DZADG v Minister for Immigration and Citizenship

THE ASSESSOR'S REASONS 6 The Assessor accepted that the appellant's evidence with respect to his life and experiences up to the 2009 protests. Regarding the evidence beyond this, the Assessor stated at [77] that: However some inconsistent and contradictory evidence concerning events during and after the protests, together with his introduction of new information are not unimportant and cannot be ignored in regard to credibility. Moreover some of his assertions going beyond his own personal experience were at variance with reliable country information. These matters are discussed later in these reasons. 7 The Assessor then assessed the factual basis of the appellant's claim in approximately chronological order. Beginning with the appellant's claim that regarding his university studies, the Assessor found: 84. In regard to prevention of his completing industrial accounting studies at university due to political views in 1979, the Assessor notes that he returned to teaching and taught until he retired in 2008. Whilst he was questioned at the start of each school year by the Herasat, so were some other teaching colleagues; on occasions all teachers were questioned. So whilst he suffered some harm by not completing accounting studies, he nonetheless had a career of over 30 years as a teacher (he commenced in 1976). [Section] 91R(1)(b) of the Act requires persecution to involve serious harm. [Section] 91R(2) sets out a non-exhaustive list of the types and levels of harm that will meet the serious harm test. These range from a threat to life, to significant physical harassment or ill-treatment to significant economic hardship threatening the capacity to subsist, through denial of access to basic services or the capacity to earn a livelihood, which again threatens the capacity to subsist. The Assessor, noting the contended discrimination involves removal from university and then annual questioning, whilst seeing this as harmful, finds it falls well short of the types and levels of harm needed to be qualified as 'serious harm'. So in regard to this discrimination it does not involve serious harm and the claimant in any event had expressed no sense of concern or fear about the matter. Given all this the Assessor accepts that he had some modest subjective fear, but as the harm faced was not 'serious harm' there is no objective basis to his fear of persecution. 8 Then, addressing the Ashura Day protests, the Assessor stated that he accepted the appellant's claim about his participation in that event: at [87]. 9 The Assessor did not accept the appellant's claim, however, with respect to the photograph and underground activities: 92. In regard to the claimant's actions after the Ashura Day protest, the Assessor takes account that without hindrance he continued to process his retirement formalities with the education department, a government organisation; he continued to draw his pension until he departed Iran and it continued being paid into his account until at least September 2011 and payment may be continuing; he used teacher's accommodation in Iran though he moved around frequently - the CMN [the appellant's solicitor] submission mentions that he also stayed at home or in a relative's home, the claimant did not state this at either the POE [Protection Obligation Evaluation] or IPA [Independent Protection Assessment] hearing; he himself applied for and obtained a valid passport and the aircraft ticket in his own name; and he departed Iran using his passport though the smuggler may have bribed an official at the departure gate. It is also noted the claimant told the POE delegate that he ceased protesting after Ashura Day as he was busy processing his retirement. The claimant and the agent have mentioned at various times that the claimant went into 'hiding' or went 'underground' after being told the Etelaat was searching for him. 93. The weight of the foregoing shows the claimant continued interacting with a range of government authorities from Ashura Day until he departed Iran. He showed few if any signs that he perceived that he was being sought by the authorities. After consideration of all the available material the Assessor finds that the claimant did not go into hiding or go underground after Ashura Day or that he was in fear of persecution. Given this the Assessor does not accept the Etelaat were seeking the claimant and find accordingly. 10 The Assessor then considered some of the country information in regards to the Ashura Day protests, in particular the reports of arrests: at [96]. The Assessor considered that the appellant was not a high visibility activist. The Assessor did not accept that the claimant came to the adverse notice of the authorities, and that that was supported by the earlier finding that the appellant had not gone into hiding and did not in fact fear persecution, and that accordingly, the appellant was of no interest to the authorities. 11 The Assessor then considered the reason for the 14 month delay in leaving, noting the inconsistency between the appellant's claim of hiding, needing money and then claims of having to make payments to his wife. The Assessor did not find the appellant a credible witness concerning subsequent events after the demonstrations. The Assessor states at [98]: Taking account of this and the earlier finding that he did not go into hiding or go underground or that the Etelaat were seeking him, the Assessor is not satisfied and so finds that the claimant was photographed and identified at the protests by the Etelaat or any other authorities. 12 After addressing two minor factual points, the Assessor concluded that he did not accept that there is a real chance the claimant will suffer serious harm due to his actual or imputed political opinion: at [101]. 13 The Assessor then considered the appellant's claim that he would be perceived as opposing the regime due to seeking protection in Australia. The Assessor's findings are at [103]-[108]. The Assessor's findings on that point were not appealed against.

