SZTFU v Minister for Immigration
[2014] FCCA 2258
•7 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTFU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2258 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Assessor denied the applicant procedural fairness by not advising him of information which had been canvassed in the antecedent, primary decision. |
| Legislation: Migration Act 1958, ss.36, 46A, 195A |
| Cases Cited: Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 |
| Applicant: | SZTFU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 2056 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing dates: | 7 August & 25 September 2014 |
| Date of Last Submission: | 25 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2056 of 2013
| SZTFU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 2 November 2011. He lodged an application for a Protection Obligations Evaluation (“POE”) dated 2 February 2012 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 2 March 2012 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Assessor”) who, on 15 November 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Assessor: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Assessor’s recommendation. He seeks a declaration that the Assessor’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Assessor’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Assessor was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 4 to 18 of those reasons and are relevantly summarised below.
When the applicant arrived at Christmas Island he underwent a biodata interview during which he said that he was a Shia Muslim Iranian born in 1986. He stated that he was seeking protection because he had been selling dogs in Iran which was considered by the Iranian authorities to be against Islam. The applicant later claimed that he was a minor and on 11 November 2011 he attended an age determination interview. During that interview the applicant claimed that:
a)he was sixteen years old and had been born in 1995. During his biodata interview he had lied about his age and his reason for seeking asylum because he had wanted to stay with his uncle (with whom he had travelled to Australia);
b)he had been fasting during Ramadan for five or six years and although the normal age to begin fasting was sixteen, his father was fanatical so he had started earlier;
c)for five years before he left Iran he played the guitar and was a member of a band. His band’s instruments had been broken a few times. He originally kept his guitars at home but his father had threatened him so he had stored them elsewhere;
d)he had stopped attending school a year before he left Iran because his father had wanted him to get a job. His father had beaten him a lot; and
e)he had departed Iran on a false passport but did not remember the name on the passport.
Entry interview
The applicant made the following claims during his entry interview on 20 November 2011:
a)he left Iran because he feared his father, a religious fundamentalist who harassed him. His father had pressured him to pray and would not let him continue his studies, play music or do anything he was interested in;
b)he had participated in demonstrations, the latest being ones about President Ahmadinejad in 2010. He had been curious and had wanted to see what was happening;
c)he had been harassed by the Basij for listening to music. He had been arrested on three occasions in 2010 but had never been charged. The longest period he had been detained was three hours; and
d)one day in summer 2010 the authorities had raided a place where he and his friends were gathered. Their musical instruments were destroyed and they were taken to a Basij camp where they were warned and threatened about what would happen if they continued playing their music. He was asked to sign a promise not to do it again and was released after a few hours.
POE application
In a statutory declaration declared on 2 February 2012 in support of his application for a POE, the applicant made the following additional claims:
a)he came from a strict and conservative family. His father strictly followed the Islamic religion and had forced him to accompany him to mosque and to follow the Koran from a young age. He began to question the role of Islam when he was six and as a result had received constant beatings from his father;
b)he commenced playing the guitar in 2009. His father broke his first guitar but he bought another one and left it in a friend’s garage;
c)he formed a band which played heavy metal music. They practised every day and those practice sessions led neighbours to complain to the Basij;
d)in 2010 his band was visited by the Basij who called them “devil worshippers”, said that their actions were ungodly and against Islam and told them to stop. The Basij beat them, broke their equipment and took them to a mosque where they were further interrogated. They were made to sign a statement stating that they would cease playing heavy metal music;
e)three months afterwards he and his fellow band members brought new equipment and recommenced playing. They tried to sound-proof the garage in which they played but neighbours continued to complain;
f)a week before he left Iran his band was again raided by the Basij. He and one of his friends managed to escape but three members of his band were taken away and their whereabouts remained unknown;
g)the Basij raided his family home and took away his computer which contained heavy metal music and photographs of Ayatollah Khomeini bearing insults;
h)he had not returned home but had gone to his uncle’s home and they both decided to leave Iran. They bribed officials to enable them to leave Iran;
i)he believed that the authorities had been asking about his whereabouts since he left Iran. After speaking to his mother he believed that she was fearful of mentioning that the authorities were looking for him; and
j)playing Western music was against Sharia law and Islam and if he returned to Iran he faced a risk of execution for his beliefs and past activities.
