WZARN v Minister for Immigration and Border Protection

Federal Court of Australia|2013-12-04|Before: McKerracher J

introduction 1 The appellants are Iranian citizens who arrived in Australia in 2010. The second appellant is the first appellant's wife and the third, fourth and fifth appellants are their children. The appellants appeal from WZARN v Minister for Immigration and Citizenship [2013] FCCA 212 in which the Federal Circuit Court dismissed an amended application for a declaration in relation to the recommendation made by the second respondent (the Reviewer) and an injunction against the Minister and his Department from relying on the recommendation.

BACKGROUND 2 The husband requested a refugee status assessment on 27 November 2010. That assessment interview was conducted by the Department with him on 30 November 2010. On 28 January 2011, an officer of the Department informed him that he had determined that the father was not a refugee and enclosed a statement of reasons. Shortly after, on 19 February 2011, the mother requested a refugee status assessment on behalf of all members of the family. In that assessment she claimed that her family were harassed by the Basij. She also claimed that she had left Iran because her life was in danger. Her husband had had a verbal altercation with the Sepah over unpaid wages for construction workers. The mother further claimed to profess an interest in Christianity. While it was impossible to learn more about Christianity in Iran, since arriving in Australia she had learned about Christianity and has come to consider herself a Christian. The family received an adverse refugee status assessment in April 2011. 3 On 27 November 2010, the father requested independent merits review of the refugee status assessment. On 2 May 2011, the mother also requested independent merits review on behalf of the family. In a letter dated 5 July 2011 to the Reviewer from the migration agent on behalf of the appellants, a submission was enclosed which addressed the mother's claim generally and provided country information. A submission was set out in a further letter dated 14 September 2011 addressing the father's claim generally and adding that the appellants had been attending church on Sundays and had joined an Anglican Church in Highgate, Western Australia, with the children attending a class on Thursdays. 4 On 7 and 8 December 2011, the parents attended an interview over two sessions in Perth with the Reviewer. One month later the parents provided a further written submission to the Reviewer which further addressed the appellants' political and Christian claims, as well as the risks they would face as Christian converts and failed asylum seekers if they were returned to Iran. 5 In March and April 2012 the Independent Protection Assessment Office wrote to the appellants informing them of amendments that had been made to the Migration Act 1958 (Cth) (the Act), introducing the complementary protection scheme. The appellants were invited to make further written submissions but on complementary protection. 6 Following these communications, further written submissions were sent to the Reviewer including a submission of 19 April 2012 addressing the appellants' claims generally including claims to complementary protection and the manner in which failed asylum seekers were treated on return to Iran. The submission included information that came to the mother's attention after the date of the interview in relation to the arrest of '2 or 3' Christian friends in Iran and the mention of her name by those people who visited them. There was also a submission by letter of 18 May 2012 which addressed the father's claim generally including complementary protection. 7 On 30 June 2012, the Reviewer recommended that the appellants not be granted protection visas and provided his statement of reasons. In that statement of reasons the Reviewer: (a) reviewed the Christianity claims at length noting that while the parents had sent their children to Christian classes and a non-Muslim school, had made contact with some Christians, and had acquired some Christian materials, he had concerns about the timing of these actions. Taken with his broader credibility concerns, he was satisfied that the conduct had been engaged in for the purposes of strengthening their refugee claims and should therefore be disregarded; (b) did not accept that the appellants had a genuine interest in Christianity or had converted to that religion; (c) noted that the mother claimed that the Basij had 'harassed and abused' her and her daughters 'about their dress style and wearing makeup' and had abused the female family members for other incursions of their strict dress code, such as showing their hair, wearing a dress or coat that was not long enough, or wearing a green scarf; and (d) accepted that the mother prefers more relaxed dress standards in Australia but did not accept that 'any family member had experienced persecution for religious or other Convention reasons arising from any minor infringement of the dress code, or that there is a real chance of such harm in the reasonably foreseeable future'.

