WZARN v Minister for Immigration and Citizenship
[2013] FCCA 212
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZARN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 212 |
| Catchwords: MIGRATION – Application for judicial review of Independent Merits Review decision – alleged failure to consider two integers of claims – whether integers sufficiently disclosed by the applicants’ materials – claims not clearly advanced – application dismissed. |
| Legislation: Migration Act 1958, ss.5(1), 36(2A), 36(2)(aa), 91R |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 |
| First Applicant: | WZARN |
| Second Applicant: | WZARO |
| Third Applicant: | WZARP |
| Fourth Applicant: | WZARQ |
| Fifth Applicant: | WZARR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JAMES SILVA IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 248 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 25 February 2013 |
| Date of Last Submission: | 25 February 2013 |
| Delivered at: | Melbourne (by video link to Perth) |
| Delivered on: | 14 May 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr Blades |
| Solicitors for the Applicants: | Case for Refugees |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Applications be dismissed.
The Applicants pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 248 of 2012
| WZARN |
First Applicant
| WZARO |
Second Applicant
| WZARP |
Third Applicant
| WZARQ |
Fourth Applicant
| WZARR |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JAMES SILVA IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
By their amended application filed on 25 January 2013, the applicants seek judicial review of a decision of the second respondent dated
30 June 2012.
There are two grounds of review, both of which arise out of an asserted failure on the part of the second respondent to deal with two integers of the applicants’ claims in the context of the claims for complementary protection pressed by the applicants pursuant to s.36(2)(aa) of the Migration Act 1958 (“the Act”). The first such integer is alleged to be the risk of harm on the part of the second applicant in particular arising out of an alleged failure to conform to strict dress codes in Iran. The second integer is the risk of harm to the third, fourth and fifth applicants (the children of the first and second applicants) arising out of their exposure to Christianity in Australia and the likely consequential effect if they were to return to Iran.
For the reasons that follow, I do not think that these claims are made out and it follows that the applications must be dismissed.
The procedural history
The procedural history of this matter is not controversial. What counsel for the applicants correctly submitted is that the applicants are citizens of Iran who arrived in Australia in late 2010. The applicant father (the first applicant) arrived in Australia on 20 September 2010 and the mother (the second applicant) arrived on 16 December 2010, together with the three children. Both primary applicants had interviews and in due course these led to Refugee Status Assessments (“RSA”). They were the subject of separate decisions, but by the time the matter reached an Independent Merits Reviewer (“the Reviewer”) they had been consolidated.
It is common cause that the applicants were notified of their hearing before the Reviewer on 5 December 2011 and that a hearing took place on 7 and 8 December 2011.
It is common cause that the amendment to the Migration Act that introduced the complementary protection provisions took place on
14 October 2011, but was not operative until 24 March 2012. It is, therefore, uncontroversial that the second respondent only considered the applicants’ claims in the context of the Refugees Convention.
However, no decision was reached before 24 March 2012, so the second respondent sought further submissions from the applicants about the complementary protection provisions.
Agents for both the parents separately forwarded written submissions.
No further hearing was held but rather the Reviewer dealt with the matter on the basis of the materials filed.
For these purposes, it is sufficient to note that the test to be met in relation to the Convention application involves a risk of serious harm within the meaning of s.91R of the Act, whereas the complementary protection provisions refer to significant harm (s.36(2A) of the Act).
At this point it is appropriate to come to the two integers of the applicants’ claim respectively.
The dress code claim
The first applicant’s statement in the materials concentrated upon his interrelationship with a person called Naser Esmaili who had been an employee of the secret police, the Sepah. At no stage did the first applicant make any reference to his wife’s difficulties arising out of non-conformity with the dress code.
In the initial entry interview conducted by a Departmental Officer, the second applicant’s answer to the question, “Why did you leave your country of nationality?” was essentially related to her husband’s experiences (see CB113).
The second applicant did, however, refer at CB115:
“Basiji coming to our place after we been to a function questioned us why we were dressed up, put make up on.”
At CB121, the second applicant relevantly asserted fears for her children and a fear that she might be interrogated and asked why she had escaped from Iran. She said that she did not wish to return to Iran because she is too scared of her life and would not be able to register her children to school. She referred to insults to her because of her Turkish origins.