At his POE interview the applicant also claimed that:
a)when he was ten years old he stopped practising Islam in the manner his father wanted. He still believed in Islam but he did not want to do what his father did;
b)he had participated in demonstrations from afar because he had not been serious and had known that if he was arrested he would have no support. He was not politically active but he and his friends expressed themselves through their music; and
c)if he returned to Iran he would face problems for leaving with a false passport. President Ahmadinejad had stated that people who left Iran illegally would not be allowed to return as they were no longer considered Iranian citizens.
Proceedings before the Assessor
In submissions dated 19 March 2012 the applicant’s advisers submitted that he feared persecution in Iran because of his:
a)perceived religious dissidence and perceived opposition to the Iranian regime;
b)membership of the particular social group of heavy metal musicians in Iran;
c)perceived abandonment of Islam because of his non-observance of religious customs, his activities as a heavy metal musician and his stated opposition to fundamentalist Islam which he had expressed to his deeply religious father; and
d)perceived opposition to the Iranian regime due to the insulting caricatures of Ayatollah Khomeini which were found on his computer, his participation in demonstrations in Iran, his seeking asylum in Australia and his perceived religious dissidence, which in the context of theocratic Iran was effectively a political statement.
The applicant’s advisers’ submissions referred to country information which they submitted indicated that the human rights situation in Iran was poor and that religious dissidents and other groups such as musicians were persecuted.
The applicant’s advisers provided a further submission on 20 April 2012 addressing the complementary protection criterion. They submitted that the Assessor was bound to consider the Convention on the Rights of the Child. It was submitted that the applicant would suffer significant harm if returned to Iran because:
a)he had been seriously harmed in the past for his religious views and imputed opposition to the Iranian regime;
b)the Iranian authorities were aware of his political opinion and as a result of the music he played had imputed to him a religious view opposed to Islam; and
c)independent country information confirmed that those who were thought to oppose the Iranian regime or rejected fundamentalist Islam faced significant harm.
The applicant was interviewed by the Assessor on 16 August 2012 at which point he made the following additional claims:
a)he was not a minor and had been born in 1986. He had previously claimed to be a minor because he had heard that minors were not returned to Iran even if their claims were rejected;
b)he stopped believing in Islam when he was ten and stopped going to Friday prayers when he was fourteen. His father punished him by locking him in his room and beating him. In later years his father would slap him and demean and belittle him in front of others. His father created problems for all his children but it was worse for him as the son;
c)he had worked for some years and then attended university, whereupon his troubles with his father had stopped. He had still been living at home when he left Iran but was rarely there;
d)on a number of occasions during Ramadan the police and the Basij detained and beat him for smoking and eating, once breaking his skull. They would request an undertaking from him before freeing him. He was not sure how many times he had been detained but thought it might have been two or three times over the years;
e)he had faced problems with the Ershad officers because he had a girlfriend and had not conformed to accepted social norms. He and his girlfriend had been arrested by the Ershad. His girlfriend was released after her parents were called but his father gave the Ershad permission to treat him as they wanted and so he received thirty belt lashes;
f)one of his friends bred small domestic dogs and he had transported some of them. Whenever security officers noticed the dogs they would swear at him and take the dogs away because under Islamic law they were considered to be untouchable animals. However, he did not have any fears arising out of that issue;
g)his style of dress and appearance while in Iran had attracted attention. He had often had a long beard, worn bracelets and rings and a certain type of t-shirts and shoes. He would resist when questioned about his appearance and as a result was slapped in the face. He had changed his appearance and style of dress and no longer played the guitar;
h)he started playing the guitar when he was fourteen or fifteen. For three or four years he and one of his friends would practise in a park and if they saw security officer they ran away but at times they were had arrested and detained. Once the Basij broke their guitars;
i)for five years his band practised in the garage of his friend’s home (the same friend from the park) five times a week for at least an hour. One of his friend’s neighbours, who was a member of the Basij, had continuously threatened them but they did not pay too much attention and continued with their practice. His band had occasionally played for friends at gatherings;
j)when the Basij raided his friend’s home in 2010 he and his friends were detained for a full day. After the beatings they received they had marks all over their bodies and one of them had a broken arm. Their parents had been contacted and told that if their sons repeated their conduct they would be reported to a higher authority. He had not been allowed to read the undertaking he was made to sign;
