FEDERAL COURT OF AUSTRALIA DZABC v Minister for Immigration and Citizenship [2012] FCA 1000 Citation: DZABC v Minister for Immigration and Citizenship [2012] FCA 1000 Appeal from: DZABC v Minister for Immigration and Citizenship [2012] FMCA 322 Parties: DZABC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MARGARET FOWLER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NTD 21 of 2012 Judge: MANSFIELD J Date of judgment: 13 September 2012 Date of corrigendum: 8 October 2012 Catchwords: MIGRATION – application for protection visa - section 91R(3) –whether the Reviewer made the necessary finding that the conduct was engaged in for sole purpose of strengthening refugee claim Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 cited Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 cited Date of hearing: 28 August 2012 Place: Darwin Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: N. Karapanagiotidis Solicitor for the Appellant: Northern Territory Legal Aid Commission Counsel for the Respondents: T. Anderson Solicitor for the Respondents: Australian Government Solicitor FEDERAL COURT OF AUSTRALIA DZABC v Minister for Immigration and Citizenship [2012] FCA 1000 CORRIGENDUM 1. In paragraph 29, line 7 of the Reasons for Judgment, the words "otherwise than" be deleted. 2. In paragraph 30, line 4 of the Reasons for Judgment, the word "serviceable" be amended to "reviewable". I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 8 October 2012 IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 21 of 2012 BETWEEN: DZABC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MARGARET FOWLER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: MANSFIELD J DATE OF ORDER: 13 SEPTEMBER 2012 WHERE MADE: DARWIN THE COURT DETERMINES THAT: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court of 20 April 2012 be set aside. 3. The first respondent pay to the appellant his costs of the application including in the Federal Magistrates Court. 4. The appellant be granted leave to seek such further orders as are necessary and appropriate by 12 October 2012. 5. The first respondent be granted leave to make submissions in reply by 2 November 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY GENERAL DIVISION NTD 21 of 2012 BETWEEN: DZABC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MARGARET FOWLER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER Second Respondent JUDGE: MANSFIELD J DATE: 13 SEPTEMBER 2012 PLACE: DARWIN REASONS FOR JUDGMENT INTRODUCTION 1 The appellant is a 24 year old Iranian man, who arrived in Australia on 16 April 2010. On 11 July 2010 the appellant requested a Refugee Status Assessment (RSA), which was undertaken on 13 July 2010. The result of the RSA was that the appellant was not entitled to a protection visa under the Migration Act 1958 (Cth) (the Act). The appellant requested an Independent Merits Review of this decision on 25 February 2011. The appellant was interviewed by the Independent Merits Reviewer (the Reviewer) on 7 February 2011 and on 17 June 2011 the Reviewer affirmed the decision of the delegate of the Minister. 2 The appellant applied for judicial review of the Reviewer's decision in the Federal Magistrate's Court on 29 July 2011 based upon jurisdictional error including the denial of natural justice. On 20 April 2012 that Court dismissed the application. The present appeal is an appeal from the decision of the Federal Magistrate. THE REVIEWER'S REASONS 3 The Reviewer's reasons are summarised at [12]-[17] of the Federal Magistrate's decision. Specifically, the Reviewer made the following findings: (a) the appellant was an Iranian national; (b) the appellant participated in two protests following the 2009 elections in Iran, in June and December 2009; (c) the appellant during the December 2009 protest attacked and injured a Basiji when his safety and more directly the safety of one of his friends was imperilled by another Basiji; (d) the appellant fled from the protest through fear of arrest and as a result of his treatment, was fearful of being sought by the Basiji and had received advice from his father to leave Tehran until things calmed down; (e) the appellant was not in fact identified at the demonstration; (f) the appellant's claim that the Basiji in fact came to his house after he had fled and detained his brother lacked credibility; (g) it was plausible that if the applicant was targeted because of his assaulting a Basiji or because of his participation in the protests, he may still have been able to get through the airport on his own passport; (h) the appellant used his own passport to leave Iran; and (i) the appellant was not in fact on a "black list" and did not leave the country illegally. 4 Consequently, the Reviewer was not satisfied that the harm feared by the appellant for his imputed political opinion was well founded and his claim to a protection visa was rejected. 