WZAPK v Minister for Immigration - [2013] FMCA 19

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAPK v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 19

MIGRATION – Independent Merits Review recommends applicant not entitled to protection visa – judicial review – stateless Faili Kurd from Iran – grounds not made out.

Migration Act 1958 (Cth), ss.91R & 476
1951 Convention relating to the Status of Refugees and its 1967 Protocol

WZAPJ v Minister for Immigration & Citizenship & Anor [2012] FMCA 1202

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19

VAAD v Minster for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant:

WZAPK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 257 of 2011

Judgment of:

Lindsay FM

Hearing date:

31 August 2012

Date of Last Submission:

31 August 2012

Delivered at:

Adelaide by telephone

Delivered on:

22 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Barns

Solicitors for the Applicant:

Case for Refugees

Counsel for the Respondents:

Mr Hooker

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application for review filed on 19 September 2011 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 257 of 2011

WZAPK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia on 10 August 2010. He made application for a Refugee Status Assessment but on 10 December 2010 the Assessor determined that he did not meet the criteria for the grant of a protection visa. He applied for an Independent Merits Review (“IMR”) on 14 January 2011 and was interviewed by the Reviewer on 20 June 2011. On 23 August 2011 the Reviewer also recommended to the Minister that the applicant did not meet the criteria for the grant of a protection visa. Notification of that recommendation has led to this application for judicial review pursuant to s.476 of the Migration Act 1958 (“the Act”).
The grounds of review are set out in the document described as a Further Amended Application filed on 12 June 2012. It seeks a declaration that the recommendation of the Reviewer was not made in accordance with law and an injunction restraining the Minister from relying upon the recommendation of the Reviewer.
In WZAPJ v Minister for Immigration & Citizenship & Anor [2012] FMCA 1202 I had this to say about the nature of the jurisdiction being exercised by this Court in cases of this nature:
4. I had occasion to examine the nature of this Court’s jurisdiction in relation to such matters following the decision of the High Court in Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 and the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26. My consideration of the position that this Court was left in as a result of those decisions is to be found in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447.
5. It is the posited future reliance by the Minister upon the reviewer’s recommendation, which is the migration decision, that is the focus of the exercise of the Court’s jurisdiction in such matters. Prior to SZQDZ, cases such as the decision of Smith FM in Alami v Minister for Immigration & Anor [2011] FMCA 623 were good law in that the reviewer’s decisions themselves were regarded as migration decisions as that cognate term is used in the Act, but SZQDZ determined that in fact the reviewer’s decision is not only not a decision under the Act; it is not a decision at all.
6. In any event, SZQDZ made plain, as I indicated, that it is the posited future reliance by the Minister upon the report which grounds the jurisdiction of the Court. For reasons that I also gave in DZABS, I regarded myself as being obliged to identify jurisdictional error before allowing the review in such cases.
7. However, on 7 June 2012 Barker J delivered his judgment in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593.
8. I discussed the consequences of that decision for the exercise of this Court’s jurisdiction in matters such as the matter before me in WZAPH v Minister for Immigration & Anor [2012] FMCA 773. I came to this conclusion at [48]:
In my view his Honour’s decision is authority for the proposition that in a review pursuant to s.476(1) relating to an IMR decision this Court does not need to identify a jurisdictional error in order to allow the review.
9. At [49] of the same decision I respectfully express my reservations in relation to that conclusion, but at [50] and [51] noted my duty to follow that decision, given that his Honour was sitting as a Court of Appeal from this Court, even if there is some degree of controversy attending whether I am bound by the doctrine of stare decisis in relation to decisions of single judges of the Federal Court where they are not sitting as a Court of Appeal.
10.    In any event, as a result of those matters, the applicant in this case before me will be entitled to the relief that he seeks if he establishes legal error associated with the reliance upon the recommendation, whether that legal error is an error indicative of an excess or want of jurisdiction or not. The applicant will also be entitled to the relief claimed if he establishes that he was not accorded procedural fairness. So I will deal with the grounds he relies upon on the basis of the identification of legal error or a denial of procedural fairness as being sufficient to allow the review.
11.    I proceed in this way notwithstanding that the Full Court of the Federal Court in MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99, a decision which was delivered on 11 July 2012 and therefore after Barker J’s decision of SZQGA, continued to express the task of review in terms of identification of jurisdictional error (see [19] to [25] inclusive of the Full Court’s decision).
12.    Of course, the principles relating to the identification of jurisdictional error identified in cases such as Craig v The State of South Australia [1995] HCA 58 will continue to be of relevance in determining whether reviews of this kind will be allowed.
I will determine this application in accordance with my understanding of the legal principles explicated in the above passage.
The applicant was born in Iraq but has lived with his parents and siblings in Iran since he was very young. He claimed to be a stateless Faili Kurd living in Iran. The Reviewer accepted his claim that he was a stateless Faili Kurd despite some reservations in relation to the issue of his ethnicity (see [121] at CB 214 of the IMR).
