BZAGE v Minister for Immigration
[2014] FCCA 2619
•17 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAGE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2619 |
| Catchwords: MIGRATION – Protection visa – where mistranslation of a phrase in interview – whether applicant denied procedural fairness – where no denial of procedural fairness – whether second respondent gave proper, realistic and genuine consideration to applicant’s claims individually and cumulatively – no error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(1), 476 |
| Attorney-General (NSW) v Quinn (1990) 170 CLR l Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 |
| Applicant: | BZAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MS S. WINTERS IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | BRG 1192 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 12 August 2014 |
| Date of Last Submission: | 12 August 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2014 |
REPRESENTATION
| Counsel for the applicant: | Mr Black with Mr Walsh |
| Solicitors for the applicant: | Refugee and Immigration Legal Service |
| Counsel for the Respondents: | Ms Wheatley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed on 10 April, 2014 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1192 of 2013
| BZAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MS S. WINTERS IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Pursuant to the arrangements established by the first respondent and found to be valid by the High Court of Australia in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, on 28 November, 2012 the second respondent recommended to the first respondent that he not permit the applicant to make application for a protection visa under the Migration Act 1958.
By this application, the applicant applies for an order that the first respondent show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction pursuant to s.476 of the Migration Act so as to prevent the first respondent from taking any action pursuant to that recommendation.
Having regard to the written and oral submissions delivered by the applicant and the first respondent, the issues that arise for determination in these proceedings are:
a)whether an agreed mistranslation of a phrase during the course of the second respondent’s interview of the applicant for the purposes of an independent protection assessment has led to an error sufficient to justify the granting of the relief claimed by the applicant;
b)whether the applicant was denied procedural fairness by reason of the mistranslation, thereby justifying the relief claimed by the applicant; and
c)whether the second respondent failed to deal with the applicant’s claim that he was at risk if returned to Iran, not merely as a failed asylum seeker, but as a failed asylum seeker whose combination of other circumstances placed him at greater risk of selective and discriminatory harm.
Background
The applicant is an Iranian citizen. He was born in Iran and has lived there all of his life.
He arrived at Christmas Island on 6 March, 2011. At that time he was, for the purposes of s.5 of the Migration Act as it stood at the date of the second respondent’s decision, an offshore entry person.
Because he was an offshore entry person s.46A(1) of the Migration Act precluded him from making a valid application for a protection visa unless the first respondent personally decided to:
a)exercise his power pursuant to s.46A(2) of the Migration Act to allow the applicant to apply for a visa; or
b)pursuant to s.195A of the Migration Act, grant the applicant a visa (assuming that the applicant was a person in detention pursuant to s.189 of the Migration Act).
At the time the applicant arrived at Christmas Island in March, 2011 an administrative process was in place which was not provided for under the statutory scheme established by the Act relating to the application for and the granting of, protection visas. The purpose of that administrative process was to assist:
a)Australia to meet its international obligations arising from the Convention Relating to the Status of Refugees adopted at Geneva on 28 July, 1951 as amended by the 1967 Protocol Relating to the Status of Refugees; and
b)the first respondent when making determinations pursuant to s.46A(2) or s.195A of the Act.
The first step in the process was for a protection obligations determination to be made in respect of the applicant. In May, 2011 the applicant applied for a protection obligations determination. That determination was made by an officer of the Department of Immigration and Citizenship on 1 August, 2011. The officer determined that the applicant was not a person to whom Australia owed protection obligations or who engaged the complementary protection provisions of the Migration Act.
Under the administrative process then in place, the negative determination in respect of the applicant resulted in his application being automatically referred to another process called independent protection assessment. The second respondent carried out the independent protection assessment in this case.
The role to be played by the reasons and conclusions reached by the independent protection assessor in the first respondent’s determinations under ss.46A(2) or 195A of the Migration Act were explained by the Full Court of the Federal Court of Australia in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 at [34] as follows:
The Minister, as the only person with power to make a decision under ss46A and 195A, is not bound by anything in the reviewer’s assessment or recommendation. The Minister has no obligation to exercise the powers under ss 46A or 195A. Nor does he have any obligation to take the reviewer’s assessment or recommendation into account in deciding whether, and if so how, to exercise those powers. In other words, the Minister is entitled to make, or not make, a decision regardless of the reviewer’s assessment or recommendation.
However, once the above described administrative process was undertaken for the purpose of the first respondent considering whether to exercise power under either ss.46A or 195A of the Migration Act, the protection obligations determination and the independent protection assessment must be procedurally fair and address the relevant legal questions: Plaintiff M61/2010E (above) at [76] – [78].
The second respondent made a recommendation to the first respondent on 28 November, 2012. The second respondent found that the applicant: “does not meet the criteria for a Protection (Class XA) visa set out in s.36(2) of the Migration Act 1958.” Consequently, the second respondent recommended to the first respondent that the applicant “not be recognised as a person in respect of whom Australia has protection obligations or as a member of the same family unit as such person.”
