SZQZK v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This appeal is from the judgment of the Federal Magistrates Court given on 8 June 2012. That Court ordered that the proceeding commenced by way of application filed on 21 December 2011 be dismissed and the applicant pay the costs of the first respondent. The second respondent is the Independent Merits Reviewer (the reviewer). The reviewer had found that the claimant, to whom I shall refer as the appellant, did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth). Accordingly, she recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. 2 The Amended Notice of Appeal to this Court, filed in Court by leave on 6 November 2012 at the commencement of the appeal, identifies the following grounds: 1. The Court erred in failing to find that the Second Respondent's failure to put adverse conclusions central to her decision and failure to give the Appellant an opportunity to comment on the issue of his parents' birthplace was a breach of procedural fairness. Particulars • The Second Respondent found that the Appellant's parents were born in Iran, not Iraq, as the Appellant claimed. • This conclusion was central to the Second Respondent's decision because it necessitated a finding that the Appellant was an Iranian citizen, rather than a stateless Faili Kurd, as the Appellant had contended. • It was a requirement of procedural fairness that the Appellant be put on notice that the birthplace of his parents and the Iranian citizenship of the Appellant and his parents was in issue. • The Second Respondent did not put the Appellant on notice that the birthplace of his parents and the Iranian citizenship of the Appellant and his parents was in issue. 2. The Court erred in failing to find that the Second Respondent's failure to put adverse country information was a breach of procedural fairness. In the alternative, the Court erred in failing to find that the Second Respondent made a finding without evidence. Particulars • The Second Respondent found that there was not a real chance that the Appellant would be subjected to serious harm on the basis of being a failed asylum seeker. • At paragraphs [66]-[75] of her reasons, the Second Respondent set out country information that was not put to the Appellant. • That country information was credible, relevant and significant. • Whether information is credible, relevant and significant is to be determined prior to the decision being made. It cannot be inferred from the Second Respondent's reasons that the information was not credible, relevant and significant. • It was a requirement of procedural fairness that the Appellant be put on notice of information that was credible, relevant and significant. • The Court erred in concluding that the country information referred to at paragraphs [66]-[75] of the Second Respondent's reasons was not materially different from the country information given by the Appellant. • In the alternative, if the information at paragraphs [66]-[75] of her reasons was not credible relevant [sic] and significant, the Second Respondent made a finding without evidence. 3. The Court erred in failing to find that the Second Respondent erred in concluding that the Appellant would not suffer serious harm for a Convention reason. Particulars • The Second Respondent concluded that the harms the Appellant submitted he would suffer did not amount to persecution for a Convention reason. • The Second Respondent misapplied the test of whether harm rises to the level of 'persecution' for a 'Convention reason'. • The Second Respondent erred in law by failing to consider the harms cumulatively. 3 On 21 April 2011 a delegate of the Minister was not satisfied that the appellant had a real chance of being subject to harm amounting to persecution, on account of his race, or imputed political opinion or membership in the particular social group of 'stateless Faili Kurds', in the reasonably foreseeable future if he were to return to Iran. The delegate considered that the appellant's fear of persecution was not well-founded. The delegate also found that the appellant did not have a well-founded fear of harm and there was not a real chance of persecution occurring. The delegate therefore found that the appellant's fear of persecution, as defined under the Refugees Convention, was not well-founded. Earlier, the delegate had said that for the purposes of the assessment, she accepted that the present appellant was a stateless Faili Kurd and that his country of former habitual residence was Iran. The delegate also later said that given the country information already cited and the present appellant's personal circumstances, the delegate was not satisfied that the appellant had ever been unregistered or undocumented in Iran. 4 The appellant, by his registered migration agent, made an application for Independent Merits Review dated 10 May 2011. The appellant was represented by an adviser or migration agent at the interview before the reviewer. 5 The findings and reasons of the reviewer were, relevantly, as follows: 82. … I consider that the claimant's evidence on a number of issues central to his claim which was variously, inconsistent with independent country information, implausible and unsupported to be of a different order. It raises serious doubts about the claimant's credibility and cannot be disregarded in assessing his claims. 