The applicant was obliged to surrender his green card in 2006 but was not subsequently issued with a white card.
At no stage of the promotion of his claim for refugee status did he contend that he had ever been involved in a political group or organisation or any anti-government agitation and neither had any members of his family. He did have an uncle who was gaoled by Saddam Hussein and who died in prison in Iraq. Apart from his status as a stateless Faili Kurd he did not claim to be a member of any particular social group. He is a Shia Muslim. He never claimed to have been arrested or detained by the authorities in Iran, whether by official instruments of the State or informal elements of the State such as the Basij.
The four grounds of review are based upon his status as a stateless Faili Kurd or his status as a stateless Faili Kurd who is also a returnee to Iran after unsuccessfully promoting an application for refugee status in another country.
The Reviewer conducted an especially detailed analysis of country information in relation to the position of Faili Kurds in Iran (see [81] to [110] of the IMR, CB 197 – 212).
The applicant had fears that the authorities in Iran would mistreat him if he returned.
He had obtained an interim certificate upon completion of high school, having attended high school for a period of three years. He gave a history of having worked in Iran as a fruit seller, as a trainee mechanic with his father, as a telephone technician and of having returned to work as a trainee mechanic with his father within the three years prior to his departure from Iran. His status as a stateless Faili Kurd living in Iran, he claimed, meant that he had faced and would continue to face discrimination in Iran by not being able to access services such as public education, health care and protection from the State. He says that he left Iran through Tehran Airport on a fake passport which had his photograph on it, which passport was confiscated by the smuggler whom he engaged.
His family continue to live in Iran.
The first ground of review contends that the Reviewer failed to understand that the test to be applied under the Refugees Convention and Refugees Protocol and the Act was whether there was a real chance that the claimant will be persecuted if he returns to his country of nationality. It was contended and I accept that the fear may be well-founded for the purposes of the Convention even if it is a risk of well under 50 per cent. The substance of this ground is that the real chance test was not applied to the actual fear of persecution of which the applicant contended. The applicant in his answers during interview identified his fears of being a stateless Faili Kurd but one who had left Iran on a fake passport and one whose circumstances would have to take into account his status as a returnee and failed asylum seeker. It is said that the Reviewer only referred to country information that dealt with the position of Iranian nationals returning to Iran (or at least documented Iranians) who had not left Iran illegally.
However, [128] CB 215 of the IMR at dot point 3 sets out explicitly the basis of the applicant’s fears of returning to Iran. This evaluation is made separately from the other integers of the applicant’s claim which were based on his statelessness, Iraqi background and ethnicity generally, without the additional returnee factors. His fear of persecution as a returnee was evaluated against the background of those other claims. That included a recognition of the circumstance that he had left Iran illegally. In my view there is no reasonable basis for finding that the Reviewer misapplied the test in the way claimed by the applicant and this ground of review is not made out.
The second ground relates to the finding by the Reviewer that he was not satisfied that the claimant has faced or will face in Iran denial of access to basic services where the denial threatens his capacity to subsist. There were a number of elements to this aspect of the claim and they were evaluated in accordance with the provisions of the Act and in particular s.91R(2), which sets out instances of serious harm to the person which, pursuant to s.91R(1)(b) must be involved if persecution for the purposes of the Convention and Protocol is to be found to apply. Section 91R(2) is as follows:
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
The focus of the ground was upon the way in which the Reviewer dealt with subparagraph (e) of subsection (2) and the finding at [130] that:
I accept the claimant will not have access to publicly subsided health care and insurance. However, there is no information before me that shows he would be unable to access health care privately.
It is said that the Reviewer did not give the applicant an opportunity to respond on the question as to whether he could access private health care before he came to that conclusion or alternatively, that the Reviewer did not apply the real chance test to the question as to whether the applicant would not be able to access private health care.
The High Court decision in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, the case in which so called “black children” in China were recognised as a social group for the purposes of the Convention, contains an observation in the plurality judgment as follows at [29]:
Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involves such a significant departure from the standards of the civilized world as to constitute persecution.
In truth, the distinction between publicly subsidised health care and privately accessed health care in Iran is one that is only drawn by the Reviewer at this particular passage of his review. It is not a distinction that is discussed in the country information and it is not a distinction that is raised by the applicant in interview or in any of his statements or advisers’ submissions.
The Reviewer accepted that all of the disadvantages that inured to a stateless Faili Kurd apply to the applicant and that included the disadvantages arising from him not being able to get a white card when his green card was surrendered but his position, according to the country information, was not as dire as that which applied in relation to refugees who were not registered before 2001.
