existence of race, even here there is discrimination, they make fun.

   Q:  Why did they break your shoulder?  Because of what I was wearing, traditional Kurdish pants.  Also for dressing shorts, fashion.

   Q:  What date did this occur?  Five years ago.

   Q:  Where were you?  Elam.

   Q:  What specifically did they do to you?  They saw me in the street, they captured me, one of the officers knew that I am a Kurdish person, knew me.  He said to the rest of the officers that I am Kurdi Faili, the Baseej (sic) are very sensitive with the Kurdi Fali.  The Baseej are the people who lost their fathers they hate the Kurdi and think that they are the ones who killed their fathers.

   Q:  How long were you detained for?  First when they found I am Kurdi Faili they shaved a line in my head from the front to the back.  Then they start beating me with stones, with kicks.  They pushed me towards the door, my shoulder hit the door and that’s when I lost consciousness because of the pain.

   Q:  In total how long were you detained for?  I lost consciousness because they hurt me badly they just left me on the street.  When I came to consciousness I felt like my body was not mine there were bruises all over my body.

   Q:  Any other reasons?  No, that’s all.  The most reason was because not having any identification documents.  All these problems from not having any identification.

3. After the First Respondent exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the Act) the Applicant applied for a protection visa on 26 August 2012.

4. The Applicant was interviewed by a delegate of the First Respondent.  He provided a statutory declaration in support of his claims dated 26 August 2012.  His advisor provided written submissions.

5. The application for a protection visa was refused on 31 October 2012.  The Applicant sought review by the Tribunal.  His advisor provided a further written submission.  The Applicant attended a Tribunal hearing.  The Tribunal subsequently put certain information to him for comment under s.424A of the Act.  He provided a response.

Tribunal Decision

1. In its reasons for decision of 21 February 2013 the Tribunal set out in detail the claims made by the Applicant at various times.  Those claims included the claim that the Applicant feared harm as a stateless Faili Kurd without citizenship or identity papers.  He claimed that as a stateless Faili Kurd he was subjected to discrimination and harassment in Iran, that he had no legal right to work, had restricted freedom of movement, no access to health care and that he was not able to purchase property.  He claimed Faili Kurds were targeted by the Iranian authorities for ill treatment.  He claimed that he had been detained and assaulted by the Basij, a paramilitary group, on two occasions on one of which the Basij broke his shoulder.

2. The Tribunal recorded that the Applicant also claimed to fear harm because of an affair he had had with the wife of Basij officer.  He claimed that the woman’s husband had become aware of the affair and would seek revenge and that he feared he would be stoned to death for his adultery.  He also made claims in respect of his return to Iran as a failed asylum seeker from the West.

3. In its findings and reasons the Tribunal found that the country of reference was Iran where the Applicant had lived since his birth, although he claimed to be stateless. 

4. The Tribunal stated that it had serious concerns about the Applicant’s credibility, in particular about his central claim that he was at risk of harm from the Basij and the authorities generally because of an adulterous affair with the wife of a member of the Basij.  It also expressed concern about the credibility of his account of threats against his life of which he claimed he became aware after his interview with the delegate.

5. Under the heading “Persecution on the Basis of Ethnicity as a Faili Kurd” the Tribunal referred to the submissions by the Applicant and his advisor that the Applicant, because of his status as a Faili Kurd and in particular, as an unregistered Faili Kurd, faced significant hardship because of the discrimination against him in Iran and that he could not obtain legal employment, access proper health care or purchase property.

6. The Tribunal referred to the Applicant’s evidence about his experiences in Iran and to country information.  It found that while such information indicated that there was discrimination against the Faili Kurds in Iran in their employment, housing and education for reason of their religion and culture, those targeted for serious harm or persecution were activists such as human rights defenders and media workers.

7. The Tribunal accepted that the Applicant was a Faili Kurd and gave him the benefit of the doubt in finding that he was an unregistered refugee and stateless.  It accepted that his life in Iran had been harsh as an unregistered Faili Kurd and that he had experienced denial of access to basic services and at least official denial of his capacity to earn a livelihood.  However in the Applicant’s case the Tribunal did not find that such hardship or denial threatened his capacity to subsist.  It had regard to the fact that he had in fact found informal employment as a shepherd (as had his family members) and to the fact that he and his family were able to save sufficient money to fund his travel to Australia.  The Tribunal found that the discrimination experienced by the Applicant because of his ethnicity as a Faili Kurd, specifically his statelessness and lack of access to education and other social benefits, was not sufficient in his case to amount to persecution in a Convention sense.

8. The Tribunal addressed the submission that the Applicant was fearful of the Basij and other government authorities who were said to continually target and harass him on account of his ethnicity and lack of nationality and that he had suffered harm as a result.  The Tribunal accepted that the Applicant had been targeted on two occasions some seven or eight years earlier, that on one of those occasions he was assaulted and kicked and his wages were taken by the Basij and on the other occasion he was picked out randomly by the Basij as a wearer of Western clothes (jeans), badly beaten and had his shoulder broken.  However the Tribunal found that the Applicant had not otherwise been detained by the Basij or any other Iranian authorities.

9. The Tribunal accepted that the Applicant had been seriously harmed in the past by the Basij and that the reason for such harm was essentially his ethnicity as a Faili Kurd.  However it was of the view that the Basij had intervened on a random, apparently unpremeditated basis in circumstances where there was no plausible reason to detain the Applicant, either before or after having administered a severe beating, and that the Applicant was not suspected of any political activity or association.