83. For reasons set out below I did not find that the claimant has been truthful about his experiences in Iran. I do not accept that he is, as he claims, a stateless and undocumented Faili Kurd, whose family were deported from Iraq around 1980; that he suffered discrimination amounting to persecution in the past or that he has a well founded fear of persecution for a Convention reason on return to Iran. … 85. Central to his claims was that he became undocumented after his green card was confiscated when his father tried to renew it around 2002 or 2003, having done so successfully in 1992. When invited to comment on country information that green cards were effectively residence cards, were not time limited and did not require renewal, while white cards had to be renewed every year, the claimant did not address the inconsistency but insisted that green cards had to be renewed every ten years and that he never had any white card. … 88. While the claimant was identified as speaking the Faili Kurdish dialect, he was quite vague as to who the Faili Kurds were. He distinguished Faili Kurds from other Iranian Kurds by their lack of identity documents and their expulsion from Iraq, while claiming that those who had property, land and citizenship in Iran were not Faili Kurds, even if they spoke the Faili Kurdish dialect, were Shi'a Muslims and came from the Iran-Iraq border region. However, when I put to him that according to independent country information Shi'a Kurds originating from the area on both the Iraqi and Iranian sides of the Zagros mountains, including those Iranian Shi'a Kurds who live in Ilam province, like the owner of the bee farm, were also ethnically Faili, the claimant said he was not sure. 89. In view of the above, I am not satisfied that the claimant has been truthful about his identity, status or experiences in Iran. Given that the language the claimant spoke at interview was identified by the interpreter as "Faili Kurdish" and claimed that his family had roots from around Ilam province, where most Iranian Faili Kurds live, I am prepared to accept that he is ethnically a Faili Kurd from Ilam province. However, in light of the claimant's lack of awareness about green and white identity cards issued to Iraqi refugees in Iran and the inconsistency of his evidence about these issues with country information, I am not satisfied that the claimant ever had a green card which was confiscated around 2002-2003, as claimed. Nor do I accept that his family was deported from Iraq or that he is stateless and undocumented. I consider the claimant to be from among the many Faili Kurds who have lived in Ilam province for generations as Iranian citizens, like the Shi'a Kurd bee farmer who employed him. 90. In light of my finding that the claimant is an Iranian citizen, I do not accept that he was subjected to various social persecutions and restrictions in Iran … as a result of being stateless and undocumented or because of his Faili Kurdish ethnicity. Even if he experienced difficulties in accessing education, employment, medical insurance or other restrictions, which I do not accept, I do not find that such circumstances amount to serious harm. While the claimant may genuinely feel that he has had a miserable time in Iran, been disadvantaged and discriminated against, I do not accept that this has been because of his Faili Kurdish ethnicity or his lack of identity and citizenship. Even if he has experienced employment, education or other social restrictions, which I do not accept, I find that these were not due to a Convention reason, but as a result of general economic conditions. Further, I do not accept that the claimant was stopped at checkpoints, harassed or beaten by the Basij for these reasons or that he will be targeted for these reasons in the future. 91. The claimant alleged that he left Iran through Imam Khomeini airport without difficulty on a false passport in someone else's name but with his photograph. In light of my findings above, I do not accept his claims that this passport was false and arranged through a smuggler. I find that the claimant left Iran legally on own [sic] genuine passport and will not, therefore, come to the adverse attention of authorities for illegal departure, nor be regarded as a spy as claimed. 92. Finally, I do not accept that there is a real chance that the claimant will face serious harm as a failed asylum seeker returning to Iran. Notably, the claimant himself did not mention this fear, even when asked if there were any other issues. Rather, the claim was raised in a generic submission by the claimant's adviser which I received after the interview. I have had regard to the submission and examined the RRT country advice in it regarding the treatment of returnees and failed asylum seekers upon return to Iran. I note that this advice variously states that it remains uncertain as to "whether the act of seeking asylum is interpreted by Iranian authorities … as an expression of serious dissatisfaction with the regime or an act of political dissent"; that "if it does constitute dissent, the question remains as to whether it would subject asylum seekers to ill-treatment upon return"; and that "it is unclear as to whether any of [the] examples of ill-treatment [cited] are attributable to political beliefs imputed by authorities due to asylum claims made while abroad." 93. While the cited advice indicates that political activists and those "who have publicly expressed dissatisfaction with events in Iran, may face increased risks should they return to Iran", by his own word, the claimant has never been politically involved. Given that he has spent his time in Australia in detention, he would not have come to the attention of the Iranian authorities or their informants here. I am, therefore, not satisfied that there is a real chance that he will be subjected to serious harm, as claimed, for being a failed asylum seeker. 94. The claimant's adviser also submitted that the claimant fears persecution for membership of an unspecified "particular social group". However, for the reasons outlined in this recommendation, I am not satisfied that the claimant has a well founded fear of persecution for this reason, including as a Faili Kurd, an undocumented Faili Kurd, an undocumented Faili Kurd from Ilam province, as a returnee, a failed asylum seeker returnee or any other combination. 95. On the evidence before me, and having considered the matters raised both separately and cumulatively, I find that the claimant does not have a well-founded fear of persecution in Iran for a Convention reason now or in the reasonably foreseeable future and that he does not satisfy the definition of a refugee.