WZAPZ v Minister for Immigration
[2012] FMCA 941
•5 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 941 |
| MIGRATION – Independent Merits Review report recommended applicant not owed protection obligations – judicial review – no error identified. |
| Migration Act 1958 (Cth), ss.91R & 476 Commonwealth Constitution, s.75 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 DZABS v Minister for Immigration & Anor (2012) FMCA 297 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 WZAPH v Minister for Immigration & Anor [2012] FMCA 773 |
| Applicant: | WZAPZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | GRAHAM BARTER IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 342 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 5 October 2012 |
| Date of Last Submission: | 5 October 2012 |
| Delivered at: | Perth |
| Delivered on: | 5 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr K. Pedder via video link |
| Solicitors for the Applicant: | Refugee & Immigration Legal Service |
| Counsel for the First Respondent: | Ms E. Wheatley via video link |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The Application for Review in its amended form filed on 17 August 2012 is dismissed.
The Applicant pay the Respondents’ costs of and incidental to all aspects of these proceedings fixed in the sum of TEN THOUSAND DOLLARS [$10,000.00].
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 342 of 2011
| WZAPZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| GRAHAM BARTER IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an off-shore entry person. He arrived at Christmas Island on 10 August 2010. He is a stateless Faili Kurd and an observant of the Shia branch of the Muslim faith and for the purposes of assessing Australia’s obligations under the Refugees Convention and Refugees Protocol, his country of origin is Iran. Upon his arrival, he underwent a Refugee Status Assessment; that was unfavourable. He exercised his rights of review and the recommendation of the Independent Merits Reviewer, following the Independent Merits Review (“IMR”) process, was to recommend to the Minister that Australia did not owe the applicant protection obligations.
He then exercised his right of review to this Court. The review is carried out pursuant to s.476 of the Migration Act 1958 (“the Act”). This Court has the same jurisdiction as the High Court has under s.75(5) of the Commonwealth Constitution but only in relation to migration decisions and “migration decisions” is a term defined under the Migration Act; is has a very specific meaning. The nature of the jurisdiction the Court exercises in relation to matters such as these, which follow on from the recommendations of an Independent Merits Reviewer, were discussed by the High Court in the case of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41. I had occasion to consider the nature of the jurisdiction exercised by this Court in the light of that High Court decision in DZABS v Minister for Immigration & Anor (2012) FMCA 297 and in relation to the nature of the task before the Court, having regard to that decision of Plaintiff M61, and also to a subsequent decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26.
I summarised the effect of those decisions for the purpose of the exercise of the jurisdiction by this Court in DZABS at [61]:
In accordance with the decision in SZQDZ (supra), I must regard the future or anticipated decision of the Minister, a decision-making process not yet completed, to lift the bar under s.46A or grant a visa under s.195A of the Act, as the migration decision which attracts jurisdiction under s.476(1) of the Act. No other conclusion can, with respect, be drawn from the decision in SZQDZ.
So it is the posited future reliance by the Minister on the recommendation contained in the reviewer’s report, which is the migration decision which grounds the jurisdiction of this Court to hear such applications.
At the time I decided DZABS, I was also of the view that the error identified in that exercise of positing reliance on the IMR report must be a jurisdictional error to give this Court a jurisdiction but I have changed my view in relation to that in the light of a decision of Barker J in the Federal Court; the decision of SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 and I discussed that decision in my own decision of WZAPH v Minister for Immigration & Anor [2012] FMCA 773 and came to the conclusion that I was bound by his Honour’s determination there that the errors identified in the s.476 applications in this Court dealing with IMR reports need not be jurisdictional.
I expressed some reservations about the conclusion to which his Honour had come but there was no doubting that the conclusion to which he had come, that it was binding upon me, and so I approach this review upon the basis that the error identified need only be a legal error (that can include a denial of procedural unfairness, of course) and need not be jurisdictional error for the review to succeed.
The grounds of review, in this case, are firstly that the reviewer failed to consider the applicant’s fear of persecution by reason of imputed political opinion. As I have indicated, the applicant is a stateless Faili Kurd and his country of origin was Iran. It was said that the report writer made the error of failing to recognise the extent to which the authorities in Iran, especially those authorities such as the Basij, who are responsible for the most persecution, would regard his circumstances as a stateless Faili Kurd as being constitutive of a political opinion which was adverse to or anti-government insofar as the theocratic state of Iran is concerned; that was the first ground.
The second ground was that, in considering the persecution, the reviewer had missed and failed to consider the specific claim relating to persecution based on ethnicity.
Thirdly, it was considered that the reviewer had misunderstood or misapplied the relevant legal test in relation to the identification of a social group and fourthly, that there had been a serious misconstruction of the concept of serious harm, as that is used in s.91R of the Act.
Now, all of these matters are relative, of course, but probably the most controversial aspect of the report writer’s conclusions was to have come to the conclusion that the harm or persecution which the applicant might experience was a function not of some Convention based reason but on account of his being, as a matter of fact, an undocumented person, in other words, the undocumented status was empty of those matters which might account for it in the first place, such as ethnicity or statelessness or any other matter.