k)when his band was raided the second time, he was the only one who escaped and he went into hiding at his uncle’s home. His mother told him that security officers had been patrolling the lane near his home and were looking for him. The authorities had also been looking for his uncle;
l)his computer which was confiscated by the Basij contained files and photographs of the Green Movement post-election demonstrations, cartoons of Iranian authority figures, copies of heavy metal music, information about underground concerts and his own music with anti-Islamic Republic lyrics;
m)he had not really been a member of the Green Movement but had participated in many demonstrations and had been beaten and exposed to tear gas. He was not arrested, detained or identified at the demonstrations and had had no problems with the authorities as a consequence of being involved in the demonstrations. He had participated because he had wanted to understand what people were going through and had taken video footage and photographs for a film he was making;
n)if he returned to Iran his father would hand him over to the authorities. He had spoken to his father two or three times after he left Iran and his father had told him that he would disinherit him and that he was not allowed back into the country; and
o)he had previously not made some of his claims because he had been claiming to be a minor and thought that the claims would make him seem older.
At the interview the applicant’s adviser submitted that the applicant had been feeling abnormal in terms of his mood and had had difficulty trying to recall events or place them chronologically because of the stress and anxiety of his case. It was submitted that he had been thinking of approaching his case manager to seek some assistance.
Assessor’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Assessor found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Assessor consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. That recommendation was based on the following findings and reasons.
The Assessor found that the applicant was not credible and that he had fabricated and embellished his claims to assist his application for protection. She found that in addition to being misleading about his age, the applicant had admitted that he had deliberately withheld information and she found that he had significantly increased his claims at each stage of the process, at times in direct contradiction of information he had previously given, and that his responses at their interview lacked details and were not believable. The Assessor accepted that the applicant might have been stressed and anxious at their interview because he had been about to disclose that one of his core claims had been fabricated, but she found that there was no evidence that he suffered any condition that would have impacted or impaired his ability to understand and effectively present his case or to participate fully in the review process. She found that the applicant had been responsive and engaged throughout the interview.
Membership of a particular social group
The Assessor found that the applicant did not have a well-founded fear of persecution for reasons of his membership of a particular social group of “heavy metal musicians in Iran”. In this connection, she:
a)did not accept that the applicant had practised his guitar in a park for several years, that he was detained and questioned by the Basij at the time and had his instruments broken or that he and his friend were occasionally confronted by the Basij and forced to abandon their instruments. The Assessor did not accept those claims because of the applicant’s overall unreliability, the late stage at which the claims were made and the improbability that the applicant and his friend would have practised in an open park for years when his friend’s family had had space available for them to practise and keep their equipment secure;
b)accepted that in the summer of 2010 the applicant and his band mates might have been detained by the Basij. However, while accepting that heavy metal musicians in Iran were a particular social group, the Assessor did not accept that the applicant’s membership of the group was the reason for his detention by the Basij. This was because the applicant and his band had been able to practise for five years, five days a week for at least an hour a day, without interference from the Basij or any other authorities even though their music could be heard outside. The Assessor found that the applicant’s evidence that they had ignored the Basij neighbour’s complaints demonstrated that they had not perceived any threat from the Iranian authorities;
c)did not accept that the applicant or his friends had suffered any harm or ongoing issues with the Basij or the authorities because of their detention. The Assessor found that at his entry interview the applicant had not mentioned being physically harmed and had claimed that the longest he had ever been detained was three hours, before embellishing his claim at his interview with her to say that he had been beaten for a full day. The Assessor did not accept the applicant’s explanations for those inconsistencies;
d)did not accept that the undertaking the applicant had signed before being released by the Basij identified him as a religious dissenter or devil worshipper. She found that the applicant’s denial of any knowledge of the actual content of the undertaking demonstrated that it was either of no consequence or it did not support his claim;
e)found that the applicant’s evidence given at his earlier interviews had not revealed any immediacy in his need to depart Iran, noting that in those interviews he had not claimed that his band had re-formed or that it had been raided several days before he left Iran. The Assessor did not accept his explanations for failing to raise those claims earlier. She therefore did not accept that the applicant’s band had re-formed, that it had been raided and his friends detained, that the Basij had raided his house or that the whereabouts of his friends were unknown; and
