WZARC v Minister for Immigration
[2013] FMCA 106
•14 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZARC v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 106 |
| MIGRATION – Application for judicial review of Independent Protection Assessment – grounds of review essentially challenging factual conclusions of the assessor – consideration of materials before the assessor and the assessor’s conclusions – no error shown – application dismissed. |
| Migration Act 1959, ss.36(2)(a), 36(2)(aa) |
| Applicant: | WZARC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MS T FLOOD IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | PEG 117 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 14 December 2012 |
| Date of Last Submission: | 14 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 14 March 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr D. Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
PEG 117 of 2012
| WZARC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MS T FLOOD IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of an Independent Protection Assessment made by the second respondent. The negative recommendation made by the second respondent was dated 15 May 2012. It recommended that the applicant not be recognised as a person to whom Australia has Convention protection obligations.
The application filed with the Court on 28 May 2012 itemises the decision under review but lists nothing at all under the section “Grounds of application”.
Following certain procedural matters which arose because the applicant (who has at all material times been in detention) had been moved, Registrar Caporale ordered on 3 October 2012, inter alia, that the applicant file and serve any amended application and written submissions.
Understandably enough, given his lack of legal representation and his incarceration, the applicant did not comply with those orders but filed a written statement in Court on 14 December 2012.
The written statement effectively repeated factual assertions previously dismissed both by a delegate of the first respondent, who conducted a Protection Obligations Evaluation, and by the second respondent. The only additional matter raised by the applicant was at paragraph 9 of his written submissions where he said he had converted to Christianity. It should be noted that he did not suggest that his conversion to Christianity gave rise to any Convention-related issues.
The Applicant’s Claims
It is common cause that the applicant arrived at Christmas Island on 21 July 2011. He was the subject of an unauthorised arrival interview recorded at Court Book (“CB”) 5-24. At CB 14, the interviewing officer recorded what might be described as the applicant’s primary factual claims. He claimed that in December 2009 there was a suicide bombing outside a mosque in the town where he lived and he took movie shots of it. The Basij (secret police) attended, saw him taking video shots of dead bodies and smashed into a motorbike and it passed over his leg. He became unconscious and awoke in hospital. He said he was guarded by the Basij who had investigated his family and found that his father had political problems and the applicant had to leave his city as a result.
He was smuggled out of the hospital by friends of his mother who worked at the hospital. When asked why he left Iran, he said that after this incident they took away his work and that they were looking for him and asking why he had left the hospital. “They” were the Basij and Sepah.
As a result, the applicant’s father sent him to Langerood and because they would eventually find him in Langerood, he had no option but to leave Iran. He was able to obtain a forged passport and leave.
The applicant further confirmed that his father had been exiled from Langerood to Chahbahar. His father had been a teacher, but when he went to Chahbahar he was working in the Department of Education for six months and was then sacked. He became self-employed and also had a taxi, all this taking place at a time when the applicant was very young.
The applicant was able to obtain the assistance of Florin Burhala Lawyers and filed a statutory declaration in support of his claim
(CB 60-62).
This statutory declaration essentially confirmed the claims the applicant made at his entry interview (although the suicide bombing was placed in 2010) and further confirmed that his own father’s exile took place because he had been a pro-Shah activist. He confirmed that he was in the hospital for three months during which time he had several operations. When he escaped and returned to his native town in Langerood, he was moving from one relative’s house to another because of fears of the Sepah.
Under the heading “What I fear might happen if I go back to my country”, the applicant deposed:
“I will be persecuted and jailed by the Authorities in Iran. I escaped from Sepah and they think I am anti-government.”
And under the heading “Who I think will harm or mistreat me if I go back”, he deposed:
“The Iranian Authorities namely the Sepah.”
And he further asserted:
“Because I escaped from the Sepah, they saw filming the scene of the explosion and accused me of spying. My father has a background of being anti-government and pro-Shah.
… I fear harm from the Authorities, they will never protect me given my escape and my father’s history.”
Messrs Florin Burhala also forwarded a written submission (CB 64-75) setting out extensive submissions about the situation in Iran, but not addressing the applicant’s particular circumstances, save by reference to his statutory declaration.
The Decision of the Delegate
The applicant’s claims were considered by a delegate of the Minister who conducted the requested Protection Obligations Determination.
The delegate’s decision is at CB 96-111. The delegate accepted that the applicant was an Iranian and paraphrased the applicant’s claims, in my view accurately enough, at CB 98.
