SZTFX v Minister for Immigration and Anor

[2014] FCCA 361

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 361

Catchwords:
MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Reviewer failed to consider claims made by the applicant.

Legislation:

Migration Act 1958, ss.36, 46A, 91R, 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: SZTFX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2069 of 2013

Judgment of: Judge Cameron

Hearing date: 18 February 2014

Date of Last Submission: 18 February 2014

Delivered at: Sydney

Delivered on: 18 February 2014

REPRESENTATION

Counsel for the Applicant: Mr J. Gormly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount $6,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2069 of 2013

SZTFX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant was formerly a resident of Iran who arrived at Christmas Island by boat on 31 January 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 3 April 2010 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”).

2. By letter dated 15 May 2010 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 an independent merits reviewer who, on 30 September 2010, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant was the subject of a second independent merits review and on 23 March 2011 a second independent merits reviewer, who is the second respondent (“Reviewer”), also recommended that he not be recognised as a person to whom Australia has protection obligations under the Convention. 

3. It can be presumed that the applicant was in detention at the time of the RSA and subsequent reviews.

4. 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.

5. 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 Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].

6. The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’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 Reviewer’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].

7. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for protection are relevantly as follows.

RSA application

1. The applicant made the following claims in a statutory declaration declared on 3 April 2010 in support of his application for an RSA:

   a)he was a stateless Faili Kurd born in Iran to an Iraqi father and an Iranian mother.  His parents could not register their marriage because his father had been in Iran unlawfully, did not have any documents and was stateless;

   b)in 1993 his mother had unsuccessfully tried to register his and his siblings’ births.  He attended primary and secondary school at a private school and his tuition was paid by his uncle;

   c)his maternal uncle had paid US$2,000 in order for him to obtain a fake Iranian citizenship certificate so he could attend university.  His uncle had also organised for him to receive a card exempting him from undertaking military service;

   d)in 2001 he was accused by the intelligence service of having made a phone call to a radio station.  He was detained for two days and released after his uncle paid 400,000 Toman;

   e)on 6 June 2009 he was beaten and videotaped by the Basij.  He believed that as a result of the video the Basij would catch him one day;

   f)on 15 June 2009 he saw two Basij beating a person while two police officers looked on.  He tried to intervene but the Basij hit him with a baton and put him in their car.  He was released because the two police officers knew him from the pharmacy where he worked;

   g)on 22 June 2009 the Basij raided his home in his absence and took his satellite dish and some videotapes.  During the raid his mother destroyed all the false documents they had; and

   h)he had no documents or identity and was an unlawful resident in Iran.  He had no foreseeable prospects of legalising his situation and would always be harassed by the Basij.  The police and local authorities would not protect him because he had no identification.

2. At his RSA interview the applicant also claimed that, as a result of the incidents in June 2009, he had lived with his sister from August 2009 until his departure from Iran in December 2009.  He claimed that he had not encountered any difficulties leaving Iran.

First independent merits review

1. The applicant made the following additional claims at his interview with the first independent merits reviewer:

   a)he had studied mechanical engineering at university for five years and then obtained a job as a mechanic with the help of his uncle. He had also worked as a pharmacist;

   b)he believed that in 2001 his home might have been bugged and that was how the intelligence service knew about telephone calls he had made to the radio station;

   c)on 5 August 2009 he had participated in demonstrations against the government.  He was hit by a member of the Basij who was a passenger on a motorcycle.  The person was carrying a video camera and appeared to be filming him.  He was also attacked by other Basij officers who were also on motorcycles.  He was concerned that he might be prosecuted because he had been filmed during the demonstration;

   d)he had run away from the demonstration and, along with other people, sheltered with a neighbour.  When he left the house, he saw another group of Basij officers beating a woman.  He and one other person tried to intervene but were shot at with a gun loaded with plastic bullets; and

   e)after the incident he stayed with his sister until his brother-in-law organised a passport for him to leave Iran.  He had not faced difficulties at the airport because he had paid a “heavy bribe” and his uncle had assured him that his exit from Iran would be unimpeded.