f)did not accept that the applicant would be of any interest to the Iranian authorities in the future due to his past experience as a heavy metal musician. Given that she did not accept that the applicant’s band had re-formed and noting that he had not pursued music in Australia, the Assessor did not accept that the applicant would continue to play music if he returned to Iran. She noted that the applicant had not previously tried to obtain work as a musician and had only played occasionally at small gatherings of friends. The Assessor accepted that high profile musicians or those who criticised Islam or the Iranian government had been subject to proceedings under the Iranian penal code but she found that the applicant did not have such a profile. She did not accept the applicant’s claim that he had had some music which he wrote on his allegedly confiscated computer and found that he had not alleged that he had openly promoted his band, participated in underground concerts or been publicly involved in the dissemination of his music.
Religion
For the following reasons the Assessor did not accept that the applicant had abandoned Islam or that he would be considered an apostate:
a)while acknowledging that Iran was a theocratic state whose official religion is Islam, the Assessor, after reviewing the country information before her, noted that she was not aware that regular attendance at mosque was compulsory. She noted that there was reliable information, which had been brought to the applicant’s attention, indicating that a significant proportion of Iranian Muslims did not attend mosque or regular Friday prayer;
b)the Assessor noted that the applicant’s later evidence that he had renounced Islam was inconsistent with his earlier evidence in his initial interviews where he claimed that he had not abandoned Islam and that his heart was with God but he did not want to practise in the manner required by his father. She also noted that prior to his POE interview the applicant had not reported any problems outside his family arising out of him not practising Islam strictly, even though he had been questioned directly on the issue;
c)the Assessor did not accept that the applicant had been detained, harassed, beaten, lashed or abused by the Basij during Ramadan due to his smoking and eating in public. In reaching that finding the Assessor noted that the applicant had failed to mention those claims earlier, had denied having any issues with the authorities in previous interviews and at his age determination interview had claimed that he had regularly observed Ramadan. The applicant’s changing evidence when questioned about the specifics of what had happened to him led the Assessor to conclude that he was improvising his evidence;
d)on the basis of the applicant’s general unreliability and his inconsistent and late evidence, the Assessor did not accept that he had ever been detained, harassed, lashed or beaten by the Ershad for being in public with his girlfriend and found that he had invented that claim to bolster his claim for protection;
e)the Assessor accepted that if the applicant had shown disrespect to the authorities when questioned about his appearance he might have been slapped. However, considering country information and the applicant’s evidence, she did not accept that he feared harm because of his membership of the social group she referred to as “young Iranians who did not comply with Islamic dress codes” and did not accept that the treatment he had experienced involved serious harm or systematic or discriminatory conduct. The Assessor also noted that the applicant had accepted at their interview that he no longer adopted that style of dress;
f)the Assessor accepted that dogs are regarded as unclean in Islam, that dog ownership is generally frowned upon by the authorities, that the applicant might have attracted the attention of authorities for being in possession of dogs for sale and that those dogs had been confiscated or destroyed. However, she noted that the applicant had not claimed to fear harm on that basis and had said that the authorities had only sworn at him in the past. The Assessor found that as the applicant had no subjective fear, there was no objective basis for believing that he would suffer harm for that reason;
g)the Assessor noted that that applicant had not claimed to have converted to another religion or to have proselytised or publicly criticised Islam. She accepted as reliable a 2009 Norwegian Country of Origin Information Centre, Landinfo report which stated that as long as things remained in the private sphere the Iranian authorities would not normally intervene. The Assessor found that although the way the applicant had dressed and the fact that he had been found in possession of dogs meant that he might be perceived as not being a strong adherent of Islamic values, based on his past experiences and on country information, that perception would not lead to a real chance that he would be persecuted; and
h)the Assessor did not accept the applicant’s evidence concerning the physical mistreatment he claimed to have suffered at the hands of his father or that it was a basis for the significant harm he allegedly feared prior to leaving Iran. She found that there was no objective basis to find that the applicant would be subjected to harm from his father because he would not be practising Islam strictly or complying with his father’s perception of proper Islamic behaviour. In this regard, she:
