WZARZ v Minister for Immigration

[2013] FCCA 1543

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZARZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1543

Catchwords:
MIGRATION – Application for Review of decision of Independent Protection Assessor – whether applicant accorded procedural fairness – whether Assessor failed to consider relevant evidence – whether Assessor failed to consider claim advanced by applicant. 

Legislation:  

Migration Act 1958 (Cth)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
NABE v Minister for Immigration and Multicultural and Indigenous Affairs No 2 (2004) 144 FCR 1

Applicant: WZARZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ANGELA CRANSTON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: PEG 289 of 2012

Judgment of: Judge Burchardt

Hearing date: 26 July 2013

Date of Last Submission: 26 July 2013

Delivered at: Melbourne (by video link to Perth)

Delivered on: 14 October 2013

REPRESENTATION

Counsel for the Applicant: Mr D. Blades

Solicitors for the Applicant: SanLing Chan

Counsel for the First Respondent: Mr P. MacLiver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Pursuant to r.701 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 289 of 2012

WZARZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ANGELA CRANSTON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By Re-amended Application filed on 12 July 2013, the applicant seeks judicial review of a decision of the second respondent dated 31 July 2012.  The second respondent who acted as Independent Protection Assessor recommended that the claimant not be recognised as a person to whom Australia has protection obligations because she did not meet the criteria for Protection (Class XA) visa. 

2. The four grounds of review now relied upon all involve a detailed consideration of the claims and evidence submitted to the Assessor and the way in which the Assessor dealt with them.  Although there are several aspects of the Assessor’s decision which I confess I might have dealt with differently myself, for the reasons that follow, I do not think that the Assessor can be shown to have fallen into jurisdictional error, and it follows that the application will be dismissed. 

Ground 1 – The assessor failed to accord procedural fairness to the applicant by finding that the applicant’s alleged persecution at the hands of the Basij had never occurred without notifying the applicant that she had serious doubts over all of the applicant’s husband’s claims of dissidence against the Basij and harassment and detention of himself by them. 

1. The applicant is a citizen of Iran who arrived in Australia by boat on 28 September 2011.  She was accompanied on that boat by her husband who is also a citizen of Iran.  Other family members who are not relevant to these proceedings also accompanied them. 

2. Upon arrival, the applicant was interviewed by an officer of the Department.  Inter alia she gave details of three relatives who were living in Australia. 

3. On 19 October 2011, the applicant participated in an entry interview with an officer of the Department and in that interview gave two main reasons for her departure from Iran.  The first reason related to her husband’s work in operating a mechanic’s business in Tehran and the associated difficulties her husband had run into with the Basij (the applicant gave details of her husband’s mistreatment by the Basij). 

4. The applicant also asserted Court Book (“CB”) 22):

   “… When I went to the tailoring classes, without reason, because my hair was out, a few Basiji assaulted me in the street and shaved the front of my head in such a bad way I was ashamed to go back home.  They were the same people that went to my husband’s work place.  About 5 months ago I was about 1 month pregnant and I was going to my tailoring classes and suddenly a rider on a motorbike, I don’t know if they were the same people, kicked me so hard in the back that I bashed against a wall.”

   The account went on to detail the most unfortunate sequelae to that assault including a miscarriage. 

1. The second main reason identified by the applicant for her departure from Iran was the circumstances of her brothers.  The applicant asserted that the Basiji kept saying to her “we are going to kill you all”.  She went on to assert that she had been insulted and beaten by the Basij because she was the sister of these three brothers all of whom were said to have been activists for the presidential campaign of Mr Mousavi. 

2. The applicant’s case proceeded very much in parallel to that of her husband.  He also gave an entry interview (CB28-46) and set out in detail the various assaults affected upon him by the Basij, essentially because of his failure to cooperate in the Basij’s desire that he issue them with fraudulent documentation.  It should be noted however that the matters asserted included the proposition that the applicant had also been harassed by the Basij during the time the shop was open at both the first and second locations, in order to get him to cooperate with their goals.  Also that the Basij had harassed his wife while the husband was unemployed and she was doing her tailoring course and had been the subject of several other assaults. 

