SZTNR v Minister for Immigration

[2014] FCCA 1981

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1981

Catchwords:
MIGRATION – Review of report and recommendation of an Independent Protection Assessor – applicant claiming a fear of harm in Iran – applicant’s fear found not to be well-founded – whether the Assessor failed to address a claim by the applicant in relation to his fear of harm as a returnee considered.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 477

Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd [2013] SCC 34
Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088

WAEE v Minister for Immigration (2003) 75 ALD 630

Applicant: SZTNR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: WILLIAM KENNEDY IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 2877 of 2013

Judgment of: Judge Driver

Hearing date: 29 August 2014

Delivered at: Sydney

Delivered on: 3 October 2014

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Counsel for the Respondents: Mr J D Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 20 November 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2877 of 2013

SZTNR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

WILLIAM KENNEDY IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a report and recommendation of an Independent Protection Assessor (Assessor). The report is dated 7 March 2012. The Assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. The report pre-dated the commencement of the amendments to s.36 of the Migration Act 1958 (Cth) (Migration Act) which introduced the complementary protection criterion for protection and hence the report did not deal with that criterion.

2. The applicant is from Iran and had made claims for protection on various bases.  The following statement of background facts relating to his claims for protection and the assessment of them is derived from the parties’ written submissions.

3. The applicant is a 25 year old male Iranian national of Arab ethnicity. He arrived in Australia on 7 May 2011 at Christmas Island.

4. As an “offshore entrant” the applicant was not permitted to apply for a protection visa; instead his claims were assessed by a non-statutory process consisting of an initial Protection Obligations Evaluation (POE) followed by an Independent Protection Assessment (IPA). This process was established to advise the Minister whether to lift the bar to allow offshore entrants to apply for a protection visa pursuant to s.46A Migration Act 1958 (Cth) (Migration Act).

5. On 5 August 2011 an immigration officer who conducted the initial POE found that the applicant was not a refugee as defined in the Refugees Convention and referred his case for an IPA[1].

   [1] Court Book (CB) 92-101

6. On 7 March 2012 the Assessor recommended that the applicant not be recognised as a person to whom Australia owed protection under the Refugees Convention[2].

   [2] CB 148-175

7. These proceedings were commenced on 20 November 2013[3].

   [3] In SZQDZ v Minister for Immigration [2012] FCAFC 26 a Full Federal Court found that proceedings seeking quia timet injunctions in respect of IMR recommendations were not subject to the time limitation provisions of s.477 of the Migration Act. 

Applicant’s claims to the POE officer

1. The applicant gave an account of the discrimination he suffered at school as a person of Arab ethnicity and how his father had been targeted as an Arab by municipal officers who forced him to close his watch repair shop[4].

   [4] CB 63

2. Significantly for this application the applicant claimed to fear persecution as a person who had “applied” for a refugee visa in Australia. He claimed that he would be persecuted “more severely” as he was of Arab ethnicity[5].

   [5] CB 64, [12]

Applicant’s claims to the Assessor

1. In a letter to the Assessor dated 6 February 2012 the applicant’s advisors claimed that the applicant had a well-founded fear of persecution on the grounds of his race (as an Arab in Iran); his actual or imputed political opinion (as one opposed to the current Iranian government); and his membership of the particular social group of failed asylum seekers[6].

   [6] CB 110

2. Under the heading “Threat of harm for imputed political opinion” the applicant’s advisor made the claim that “Anyone on the ‘wrong side’, like (the applicant), from an ethnic minority subjected to ongoing persecution within Iran, whose parents were expelled from Iraq and who has claimed asylum in a western country and criticized the Iranian authorities in the process, is automatically a threat to the regime and vulnerable to persecution”[7].

   [7] CB 114

3. Under the heading “Serious harm as a member of particular social group of failed asylum seeker” (sic) the advisor concluded “It is reasonable to assume that [the applicant] would be interrogated on his return to Iran given his length of time outside Iran, his lack of passport and more significantly his Arab ethnicity. Country information demonstrates that there is a systematic discrimination of ethnic minorities in Iran and we consider that a returned Iranian of Arab ethnicity is likely to be treated more harshly than a Persian”[8].