i)found that the applicant had ceased attending mosque when he was a child, at fourteen or perhaps ten, and that he had not felt compelled to comply with his father’s expectations for at least a decade prior to his departure from Iran;
ii)noted that there were inconsistencies in the way the applicant claimed he was treated by his father compared to his sisters and his description of what he considered a beating, which he said included slaps and belittling comments in front of others, was very liberal;
iii)did not accept that the applicant’s father had interfered with his education because although he initially claimed that his father would not let him finish high school, he later claimed that he had completed several years of university studies and his father had stopped harassing him when he started university; and
iv)accepted that the applicant’s relationship with his father was not harmonious but did not accept that at the age of twenty-six, having worked for several years, the applicant had held a subjective fear of his father but voluntarily remained in the same home. She did not accept that the relationship had deteriorated to the point that the applicant’s father would condemn him or hand him over to the authorities for any reason.
Political opinion
The Assessor did not accept that the applicant’s claimed fear of persecution on the basis of an imputed anti-government political opinion was well-founded because:
a)she did not accept that he would be imputed with such an opinion for having abandoned Islam, for being perceived to have abandoned Islam or for being a religious dissident, claims which she had earlier rejected;
b)she further found that the applicant would not be imputed with such an opinion for having observed an anti-government demonstration. In this connection, the Assessor noted that the applicant had made conflicting claims about his participation in post-June 2009 election demonstrations and when questioned was only able to report on one demonstration. On that basis, while she accepted that the applicant might have observed an anti-government demonstration, she did not accept that he had ever participated in one or photographed or videotaped other demonstrators or that he had ever been beaten or exposed to tear gas. The Assessor found that, as conceded by the applicant, he had never been identified or come to the attention of the authorities for being present at a demonstration; and
c)she did not accept the applicant’s claims in relation to his computer, based on his general lack of credibility and inconsistent evidence on the information which had been stored on the computer. The Assessor did not accept that the applicant had written anti-government music, noting that if he had done so he would have raised it as a core claim and that if his father was as strict as he claimed he would not have had those lyrics on his computer in his parents’ house. In any event, as she did not accept that the Basij had been pursuing the applicant for his heavy metal music, the Assessor did not accept that the applicant’s home had been raided and his computer seized.
Asylum seeker
The Assessor was not satisfied that the applicant feared harm in Iran because of his political opinion or membership of the particular social groups of failed asylum seekers, returnee asylum seekers or returnees from the West. In this connection, she:
a)did not accept that the applicant had departed Iran on a false passport. She found that it was illogical that the applicant’s uncle, his travelling companion, would have arranged a false passport for the applicant and not one for himself given that he also claimed that he was actively sought by the authorities when he left Iran. The Assessor noted that the applicant had been unable to recall the name on the passport and found that if he had been taking the risk of using a false passport he would have at least familiarised himself with it in case he was questioned about it. She also found that the applicant had gone through several security checkpoints at the airport in Tehran during which any false documents might have been detected;
b)did not accept the applicant’s claim that bribes had been paid to allow him to leave the country, noting that he had provided inconsistent evidence on that aspect of his claim which was also inconsistent with the information provided by his uncle;
c)found that the applicant did not have an adverse profile and was not of any interest to the Iranian authorities. This was based on her findings that he had left Iran legally on his own passport and that he did not have a profile as being anti-government, a religious dissenter or a musician which would attract the attention of the authorities. The Assessor also found that the applicant did not fall into the category of people who concerned the authorities because they had publicly expressed dissatisfaction with events in Iran while abroad. The Assessor had regard to a Refugee Review Tribunal decision referred to by the applicant’s advisers but found that she was not bound by the reasoning in that decision; and
d)found that despite her wide reading on the treatment of asylum seekers on their return to Iran, she was not aware of any law criminalising the seeking of asylum in other country. She found that the information regarding the applicant’s protection application was confidential and did not accept that the Iranian authorities would be aware of its particulars. The Assessor cited advice from the Department of Foreign Affairs and Trade which indicated that it was unlikely that persons who had lodged protection applications would be persecuted on that basis alone. She considered that it was possible that the applicant would be questioned on his return if he lacked the normal identity documents or was perceived to be a failed asylum seeker but found that as he did not have a profile he would not be seriously harmed during that questioning.