3. Each of the husband and the applicant applied in due course for protection obligations determination, and the applicant’s Statement in support of that application is at CB115-117.  It is fair to say that the applicant adopted her husband’s Statements as true.  She also set out in more detail the circumstances of her brothers who had fled to Australia.  At paragraph 8 of her Statement she said:

   “My problems with the Basij started when they targeted my husband (name omitted) and wanted him to provide false invoices in an attempt to cover up their actions.  The Basij realised that my husband was not going to yield to their demands and then started to harass me in order to put pressure on (applicant’s husband) to give in to their request. …”

4. The applicant gave greater detail of the assaults by the Basij and at paragraph 12, the applicant said:

   “Two weeks later I had to go to the sewing class and thought the Basij would leave me alone.  As I was getting closer to the class, I saw the same people were coming towards me and I go very scared.  They assaulted and attacked me and started to beat me.  My fringe was a bit out of my scarf and was showing.  I was always trying to cover my hair due to being scared to be targeted.  Unfortunately it happened.  Again I was attacked by the same three men.  They kicked me said if they see me again with my hair out they will polish my face with the wax. …”

5. The applicant gave details of two subsequent assaults, the latter of which was the one from which she suffered a miscarriage.  In essence what the applicant submits is that the Protection Obligations Evaluation officer, (“the POE officer”), had accepted some of the applicant husband’s assertions.  The Assessor however rejected all of the husband’s assertions about his mistreatment by the Basij.  What the applicant submitted was that in the circumstances where the applicant’s application was intimately interwoven with and relied very heavily on her husband’s application, it was incumbent upon the Assessor to draw the applicant’s attention to the possibility of the rejection of the entirety of her husband’s evidence, rather than what was submitted to be a few discrete points put, (at transcript p-14). 

6. In the end it is a matter of looking at the Assessor’s reasons as a whole to see whether, as the High Court emphasised in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32]:

   “In Alphaone the Full Court rightly said:

   It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

7. That passage followed an earlier passage at [29] wherein a further extract from Alphaone the Court said:

   “Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

8. It is, of course, true that the POE officer accepted the applicant’s husband’s claims about his refusal to provide fraudulent receipts (see CB126). 

9. It should be noted at CB127-128, the POE officer expressly failed to accept the applicant’s husband’s claim that he had been pursued for false receipts at the second business he had operated and went on to otherwise reject his claims roundly on credibility grounds.  The POE officer expressly found (CB128), as I have earlier said:

   “Given these findings, I do not find that the claimant has a profile to where he is at risk of persecution by the Basij.”

10. On the same page, (CB128) the POE officer said:

    “Claimant 2 stated that several targeted abuses happened to her as a consequence of her husband’s refusal to provide fraudulent receipts to the Basij.  However due to the credibility findings, or lack thereof, of her husband’s testimony, I found likewise, that these events did not occur.”

11. In these circumstances I accept the submission at paragraph 23 of the first respondent’s written submissions that:

    “The applicant was therefore well aware that the credibility of herself and her husband was in issue when their claims were reviewed by the assessor”.

12. Indeed, she would have been well aware that critical aspects of her husband’s (and her own) claim that the husband was at risk of persecution by the Basij was very much in issue. 

13. When the matter came before the Assessor, it is apparent from the decision at CB181-184 that the Assessor traversed with the applicant in considerable detail the history of what was alleged to have happened in relation to the Basij.  Although the applicant’s submissions take issue with a phrase in paragraph 41, namely “the Assessor stated all these things may lead her to conclude these things have not happened”, no other criticism was made of the Assessor’s account of events. 

14. Reading the decision as a whole and fairly, it seems to me that it must have been entirely clear to the applicant that the Assessor doubted her credibility generally.  This was clearly indicated to include the history involving the Basij. 

15. The assertion that the transcript suggests that the Assessor expressed, as it were, only discrete doubts about the applicant’s evidence does not, in my view, accord with the record of the interview as a whole.  The Assessor asked a number of detailed questions about all aspects of the interaction with the Basij and her reservations about the applicant’s truthfulness must have been apparent or should reasonably have been apparent to the applicant and her advisor.  Indeed, the advisor filed a post-hearing submission seeking to address credibility issues. 

