SZTEO v Minister for Immigration and Border Protection

Background 4 The appellant's circumstances are described in a written outline of submissions filed on his behalf as follows: 1. The Appellant is a male born in Iran in 1988. He is a stateless Faili Kurd who seeks protection against Iran. He worked illegally as a hairdresser in Tehran for a number of years before departing for Australia in November 2011. 5 Late in 2011, the appellant, who was living in Iran, left Iran, travelled to Malaysia and then Indonesia and there boarded a vessel bound for Australia. The vessel was intercepted by the Australian Navy and the appellant was transferred to Christmas Island on 19 December 2011. He was then transferred to the Wickham Point Immigration Detention Centre in Darwin on 4 January 2012. 6 The appellant applied for a protection visa, lodged on 19 April 2012. That application was refused by a delegate of the first respondent (the Minister) on 15 June 2012. The delegate accepted that the appellant was stateless, was "an undocumented Faili Kurd" and that he had resided in Iran since birth. The delegate found that he did not have an existing legally enforceable right to enter and reside in Iraq or any other country. Those findings conformed with claims made by the appellant. 7 The delegate did not accept that the appellant had a well-founded fear of being persecuted. Although it does not strictly confine the basis upon which the appellant might later claim to fear persecution, it is instructive to set out the delegate's understanding of the appellant's position when the claims for protection were originally made. Those matters were set out by the delegate as follows: The applicant claims he will face persecution because he is a stateless Faili Kurd and because he has been investigating the Christian faith. The applicant's authorised representative also raised a number of particular social groups, all of which I am satisfied can be encompassed as a 'young male in Iran with a Western outlook.' The applicant further claims that as a failed asylum seeker returning to Iran he will be imputed with an anti-regime political opinion. I have also taken into consideration the authorised representative's claim that the applicant fears persecution as a result of his occupation, a hairdresser. During the PV [protection visa] interview the applicant was asked if he fears persecution as a result of being a hairdresser in Iran and he claimed that while he has been discriminated against as he was Faili Kurd and could not register the business under his name, he was able to work and he dealt with it. He asserted that he does not have any fears returning to Iran because he is a hairdresser. As such this claim will not be addressed in any greater detail. I therefore have found the grounds of race, nationality, religion, his membership of a particular social group (young Iran male seeking to adopt a Western lifestyle), and his imputed political opinion (as a possible 'failed' asylum seeker) as the relevant Refugees Convention grounds. (Italics in original.) 8 As to some of those matters, the delegate found: While I accept the applicant is part of an ethnic minority in Iran and it has been reported that Faili Kurds face discrimination, there is no evidence before me that indicates the applicant was denied any rights awarded to an Iranian citizen due to his statelessness or Faili Kurdish ethnicity, or that he will be denied any of these rights in the foreseeable future for the Convention grounds race or nationality. I also find that the applicant has not had his life or liberty threatened, nor has he been the subject to sufficiently serious economic hardship, or denied basic services, denied the capacity to earn a livelihood of any kind where these hardships threaten the capacity of the applicant to subsist. As such, I do not find that the harm feared based on the Convention grounds of race or nationality amounts to persecution. 9 There were other matters addressed by the delegate but, in light of the present grounds of appeal, it is not necessary to draw attention to them. 10 After refusal of his application for a protection visa, the appellant applied to the Refugee Review Tribunal ("RRT") for review of the delegate's decision. On 11 July 2013, the RRT affirmed the delegate's decision. 11 It will not be necessary to refer to all the reasons of the RRT. As developed in written submissions in support of the present appeal, the appellant's argument focussed upon his condition as a stateless person, in particular the circumstance that if returned to Iran he will be an "undocumented" Faili Kurd, and the fact that to overcome legal restrictions bearing upon his ability to obtain and carry out remunerative work the appellant is, in practice, required to conceal those aspects of his identity. Closely related to the arguments that those responses should be seen as ones caused by a threat of persecution was reliance on the principles stated by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("S395/2002"), to which we will return in greater detail in due course. 