At CB123, the second applicant asserted further harassment by the police because they were still looking for her husband. Throughout the entirety of the rest of the materials arising from that interview, no reference was made to the dress code issue nor indeed to any question of Christianity.
At CB130 to 131, the second applicant’s statement is set out. This does raise the question of her conversion to Christianity, although it also refers to the difficulties of her and her husband’s own related problems. There is nothing said about the dress code issue.
The wife’s Refugee Status Assessment Record runs from CB160-170. The Assessor records the wife’s claims at CB162. The primary matters raised were the difficulties of the first applicant, but I note that at the second last dot point on CB162 and following it is asserted that:
·Whilst in Iran, she wanted to find out more about the Christian faith however this was impossible as if you are born Muslim; you have to be a Muslim. In Iran she was not a practising Muslim at home.
·Since she has been in Australia she has come to know more about the Christian faith and considers herself to be a Christian in her heart.
·Since she has been in Australia she has studied the Bible, believes in the Bible, and believes in Jesus. She now wants to convert to Christianity, as she always wanted to be a Christian in Iran but could not do anything about it.
·The claimant fears returning to Iran due to the conflict that occurred between her husband and the Sepah. Also, when she converts to Christianity if she is returned to Iran she would be executed.
The RSA Assessor did not accept the second applicant’s claims (CB160-170).
As indicated, both applicants independently forwarded submissions to the Independent Merits Reviewer. At paragraph 2.2 of those written submissions (CB183), the second applicant’s written submissions stated that:
“her well-founded fear is due to both her imputed political opinion, which opposes the Basij, and her conversion from the Muslim Shia religion to the Christian religion.”
The first applicant’s written submissions run from page 206 to 212 of the Court Book and say nothing about the dress code issue.
Following the hearing on 7 and 8 December 2011, the agents for the first and second applicants submitted a joint set of further written submissions. Those submissions dealt again with the issue, inter alia, of the second applicant’s conversion to Christianity (see CB219-221).
Following the invitation from the Reviewer to submit further material relating to complementary protection (CB233-234), the second to fifth applicants again submitted written submissions (CB237-249).
It is true as counsel for the applicants submits that (at CB238) the agents said:
“We refer to, and rely on, all previous submissions made by, or on behalf of, Applicants.”
It will be necessary to deal with those submissions when dealing with the second ground of review but it should be noted that nothing in these written submissions dealt with the dress code issue.
The submissions forwarded by the agents on behalf of the first applicant (CB252-253) did not refer to the dress code issue, although it was put that the first applicant had converted to Christianity in Australia.
The Reviewer’s treatment of the dress code issue
The Reviewer set out the relevant law in terms that, in my view, are not open to criticism (at CB258-260). The Reviewer noted the difference between persecution which involves serious harm to the individual (reference was made to s.91R of the Act) and the complementary protection provisions which involve significant harm which is exhaustively defined in s.36(2)A and s.5(1) of the Act. Significant harm includes degrading treatment or punishment.
The Reviewer recorded the first applicant’s claims which did not at any stage include any reference to the dress code issue.
The Reviewer noted, correctly in my opinion, at paragraphs 34 to 35 (CB267-268) the wife’s claims. Her reasons for leaving Iran were predominantly to do with her husband’s difficulties. The Reviewer did note accurately in my view that:
“35. Elsewhere on the form, the claimant wife stated that the basij once came to their place asking why they were dressed up and wearing make-up.”
The Reviewer’s synopsis of the second applicant’s claims at paragraphs 33-39 seems to me to be an entirely fair and accurate one. The Reviewer traversed the second applicant’s claims in some detail, but did not deal in any detail with the dress code issue, not least because it was not articulated in the second applicant’s own materials saving the limited way I have described.
I note that at paragraph 110 (CB282), the Reviewer recorded:
“The claimant husband added that the basij have stations everywhere. His wife had experienced problems going shopping with her hair revealed, and his daughter had once been stopped for wearing a green scarf. He said that Iran is like a prison. The claimant wife agreed with this and, gave an instance of when an official had abused their daughter for wearing a dress that had not been long enough.”