16. In all these circumstances, I do not think that the applicant was not accorded procedural fairness in this regard. 

17. I have refrained from making any findings about the first respondent’s submissions that there was no material to which the applicant could point that she would have placed before the Assessor if advised that the Assessor did not accept that her husband had been approached by the Basij.  This is an area about which, from time to time, judicial minds seem to have differed.  All I would say in the present instance is that in circumstances where procedural fairness is required, and although each case would necessarily turn on its own facts, I would be slow to seek to force an applicant to formulate, as it were, proof of what they would have put.  The point about procedural fairness is to give the applicant a fair opportunity to be heard rather than to place some onus upon them. 

Ground 2 – The assessor ignored the applicant’s submission of 6 December 2011 in finding that the applicant does not meet the criteria for a Protection (Class XA) Visa. 

1. It should be noted that it is common cause that the Assessor was wrong to say at paragraph 47 of the decision (CB189) that the submissions of 6 December 2011 were those made at the DIAC interview. 

2. At paragraph 40 of the first respondent’s Outline of Submissions there is set out a detailed tabulation of the relevant matters in the 6 December 2011 submissions, together with an analysis of why it was that the Assessor had indeed considered these matters.  I do not propose to traverse these matters seriatim.  Nonetheless, I can indicate that having looked at the submissions and the reasons for decision it is clear that the first respondent’s submission is correct. 

3. It should also be noted as the first respondent submits that the matters asserted to have been overlooked were in substance all matters going to what might happen if the applicant’s husband and the applicant were returned to Iran.  Given the Assessor’s conclusion that the applicant’s husband and the applicant were at no risk of harm from the Basij, it is difficult to see how the matter could have been the subject of any different outcome if these submissions had been expressly referred to by the decision. 

Ground 2(A) – The assessor ignored an explanation made by the applicant’s migration agent Playfair Visa and Migration Services in a submission to the assessor dated 5 July 2012 (CB134-139) as to inconsistencies perceived in the applicant’s evidence by the Protection Obligations Evaluations officer, when those same inconsistencies were raised by the assessor and relied upon by the assessor to support her finding that the applicant had never been targeted by harassed by the Basij.  

1. The applicant’s submissions correctly point out that in the post-hearing submission of 5 July 2012 the applicant’s agent addressed discrepancies perceived by the POE officer in paragraphs 3 and 4 of the submissions made.  The complaint is that the Assessor simply did not consider this explanation before finding that the applicant had never been approached by the Basij.  The kernel of the submission is at paragraphs 61-62 of the applicant’s written submissions:

   “61.  The agent also submitted that the complete consistency of the substance of the claims made by the two claimants since they arrived in Australia deserved greater weight than small differences in detail between dates.

   62.  Had the assessor considered the explanation given by agent, one of the areas of inconsistency relied upon by the assessor to find the applicant’s overall telling of events to be unconvincing might have been removed.  As a consequence, the assessor may have been moved to give more consideration to the substance of the claims made by two claimants rather than focusing, as she did, on small differences in detail between dates.  For this reason, it cannot be said that remitting the matter for reconsideration would be futile.”

2. The first thing to be said is that, as the first respondent submits, it is clear that the Assessor did have regard to the agent’s submissions because they are set out in full at CB186-189. 

3. The difficulty with this submission of the applicant, in my view, is that it constitutes what is clearly merits review.  This is not permissible.  The reality is that the criticism advanced of the Assessor’s decision is that she erred in forming an adverse credibility view. 

4. The Assessor saw the applicant and heard her evidence.  She clearly had regard to the material before her relating to the applicant’s credibility.  She came to adverse credibility findings for reasons that, in my view, are not capricious or misconceived.  Put shortly, this ground essentially complains that the outcome was not one that the applicant accepts and I do not think that that is a matter that gives rise to jurisdictional error on the Assessor’s part. 

Ground 3 – The assessor made no findings in relation to whether there is a real risk that the applicant will suffer significant harm within the meaning of subsection 36(2A) of the Migration Act 1958 in respect of her claim that she had been assaulted by the Basij by reason of violating the dress code, as distinct from by reason of her association with her husband and brothers. 

