SZTFX v Minister for Immigration and Border Protection

BACKGROUND 8 The applicant was released into community detention on 25 January 2012, and he was granted his bridging visa on 21 November 2012. He then moved to Sydney in March 2013 and in May 2013 approached the public interest law clearing house (PILCH) in Sydney. He moved to Melbourne in July 2013 and commenced proceedings in the Federal Circuit Court in September 2013. 9 A clinical psychologist, Ms Aslihan Tokgoz, provided a report in respect of his mental state on 15 November 2013 (2013 Medical Report). 10 The Federal Circuit Court delivered an ex tempore judgment on 18 February 2014. Some time late in February 2014, the applicant contacted Shines Lawyers for assistance. 11 The 21 day period for an appeal from the Federal Circuit Court judgment expired on 11 March 2014. 12 In April 2014, the applicant was referred to the Victorian Legal Aid (VLA) by Shines Lawyers. The VLA gathered information from the Department for about a month and a half and in July 2014, the applicant decided to appeal from the Federal Circuit Court judgment. 13 On 11 July 2014, the applicant applied to Legal Aid New South Wales. That application was refused on 31 July 2014. He appealed to a Legal Aid Review Committee. That appeal was dismissed on 18 September 2014. He approached the VLA, who later referred him to Asylum Seeker Resource Centre for assistance with his extension of time application. 14 His affidavit in support was sworn on 22 October 2014 and he applied for an extension of time in this Court on 24 November 2014.

EXPLANATION FOR DELAY 15 The applicant contends, and I accept, that there are probably three periods of delay. 16 The first period before deciding to appeal was from March to July 2014. Throughout this period, it is argued that the applicant was suffering from a psychiatric disorder due, at least in part, to his experiences in detention. He, himself, attributed the delay to disillusionment with the court process and paranoia surrounding the motivation of its decision-makers. At that time he had spent two years in detention and 10 months in community detention before his release. He had received four negative decisions, namely, a refugee status assessment, two IMRs and the judgment of the Federal Circuit Court. 17 Prior to the hearing and the decision of the Federal Circuit Court, his treating clinical psychologist, Ms Tokgoz, reported in her 2013 Medical Report that he suffered major depressive disorder, post-traumatic stress disorder and panic attacks. She reported that during his years in detention he had witnessed many traumatic events including his friends' suicide. She also reported that the applicant, himself, was suicidal. 18 Ms Tokgoz made a further report dated 5 December 2014. In that report she referred to the applicant's loss of trust in authorities, she confirmed the previous diagnoses and referred to the applicant's failure 'to file his application in time in early 2014', together with his high level of anxiety and fear for his future. She expressed the view that '… his psychiatric condition might have caused his failure in his application due to his anxiety and paranoid thoughts'. 19 The second period of delay is said to be from the time the applicant decided to appeal in July 2014 until September 2014. This period is accounted for, it is said, by the difficulties he experienced in obtaining legal representation, first in Melbourne and then in Sydney. The process from his application to Legal Aid New South Wales and the refusal of his application took a little over two months. 20 In the third period of delay, from October to November 2014, the main cause of his difficulty in pursuing the matter further was procuring pro bono assistance in Melbourne and Sydney to prepare the application, which required him to obtain evidence from the clinical psychologist. In addition, it is submitted that this period of delay was also due to ongoing difficulties as a result of his psychiatric or psychological disorder. 21 From the Minister's perspective, it is argued that the applicant, in effect, simply chose not to pursue the appeal during this period of time. That may be so, however, I would give some weight to the unchallenged psychological assessments which provide some explanation for his trepidation. Nevertheless, as I have indicated above, the primary factor against permitting the application for an extension of time to file a notice of appeal out of time is the absence of merits in the proposed appeal. 22 There is no dispute that the Minister would not suffer any direct prejudice if leave were granted. 23 It is necessary, then, to consider the submissions on the substantive issues in the proposed appeal and to deal in further detail with the substance of his application.