The second respondent’s reasons
The second respondent gave an extensive statement of reasons for her conclusions. As the applicant points out, the second respondent set out an expansive description of the evidence available to her from the departmental file and that was otherwise submitted to her. The applicant does not suggest that the second respondent misunderstood any of that evidence.
The second respondent looked carefully at the interview given by the applicant to departmental officials on 28 March, 2011 after he arrived at Christmas Island. She recorded relevant parts of a statement made by the applicant in support of his request for a positive protection obligations determination. She had regard to the evidence given by the applicant in what the second respondent describes as a “protection obligations evaluation interview” that took place on 23 May, 2011.
The second respondent set out the applicant’s claims and evidence made in interviews between he and the second respondent on 22 January, 2012 and again on 12 March, 2012. The second respondent referred to and summarised information given by the applicant in statements made on 14 and 16 September, 2011; 7 December, 2011; 20 February, 2012 and 19 April, 2012.
The second respondent had regard to extensive submissions, particularly those made on 6 December, 2011; 19 April, 2012; 21 May 2012; 19 June, 2012 and 10 August, 2012 on the applicant’s behalf. Save as set out below in respect of one matter, the applicant does not suggest that the second respondent’s recitation and summary of any of that evidence or those submissions is inaccurate.
The second respondent referred extensively to what the second respondent and the parties describe as “country information”.
In her statement of reasons for her conclusions the second respondent recorded the applicant’s claims as follows:
141. The claimant’s agent submitted the essential and significant motivation for the claimant’s fears are on account of his:
• Political opinion of being opposed to the Iranian regime;
• Religion (conversion from Islam to Protestant); or
• Membership of a particular social group namely, ‘returnees from a western country’ or ‘failed asylum seekers returning from a western country’.
142. From his evidence the assessor also identified claims that have not been specifically argued by him or his agent, but which appear to arise on the facts:
• In 1999 he participated in the student demonstrations in Tehran.
• He joined the Kingdom Society in 2001 and has a letter confirming his membership.
• Unidentified men went to the claimant’s house in May 2010 and on subsequent occasions, asking for the claimant.
• He wrote slogans on the wall around the time of the June 2009 elections.
• His friend Saeed was arrested on 20 June 2009 and again in February 2010.
• He went with Saeed to the demonstration on the day of the mosque fire when Saeed was arrested.
• The claimant’s parents were participating in the political rallies/demonstrations, but just as part of the crowd.
• The claimant’s house was searched after his return from Thailand in 2010 by men who were looking for him.
• He has been a Christian Protestant since 2010.
• He found a Farsi Bible on the ground in Iran which is at his home in Tehran.
• A traffic officer in Tehran’ slapped his face for wearing a Christian cross around his neck.
The applicant does not suggest that the second respondent misapprehended the claims, or did not consider all of the individual claims made by the applicant.
The second respondent formed an adverse view generally about the applicant’s credibility in relation to his claims. Between paragraphs 129 and 140 of her reasons the second respondent discussed aspects of the applicant’s credibility. She did not disregard everything that the applicant said, however. The second respondent’s reasons reveal a careful consideration of each of the matters relied upon by the applicant and a careful consideration of whether she could accept them.
Notwithstanding the adverse credibility findings she made, the second respondent accepted some important aspects of the applicant’s claims. Without intending to be exhaustive, she made the following findings:
a)There were widespread mass protests in Iran when President Mahmud Ahmadinejad was re-elected after the June, 2009 elections;
b)There were widespread arrests of a range of people, including political activists, and many were detained without trial;
c)After the initial post-election demonstrations, arrests continued and perhaps “hundreds were arrested and detained merely for exercising their rights of speech and association”;
d)There is information that the Iranian authorities have issued threatening statements making it clear that those who express dissent (whether by speaking out or writing or attending demonstrations) will face harsh penalties;
e)The applicant’s parents participated in political rallies or demonstrations “just as part of the crowd”, and he “may be imputed with a political opinion as a result of his parents’ actions”;
f)the applicant was involved in slogan writing around the time of the June, 2009 elections, and he wrote slogans on walls with a friend named Saeed Afshari and others up until an incident described in the reasons as “the mosque fire on 20 June, 2009”;
g)Afshari was first arrested in June, 2009 and then again in February, 2010;
h)Unidentified men attended at the applicant’s home twice in May, 2010.
i)The applicant went to Thailand in 2010 using his own passport, with a return flight to coincide with the terms of his visa that permitted him to visit Thailand. He returned to Iran in October, 2010;
j)There was another visit by unidentified men to the applicant’s home one or two weeks after he had left for Thailand in June, 2010;
k)After the applicant’s return to Iran from Thailand (in about October, 2010), three people from Sepah went to his home whilst he was at work with an order to search the house;
l)There have been two or three further visits since the applicant left Iran;
m)The applicant watched some Christian television programs in Iran, later made two visits to a church in Thailand, and then attended church services four times on Christmas Island.
