FEDERAL COURT OF AUSTRALIA

WZAQR v Minister for Immigration and Border Protection [2013] FCAFC 122

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2.    The appeal be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    This appeal is from the judgment of the Federal Circuit Court of Australia given on 7 June 2013 dismissing, with costs, the application to that Court.

2    In brief, as found by the Independent Protection Assessor (the Assessor), the appellant is a national of Iran. He was born there in 1984 and spent most of his life in Iran. He lived in Iran before leaving for Australia in 2010 and arriving on 8 February 2011.

3    On 22 April 2011 the appellant made a request for a Protection Obligation Determination. A negative assessment was made by a delegate of the Minister for Immigration and Citizenship on 7 July 2011. On 14 July 2011 the appellant applied for an Independent Protection Assessment. On 22 December 2011 the Assessor recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

4    An application was made to what is now the Federal Circuit Court of Australia on 29 February 2012 or 2 March 2012 and amended on 20 November 2012. The grounds were that the Assessor failed to make a recommendation according to law in that: he asked himself the wrong question; in the alternative, he failed to consider an integer of the appellant’s claims; and the Assessor failed to make a recommendation according to law by failing to accord procedural fairness to the appellant. As we have said, that application was dismissed by order made on 7 June 2013.

5    The grounds of appeal to the Full Court are, first, the Federal Circuit Court judge erred in that his Honour applied the wrong legal test in considering whether the Assessor asked himself the wrong question and thereby did not make a recommendation according to law. In the alternative, the Federal Circuit Court judge erred by failing to find the Assessor failed to consider an integer of the present appellant’s claims and thereby did not make a recommendation according to law. The ground of denial of procedural fairness which formed part of the hearing before the Federal Circuit Court was not pursued in this appeal to the Full Court.

6    The two remaining alternative legal characterisations had similar particulars which were as follows:

a.    The Appellant claimed to have a well-founded fear of persecution if he returned to Iran on the basis he would be a member of a particular social group, being failed asylum seekers returning to Iran.

b.    The Assessor accepted the Appellant would come to the attention of the authorities on his return to Iran.

c.    The Assessor found that persons involved in anti-government activities returning to Iran face serious harm upon their return.

d.    The Assessor found the Appellant had not previously come to the attention of the authorities in a way that would suggest political or religious activism.

e.    For this reason, the Assessor found the authorities would not show any interest in the Appellant upon his return to Iran.

The first characterisation then concluded with the following particulars:

f.    In making these findings, the Assessor focused on the likely outcome of any investigation, rather than on the process of investigation to which the Appellant would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not engaged in anti-government activities.

g.    In concluding that the material before the Court formally supported the Assessor’s view that the Appellant was highly unlikely to attract the attention of the authorities on his immediate return to Iran, the Federal Circuit Court Judge failed to consider whether the Assessor had asked himself the question outlined in (f) above.

The second characterisation concluded with the following particulars:

f.    In making these findings, the Assessor failed to consider whether the process of investigation to which the Appellant would be subjected, and the risk that he might suffer serious harm before being able to convince the authorities that he was not engaged in anti-government activities, could amount to persecution.

g.    In concluding that the material before the Court formally supported the Assessor’s view that the Appellant was highly unlikely to attract the attention of the authorities on his immediate return to Iran, the Federal Circuit Court Judge failed to consider whether the Assessor had considered whether the process of investigation referred to in (f) above could amount to persecution.

7    These particulars are in substance the same as the particulars of the two remaining grounds the subject of the application to the Federal Circuit Court.

The findings of the Independent Protection Assessor

8    In his statutory declaration dated 20 April 2011 in support of his application for a Protection Obligation Determination the appellant said that he left Iran because the regime in Iran was “an oppressive and stifling one”. He said that after the elections, in about July or August 2009 he “joined in a demonstration”. He said that from that point he had lived in fear that he would be “identified and arrested through photographs taken at random by the Basij”. Eventually he decided to leave Iran. He said that if he returned to Iran he “will be arrested at the airport and probably killed.” In his declaration he said:

If I was to return to Iran, the authorities there will know I must have been unlawful in Australia and suspect that I applied for refugee status and failed, they will know I spoke badly about Iran and that I am against the regime, I will be accused of been [sic] a spy and Sharia law will apply, they will arrest me and do with me what ever they want as they did many others.

