WZAQJ v Minister for Immigration - [2013] FMCA 26

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAQJ v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 26

MIGRATION – Independent Merits Review recommends applicant not owed protection obligations – Faili Kurd – judicial review – application refused.

Migration Act 1958 (Cth), ss.36(2), 46A, 474 & 476
Commonwealth Constitution, s.75(v)

SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26
Alami v Minister for Immigration & Anor [2011] FMCA 623
DZABS v Minister for Immigration & Anor (2012) 261 FLR 447
SZQGA v Minister for Immigration & Citizenship [2012] FCA 593
WZAPH v Minister for Immigration & Anor (2012) FMCA 773
MZYPW v Minister for Immigration & Citizenship [2012] FCAFC 99
Craig v State of South Australia [1995] HCA 58
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16

Applicant:

WZAQJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 27 of 2012

Judgment of:

Lindsay FM

Hearing date:

7 September 2012

Date of Last Submission:

7 September 2012

Delivered at:

Adelaide by telephone

Delivered on:

23 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Edwards

Solicitors for the Applicant:

Case for Refugees

Counsel for the Respondents:

Mr Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application filed on 6 February 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 27 of 2012

WZAQJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review relating to a recommendation made following an Independent Merits Review (“IMR”) that the applicant was not a person to whom Australia owed protection obligations.
The application was brought to this Court pursuant to s.476 of the Migration Act 1958 (“the Act”). That section gives this Court the same judicial review jurisdiction as the High Court has under s.75(v) of the Commonwealth Constitution but only in relation to migration decisions, as that expression is defined in the Act. Generally speaking migration decisions are limited to privative clause decisions or purported privative clause decisions as described in s.474 of the Act.
It is the posited future reliance by the Minister upon the Reviewer’s recommendation as to whether or not to lift the bar under s.46A of the Act which is the migration decision that is the source of the jurisdiction of this Court in such matters, not the review or the recommendation itself. That conclusion follows upon the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26. Prior to that decision, decisions such as that 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 term is used in the Act. However, SZQDZ determined in fact the Reviewer’s decision is not only not a decision under the Act; it is not a decision at all.
For reasons I gave in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447 I regarded myself as being obliged to identify jurisdictional error before allowing a review in cases such as the matter now before me. However, following the decision of Barker J in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593, I no longer regard the applicant as being obliged to demonstrate jurisdictional error (see my discussion of his Honour’s decision in WZAPH v Minister for Immigration & Anor (2012) FMCA 773). I will continue to proceed in this way notwithstanding that the Full Court of the Federal Court in MZYPW v Minister for Immigration & Citizenship [2012] FCAFC 99, a decision that was delivered on 11 July 2012 and therefore after Barker J’s decision in 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).
Principles relating to the identification of jurisdictional error discussed in cases such as Craig v State of South Australia [1995] HCA 58 will of course continue to be of assistance in determining whether reviews of this kind will be allowed.
The applicant is a stateless Faili Kurd who arrived in Australia at Christmas Island without documents on 13 October 2010. He participated in an interview with an officer of the Department of Immigration and Citizenship on 25 October 2010.
He made a request for a Refugee Status Assessment on 1 January 2011. On 31 March 2011 the departmental officer concluded that Australia did not owe him protection obligations. He made a request for an Independent Merits Review.
On 21 November 2011 the Reviewer found that the applicant did not meet the criterion for a protection visa described in s.36(2) of the Act. That has led to the application to this Court.
The applicant was born in Iraq and he and his family were deported to Iran by the Baathist regime when he was three years of age. His father told him that he had a green card until 2002 when it was confiscated. He says he has never received a white card.
His father is now deceased but his mother, his sister and a brother still live in Illam in Iran. His older brother was killed in 2006. The applicant has worked as a shepherd since the age of seven or eight years as his father and brother had.
He has no political profile in Iran. He has never engaged in anti-government demonstrations. He has no contact with the police or government authorities other than contact with the Basij. He claimed that his brother when working as a shepherd was asked by the Basij to co-operate and spy for the security forces in the mountainous border areas in which they lived but that his brother refused and fled. During the course of his flight he stepped on a landmine and was killed.
After his death the applicant was asked by the Basij a number of times to co-operate with them. Because he refused he and his mother and his sister were abused and assaulted by the Basij.
He complains of discrimination on the basis of his Kurdish ethnicity. He has no citizenship entitlements. He is not allowed to speak his own language or wear traditional clothes. He is undocumented.