THE FEDERAL MAGISTRATE'S REASONS 14 The appellant applied for review to the Federal Magistrates Court on the following basis: (1) The decision of the [Assessor] was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction and/or its decision was affected by an error of law. Particulars (a) The [Assessor] failed to address one of the claimed bases of the appellant's fear of persecution and/or to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or a central element of the appellant's claim being the claim that the appellant feared persecution by reason of his "profile" of continued individualised monitoring while he was a teacher for over 30 years which was separate from the claims of serious harm due to his actual/imputed political opinion of opposition to the regime by way of participation in protests in 2009, underground activities around the time of the protests, or dissident activities over 30 years ago, or that due to any of the foregoing his pension payments would be stopped. This claim which was not considered compounded his accepted conduct of attendance at protests in 2009 and provided an additional adverse dimension to his anti-regime activities. 15 The Federal Magistrate considered that the 14 month period after the demonstrations and prior to the appellant leaving Iran "allowed a considerable period of time from which one could assess the impact of his overall activities in Iran from his earliest days to date" and that the Assessor found "that there was no adverse action against him or interest taken in him during this time which fuelled the finding that he was not at risk": at [16]-[17]. In contrast to cases where the appellant leaves immediately, or goes into hiding, the Federal Magistrate found: 19. Here, however, the actual impact of his overall political profile over a 14-month period was before the Assessor. This provided an opportunity to make findings with respect to his actual risk during that 14-month period. It did not absolve the Assessor from considering the future. However, given the circumstances of the case, it does not appear to me that it required lengthy discussions rather than references to the findings that had substantially been made. To this extent, paragraph 105, in considering the future, squarely deals with this aspect of the claim. 20. Ultimately, I am therefore not persuaded that the Assessor failed to deal with an integer of the claim, namely, the applicant's profile, as he certainly dealt with the totality of the applicant's circumstances and the totality of those as viewed against the possibilities of action by the regime, with the benefit of the evidence of what occurred over the 14-month period prior to the applicant leaving and also specifically considering the future if he were to return and continue to participate in the way in which he had in the past at paragraph 105. 21. For these reasons, I would refuse the applicant's application. 16 The Federal Magistrate also considered that the question of separating the appellant's profile from the actual circumstances, "is more a matter of academic distinction than practical reality" (at [22]) because of the period of 14 months after the appellant ceased working as a teacher, and that nothing of significance had apparently occurred during that period or since the appellant had left Iran.

GROUNDS OF REVIEW 17 The appellant's contention before the Federal Magistrate was reargued on appeal, namely that the Assessor had failed to consider an integer of the Appellant's claim that he feared persecution by reason of his "profile" of continued individualised monitoring while he was a teacher for over 30 years. 18 The appellant submits that the claim that the appellant would be at risk on account of his political profile (his perceived opposition to the Iranian regime) was put to the Assessor at the interview with the Assessor on 18 November 2011, namely that "the claimant had a profile; he was monitored and has been photographed". During that hearing, the appellant said: • At the beginning of every school year he would be questioned [by the authorities] on personal information like where he lived and how many kids he had. This interviewing was only for certain people, a "sub-set" of teachers who were being monitored. • The reason for the appellant being in that subset was because when he first started teaching he had been expelled from university, because of his political views. • The appellant had a normal teaching career, but knew that he was being watched and there were things he could not do any more. As noted, the Assessor accepted the appellant's account of his pre-2009 background. 19 It is argued that the Assessor did not however make a finding as to whether the appellant feared persecution by reason of his profile, as demonstrated by his treatment prior to 2009. The separate claim, based upon that treatment, it is accepted, was rejected because the treatment did not constitute serious harm, even though the Assessor also accepted that the appellant had the "modest subjective fear" of that conduct by the regime continuing.

CONSIDERATION 20 The Tribunal has an obligation to consider any claim that the appellant fears persecution for a particular reason which, if accepted, would justify concluding that the appellant has satisfied the relevant criteria and if that contention is supported by probative material: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45]. Failure to do so is a jurisdictional error. It may, however, not be necessary to make an express finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests that has been rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]. 21 The issue in this appeal as exposed by the respective submission is whether the appellant made the claim that his "profile" (as evidenced by him being monitored prior to and over the 30 years of his teaching career), so that he had a well-founded fear of persecution by reason of perceived political opinion, was made as a claim separate from and additional to the claim of fear of persecution for that reason by his participation in demonstrations in 2009, and underground meetings after 2009. 22 In my judgment, the Assessor is not shown to have overlooked any basis of the appellant's claims, or to have misunderstood any of those claims or any separate integer of them. 23 In relation to his "profile", that is the history of 30 years of superintendence or oversight of his activities, the Assessor accepted his evidence that he therefore was perceived as having certain political opinions. The Assessor accepted that the appellant, by reason of that conduct on the part of the regime until he retired as a teacher in 2008, had a subjective fear of further harm of that character. The Assessor did not accept that the harm the appellant had suffered over that period was serious, judged objectively, as required by s 91R of the Migration Act 1958 (Cth). It followed that unless there was, objectively, some basis for the appellant facing more serious consequences in the future, at least from 2009, as a result of his profile, he would still not be eligible for a protection visa. 24 The Assessor also accepted that the appellant subjectively feared more serious harm, should he return to Iran, by reason of his conduct in demonstrations during and after 2009. The appellant's fears extended to him being imprisoned and tortured. That fear was identified by the Assessor as being based on grounds of his actual or imputed political opinion (at reasons [85]). 