10. While the Tribunal accepted that the Applicant was not able to move freely around Iran and was confined to a particular area, it observed that he had given no indication that he recognised this as a deprivation and found, in any event, that it did not accept that such a restriction on movement was sufficiently serious to constitute persecution in a Convention sense.  Nor did the Tribunal accept that there was anything in the Applicant’s evidence to indicate that he and his family were not able to uphold traditional Kurdish Faili beliefs and customs given his evidence about his family circumstances and the fact he was a Shi’a in Shi’a dominated Iran (unlike the majority of Faili Kurds who were Sunni).

11. In the absence of relevant supporting evidence the Tribunal did not accept the claim that the Applicant had been heavily traumatised by his experiences of discrimination and persecution.  It found that even if the Applicant was suffering from stress and anxiety, in the absence of evidence to the contrary, it would seem likely that any such stress was the result of his means of travel to Australia and subsequent detention, rather than a pre-existing psychological condition.  The Tribunal observed that the Applicant had not indicated in his evidence that he felt like “an outsider” in Iran as his advisor had submitted, although he was undoubtedly aware of his Faili Kurdish ethnicity and culture.  The Tribunal found that the Applicant appeared to have lived all his life in a Kurdish area in Iran in which it seemed unlikely he would have considered himself “an outsider”.  Although the Tribunal accepted that the Applicant was discriminated against in education, health care and other areas, it had regard to the fact that he had been unable to give an account of more than two incidents in which he was seriously harmed in Iran.

12. Thus, while the Tribunal accepted that the Applicant had been seriously harmed in the past by the Basij on two occasions for reasons of his ethnicity as a Faili Kurd, it had regard to the absence of any other serious harm for reason of his ethnicity or otherwise, to the considerable time that had passed since those events occurred and to the fact they were the result of random encounters with the Basij rather than systematic action or targeting.  On the evidence before it, the Tribunal was not satisfied there was a real chance the Applicant would be persecuted by the Basij or any other group or by the Iranian authorities for reason of his ethnicity if he returned to Iran in the foreseeable future.

13. The Tribunal also rejected the Applicant’s claim to fear persecution on the basis of his affair with a married woman whose husband was a member of the Basij.  The Tribunal had regard to the fact that the Applicant had not mentioned the affair in his departmental interview in June 2012 as would have been expected if this was the immediate cause of his departure from Iran and if he was as fearful of the woman’s husband and family as he claimed.  Having regard to the fact that the Applicant’s account of the affair itself, its end and its consequences lacked credibility, the Tribunal did not accept his reasons for not raising this matter until his protection visa application.  The Tribunal rejected the Applicant’s claim to have engaged in an adulterous affair which resulted in a fear of serious harm from the woman’s family, the Basij and the Iranian authorities.  It was not satisfied there was a real chance the Applicant would be persecuted in Iran for conducting an adulterous affair and contravening religious law.

14. Finally, the Tribunal also rejected the Applicant’s claim, made through his adviser, to fear persecution because he fled Iran illegally and had claimed asylum in a western country.  It observed that if the Applicant was an unregistered refugee as claimed, then according to country information he would be unable to return to Iran but that if he found an “irregular channel” by which to return he would not be subject to questioning by the authorities as they would be unaware he had left the country.  The Tribunal also had regard to the possibility that the Applicant would be able to return to Iran legally.  It accepted that in such a case he may well be subject to questioning on his return and monitoring by the authorities, but found in light of country information and the absence of any evidence that the Applicant had a political profile in Iran or had engaged in activities which could bring him to the adverse attention of the Iranian authorities, that it would appear that he would not be persecuted or prosecuted by the Iranian authorities.  The Tribunal was not satisfied that the Applicant would suffer persecution in Iran as a failed asylum seeker.

15. Based on these findings the Tribunal was not satisfied there was a real chance the Applicant would be persecuted in the Convention sense if he returned to Iran in the foreseeable future.  It was not satisfied he had a well-founded fear of persecution within the meaning of the Refugees Convention.

16. The Tribunal then considered the complementary protection criterion.  It found as follows:

    The Tribunal has accepted that the applicant has experienced discrimination in the past for reason of his ethnicity as a Faili Kurd.  It has also accepted that he has suffered harm amounting to persecution in the past at the hands of the Basij, for reason of his ethnicity, but it was not satisfied that there was a real chance that the applicant would be persecuted by the Basij if he were returned to Iran as the receiving country under the terms of the Complementary Protection legislation.  Having taken into account the explanation of “real risk” as given in the Explanatory Memorandum [to the Migration Amendment (Complementary Protection) Bill 2011 at [67]] the Tribunal is satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer discrimination if he returns to Iran.  It is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm at the hands of the Basij if he returns to Iran.

    The issue before the Tribunal is whether the discrimination the applicant may experience if he were to return to Iran amounts to “significant harm” within the meaning of the Complimentary Protection legislation.

17. The Tribunal referred to the exhaustive definition of the types of harm amounting to “significant harm” within s.36(2A) of the Act (see s.5(1) of the Act).  It was not satisfied the Applicant would be arbitrarily deprived of his life, that the death penalty would be carried out on him or that he would be subject to torture.  It went on to consider whether the discrimination he was likely to experience amounted to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” within the statutory definitions.  It referred to the fact that “cruel or inhuman treatment or punishment” for the purposes of s.36(2A) of the Act was exhaustively defined in s.5(1) of the Act.