5 On the claim based on the appellant's conversion to Christianity in Australia, the Reviewer: (a) found the appellant's interest in religion prior to his arrival in Australia was minimal; (b) was not satisfied that the appellant's conversion to Christianity was engaged in otherwise than for the purpose of strengthening his claim to be a refugee; and consequently, having regard to s 91R(3) of the Act, that claim was also rejected. THE FEDERAL MAGISTRATE'S REASONS 6 There were in effect three grounds of review advanced before the Federal Magistrates Court: (a) the Reviewer misconstrued and/or misunderstood the Convention ground of imputed political opinion and/or conflated the grounds of actual and imputed political opinion and/or failed to deal with the claim of imputed political opinion as properly understood and/or misunderstood the nature and basis of the appellant's fear on the ground of imputed political opinion; (b) the Reviewer misconstrued s 91R(3) of the Act in purporting to disregard the appellant's conduct in Australia and did so on the basis of a misunderstanding and/or misconstruction of the case or claim advanced and/or there was no supporting evidence for the finding that there was no evidence that the appellant was interested in religion before coming to Australia and that finding was integral to the determination that the appellant's conduct in Australia was to be disregarded; and (c) the Reviewer did not afford procedural fairness to the appellant in that she did not bring to the appellant's attention, nor allow him to comment on, information from which the Reviewer drew a conclusion adverse to the appellant's claim, namely the UK Home Office Report 2010. 7 The appellant's contention with respect to Ground 1 was that the Reviewer completely disregarded the possibility and/or probability of him being recognised or identified in the context of a face-to-face confrontation, but focused on any link between his political opinion and pre-existing political profile, and did not therefore consider recognition at the protest as the basis for his imputed political belief. 8 The Federal Magistrate at [23]-[26] did not accept this ground, finding instead that the findings were based on the Reviewer's assessment of the appellant's evidence. The Reviewer did not accept the appellant's evidence that the Basiji came to the appellant's house, or detained the appellant's brother. The only evidence accepted by the Reviewer was that the appellant was at the demonstration and that he intervened when his friend was being attacked, but that he had escaped without arrest. The Reviewer concluded that there was no basis to believe that he was identified on that occasion or any other occasion. The Federal Magistrate considered that there was no error in the approach of the Reviewer, that the findings made by her were open on the evidence and that the findings were not illogical or irrational. 9 With respect to Ground 2, the appellant contended that the Reviewer erred in concluding that the appellant's conversion to Christianity should be disregarded under s 91R(3) because there was no evidence of the appellant's earlier interest in religion; when in fact that was not the evidence at all. The appellant submitted that the Reviewer ignored his evidence that he had been constrained from exploring other religions whilst in Iran. At paragraph [101] of her decision, the Reviewer held: In this case, there is no evidence of [the appellant] being interested in religion prior to coming to Australia and in fact he was not only a non practising Muslim but told the Reviewer that he was not religious, though he did state that he had attempted to explore religion whilst a teenager in Iran. Given this the Reviewer does not accept that [the appellant] had any real religious conviction prior to coming to Australia and whilst he may have been interested in exploring the tenets of other religions, he did not express any religious interest or indicate any propensity to become religious prior to coming to Australia. [The appellant] has not satisfied me that he engaged in this conduct otherwise than for the purpose of strengthening his refugee claim and therefore this behaviour must be disregarded. 10 Given the Reviewer's earlier observations that he had been interested in other religions since he was about 17 years old, and that since he had come to Australia he had a feeling of freedom that precipitated his move towards Christianity, the Federal Magistrate considered it "most puzzling that the IMR reviewer expressed herself in paragraph [101] as she did in the opening sentence by stating there was no evidence of the applicant being interested in religion prior to coming to Australia" and that the words constituted "unhappy phrasing": at [34]-[35]. The Federal Magistrate was particularly mindful of the second sentence in the above quoted paragraph, considering that it demonstrated that the Reviewer weighed in her deliberations the statement made by the appellant concerning his interest in learning about religions other than Islam before