SZSYI v Minister for Immigration

[2015] FCCA 179

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 179

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether RRT considered applicants’ claims based on complementary protection – no jurisdictional error.

Legislation:

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

First Applicant: SZSYI

Second Applicant: SZSYJ

Third Applicant: SZSYK

Fourth Applicant: SZSYL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1373 of 2013

Judgment of: Judge Manousaridis

Hearing date: 23 May 2014

Delivered at: Sydney

Delivered on: 30 January 2015

REPRESENTATION

Counsel for the Applicants: Mr P Bodisco

Solicitors for the Applicants: New South Lawyers

Solicitors for the Respondents: Ms K Hooper of DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1373 of 2013

SZSYI

First Applicant

SZSYJ

Second Applicant

SZSYK

Third Applicant

SZSYL

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The question that arises in this application for judicial review is whether the second respondent (Tribunal), in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants protection visas, failed to deal with the applicants’ claims for protection under s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).

The applicants’ claims for protection

1. The applicants, who are citizens of Iran, are a family of four. The first-named applicant (first applicant) and his wife, the second-named applicant (second applicant), each applied for a protection visa. The alleged facts on which the first applicant relied are as follows.

First applicant’s claims

1. The first applicant was employed by the Ministry of Foreign Affairs (MFA) from 1997 until his resignation in April 2012.[1] In 1999 the MFA began to suspect the first applicant of his loyalty to the regime after the first applicant refused to spy on protesting students in Tehran.[2] That resulted in discrimination. He was kept on a contract, and was posted outside Iran only on four occasions.[3]

   [1] CB107

   [2] CB204, [6]

   [3] CB204, [6]

2. In 2009, after the first applicant failed to participate in controlling demonstrators, he was framed by the Basij[4] who accused him of having lost weapons and tear gas with which the first applicant had been supplied to control demonstrators.[5] He was detained and questioned, he was transferred to another role, and his salary was reduced.[6] He was also informed that he should wait for the result of his case that was before the courts at the behest of the Islamic Revolutionary Guard Corps, Sepah.[7]

   [4] The Basij is a paramilitary volunteer militia established in 1979 (Wikipedia, < accessed on 15 January 2015)

   [5] CB204, [7]

   [6] CB204, [7]

   [7] CB204, [7]

3. Notwithstanding these events, one or two months later the MFA posted the first applicant to Syria.[8] At the suggestion of the MFA,[9] his family visited him for one week but, on his family’s return to Iran, they found their home had been broken into and items had been removed.[10] On his return to Iran, the first applicant received a letter stating that whoever betrayed the regime would face serious consequences.[11]

   [8] CB205, [8]

   [9] CB76, [35]

   [10] CB205, [8]

   [11] CB205, [8]

4. Pressure on the first applicant increased as a result of two other events. The first was the first applicant’s being questioned by the MFA about his brother having left Iran in 2011.[12] The second was the arrest of the first applicant’s mother-in-law. On making enquiries to a judge, the first applicant discovered that his mother-in-law had been accused of murdering a member of the security forces.[13] The first applicant believed his mother-in-law was arrested because she had previously been in prison because of her involvement with the outlawed Mojahedin e Khalq (MEK).[14] The judge of whom the first applicant made enquiries reported him to the MFA.[15] That resulted in the MFA questioning the first applicant about his mother-in-law’s case.[16] In February or March 2012 the first applicant was informed his mother-in-law had been sentenced to die.[17]

   [12] CB205, [10]

   [13] CB205, [11]

   [14] CB205, [11]

   [15] CB205, [12]

   [16] CB205, [12]

   [17] CB205, [14]

5. In the meantime, the first applicant, through a contact, applied for passports for himself and his family,[18] and he applied, but was refused, a tourist visa to visit Australia.[19] The first respondent resigned from the MFA in April 2012 and, on 8 May 2012, the applicants left Iran.[20]

   [18] CB80, [61]

   [19] CB79, [57]; CB80, [60]

   [20] CB80, [62], [65]

6. The first applicant claims that if he is forced to return to Iran he fears he will be arrested at the airport and imprisoned immediately because he believes the authorities would have found out that he had left Iran, and that he had left Iran to seek asylum. He further claims that he would be imprisoned on his return as the authorities perceive him to be against the regime because he has a history of resisting fulfilling duties to suppress political protests in the course of his work with the MFA, because he did not co-operate with the Basij, because his mother-in-law is considered to be a high-profile opponent of the regime, and the first applicant has been involved in defending her case, and because he left Iran and sought asylum.[21]