I put to Mr Pedder at the outset of this hearing, and Mr Pedder conceded, that whether or not such errors or any of them were extant in the reviewer’s consideration of the matter would not be material if there was no valid challenge to the reviewer’s conclusions in relation to the question of serious harm. In a very real sense, the application turns on whether the reviewer did fall into error in the way in which she went about applying the statutory criteria for serious harm identified in s.91R of the Act.
It is worth reminding ourselves, at this point, of the definition of “refugee” as contained in Article 1A(2) of the Refugees Convention. That defines a refugee as:
A person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R(1) of the Act says:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
a) that reason is the essential and significant reason, or those reasons are the essential an significant reasons, for the persecution;
b) the persecution involves serious harm to the person; and
c) the persecution involves systematic and discriminatory conduct.
So there are the three aspects that have to be fulfilled in terms of the concept of persecution as used in the Refugees Convention and subsection (2) goes on to say:
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 reviewer says this at [52] of her reasons:
The particular social group to which it is said the claimant belongs is not particularly clear. It has been submitted that the claimant is a member of a group described as Stateless persons; undocumented Faili Kurds living in Iran; stateless Faili Kurds; or, less specifically, undocumented refugees who are living in Iran.
Now, I think that captures the range of social groups but whether the application of the Convention and Protocol is looked at from the perspective of any one of those particular groups or all of them taken together will not get the applicant to the stage of entitlement to a protection visa unless his account of his persecution amounts to serious harm, as referred to in s.91R(1), and it is those issues that are at the heart of the assessment of the claim that takes place beginning at [60] of the reasons of the reviewer.
Paragraph 61 contains this generalised, but I think fairly generalised, characterisation of the applicant’s claims: the applicant bases the above fear on his own past experience of trying to make a decent life for himself in Iran over 25 years faced with discrimination because of his race and the effect of his lack of identifying documents. [62] goes on to note that he gave as an example being stopped and detained for four hours at Kangawar in 2004, but then noted:
He has never been arrested or subject to physical abuse but said, in his interview with me, that he has been stopped and insulted and forced to pay bribes by the police and the Basij.
[64] summarises the evidence the applicant gave as to his experiences of discrimination in Iran. Firstly, there was his inability to get married. In addition, he was restricted in his employment by the type of work available to him. He complained of the frequency with which he had to change jobs, the amount he was paid, the fact that he could not own a house, and that had a flow-on effect to his ability to marry, and the denial to his mother of adequate public health care. The last sentence of [64] says:
I accept the submission that the above list is not exhaustive but the claimant’s past experience reveals those restrictions have had the most effect on him.
[65] then says:
Having regard to the guidance provided by s. 91R(2) of the Act, I am not satisfied that the inability to obtain those benefits, whilst distressing and capable of leading to some degree of economic hardship; affecting his access to basic services; and affecting his ability to earn a livelihood, to some extent; either individually or in combination, amount to serious harm in accordance with s.91R(1)(b) of the Act.
There is a further discussion of the matter that was the focus of some attention by the applicant in his own evidence to the Tribunal; this rejection by a woman to whom he proposed marriage; the linkage of his experience in that regard to his disadvantages as a stateless Faili Kurd in Iran was made clear, and then at [69] the reviewer says:
Whilst I have accepted that the above deprivations, particularly nominated by the claimant, are not exhaustive; the claimant has not given any evidence that any other deprivation, or combination of deprivations, has caused him serious harm in the relevant sense in the past and I have found no evidence to suggest there is a real chance he will suffer such harm in the reasonably foreseeable future, should he return to Iran.
And then it goes on at [70]:
Whilst I accept that deprivation, particularly several deprivations taken in combination, can amount to serious harm in the relevant sense if sufficiently intense and persistent, I do not accept that the deprivations about which the claimant has given evidence have reached that level. For the above reasons, I am not satisfied that the claimant has a well founded fear of persecution as a result of his inability to obtain benefits for want of identification in the reasonably foreseeable future, should he return to Iran.
Having reviewed the evidence given by the claimant and the submissions made on his behalf, I do not regard the reviewer’s summary and assessment of the various claims of the applicant as to his experiences of disadvantage in Iran, individually and in aggregate, as being other than fair and appropriate. That being the case, it seems to me that the conclusion the reviewer came to as to those claims not amounting to serious harm, as that expression is used in s.91R, was a conclusion to which the reviewer was bound to come, and that being the case, in my view, it is unnecessary for me to adjudicate upon the other grounds of review agitated in grounds one to three.
It is appropriate there be an order for costs. There is a scale order for a matter that proceeds to hearing. It is the figure of $6,471. It is then a question of what costs should be allowed in terms of the order of Lucev FM of 31 July 2012 which noted that the applicant was to pay the respondent’s costs thrown away in respect of the preparation of the hearing to that point. There was no actual hearing involved on that day, and it seems to me that there needs to be a significant discount recognising that aspect of the matter. The matter is not free from doubt in that the Rules specifically provide for lump sum figures, but in the circumstances, it seems to me an appropriate order for costs reflecting the costs to which the respondent is entitled for today, and, pursuant to that earlier order, is an aggregate amount of $10,000.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lindsay FM.
Associate:
Date: 18 October 2012
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