The Assessor therefore did not accept that a failed asylum seeker, returnee asylum seeker or returnee from the West, who was not of adverse interest to the authorities as a protester or activist prior to leaving Iran, and who had not been involved in any political activities since then, would suffer more serious consequences than known dissidents merely for seeking asylum in Australia.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.That the Independent Protection Assessment was affected by legal error in that the second respondent assessor did not afford procedural fairness to the applicant in that the assessor did not bring to the attention of the applicant or give to the applicant an opportunity to comment on aspects or the substance of adverse country information which bore upon the claims made by the applicant for protection and upon which the assessor relied in rejecting the applicant's claims.
Particulars
a.The assessor accepted the applicant’s claims that he did not practice [sic] Islam strictly [161], did not regularly attend mosque from the age of 10 to 14 [159] and did not wish to practice [sic] religion in the manner required by his father [161]. However the assessor relied on adverse country information on Islamic practices in Iran to conclude that regular attendance at mosque was not compulsory and that a significant proportion of muslims did not attend mosque or regular Friday prayer, [158]; and that “as long as the private sphere remains private, the authorities will not intervene” [166].
b.The assessor accepted that the way the applicant dressed and the fact that he was found in the possession of dogs “meant that he may have been perceived at times as not a strong adherent of Islamic values” [166] but the assessor “did not accept that based on his past experiences, and the country information that I have reviewed, that this perception would lead to a real chance that he would be persecuted if he returned to Iran … ” [166].
c.The assessor at [127] referred to two sources of country information which at [158] she said had “been brought to the attention of the claimant in the POE referral”, however while the POE referral (at page 8, 4.6 & 4.7) did list the two articles relied on (although not a Time article on dogs - see below) the POE referral did not otherwise refer to either of the articles or the substance of that information in them which was relied on by the assessor.
d.The assessor had extracted an article from Time magazine about dogs in Iran in the Country Information section of the decision, but did not specifically refer to this in the “Findings and Reasons” section although apparently relied on it at [166].
e.The POE accepted that the applicant had a subjective fear that “the Iranian authorities might target him because he does not practice his religion strictly” (POE p.12.2) but did not go on to make a specific finding on this claim except to find that the Iranian authorities would not impute political dissidence from the applicant’s practice of his religion or his desire to play heavy metal music: POE p.15.5.
f.The assessor did not put the substance of the country information relied on about attendance at mosque and Friday prayer or the authorities’ inclinations not to intervene in relation to religious practice to the applicant for comment.
g.The applicant’s advisors referred to one of the sources of country information in their written submissions (the Landinfo report, at Part 9, p 60 ff) but not the substance of the information relied on by the assessor.
At the hearing of this application the applicant made further allegations.
Consideration
The application
The principal allegation made in the application was that the Assessor had not advised the applicant of information so that he could respond to it with further evidence or submissions. The information in question was set out in a number of the particulars of the allegation, although not every particular related to the allegation.
Particular (a)
The first particular of the information said not to have been provided to the applicant referred to the following matters:
a)in Iran regular mosque attendance was not compulsory;
b)a significant portion of Muslims in Iran did not attend mosque or regular Friday prayer; and
c)“as long as the private sphere remains private, the [Iranian] authorities will not intervene”.