leaving Iran. His Honour added at [36] of his reasons: It is worthwhile noting that his expressed interest was in respect of "religions other than Islam" and not particularly Christianity. In addition, the IMR noted that from the evidence the applicant did not express "any religious interest or indicate any propensity to become religious prior to coming to Australia." When those two matters are considered against the observation in the first sentence at paragraph [101] that there was "no evidence" of being interested in religion prior to the applicant coming to Australia, it seems self evident that as a matter of reasonable construction what the IMR was observing was a conclusion that despite the matters she was informed of, she did not as a matter of fact accept them. Chronologically, that observation also has to be considered against her remarks at paragraph [85] where she noted that she considered "that the claimant at times gave evidence that was not supported by the country information and that was at times not credible or believable. The Reviewer does not accept all of the matters put by the claimant in the interview in support of his claim and will discuss this below." 11 The Federal Magistrate concluded that the appellant's statements concerning his earlier interest in religion had been subject to an evaluative process and it could not be considered to have been ignored, overlooked or misunderstood. 12 The third ground of appeal concerned the failure to direct the appellant to the information contained in the UK Home Office Report August 2010 which was relied upon by the Reviewer. At paragraph [110] the Reviewer observed: The Reviewer notes that the country information indicates that bribery and corruption do exist in Iran. However, the UK Home Office Report referred to above, indicates that the prevalence of corruption relates to routine services where the paying of a bribe ensures service. The assessment by at least the UK Home Office is that security checks at Tehran airport are very strict and that it is "highly improbable" that a person using a forged passport would be able to pass through the various checkpoints and leave the country, though the Reviewer notes the information available which indicates that the disorganisation of some authorities in Iran and the possibility that a person may not be detected due to some human error. 13 The appellant submitted that this matter underlay the conclusion formed in paragraph [111] that the appellant had left Iran on his own passport and that his departure was not "orchestrated by his father" by payment of bribes. 14 The Federal Magistrate accepted that the report was not drawn to the appellant's attention, but considered that such omission did not occasion unfairness to the appellant: at [54]-[56]. The Federal Magistrate's finding in respect of Ground 3 has not been appealed against. GROUNDS OF REVIEW 15 There were two grounds of error asserted against the Federal Magistrate, each founded on the failure to find error on the part of the Reviewer. 16 It is therefore convenient to identify as a starting point the two errors asserted on the part of the Reviewer which, in the light of the Federal Magistrate's decision, are maintained. They are that the Reviewer's decision involved: (a) error in misunderstanding and/or misconstruing the appellant's claim of imputed political opinion by conflating the grounds of actual and imputed political opinion and/or failing to deal with the claim of imputed political opinion as properly understood; and (b) error in misunderstanding and/or misconstruing and/or ignoring the claims advanced by the appellant that in Iran had been constrained from exploring other religions. 17 As to the first error, the Reviewer not only accepted that the appellant had been caught up in the two protests, particularly that in December 2009, but that low-profile protestors had been so involved. 18 It was the appellant's case that he had been particularly targeted after that protest because he had attacked one of the Basiji when trying to assist his friend. 19 The Reviewer said at [92] of her reasons: The Reviewer is unable to determine how [the appellant] would have been recognised at the demonstration. There is no evidence that [the appellant] had a political profile or was actively involved in any political process or activity or that there was any reason for the Iranian authorities to view him as having a political opinion other than his attendance at the demonstration on Ashura day 2009. [The appellant] showed no commitment to the Green Movement and has no evidence of having any knowledge of such a movement. When asked by the Reviewer if and how he identified himself at the demonstrations he was unable to respond. When told about the use of green wrist and head bands worn by members of the Green Movement as outlined in the country information, he said that he wore a green wrist band. The Reviewer does not accept that [the appellant] identified himself as part of the Green Movement at the demonstration on 27 December 2009 in this way and finds that he was not personally recognised at this demonstration. 