   [8] CB 118

4. In later submissions dated 5 March 2012 the advisors submitted that the applicant’s “act of travelling to Australia and applying for asylum needs to be considered cumulatively with his personal circumstances.  We believe you cannot exclude as far fetched or too remote that the Client on returning to Iran as a young, Arab male Failed Asylum Seeker would be at a real risk of facing serious harm”[9].

   [9] CB 142

Assessor’s report

1. In his report under the heading “POE Assessment” the Assessor recited the applicant’s original claim that on return as a person who had applied for a refugee visa he would be persecuted more severely as a person of Arab ethnicity[10].

   [10] CB 152 [22]

2. Under the heading “Information received following IPA interview” the Assessor referred to the advisor’s submission that the applicant’s claims “must be considered cumulatively and that it is not far-fetched that as a “young Arab Male Failed Asylum Seeker” he would be at real risk of facing serious harm”[11].

   [11] CB 156 [49]

3. The Assessor considered country information relating to the applicant’s ethnicity claims under the heading “Treatment of Minorities/Arabs”. The Assessor found no reports of harassment by the authorities based on Arab ethnicity outside the south-western province of Khuzestan[12].

   [12] CB 159 [66]

4. From [86] the Assessor addressed the ethnicity and returnee claims separately.

5. The Assessor accepted that the applicant may have suffered some discrimination as an Arab[13] but that this and any discrimination likely to be suffered by him did not amount to persecution[14].

   [13] at CB 169-170 [109]

   [14] CB 170 [111]

6. From [113] the Assessor then went on to consider the returnee claim in the following terms: “ [the applicant] has also said he fears returning to Iran because he has applied for asylum in Australia”.

7. The Assessor accepted that it was likely that the Iranian authorities would become aware that the applicant had applied for asylum in Australia[15].

   [15] CB 170 [114]

8. The Assessor accepted that on return: “Certainly persons who are thought to have an anti-Government political profile will be singled out for special attention, and in some cases this may result in ill treatment[16].

   [16] CB 173 [127]

9. The Assessor considered DFAT advice that maltreatment by the Iranian authorities of returning failed asylum seekers was “possible in isolated cases”[17].

   [17] CB 171 [115]

10. The Assessor reasoned on the basis of other information that “those who have a political profile are more likely to suffer maltreatment than those who are not”[18].

    [18] CB 171 [118]

11. The Assessor found that “Despite the claim in the submission of 6 February 2012 …[the applicant] has provided no evidence that he has any political profile…”[19].  At [126] the Assessor said he did “not accept that [the applicant] would be perceived as an opponent of the regime”.

    [19] CB 171 [118]

12. The Assessor reasoned at [121] “as [the applicant] does not have a political profile, the chances of him being maltreated are at the lower end of the range covered by the word “possible” in the DFAT advice. The Assessor concluded[20]:

    I find that the advice from DFAT does not support the conclusion that there is a real chance that a person with [the applicant’s] profile would suffer persecution as a result of seeking asylum.

    [20] at CB 172 [122]

The judicial review application

1. These proceedings began with a show cause application filed on 20 November 2013.  The applicant continues to rely on that application which contains a single ground of review:

   The second respondent (the assessor) failed to accord the applicant procedural fairness in that the assessor did not address a claimed basis for the applicant’s fear of persecution, namely the applicant’s Arab ethnicity, age and gender as express integers of the applicant’s claim as a failed asylum seeker returning from Australia.

2. I have before me as evidence the court book filed on 10 January 2014. 

3. The parties made both oral and written submissions.

Consideration

1. The applicant’s contention is a simple but subtle one.  It is not in contest that the Assessor’s report is a detailed and careful consideration of the applicant’s claims[21].  Neither is it in contention that the Assessor considered the applicant’s Arab ethnicity generally in relation to his fear of harm in Iran.  The question is whether the Assessor needed to deal specifically with the applicant’s Arab ethnicity when dealing with his claim based upon his membership of a particular social group of returnees to Iran who are failed asylum seekers?

   [21] Indeed, in my view, the report is one of the most thoughtful reports of an Assessor that I have read

2. The question arising from the application is whether, in the absence of any explicit reference to the applicant’s ethnicity in its consideration of the returnee claim, the Assessor’s findings about the applicant’s “political profile” or “profile” should be read to include the applicant’s ethnicity and the entirety of the claim that the applicant feared he would be persecuted more severely as a failed asylum seeker because he was Arab.