It is perhaps sufficient for present purposes to say that the delegate did not believe the applicant in certain respects, although the delegate did accept that the applicant had been present at the time of the suicide bombing at the mosque and had taken photographs of it using his mobile phone, which had been removed from him. Essentially, the delegate did not think that the applicant faced persecution if he returned because he had not an appropriately significant political profile (indeed, no profile at all as an anti-government activist). The delegate noted that his father, despite exile, had been able to live unexceptionably in Chahbahar for many years. The delegate did not accept that the applicant faced persecution if returned. The applicant was accordingly referred automatically for Independent Protection Assessment.
The Applicant’s Further Submission
Messrs BMA Lawyers prepared a submission for the applicant (CB 114-163) and a further submission (CB 165-173).
The factual claims made in the first set of submissions were essentially a repeat of the matters the applicant had already asserted. The submission also raised risks that the applicant might face as a returnee and failed asylum-seeker and set out a substantial amount of country information.
The further submissions addressed matters raised at the IPAO hearing but it is not necessary to deal with them in any detail.
The Independent Protection Assessment Decision
The decision set out the procedural history and relevant law. No submission has been made that the matters thus set out are inaccurate.
The second respondent then set out the evidence on the departmental file and paraphrased the applicant’s written submissions.
At CB 184-190 the decision sets out the matters asserted at the Independent Protection Assessment interview on 21 March 2012. The applicant effectively confirmed the claims he had been making since the first entry interview. In some respects (for example, his escape from hospital – see paragraph 71, CB 185) he gave rather more detail than previously but essentially, as I have said, his story did not vary from what he had previously said in any significant way. The second respondent clearly traversed with the applicant a number of relevant matters including (see paragraph 103, CB 189) the fact that the punishment he would be likely to receive for leaving Iran illegally would be a fine, rather than an arrest.
The second respondent also put to the applicant concerns that he may have left Iran for economic reasons and that his claim to have been the subject of a search by the secret police was not supported by evidence (paragraph 104, CB 109).
The second respondent gave the applicant a week, as he requested, to provide further written submissions, which were the submissions I have already referred to at CB 165-173. The second respondent traversed these written submissions at paragraphs 108-119 (CB 189-190).
The second respondent set out substantial country information and at paragraphs 127-154, set out the findings and reasons and conclusions (CB 199-205). Relevantly, the second respondent found at paragraphs 131-135:
“131. … Whereas I accept that the claimant might have filmed the aftermath of the bombing using his mobile phone, I do not accept that he did this for any politically motivated reason, or that it would automatically be assumed he did, by the authorities. The claimant has stated that he does not like politics and has no interest in political affairs. During his POD interview the claimant indicated that he didn’t even know who was responsible for the bombing. Throughout the IPA interview I found the claimant to be uncomfortable with any detailed questioning and particularly so when I questioned him about the details of the friends he said were killed during the bombing. He was unable to provide any full names of those friends and struggled to provide even the first names of two people. Further, when asked what he intended to do with the footage he said that he had no prior experience of posting footage on the internet and that the idea of distributing it on the internet only came to him while he was in hospital. I note that this was after his phone left his possession. I find that the claimant had no intended use for the footage at the time of filming and that it was more likely a spontaneous act on his part to capture some footage of the scene on his mobile phone.
132. … I am prepared to give the claimant the benefit of the doubt and accept that there could have been an attempt made by the authorities to stop him from filming the incident which resulted in him being struck by a security vehicle.
133. The claimant then states that he was held under guard in hospital by two Sepah officers for a period of three months. In the absence of any medical records indicating the extent of his injuries, I cannot ascertain whether a hospital stay of three months would have been required for his broken leg. However, I am prepared to give the claimant the benefit of the doubt and accept that he was hospitalized for a lengthy period of time particularly as he claims to have undergone at least two operations. I do not accept, however, that the claimant was held under guard and incommunicado for that period of time.
134. Based on the claimant’s oral evidence, his mobile phone which contained the footage was confiscated by security officers at the time of the accident. He claims he did not see his phone again. The footage was never published and as mentioned above I do not find that it was his intention to do so at the time. I accept that the authorities may have been motivated to stop him from filming the scene and it would appear that they did so and that the mobile phone was confiscated or possibly even destroyed in the accident. Having achieved their goal, I do not accept that Sepah officers would have stood guard outside his door for three months without ever questioning or interrogating the claimant about his intended use of the footage if as claimed they would have assumed he was planning to use it to undermine the government. … Whereas I can accept that ongoing treatment requirements could be a justification for Sepah not transporting him to another security facility or bringing him before a court immediately, I do not accept that they wouldn’t have at least questioned the claimant or conducted any of their investigations while he was in the hospital.”