9    A submission by the appellant’s solicitors and migration agents dated 15 November 2011 asserted that the appellant’s fear of persecution rested on his religious beliefs, they being less conservative than the religious beliefs of the regime; his imputed political opinion, that being less conservative than the political opinion of the regime; and his membership of particular social groups, those groups being:

    people who did not comply with fundamentalist religious norms imposed by the Iranian regime;

    people who transgress religious moral codes/policies/laws imposed by the Iranian regime; and

    supporters of Mousavi/the Green Party.

The submission also stated that the appellant feared that if he was returned to Iran he would be persecuted due to his being a failed asylum seeker. The appellant in oral submissions before this Court relied in particular on paragraphs of the submission at Appeal Book 161, to which we will return later in these reasons.

10    The Assessor found that the appellant was not particularly credible. His evidence at the interview was internally consistent and generally consistent with known circumstances in Iran, however there were some inconsistencies between his evidence at the interview and his earlier evidence. On balance, and extending to the appellant the benefit of all doubt, the Assessor accepted that the appellant’s fear that if he returned to Iran he would be arrested and probably killed was genuine. However the only evidence that the appellant had provided on which he could base his fears were the following assertions:

    that he set a Basij motorcycle alight and helped an injured demonstrator; and

    that the Basij have taken his photograph; and

    that the Basij visited his father’s house and told his father that the appellant participated in a demonstration and for that reason they want him.

11    The Assessor did not accept that any of those events actually took place. While he accepted that the appellant attended a demonstration (by accident rather than by design) he did not accept that the appellant had ever been politically active or that he was known or wanted by the authorities. In making these findings of fact, the Assessor was also aware of the appellant’s claim that he had participated in a second demonstration a few days after the first. He described the appellant’s involvement in the demonstrations as, by his own evidence, “short lived and limited”. It followed that neither the appellant’s political opinions nor any political opinions that could be imputed to him led to a real chance of persecution. He was unknown to the authorities and he was unlikely to come to their attention for any past action in Iran. The appellant had not indicated that he had ever been vocal in his opposition to the moral codes and policies of the regime in Iran. He had not indicated that he was a religious dissenter. Although he claimed to have voted for Mousavi (by the official count more than 13 million Iranians voted for Mousavi) he had not claimed to have campaigned or advocated for Mousavi in any way and he had certainly not participated in the Green Movement which developed after the 2009 election. He had said that neither he nor his family had ever been involved with any political party or movement.

12    There was no evidence that the appellant had ever expressed religious dissent. The moral code of that regime appeared to be more of an irritant and an inconvenience to the appellant and it appeared most likely that the appellant had left Iran in order to avoid this irritation and inconvenience.

13    With regard to his political opinion, there was no evidence, and the appellant did not claim, that he was an activist, agitator or organiser and there was no evidence that he would be thought to be such by the authorities. Indeed, his evidence was that he had scrupulously avoided any political activity both before and since what appeared to be a brief and somewhat opportunistic involvement in a demonstration following the 2009 election and his limited involvement in another demonstration a few days later. The Assessor found there was not a real chance that the appellant could face persecution for his religious beliefs or his political opinion.

14    Turning to the submission of 15 November 2011 which asserted that one of the “issues that should be taken into consideration” is “the risks of Convention related persecution that the involuntary removal of the [appellant] to Iran as a failed asylum seeker may trigger”, the Assessor said that it was not clear if this was an additional claim that the appellant would be targeted as a result of an imputed political belief based on him having sought asylum in Australia, or an additional claim that as a result of him being a member of a particular social group made up of failed asylum seekers he would face persecution.