20 Then the Reviewer rejected the appellant's evidence that the Basiji had come to his house shortly after the December protest, and had arrested and detained his brother for some days. She found it was not credible, partly based on its detail and partly due to the way the appellant presented at interview. She concluded that, because the appellant was not recognised at the protest, the Basiji had not come to his house to find him. The fact that the appellant was not on a blacklist and did not leave the country illegally was also supported, she found, by the means he left the country and the vague and inconsistent detail of his evidence about how he did so. She concluded that the appellant's father had not paid a bribe so the appellant could leave the country, but simply that he had done so lawfully on his own passport. 21 The appellant through counsel contended that that analysis conflated actual and imputed political opinion, or misunderstood the foundation for the appellant's fear of persecution. 22 I do not accept that the Reviewer fell into reviewable error in this respect. In my view, the Reviewer, having accepted that in general terms the appellant was not a person with political profile, addressed the appellant's claims about why he might be identified as a person who was perceived to have a political profile adverse to that of the Iranian authorities. She then correctly understood the claim that such a profile might be attributed to him by reason of what happened at the protest in December 2009. She concluded on the basis of country information that the mere fact of his attendance at the protests would not have attracted the attention of the authorities, because he would have had no earlier political profile. She also concluded that his particular actions at the December protest would or may have led to the Basiji targeting him at that time, but that despite his attacking one of their members, he was not then identified by the Iranian authorities. The overall assessment of the reliability of the appellant's evidence at the hearing supported that conclusion. 23 In my view, the Reviewer's analysis shows that the Reviewer properly understood the appellant's claim, and made findings which were available to her. It may be that other minds may have taken a different view about whether there was a real chance that the appellant might have been identified as the person who attacked one of the Basiji at the December protest – whether by information procured from his friend who he said was arrested at the time or from other informants, or from filming taken at the time – but the Reviewer has positively made a finding that that did not occur. However, the Court's role, both on appeal and before the Federal Magistrate, is not to substitute its view of appropriate factual findings for those which the Reviewer has made on the material. 24 In short, as to the first ground, I agree with the Federal Magistrate that the Reviewer did not misunderstand or misconstrue the appellant's claim of a well-founded fear of persecution by reason of imputed political opinion, and did not fail to address that claim as it was put. 25 As to the second contention, concerning the proper application of s 91R(3) of the Act, the Reviewer recognised that there is a serious risk of harm to the appellant if he were to return to Iran and to be found to be an apostate by having converted from Islam to Christianity: at [97] of the Reviewer's reasons. 26 The heading "Findings and Reasons" in the Reviewer's reasons has been divided into four subheadings: Credibility (in which the Reviewer expresses some caution about accepting all the appellant's claims); Findings of Fact; Conversion to Christianity; and Assessment of Claims. The last of the four headings deals only with the claim based on the imputed political opinion; it does not address the claim based on apostasy. Similarly, the heading "Findings of Fact" relates only to the claim based on the imputed political opinion claim. The "Credibility" section is also general in terms and does not refer to particular evidence or findings pertaining to this topic. In essence, it is specifically dealt with only under the heading "Conversion to Christianity." 27 After referring to the terms of s 91R(3), the Reviewer said at [100]: However, for s.91R(3) to be enlivened the conduct must have been engaged in for the sole purpose of strengthening the refugee claim (MIAC v SZJGV [2009] HCA 40 (French CJ, Hayne, Crennan, Kiefel and Bell JJ, 30 September 2009), per French CJ and Bell J at [13], per Crennan and Kiefel JJ [59]-[60]) [sic]. Therefore, if the Reviewer is satisfied that the claimant's conduct was engaged in for some other concurrent purpose, then it cannot be disregarded. 