12 The RRT considered both the grounds for the grant of a protection visa stated by s 36(2)(a) and those stated in s 36(2)(aa) of the Migration Act 1958 (Cth). The RRT considered an extensive submission provided to it by the appellant's migration representative. It considered material provided at an entry interview conducted with the appellant before his application for a protection visa and information provided by the appellant at a hearing before the RRT on 17 September 2012. 13 The RRT recorded the following contribution which was made during the hearing before it by the appellant's migration representative: 67. Ms Murphy commented that the applicant's main fear related to his Christian faith, but that it was the cumulative effect of his experiences - including as a stateless Faili Kurd, a person whose home had been raided, a person who had worked illegally, and a person who departed Iran illegally - that put him at risk of serious harm if he returns to Iran. 14 It is the supplementary aspects which are now in focus. 15 It is apparent that the RRT had some reservations about the appellant's claim to be a stateless Faili Kurd, but it accepted that premise nevertheless for the purpose of its decision. Those matters were recorded as follows: 89. In sum, the Tribunal considers the applicant's evidence of his claimed status as a Faili Kurd to be inconclusive. It accepts for the purpose of this decision that he may be a stateless Faili Kurd, as claimed, and assesses his claims on that basis. Having been born in Iran and never having lived elsewhere, the Tribunal finds that Iran is his country of former habitual residence, and therefore assesses his claims against that country. 16 The RRT did not accept: 120. … that the applicant has in the past suffered persecutory harm in Iran for reason of his status as a non-citizen, as a stateless Faili Kurd, as a refugee white card holder, or for any other associated reason. … 17 Although evidence of past persecution is not conclusive about whether or not persecution may occur in the future, there can be no doubt that it may be relevant to an assessment of whether a claim to fear persecution in the future is well-founded to consider whether the nominated conduct has occurred in the past (see for example: S395/2002 per Gummow and Hayne JJ at [74]). Before the RRT, the appellant provided information about the way in which he was able to earn his living as (according to his claims) a stateless Faili Kurd. At that time, on the appellant's version of events, he held a "white card" providing him with privileges short of those deriving from Iranian nationality but greater than apply to "undocumented" Faili Kurds. The RRT recorded: 126. The Tribunal accepts that, as a person born in Iran, resident in that country and yet unable to meet the requirements of Iranian nationality, the applicant has fewer rights because·of his lack of Iranian nationality. The Tribunal has found above that, as they apply to stateless Faili Kurd persons who are white card holders, the restrictions do not ordinarily result in discrimination amounting to persecution, and they have certainly not in the case of the applicant. The Tribunal recognises that lack of nationality has potentially broader consequences, such as the inability to travel in and out of Iran at will. However, the Tribunal does not accept that these restrictions have in the past, or would in the reasonably foreseeable future, cause the applicant serious harm amounting to persecution. 18 Some of the RRT's further findings which relate to this issue are as follows: 127. … • The Tribunal is satisfied that there exists in Iran a particular social group consisting of persons with the following attributes that apply in the applicant's circumstances: (a) stateless refugees who are documented, ie. white card holders; (b) Faili Kurds; and, combining the attributes of these two groups, stateless Faili Kurds. It has considered the effect of the applicant's membership of such particular social group or groups elsewhere in this decision. • The Tribunal is also satisfied that there exists in Iran a particular social group consisting of 'young Iranians', defined by their age group; and a closely associated particular social group consisting of 'young Iranians' who are urbanised/modern (sometimes characterised as the 'youth generation'). … • The Tribunal is also satisfied that there exists in Iran a particular social group consisting of 'male hairdressers', defined by their gender and their occupation. 128. For the reasons given above, the Tribunal does not accept that the applicant has in the past suffered serious harm amounting to persecution because of his documented status in Iran, his ethnicity as a Faili Kurd, or any similar reason. The Tribunal therefore does not accept that he has suffered serious harm for reason of his membership of any associated particular social group. 