Proceedings before the Reviewer

1. The applicant was interviewed by the Reviewer on 18 January 2011 at which point he made the following additional claims:

   a)in 1994 while walking in the street, a police car had stopped and asked why he was whistling.  When the police heard his accent, they beat him and detained him for one night;

   b)on one occasion he had been walking in white clothes and was clean shaven.  The Basij heard his accent and wanted to detain him but other people around started “saying things” and he was not detained;

   c)while at university in 1997 he had organised a conference about Iran’s presidential elections and as a result one of his lecturers had refused to allow him to sit an exam and failed him;

   d)a week or ten days before the presidential elections on 2 June 2009 he had worked in an office supporting a prominent opposition candidate;

   e)when he saw the two Basij beating someone on 15 June 2009, the Basij detained him in a car for two hours.  He was released after a policeman who was a regular customer at his work came by;

   f)a week after his satellite dish was confiscated, he had to pay a fine for it;

   g)at the protest he attended in August 2009 the protesters were surrounded by people on motorcycles filming.  One of the cameramen tried to hit him with a baton.  He had tried to push one of them to stop them filming but he was kicked and hit with a baton.  He was filmed for one minute while he was kicking and saying things.  While he was being filmed the motorcycle had been moving very slowly;

   h)he believed that the authorities might be interested in him because he had heard that they had arrested people who were filmed.  His face had been filmed and they would recognise him;

   i)he was a member of the Green movement, the Facebook page “Campaign to Free Political Prisoners” and other political groups.  His page could only be accessed by friends and friends of his friends.  He had established his Facebook page seven months earlier but had been an activist in Iran before that;

   j)even though he was an undocumented Faili Kurd, he was able to obtain an education because his uncle had paid 2 million Toman to obtain a birth certificate for him; and

   k)he did not have a Green or White card (the official Iranian registration cards for Iraqi refugees).  He had not completed military service because his uncle had paid 5 million Toman to obtain a card which exempted him from it.

2. Following his interview with the Reviewer, the applicant’s advisers sent the Reviewer submissions dated 29 January 2011 and March 2011 stating that the applicant faced harm as a Faili Kurd, an Iraqi refugee and as a failed asylum seeker.  It was submitted that the applicant would be imputed with an anti-government political opinion because he had sought asylum in Australia.

Reviewer’s findings and reasons

1. After discussing the claims made by the applicant and the evidence before him, the Reviewer 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 Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:

   a)the Reviewer found that there were no particular and individual factors which distinguished the applicant from the general Kurdish population.  He noted that the applicant had lived in Iran for thirty-four years, had been able to attend school, obtain a birth certificate allowing him to attend university for five years, work in a managerial position and live undisturbed with the exception of one incident.  The Reviewer found that that incident, when his satellite dish was confiscated, was consistent with country information about the role and activities of the Basij as the “moral police” force and with evidence that they targeted satellite dishes.  The Reviewer found that there was nothing to suggest that the applicant had been particularly targeted for having a satellite dish;

   b)the Reviewer found the applicant’s claim to have been videotaped was a fabrication designed to enhance his claims for protection.  In this connection, the Reviewer found it implausible that the applicant would have been singled out in a crowd and videotaped by a cameraman on the back of a slow-moving motorcycle for one minute.  He found the applicant’s description of the event fanciful and far-fetched.  In support of this finding, the Reviewer noted that there was no evidence that the authorities had been searching for the applicant in the four months he had stayed with his sister and that he had been able to leave Iran through the strict security of the airport using a passport in his real name and with his photograph;

   c)the Reviewer did not accept that the applicant was stateless or that he did not have any official identity or status in Iran.  In this regard, the Reviewer found fanciful the applicant’s claims to have:

   i)left Iran using a fake passport issued in his own name;

   ii)obtained a fake birth certificate;

   iii)gained a fake exemption from military service; and

   iv)attended university for five years through the influence or bribery of his maternal uncle. 

   The Reviewer was satisfied that the applicant was either an Iranian citizen or a recognised refugee;

   d)the Reviewer found that there was no credible evidence to support the applicant’s claim that he would be persecuted for a Convention reason because he had left Iran illegally and was stateless.  The Reviewer found that under the law being stateless was not a sufficient basis for protection.  He found that while it was possible that the applicant would come to the adverse attention of the authorities for departing Iran illegally, such attention would be pursuant to the application of the general law and not for a Convention reason;

   e)the Reviewer found the applicant’s claim that he would be suspected of being a Western spy or collaborator to be mere speculation.  He noted country information indicating that Faili Kurds were not targeted because of their ethnicity and found that the applicant’s history was evidence of that;

   f)the Reviewer found that there was no basis for a sur place claim arising from the applicant’s alleged political activism.  He found that the Facebook page opened by the applicant while in Australia was limited to his friends and their friends and that there was no evidence to suggest that it had come to the notice of Iranian authorities.  Further, based on the fact that he had not made the claim earlier than the second review, the Reviewer did not accept that the applicant had worked at a Green movement office just before the election and found that that claim was an invention made by the applicant to enhance his claims; and

   g)whilst accepting that some, and possibly most, Faili Kurds experienced discrimination and hardship in Iran, the Reviewer accepted country information indicating that they were not targeted because of their ethnicity and that racially motivated violence against any group in Iran was rare.  The Reviewer found that whilst the applicant had had random encounters with the Basij, they had not sought him out personally or displayed any particular interest in him, other than to confiscate his satellite dish, which was something that they generally did.  He found that the applicant’s circumstances did not amount to serious harm.