Under the heading “Other Factors” at CB294, the Reviewer recorded at paragraph 146:
“The claimants have referred to several occasions when the Basij have harassed and abused the claimant wife and their daughters (presumably the older daughters). The claimant wife mentioned the ‘basij’ once coming to their place, harassing them about their dress style and wearing make-up. At interview, they variously referred to the basij abusing the claimant wife and/or their daughters for other incursions of their strict dress, such as showing their hair, wearing a dress or coat that was not long enough, or wearing a green scarf. I accept that there are strict dress codes for women and men in Iran. These have their origins in religious conservatism, but apply to all Iranians. I accept that the claimant wife prefers the more relaxed standards in Australia. However, I am not satisfied that the claimant wife or any family member has experienced persecution for religious or other Convention reasons arising from any minor infringement of the dress code, or that there is a real chance of such harm in the reasonably foreseeable future.”
Under the heading “Complementary protection: 36(2)(aa)” on CB296, the Reviewer dealt with the complementary protection claim. The Reviewer recorded at paragraph 160:
“The complementary protection submissions made for the claimant wife and children (19 April 2012) and the claimant husband (18 May 2012) reiterate their claims for protection, also addressing the criteria under s.36(2)(aa) of the Act, and provide some further information. I have considered these above, because they also relate to their claims for refugee protection.”
The Reviewer went on to dismiss the claims by particular reference to the primary matters actually articulated in those written submissions and in the materials generally, namely the claims relating to the husband’s problems with the Sepah and the wife’s (and to a lesser extent husband’s) problems arising out of conversion to Christianity.
The Reviewer did not refer in terms to the possibility of significant harm arising from the dress code issue. The Reviewer did say at paragraph 162, however:
“Having considered the claims and evidence as a whole, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimants being moved from Australia to Iran, there is a real risk that they will suffer significant harm.”
Conclusion on the first ground
In my opinion, the Reviewer’s remarks about the question of the possibility of significant harm arising from infractions of the dress code were sufficient. The fact is that this was not a claim clearly articulated on the face of the materials. It was a matter mentioned in the most passing way by the second applicant in her entry interview and in a passing way by both applicants at the review hearing. It was never mentioned in the substantial tranches of written materials filed by each of the applicants.
In my opinion it is clear that the Reviewer had considered the applicants’ claim to the extent that it was put in relation to the dress code and made the finding referred to above at paragraph 32. In this context, the generalised finding at paragraph 162 is sufficient to meet the challenge that the applicants put.
It is worth revisiting the actual disposition of the claim in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No2) (2004) 144 FCR 1 at [67]-[68] where the Full Court said:
“67… It is, however, significant that the precise ground of failure to consider an implied claim of want of state protection from PLOTE persecution was not raised in the application for judicial review before Tamberlin J. It was not the subject of any express claim before the tribunal. It seems to have emerged by way of submission in this second round appellate hearing.
[68] Although such a claim might have been seen as arising on the material before the tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the tribunal.”
Against that backdrop, the Full Court went on to dismiss the application.
In this case, in my opinion, the claim now articulated on behalf of the applicants was not sufficiently clearly advanced in the materials to attract the operation of the statements of principle in cases like NABE and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.
It follows that the first ground of the applications is not made out.
The second ground
The second ground of the applications is that the Reviewer failed to consider an integer of the claim made by each of the third, fourth and fifth applicants raised by the evidence before him namely, whether by reason of any of them having attended Christian church services and being educated in Christianity while in Australia, there is a real risk if any of them would suffer significant harm if they were returned to Iran.
In written and oral submissions, it was further put that the Reviewer fell into error by failing to assess this aspect of the applicants claim by reference to the complimentary protection criteria. It was asserted that the Reviewer only dealt with this, erroneously, by reference to the s.91R Convention based criteria.
The second applicant had articulated claims based upon her religion as a Christian from a relatively early stage and these matters were set out in more detail in the written submissions forwarded by her advisor to the Reviewer (CB182 and following). Those claims did not, however, articulate in terms any matters on behalf of the third, fourth or fifth applicants.
