SZTEO v Minister for Immigration

[2015] FCCA 2228

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2228

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the principles of Appellant S395 preclude Tribunal from taking into account the capacity or actions or intentions of an applicant for a Protection visa to avoid persecution in general or whether the Appellant S395 principles only prevent the Tribunal from taking into account an applicant’s capacity or actions or intentions to avoid persecution by concealing the person’s race, nationality, religion, membership of a particular social group or political opinion (Convention characteristics) – whether the capacity or actions or intention of the applicant to avoid persecution the Tribunal took into account were a capacity or actions or intentions to conceal the applicant’s Convention characteristics – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293

Applicant: SZTEO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1885 of 2013

Judgment of: Judge Manousaridis

Hearing date: 16 September 2014

Date of Last Submission: 14 October 2014

Delivered at: Sydney

Delivered on: 21 August 2015

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Counsel for the Respondents: Ms S Foda

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1885 of 2013

SZTEO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review the applicant submits that, in affirming the decision of a delegate not to grant to the applicant a Protection visa, the second respondent (Tribunal) failed to follow the principles identified and applied by the majority of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (S395 principles).[1]

   [1] [2003] HCA 71; (2003) 216 CLR 473

2. The applicant submits the Tribunal failed to follow those principles in two ways. First, the Tribunal decided the applicant’s case for review on the basis that the applicant had in the past acted to avoid persecution and, for that reason, could in the future avoid persecution by acting in the same way. Second, to the extent the Tribunal decided the applicant’s case on the basis that the applicant would in the future act to avoid persecution, the Tribunal did not consider whether the applicant would so act because he wished to avoid a threat of persecution for a reason identified in the definition of “refugee” contained in Art.1A(2) of the Refugees Convention.[2]

   [2] Being the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

The applicant’s claims for protection

1. The applicant is a stateless Faili Kurd born in Kurdistan Province in Iran. In his application for a Protection visa, the applicant claimed he has a well-founded fear of being persecuted if he returns to Iran. Although the applicant claimed he held this fear for a number of reasons, the only reason that is relevant in the application before me is his being a documented stateless Faili Kurd.

2. The applicant claimed that, as a stateless Faili Kurd, life in Iran was very hard for him and his family. Iranian authorities did not recognise Faili Kurds as citizens.[3] They did not provide Faili Kurds with identity documents.[4] That prevented the applicant and his family from receiving government medical treatment, working legally, operating a bank account, travelling freely in Iran, and owning property. [5] The applicant also claimed that in 2005 he was employed by an Iranian national as a hairdresser in a hair salon in Tehran. The applicant was paid less than Iranian citizens who worked in the same business.[6] The applicant’s employer paid bribes to government officials who attended the salon.[7] After having worked for two years at the hair salon, the applicant opened his own hair salon business. He registered the business, however, in the name of the applicant’s employee who was an Iranian citizen.[8]

   [3] CB56, [8]

   [4] CB56, [8]

   [5] CB56, [10]

   [6] CB57, [11]

   [7] CB57, [12]

   [8] CB57, [15]

3. Before the delegate, the applicant, through his advisor, provided country information that showed there was widespread discrimination against Iran’s Kurdish minority, particularly in employment, housing, and education;[9] and that Kurds face increasing discrimination and harassment by the Iranian authorities, only because of their ethnicity.[10] The applicant’s advisor submitted to the delegate that Kurds, including stateless Faili Kurds, are at risk of being persecuted because of their ethnicity, imputed political opinion, and membership of minority ethnic groups who face persecution.[11] The applicant’s advisor also submitted that, because stateless Faili Kurds could not work legally, this threatened their capacity to subsist.[12]

   [9] CB96

   [10] CB96

   [11] CB97

   [12] CB100

4. The applicant repeated the substance of these submissions to the Tribunal. His advisor submitted the applicant will face a sustained and systematic denial of his core human rights if he were to return to Iran, including his “ability to earn a livelihood or denial of basic services that would threaten his ability to subsist”.[13] The applicant will be denied this ability because he could not legally work, get a driver’s licence, buy property, or own a business.[14]

   [13] CB164

   [14] CB166

Tribunal’s reasons

1. The Tribunal accepted the applicant is a stateless Faili Kurd who held an Iranian white card at the time of his departure from Iran.[15] A “white card” is a document issued by the Iranian government to Iraqi refugees giving the holder access to basic services such as healthcare and education and protection from deportation to Iraq.[16] The Tribunal also accepted there existed in Iran a particular social group “based on the attributes of Faili Kurd ethnicity and documentary status, in this case, ‘documented’ or a ‘white card holder’”, and that the applicant was and, if he returns to Iran, would be a member of such group.[17] The Tribunal, however, did not accept the applicant “has in the past suffered persecutory harm because of his status as a non-citizen, as a stateless Faili Kurd, as a refugee white card holder, or for any other associated reason”.[18] The Tribunal relied on a number of matters.