SUBSTANCE OF APPLICATION 24 In the IMR under consideration (the 23 March 2011 IMR decision), the Reviewer recounted the applicant's claim and recorded (at [9]) that he claimed to fear harm, amongst other things, as a Faili Kurd and due to his perceived nationality as a non-Iranian. 25 The Reviewer also noted (at [24]) that during the interview he had asked the applicant about his claimed identity and put to him country information from the Department of Foreign Affairs and Trade (DFAT) that: Embassy staff in Iran are not aware of Faili Kurds being targeted because of their ethnicity, that Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans, that racially motivated violence against any group in Iran is rare, that the treatment of Faili Kurds after the Iranian election has not changed, that in practice they are able to work and that those that are politically active with the opposition risk targeting, but this is not because of their ethnicity. 26 The Reviewer provided more detail about the country information, he then set out his findings and reasons, which again, referred to the claims made by the applicant. 27 There are three key paragraphs which arise for consideration, namely, [32], [34] and [35] of the IMR reasons in which recent invention and lack of credit featured prominently: 32. I do not accept his claims to be stateless and not have any official identity or status in Iran. The evidence is completely to the contrary. He left using a passport issued in his own name which he claims to be a fake. He completed schooling, obtained a birth certificate which he claims to be fake, gained an exemption from military service which he claims to be fake and attended university for 5 years, again through the use of influence/bribery by his maternal uncle. I find these claims fanciful. I am satisfied that he is either an Iranian citizen or a recognized refugee. … 34. As to this claims of being at risk sur place for political activism, I note that his claimed university activity 14 years ago drew no official penalty or interest, that his claimed involvement in the Green movement consisted of working in a friend's office one week before the election and that he has opened a Facebook page since being in Australia. I do not accept the claim of working at a Green movement office just before the election; I find it implausible that he had not told anyone of this in his prior interviews and statements. I am satisfied it is a recent invention to enhance his claims. The Facebook page is limited to his friends and their friends and there is no evidence to suggest that it has come to the notice of the Iranian authorities. I find there is no basis to the sur place claim. 35. I accept that some, possibly most, Faili Kurds (and other minority groups) experience discrimination and hardship in many forms in Iran. However, I accept [DFAT's] advice that they are not targeted because of their ethnicity and that racially motivated violence against any group in Iran is rare. This is not inconsistent with the other country information quoted earlier which details discrimination, harassment and also the harsh treatment of activists. In this instance, the [applicant] has had random encounters with the Basij. However they have not sought him out personally or displayed any particular interest in him, other than to confiscate his satellite dish which they generally do. There is no credible evidence that he is or would be considered a political activist. He has been able to obtain a university education, to work, save money and live undisturbed at home with his family. I find that his circumstances do not amount to serious harm for the purposes of the law. 28 It was accepted (at [28]) that the applicant was a Faili Kurd, born in Iran to a father who was born in Iraq. The Reviewer also found that the applicant did not have Iraqi citizenship, although he may have a right to apply for it. He found that as the applicant had lived in Iran for 34 years and this was his country of habitual residence. Only his claims against Iran were considered. 29 The Reviewer found (at [30]) that the applicant had no particular individual factors that distinguished him from the general Kurdish population that would support his claim for protection. He had been able to go to school, obtain a birth certificate, complete his schooling, attend university for five years and work in a managerial position (at [30] and [32]). 30 Significantly, the Reviewer did not accept the applicant's claims that he had been particularly targeted by the Basij and the one incident that was accepted as having occurred related only to the applicant owning a satellite dish for which he received a fine. The Reviewer said (at [30]-[31]): 30. In the [applicant's] case there are no particular and individual factors that distinguish him from the general Kurdish population and that would support his claim for protection. He has lived in Iran for 34 years and was able to go to school, obtain a birth certificate that allowed him to attend university for 5 years, to work in a managerial position and to live undisturbed, except for one incident, at the family home. The one incident at the home involved the Basij coming to the house and confiscating a satellite dish. This is consistent with country information about the role and activities of the Basij as a 'moral police' force. The evidence is that the Basij target satellite dishes. There is nothing to suggest the [applicant] was particularly targeted for having the dish and this is reflected in the imposition of a fine one week later. Significantly, the Basij did not come to the house and detain or harm the [applicant]. 31. The [applicant] says the most important reason for him leaving was the video taken of him during protests. I do not accept this claim. I listened carefully to his description of these events and I find it implausible that he would be singled out in a crowd and videoed by a cameraman on the back of a slow moving motorcycle for one minute. The [applicant] would merely need to turn around to defeat this filming. I found his description of this activity to be fanciful and far-fetched, I draw support for this conclusion from the fact that he was able to depart the country through the strict security of Iran airport some 4 months later using a passport in his real name and with his photograph. Moreover, there is no evidence that the authorities were searching for him during the 4 months that he claimed to have stayed with his sister. I am satisfied that the claimed one minute video is a fabrication designed to enhance his claims for protection. 31 Further, the Reviewer concluded that there was no credible evidence to support the claim that the applicant would be persecuted for a Convention based reason because he had left the country illegally and any adverse attention as a result of this would be due to a law of general application. 