18. The Tribunal continued:

    The applicant, along with other unregistered Faili Kurds in Iran, has experienced discrimination in that he was unable to access education, although he became literate through his own exertions, was unable to own property, and unable to gain official employment, although he worked mainly at the traditional occupation of those in his community, tending flocks and herds.  He clearly made a reasonable living at this occupation by Iranian standards, since he gave evidence that he was able to raise $5000 from his savings to partly finance his trip to Australia.  The applicant was also unable to access hospital care, which resulted in a badly treated injury to his shoulder, although it was treated by traditional methods.  The applicant was also unable in general to access the rights available to Iranian citizens, including the right to a passport and identification documents.  He has given evidence that he felt this lack of documentation keenly.

    Having considered the country information regarding the discrimination to which Faili Kurds in Iran are subjected, and having considered the applicant’s own circumstances, the Tribunal is not satisfied that the discrimination experienced by the applicant in Iran, and which there is a real risk he might experience if he returns, amounts to cruel or inhuman treatment or punishment within the meaning of the legislation.

19. The Tribunal then considered whether it was satisfied there was a real risk the Applicant would suffer degrading treatment or punishment constituting significant harm.  It is this part of the Tribunal decision with which the Applicant takes issue.  The Tribunal stated:

    The final type of significant harm listed in s 36(2A) is degrading treatment or punishment:  s 36(2A)(e).  Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

    The Tribunal accepts that the applicant has been caused humiliation in the past because of the discrimination exercised against him in Iran.  It does not accept that the discrimination has caused the applicant “extreme humiliation”.  He has not given evidence to this effect, and the evidence before the Tribunal, including the country information, does not indicate that his treatment in the past, or his possible treatment in the future amounts to extreme humiliation within the meaning of the Complementary Protection legislation.

1. The Tribunal therefore concluded that it was not satisfied on the evidence before it that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Iran there was a real risk he would suffer significant harm as defined in the Act.  The Tribunal affirmed the decision not to grant the Applicant a protection visa.

These Proceedings

1. The Applicant sought review by application filed in this Court on 14 May 2013.  The three grounds in the original application were addressed in written submissions.  In written submissions in reply the Applicant indicated that he would seek leave to rely on an Amended Application varying the first ground, but that otherwise the amendments did not affect his submissions.  At the hearing Counsel for the Applicant advised that proposed ground two was not pressed.  In oral submissions both parties addressed the ground set out below (which was ground one) and ground three (which was that the Tribunal misconstrued and misapplied the definition of degrading treatment or punishment in s.5(1) of the Act “in failing to treat discrimination on the grounds of race as of itself amounting to degrading treatment”).  That ground directly raised the issue of whether all racial discrimination in itself constituted degrading treatment and much of what was said in submissions, including about the application of international law related to this issue.  However the Applicant then conceded that not all racial discrimination was in itself degrading and in submissions in reply Counsel for the Applicant stated that ground three was not pressed.

2. The Applicant now relies on an Amended Application filed on 25 November 2013.  There is now only one ground relied on in the Amended Application.  It is as follows:

   The second respondent (the Tribunal) constructively failed to exercise its jurisdiction in that it did not consider an integer of the applicant’s claims for complementary protection, namely that the (any) discrimination on the grounds of race experienced by the applicant of itself amounted to “degrading treatment or punishment” as defined in s 5(1) Migration Act because this discrimination was on the basis of race is and therefore, and in the circumstances, inherently degrading.  This is to be distinguished from the differential treatment actually metered out to Faili Kurds and to the applicant considered in isolation from its racial basis to which the Tribunal limited its review.

3. Counsel for the Applicant submitted that the ground now relied on raised the question of whether, in assessing complementary protection, the Tribunal should have considered and did consider whether the differential treatment of the Applicant as a Faili Kurd was, in the circumstances, inherently degrading because it was on the basis of race.  It was explained that the ground as ultimately relied upon sought to make it clear that the asserted integer of the Applicant’s claims for complementary was not expressed as a principle, but rather as a claim for complementary protection on the basis that the discrimination on the grounds of race experienced by the Applicant of itself amounted to degrading treatment or punishment as defined in the Act because this treatment was on the basis of race and therefore, in the circumstances, inherently degrading.

4. The Applicant submitted that the initial issue for the Court was whether the definition of degrading treatment in s.5(1) of the Act admitted the proposition that in certain circumstances the racial basis of differential treatment might render certain treatment degrading when the same treatment on some other ground would raise no such question. 

5. The definition of “degrading treatment or punishment” in s.5(1) of the Act is as follows:

   An act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a), that is not inconsistent with Article 7 of the covenant; or

   (b), that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the articles of the covenant.

6. The “covenant” means the International Covenant on Civil and Political Rights (ICCPR) (see s.5(1) of the Act). 

7. The Applicant submitted that the double negative in the definition of “degrading treatment or punishment” made the reading of that provision difficult, ambiguous and obscure, such to engage both s.15AB of the Acts Interpretation Act 1903 (Cth) and the common law to allow the Court to have recourse to the Explanatory Memorandum to the Act which introduced this provision to discover its meaning (see CIC Insurance Ltd v. Bankstown Football Club Limited (1997) 187 CLR 384; (1997) 141 ALR 618; (1997) 71 ALJR 312at 408 and Newcastle City Council v. GIO General Limited (1996-1997) 191 CLR 85; [1997] HCA 53 at 112 per McHugh J). In particular it was submitted that recourse could be had to the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 in relation to the extent to which the Migration Act had adopted Article 7 of the ICCPR in relation to the concept of “degrading treatment”.  Paragraphs [22] - [23] of the Explanatory Memorandum are as follows:

   22.  … degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.  However, it does not include an act or omission that is not inconsistent with Article 7 of the Covenant.  It also does not include an act or omission that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 

   23.  The term “degrading treatment or punishment” covers acts or omissions which, when carried out, would violate Article 7 of the Covenant.  It is not intended to include those acts or omissions that would form part of a lawful sanction that is carried out in accordance with accepted international human rights standards set out in the Covenant.

