FEDERAL COURT OF AUSTRALIA

CTN15 v Minister for Immigration and Border Protection [2017] FCA 611

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant has leave to amend the notice of appeal to insert the word “not” in the first line of ground 1, between the words “in” and “finding”.

2.    The requirement that an amended notice of appeal be filed with the Court be dispensed with.

3.    The appeal be dismissed.

4.    The Appellant pay the First Respondent’s costs of the appeal, fixed in the sum of $6,439.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The Appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of an International Treaties Obligations Assessment, which found that Australia did not have non-refoulement obligations to the Appellant under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment or the International Covenant on Civil and Political Rights and its Second Optional Protocol.

2    The Appellant is an Ahwazi Arab man from Khuzestan, Iran. The Appellant claimed protection on the basis of his ethnicity as an Ahwazi Arab who had been subject to consistent persecution during his lifetime. The Appellant claimed that he had experienced discrimination. His claims included that the Iranian authorities had taken his family’s land without compensation because of their ethnicity as Ahwazi Arabs. The Assessor found discrepancies in the Appellant’s evidence regarding the claimed acquisition of the family land which the Assessor considered strongly suggested that the Appellant had not been truthful in his evidence. However, the Assessor accepted that the Iranian authorities had compulsorily acquired portions of the Appellant’s family’s land, not because they were Ahwazi Arabs, but to establish an oil well. The Assessor reasoned:

Country information indicates that land has been acquired by Iranian authorities, and that this has been motivated by the presence of oil in Khuzestan. No information was located that Iranian authorities confiscate or acquire land on the grounds of ethnicity alone.

With this in mind, I am prepared to accept that Iranian authorities compulsorily acquired a portion of land in 2001 in order to establish an oil well. I accept that the claimant and his father complained about the inadequate compensation, and that the claimant may have been struck in an isolated incident for challenging the authority of the Basij officer. Despite this, I consider the fact that the claimant is still in possession of an estimated one square kilometre of land, after having sold some land in 2009, to be strong evidence that they did not lose “all” of their land as previously claimed. I also find this to be evidence that despite their initial loss of land, Iranian authorities did not continue to target his family for their land on the grounds that they were Arabs.

Given his concerns regarding the Appellant’s credibility, the Assessor considered that “this core claim of low-level land acquisition has been embellished in order to try to create a profile that the [Appellant] does not have”.

3    The Assessor accepted that there is a level of discrimination against ethnic minorities in Iran including Arabs in Ahwaz, and accepted that the Appellant, as an Ahwazi Arab, had experienced marginalisation and discrimination from Iranian authorities. However, based on the country information, the Assessor was not satisfied that the level of discrimination claimed met the threshold of serious harm and the Assessor did not accept that this discrimination amounted to systemic and selective harassment for a Convention reason, or that unfavourable treatment amounts singularly or cumulatively to persecution. The Assessor concluded that Australia did not have a non-refoulement obligation to the Appellant for a Convention reason.

4    The Assessor went on to consider whether Australia had a non-refoulement obligation to the Appellant under a complementary protection provision. The Appellant claimed that he was at risk of significant harm arising from degrading treatment or punishment because, amongst other things, his family’s land had been compulsorily acquired by the Iranian authorities and it was highly likely that he will not be allowed to resume a way of life in which he can support himself with dignity but will continue to suffer discrimination and persecution at the hands of the Iranian authorities.

5    The Assessor found that “there is not a real risk that the [Appellant] will be arbitrarily deprived of his life, will suffer torture, suffer cruel or inhuman treatment or punishment or suffer degrading treatment or punishment by Iranian authorities” and therefore, was not at risk of suffering significant harm if he was to be returned home. In so concluding, the Assessor stated that he relied on the same evidence as he had done in assessing the Appellant’s claims in respect of whether Australia has non-refoulement obligations on a Convention basis.

The FCC decision

6    The Appellant sought judicial review of the ITOA. The sole ground was that the Assessor failed to consider the Appellant’s claims according to law. It was contended that the Assessor failed to consider whether compulsory acquisition of the Appellant’s land constituted “significant harm”. It was argued that the Assessor dealt with the compulsory acquisition of land only in the context of the Appellant’s Convention claims, not in the context of a claim for complementary protection and had thereby failed to consider whether the conduct alleged might constitute significant harm for the purposes of s 36(2)(aa) and s 36(2A) of the Migration Act 1958 (Cth). The FCC rejected that contention.

Decision

7    The FCC was correct to hold that the Assessor’s decision was not attended by jurisdictional error. In this case, no additional claim was made by the Appellant that was relevant to a complementary protection claim which had not already been addressed in the consideration of the Convention criteria. The Appellant relied on the same claims in support of his complementary protection claim as he relied on for his claim to fear persecution for a Convention reason, including the claim that his family’s land had been compulsorily acquired by Iranian authorities because of their ethnicity as Ahwazi Arab. Critically, the Assessor made the finding that the Appellant had embellished his claim about the land acquisition in order to try to create a profile that the Appellant did not have, and that the land acquisition was not due to his family’s ethnicity. Further, whilst the Assessor was prepared to accept other claims of discrimination made by the Appellant, the Assessor found that the level of discrimination did not meet the threshold of serious harm. Having made the finding that the land was acquired because of the oil and not due to the family’s ethnicity, that finding was relevant to whether the Assessor had substantial grounds for believing that the Appellant faces a real risk of significant harm from the Iranian authorities based on his ethnicity and it was open to the Assessor in reliance on the same evidence to be satisfied that the Appellant was not a real risk of significant harm: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32]. Contrary to the Appellant’s submissions, the Assessor did not have to conduct any further analysis of the Appellant’s claim about the compulsory acquisition of the land in considering the complementary protection criteria because the same claim was also advanced as part of the Appellant’s claim that he would suffer persecution on return to Iran on the grounds of his ethnicity as an Ahwazi Arab. It follows that I also reject the submission that the Assessor conflated the tests of persecution for a Convention reason and the complementary protection criteria as if they were the same.

8    Accordingly the appeal must be dismissed.

Associate:

Dated:    31 May 2017