25 In that context, the Assessor identified the appellant had participated in demonstrations, including the Ashura day protest, during 2009. However, for reasons the Assessor gave, the claims of the appellant that he had been photographed in 2009 by the authorities and that the appellant had been in hiding for much of the following 14 months were not accepted. They are summarised in the Assessor's reasons at [92] and [93] quoted above. 26 In addition, the Assessor looked at the appellant's claims from the more general perspective of the information about the persons that the authorities were pursuing after the 2009 election protests. There was obviously a campaign by the authorities to target a range of persons involved in the demonstrations. The Assessor noted they may have exceeded 5000 persons. The Assessor recorded that those persons were generally "high visibility" targets such as "human rights and student activists, journalists, bloggers, potential leaders, independent trade unionists and political dissidents". 27 The Assessor found that the appellant did not fall into any of those categories. In making that assessment, reference was made to the appellant some 30 years before having been removed from University for political activity and to his years of teaching, and to his age, and to his role in the demonstrations in particular the Ashura day protest. Counsel for the appellant acknowledged that the only missing information in that recital of factors is relevant to his profile is in the annual interview or monitoring of the appellant. 28 The Assessor also accepted that the initial wave of arrests included many ordinary people, but they were released after short periods. The appellant did not contend that he fell into that category for present purposes. 29 Then the Assessor found that the appellant had not come to the attention of the authorities during the demonstrations. Reference in that context was to the fact that he did not go into hiding following the Ashura day protest, and what the assessor regarded as unreliable evidence of the appellant participating in any underground meetings after 2009. 30 As noted, counsel for the appellant accepted that the only matter missing from the recital of factors explaining why the appellant was not in the categories of persons targeted by the authorities as a result of the demonstrations is that, during his teaching career, he was annually interviewed and monitored. 31 However, in the context of that fact of the Assessor's reasons, I am not persuaded that the Assessor overlooked that matter. That is particularly so because reference is made at the same point to the appellant's political activities causing his removal from his university studies. In addition, even though his evidence was that he (and only selected other teachers) were on the list of teachers to be monitored, he had a normal teaching career except for being restricted in what he could do. He did not expand on those restrictions in his evidence. 32 It is apparently correct, as counsel for the appellant said, that his concerns were not simply that he may be exposed to the sort of monitoring after retirement that he had experienced for some 30 years. 33 She contended that he claimed to be, and was, vulnerable to serious harm by reason of perceived political opinion in any event either because of his profile (irrespective of his participation in demonstrations during 2009) or because of his profile in conjunction with his overt participation in demonstrations in 2009. 34 In my view, the former of those two claims was not in fact made by the appellant in terms which obliged the Assessor to consider it: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68]. The Assessor records his claims from his entry interview of 9 March 2011, his statutory declaration of 14 May 2011, and his solicitor's letter of 25 October 2011. They all focus on the consequences of him having participated in demonstrations between about June and December 2009. Counsel for the appellant submitted, however, that the particular claim emerged clearly from the transcript of the Assessor's interview of 17 November 2011. I accept that the transcript shows the appellant refers to him having been put on a list for his perceived or actual political opinions when at University, now over 30 years ago, and having remained on that list, as evidenced by his annual monitoring whilst working as a teacher. But it does not claim that that profile of itself exposed him to the risk of persecutory conduct. 35 The transcript shows that the appellant claimed to have become concerned for his safety, after participating in the demonstrations, only when he was told that a photograph of him had been taken during one of the demonstrations, and that the security forces were looking for him. His previous profile, he feared, would be or had been used as a means of identifying him. It was, he said, only then he went into hiding. That is the way in which, in his evidence to the Assessor, he gave significance to his earlier profile. 36 As the Federal Magistrate pointed out, that claim was carefully considered by the Assessor. It was rejected because, in significant respects, the appellant's factual assertions were not accepted. In particular, as the passages quoted above from the Assessor's reasons show, it was not accepted that the appellant had been photographed during the demonstrations, or that he had been identified by the security forces or that they were looking for him. The key link to his previous "profile" was not made out. 37 In any event, in my view, the Assessor considered whether the appellant's profile prior to the demonstrations was, or might have been, a matter which drew him to the attention of the security services following the demonstrations. The Assessor at [96] of his reasons addressed that question. As I have noted above at [27], I do not accept that error, and certainly not jurisdictional error, is shown by the Assessor at that point by not specifically referring to the teaching career as being subject to monitoring. Clearly the assessor could not have overlooked that, in the context of his references to that elsewhere in his reasons. 38 Accordingly, I consider that the appeal must be dismissed. The error asserted by the appellant both before the Federal Magistrate and on this appeal is not made out. 39 The appellant must pay to the first respondent costs of the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.