8. It was submitted that while the Full Court of the Federal Court in Minister for Immigration and Citizenship v. MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 at [18] had held that the criteria and obligations in the complementary protection regime in s.36(2)(aa) of the Act were not defined by reference to a relevant international law, the Explanatory Memorandum made it quite clear that the criteria and obligations in relation to the concept of “degrading treatment or punishment” were defined by specific reference to an Article in the ICCPR.

9. The Applicant referred to the remarks of Kiefel J in Plaintiff M70/2011 v Minister for Immigration Citizenship and Another (2011) 244 CLR 144; [2011] HCA 32 at [247] (and see SZGIZ v Minister for Immigration and Citizenship (2013) FCAFC 71 at [59]) per Allsop CJ). Keifel J in Plaintiff M70/2001 stated at [247]:

   …A statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law…  However, if it is not possible to construe a statute conformably with international law rules, the provisions of the statute must be enforced even if they amount to a contravention of accepted principles of international law. Such a position is not reached after construing s 198A(3)(a).

   (see Polites v Commonwealth (1945) 70 CLR 60; [1945] HCA 3 at 68-69 per Latham CJ, at 77 per Dixon J and at 81 per Williams J).

10. On this basis it was contended that the authorities established that Article 7 of the ICCPR was to be applied in the context of the s.5(1) definition of “degrading treatment and punishment”.  Article 7 of the ICCPR provides that:

    No-one shall be subjected to torture or the cruel, inhuman or degrading treatment or punishment.  In particular, no-one shall be subjected without his free consent to medical or scientific experimentation.

11. Counsel for the Applicant acknowledged that the ICCPR did not contain any definition of the concepts covered by Article 7 and that the Office of the High Commissioner for Human Rights had indicated in General Comment Number 20, adopted on 10 March 1992, that the Human Rights Committee did not consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between different kinds of punishment or treatment.  However it was submitted that it was relevant to have regard to jurisprudence in relation to Article 3 of the European Convention on Human Rights 1950 (ECHR) which is in similar terms to Article 7 of the ICCPR in that it provides:

    No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

12. It was submitted that the European jurisprudence in relation to Article 3 of the ECHR which existed at the time of the Act introducing the complementary protection regime formed part of the context of that amendment and was assumed to be within the intention of the parliament, consistent with what was stated by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd at 408 as follows:

    The modern approach to statutory interpretation, (a), insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise;  and (b), uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.

13. On this basis the Applicant submitted that the reference in the s. 5(1) definition to Article 7 of the ICCPR and the similarity in language between the provisions of the ICCPR and the ECHR made relevant in a consideration of the meaning of “degrading treatment” the jurisprudence of the International Court of Justice, the European Court of Human Rights and the European Commission of Human Rights in relation to the ICCPR and the ECHR.

14. In particular, it was submitted that the identity between the Australian legislation and Article 3 of the ECHR was apparent from the decision of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 in which the court considered the type of treatment falling within the scope of Article 3 of the ECHR. Relevantly, the court stated (at [52]) in relation to the concept of “degrading treatment”:

    Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anxious or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading.

15. Counsel for the Applicant submitted that the concept of “extreme humiliation” in the s.5(1) definition of degrading treatment or punishment was the same qualification of severity required by the European Court of Human Rights in relation to Article 3 (also see The Republic of Ireland v The United Kingdom (1979) 2 EHRR 25 at [162]). It was submitted that both the definition of degrading treatment or punishment in s.5(1) of the Act and the international jurisprudence was concerned with humiliating treatment.

16. Counsel for the Applicant suggested that there was no precedent in Australian law to assist in relation to whether it should be accepted as a legal principle that the racial nature of differential treatment could render that treatment degrading.  However the Applicant pointed out that in East African Asians v United Kingdom (1981) 3 EHRR 76 the (former) European Commission on Human Rights had concluded that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the ECHR. The Commission stated at [207] that:

    …the Commission recalls in this connection that, as generally recognised, a special importance should be attached to discrimination based on race;  that publicity (sic) to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity;  and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground could raise no such question.

17. In oral submissions Counsel for the Applicant acknowledged that it was not every kind of differential treatment on the basis of race that would render such treatment degrading and that, for example, positive discrimination in favour of a disadvantaged race on the basis of race would not raise such an issue.  It was also acknowledged that not all racial discrimination claims necessarily included the integer or claim that race of itself rendered the differential treatment as degrading.  It was not submitted that such an integer was implicit in all claims of racial discrimination.  Rather, it was submitted that if it was accepted as a legal principle that the racial nature of differential treatment could render that treatment degrading in certain circumstances, then it was necessary to consider whether the Applicant made a claim which engaged this principle and the Tribunal’s review obligations in that respect.

18. The Applicant submitted that there was a distinction between the differential treatment meted out to Faili Kurds (which it was conceded had been considered by the Tribunal) and the basis for such different treatment, that is, the race or ethnicity of the Applicant.  This distinction was said to be akin to the distinction between having to sit at the back of the bus or at the left side of the food counter on the one hand, and having to sit at the back or on the left because you are of a particular race or the distinction between having to live in a particular area and having to live there because you are of a particular race or the distinction between not being allowed to swim in a public pool at certain times and not being allowed to do so because you are of a particular race.