JUDICIAL REVIEW - THE FEDERAL circuit COURT 8 On 2 November 2012, a (then) Federal Magistrate granted leave to the appellants to file and serve an amended application, including any additional grounds of review. Before the primary judge, the appellants relied upon an amended application filed on 25 January 2013 which contained two grounds complaining that the Reviewer had failed to address whether they faced a real risk of significant harm under the complementary protection provisions (s 36(2)(aa) of the Act) because of the family's infringements of Iranian dress codes and the children's exposure to Christian teachings in Australia. The primary judge dismissed both those grounds. His Honour disposed of the amended grounds finding (at [36]) that the Reviewer's remarks about the question of the possibility of significant harm arising from infractions of the dress code were sufficient. 9 His Honour went on to note (at [36]) that: … this was not a claim clearly articulated on the face of the materials. It was a matter mentioned in the most passing way by the second applicant in her entry interview and in a passing way by both applicants at the review hearing. It was never mentioned in the substantial tranches of written materials filed by each of the applicants. (emphasis added) 10 His Honour concluded (at [40]) that the claim articulated on behalf of the appellants: was not sufficiently clearly advanced in the materials to attract the operation of the statements of principle in cases like NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244. 11 The second ground of the amended application was that the Reviewer failed to consider whether by reason of any of the children having attended Christian church services and being educated in Christianity while in Australia, there was a real risk if any of them would suffer significant harm if they were returned to Iran. 12 His Honour noted (at [44]) that the mother had articulated claims based upon her religion as a Christian from a relatively early stage and these matters were set out in more detail in the written submissions forwarded by her migration agent to the Reviewer. Those claims did not, however, articulate in terms any matters on behalf of the children. 13 His Honour held (at [47]) that although there were references to the children in the various submissions, at no point was it ever put that there was a real risk that the children would suffer significant harm if they were returned to Iran because they had attended Christian church services and been educated in Christianity while in Australia. 14 His Honour noted (at [48]) that at the Independent Merits Review hearing very little was said about the children and their attendance at Christian classes. At [102] of his reasons, the Reviewer stated: ... She added that her children now go to church, too, and want to become Christians. Asked for details of the children's religious education, the claimant wife said that there are classes on Thursdays. The school told the parents that they can take the children to the mosque if they wish, but they declined to do so. 15 Importantly (at [51]) his Honour noted, accurately, that the Reviewer (at [144] of his reasons) formed an adverse view of the appellants' credibility. The Reviewer there concluded as follows: Given my adverse view of the claimants' credibility, and the concerns recorded above, I do not accept that either of them has a genuine interest in Christianity; that the claimant wife had clandestine contacts with Christians in Tabriz; that either has in fact converted, that they will engage in any relevant conduct if they returned to Iran, or that they would be required to suppress any interest to avoid persecution. 16 The primary judge observed (at [52]-[55]) (citations omitted): 52. The Reviewer at paragraph 158 roundly rejected all the claimants (sic) Refugee Convention claims. 53. The Reviewer went on to consider the question of complimentary (sic) protection. The suggestion advanced by the applicants that the Reviewer failed to consider the complementary protection claim in some manner discrete from the Convention claim clearly cannot be made out. At paragraphs 161-162 the Reviewer said inter alia: o "... In considering whether Australia has an obligation to provide complementary protection to the claimants, I have also taken into account the claimant wife's conduct in Australia, namely her church attendance and other (very limited) activities, which I was required to disregard pursuant to s.91R(3) of the Act (see paragraph 143 above). I am not satisfied that her involvement in any church-related activities in immigration detention, any very limited exchanges that she or the claimant husband might have had with Farsi speaking Christians, or any of their schooling choices in relation to the children signal a genuine 'conversion' or adoption of Christianity. I consider the possibility that someone in the detention centre in the community might relay such news back to the Iranian authorities, and that they might consider this grounds to target the family, to be mere theory and suspicion, and to not amount to any risk of significant harm. • 162. Having considered the claims and evidence as a whole, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimants being removed from Australia to Iran, there is a real risk that they will suffer significant harm." 54. Clearly, the differentiation between the Convention criteria and the complementary protection criteria was in the mind of the Reviewer as indicated by these passages. I do not think that the proposition that the children (applicants) were at a real risk of significant harm if they returned to Iran by reason of them having attended Christian church services and being educated in Christianity in Australia was one that arose in the fashion indicated in NABE and Htun in this case. The claims advanced by the parents were articulated in some detail with some precision but they did not at any stage articulate this one. 55. Furthermore, in view of the Reviewer's express finding that the parents had not converted to Christianity, a conclusion that the children will not be liable to suffer any harm whatsoever as a result of any Christian activities was one which the materials would justify in my view in any event. 17 For that reason the primary judge rejected the appellants' contention that the Reviewer had not considered whether the children faced a real risk of significant harm by virtue of their exposure to Christian teachings.

