WZAPA v Minister for Immigration
[2012] FMCA 363
•30 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 363 |
| MIGRATION – Independent Merits Review report advises Minister that Australia does not owe applicant protection obligations – judicial review – no legal error in report. |
| Migration Act 1958 (Cth), s.91R |
| DZABS v Minister for Immigration & Anor [2012] FMCA 297 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 |
| Applicant: | WZAPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY BOLAND (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) |
| File Number: | PEG 228 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 30 April 2012 |
| Date of Last Submission: | 30 April 2012 |
| Delivered at: | Perth |
| Delivered on: | 30 April 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr R.L. Hooker |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
That the Application for Review filed on 18 August 2011 is dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the sum of FIVE THOUSAND DOLLARS [$5,000.00].
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 228 of 2011
| WZAPA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY BOLAND (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) |
Second Respondent
REASONS FOR JUDGMENT
I have discussed in some detail recently my jurisdiction in cases of this kind in DZABS v Minister for Immigration & Anor [2012] FMCA 297 and [50] to [64] of that decision summarises my understanding of the nature of the jurisdiction I am exercising, in the light of the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, and that is the understanding I bring to the determination of this application
The application to this Court seeks only declaratory relief. The applicant now represents himself. I indicated to counsel for the first respondent that I would adjudicate the matter upon the assumption that the application was intended to be one which at the very least included an application for an injunction in addition to the declaration sought, and that if the application so understood otherwise had merit, I would make an order permitting an amendment to include that relief.
The Independent Merits Reviewer proceeded on the basis, firstly, that Iran was the country of former habitual residence of the applicant. So much is plain from [57] of her decision and secondly, that the applicant was a stateless person, and that is plain from [60].
The Independent Merits Reviewer considered the claim on the basis that the applicant was someone who feared persecution as an undocumented Faili Kurd.
The Independent Merits Reviewer appears to have proceeded upon the basis that the persecution that was alleged was essentially on the grounds of race, but the applicant had argued (vide an earlier legal submission) that the persecution might also be taken to be on the basis of an imputed political opinion as a person oppositional to the existing regime in the Iranian state.
The Shia version of Muslim practised by most Faili Kurds (and by this applicant) militated against the issue of religion being a ground alleged in relation to persecution, at least insofar as the assessment of the persecution by the Iranian state was concerned.
I should note that at [33] to [49] of the decision, the Independent Merits Reviewer cites a large quantity of country information.
Section 91R of the Migration Act 1958 (the “Act”) explicates the application of the Refugees Convention as amended by the Refugees Protocol to the consideration of claims for refugee status, and subsection (1)(b) makes clear that the persecution alleged must involve serious harm to the person.
Subsection (1), without limiting what is serious for the purposes of paragraph (1)(b), gives a number of instances of serious harm for the purposes of that paragraph, and they are then listed at subparagraphs (a) to (f).
The Independent Merits Reviewer said this of the applicant’s circumstances at [62]:
In this claimant’s case he lived in an isolated mountainous area in a province that is predominately Kurdish and where he had no contact with the Iranian authorities since 1996. There is no evidence that he has ever engaged in political activity or that this is likely to occur in the future. There is no evidence that he was ever accused of engaging in political activity. Further, there is no evidence that the claimant would …
and it says, “into contact”, but it should say:
come into contact with the authorities in the course of his daily living.
That appears to be a fair summary of the applicant’s own account of his circumstances given in interview to the Independent Merits Reviewer, and in the written submissions of his former legal representatives.
The Independent Merits Reviewer went on to find that the applicant’s life as a farmer, or shepherd, in the Ilam Province in Iran, did not involve circumstances that amount to persecution. There were hardships, undoubtedly, and the Independent Merits Reviewer instances ways in which the applicant’s lack of an ID card within Iran had significant impact upon his life. For example, he could not legally marry, even if he could religiously marry, in Iran.
Another instance is his limited access to schooling, but the conclusion that is come to in relation to matters arising from his general living circumstances in Iran, is that which is set out in the last sentence of [63]. The Independent Merits Reviewer says:
I am satisfied that apart from having no identity documents and limited access to schooling the claimant had gainful employment and lived a life largely unfettered by the outside world.
The applicant’s detailed account of an incident involving his being shot by members of the Basij in Iran in 1996 was essentially accepted by the Tribunal. The Basij, according to the country information that was reviewed by the Independent Merits Reviewer, is a paramilitary or informal institution or aggregation of former police officers and former army officers in Iran that, according to the country information, and indeed on account of their informal disciplinary arrangements, have played significant roles in the persecution of minorities within the Iranian state.
The applicant gave an account of being apprehended by the Basij in Iran in 1996 when he and a friend were looking for sheep that had strayed near a dam. There was some controversy as to why it was that the claimant was apprehended. He said, through his former legal advisor’s submission, that it was essentially because of his race. That is, he was targeted by this particular Basij on this occasion, but that is not a matter about which the Independent Merits Reviewer came to any conclusion.