3. In favour of reading the ethnicity claim into the findings on profile is the Assessor’s references to the original claim at [22] and at [118] to the advisor’s submissions of 6 February 2012 which claimed under the heading “Threat of harm for imputed political opinion” that as one from an ethnic minority and therefore on the “wrong side” the applicant was automatically a threat to the regime and vulnerable to persecution[22].

   [22] CB 114

4. However the claim of imputation of a political opinion due to race does not necessarily account for the entirety of the applicant’s race claim which he put in rawer terms in his entry interview: “you can see the hatred of people there towards Arabs”[23]. The original claim in the applicant’s statement was in broader terms of race which was not defined or limited to the imputation of a political opinion.  The 6 February 2012 submissions also put race as an integer of the returnee claim separately from the imputed political opinion integer of the returnee claim[24].

   [23] CB 10

   [24] at CB 118-119

5. The applicant contends that the Assessor’s findings may deal with the claim of political opinion imputed as a member of a minority race in the returnee claim as made in the submissions of 6 February 2012, but they do not deal with the claim that the race difference was of itself a reason to fear more severe harm as an involuntary returnee.

6. The applicant submits that the recital of the claims at [86] that the applicant “has said that he fears if he returns Iran (sic) he will suffer persecution for being an Arab and for having applied for asylum in Australia” should be read disjunctively.

7. On this basis, the Assessor’s findings from his separate consideration of the race claim are said not to undermine the race integer in the returnee claims. The Assessor found there was a body of evidence that minorities in Iran, including Arabs, suffer discrimination.  The Assessor found that the evidence in relation to Arabs was confined to Arabs living in Khuzestan and along the Gulf coast[25].  The applicant submits that, because the Assessor was prepared to accept that “it is possible that [the applicant] speaks Farsi with an accent that allows him to be identified as not having Persian ancestry” the geographic distinction would not apply at the point of return, particularly as the majority of Arabs were from an area where the assessor accepted there was specific evidence of persecution and discrimination[26].

   [25] at CB 165 [87]

   [26] CB 165 [88]

8. I prefer the Minister’s submissions in this case. 

9. Two related principles are relevant to these proceedings: first, the failure to respond to a substantial, clearly articulated argument relying upon established facts amounts at least to a failure to accord an applicant procedural fairness[27]; and secondly, an inference that a decision-maker failed to deal with an issue should not be too readily drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or there is a factual premise upon which a contention rests which has been rejected[28].

   [27] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at 1092 [24] per Gummow and Callinan JJ

   [28] WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]

10. In her submissions to the Assessor dated 5 March 2012 the applicant’s agent wrote that the applicant’s travel to Australia and applying for asylum needed to be considered cumulatively with his personal circumstances and that it could not be excluded as far-fetched that the applicant would be at real risk of harm as a young Arab male failed asylum seeker[29]. That submission must be seen in its context.

    [29] CB 142

11. First, the submission was made in response to concerns raised by the Assessor at the interview conducted on 10 February 2012. One of those concerns was that, according to the Assessor, the evidence of discrimination in Iran appeared to be focussed solely on Khuzestan in the south of the country whereas the applicant came from Qom, in the north.  Secondly, it was in response to this that the agent submitted that this focus did not mean that Arabs in other parts of the country would not be at “risk of facing the same discrimination, violence and repression as the Arabs within Khuzestan.” Thirdly, in line with that submission, the agent next wrote that “it could not be excluded as farfetched or too remote that an Arab in the [applicant’s] circumstances particularly given that he is from an area where he would be a clear ethnic minority, would face serious harm.”

12. The submission set out at [38] above followed immediately after these statements. Thus, the ultimate submission had to be understood as being dependent to a significant degree on the acceptance of the proposition that there was a real chance of persecution as an Arab outside of Khuzestan.