2. The Reviewer did not consider the applicant’s claims against Iraq because he found that the applicant did not have Iraqi citizenship and had never lived there.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The reviewer failed to consider claims made by the applicant which bore upon Australia’s obligation to provide protection to the applicant.

   Particulars

   a.The reviewer found the applicant was either an Iranian citizen or a recognised refugee but the reviewer then did not consider the claims the applicant made that Faili Kurd/Iraqi refugees were denied basic rights which amounted to persecution.

   A second allegation was not pressed.

2. At the hearing of this application, the applicant’s submissions were based on para.32 of the Reviewer’s reasons which said:

   I do not accept his claims to be stateless and not have any official identity or status in Iran.  The evidence is completely to the contrary.  He left using a passport issued in his own name which he claims to be fake.  He completed schooling, obtained a birth certificate which he claims to be fake, gained an exemption from military service which he claims to be fake and attended university for 5 years, again through the use of influence/bribery by his maternal uncle.  I find these claims fanciful.  I am satisfied that he is either an Iranian citizen or a recognised refugee.

3. In essence, the applicant’s case was if the Reviewer left open the possibility that he was a recognised refugee, rather than an Iranian citizen, then the Reviewer was obliged to consider all his claims for fear of persecution by reason of him being a refugee.  The applicant submitted that the Reviewer had failed to do so by not considering the written submissions of 29 January 2011. 

4. Contrary to this allegation, I find that the Reviewer was aware of and did read those submissions.  I base this conclusion on the email chain found at pages 243 to 249 of the bundle of Relevant Documents which indicates an awareness by the Reviewer of two post-hearing submissions.  The question therefore is whether the Reviewer considered the material in the submission of 29 January 2011.  The final email in the chain is strong evidence that he did.  Written by an officer, it said:

   Dear Rebecca

   I passed your email onto Michael Griffin who advised that he did consider the latest submissions and had nothing to add or alter in his recommendation.

   I infer that the reference in that email to the “latest submissions” is a reference to the submission of 29 January 2011, being the one received by the Reviewer last in time even though it had been sent to him some time earlier. 

5. The applicant submitted that the various consequences of not having Iranian nationality set out in the submissions of 29 January 2011 were not adequately considered because no reference was made to them in the Reviewer’s reasons for his recommendation. However, most were so inconsequential in terms of the sort of serious harm required by s.91R of the Act that individual reference to them was unnecessary. As to the aspects of statelessness which might point to persecution, the Reviewer said this about the applicant:

   In the claimant’s case there are no particular and individual factors that distinguish him from the general Kurdish population and that would support his claim for protection.  He has lived in Iran for 34 years and was able to go to school, obtain a birth certificate that allowed him to attend university for 5 years, to work in a managerial position and to live undisturbed, except for one incident, at the family home.  The one incident at the home involved the Basij coming to the house and confiscating a satellite dish.  This is consistent with country information about the role and activities of the Basij as a ‘moral police’ force.  The evidence is that the Basij target satellite dishes.  There is nothing to suggest the claimant was particularly targeted for having the dish and this is reflected in the imposition of a fine one week later.  Significantly, the Basij did not come to the house and detain or harm the claimant.

6. It was suggested that the Reviewer should have discussed the applicant’s claim that denial to him of Iranian nationality was discriminatory.  However, discrimination does not, without more, amount to persecution.  Specifically in the context of refusal of nationality, it is not that refusal which could be said to be persecutory but rather the conduct which might flow from it.  Consequently, the Reviewer was not required to give separate, specific consideration to the denial to the applicant of Iranian nationality, particularly as no claim had been made by the applicant that it did, itself, amount to persecution. 

1. Finally, the applicant submitted that all the consequences of the lack of Iranian nationality should have been considered cumulatively by the Reviewer.  No evidence suggested that the Reviewer did not do this when considering the 29 January 2011 submissions.   

Conclusion

1. For these reasons, I find that the Reviewer’s decision was not procedurally unfair or not conducted by reference to the correct legal principles correctly applied.

2. Consequently the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  4 March 2014