19. It was contended that there was some articulation or expression in the material before the Tribunal of a claim of differential treatment of Faili Kurds on the basis of race such that the Applicant’s claims included as an integer the claim that race of itself rendered the differential treatment of Faili Kurds degrading.  It was submitted that the Tribunal failed to consider this integer of the Applicant’s claims in the context of determining whether there was differential treatment amounting to degrading treatment within the s.5(1) definition.

20. Reliance was placed on the fact that in the Applicant’s entry interview, in response to the question of what happened to make him decide to leave Iran, the Applicant was recorded as responding, among other things: “It’s not one reason it’s ongoing oppression  … the existence of race, even here there is discrimination, they make fun”.  It was submitted that in making this claim the Applicant had isolated the racial basis of the discrimination.  He was said to have referred to humiliation as a separate factor in the reference to “they make fun”.  It was acknowledged that the Applicant also made specific claims of discrimination against him as a Faili Kurd in areas of employment, education and also generally based on his statelessness that were addressed by the Tribunal and that the Applicant had not clearly articulated an express claim as a claim that his differential treatment on the basis of his race as a Faili Kurd was, in the circumstances, inherently degrading.  However it was contended that the case put by the Applicant “squarely” raised this integer of the Applicant’s claims in the sense considered by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263.

21. In NABE (No.2) the Court considered the circumstances in which a Tribunal would be obliged to consider a claim not expressly advanced.  In that context the Court referred to authorities that suggested that an unarticulated claim must be raised “squarely” on the material available before the Tribunal before it had a statutory duty to consider it and continued at [58]:

    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.

22. The Applicant submitted that it was apparent on the face of what he said at the entry interview that a claim of differential treatment experienced because he was a Faili Kurd was raised “squarely” in the sense considered in NABE (No. 2).  It was acknowledged that after the entry interview there was no subsequent explicit identification of race as a factor to be dealt with independently in the manner in which the Applicant presented his claims.  However this element was said to be implicit in the subsequent claims having regard to what was said at the entry interview at the time, the Applicant suggested that the visa application and review process, which focused on analysis for the purposes of the Refugees Convention, had, in effect, meant that this integer of the claim was “lost” in the subsequent assessments, including in the way that the Applicant’s case was put by his own advisor.  However it was contended that even without an express enunciation of such claims, because of the nature of the claim of racial discrimination and what was said at the entry interview the Tribunal should have been alert to that claim and should have considered it.

23. The Applicant acknowledged that the Tribunal had accepted that the differential treatment meted out to Faili Kurds amounted to discrimination that was less favourable treatment, but submitted that it also had to consider whether the ground of the discrimination, that is race, was itself inherently degrading such as to attract complementary protection.  The Applicant submitted that as the Tribunal did not consider race as a separate factor it had constructively failed to exercise its jurisdiction in that it did not consider this integer of his claims for complementary protection. 

24. It was pointed out that the Tribunal had not recited what was said at the entry interview in its decision and submitted that the Court could be satisfied that it did not consider race as a separate factor in the context of considering the concept of degrading treatment.  There was said to be nothing in the Tribunal’s reasons to indicate that it considered whether the racial basis for the differential treatment was inherently degrading and that the Tribunal reasons considered as a whole made it clear that the Tribunal drew a distinction between the experience of discrimination itself and the cause or reason for such treatment.  Thus it was submitted that while the Tribunal made findings in respect of the treatment experienced by Faili Kurds, considered apart from the racial basis for such treatment, there was no separate finding by the Tribunal on whether, in the circumstances of the case, race could render the differential treatment experienced by the Applicant degrading.  It was submitted that the Tribunal’s consideration of the level of severity of the differential treatment required by the application of the term “extreme humiliation” did not mean that it had considered race separately and that to attempt to read into the Tribunal’s reasons such a consideration was to embark on the impermissible “exercise in divination” spoken of by Kenny J in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [55].

25. The Applicant acknowledged that the Tribunal’s treatment of the  adviser’s submission that the Applicant’s treatment as an outsider in Iran had had a psychological impact on him and that he was heavily traumatised by his experience of discrimination and persecution in Iran seemed to incline to the racial basis of the differential treatment, but submitted that ultimately the Tribunal did not specifically address the racial basis of the differential treatment, instead addressing a more general and undefinable existential concern.  It was submitted that it could not be said on a fair reading of the Tribunal decision that the claim that race could render differential treatment degrading was subsumed in the Tribunal’s findings on extreme humiliation.

1. The First Respondent submitted that, based on the ultimate ground of review, the question to be addressed by the Court was whether in the particular circumstances of the Applicant’s case the racial aspect of the discrimination had to be and was considered by the Tribunal in assessing whether the Applicant had been the victim of degrading treatment or punishment.

2. However it was submitted that the suggested integer of the Applicant’s claims was not a claim that was made expressly and nor did it arise squarely on the material before the Tribunal.  It was submitted that on this basis alone, as the claim was not raised, the ground relied on by the Applicant failed on its facts and that the Tribunal was under no obligation to consider the asserted claim.

3. In addition, the First Respondent addressed the relevance of international law, international authorities and the use of extrinsic materials, primarily in relation to former ground three in the original application (as well as ground one as originally pleaded). 