13. Once the submission is understood in that way, it is clear that the Assessor dealt with it.

14. First, the Assessor set out the submission verbatim[30].  Secondly, later in his reasons, the Assessor noted that the applicant claimed to fear harm for “being an Arab and for having applied for asylum in Australia”[31]. The applicant submits that this sentence should be read disjunctively. In so far as that is intended to suggest that the Assessor was not aware of the possibility of a cross-over in the various aspects of the claim, that requires the Court to read the reasons too closely.  I accept that the correct approach is to read the reasons “as an organic whole, not as a line by line treasure hunt for error”[32].

    [30] CB 156 [49]

    [31] CB 165 [86]

    [32] Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd [2013] SCC 34, 54

15. Given the Assessor’s explicit reference to the agent’s submission, his summary of the claim can be seen as accurate. The claim was not expressed as a hendiadys[33], but one consisting of different components with some connection.  The Assessor’s summary admits of the possibility of that connection. However, his findings indicate that he rejected the possibility that a combination of the applicant’s characteristics might lead to persecution.

    [33] This term was used by counsel for the Minister to describe a figure of speech in which a complex idea is expressed by two words connected by a copulative conjunction

16. First, the Assessor noted that the evidence of discrimination and persecution of Arabs was limited to the southern part of Iran[34].  Secondly, he found that, otherwise, “any discrimination likely to be suffered by (the applicant) in the reasonably foreseeable future if returned to Iran, does not amount to persecution as determined by the Courts”[35].  In light of the way in which the applicant’s submissions were framed, these findings dealt effectively with the claim that he faced any persecution as an Arab, whether in combination with return as an asylum seeker or not.

    [34] CB 165 [88]

    [35] CB 170 [111]

17. Thirdly, and in any event, the DFAT information relied on by the Assessor in connection with the asylum seeker claim covered all asylum seekers[36].  Fourthly, the Assessor, relying on a US Department of State Human Rights Report, found that the “rationale by which the authorities decide how to deal with returnees is whether they have been involved in anti-government activities rather than whether they have sought asylum.”  These findings had the effect that the group of people who might face harm on return to Iran was limited to people who had been involved in anti-government activities. That necessarily excluded the people, such as the applicant, whose only point of difference was that he was of Arab descent.

    [36] CB 171 [118]

18. The applicant’s submission that the geographic distinction in the persecution of Arabs would not apply at the point of entry[37] does not affect the conclusion. The harm faced by Arabs in the south was in response to anti-government activities. The applicant never claimed that he might be perceived to have been involved in those activities in the south, or to have come from or be going to the south and the Assessor found that he had no political profile at all.

    [37] Applicant’s submissions at [30]

19. In oral argument, counsel for the applicant sought to draw support from [130] of the report[38] where the Assessor said:

    As [the applicant] has not come to the attention of the authorities the task is to determine whether simply because he is an asylum seeker there is a real chance that he would face serious harm.

    [38] CB 174

20. Two things may be said about that passage.  The first is, as was pointed out by counsel for the Minister, the Assessor was dealing with a decision from the Refugee Review Tribunal that had been relied upon by the applicant.  The Assessor made the statement quoted above in distinguishing this case from the earlier case before the Tribunal.  The Assessor parted company with the Tribunal decision on the question whether there was a real chance that a person who has no political profile and who has not previously come to the attention of the authorities would suffer serious harm on return to Iran as a result of being an asylum seeker.  The Assessor answered that question in the negative.

21. The Assessor was certainly alive to the proposition put by the applicant’s representative that he needed to consider all integers of the applicant’s claims when dealing with the risk he faced as a returnee[39].  In my view, the Assessor should be taken not only to have understood the need to consider the applicant’s claims cumulatively in relation to his risk as a returnee but to have done so.  Having found that the applicant had no political profile and that he would not be at risk of harm because of his Arab ethnicity, the Assessor was entitled to conclude that there was nothing about the applicant that would expose him to a particular risk of harm as a returnee, apart from the simple fact of being a returnee, which would not expose him to a real risk of serious harm.

    [39] see [49] at CB 156

1. For those reasons the Assessor’s report, read as a whole, can be seen to have dealt with the applicant’s claims, both singly and cumulatively.

Conclusion

1. I conclude that the applicant has failed to demonstrate that the Assessor fell into legal error in his report.

2. I will order that the application be dismissed.

3. I will hear the parties as to costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 October 2014