129. The Tribunal accepts that the applicant is a member of a particular social group consisting of young Iranians, and also of young Iranians who may be considered 'urbanised/modern'. The submissions made on the applicant's behalf fall well short of claiming that he has experienced, or that he directly faces a future risk of persecution for reason of his membership of any such group, … 132. In sum, the Tribunal does not accept that the applicant has in the past experienced serious harm amounting to persecution as a young Iranian, or as a young/urbanised Iranian, or any similar grounds. It finds that there is no real chance of him experiencing Convention-related persecution for any associated reason, if he returns to Iran in the reasonably foreseeable future. 133. The Tribunal accepts that the applicant worked as a male hairdresser, running his own hair salon that was registered through an Iranian national business partner, who continues to operate it. It accepts that the applicant cut hair for male clients in his shop, and that he provided a range of other services for female clients in their homes. The Tribunal finds on the evidence that the applicant performed these services in private because of social taboos and legal restrictions on providing beauty services for women in male-oriented salons, and also because it was a lucrative business for him. 134. The Tribunal does not accept that the applicant experienced any harm as a result of this working arrangement. On the contrary, the evidence suggests, and the Tribunal finds, that it was well-paid work that enabled him to save funds that contributed, in part or whole, to his travel to Australia. In his protection visa application, the applicant described his work as a hairdresser as a means of explaining how he befriended Mona, and eventually became her lover - claims that the Tribunal has dismissed above. It was only later, at the hearing, that he described his fear that the authorities might arrest a client because of her appearance, and then force her disclose his role in providing the haircut, colouring or other services. He then went on to say that the authorities must have required him to sign 200 or so undertakings to stop performing such services. The Tribunal rejects this claim. It considers that the applicant would have mentioned previously, and given some prominence, to this number of encounters with the Iranian authorities. Furthermore, the authorities would have had ample opportunity to prevent the applicant from continuing his activities, in the hair salon as well as privately, if he had defied previous undertakings on so many occasions. 135. The Tribunal notes Ms Murphy's observation that the applicant was working illegally, and had to perform these services in his clients' homes in order to avoid being caught breaching the moral code. As noted above, the Tribunal accepts that the Iranian authorities sometimes disapprove of such activities. It accepts, too, that it would not be socially acceptable for the applicant to provide these services for women in public, in his salon, and that it may be legally dubious. The Tribunal finds that the applicant's clients paid for him to visit them in their homes, in part because of the social and legal constraints on the provision of such services at the salon, and in part because it offered them a more private and congenial setting in which to receive haircuts and beauty treatments. For the applicant, it was obviously a profitable arrangement. The Tribunal finds that the applicant has not experienced any problems in the past, in providing this work. It does not accept that the local authorities forced the applicant to sign undertakings - perhaps 200 in number - promising to desist from this work. First, the Tribunal considers that he raised this claim only as an afterthought, and consequently, it does not accept that it is truthful. Second, even if it were to take this claim at face value (which it clearly does not), the Tribunal considers that the authorities' failure to act against either the applicant's hairdressing salon or his capacity to continue his work for female clients - he said that his business partner continues to operate the salon - indicates that they do not genuinely intend to stop the applicant from engaging in such work. Having regard to the applicant's past experiences as a whole - including the fact that he operated this business without apparent hindrance for many years, with evident success, even though he was a white card holder and a Faili Kurd throughout - and given country information that Iran has a burgeoning sector in beauty treatments and the like, the Tribunal finds that there is no real chance that the applicant would, in the reasonably foreseeable future - and even if he were to return to Iran without a white card - be subject to serious harm if he chooses to work as a hairdresser for both men and women. The Tribunal does not accept that the provision of these services in private for women involves serious harm to the applicant. 136. In light of the above findings, the Tribunal finds that the applicant has not suffered serious harm amounting to persecution as a hairdresser in the past. Even allowing for the possibility that his business arrangements and his provision of private beauty services in the homes of female clients took place in the informal sector, it does not accept that he faces a real chance of Convention-related persecution if he were to resume this kind of work in the reasonably foreseeable future. 