It should be noted that the second respondent regarded the applicant’s fears in respect of the authorities being concerned about him publishing his material as speculative given that he had no history as a blogger and that the authorities in any event rapidly discovered that the suicide bombing had been conducted by Sunni extremists (the applicant is a Shia). In the light of all these matters, the second respondent found that the applicant was not held under guard for three months, nor was it necessary for him to escape detention.
The second respondent dealt with the applicant’s father’s political past at CB 138 and following, and relevantly stated at paragraph 138 (CB 201):
“… As neither the claimant, nor any member of his family appears to have experienced any difficulties with the authorities in approximately twenty years and they appear to have gone on to lead a relatively comfortable and successful life in Chahbahar, it appears that the claimant’s father’s background was not of ongoing concern to the authorities and that he did not face continuing persecution as a result of his past political involvement. For these reasons I do not accept that the claimant’s father’s background is cause for the authorities to pursue prosecution of the claimant for any anti-government activity merely for filming the scene of the bombing. As I do not accept that the claimant was ever detained in hospital I also reject the claim that his mother was sacked from her employment or threatened with charges for helping him escape. Neither do I accept that the claimant’s parents were visited two or three times a month by the authorities in relation to his whereabouts. As I do not accept that either of the claimant’s parents have being persecuted for a Convention reason I find there is not a real chance the claimant will be persecuted for reason of his membership of a particular social group, namely his family, should he be returned to Iran in the reasonably foreseeable future.”
The second respondent went on at paragraph 139 (CB 202) to say:
“Whereas I do not accept that he escaped from hospital I accept that he may have gone to Langerood for a period of time to recuperate from his injury before departing Iran from Tehran. At interview, the claimant stated that his whereabouts in Langerood were not detected by the authorities during this time but only because he kept a low profile. I find it highly improbable that if the Sepah were so intent on detaining and bringing the claimant before the courts for filming the bombing, to the extent that they placed two guards permanently outside his door at the hospital for three months, that they wouldn’t have made a concerted effort to find him after he left the hospital.”
At paragraph 140 (CB 202), the second respondent said:
“… The Sepah also controls the Basij which has members in most communities across the country and has been prominent in putting down any form of public opposition to the regime. I find this information supports the claimant’s statement that the Sepah would have had no difficulty in tracing the claimant’s roots to Langerood and I am satisfied that Sepah has the resources to mount a successful surveillance exercise in Langerood if they were intent on finding him. I find the claimant’s statements that he resided with family members during that time further supports this conclusion.”
The second respondent continued at paragraph 141:
“The claimant has stated that his family have told him that they are visited two or three times a month by the authorities and that his mother was sacked from her job for helping him escape from the hospital and has been threatened to be charged for this although nothing has happened so far. As I find that the authorities had no proof he intended to publish any footage of the bombing, and with him having no background of involvement in such activity, I do not accept that it would have automatically been assumed he would do so. Based on the material before me I do not accept that the authorities had reason to, did, or have continued to, harass his family in Chahbahar or Langerood in a bid to locate him or that they have pressed any formal charges against him. For all the above reasons, I do not find that the Iranian authorities had or have an ongoing interest in locating or prosecuting the claimant as a result of him filming the aftermath of the bombing.”
At paragraphs 143-144, the second respondent said:
“143. The claimant has stated that he left Iran illegally using a false passport and that he fears harm, including a long period of imprisonment, if he returns to Iran for this reason. Whereas I am unaware of his real reasons for departing Iran, based on his oral evidence I cannot rule out the possibility that he departed Iran using a fake passport. Country information cited above confirms this possibility but nevertheless reveals that he would likely only be fined for this offence should he return to Iran. I do not find that this would amount to persecution for a Convention related reason.”
144. Lastly the claimant has stated that he fears returning to Iran because he will be regarded as a spy or being anti-government as a returnee and failed asylum seeker from a Western country. Further the claimant fears he will be harmed for revealing information about Iran to the Australian authorities. I have considered a wealth of country information on this topic including the material cited by the claimant’s agent in various submissions.”
The second respondent considered this question against the country information available and in the light of the applicant’s particular circumstances. While the second respondent accepted that a number of such returnees might face ill treatment she found relevantly at paragraph 146 (CB 204):
“I am satisfied that any questioning by authorities on his return would not reveal that he was wanted by the authorities on a politically related charge or even that the authorities in Chahbahar may have been in possession of his mobile phone containing footage of the bombing in 2010. I accept that the claimant’s extended stay in Australia might invite questioning upon return but as his father’s background does not appear to have been of any interest to the authorities for approximately twenty years, I do not accept that this would increase his risk of being imputed with an anti-government opinion. With this profile in mind, I find that the claimant would not be considered anti-government simply because he has returned from Australia, having sought asylum here. I find that if the claimant returns to Iran in the reasonably foreseeable future there is not a real chance he will be arrested, tortured or physically harmed for reason of returning from a Western country, having sought asylum in Australia or for revealing information about Iran to the Australian authorities.”