CURRENT APPEAL GROUNDS 18 An issue arose as to whether leave was required to rely upon an amended notice of appeal filed on 23 July 2013. In light of my conclusions, I treated leave to rely upon the amendment as having been granted, without the need for a formal order to that effect. 19 Ground 1 relates to the appellants' dress code violations and ground 2 relates to the children's attendance at Christian church services and classes. Ground 3 and ground 4 concern the Reviewer's alleged failure to consider the appellants' complementary protection claims by reference to the indicia of significant harm set out in para (a)-(e) of subs 36(2A) of the Act and the associated definitions in s 5 of the Act. Ground 3 relates to the appellants' dress code violations while ground 4 relates to the children's exposure to Christianity.

Ground 1 - whether the case put by the appellants sufficiently raised each appellant's claim for complementary protection arising from dress code infringements 20 In connection with this ground of appeal the appellants rely upon the recent discussion by Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (at [46]-[49]). His Honour concluded that discussion (at [51]) saying: 51 Applying these principles, the Court in NABE said that although the claim might have been seeing as arising on the material before the Tribunal it did not represent, in any way, "a substantial clearly articulated argument relying upon established facts" in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal failed to consider a claim which is not expressly advanced is not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. (emphasis added) 21 The primary judge noted (at [32]) that the Reviewer had considered the mother's claims as to infractions of the dress code applicable in Iran and concluded that he was not satisfied that any of the appellants had 'experienced persecution for religious or other Convention reasons arising from any minor infringement of the dress code, or that there was a real chance of such harm in the reasonably foreseeable future'. 22 The key complaint is that while a corresponding complementary protection ground emerged from the same facts, even if satisfied that those facts did not amount to 'persecution' within the meaning of s 91R of the Act, it is conceivable that those facts might support a complementary protection claim. That possibility was 'apparent on the face of the material' in the sense discussed in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at [58]). The appellants therefore contend that it was incumbent on the Reviewer to consider whether the facts constituted substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being removed to Iran, there was a real risk that the appellants would suffer 'significant harm' (cf. 'serious' harm). 23 I am not persuaded as to the correctness of this contention. In my view the conclusion reached by the primary judge was correct. The occasions when the appellants complained about clothing when viewed in the entirety of all the materials and claims advanced and discussed were peripheral and incidental. The analysis by the primary judge of the totality of the claims makes this clear and is an accurate summary of the position. Those passing references did not fall into the category of being a 'substantial, clearly articulated argument relying upon established facts' within the meaning of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (at [24]) or within the meaning of NABE (at [55]-[63] and [68]). 24 It is not the position that the parents on their own behalf or on behalf of the children indicated that the mother and the daughters proposed dressing in a certain manner if they were returned to Iran so as to face a well-founded fear of persecution for a Convention-related reason or a real risk of 'significant harm' because of the way they were dressed. 25 Rather, the passing references to criticisms and questioning about attire when taken in context were just examples of the general lack of freedom experienced by women in Iran. It was not put up as an express ground, nor even emphasised sufficiently as a matter which might have alerted a reviewer to treat it as a claim. 26 In my view, this ground cannot succeed.