To the extent that she did come to a conclusion, it was that it was not possible to know from the evidence if the claimant was apprehended because he and his friend were in a restricted area, or because they had no identification. But she accepts that they were apprehended by the Basij, and that the applicant received a bullet wound when he ran away, requiring specialist medical treatment.
As I say, it was not necessarily accepted by the Independent Merits Reviewer that the conduct of the Basij on this occasion was politically motivated. That was certainly what was argued by the applicant through his former legal advisors, and the summary of their argument is to be found at [29] of the reviewer’s decision.
So the political motivation of the conduct of the Basij on this occasion was not specifically rejected but it should be borne in mind, that even if the persecution was not politically motivated it does not mean that once he is someone that has been brought to the attention of the Basij, their subsequent interest in him will not have been politically motivated. But these matters have not assumed any significance in the Independent Merits Reviewer’s Reasons because of the conclusion that she came to that the applicant was not at risk of serious harm from the Basij for whatever reason.
As the Independent Merits Reviewer said on more than one occasion, “they”, meaning the Basij, have left him on his own for a period of approximately 14 or 15 years following the incident.
In summary, at [65] in relation to this incident, the Independent Merits Reviewer said:
If the Basij had a continuing interest in him after the incident in 1996 they could have located him at the family home, in his village and in the places where he worked. They did not do so.
And then later in that paragraph:
If the Basij wanted to locate his father or indeed any member of the family at work they would have done so. I conclude that the claimant was not of adverse interest to the Basij in the fifteen years prior to his departure.
That passage must be regarded as the key finding of the reviewer’s decision, if only because the example of the persecution given in relation to that matter was the most serious.
There is another category of information that is given by the applicant in his interview with both the Independent Merits Reviewer and the delegate, and that can be summarised as a witnessing of incidents involving the conduct of the Basij towards other persons. But at [66] of the decision, that aspect of the claim is also rejected.
Paragraph 67 of the Reasons is a gathering together of all of the conclusions to which I have referred. The reviewer says:
In summary, the claimant’s profile when he was living in Iran was that of a non citizen and Faili Kurd. He was a non citizen like members of other minority groups such as Afghans who lived in the country without documentation. When I asked who would harm him and why in the event that he returned the claimant said ‘if the Basij find out about the past incident he will be killed. The Basij will harass him and cause trouble for him’. He added that ‘Even though he was living there in the past, he was not really living properly. He spent his entire life in fear’.
– and where the reviewer has quoted the applicant there, she should be taken to have been making the references in the first rather than the second person. The reviewer goes on:
As noted above, I am satisfied that the claimant was not of interest to the Basij in the fifteen years prior to his departure. His family continue to live and work in the same community in Ilam province. There is no evidence that his family have experienced serious harm at the hands of the Basij or other Iranian authorities. There is no evidence that since their arrival in Iran around 1980 that they have ever been threatened with deportation. I can find no reason why the claimant cannot return to Iran and resume his life living and working as a shepherd and farmer in Ilam province. I accept that this lifestyle may not be a comfortable one and oftentimes a frugal existence, however, that does not lead to a finding that he would be persecuted, let alone for a Convention reason.
Finally, it should be noted that the reviewer accepted that the applicant would have considerable difficulty in returning to Iran. That conclusion is found at [58] of the reviewer’s Reasons where it is said that:
I accept that the claimant did not have ID documents and was not granted Iranian citizenship prior to his departure. He has now left Iran; he cannot apply for Iranian citizenship and he has no right of return. I find that he is not an Iranian national.
and those findings constituted an acceptance of the applicant’s case on that point. But at [68] following a review of the country information, the reviewer came to this conclusion:
I conclude from the country information that the claimant’s inability to return to Iran would be because of his lack of Iranian citizenship and not because he is a Faili Kurd. I find that the claimant’s inability to return to Iraq would not be Convention related.
On my reading of the decision and of other relevant material that was before the decision-maker, I am satisfied that firstly, the reviewer properly apprehended her role following upon the request for the review of the delegate’s decision by the applicant.
Secondly, I am satisfied that the reviewer took into account the applicant’s legal representative’s submissions, the applicant’s own accounts in interview with herself and with the delegate, and I am also satisfied that the reviewer made a fair and appropriate use of country information which information was fairly summarised by her. I am further satisfied that the reviewer adequately accounted in her Reasons for her coming to the conclusion that Australia did not owe the applicant protection obligations. I am unable to find any legal error in the way in which the reviewer went about her task.
In those circumstances the application for review will be refused.
In this circumstance, the granting of leave to amend the application to include an application for injunctive relief would be futile.
In the circumstances it is appropriate there be an order for costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 4 May 2012
0