The second respondent went on to consider whether the applicant was owed complementary protection under s.36(2)(aa) of the Migration Act 1959 (“the Act”) and concluded, basically for the same reasons already expressed, that the applicant would not face significant harm as defined in section 36(2)(a) of the Act if returned to Iran.
The Applicant’s Written Submissions
The applicant’s written submissions dated 5 December 2012 (and filed in Court on 14 December 2012) in paragraphs 1-8 simply repeat his claims and refer to the history of the proceedings before the delegate and the IPAO. In my view, these submissions add nothing to the applicant’s case. As already indicated, paragraph 9 attests to his conversion to Christianity, but it should be noted that the applicant has at no stage, including before the Court, indicated that he might fear persecution on the basis of his new religion and his apostasy from Islam.
The Oral Submissions made before the Court
The applicant took issue with the account of his father’s life in Chahbahar. For what seems to me to be the first time, he asserted that his father had faced a measure of persecution. His father had to report to the police and was not allowed to leave the city without permission. He asserted that he and his siblings were deprived of school and it was very difficult to live under constant monitoring by Revolutionary Guards.
The applicant took issue with the extent to which the second respondent had really understood the position in Iran and asserted that he had not been quite able or confident enough to fully explain why he had suffered during his journeys both with his leg and with mental difficulties. He repeated that the incident did happen and that it had impacted upon him. He said he did not want to go back to an environment where Muslims were killing one another and he just wanted to live in a peaceful place.
The Minister, whose counsel relied upon the written submissions filed, took issue with this submission about the applicant’s father. He pointed out that the second respondent had, in fact, relied upon the applicant’s own written submission and referred to CB 166 where the applicant’s written submission asserted:
“The Applicant submits that his mother has worked for a long period of time as a nurse. Further, his father was a teacher and then ran a successful taxi business. His brothers are completing their studies at school and his older brother is preparing for his entrance exams.”
The second respondent’s finding that the applicant’s family had not faced persecution, it was submitted, was wholly open to her.
The Minister’s counsel also submitted that the second respondent was well aware of the circumstances in Iran and referred to paragraph 146 (CB 204).
Counsel for the Minister traversed the assertions made by the applicant and pointed to the reasoning of the second respondent.
It should be noted that the Minister’s written submissions, likewise, concentrate on the facts as found by the second respondent.
In reply, the applicant referred again, and in some detail, to the facts of his case.
At the conclusion of his submissions, the applicant said he had started life as a Christian and expanded briefly upon his religious beliefs. Nonetheless, there was nothing in what the applicant said that constituted anything of a claim that this new belief would place him at risk because of either apostasy or being a Christian in itself.
Consideration
None of the submissions made has concentrated upon the legal status of the application. Both parties have proceeded on the basis that there is a competent application for judicial review before the Court. I do not propose to expend any energy formulating the precise basis upon which the matter is before the Court because I have come to a clear conclusion on the merits.
I have set out extracts from the materials at some length because, in my view, they show beyond any doubt that the second respondent conscientiously considered the applicant’s claims and arrived at conclusions that were well-open to her on the materials.
The second respondent, it should be noted, gave the applicant the benefit of the doubt in a number of cases. She accepted that he had taken film of the aftermath of the assault on the mosque, accepted that the applicant had been injured as a result of activities by the Sepah, and had had his telephone confiscated. The second respondent accepted that the applicant had been in hospital for a lengthy period of time.
Nonetheless, the second respondent did not accept that the applicant had a political profile such as to make the activity of recording the aftermath of the bombing to be one likely to bring him to the attention of the Iranian authorities. In the face of the applicant’s assertion that he was not a person interested in politics, this conclusion was scarcely surprising. Likewise, the second respondent’s finding, based upon what the applicant himself had put in his submissions, that the applicant’s father and family did not face political persecution was similarly unobjectionable.
The second respondent did not accept that the applicant had been guarded for three months, nor that he had been the subject of search by the Sepah during his time in Langerood before he left Iran. Those findings, once again in the context of the material, seem to me to have been wholly open to the second respondent to make.
The second respondent concluded that the applicant would not face persecution upon his return to Iran either for having left on a false passport or for having been overseas for a considerable period of time. Those findings were based on country information and, once again, the second respondent’s finding was well and truly open to her.
Nothing in the conclusions or deliberations of the second respondent was, in any way, affected by jurisdictional error or indeed, in my view, any error, and it follows that the application must be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 14 March 2013
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