   [21] CB81, [68]-[72]

Second applicant’s claims

1. The second applicant’s claims are to a large extent based on the same alleged facts as those on which the first applicant based his claims for protection. Thus, she said that although the first applicant did not talk much about his work in the MFA, the first applicant informed her he had been sent on an assignment but when he returned he had been arrested and detained, and this happened a week later;[22] the second applicant and her children visited the first applicant in Syria but on their return she discovered her house had been broken into, and some documents had been taken;[23] and her parents had been imprisoned for a few years from 1980 and had been involved in the MEK.[24]

   [22] CB214, [77]

   [23] CB215, [78]

   [24] CB215, [81]

2. The second applicant claims she fears being harmed on her return to Iran because she was a family member of her husband and her parents, and because she had tried to flee Iran.[25]

   [25] CB214, [74]

Tribunal’s reasons - first applicant’s claims

1. The Tribunal accepted the first applicant had been employed by the security section of the MFA. It had “considerable doubt”, however, “about the plausibility of his claim that he was under any scrutiny, or considered himself to be under any scrutiny, because of official concerns about his loyalty to the regime”.[26] The MFA’s renewing the first applicant’s contract of employment over a period of thirteen years including one being renewed a month before the first applicant came to Australia was not consistent with his loyalty being under suspicion.[27] It was “very difficult to believe” that, three years after marrying a woman whose mother was known to have been a member of the MEK, the first applicant was given a job in the security section of the MFA and passed its security checks unless he had disclosed that fact to the relevant authorities.[28] Ultimately, the Tribunal did not accept that the applicant “was under scrutiny, or considered himself to be under scrutiny at the time he left Iran, as a person who was not loyal to the regime”.[29]

   [26] CB210, [44]

   [27] CB210, [45]

   [28] CB210, [46]

   [29] CB211, [52]

2. The Tribunal also found that the first applicant did not have a well-founded fear of being persecuted in Iran because of a political opinion being imputed to him as a result of his parents-in-law’s past political activities.[30] The first applicant provided to the Tribunal an article from the Havades online news agency about a woman described as an “ex-member of the Monafeghin Terrorists Group”[31] who had murdered and mutilated a middle aged man. The first applicant claimed the woman described in that article was his mother-in-law. The Tribunal found, however, that the article referred to a woman who had a different name and age from that of the first applicant’s mother-in-law.[32] The Tribunal also found that the date on which the article reported the woman was arrested was different from the date the first applicant claimed she had been arrested.[33]

   [30] CB212, [60]

   [31] CB170

   [32] CB212, [57]. In a covering letter to the Tribunal that accompanied the article, the applicants’ representative gave an account for the difference in the name and age of the woman depicted in the article (CB167). The representative stated that after her release from prison in the 1980, the first applicant’s mother in-law began using the identity papers of her sister being the name and age of the woman described in the article.

   [33] CB212, [56]

3. Having not accepted that the first applicant’s claimed MEK connection in his family might lead him to be imputed with an anti-government opinion, or that there had been any accusations about his loyalty, the Tribunal found the first applicant was and is regarded as a loyal servant of the regime and there was but a remote chance that on his return to Iran he would be perceived as a “failed asylum seeker”.[34] The Tribunal also found that the Iranian authorities are not aware the first applicant’s brother sought asylum in Australia and the first applicant, therefore, would not on that count be at risk if he returned to Iran.[35]

   [34] CB213, [63]

   [35] CB213, [67]

4. Finally, the Tribunal noted that, at the hearing, the first applicant was invited “to add anything further he wished, including making claims under the Complementary Protection criteria”, but that the first applicant “declined to do so”.[36] The Tribunal, nevertheless, as it was bound to do, considered whether the first applicant did have a claim based on complementary protection. The Tribunal found as follows:[37]

   The complementary protection criteria required that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Iran, there is a real risk that he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criteria’). On this point I find that there is no such risk.