   [15] CB236, [116]

   [16] CB226

   [17] CB237, [119]

   [18] CB237, [120]

2. First, although the Tribunal accepted the applicant does not have the same rights as Iranian nationals, it was not satisfied that by itself involved serious harm amounting to persecution.[19] Second, country information showed that white card holders have access to education and healthcare in Iran, “and at least informally, employment”. [20] The applicant’s own experience reflected that country information. He attended a public school until the age of 16, and after he left school he “was in virtually continuous employment”.[21] Third, the Tribunal did not accept that the applicant’s inability to register a business in his name, his having to pay a bribe to obtain a driver’s licence, and his having to  “find various workarounds”, amounted to serious harm:[22]

   [I]t appears that the applicant was able to rent the hair salon premises, to get an apartment in his own name, to successfully operate a business and to drive a car. While the applicant may have had to negotiate some administrative hurdles, with the help of a business partner or other friends, and he may have needed to pay bribes from time to time, there is no sign that he faced discrimination amounting to serious harm.

   [19] CB237, [120], first dot point.

   [20] CB237, [120], third dot point

   [21] CB237, [120], third dot point

   [22] CB238, [120], fourth dot point

3. Fourth, the Tribunal did not accept that, on the available evidence, the applicant experienced any persistent prejudice, ridicule, or any other social treatment that amounted to serious harm. The Tribunal found no country information, and nothing in his personal circumstances, to indicate the applicant has suffered social rejection or ostracism as a Faili Kurd such as to amount to serious or significant harm.[23]

   [23] CB239, [120], sixth dot point

4. Although the Tribunal found the applicant would not be permitted to re-enter Iran because he is stateless,[24] it considered the applicant’s prospects in Iran on the hypothesis he would be permitted entry into Iran. On that hypothesis, the Tribunal did not accept the applicant would face a real chance of discrimination or other harm amounting to Convention-related persecution. That is so, even though the Tribunal accepted the applicant would have fewer rights and benefits compared with the rights and benefits he had as the holder of a white card.[25]

[24] CB245, [140]

[25] CB245-246, [143]

S395 Principles

1. In Appellant S395 the appellants claimed they had a well-founded fear of persecution in Bangladesh because they were homosexuals. The Tribunal found that homosexuality was not accepted or condoned by society in Bangladesh, that in Bangladesh it was not possible to live openly as a homosexual, but that Bangladeshi men could have homosexual affairs or relationships, provided they were discreet. The Tribunal found the applicants were in a homosexual relationship, but also found they did not experience serious harm or discrimination. The Tribunal found the applicants conducted themselves in a discreet manner, and there would be no reason to suppose they would not continue to act in a discreet manner if they returned to Bangladesh.

2. In two joint judgments, each given by two justices, a majority of the High Court held the Tribunal made a jurisdictional error because the Tribunal did not consider why the applicants would choose to conduct themselves discreetly if they returned to Bangladesh. That was an important question; it was possible the applicants intended to live discreetly to conceal they were in a homosexual relationship and thus avoid the persecution they would otherwise have risked if they were to live in an open homosexual relationship. If that were their intention, the applicants would have met the definition of “refugee” within the meaning of Art.1A(2) of the Refugees Convention. A person who has a well-known fear of persecution “for reasons of” the person’s race, religion, nationality, membership of a particular social group, or political opinion, is not expected to take such steps as are available to him or her to prevent that person from being perceived by persecutors in his or her country of nationality to be a person of that race or nationality or religion, or a member of that particular social group, or a person who holds that political opinion.

3. Two related principles, therefore, can be derived from the majority judgments in Appellant S395. The first is that the causal nexus[26] required by the definition of “refugee” in Art.1A(2) of the Refugees Convention between, on the one hand, a person’s actual or perceived race, religion, nationality, membership of a particular social group, or political opinion (Convention characteristics) and, on the other, the person’s well-founded fear of persecution, will not be taken not to be established only because the person is capable of taking action that would prevent the person from being perceived by persecutors in his or her country of nationality to be a person who possesses any Convention characteristics.

   [26] “There must be some relevant causal link between the postulated ground (membership of a “particular social group”) and the entitling condition (“well-founded fear of being persecuted”). The one must provide the reason for the other.” - Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [67] (Kirby J)

4. The second principle is that the causal nexus required by the definition of “refugee” in Art.1A(2) of the Refugees Convention between a person’s Convention characteristics and the person’s well-founded fear of persecution, will also not be taken not to be established only because the person has in fact taken steps, or intends to take steps, to conceal those characteristics. In those circumstances, the person may still be found to have a well-founded fear of persecution. Whether or not the person will have such well-founded fear, however, will depend on the reason or reasons for which the person concealed, or intends to conceal his or her Convention characteristics. If the reason is the person’s desire to avoid persecution of which he or she has a well-founded fear of persecution because of his or her Convention characteristics, the person will still be regarded as having a well-founded fear of persecution.