19 Separately, the RRT dealt with the appellant's prospects if returned to Iran. 20 First, the RRT concluded that the appellant would be denied entry into Iran (a circumstance to which we will return) but said: 141. … The Tribunal is satisfied that the Iranian laws on entry, citizenship and residence involve discrimination against non-Iranians, including stateless persons, but finds that such law are appropriate and adapted to achieving a legitimate object of the Iranian State, that is the orderly regulation of its borders, and citizenship. … The Tribunal therefore does not accept that the Iranian authorities' refusal to permit the applicant's return to Iran involves persecution for a Convention reason. 21 Then the RRT went on to consider the hypothesis of possible future return to Iran and said: 142. The Tribunal must now proceed to consider the applicant's prospects in Iran, on the hypothetical basis of possible future return there. The Tribunal finds that he would no longer be a white card holder if he were to return on this basis. DFAT advised in 2011 that one of the bases on which white cards expire is the holder has failed to renew card, and/or has exited and then returned to Iran. The Tribunal therefore considers the applicant's claims on the basis that, if he were to return to Iran, he would in the future be a stateless Faili Kurd who is not the holder of a white card. (The Tribunal notes that he would be 'undocumented' only in the sense of not holding current registration, as the Iranian authorities would certainly have a record of his prior status.) 143. The Tribunal does not accept that the applicant faces a real chance of discrimination or other harm amounting to Convention-related persecution, even if he were in Iran as unregistered stateless Faili Kurd. The Tribunal accepts that he would have fewer rights and benefits compared with his former status as a white card holder, for instance, as DFAT pointed out in April 2011, in relation to pay and working conditions. However, the applicant claims that he also faced numerous obstacles even as a white card holder, in areas such as being able to open a bank account and work with formal legal permission. He described how, through social connections, the evident non-discriminatory attitudes of friends and clients, and sheer hard work, he was able to have sustained work, rent an apartment and business premises, operate a business through an Iranian partner, and basically do quite well in his community. On the available material, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention-related persecution as a Faili Kurd, including any future status as a Faili Kurd without current registration. (Footnotes omitted.) 22 The RRT's various conclusions were drawn together as follows: 148. The Tribunal has considered the applicant's claims individually and cumulatively. It finds that he has fabricated his claims relating to his relationship with Mona, Christianity and his claimed co-habitation with a divorcee. It accepts, albeit with misgivings, that he is a Faili Kurd, who previously held a white card but would, if he were to return to Iran, do so as a person without current refugee registration. It also accepts that he has worked as a hairdresser. It does not accept that he has experienced harm amounting to persecution, for any reason or combination of reasons in the past. It finds that, if he were to return to Iran in the reasonably foreseeable future (a hypothetical consideration given his lack of Iranian nationality, and the Iranian government's current position in relation to returnees), there is also no real chance of him facing persecution as a failed asylum seeker, even taking into account his lack of refugee registration, his Faili Kurd ethnicity, his prospective work as a hairdresser, and his circumstances as a whole. 149. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of Convention-related persecution, now on in the reasonably foreseeable future, if he returns to his country of former habitual residence, Iran. 23 Then the RRT went on to consider whether a visa should be granted on "complementary protection" grounds, an issue which does not require attention on the present appeal. 24 In sum, therefore, the RRT made definite findings of fact that the appellant had not suffered persecution in Iran arising from his assumed status as a stateless Faili Kurd or otherwise. The RRT was also not satisfied, as a matter of fact, that the additional circumstance that the appellant would no longer have a "white card" resulted in a conclusion that there was a well-founded fear of Convention-related persecution. 