He used a false passport to leave Iran. His last contact with the Basij had been some two months before he left Iran.
He claimed that if he returned to Iran he would face imprisonment, capital punishment and sexual abuse because of his undocumented status and his having left Iran illegally.
The answers he gave to the Reviewer were supplemented by a submission from his legal advisers.
The Reviewer conducted a detailed scrutiny of country information relating to the plight of Faili Kurds in Iran.
The Reviewer assessed his claim for refugees status on the basis of Iran as his country of habitual residence but on the basis that he was stateless.
The Reviewer was not satisfied that the country information consulted provided independent corroboration of the applicant’s claims that Faili Kurds are targeted on a general and indiscriminate basis, notwithstanding that individual Kurds may have been. The Reviewer did acknowledge that many Faili Kurds, however, have been “generally oppressed, marginalised and discriminated against in the allocation of resources and finances by the Iranian Government and authorities as compared to their Persian counterparts”.
Furthermore, the Reviewer was not satisfied that the social and other discrimination claimed by the applicant amounted to persecution for the purposes of the Refugees Convention and Refugees Protocol.
The Reviewer did not accept that the discrimination the applicant and his family experienced as Faili Kurds was systematic. He did not consider that the applicant faced or would face in the foreseeable future a real chance of persecution resulting in serious harm in Iran based on his race or ethnicity.
The Reviewer (at [53]) gave “the claimant the benefit of the doubt” and accepted his evidence of the Basij approaching him to report on people crossing in the border area he worked as a shepherd. He appears to have accepted that the applicant, when he refused, was beaten but he did not accept these requests and beatings occurred over a five year period, as the applicant claimed in interview with him. It is important, I think, to describe the applicant’s account of these matters as his request for a protection visa progressed in some detail.
His interview document of 25 October 2010 did not deal with the issue. In his statement in support of his application for a Refugee Status Assessment he referred to the Basij having approached him approximately two months before he left Iran and of the fact that when he was unable to provide them with any information about people crossing the border (the mountainous region where he was a shepherd is near the border of Iran and Iraq) he was beaten. They also beat his sister and his mother. It was his fear of this incident being repeated that led to his leaving Iran. It is clear from that statement that he is referring to the one incident that occurred approximately two months prior to his departure.
The Refugee Status Assessment record (CB 97) summarises his interview on this topic as follows:
Approximately 2 months before the claimant left Iran the Basij came to his tent and physically assaulted him, plus his mother and sister. The Basij wanted him to spy on people crossing the border from Iraq to Iran.
The written submission of his advisers to the IMR at CB 132 – 133 refers to the same incident two months prior to his departure and again makes it clear that the beating occurred on that occasion. Indeed, that this was the understanding of the departmental officer conducting the RSA is plain from this passage at CB 133:
The Delegate states that he did not find credible our client’s claim that he was approached by the Basij to report on border crossing movements some 5 years after asking his brother to do the same. With respect, there is no basis for this adverse finding. The Basij could well have approached any number of other people in the meantime to do this for them.
The written submission at CB 152 refers to the applicant’s first hand experience of the brutal violence of the Basij and of his witnessing their violence against his female relatives but without reference at that point as to the number of occasions on which this occurred.
In interview with the Reviewer during the IMR the applicant contended that the Basij approached him for a period of five years following the death of his brother and that his mother and sister were beaten by the Basij many times.
At [53] the Reviewer specifically rejects the applicant’s claim that he was approached by the Basij many times over a five year period following upon his brother’s death. The Reviewer goes on “to accept” that the applicant was approached by the Basij but finds that it was not because he was a Faili Kurd but because he was working as a shepherd in the mountainous area near the Iran/Iraq border. At [63] the Reviewer deals with the general claim for refugee status arising from statelessness and lack of ID papers. He notes that the applicant was able to work as a shepherd and to save the money ($9,000) necessary to travel to Australia. He acknowledges that the applicant had “some incidents” with the Basij and others and suffered some discrimination but that the level of discrimination was not such as to threaten his capacity to subsist. The Reviewer notes that the Basij had not taken any punitive action against the applicant’s family. The claims for a fear of persecution arising from his return to Iran after having claimed asylum in a western country were also rejected.