Ground 2 - did the appellants' case sufficiently raise the children's claim for complementary protection arising from Christian activity? 27 In relation to this ground, the Reviewer noted the mother's conduct in Australia, namely, her church attendance and other very limited activities but that he was required to disregard these under s 91R(3) of the Act. The Reviewer was not satisfied that her involvement in church related activities in immigration detention and the very limited exchanges that she or her husband might have had with Farsi speaking Christians or any of their schooling choices in relation to their children signalled a genuine 'conversion' or adoption of Christianity. He considered the possibility that someone in the detention centre or in the community might relay such news back to the Iranian authorities so as to target the family was not a realistic risk. He concluded that there was no substantial ground for believing as a necessary and foreseeable consequence of the appellants being removed from Australian to Iran there was a real risk that they would suffer significant harm. 28 The appellants complain that there was no express finding in relation to the children concerning Christian schooling and activities. As noted above, the primary judge acknowledged (at [54]-[55]), again, that an independent claim in respect of the children was not articulated but that, in any event, in view of the Reviewer's express finding that the parents had not converted to Christianity, a conclusion that the children would not be liable to suffer harm was one which the materials would justify in any event. 29 This ground is not strong. There was no 'claim' that the Reviewer was obliged to consider that the children faced harm in Iran because of their attendance at Christian classes at a non-Muslim school in Australia. It was never advanced in any satisfactory manner, if at all. Further, the Reviewer's findings were that the parents did not have any genuine interest in Christianity nor had they converted to Christianity. There was no claim or country information indicating that mere attendance of children overseas at Christian classes at a non-Muslim school would lead to any real chance of persecution or a real risk of significant harm in Iran. No such claim, therefore, can be said to have fallen for consideration within the principles discussed in NABE. 30 Furthermore, the remarks explaining the rejection of the parents' evidence and claim as set out (at [158]) by the Reviewer, in my view, were of sufficient generality to make it clear that these claims were fully addressed. At [158] the Reviewer reached the following conclusions: I have considered the claimants' claims for refugee protection, individually and cumulatively, I do not accept that the claimant husband had an altercation with a Sepah official that resulted in their pursuit of him on political, religious or related grounds; I do not accept that he had a prior adverse political profile because of an earlier arrest and detention in 2009; and I do not accept that the claimant wife (or more recently, the claimant husband) has developed a genuine interest in Christianity or any other religious interest that would put them at risk of religious persecution in Iran in the reasonably foreseeable future, or that would require them to suppress their religious beliefs in order to avoid persecution. I also do not accept that they are at risk of persecution on the grounds of religion, for not practising Islam in a devout or demonstrative manner. I find that there is no real chance of the claimants, individually or together, being subject to persecution for any Convention reason(s). 31 This ground, therefore, fails.