   [36] CB213, [70]

   [37] CB214, [73]

Tribunal’s reasons - second applicant’s claims

1. The Tribunal accepted the second applicant’s parents were supporters or members of the MEK and were imprisoned some 33 years ago for that reason,[38] and that the second applicant and her father led normal lives free of harassment since the second applicant’s father’s release from prison in the 1980s.[39] It noted it had not been claimed that the second applicant’s mother had continued to be politically active in any way since the 1980s, or that the second applicant’s sister had been harmed or harassed because of her mother’s past.[40] In those circumstances, the Tribunal considered as remote the second applicant’s risk of being arrested or interrogated for any reason arising from her mother’s, or her parents’ political histories, or for any reason arising from her mother’s claimed current plight.[41]

   [38] CB217, [101]

   [39] CB217, [102]

   [40] CB217-218, [102]

   [41] CB218, [103]

2. The Tribunal accepted the second applicant had fears because her husband was an employee of the MFA and had “problems” which she was unfamiliar with but which she fears may also involve her.[42] The Tribunal found, however, that the chance of the second applicant’s being arrested and interrogated because of any problems the first applicant may have had with his previous work with the MFA was remote.[43] The Tribunal also found that the chance of her being perceived against the Iranian regime because the second applicant and her husband fled Iran, or for any other reason, was remote.[44]

   [42] CB218, [104]

   [43] CB218, [104]

   [44] CB218, [105]

3. Finally, the Tribunal dealt with complementary protection as follows:[45]

   She has made no claims under the Complementary Protection criteria, which as noted above require that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Iran there is a real risk she will suffer significant harm. On this point I find that there is no such risk.

   [45] CB218, [107]

The applicants’ case

1. The starting point in identifying the applicants’ case is the ground of application and particulars stated in the amended application:

   The RRT failed to deal with the Applicants’ claim under the complementary protection provision (Section 36(2)(aa) of the Migration Act 1958 (Cth)).

   Particulars

   (a)During the hearing, the Tribunal made an express undertaking that it would consider the evidence before it under the complementary protection provision;

   (b)From a fair reading of paragraphs [70], [73] and [107] of the decision, this undertaking was not complied with;

   (c)Further, the Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the material before it.

2. It is unclear what the intended relevance is of the particulars to the ground stated. The Tribunal, in the exercise of its jurisdiction to review decisions under s.414 of the Act, is under a duty to consider whether, on the material before it, and based on the claims that are expressly made by the applicant or which are reasonably apparent from the material before it, the applicant is entitled to a protection visa. That requires the Tribunal to consider both whether the applicants’ claims fall within s.36(2)(a) of the Act and within the complementary protection provision contained in s.36(2)(aa) of the Act. The Tribunal’s duty to consider these matters arises from s.414 of the Act; it does not depend on the Tribunal’s representing to an applicant that it will consider whether an applicant is a “refugee” or whether the applicant is entitled to complementary protection. Thus, the ground stated in the amended application is no more than a claim that the Tribunal failed to consider whether s.36(2)(aa) of the Act applied to the applicants.

3. The applicants cannot, however, be taken to intend to claim that the Tribunal simply did not consider whether s.36(2)(aa) applied to the applicants. Such a claim would be unarguable. It is clear from the passages from the Tribunal’s reasons for decision that I have set out above that the Tribunal in terms found that s.36(2)(aa) of the Act does not apply to the applicants. In what sense, then, do the applicants claim the Tribunal failed to deal with the applicants’ claims for protection under s.36(2)(aa) of the Act?

4. During the hearing, I understood counsel for the second applicant to advance two distinct grounds for contending the Tribunal did not consider the applicants’ complementary protection claims. First, counsel submitted that the Tribunal considered that the second applicant abandoned, or did not make a claim for complementary protection and, for those reasons, did not consider the second applicants’ claims for complementary protection.[46] Counsel particularly relied on the passage from the Tribunal’s reasons that I have reproduced in paragraph 17 of these reasons.

