SZTFX v Minister for Immigration and Border Protection

Case [2015] FCA 402

FEDERAL COURT OF AUSTRALIA

SZTFX v Minister for Immigration and Border Protection [2015] FCA 402

Citation: SZTFX v Minister for Immigration and Border Protection [2015] FCA 402
Appeal from: Application for extension of time: SZTFX v Minister for Immigration & Anor [2014] FCCA 361
Parties: SZTFX v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number: NSD 1228 of 2014
Judge: MCKERRACHER J
Date of judgment: 30 April 2015
Catchwords: MIGRATION – application for extension of time – explanation for delay – merits of substantive application – appeal from refusal of protection visa – whether independent merits reviewer failed to consider post interview submissions – whether independent merits reviewer failed to consider, either severally or cumulatively, the applicant’s claims that he had been denied basic rights incidental to nationality and the discriminatory conduct which might flow from the alleged discriminatory refusal of nationality – whether such claims constituted a fear of serious harm under the Convention as defined in s 91R of the Migration Act 1958 (Cth)
Legislation: Migration Act 1958 (Cth) ss 36, 91R
Federal Court Rules 2011 (Cth) r 36.05
Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
Gallo v Dawson (1990) 93 ALR 479
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Date of hearing: 23 February 2015
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 55
Counsel for the Applicant: Mr JF Gormly
Solicitor for the Applicant: Labour Pains Legal
Counsel for the First Respondent: Ms L Buchanan
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make in the proceeding, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1228 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZTFX
Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

30 APRIL 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to file a notice of appeal be refused.

2.The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1228 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZTFX
Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:

MCKERRACHER J

DATE:

30 APRIL 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant is a Faili Kurd, born in Iran.  He arrived at Christmas Island, Australia on 31 January of 2010 and subsequently sought a refugee status assessment in order to obtain a protection…

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AGLC
SZTFX v Minister for Immigration and Border Protection [2015] FCA 402
Case
[2015] FCA 402
Decision Date

CaseChat Overview and Summary

In the matter of SZTFX v Minister for Immigration and Border Protection, the Federal Circuit Court was tasked with determining the appeal of SZTFX, a Faili Kurd from Iraq, against the refusal of a protection visa by the Minister for Immigration and Border Protection. The primary issue before the court was whether the Independent Merits Reviewer (IMR) failed to consider the applicant's claims of being denied basic rights and discriminatory conduct related to his alleged statelessness and refusal of nationality in Iran. Additionally, the court had to assess whether these claims constituted a fear of serious harm under the Convention as defined in section 91R of the Migration Act 1958 (Cth).

The applicant argued that the IMR did not adequately consider post-interview submissions regarding the denial of basic rights and discriminatory conduct resulting from the alleged discriminatory refusal of nationality. The court examined the evidence and submissions provided by the applicant, including medical reports indicating the applicant's mental health issues and expert opinions on the impact of his detention and experiences. However, the court found that the IMR had adequately reviewed the applicant's claims in the context of the criteria for a protection visa, focusing on whether the applicant would face persecution or serious harm for Convention reasons. The court concluded that the IMR considered the applicant's claims comprehensively and made factual findings that the applicant would not suffer real harm in Iran, addressing all the claims that were required to be considered.

The court ultimately determined that the appeal did not have a real prospect of success. It held that the IMR's review was in line with the criteria for a protection visa and that the claims regarding denial of basic rights and discriminatory conduct were properly considered in the context of the Convention. The court found no procedural flaws in the IMR's process and rejected the applicant's arguments regarding the alleged omissions.

In light of the above, the court made the following orders: 1) The application for extension of time to file a notice of appeal be refused; 2) The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed.

Orders

Orders of the court

1. The application for extension of time to file a notice of appeal be refused.

2. The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

However, in my view, it cannot be said that there is sufficient merit in the proposed substantive appeal. There are five proposed grounds of appeal and the applicant chose his best ground to support his application as the other grounds would have had lower prospects of success.BACKGROUND The applicant was released into community detention on 25 January 2012, and he was granted his bridging visa on 21 November 2012. He then moved to Sydney in March 2013 and in May 2013 approached the public interest law clearing house (PILCH) in Sydney. He moved to Melbourne in July 2013 and commenced proceedings in the Federal Circuit Court in September 2013. A clinical psychologist, Ms Aslihan Tokgoz, provided a report in respect of his mental state on 15 November 2013 (2013 Medical Report). The Federal Circuit Court delivered an ex tempore judgment on 18 February 2014. Some time late in February 2014, the applicant contacted Shines Lawyers for assistance. The 21 day period for an appeal from the Federal Circuit Court judgment expired on 11 March 2014. In April 2014, the applicant was referred to the Victorian Legal Aid (VLA) by Shines Lawyers. The VLA gathered information from the Department for about a month and a half and in July 2014, the applicant decided to appeal from the Federal Circuit Court judgment. On 11 July 2014, the applicant applied to Legal Aid New South Wales. That application was refused on 31 July 2014. He appealed to a Legal Aid Review Committee. That appeal was dismissed on 18 September 2014. He approached the VLA, who later referred him to Asylum Seeker Resource Centre for assistance with his extension of time application. His affidavit in support was sworn on 22 October 2014 and he applied for an extension of time in this Court on 24 November 2014. EXPLANATION FOR DELAY The applicant contends, and I accept, that there are probably three periods of delay. The first period before deciding to appeal was from March to July 2014. Throughout this period, it is argued that the applicant was suffering from a psychiatric disorder due, at least in part, to his experiences in detention. He, himself, attributed the delay to disillusionment with the court process and paranoia surrounding the motivation of its decision-makers. At that time he had spent two years in detention and 10 months in community detention before his release. He had received four negative decisions, namely, a refugee status assessment, two IMRs and the judgment of the Federal Circuit Court. Prior to the hearing and the decision of the Federal Circuit Court, his treating clinical psychologist, Ms Tokgoz, reported in her 2013 Medical Report that he suffered major depressive disorder, post-traumatic stress disorder and panic attacks. She reported that during his years in detention he had witnessed many traumatic events including his friends’ suicide. She also reported that the applicant, himself, was suicidal. Ms Tokgoz made a further report dated 5 December 2014. In that report she referred to the applicant’s loss of trust in authorities, she confirmed the previous diagnoses and referred to the applicant’s failure ‘to file his application in time in early 2014’, together with his high level of anxiety and fear for his future. She expressed the view that ‘… his psychiatric condition might have caused his failure in his application due to his anxiety and paranoid thoughts’.