25 Those findings of fact appear to us, with respect, to be important to any assessment of the proposition that the appellant would be obliged to, or would, conceal any aspect of his status or circumstances so as to engage the principles discussed in S395/2002. As we read the factual findings made by the RRT, they are to the effect that, despite that additional practical hindrance, the appellant (if, indeed, able to return to Iran) would not be subject to Convention-related persecution and would manage quite well, as he had in the past. 26 At this point, it is convenient to indicate that we would permit the appellant to rely upon the re-formulated grounds of appeal while acknowledging the undesirability of cases being re-cast from time to time in an endeavour to find a better foundation for the proposition of jurisdictional error. The Minister is not prejudiced by the re-formulation and the questions have been fully argued. On the view we take, it will make no difference to the success or otherwise of the appeal and the arguments may as well be dealt with now as put aside from attention. 27 The key to the appellant's claims lies in the proper application of the principles stated by the High Court in S395/2002. In that case, the RRT had refused claims for protection visas by two male citizens of Bangladesh. They had lived together in Bangladesh from 1994, but discreetly. The RRT accepted background information in relation to Bangladesh that stated that it was not possible for homosexuals to live openly in Bangladesh. The RRT found that, as they would live discreetly in Bangladesh if returned there, they did not have a well-founded fear of persecution for a Convention reason. In the High Court, all Justices found that the RRT had not imposed a requirement that the appellants live discreetly if they returned to Bangladesh but had made a finding of fact that they would do so. That finding did not itself involve error. However, the majority (McHugh, Gummow, Kirby and Hayne JJ) concluded, as distilled in the headnote of the report: (1) that the Tribunal had erred by failing to consider why the applicants would live discreetly, and whether that was a voluntary choice uninfluenced by the fear of harm if they did not do so. 28 The first thing that may be said about the reasons which explained that conclusion is that they could have no direct application to the facts of the present case. In the present case, the RRT took into account the consequence for the appellant of the loss of his "white card" and assessed what difference that might make to his treatment if returned to Iran. 29 One further finding by the majority in S395/2002 is distilled in the headnote of the report as follows: (2) that the Tribunal had also erred by impliedly dividing homosexual men into two particular social groups: discreet and non-discreet homosexual men. That error had caused it to fail to consider whether there was a real chance that the applicants might suffer serious harm if people in Bangladesh discovered that they were homosexuals. 30 Again, that statement of principle finds no reflection in the facts of the present case. The RRT assessed what was likely to happen if the appellant was returned to Iran, and why that was so. It assessed the claims to fear harm on that basis also. 31 One argument urged by the appellant in the present proceedings is that it is not necessary, in accordance with the principles in S395/2002, that "concealment" relates to a Convention reason. We do not accept that proposition advanced in those broad terms. According to the principles distilled in S395/2002, what requires consideration is whether it is a fear of harm (which, as we read the judgment, must be a fear of harm for a Convention reason) which will influence an asylum seeker to live, on return, in a different manner. If so, that modified behaviour must not be relied upon to dismiss fear of persecution for a Convention reason. 32 In the present case, the difficulties which might potentially be faced by the appellant do not relate to a choice to live differently resulting from a fear of harm of any particular kind, much less for a Convention reason. The appellant, on the factual findings of the RRT, would be required to adapt to the fact (and would do so successfully) that he would not return as a "white card" holder. That is a likely factual circumstance which was accepted by the RRT and assessed for its significance. 33 We do not consider it necessary to set out, or further discuss, the detailed reasons for judgment in S395/2002, but we can see no relevant error (at least for the purpose of the present appeal) in the following summary given by the primary judge in the Federal Circuit Court of Australia ("FCCA") from whose judgment the present appeal has been brought: 13. Two related principles, therefore, can be derived from the majority judgments in Appellant S395. The first is that the causal nexus required by the definition of "refugee" in Art.1A(2) of the Refugees Convention between, on the one hand, a person's actual or perceived race, religion, nationality, membership of a particular social group, or political opinion (Convention characteristics) and, on the other, the person's well-founded fear of persecution, will not be taken not to be established only because the person is capable of taking action that would prevent the person from being perceived by persecutors in his or her country of nationality to be a person who possesses any Convention characteristics. 