A fair reading of [130] indicates that the Reviewer accepted the applicant’s general position of disadvantage including that in relation to access to health care but did not accept that health care was entirely unavailable. That this finding was expressed in the form of a delineation between public and private health care was unfortunate but in my view of little practical consequence. Where the applicant promotes problems with access to health care it is within the context of all of the other disadvantages arising from his status which he says threatened his capacity to exist and made his life in Iran generally disadvantageous but there were no specific references to occasions on which required health care was denied.
It can be readily accepted that in reaching a conclusion which is a part of a decision not to recommend a person to the Minister as having refugee status, the Reviewer should only proceed upon the basis of findings or inferences from findings that are based upon probative material and logical grounds. If there is no evidence to ground the conclusion then the conclusion will involve legal error. Of course, a failure to give an opportunity to respond to a material concern held by the Reviewer may amount to procedural unfairness. But to come to a conclusion of legal error in this instance would be to take too finely calibrated a view of the requirements of fact finding. The Reviewer accepted that the applicant’s access to services was narrower than an Iranian citizen and that included access to medical services. I have already indicated there was no warrant on the country information or any other evidence for distinguishing between public and private health care. But in my view these are not matters of consequence. I am not satisfied that the way in which the Reviewer dealt with this issue could have affected the outcome of the review or the nature of the recommendation made (see VAAD v Minster for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [81] per Hill, Sundberg and Stone JJ).
This is especially so where the inference that some form of health care could be accessed was one that it was reasonable for the Reviewer to draw given the information that was available about the financial circumstances of the applicant and his family. The family were in work and earning income and the applicant was able to raise the funds required for his travel and his passport. In any event, the conclusion reached is a relatively narrow one: it is that there is no information before the Reviewer that shows (the applicant) would be unable to access health care privately and not a positive conclusion that he would be able to access it.
I am not satisfied that this ground of review has been made out.
Ground three overlaps in some respects with ground one. It focuses on a contention that the Reviewer in assessing the real chance of persecution of a returnee considered the position of a returnee in the abstract rather than considering the applicant’s position as a returnee; more specifically, it is suggested that the country information dealt with the position of Iranians returning rather than stateless persons returning to Iran. The ground was expressed in the alternative as either a failure to take into account a relevant consideration or the application of the wrong test in relation to the risk of persecution or serious harm.
However, only two aspects of the country information relating to returnees which is summarised at [86] to [91], CB 198 to CB 202, specifically limits the consideration of returnees to “Iranians” and even in those instances I am not satisfied that the expression is one which is intended to exclude from consideration a person whose place of habitual residence was Iran (the specific instances I refer to are the APCI Report 2008 and the report of the Danish Immigration Services). However, neither the DFAT 2007 Report, the DFAT 2010 advice or the UK Home Office January 2010 Report express themselves in this way but rather refer to the position of returned asylum seekers.
The Reviewer specifically asserts that he has considered the applicant’s individual circumstances as a returnee (see [144]) and that appears to be the case. In particular, the illegal departure is noted. The risk of detention and questioning upon return is also noted in addition to the possibility of post-return monitoring but these matters are not considered by the Reviewer to amount to serious harm for the purposes of s.91R(2) of the Act. More significantly, the complete absence of any political profile of the applicant (on his own case) was a matter that was given weight in the assessment of the real chance of serious harm amounting to persecution that would be faced by the applicant as a returnee. I am not satisfied that the evaluation of this matter miscarried in any way on account of any suggested distinction between returnees who are Iranians and returnees who, whilst registered prior to 2001, do not have a green card. That is not a distinction that is promoted in the country information or that was promoted in the applicant’s own case.
I am not satisfied that this ground of review is made out.
In the written submission and in the oral submission of the applicant ground four is promoted in a different aspect than that which is emphasised in the amended application itself. It relates to the Reviewer’s finding that the applicant would not face a denial of a capacity to earn a livelihood of any kind where the denial threatens a person’s capacity to subsist. Once again, we are back with the criteria instanced in s.91R(2) of the Act but dealing specifically with the ability to earn a livelihood. The reasons why the Reviewer came to this view are set out at [131] CB 217.
I accept the submission of Mr Hooker for the respondent that these matters were specifically put to the applicant as evidenced by the transcript of the interview. I do not think an issue arises as to this topic and procedural fairness and neither do I accept that there was no evidence on which to base this finding.