Counsel for the first respondent submitted that no claims of the sort now articulated were ever put forward by the third, fourth and fifth applicants but, in my view, that is an unworthy criticism. These applicants are children and can only be expected to act through their parents in any event.
The written submissions filed on behalf of the second to fifth applicants on 19 April 2012, assert at CB240 that:
a)the second applicant feared coming to the attention of the Iranian authorities, relevantly, because she has attended Christian church in Australia and now considers herself a Christian and others in camp in Australia may have talked to Iranian authorities about this.
b)Christian friends in Iran have been arrested and they may have mentioned the second applicant’s name.
Although there are references to the children in the various submissions made, at no point as far as I can see was it ever put that there was a real risk that the children would suffer significant harm if they were returned to Iran because they had attended Christian church services and been educated in Christianity while in Australia.
At the Independent Merits Review hearing it is clear that very little was said relevantly about the children and the question of their attending Christian school. At paragraph 102, CB281, the second applicant stated:
“… She added that her children now go to church, too, and want to become Christians. Asked for details of the children’s religious education, the claimant wife said that there are classes on Thursdays. The school told the parents that they can take the children to the mosque if they wish, but they declined to do so.”
The Reviewer’s decision also records at paragraph 114, a point raised in a post-interview submission dated 9 December 2011 (CB283), the following:
“… Having now adopted Anglicanism, the claimant wife would be at severe risk of persecution, and even the death penalty, if she were to return to Iran. She would no longer be able to remain quiet about her beliefs if she returned to Iran. Alternatively, the family would be forced to hide their beliefs and live in constant fear of being found out.”
As far as I can see this is the only occasion of which it could be said that this ground now advanced was traversed in terms in any way at all.
It should be noted that the Reviewer formed a very adverse view of the applicants’ credibility. Amongst other findings made was that at paragraph 144 (CB293):
“Given my adverse view of the claimants’ credibility, and the concerns recorded above, I do not accept that either of them has a genuine interest in Christianity; that the claimant wife had clandestine contacts with Christians in Tabriz; that either has in fact converted, that they will engage in any relevant conduct if they returned to Iran, or that they would be required to suppress any interest to avoid persecution.”
The Reviewer at paragraph 158 (CB296) roundly rejected all the claimants Refugee Convention claims.
The Reviewer went on to consider the question of complimentary protection. The suggestion advanced by the applicants that the Reviewer failed to consider the complementary protection claim in some manner discrete from the Convention claim clearly cannot be made out. At paragraphs 161-162, CB296-297), the Reviewer said inter alia:
“… In considering whether Australia has an obligation to provide complementary protection to the claimants, I have also taken into account the claimant wife’s conduct in Australia, namely her church attendance and other (very limited) activities, which I was required to disregard pursuant to s.91R(3) of the Act (see paragraph 143 above). I am not satisfied that her involvement in any church-related activities in immigration detention, any very limited exchanges that she or the claimant husband might have had with Farsi speaking Christians, or any of their schooling choices in relation to the children signal a genuine ‘conversion’ or adoption of Christianity. I consider the possibility that someone in the detention centre in the community might relay such news back to the Iranian authorities, and that they might consider this grounds to target the family, to be mere theory and suspicion, and to not amount to any risk of significant harm.
162. Having considered the claims and evidence as a whole, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimants being removed from Australia to Iran, there is a real risk that they will suffer significant harm.”
Clearly, the differentiation between the Convention criteria and the complementary protection criteria was in the mind of the Reviewer as indicated by these passages. I do not think that the proposition that the children (applicants) were at a real risk of significant harm if they returned to Iran by reason of them having attended Christian church services and being educated in Christianity in Australia was one that arose in the fashion indicated in NABE and Htun in this case. The claims advanced by the parents were articulated in some detail with some precision but they did not at any stage articulate this one.
Furthermore, in view of the Reviewer’s express finding that the parents had not converted to Christianity, a conclusion that the children will not be liable to suffer any harm whatsoever as a result of any Christian activities was one which the materials would justify in my view in any event.
It follows therefore that the second ground is not made out.
Conclusion
For the above reasons, the applicants’ claims are not made out and it follows that the applications must be dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 14 May 2013
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