32 In addition, the Reviewer considered there was no credible evidence that the applicant would be persecuted due to being stateless. He noted that being stateless is not of itself a sufficient basis for protection. Further, the applicant's claim that he would face harm for being perceived to be a political activist, or that there was any basis for a claim, including a sur place claim, in that regard was also rejected. Any claim to fear harm as a 'Western spy' was also mere speculation (at [33] and [35]). The Reviewer said (at [33]): As to him being at risk of harm as 'returnee', there is no credible evidence to support the claim that he will be persecuted for a Convention reason because he left the country illegally and is stateless. Being stateless is not of itself a sufficient basis for protection under the law. It may be that the [applicant] would come to the adverse attention of the authorities for departing Iran illegally but that would be pursuant to the application of the general law and not necessarily for a Convention reason. The claim that he would be suspected of being a Western spy or collaborator is mere speculation and there is no objective evidence to support that claim. The Amnesty International report submitted by the adviser is at best equivocal on this issue. I accept the DFAT advice that Faili Kurds are not targeted because of their ethnicity. The [applicant's] history is evidence of this. 33 Finally, the Reviewer noted (at [35]-[36]) that whilst it was accepted that some, if not most, Faili Kurds (along with other minority groups) faced many forms of discrimination and hardship in Iran, the Faili Kurds were not targeted because of their ethnicity. The Reviewer relied upon the content of the DFAT report. In particular, the Reviewer noted (at [35]) that the applicant had been able to obtain a university education, to work, to save money and live undisturbed at home with his family, and concluded that such a circumstance did not amount to serious harm for the purposes of the law. The Reviewer said (at [36]) that he had carefully considered the claims, evidence and independent country information and in all of the circumstances he concluded there was not a real chance of harm to the applicant for a Convention related reason.

FEDERAL CIRCUIT COURT 34 In the Federal Circuit Court, the applicant relied on one ground only. He contended that the Reviewer had failed to consider claims made by the applicant which bore upon Australia's obligation to provide protection to the applicant. 35 In particular, the applicant asserted that the Reviewer had failed to consider a post-hearing submission dated 29 January 2011 (2011 Submissions), a further copy of which had been provided to the Reviewer on the day the recommendation was made. 36 At the hearing before me, it was submitted by the applicant that it could be inferred by the Reviewer's alleged failure to refer to the 2011 Submissions in his reasons, that they had not been taken into account. 37 There is, however, no appeal from the decision of the Federal Circuit Court judge that the Reviewer had seen and read the 2011 Submissions. In the Federal Circuit Court, his Honour said (at [19]): Contrary to this allegation, I find that the Reviewer was aware of and did read those submissions. I base this conclusion on the email chain found at pages 243 to 249 of the bundle of Relevant Documents which indicates an awareness by the Reviewer of two post-hearing submissions. The question therefore is whether the Reviewer considered the material in the submission of 29 January 2011. The final email in the chain is strong evidence that he did. Written by an officer, it said: Dear Rebecca I passed your email onto Michael Griffin who advised that he did consider the latest submissions and had nothing to add or alter in his recommendation. I infer that the reference in that email to the "latest submissions" is a reference to the submission of 29 January 2011, being the one received by the Reviewer last in time even though it had been sent to him some time earlier. 38 It appears that the applicant accepted that the Reviewer did consider the applicant's personal circumstances in relation to employment, education, subsistence and some documentation, but asserted that the Reviewer failed to consider other claims of discrimination, being a right to obtain a marriage certificate, a right to vote, a right to seek legal remedies, freedom of movement and residence, to own or rent property, a right to equal pay and access public services including health care. 39 The real question is whether it is arguable that these matters were not addressed. 40 His Honour noted (at [20]-[21]) that the applicant submitted that the consequences of a denial of Iranian nationality were not adequately considered by the Reviewer because no reference was made to them, and also that the Reviewer had failed to discharge his duty of discussing whether a denial of nationality was discriminatory. His Honour said (at [20]-[22]): 20. The applicant submitted that the various consequences of not having Iranian nationality set out in the submissions of 29 January 2011 were not adequately considered because no reference was made to them in the Reviewer's reasons for his recommendation. However, most were so inconsequential in terms of the sort of serious harm required by s.91R of the Act that individual reference to them was unnecessary. As to the aspects of statelessness which might point to persecution, the Reviewer said this about the applicant: In the claimant's case there are no particular and individual factors that distinguish him from the general Kurdish population and that would support his claim for protection. He has lived in Iran for 34 years and was able to go to school, obtain a birth certificate that allowed him to attend university for 5 years, to work in a managerial position and to live undisturbed, except for one incident, at the family home. The one incident at the home involved the Basij coming to the house and confiscating a satellite dish. This is consistent with country information about the role and activities of the Basij as a 'moral police' force. The evidence is that the Basij target satellite dishes. There is nothing to suggest the claimant was particularly targeted for having the dish and this is reflected in the imposition of a fine one week later. Significantly, the Basij did not come to the house and detain or harm the claimant. 21. It was suggested that the Reviewer should have discussed the applicant's claim that denial to him of Iranian nationality was discriminatory. However, discrimination does not, without more, amount to persecution. Specifically in the context of refusal of nationality, it is not that refusal which could be said to be persecutory but rather the conduct which might flow from it. Consequently, the Reviewer was not required to give separate, specific consideration to the denial to the applicant of Iranian nationality, particularly as no claim had been made by the applicant that it did, itself, amount to persecution. 22. Finally, the applicant submitted that all the consequences of the lack of Iranian nationality should have been considered cumulatively by the Reviewer. No evidence suggested that the Reviewer did not do this when considering the 29 January 2011 submissions. (emphasis added) 41 His Honour found that the Reviewer's recommendation was not affected by legal error and dismissed the application.