Evidence

Evidence Before The Court

In this regard, it is important to note what the Full Court (French, Sackville And Hely JJ) said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (at [45]-[46]):45In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is: ‘… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision. 46It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.(emphasis added) On application of these important principles, in my view, it is a fair reading of the IMR that the Reviewer identified the applicant’s claim to fear harm as a Faili Kurd/Iraqi refugee. The Reviewer drew to the applicant’s attention at the interview, certain country information which was relevant to the question of whether Faili Kurds, including those who are refugees from Iraq, might face persecution in Iran. He relied upon that information in forming his conclusion that the applicant would not face persecution as a Faili Kurd in Iran. His findings, having rejected the claim that the applicant was stateless, were based on the fact that he considered the applicant to be an Iranian citizen. However, he also entertained the possibility that the applicant may have been a recognised refugee and therefore not an Iranian citizen. He considered the claims on that basis. The Reviewer rejected the contention the applicant was stateless, but in any event, found that being stateless would not lead to persecution. I do not consider that this process is flawed.

Decision

Reasons for decision

The position and arguments taken for the applicant have been somewhat confusing. But, in my view, it is clear from the findings reached that the Reviewer did not accept the applicant’s submission that he was denied basic rights. He referred to the applicant’s own considerable work and educational history and the material from DFAT and then concluded that there was not ‘a real chance’ of harm to the applicant for a Convention related reason. The factual finding that the applicant would suffer no real harm in Iran was made in the context of accepting the possibility that he may have been a recognised refugee and having accepted that minority groups, including Faili Kurds, faced some discrimination and hardship. That finding, which was comprehensively explained, addresses all the claims the Reviewer was required to, and would reasonably be expected, to consider. CONCLUSION For those reasons, I do not consider that the appeal would have any real prospect of success and, accordingly, I will make the following orders:1.The application for extension of time to file a notice of appeal be refused.2.The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed.

Ratio Decidendi

Legal Principle Established

In particular it would be expected, it is argued, that the Reviewer would address the claims made in the 2011 Submissions that the Iranian laws related to nationality, including Art 42 of the Iranian Constitution and Arts 976, 983 and 976 of the Civil Code of Iran, were discriminatory in their application to stateless Iraqi Faili Kurds, as these people were unable to provide the required documentary proof of foreign nationality. Therefore, according to the applicant, the issue for the Reviewer was whether the nationality laws discriminated against stateless Iraqi Faili Kurds as claimed, or whether they were laws of general application which do not discriminate against Iraqi Faili Kurds either in their terms or in their application. Although, in the Federal Circuit Court the Minister maintained that the nationality claims were subsumed in the findings on the applicant’s individual circumstances (at [30], [32] and [35]), the applicant argues that those findings did not explicitly cover all of the claimed difficulties. The applicant contends the remaining nationality claims, which have not been addressed were:·denial of nationality, identity and citizenship;·right to obtain a marriage certificate;·right to vote or participate in Iran’s political processes;·right to seek legal remedy before the law;·right to freedom of movement and residence;·right to own or rent property;·right to earn a livelihood – the right to equal pay for equal work and free choice of employment; and·right to access public services - right to publically subsidised health care and other public services.CONSIDERATION OF APPEAL PROSPECTS The Reviewer’s recommendation was governed by the terms of the Migration Act 1958 (Cth) (Act) as it stood at the time. Section 36 and s 91R of the Act, as at 2011, were enacted prior to the introduction of the complementary protection provisions (which came into effect on 24 March 2012). Accordingly, the Reviewer was only required to consider whether or not the applicant would face a well-founded fear of persecution or serious harm for the purposes of the Convention as defined in the Act. To the extent that the nationality claims depend upon conventions other than the Convention, they were not within the range of matters required to be considered by the Reviewer. The way in which the nationality claims would be viewed, therefore, would be confined only to the denial of those basic services and economic hardship that threatened a person’s capacity to subsist. There is no doubt that the IMR reviewed this contention for the applicant and firmly rejected it on the merits. In the applicant’s 2011 Submissions, it was submitted that the applicant would suffer discrimination as a result of the absence of nationality, and that such discrimination would result in the denial of fundamental basic rights which, collectively, amounted to the type of serious harm or persecution that the Convention was intended to cover. It was argued that when the denial of rights is combined with the deteriorating human rights situation in Iran, particularly the increased targeting of ethnic and religious minority groups, a well-founded fear of persecution in the mind of the applicant is established on a cumulative basis. The submission was not that a denial of nationality was itself persecution for the purposes of the Convention, rather, that all of the rights that the applicant had been denied in total cumulatively result in persecution. That was apparently how the Reviewer understood the submission, and was how the Reviewer focussed on the question of whether or not the claims the applicant had made would result in persecution for the purposes of the Convention, taking into account matters such as the applicant’s ability to subsist, to live, have access to health and other factors.