15    The Assessor said that he had considered both possibilities. He first considered whether or not the appellant would be identified as a failed asylum seeker on return to Iran. The appellant’s passport was taken from him by the people smuggler on his way to Australia and the appellant would thus have to obtain new travel documents before he would be allowed to enter Iran. It seemed likely that in the process of obtaining documentation, whether in Australia or on arrival in Iran, the Iranian authorities would become aware, or at least suspicious, that the appellant had applied for asylum. While unable to determine that the authorities would become aware that the appellant had sought asylum, the Assessor accepted that it was likely that they would. Even accepting that the authorities would be aware that the appellant had sought asylum, it was not at all clear that he would be stopped or detained on return to Iran. Advice from the Department of Foreign Affairs and Trade appeared to leave open the possibility that a person who was identified as a “low level protestor” by the authorities could be stopped but it provided no specific information as to whether a person who was not identified as a protester at all would be stopped. The Assessor concluded that the chances of the appellant being maltreated were at the lower end of the range covered by the word “possible”. Indeed, given that the Department of Foreign Affairs and Trade did not know of any specific instance, and only acknowledged that it was “possible” in “isolated” cases, the Assessor said one might think that the possibility was no more than theoretical. While accepting the advice that it was possible that the appellant may suffer maltreatment as a result of seeking asylum, he did not accept that the acknowledgement of the possibility of this happening necessarily meant that there was more than a remote chance of it happening.

16    Having analysed the facts founding a decision of the Refugee Review Tribunal of 22 October 2010, the Assessor said:

[109]    … As I have found that [the appellant] has not come to the attention of the authorities, except in relation to relatively trivial and ordinary matters concerning social behaviour, the task is to determine whether simply because he is an asylum seeker he would face serious harm. That he would is not supported by the evidence cited in the RRT decision.

17    The balance of the Assessor’s reasons was as follows:

[112]    I have accepted that as a failed asylum seeker [the appellant] will come to the attention of the Iranian authorities. There is a clear body of evidence suggesting that if he had already come to the attention of the authorities for any reason which could strongly suggest a political opinion or religious belief that is considered to be opposed to the opinions and beliefs of the regime he would face serious harm. In this regard I note that the 2005 Canadian Immigration Review Board report which quoted the cases described by the Toronto Globe and Mail also quotes the US Department of State Human Rights Report in which it states that “[c]itizens returning from abroad sometimes were subjected to searches and extensive questioning by government authorities for evidence of anti-government activities abroad.” [Footnote omitted] This strongly supports the conclusion that the rationale by which the authorities decide how to deal with returnees is whether they have been involved in anti-government activities rather than whether they have sought asylum.

[113]     As I do not accept that he has ever come to the attention of the authorities in a way that would suggest political or religious activism, I do not accept that there is a real chance that the authorities would show any interest in him on return to Iran. I do not accept that there is a real chance that he would suffer serious harm either because he would be a returned asylum seeker or because as a returned asylum seeker he would be imputed to have a political opinion opposed to the regime.

[114]     I therefore do not accept that there is a real chance that [the appellant] would face persecution resulting in serious harm for a Convention reason and I do not accept that any fear he may have in this regard is well-founded. In arriving at this conclusion I have considered the reasons individually and cumulatively. I find that there is not a real chance of [the appellant] facing persecution resulting in serious harm for any Convention reason or reasons.

The reasons of the Federal Circuit Court

18    In the Federal Circuit Court the appellant’s legal representatives submitted that Grounds 1 and 2, which we have set out at [6] above, were alternative characterisations of the same error and, accordingly, should be considered together.

19    The appellant relied on the decision in Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025. The Federal Circuit Court judge’s essential reasoning on the grounds now pursued was as follows:

[82]     The circumstances in these proceedings can be distinguished from the decisions in SZQPA (FMC Proceedings) and SZQPA (Federal Court Proceedings). In the SZQPA proceedings the Sri Lankan applicant had a clearly articulated claim on which protection was sought. Although the applicant may have ultimately been able to establish his innocence to the Sri Lankan authorities, the major risk existed from the time of his arrival until the ultimate decision was established. However, the matter before this Court on the material available formally supports the view that the applicant was highly unlikely to attract the attention of the authorities on his immediate return to Iran because he did not possess a profile that would attract such attention. In other words, the factual situation in this matter can be distinguished from that identified in SZQPA (Federal Court Proceedings). In the circumstances, I am satisfied that this ground cannot be sustained.