1. This ground relates to the applicant’s claim for complementary protection pursuant to s.36(2aa) of the Migration Act 1958 (“the Act”).  In essence it is a complaint that the Assessor failed to consider, when assessing the risk of significant harm, should the applicant return to Iran, whether the applicant might be at such risk because of a failure to conform to the dress code. 

2. Here it is important to look first at what the Assessor found.  The Assessor found at paragraph 83 (CB210) and following:

   “83.  The claimant’s agent has submitted that there are substantial grounds for believing that there is a real risk that the claimant will suffer significant harm based upon the claimant’s previous experiences at the hands of the Iranian authorities and given the official nature of the harm suffered, there is no effective protection against the risk of harm.

   84.  As noted, above, the assessor is not satisfied that the claimant has suffered any ill treatment by the Basij in the past nor that she or her husband have been imputed with any anti regime political opinion.  The assessor is not satisfied that the claimant who has never been involved in any political activities in the past and who has been found not to have been imputed with any anti-government opinion either when her siblings were in Iran or at any time after they departed will be imputed with an anti-government political opinion merely for leaving Iran, or for seeking asylum in a Western country or for being in or returning from or even forcibly returning from a Western country. …”

3. It should be noted that the Assessor’s treatment of the complementary protection issue arose very much in the context of the applicant’s advisor’s claims that the applicant would be subject to significant harm as a failed asylum seeker.  The finding which the Assessor was clearly referring to, however, is at paragraph 75 (CB208) where the Assessor, having made a finding that the applicant was capable to participate in the hearing and respond to questions, contrary to the view of Ms Neervoort, went on to say:

   “75.  The assessor finds that given the level of inconsistency in the claimant’s statements and between the claimant and her husband in relation to where the claimant’s husband worked, when he was allegedly detained and what happened to the claimant when he was detained, the assessor does not accept that the claimant was ever approached by the Basij or that her husband was approached by the Basij or that he refused to cooperate, or that he was forced to relocate his shop as a result.  The assessor does not accept that the claimant’s husband was considered a rebel or a dissident against alleged Basij criminality or that he was ever harassed or detained by them, or that he has been imputed with a political opinion for any reason or that the claimant was also targeted as a result.  As the assessor does not accept that the claimant was every (sic) approached by the Basij, neither does the assessor accept that the claimant was approached by the Basij because of her family nor that she has been adversely affected by any association with her family. …”

1. For my part, I would be prepared to accept the criticism advanced by counsel for the applicant namely, that the fact that the applicant may not have been targeted by the Basij would not necessarily mean that the applicant might not be targeted for breach of the dress code in Iran generally.  There is force in the applicant’s written submissions at paragraph 68 where it is asserted:

   “Having referred to the country information mentioned in particular 3.3 above, the assessor did not consider the possibility that one or more of the alleged assaults on the applicant was perpetrated upon her by the Basij in order to enforce the dress code for women, and not perpetrated upon her as a collateral target to her politically-motivated husband and brothers.”

2. There are two difficulties however with the applicant’s position.  The first, of course, is that the Assessor expressly found that the applicant had never been assaulted or mistreated by the Basij.  Against that finding it was inevitable that the Assessor did not consider this aspect of the matter as part of the complementary protection consideration. 

3. The next matter is whether or not this claim would have clearly emerged upon the materials (NABE v Minister for Immigration and Multicultural and Indigenous Affairs No 2 (2004) 144 FCR 1).

4. The difficulty here again is that in fact the applicant’s own case as indicated in the passages set out above was always that the assaults upon her were perpetrated only in the context of, and because of endeavours to pressure her husband.  The applicant’s own evidence was that she always tried to keep her hair properly in place according to the Iranian dress code.  In the face of this evidence, it does not seem to me that the applicant’s claim could have been said to arise fairly on the materials in any event. 

Conclusion

1. For the above reasons, the various criticisms advanced by the applicant of the Assessor’s decision are not made out and it follows that the application will be dismissed with costs.  I will also order that the name of the first respondent be amended to “Minister for Immigration and Border Protection”. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 October 2013