28 There is no express finding that the appellant had not genuinely converted to Christianity. Paragraph [101] of the Reviewer's reasons, set out above, purports to be a recital of the appellant's evidence. It is, as the Federal Magistrate pointed out, a "puzzling" description of his evidence. It does not accurately state his evidence, which was that he had never felt able to explore Christianity in Iran due to religious constrictions. It does not refer to his evidence about the reasons why he had adopted Christianity and how he practises it. He said he had been interested in other religions since he was about 17 years old, but that it was not possible to explore other religions in Iran. Those matters were noted earlier in the Reviewer's reasons. 29 Section 91R(3) provided the obstacle to the appellant's claim. In my view, the Reviewer has, however, fallen into error in the application of that provision. That is for two related reasons. Where the evidence is that it was not possible in Iran to express any propensity to become religious (other than through Islam), and the Reviewer has not specifically criticised that evidence, it does not follow that the failure outwardly to demonstrate that propensity of itself supports the conclusion that the conversion was otherwise than for the purpose of strengthening the appellant's claim to a protection visa. The related reason is that, in deciding whether his claimed conversion to Christianity was otherwise than to strengthen his claim for a protection visa, it was necessary for the Reviewer to decide whether the appellant's evidence was or was not reliable about his earlier interest in religion whilst in Iran, and whether he (and presumably others) were constrained by the authorities from exploring such an interest and additionally, whether his claimed conversion to Christianity was a genuine one. The reviewer has not make express findings about those topics. 30 I have not overlooked the contention of the first respondent that the Reviewer is shown to have had regard to the relevant material (cf Minister for Immigration, Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 esp at [13]). Consequently, the first respondent contends that no serviceable error on the part of the Reviewer has been demonstrated. However, for the reasons already given, I am persuaded that the Reviewer has not done so as, had she done so, her findings would have been explicit rather than (as is presently necessary to sustain her decision on this topic) to be inferred from a recital of the relevant words of a s 91R(3) in a paragraph of her reasons which are otherwise, as the Federal Magistrate said, somewhat puzzling. Explicitly finding that the appellant's conversion to Christianity was not in fact genuine would have left much more room for her conclusion, even without positively and expressly rejecting each item of the relevant evidence. This is in line with the explanation of the section given by Crennan and Kiefel JJ in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 where they stated relevantly at [61]: … Regardless of the conclusion stated, because the person's sole purpose is the point of reference, the decision-maker will necessarily determine whether the person had only one motive, that to which para (b) refers. And if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person's only motive was the strengthening of the person's claim. 31 I am persuaded that the absence of such a finding in the circumstances reflects the error on the part of the Reviewer to which I have referred. 32 In my view, allowing for the need to be cautious about applying too keen an eye to the perception of error on the part of the Reviewer, I respectfully disagree with the Federal Magistrate who, on balance, thought that [101] of the Reviewer's reasons reflected no more than unhappy phrasing. I think it is erroneous to have taken from the general cautious observations for concluding that the Reviewer's reasons were no more than unhappy phrasing. I am persuaded that the Reviewer, while apparently understanding the terms of the law in s 91R(3), has failed to properly to apply it to address and make the necessary findings of fact. 33 I will therefore allow the appeal, and set aside the orders of the Federal Magistrate, including as to costs. I will also order that the first respondent pay to the appellant his costs of the application to the Federal Magistrate and of this appeal. I will also give leave to the appellant to seek such further orders as are necessary and appropriate in the light of my findings, such leave to be exercised within 28 days by a written submission and any proposed draft orders. The first respondent will then have 21 days to respond to that material. It may, however, be unnecessary to make any further orders, as the effect of my decision in practical terms is that the appellant should be entitled to a fresh Independent Merits Review of his claim and the first respondent may be prepared to facilitate that occurring. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 13 September 2012