   [46] 23.05.14, T5.10-15; T13.5-10; T.21.1

5. Second, counsel submitted that, to the extent the Tribunal did consider and make findings in relation to whether the first and second applicants were entitled to complementary protection, it relied on the same findings on which it relied for concluding the first and second applicants were not “refugees” within the meaning of the Refugees Convention,[47] yet there were other facts found by the Tribunal, or about which the Tribunal made no findings, which were relevant to complementary protection but which the Tribunal did not consider when considering whether the applicants were entitled to complementary protection.[48] The facts counsel submitted were relevant, but which the Tribunal did not consider, were the findings that the second applicant’s parents were supporters of the MEK and had been imprisoned some 33 years ago for that reason;[49] the claims made by the applicants’ representative[50] that the second applicant feared she will be perceived to be against the regime because she left Iran with her husband who had a profile the first applicant claimed he had and that country information showed that MEK is still regarded by the Iranian government as a threat, and that the government takes serious action against any person who is suspected of being involved with the MEK.[51]

Did the Tribunal not consider complementary protection claims because it treated such claims as not having been made?

[47] Being the Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

[48] 23.05.14, T19.15-T20.35; T24.45-T25.45

[49] 23.05.14, T6.40

[50] CB108; CB110-110

[51] 23.05.14. T7.25-8.15

1. As submitted by the applicants, the Tribunal said that the second applicant did not make a claim under the complementary protection criteria. That statement appears to have been based on the following exchange between the Tribunal member and the second applicant at the hearing before the Tribunal:[52]

   [52] Affidavit of B Ford, 16.05.14, exhibit A, page 56

   MEMBER: . . . so I mentioned at the beginning complementary protection, which requires that you would have to be facing some significant harm for any reason. I just want to make sure that you’ve told me all the reasons why you are concerned about being harmed if you go back to Iran.

   APPLICANT 2:      That’s all.

   MEMBER: That’s all, okay.

   APPLICANT 2:      What’s the difference between these two?

   MEMBER: Well, basically – I’m really going to summarize it very briefly. If you’re a refugee, you have to face a real chance of being persecuted because of your race, religion, nationality, membership of a particular social group or political opinion. And with complementary protection, those reasons – race, religion and so on – are not required. You can fear significant harm for any reason.

   APPLICANT 2:      Which one’s better? What’s the difference ultimately? I mean they’re both ultimately protection visas.

   MEMBER: Yes, but you’ll end up in the same place if you fit the criteria in either of them. It’s just that complementary protection gives a further opportunity for protection that refugee status doesn’t give. Now, is there anything we haven’t discussed that you think is important?

   APPLICANT 2:      I don’t think so.

2. The Tribunal’s statement that the second applicant made no claim for complementary protection may reflect a belief that the only harm the second applicant claimed she feared if she returned to Iran is harm that would flow from a Refugee Convention reason. Whatever the Tribunal may have meant by stating the second applicant made no claim for complementary protection, I am satisfied the Tribunal did consider whether the second applicant, as well as the first applicant, had a claim under complementary protection. In relation to both the first and second applicants, the Tribunal in terms considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Iran, there is a real risk they will suffer significant harm. For both the first and second applicants, the Tribunal found there was no such risk.

Did the Tribunal not deal with claims relevant to complementary protection?

1. In my opinion, the Tribunal dealt with all claims that were relevant to whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ being removed from Australia to Iran, there is a real risk they will suffer significant harm. In particular, the Tribunal considered the matters counsel for the applicants submitted the Tribunal did not deal with. It considered its findings that the second applicant’s parents were supporters of the MEK and had been imprisoned some 33 years ago for that reason but found that, because of other matters to which it referred – the second applicant’s father having led a normal life after his release from prison, the applicants not having claimed that the second applicant’s mother continued to be active in the MEK after her release, and neither the second applicant nor her sister having been harmed or harassed because of their parents’ history – the risk of harm to the second applicant (and the first applicant) because of her parents’ history was remote.

1. The Tribunal also accepted country information to the effect that MEK is still regarded by the Iranian government as a threat, and that the government takes serious action against any person who is suspected of being involved with the MEK. The Tribunal accepted that a connection with the MEK may pose a serious risk if it is known to the Iranian authorities.[53] However, for the reasons it gave, the Tribunal did not consider that the second applicant’s parents, having been imprisoned and released in the 1980s because of their involvement in the MEK, now posed anything other than a remote risk of harm to the first and second applicants.

   [53] CB217, [100]

Conclusion

1. The applicants have not demonstrated the Tribunal failed to consider the applicants’ claims for protection based on the complementary protection criteria provided for under s.36(2)(aa) of the Act. I propose, therefore, to order that the application be dismissed, and that the first and second applicants pay the Minister’s costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 30 January 2015