14. The second principle is that the causal nexus required by the definition of "refugee" in Art.1A(2) of the Refugees Convention between a person's Convention characteristics and the person's well-founded fear of persecution, will also not be taken not to be established only because the person has in fact taken steps, or intends to take steps, to conceal those characteristics. In those circumstances, the person may still be found to have a well-founded fear of persecution. Whether or not the person will have such well-founded fear, however, will depend on the reason or reasons for which the person concealed, or intends to conceal his or her Convention characteristics. If the reason is the person's desire to avoid persecution of which he or she has a well-founded fear of persecution because of his or her Convention characteristics, the person will still be regarded as having a well-founded fear of persecution. (Bold and italics in original.) (Footnote omitted). 34 It is also necessary to bear in mind the further elucidation of the relevance of an expected modification of future behaviour which was discussed by the High Court in Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317 ("SZSCA"). 35 In SZSCA, a citizen of Afghanistan who worked as a self-employed truck driver was refused a protection visa by the RRT which found that he would be safe if he changed his occupation and remained in Kabul. A majority of the High Court agreed with the outcome of proceedings in the FCCA, and in this Court. The majority held that the RRT had failed to consider whether it was reasonable to expect that SZSCA would remain in Kabul and not undertake the work he previously had, which required him to leave Kabul. That finding drew attention to the "internal relocation" principle; it did not involve application of the principles in S395/2002. 36 In the course of its judgment, the majority referred to S395/2002, saying: 17 The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. Gummow and Hayne JJ said that the inquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided. It followed that the issue to which the correct inquiry was directed - whether the fear of persecution was well founded - had not been addressed. 18 In the present case the Tribunal did not fall into the error identified in S395. The critical aspect of the reasoning of the Tribunal in the present case was its finding that the respondent would not face a real chance of persecution if he remained in Kabul and did not travel on the roads between Kabul and Jaghori. The Tribunal found that he would suffer a real chance of harm for a Convention reason if he carried construction material in another area, but that he was safe in Kabul. In contrast to S395, therefore, the Tribunal did not divert itself from the question of whether the respondent would face a real chance of persecution if he returned to Afghanistan. (Footnote omitted.) 37 In our view, that distinction with S395/2002 applies in the present case. 38 We may return to the grounds of appeal upon which the appellant now relies. The proposition that the RRT failed to consider a claim, that by being a stateless Faili Kurd the appellant would be denied the ability to work, proceeds upon a false premise. The RRT did not fail to consider what would happen if the appellant returned to Iran as a stateless Faili Kurd without a "white card". The suggested errors in the application of S395/2002 should not be accepted. No occasion arises to consider whether a denial of work or other adverse treatment might amount to persecution as a question of degree (i.e. that it was sufficient to establish that proposition) because there was no failure by the RRT to address those matters. 39 It follows that there was no error made by the FCCA when it dismissed the application before it, and the present appeal must also be dismissed. 40 One further matter should now be recorded. Although the RRT assessed the claim to a protection visa upon the hypothesis that the appellant might be returned to Iran, that hypothesis was itself rejected by the RRT. The result may be that the appellant will be an unlawful non-citizen in Australia (who must therefore be taken into immigration detention) who cannot be returned to his country of former residence and, in respect of whom, no third country has been identified which will take him. 41 The appellant may, as a result, face an indefinite period of detention. That prospect may raise questions at some stage about the lawfulness of his detention (see Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322 at [30], [99], [139]-[140]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at [29], [35]). 42 That question does not arise in the present proceeding. At present, the question is whether a jurisdictional error has been made in the assessment of whether the appellant is entitled to a protection visa. At the end of that process, other issues may arise both for the executive government and for the courts, but it is not necessary to anticipate them in this judgment. 43 We grant leave to amend the notice of appeal but dismiss the appeal with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Buchanan, Reeves and Bromberg.