Ground 1

1. The applicant raises two related grounds of review. The first ground is as follows:

   In finding that the applicant had in the past acted to avoid persecution the Tribunal reasoned that the applicant could avoid persecution in the future by taking the same sorts of steps.

   Particulars

   a.The applicant claimed that he had to work and conduct his business illegally because as a stateless Faili Kurd white card holder he was not allowed to work or operate a business legally and this was a threat to his subsistence amounting to persecution.

   b.The Tribunal found that the applicant had avoided serious harm in the past because he had been able to surmount the obstacles Iranian law had placed in his way by working illegally.

2. The applicant submits the Tribunal failed to follow the S395 principles because the Tribunal concluded the applicant did not suffer discrimination amounting to persecution because he was able to surmount the obstacles and disadvantages he experienced as a documented stateless Faili Kurd by finding “various workarounds” and negotiating “administrative hurdles”.[27] The applicant submits this shows that the Tribunal required or expected the applicant to conduct himself in a certain manner to avoid the claimed persecution, the relevant conduct being the applicant’s living “in illegal transgression of the restrictions imposed on him as a member of a social group of white card holding stateless Faili Kurds”.[28] In short, the applicant submits the Tribunal considered the applicant’s case on the basis that the applicant avoided persecution by altering his conduct.

   [27] Applicant’s submissions, [34]

   [28] Applicant’s submissions, [35]

3. The applicant’s submissions are premised on the proposition that when determining whether a person has a well-founded fear of persecution, the S395 principles require the Tribunal to ignore an applicant’s ability to avoid persecution, or to ignore an applicant’s having actually avoided persecution, or to ignore a person’s intention to take steps to avoid persecution. That proposition, however, is too broad. The S395 principles do not require the Tribunal to ignore a person’s ability to avoid persecution in general; the S395 principles require the Tribunal to ignore only a particular means of avoiding persecution. That particular means is a person’s ability to conceal his or her Convention characteristics and for that reason avoid being persecuted. Further, the S395 principles do not require the Tribunal ignore all acts a person has undertaken or intends to undertake to avoid persecution; the S395 principles only require that the Tribunal ignore a particular set of acts and intentions. These are acts a person has undertaken or intends to undertake to conceal that person’s Convention characteristics and for that reason avoid persecution.

4. Now it is true, as the applicant submits, that the Tribunal relied on the applicant’s having undertaken various activities that enabled him to maintain himself in employment, rent a unit, rent business premises, and enter into a partnership with an Iranian citizen, and for those reasons, concluded the applicant did not suffer harm on account of his being a documented stateless Faili Kurd that was sufficiently serious to constitute persecution. What the Tribunal did not do, however, is to rely on the applicant’s activities to find that the applicant had the ability to conceal he was a documented stateless Faili Kurd and, for that reason, had the ability to avoid persecution. Nor did the Tribunal find that the applicant exercised that ability to conceal he was a documented stateless Faili Kurd and, for that reason, succeeded in avoiding persecution.

5. The Tribunal, therefore, did not fail to follow the S395 principles by concluding on the basis of the applicant’s activities that the applicant did not suffer harm that was sufficiently serious to constitute persecution. Ground 1, therefore, is not made out.

Ground 2

1. The second ground of review is as follows:

   Further or in the alternative, if the Tribunal did in fact find that the applicant would act to avoid persecution in the future (which is not admitted), the Tribunal did not go on to assess whether the applicant would act in that way in order to avoid the threat of persecution for a Convention reason and whether his behaviour was influenced by the threat of harm.

   Particulars

   a.In addition to the particulars at ground one, the Tribunal did not go on to consider (either in relation to the claimed harm or threat to subsistence that he had avoided, or in relation to other disadvantages that he was unable to avoid) whether these harms were attributable to his statelessness or lack of nationality as such, or whether they were attributable to Convention grounds, such as the applicant’s membership of a particular social group of stateless, documented Faili Kurds.

2. The Tribunal did find that the applicant acted in a way that led to his avoiding serious harm that would amount to persecution, and that, if he were permitted to return to Iran, the applicant would act in a way to avoid serious harm that would amount to persecution. But that is not the same thing as the Tribunal finding that the applicant concealed, and would in the future conceal being a stateless Faili Kurd, and for that reason did not suffer, and has no well-founded fear he will suffer, persecution because he is a documented stateless Faili Kurd. The Tribunal made no such findings. The S395 principles, therefore, did not apply, and the Tribunal, therefore, was not required to consider why the applicant acted in the way which led to his being employed, renting a unit and premises from which he could conduct a business, and engaging in a business in partnership with an Iranian national.  As I have already stated, the S395 principles come into play only when a person has the ability to, or has taken or intends to take action that will conceal the person’s Convention characteristics, and such action can be taken, or has been taken or is intended to be taken for the purpose of the person avoiding persecution because of those characteristics. Ground 2, therefore, also fails.

Disposition

1. The applicant has not established either of his grounds of application. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 21 August 2015