Ground 3 - should the primary judge have considered whether the Reviewer should have addressed the dress code claim by reference to the statutory criteria? 32 This ground of appeal focusses on the statutory criteria of the complementary protection grounds under the Act which by s 36(2) and (2A) and (2B) provide as follows: 36 Protection visas … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa. (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. 33 It is also necessary to consider the definitions contained in s 5(1) of the Act in respect of the words used in those provisions and, in particular, the definitions of 'significant harm', 'torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment'. Those definitions are as follows: 5 Interpretation (1) In this Act, unless the contrary intention appears: … cruel or inhuman treatment or punishment means an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. … degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission: (a) that is not inconsistent with Article 7 of the Covenant; or (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. … significant harm means harm of a kind mentioned in subsection 36(2A). … torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant; but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 34 Shortly put, the emphasis in the submission in relation to ground 3 is that insufficient analysis was given to the fact that the mother's 'claim' in respect of complementary protection relied on the definition of significant harm as defined in s 5(1) of the Act and that this related to a lower threshold of harm than 'serious harm' in s 91R (with respect to persecution). 35 It is argued that the primary judge never considered whether the Reviewer should have assessed the appellants' complementary protection claim specifically by reference to the definitions in s 36(2A)(a)-(e) and s 5(1) of the Act. Was it possible, for example, given that the Reviewer accepted that a strict dress code applied in Iran, that he needed to 'engage with the language of s 36(2)(a)' by considering whether there was a real risk of the appellants suffering significant as distinct from serious harm by reference to the definition of serious harm as a result of infringing the dress code. 36 The threshold difficulty with this otherwise plausible argument is that it could not be said on the materials that the Reviewer was required to consider this ground at all. A passing comment about the dress code in the context of absence or lack of freedom for women in Iran was not sufficient to elevate that topic amongst others which were specifically raised to a claim the Reviewer was required to analyse. 37 In any event, the Reviewer's reasons (at [15], [16] and [17])) set out specifically the nature of a claim for complementary protection and specifically described 'significant harm'. 38 The analysis by the Reviewer was extensive and comprehensive against a background of the correct definitions. The Reviewer reached the conclusion that there was no risk of harm, in effect, of any relevant description. 39 The topic was sufficiently examined when the Reviewer observed (at [146]) that the appellants had referred to several occasions when the Basij had harassed and abused the mother and daughter, presumably the older daughter. The mother had mentioned that the Basij had on one occasion come to their home and harassed them about their dress style and wearing makeup. He continued: … At interview, they variously referred to the basij abusing the claimant wife and/or their daughters for other incursions of their strict dress [code], such as showing their hair, wearing a dress or coat that was not long enough, or wearing a green scarf. I accept that there are strict dress codes for women and men in Iran. These have their origins in religious conservatism, but apply to all Iranians. I accept that the claimant wife prefers the more relaxed standards in Australia. However, I am not satisfied that the claimant wife or any family member has experienced persecution for religious or other Convention reasons arising from any minor infringement of the dress code, or that there is a real chance of such harm in the reasonably foreseeable future. (emphasis added) 40 Against those factual findings, having dealt with the Convention-related claims, the Reviewer considered the complementary protection claims and reached conclusions which addressed 'significant' harm generally (at [162]) saying: Having considered the claims and evidence as a whole, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimants being removed from Australia to Iran, there is a real risk that they will suffer significant harm. 41 In summary, the relevant definitions were set out, the claims (if they were such) were examined and conclusions reached as to absence of harm both in relation to dress and Christian activities. Bearing in mind the strictures against over zealously examining each means of expression adopted in a practical review, I consider that this ground must fail.

Ground 4 - whether the primary judge erred in finding that the Reviewer's conclusions in respect of the Christianity complementary protection claim were justified by the materials despite the Reviewer's failure to refer to the statutory criteria 42 Again, the contention for the appellants is that it was necessary for the Reviewer to analyse the provisions under s 36(2A) of the Act by reference to his factual findings and to specifically engage the criteria under which the complementary protection claim should be measured. The appellants submit that the primary judge was not entitled to reach the conclusion expressed above (at first instance [55]) when the Reviewer did not, it is argued, apply the essential statutory criteria to the circumstances of the children in relation to their involvement in Christian activities in Australia. It is asserted that the primary judge failed to consider whether the Reviewer should have assessed the risk to the children of suffering harm by reference to those definitions. 43 This is a similar argument to that advanced in respect of ground 3. Except that the question relates to the risk to the children rather than the dress code, the responses are essentially the same. The primary judge's conclusion (at [55]) that the Reviewer's findings that the appellants had not converted to Christianity justified a conclusion that the children would not suffer harm in Iran as a result of any Christian activities in Australia. As previously noted, the Reviewer discussed the statutory definitions and spoke of harm generally. What is set out in [161] and [162] of his reasons, in my view, is of sufficient generality dealing with the claim that there might be grounds to 'target the family' in Iran because of, inter alia, the parents' 'schooling choices in relation to the children'. 44 In my view, this ground cannot succeed. 45 As each ground of appeal fails, it is unnecessary, therefore, to consider the relief sought by the appellants.

CONCLUSION AND ACKNOWLEDGEMENT 46 For those reasons, the appeal must be dismissed. The appellant was ably and generously represented pro bono by Mr D Blades of counsel. The Court is grateful for his assistance. The following orders are made: 1. The title of the first respondent be changed to 'Minister for Immigration and Border Protection'. 2. The appeal is dismissed. 3. The appellants pay the costs of the first respondent, to be taxed if not agreed. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Migration Act 1958(Cth)ss 36(2), 36(2A)

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