THE APPLICANT'S NATIONALITY CLAIMS 42 The applicant, in substance, repeats his argument in this Court. The applicant's fifth and principal ground is that the Reviewer failed to address claims by the applicant that bore upon Australia's obligation to provide protection. 43 As noted by the High Court in Plaintiff M61/2010E (at [77]), the offshore entrant assessment processes must be procedurally fair and must address the relevant legal questions. The applicant complains that the Reviewer failed to address the rights listed as ground two of the draft notice of appeal extracted above. The applicant describes the discriminatory denial of nationality and the denial of these rights incidental to nationality as 'nationality claims'. The applicant does accept that the claims relating to the consequences of denial of other incidental rights and nationality in relation to employment, education and subsistence were subsumed in the more general findings on the individual circumstances of the applicant in Iran set out by the Reviewer (at [30], [32] and [35]). 44 The nationality claims in the 2011 Submissions were submitted after the IMR interview by letter dated 29 January 2011. 45 It is said that the Reviewer's finding that the applicant might be a 'recognised refugee' obliged him to address the nationality claims that the applicant had made in relation to the status of recognised refugees in the 2011 Submissions. It is contended that the Federal Circuit Court erred in failing to find that the Reviewer had not discharged this obligation. 46 In particular it would be expected, it is argued, that the Reviewer would address the claims made in the 2011 Submissions that the Iranian laws related to nationality, including Art 42 of the Iranian Constitution and Arts 976, 983 and 976 of the Civil Code of Iran, were discriminatory in their application to stateless Iraqi Faili Kurds, as these people were unable to provide the required documentary proof of foreign nationality. Therefore, according to the applicant, the issue for the Reviewer was whether the nationality laws discriminated against stateless Iraqi Faili Kurds as claimed, or whether they were laws of general application which do not discriminate against Iraqi Faili Kurds either in their terms or in their application. Although, in the Federal Circuit Court the Minister maintained that the nationality claims were subsumed in the findings on the applicant's individual circumstances (at [30], [32] and [35]), the applicant argues that those findings did not explicitly cover all of the claimed difficulties. The applicant contends the remaining nationality claims, which have not been addressed were: denial of nationality, identity and citizenship; right to obtain a marriage certificate; right to vote or participate in Iran's political processes; right to seek legal remedy before the law; right to freedom of movement and residence; right to own or rent property; right to earn a livelihood - the right to equal pay for equal work and free choice of employment; and right to access public services - right to publically subsidised health care and other public services.