There are two grounds of review promoted. The first ground is that the applicant was denied procedural fairness and in particular, that the Reviewer failed to address two discrete integers of the applicant’s claim: firstly, his fear of harm and detention and death at the hands of the Basij on account of his membership of the social group constituted by stateless person in Iran; and secondly, the submission made on the applicant’s behalf relating to the increased cost of living in Iran following December 2010. Whether or not the ground is expressed in terms of a denial of procedural fairness or simply a failure to perform an imperative duty to consider each aspect of the claim, I do not think that the contention that these matters were not considered by the Reviewer can be made out on any fair reading for the review.
At [40] the claim of fear of harm as a stateless person is expressly noted as is the applicant’s position of having “no form of identity documents” and that he left Iran “with no identification documents”.
At [63] the Reviewer notes “that the claimant in part fears returning to Iran because of his statelessness and lack of ID papers”.
At [64] the Reviewer says:
… I am not satisfied that the claimant has a well- founded fear of persecution or that he would suffer persecution on account of his race or being, as submitted by the adviser, as a member of any particular social group (stateless persons in Iran) …
This aspect of ground one is not made out.
The other matter that is said to be overlooked is the submission made in writing by the applicant’s legal representatives supported by updated country information that:
In the wake of sweeping economic reforms introduced by the Iranian Government in December 2010, the cost of living has risen dramatically in Iran, leaving stateless Faili Kurds (who are denied access to government compensation payments) in the position of serious economic vulnerability above and beyond that which they have endured in the past.
Certainly, the matter is not specifically addressed in the Statement of Reasons though the receipt of the legal representative’s submissions is itself noted.
But the specific country information (a Press TV article dated 19 December 2010) makes it clear that what are described as the dramatic economic reforms instituted in December 2010 applied on a whole-of-nation basis. The removal of subsidies for fuel and other necessities was not directed at Kurds or at any other minority but to the entire nation. This event, if it can be described as such, is not in itself evidence of any discriminatory or persecutory act but is a piece of evidence adduced which purports to demonstrate the exacerbation of the Faili Kurds’ already fragile economic situation within Iran. It is a supporting submission but is hardly an integer of the claim for refugee status itself. The contention that the disadvantageous position of undocumented Faili Kurds amounted to serious harm was itself addressed by the Review in some detail. That he did not specifically address every aspect of the evidence in relation to the topic is not an indication of legal error or of a denial of procedural fairness.
This second aspect of ground one is also not made out.
The second ground alleges an error of law in relation to the finding, already noted herein at [28] that the request that was made by the Basij for the applicant to provide information to them was a function not of his being a Faili Kurd but of his being a shepherd working in the mountainous area near the Iran/Iraq border. It will be recalled that it was his refusal to do so that led to the applicant and his family being beaten and which precipitated the applicant’s departure from Iran. It will also be recalled that the Reviewer rejected the contention that this request (and the subsequent beatings following the refusal to comply with the request) occurred on any occasion other than the occasion approximately two months prior to his departure from Iran.
It is said that there was no evidence upon which the Reviewer could have come to the conclusion he did as to why the request was made of the applicant in the first instance.
If an administrative decision-maker makes an assumption or comes to a conclusion which has no basis in the evidentiary material then such a finding or such an assumption may constitute a legal error and indeed a jurisdictional error (see Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [23] – [24] per Gummow ACJ and Kiefel J).
Essentially, the “finding” of the Reviewer on this topic is an inference he has drawn from the applicant’s circumstances, that is, that working as a shepherd and having the opportunity to make observations as to the presence of other persons in a border region made him a logical target of enlistment by those who may have been interested in policing the border. It seems an unexceptional inference to draw. Whether shepherds working in that region were Faili Kurds or members of any other social group is unlikely to have explained the approach or is unlikely to have excluded the approach (it is the utility of the information that may be procured from such a source that would likely to be important).
Moreover, even if the inference had been drawn on an insubstantial or non existent evidentiary basis it only goes to why the approach is made and does not go to the acceptance or rejection of any act of persecution or discrimination. The beating which followed the rejection of the enlistment proposal was a persecutory act and appears to have been accepted as having occurred, at least in that single instance two months prior to the applicant’s departure. It has not led to an acceptance of the applicant’s claim of fear of persecution in the event of his return. Assigning a particular reason as to why the approach was made in the first instance does not appear to me to be a matter that was or was capable of being significant in coming to that conclusion.
The second ground is not made out.
These being the only grounds, the application will be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 22 January 2013