The written and oral submissions, however, make the argument that in considering this aspect of the serious harm question the Reviewer has focused inordinately if not exclusively upon past events when the obligation of the Reviewer was to assess what is likely to occur in the future (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 per Brennan CJ, Dawson, Toohey, Gauldron, McHugh and Gummow JJ).
Whilst there was material upon which conclusions as to ability to earn a livelihood in the past could be drawn, it is contended that any assessment of the future ability of the applicant so to do would have to take into account the circumstance that he was a stateless person who had left Iran and who had returned involuntarily to Iran. That is, a stateless undocumented failed asylum seeker who left on a fake passport would or may well be in a different position than someone in the applicant’s position prior to his departure.
That is a distinction which I think should be accepted but it is in considering the practical implications of the distinction that I think substance of the point diminishes. There was no country information which dealt with this specific point and there was nothing put by the applicant with any kind of specificity which would have assisted the Reviewer in discerning material differences between the applicant’s position prior to and following his departure. I have already noted the way in which the returnee issue was dealt with by the Reviewer and the extent to which there was a recognition of the specific circumstances of the applicant which pertain to that issue. There is nothing arising from a fair reading of the review which suggests that all of those circumstances were overlooked when consideration was being given to the capacity to earn a livelihood. They are discrete issues.
In the consideration of any particular issue relating to the claim the entirety of the findings of the Reviewer in relation to the applicant’s circumstances should be taken to have been given consideration unless there is some indication to the contrary. I find no such indication in this review. The difficulties that may be faced by the applicant as a returnee who has left illegally and who is undocumented are addressed, for example interrogation and detention. Any suggestion that the difficulties would flow over into issues relating to deprivation of an opportunity to earn a livelihood would be speculative. The absence of such speculation in the Reviewer’s reasons in my view does not give rise to legal error.
These being the only grounds promoted and my having found none of the grounds made out, the application for review will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 22 January 2013