4. It was contended that while the test for complementary protection in one sense reflected international law, it was unnecessary for the Court to analyse the application of international treaties by international judicial and quasi-judicial bodies or to determine whether racial discrimination could of itself constitute “degrading treatment or punishment”. It was acknowledged that such jurisprudence could be helpful to the extent, if any, it assisted in construing and informing the text of the relevant provisions of the Act.

5. However it was pointed out that in in MZYYL at [18] – [20] the Full Court of the Federal Court had pointed out that the complementary protection regime in the Act was a code in the sense that the relevant criteria or obligations were defined in it and it contained its own definitions and that such criteria or obligations were not defined by reference to a relevant international law. The Court had also observed that, unlike s.36(2)(a) of the Act (in relation to which the criterion was defined directly by reference to international law, being the Refugees Convention) the complementary protection regime contained its own definitions and tests that differed from those referred to in cited international law treaties and commentaries, albeit that such tests reflected international law.

6. The First Respondent acknowledged that the exclusion in the s.5(1) definition of “degrading treatment or punishment” directly incorporated a test under international law, in that the Tribunal would have to consider whether, even if there was extreme humiliation which was unreasonable, that was inconsistent with Article 7 of the ICCPR or arose from some lawful sanction that was not inconsistent with ICCPR.  However it was pointed out that such limitations did not arise in this case and submitted that the direct application of the ICCPR was not otherwise in issue and that construction of the relevant statutory provisions must “begin and end” with the text construed in light of the context including the allegedly purpose of the provision (see Maloney v The Queen [2013] HCA 28 at [324] per Gageler J). It was submitted that it was not helpful to address the issue in this case simply by applying international jurisprudence in considering international law.

7. Counsel for the First Respondent conceded that there was some force in the suggestion that legislation intended to implement Australia’s obligations under international law should be construed in light of such obligations.  Nonetheless, it was submitted that the construction of the definition of degrading treatment and punishment could not be approached as if one was directly applying the ICCPR or the ECHR.  In particular, it was submitted that it was not relevant to consider in the abstract, or solely by reference to such jurisprudence, whether racial discrimination could, of itself, amount to degrading treatment.  The Tribunal, in accordance with the exhaustive statutory definition, was required to satisfy itself that the discrimination suffered by the Applicant caused and was intended to cause, extreme humiliation which was unreasonable.  This aspect of the definition of degrading treatment or punishment was said not to directly incorporate international law. 

8. As to the use of extrinsic materials, in particular the Explanatory Memorandum in relation to the Bill that introduced the complementary protection provisions, the First Respondent pointed out that care had to be exercised in order to identify for what purpose it was legitimate to refer to extrinsic material (see s.15AB of the Acts Interpretation Act) and submitted that none of the circumstances specified in s.15AB applied in the present case. 

9. The First Respondent pointed out that as the ground in the Amended Application was now drafted it was clear that the Applicant had retreated from the earlier version of the ground which had focused on whether “any” racial discrimination amounted to degrading treatment in all circumstances.  The ground now focused on whether the particular discrimination experienced by the Applicant was, in the circumstances, inherently degrading.  It was also suggested that insofar as it appeared to be contended that the Tribunal was under an obligation not to consider discrimination isolated from the context of the racial basis for discrimination, the Applicant had accepted that not all discrimination on the basis of race would amount to degrading treatment or punishment of itself.  Counsel for the First Respondent also made the point that the definition of degrading treatment or punishment in the Act required both the effect and the purpose or intention of causing “extreme humiliation”.

10. The First Respondent submitted that the Tribunal was required to satisfy itself that the discrimination suffered by the Applicant “cause[d] and [was] intended to cause, extreme humiliation which [was] unreasonable” within the exhaustive statutory definition of degrading treatment or punishment.  It was contended that the Tribunal had addressed this question, but was not satisfied the discrimination the Applicant faced had caused or would in future cause “extreme humiliation”.  Thus, it was submitted that even if racial discrimination could of itself constitute degrading treatment, no error was disclosed in the Tribunal’s approach. 

11. It was also submitted that the Tribunal had appropriately considered all of the relevant circumstances of the discrimination faced by the Applicant, including the racial/ethnic elements of that discrimination and that it could not be said that the Tribunal considered the treatment or the discrimination, in isolation from its racial basis.  Rather, having regard to the context of the reasons for decision as a whole, it was submitted that the inference should be drawn that the Tribunal had considered the discrimination in light of its racial basis.

Resolution

1. Degrading treatment and punishment is defined in s5(1) of the Act as “[a]n act or omission that cases, and is intended to cause, extreme humiliation which is unreasonable”.  The exclusions (which directly incorporate reference to the ICCPR) are not in issue in these proceedings.  In my view, as a matter of statutory construction (bearing in mind the principles in Maloney and Plaintiff M70/2011 as well as MZYYL), whether or not regard is had to international jurisprudence such as the East African Asians case, in my view the s.5(1) definition could encompass differential treatment of a kind that caused and was intended to cause extreme humiliation because of the racial basis for that treatment, even if the same treatment on some other ground would not satisfy the definition.  However it is not necessary in these proceedings to determine whether, and if so the extent to which, it is to be accepted as a legal principle that the racial nature of differential treatment would render that treatment degrading in certain circumstances.  It is not contended that all racial discrimination of itself amounts to degrading treatment or that all claims of racial discrimination necessarily include, as an integer of the claims, a claim to that effect.  The difficulty that faces the Applicant is that it has not been established that the asserted claim was raised squarely or clearly on the material before the Tribunal.