Contrary to the applicant’s allegation, and for the following reasons, the Assessor did not breach the rules of procedural fairness in relation to those matters:
(a)the first asserted fact was not information but a conclusion drawn from the evidence. The Assessor was obliged to advise the applicant of any adverse conclusion reached by her which was not obviously open on the known material but the finding in question was not of that sort. The conclusion that in Iran regular mosque attendance was not compulsory was an obvious one given the evidence before the Assessor;
(b)the second matter referred to by the applicant was canvassed in the reasons supporting the POE. Specifically, information concerning weekly mosque attendance was set out on page 13 of the POE reasons and the particular document from which that information was derived was cited in para.4.6 of those reasons. The officer who conducted the POE relied on the information in question when rejecting the applicant’s claim to fear problems with the Iranian authorities because he did not practise his religion strictly and when stating that she was not satisfied that there was a real chance that the applicant would be subjected to persecution in Iran because of the way he wished to practise his religion.
It would have been obvious that the information in question was material to the Assessor’s review and adverse to the applicant’s claims because the officer who conducted the POE had relied on the information in question to make a finding adverse to the applicant on a relevant matter: Muin v Refugee Review Tribunal (2002) 190 ALR 601 per McHugh J at 632 [126] and 633-634 [133]. As Hayne J said in Muin’s case, Gummow J agreeing:
Once it is accepted, however, as the plaintiff did, that the statement in the practice direction suggested no greater obligation than an obligation to draw the claimant’s attention to the substance of the adverse material, it followed, in this case, that there was no breach of that obligation. The delegate’s decision had made abundantly plain that there was material from which it could be concluded that Indonesia could and would sufficiently protect its citizens of Chinese origin. There was, therefore, no point which emerged in the tribunal’s review which was in any sense a new point. Secondly, because of the centrality of the question of protection by the state of citizenship, and because that was the basis upon which the delegate had resolved to refuse the grant of a protection visa, there was no requirement for the tribunal to take any further step to draw attention to it. (at 663 [272])
(c)the third matter was set out on page 14 of the POE reasons albeit that a United Kingdom Home Office report was cited as its source whereas at para.166 of her reasons the Assessor cited a Norwegian Landinfo report of 2009 as the source of her finding. It appears that the Assessor has used a pithy statement from one report to paraphrase the substance of another but that is of no consequence because the statement in question was set out in the POE reasons which pre-dated the Assessor’s review. Moreover, the Landinfo document had been cited in footnotes 148 and 151 of the 19 March 2012 submissions made by the applicant’s advisers to the Assessor. The applicant’s advisers must be taken to have read the Landinfo report and to have known its contents in order to have selected passages to press on the Assessor. As the applicant’s advisers can be taken to have been aware of the information in question the Assessor had no duty to put it to the applicant.
Particular (b)
The information referred to in particular (b) concerned the applicant’s style of dress and his previous involvement in transporting dogs for a friend. Relevantly, what the Assessor said was:
… although the way the claimant dressed and the fact that he was found in the possession of dogs meant that he may have been perceived at times as not a strong adherent of Islamic values, the assessor does not accept that based on his past experiences, and the country information that I have reviewed, that this perception would lead to a real chance that he would be persecuted if he returned to Iran in the reasonably foreseeable future nor that any fear of persecution based on these circumstances is well founded.
The country information referred to by the Assessor concerning the Iranian authorities’ enforcement of conventional and modest dressing, and the Islamic view of dogs as unclean, supported the applicant’s claims to the extent that they related to those matters. Consequently, that information did not need to be put to him.
The information which was relevant to the applicant’s allegation of a denial of procedural fairness was the information which supported the Assessor’s rejection of his claim to face a real chance of persecution because of the perceptions which might arise out of the way he dressed and having been found in possession of dogs. That was the information discussed earlier in these reasons in the context of particular (a). For the reasons given then, the Assessor also had no obligation in the context of the applicant’s claims concerning his dress and possession of dogs to advise him of that material.