It is uncertain what the judge meant by the word “formally”.

Appellant’s submissions

20    The appellant submitted that the error of the Assessor was to focus on a finding that the appellant would, ultimately, not be a person of interest to the authorities in Iran without considering whether the process by which the authorities might reach that conclusion could amount to persecution and the primary judge made the same error.

21    The appellant submitted the phrase “show any interest in” the appellant at [113] of the reasons of the Assessor must refer to the end result, that is, the outcome after the appellant initially came to the authorities’ attention in Iran. The appellant submitted that this constituted the same error described in Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025. That is, having accepted the appellant “will come to the attention of the Iranian authorities” upon his return to Iran, the Assessor then “focus[ed] on the likely outcome” of that attention, rather than on the process the authorities might use to determine the appellant was not a person in whom they should, ultimately, be interested. This failure, the appellant submitted, constituted jurisdictional error: Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025 at [44], [59]-[60]; SZQPA v Minister for Immigration and Citizenship [2012] FMCA 123 at [29], [30]-[33].

22    The appellant argued that in focusing on the outcome rather than the process, the Assessor asked himself the wrong question or, alternatively, failed to consider an integer of the appellant’s claims, being that the process to which he would be subjected upon his return to Iran constituted serious harm amounting to persecution, whatever the outcome of that process.

23    The appellant submitted the correct question, on the basis of the Assessor’s own findings, was: was there a risk that the appellant might suffer serious harm amounting to persecution before being able to convince the authorities that he was not a person in whom they should show interest.

First respondent’s submissions

24    The first respondent submitted that Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025 did not establish any general principle of law that whatever the facts, a fear of harm in a “process of investigation” of an appellant on return to their country of citizenship must be explicitly considered. Rather it was simply a case where on the facts the Court held that the Assessor had failed to deal with a clearly articulated claim (see at [43]), being that the appellant may suffer harm in the process of investigation of him as a failed asylum seeker if he were returned to Sri Lanka. The relevant legal principle was that the Assessor had to address the appellant’s claims: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90]. This meant claims that were clearly articulated or clearly arose on the material before the Assessor in accordance with the principles discussed in NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1. In the current case the appellant claimed to fear harm in Iran as a failed asylum seeker. The claim the subject of these proceedings was addressed by the Assessor at [93]-[115]. The Assessor accepted that it was likely that the Iranian authorities would become aware that the appellant was a failed asylum seeker (at [95]). However, having regard to independent country information, the Assessor concluded that as the appellant did not have an anti-government profile there was not a real chance that the authorities would “show any interest” in him if he returned to Iran at [113]. That was a rejection of the claim that any harm would befall the appellant as a failed asylum seeker. It was of sufficient generality to encompass the possibility, although never suggested by the appellant, that he may be harmed in the process of some investigation: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47] where the Full Court said that in a particular case it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality.

Consideration

25    In our opinion the highest point for the appellant was the statement at [112] that “[c]itizens returning from abroad sometimes were subjected to searches and extensive questioning by government authorities for evidence of anti-government activities abroad”, but which the Assessor said strongly supported the conclusion that the rationale by which the Iranian authorities decided how to deal with returnees was whether they had been involved in anti-government activities rather than whether they have sought asylum.

26    This does not amount to error of the type for which the appellant contends, that is either asking the wrong question or failing to consider an integer of the appellant’s claims.

27    Read fairly, the reasons of the Assessor show that he was dealing with the claim that the appellant would be persecuted as a failed asylum seeker.

28    Unlike the position in Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025 at [43] where there had been an expressly articulated claim made by the applicant which required the Reviewer to consider whether the applicant would be subjected to Convention related persecution during a process of questioning by the Sri Lankan authorities, it may be doubted whether there was any such like claim made in the present appeal. The appellant relied in particular on a submission made on 15 November 2011 by the appellant’s solicitors and migration agents at Appeal Book 161 but that submission seems to us to be no more than a generalised statement. But whether or not such a claim was made which required separate consideration being given to the prospect of the appellant facing a real chance of persecution during that stage when his claims were under consideration, the facts as found by the Assessor provided no support for any such claim.