2. As the Full Court of the Federal Court pointed out in NABE (No 2) at [58], while 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 the Tribunal accepts squarely raises a case that is not articulated:

   A claim that is not expressly advanced only attracts the review obligation of the Tribunal when it is “apparent on the face before the material before the Tribunal”.  Such a claim will not depend for its exposure on constructive of creative activity by the Tribunal.

3. In this case it has not been established that a claim as pleaded was either expressly raised by the Applicant or arose clearly or squarely on the material before the Tribunal such as to give rise to an obligation on the part of the Tribunal to address such claim in the manner considered by Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42].

4. The Applicant relied on the record of his entry interview conducted on 19 June 2012 in which he was said to have isolated the racial basis for claimed discrimination as a separate factor.  Relevantly, it was submitted that the Applicant’s response to the question about what happened to make him decide to leave Iran raised a claim that, as racial discrimination, the discrimination he experienced was inherently degrading.  The exchange in question was as follows:

   Q. Specifically, what happened to make you decide to leave Iran? The reasons are for the oppression the reasons I pointed out, I met someone who said I can help you get out.  It’s not one reason it’s on going oppression.  This is the reason, at one stage the Baseej broke my shoulder.  The existence of race, even here there is discrimination, they make fun.

5. It was submitted that the Applicant raised such an issue in his references to “the oppression … the on going (sic) oppression.”  “It’s not one reason it’s ongoing oppression” and “the existence of race, even here there is discrimination” (which were said to relate to the difficulty of being a Faili Kurd in Iran).  In particular, it was submitted that the words “they make fun” could be seen as a reference to “humiliation” within the s.5(1) definition of “degrading treatment and punishment”.

6. Counsel for the Applicant admitted (correctly in my view) that this was not a fully articulated claim that the discrimination the Applicant experienced based on race was inherently degrading such as to amount to an express claim to this effect.  It was contended that such articulation as there was provided the context for and was implicit in all the Applicant’s subsequent claims of discrimination as a Faili Kurd. 

7. However, contrary to these contentions it has not been established that there was such an “articulation” or that what was said in the entry interview and thereafter squarely raised a claim of the nature pleaded on the material before the Tribunal.  First, I am not satisfied that the Applicant’s fragmented response to questions about why he left Iran in the initial interview amounted to the articulation of a claim that the discrimination on the grounds of race he experienced of itself amounted to “degrading treatment or punishment” because such discrimination was on the basis of race and therefore, and in the circumstances, inherently degrading.  There was not “a substantial, clearly articulated argument relying upon established facts” to this effect (cf. Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 [24] per Gummow and Callinan JJ).

8. It is not in dispute that the Tribunal is also obliged to deal with claims that “clearly” arise from the materials before it (NABE (No.2) at [60] – [61]) and that every case must be considered according to its own circumstances.  However, there was no separation of race in itself as a factor to be dealt with separately in the claims made and material provided by the Applicant and his advisor.  The Applicant did not identify particular aspects of his claims in which the suggested integer was inherent.  In written submissions in support of the protection visa application the Applicant’s advisor referred generally to the Applicant’s Refugee Convention claims that as a stateless Faili Kurd in Iran the Applicant would not obtain any of the basic necessities or basic protection from the authorities and would experience systemic discriminatory conduct.  Information about the situation for Faili Kurds in Iran was extracted, but Counsel for the Applicant did not point to any particular part of this submission that supported or was consistent with the contention that the claim set out in ground one arose squarely on the material before the Tribunal.

9. In relation to the complementary protection claim, the advisor’s submissions referred to the Applicant’s claims in his statutory declaration of 26 August 2012.  In that declaration, apart from the claims about the consequences of an adulterous affair, the Applicant simply claimed briefly that living in Iran and being a stateless Faili Kurd was “really difficult” for him, that the Basij and the Council did not allow them to have legal rights to work or obtain any qualifications, that he was a stateless Faili Kurd without valid identity documents and that he had no country to return to (and that if he did return to Iran he would be mistreated because he had no identification documents and was a stateless Faili Kurd).  In relation to why he thought he would suffer significant harm he claimed “stateless Faili Kurds are always targeted and I will suffer significant harm.”  It cannot be said that a claim that because the discrimination was on the basis of race it was in the circumstances inherently degrading was implicit in such claims.

10. Nor can it be said that the claims made by the Applicant in his Departmental interview went to show that such a claim arose “squarely” on the material before the Tribunal.  The Applicant claimed that he had been harassed by the authorities, forced to pay bribes and experienced interrogation and physical violence due to being a stateless Faili Kurd in Iran.  There is no suggestion that the racial motivation rendered such differential treatment inherently degrading of itself.

11. Similarly, the Applicant has not established that his solicitor’s written submission to the Tribunal squarely raised such an integer or identified circumstances which supported the conclusion that such an integer was squarely raised on all the material before the Tribunal.  The submissions referred to the claims made by the Applicant in his statutory declaration.  It was claimed that the Applicant as a Faili Kurd had experienced routine and cumulative discrimination because he was stateless (as distinct from because of his race), that he had not been afforded many basic rights and that he had been considered “an outsider” in Iran.  In relation to the concept of significant harm, it was submitted that the Applicant had experienced instances of degrading and humiliating treatment in general life and in being specifically targeted as a stateless Faili Kurd.  In context, this appears to be a reference to the claims made about mistreatment in the Applicant’s statutory declaration.  There was no identification of any particular differential treatment rendered degrading because it was on the basis of the Applicant’s race.