CONSIDERATION OF APPEAL PROSPECTS 47 The Reviewer's recommendation was governed by the terms of the Migration Act 1958 (Cth) (Act) as it stood at the time. Section 36 and s 91R of the Act, as at 2011, were enacted prior to the introduction of the complementary protection provisions (which came into effect on 24 March 2012). Accordingly, the Reviewer was only required to consider whether or not the applicant would face a well-founded fear of persecution or serious harm for the purposes of the Convention as defined in the Act. To the extent that the nationality claims depend upon conventions other than the Convention, they were not within the range of matters required to be considered by the Reviewer. The way in which the nationality claims would be viewed, therefore, would be confined only to the denial of those basic services and economic hardship that threatened a person's capacity to subsist. There is no doubt that the IMR reviewed this contention for the applicant and firmly rejected it on the merits. 48 In the applicant's 2011 Submissions, it was submitted that the applicant would suffer discrimination as a result of the absence of nationality, and that such discrimination would result in the denial of fundamental basic rights which, collectively, amounted to the type of serious harm or persecution that the Convention was intended to cover. It was argued that when the denial of rights is combined with the deteriorating human rights situation in Iran, particularly the increased targeting of ethnic and religious minority groups, a well-founded fear of persecution in the mind of the applicant is established on a cumulative basis. The submission was not that a denial of nationality was itself persecution for the purposes of the Convention, rather, that all of the rights that the applicant had been denied in total cumulatively result in persecution. That was apparently how the Reviewer understood the submission, and was how the Reviewer focussed on the question of whether or not the claims the applicant had made would result in persecution for the purposes of the Convention, taking into account matters such as the applicant's ability to subsist, to live, have access to health and other factors. 49 The Reviewer was required to perform his functions in accordance with the provisions of the Act as they stood at the date of the 23 March 2011 IMR. At the relevant time, the Reviewer was only required by the Act to consider whether the applicant had a well-founded fear of persecution for a Convention reason. The 2011 Submissions did not themselves suggest that a denial of an Iranian nationality would, without more, amount to persecution. The Reviewer considered most of the matters listed in the submission, and certainly the more serious matters, and concluded that they were not the serious sort of harm required under s 91R of the Act. Further reference to the subsidiary or less serious matters could not have further enhanced the applicant's claim. 50 In this regard, it is important to note what the Full Court (French, Sackville And Hely JJ) said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (at [45]-[46]): 45 In conducting its review the Tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is: '… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' (s 36(2)(a) read with s 415(1)) The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision. 46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. (emphasis added) 51 On application of these important principles, in my view, it is a fair reading of the IMR that the Reviewer identified the applicant's claim to fear harm as a Faili Kurd/Iraqi refugee. The Reviewer drew to the applicant's attention at the interview, certain country information which was relevant to the question of whether Faili Kurds, including those who are refugees from Iraq, might face persecution in Iran. He relied upon that information in forming his conclusion that the applicant would not face persecution as a Faili Kurd in Iran. His findings, having rejected the claim that the applicant was stateless, were based on the fact that he considered the applicant to be an Iranian citizen. However, he also entertained the possibility that the applicant may have been a recognised refugee and therefore not an Iranian citizen. He considered the claims on that basis. The Reviewer rejected the contention the applicant was stateless, but in any event, found that being stateless would not lead to persecution. I do not consider that this process is flawed. 52 It seems to me not so much to the point (as the applicant argued) that the findings made could be referable only to earlier submissions made by the applicant by letter dated 12 August 2010. Rather, the question is whether the reasoning in the IMR addressed the content of the subsequent 2011 Submissions. If the reasoning in the IMR fairly embraced all the new nationality claims, rather than only those the applicant concedes, then the applicant has no reasonable complaint. In the 2011 Submissions the applicant's agent said (footnotes omitted): … That so few Faili Kurds have been able to obtain Iranian citizenship is a clear indication of Iran's reluctance to extend nationality or legal status to Faili Kurds/Iraqi refugees. A lack of nationality denies our Client the following rights: • the right to own a passport or personal ID card; • the right to obtain a birth certificate, a violation of Article 8 of the CRC • the right to obtain a marriage certificate; • the right to vote or participate in in Iran's political processes, a violation of Article 21 of the UDHR and Article 23 of the ICCPC; • the right to seek legal remedy before the law, a violation of Article 10 of the UDHR. Though there is some evidence to suggest Iran's laws and customs allow access to its courts to demand justice, the delays and costs deter most refugees. Given their lack of legal status and fear of the Iranian authorities, a Faili Kurd/Iraqi refugee would face hurdles to access the courts in Iran. • Right to freedom of movement and residence … 53 The submissions then went on to anchor the absence of such rights to various non-refugee conventions. 54 The position and arguments taken for the applicant have been somewhat confusing. But, in my view, it is clear from the findings reached that the Reviewer did not accept the applicant's submission that he was denied basic rights. He referred to the applicant's own considerable work and educational history and the material from DFAT and then concluded that there was not 'a real chance' of harm to the applicant for a Convention related reason. The factual finding that the applicant would suffer no real harm in Iran was made in the context of accepting the possibility that he may have been a recognised refugee and having accepted that minority groups, including Faili Kurds, faced some discrimination and hardship. That finding, which was comprehensively explained, addresses all the claims the Reviewer was required to, and would reasonably be expected, to consider.

CONCLUSION 55 For those reasons, I do not consider that the appeal would have any real prospect of success and, accordingly, I will make the following orders:

1. The application for extension of time to file a notice of appeal be refused.
2. The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.