29    An important part of the reasoning was that the appellant had not ever come to the attention of the authorities in a way that would suggest political or religious activism. This was in the light of earlier findings that the appellant had not been involved in any such activism notwithstanding his brief and limited involvement in two demonstrations. The Assessor, at [113], said “I do not accept that there is a real chance that the authorities would show any interest in him on return to Iran.” The expression “show any interest in him on return to Iran” does not in context convey interest only after a process of investigation but includes a process of investigation which could amount to searches and extensive questioning by government authorities for evidence of anti-government activities as referred to at [112].

30    There was a distinction drawn by the Assessor between how the authorities might deal with returnees who had been involved in anti-government activities and those who were merely returnees who had sought asylum.

31     The Assessor found the appellant belonged to the second group and concluded that there was not a real chance that the appellant would suffer serious harm either because he would be a returned asylum seeker or because as a returned asylum seeker he would be imputed to have a political opinion opposed to the regime. Implicit, at least, in these findings is that for a returnee to Iran who had not been involved in anti-government activities there was not a real chance that the returnee would suffer serious harm. As we have said, the facts as found did not provide support for the contention that there was a real chance the appellant himself would suffer serious harm merely by coming to the attention of the Iranian authorities as a failed asylum seeker.

32    Minister for Immigration and Citizenship v SZQPA (2012) 133 ALD 292; [2012] FCA 1025 was a case involving quite different facts.

33    In that case the applicant escaped from Sri Lanka for the very reason that the Sri Lankan Army was looking for him and his young son was detained and arrested during which time he was asked as to the applicant’s whereabouts. Also the reports in the Country Information of torture of detainees merely suspected of supporting the LTTE were widespread.

34    As to whether the claims covered the issue, Gilmour J held at [39] that it was plain enough in context that the applicant was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE. This was the applicant’s only articulated claim of fear of torture during interrogation. At [43], Gilmour J rejected the submission that there was no expressly articulated claim made by the applicant which required the Reviewer to consider whether the applicant would be subjected to Convention-related persecution during a process of questioning by the Sri Lankan authorities. This was at the very core of the applicant’s claimed fears.

35    As to whether there was error of law in the consideration of the claim, Gilmour J held at [53] the starting point was whether the Sri Lankan authorities would suspect that the applicant had links or an association with the LTTE. The reports in the Country Information of torture of detainees merely suspected of supporting the LTTE were widespread. The reports largely concerned ill-treatment of Tamils merely suspected of links with the LTTE. The applicant was a Tamil; he came from the north of Sri Lanka and indisputably had links with the LTTE even if he described them as involuntary. At [60], Gilmour J agreed with the analysis of the Federal Magistrate found at [33] of his Honour’s written reasons:

That paragraph [[45] of the Reviewer’s reasons] only related to the general process of interviewing returning asylum seekers and stated that those suspected of having involvement with the LTTE would be taken away for further questioning. The applicant had been involved with the LTTE (albeit at a low level although the involvement of the applicant’s four brothers who have been killed or presumed killed by the Sri Lankan authorities would increase the applicant’s risk profile) and could therefore expect to be interrogated by the Sri Lankan police so that the authorities could satisfy themselves that, unlike his four brothers, the applicant did not represent a security risk. The applicant might well be able to persuade the authorities that he did not represent a risk, but the Reviewer needed to consider what might happen prior to that point being reached. [Emphasis added.]

36    In the present case none of these circumstances obtained.

37    In our opinion the conclusion reached by the judge of the Federal Circuit Court was correct, albeit our reasoning differs in some respects, and no legal error on the part of the Assessor has been established.

Conclusion and orders

38    The name of the first respondent should be amended to “Minister for Immigration and Border Protection”. The appeal should be dismissed, with costs.

Associate:

Dated:    4 November 2013