12. The general claims that country information, together with specific incidents, indicated that the Applicant was highly likely to suffer significant harm from degrading treatment or punishment, that stateless Faili Kurds faced denial of basic rights with respect to education, work opportunities and the right to a lawful marriage and citizenship do not squarely raise as an integer of the Applicant’s claim to fear significant harm a claim that discrimination on the grounds of race experienced by the Applicant of itself amounted to degrading treatment because it was on the basis of race and hence inherently degrading.

13. Nor did the Applicant point to any evidence at the Tribunal hearing that could be said to have gone towards squarely raising such an integer of the Applicant’s claim.  Rather, as the Tribunal recorded, the Applicant made claims about problems such as lack of access to education, medical services, social benefits and a reasonable income as a stateless Faili Kurd with no documentation, as well as about physical mistreatment by the Basij.

14. Having regard to all this material, while in the entry interview the Applicant did identify race and made an unparticularised reference to the fact that people might have made fun of him because of his race, his subsequent claims to fear persecution and significant harm on the basis that he was a stateless Faili Kurd do not contain implicit within such claims, any claim that the discrimination he claimed to face was inherently degrading because it was on the basis of race, even though in other circumstances such treatment may not be inherently degrading.

15. As pointed out by Counsel for the First Respondent, the Applicant was represented by a solicitor throughout the review process.  The solicitor made lengthy written submissions.  The Applicant attended a Tribunal hearing.  There is no suggestion that at any particular point he made claims which clearly raised the suggested integer relied upon in ground one akin to the examples cited by Counsel for the Applicant of otherwise bearable differential treatment rendered degrading because it was on the basis of race (see [43] above).  The Applicant’s contention in effect amounts to a submission that because racial discrimination can of itself amount to degrading treatment or punishment in some circumstances because it is on the basis of race, the claims by the Applicant of discrimination on the grounds of race should be seen as encompassing such a claim.  However it was accepted that such a claim is not implicit in all claims of racial discrimination.  Counsel for the Applicant submitted that the claim made in the entry interview flowed through into subsequent claims made by the Applicant, but when asked to elaborate on this contention he acknowledged that while the claim in the entry interview isolated race as a separate factor, subsequently the factor of race became relevant as the reason for persecution in the context of an endeavour to establish a Convention ground, so that there was no explicit separation of race as a factor to be dealt with independently.

16. Having regard to the threshold referred to in NABE (No 2) for a determination that the Tribunal failed to consider an unexpressed claim (see NABE (No.2) at [68]), I am not satisfied that such a claim can be seen as arising clearly or squarely on the material before the Tribunal.  Rather, identification of such an integer of the Applicant’s claim would have required “constructive or creative activity” on the part of the Tribunal (NABE at [58]). That is not to say that such a claim could not be made in an appropriate case, merely that I am not satisfied that it arose squarely on the material before the Tribunal in this case.

17. I note that the Applicant acknowledged that the basis for the ground relied on reflected a particular interpretation of the decision of the European Commission of Human Rights in the East African Asians case.  However there is no suggestion that this authority or interpretation of international law or, indeed, the proposition itself, was drawn to the attention of the Tribunal, either by reference to this case or in the manner in which the Applicant and his advisor made claims and presented material to the Tribunal. 

1. I am not satisfied that a claim of the nature identified in the ground relied on by the Applicant was implicit in the Applicant’s claims and evidence because of what was said at the entry interview and/or because of the possibility that any claim of racial discrimination that included race as a factor could render degrading treatment that was otherwise acceptable or bearable (and hence within the s.5 definition).

2. The fact that racial discrimination could, in particular circumstances, render treatment that was otherwise bearable degrading did not give rise to an obligation on the Tribunal to consider such a possibility in this case.  What was said in the entry interview considered in conjunction with all the other material before the Tribunal was insufficiently clear to raise such a claim squarely.

3. Insofar as ground one involves a contention that the Tribunal erred in considering the differential treatment meted out to Faili Kurds and to the Applicant in isolation from its racial basis, this claim is not made out.  Counsel for the Applicant accepted that not all discrimination on the basis of race would necessarily amount to degrading treatment or punishment.  Under the s.5(1) definition there must be both the effect and purpose or intention of causing extreme humiliation.  In considering whether the discrimination experienced by the Applicant (or his possible treatment in the future) amounted to “extreme humiliation” it is clear that the Tribunal considered the discrimination to which Faili Kurds were subjected in light of its asserted racial basis insofar as such a claim was raised by the Applicant.  In considering the complementary protection criterion it referred to the racial basis of the claimed discrimination.  It accepted that the Applicant, along with other unregistered Faili Kurds had experienced specified forms of discrimination and considered whether the humiliation he had been caused because of past discrimination had caused him “extreme humiliation” within the definition of degrading treatment or punishment.  No jurisdictional error is apparent in this approach.

4. As the posited integer was not raised squarely or clearly on the material before the Tribunal, the Tribunal was under no obligation to consider it.  Hence it is unnecessary to resolve any differences in the submissions about the construction of the definition of “degrading treatment and punishment” or the application of international law or jurisprudence of international judicial or quasi-judicial bodies.  Taking the Applicant’s case at its highest, I have proceeded on the assumption that as a matter of construction of the s.5(1) definition in some circumstances discrimination on the grounds of race could be inherently degrading and capable of amounting to extreme humiliation which is unreasonable within the definition of degrading treatment or punishment.  However the material before the Tribunal in this particular case did not squarely raise such a claim in relation to the discrimination the Applicant claimed he would experience if he were to return to Iran.

5. Hence the application should be dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  17 April 2014