Particular (c)
In paragraph 127 of her reasons, the Assessor said:
Adherence to Islam
A survey was conducted in 2003 that formed that [sic] basis for a 2006 article discussing religious participation among Muslims in Iran; Religious Participation among Muslims: Iranian Exceptionalism, Grunes Murat Texcur, Taghi Azadarmaki and Mehri Bahar, Routledge 2006, CIS21784. It was claimed that although Iranian society was characterised by a high levels [sic] of religious belief, “mosque attendance rates in Iran are surprisingly low” and further “many people with strong religious belief do not attend Friday congregational prayers” (at page 217). The article cited a World Values Survey Iran conducted in 2000 which recorded that only 20 percent of Iranians living in cities with more than 100,000 attended mosques every week (at page 225). The authors further conclude:
“Although Iranian society remains deeply religious under theocratic rule, this religiosity does not translate into attendance at Friday congregations organized and controlled by state authorities. Iranians residing in Tehran make a distinction between their religious faith and religious duties as demanded by the Islamic Republic. The tremendous politicization of religion in contemporary Iran negatively affects religious participation. One consequence is that Iranians from all walks of life and who are observant Shi’is [sic] abstain from participating in the politicized congregational prayers.”
In the POE reasons it was said:
Despite this, reports suggest that millions of Iranians born to Muslim parents do not attend a mosque or perform their daily prayers. Surveys show that less than 30% of Iran’s Muslim population attend a mosque weekly (one of the lowest attendance rates in the Muslim world and significantly less than other Muslim countries like Indonesia (60%) and Pakistan (70%)) ... Attendance rates are even lower in [the applicant’s] hometown, Tehran (around just 6%) ... A number of other reports present similar statistics and suggest that an increasing number of people neither pray nor attend a mosque at all …
The Assessor’s relevant duty concerned information, not the particular document or documents in which information might be found. The information relevant to particular (c) was set out in each of the passages quoted above and was essentially the same in each case, namely that formal religious observance in Iran was comparatively low. As the information cited by the Assessor was the same as the information cited in the POE reasons, this particular does not identify a breach of the Assessor’s procedural fairness obligations to the applicant.
Particular (d)
As noted earlier in relation to particular (b), the country information concerning official attitudes to the possession of dogs supported the applicant’s claim to fear persecution. As the Assessor accepted that proposition, she did not need to engage in an analysis of the independent country information in question and so particular (d) does not disclose error on her part.
Particular (e)
Particular (e) contained no allegation of error on the part of the Assessor, referring instead to the POE. As the POE was superseded by the Assessor’s decision, any errors which might have affected it ceased to be of relevance once the matter went to the Assessor. Consequently, this particular does not disclose a basis upon which the Court should make a declaration that the Assessor erred.
Particular (f)
For the reasons set out earlier in relation to particular (a), the matters raised in particular (f) are not made out.
Particular (g)
The applicant stated correctly that the part of the Landinfo report quoted by the Assessor was not the part of the report cited by his advisers in their written submission to the Assessor of 19 March 2012. However, as noted earlier, that is of no significance because the advisers must be taken to have been familiar with the contents of that report and so the Assessor had no duty to put it to the applicant.
Submissions at hearing
At the hearing of this application the applicant raised a number of issues which did not disclose error on the part of the Assessor. These included matters concerning factual findings made by the Assessor, a new factual matter and an issue concerning his initial claim to have been a minor, which was advanced by way of explanation of his conduct and did not raise any issue of error by the Assessor.
Two other points were more substantial but also did not disclose error by the Assessor:
a)the applicant said that the Assessor had misunderstood his evidence that he did not believe in Islam. However, the Assessor did understand the applicant’s claims, as formulated at the time of her review, as demonstrated by paras.40, 84, 85, 151 and 157 – 166 of her reasons, whose correctness the applicant did not challenge; and
b)the applicant told the Court that because he was claiming to be a minor he had been unable to explain his situation. However, before the Assessor, the applicant abandoned his claim to be a minor and so the presentation of his claims could not have been inhibited for the reason he propounded.
Conclusion
For these reasons I find that the Assessor’s decision was not procedurally unfair or not conducted by reference to the correct legal principals correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 7 October 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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