However, the second respondent rejected the applicant’s claims:
a)about converting to Christianity;
b)to have participated in the 1999 student demonstrations in Tehran;
c)to have been a member of the Iranian Kingdom Society;
d)to have continued writing slogans after an incident described in the material as “the mosque fire on 20 June, 2009”;
e)to have participated in, or attended, any demonstrations;
f)that the unidentified men who attended at the applicant’s home twice in May 2010 were connected with Saeed’s arrests;
g)that those men were from the Iranian authorities;
h)that those men made threats;
i)that he went to Thailand in 2010 because of the visits from unknown men to his home.
Ultimately, the second respondent concluded that none of the claims raised by the applicant gave rise to a well-founded fear of persecution such that he was not a person in respect of whom Australia had obligations under the Refugees Convention. She also concluded that the applicant was not a person in respect of whom Australia had protection obligations under the “complementary” protection provisions of s.36(2)(aa) of the Act.
Grounds of review
By his amended application filed on 10 April, 2014 the applicant pursues three grounds of review. In their written submissions delivered in support of the application, counsel for the applicant summarised the applicant’s case as follows:
2. In summary, the applicant’s case is:
(a) Ground 1: The Assessor made a positive finding of fact that the applicant’s father had ascertained that the men who had been looking for him in May 2010 were not from the Iranian authorities and were not state agents. As a matter of law, the Assessor required evidence capable of supporting that finding of fact. There was no such evidence.
(b) Ground 2 (as amended): There was a denial of procedural fairness. The Assessor relied on a transcript of the applicant having said in an earlier interview that his father “suggested that the people ... were not from Information Office” as meaning his father ascertained the men were not from the Iranian authorities, without giving the applicant notice of her intended reliance on this matter. Further, the transcript was a misinterpretation, because the actual word used by the applicant in the earlier interview was “Ettela’at” meaning “Ministry of Intelligence and National Security”. That misinterpretation of a vital answer produced an unfair procedure.
(c) Ground 3 (as amended): The Assessor failed to deal with the applicant’s claim that he was at risk if returned to Iran, not merely as a failed asylum seeker, but as a failed asylum seeker whose combination of other circumstances placed him at greater risk of selective and discriminator harm.
The parties appear to agree that although there has been a renaming of the relevant administrative processes, the process under consideration in this application is equivalent to that considered in Plaintiff M61/2010E (above). Both parties agree that the applicant must establish a legal error, which might include a denial of procedural fairness. It is not necessary to establish a jurisdictional error as that phrase is commonly used in connection with judicial review proceedings concerning privative clause decisions under the Migration Act. The independent protection assessment must be conducted “according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia”: Plaintiff M61/2010E (above) at [88].
Ground 1
Ground 1 is expressed in the amended application as follows:
1. The Second Respondent’s recommendation was based upon a finding of fact which lacked any supporting evidence.
Particulars
a. The applicant’s case, as advanced before the Second Respondent, included a claim of fear of persecution because of visits to his home by state agents or authorities at various times, including in May 2010.
b. The Second Respondent made a finding of fact that the applicant’s father had been able to ascertain that two men who visited the applicant’s house looking for him in May 2010 were not from the authorities (“the Finding of Fact”).
c. The Second Respondent relied upon the Finding of Fact to find that the applicant’s fear of persecution from visits by state agents in about May 2010 was not well-founded.
d. There was no evidence before the Second Respondent capable of supporting the Finding of Fact.
The finding critical to the applicant’s argument on this ground is found in paragraph 154 of the second respondent’s statement of reasons. That paragraph is in the following terms:
154. In the May 2011 statement the claimant said he felt there was something wrong as one of the two people introduced himself to his mother as his friend. The men returned two days later when the claimant was at work. The POE Officer summarised the claimant’s evidence as someone came to his home and posed as a friend, but his mother knew this was an impostor as she knew the name of the man belonged to someone else as she knew the claimant’s friends. The next day two men came, and this same man was one of them, again pretending to be friends of the claimant. His mother told them she knew they were not his friends and they left. At the first IPA interview the claimant said that one or two weeks after he had left Iran for Thailand, these unidentified men again went to his house. He had not made this claim in any of his previous interviews or statements, and the assessor does not accept this late evidence. While he was in Thailand, his father was able to ascertain that the two men were not from the authorities. On the basis of this evidence from the claimant, the assessor finds the two men who were looking for him in May 2010 were not from the Iranian authorities, so were not state agents. Consequently, his fear of persecution from visits by state agents about May 2010 is not well-founded.
There is something of an inconsistency between the applicant’s written submissions and the oral argument that was made in support of this ground. The written submissions delivered on 27 March, 2014 suggest in paragraph 27 thereof that the relevant finding is contained in the sentence “while he was in Thailand, his father was able to ascertain that the two men were not from the authorities”. It is argued in the written submissions that the very next statement: “on the basis of this evidence from the claimant” is inaccurate because there was no evidence from the claimant that supported the proposition that his father had been able to ascertain that the two men were not from the authorities.
The further outline of submissions delivered on behalf of the applicant on 28 July, 2014 suggests in paragraph 4 thereof that the relevant finding of fact is:
While he was in Thailand, his father was able to ascertain that the two men were not from the authorities. On the basis of this evidence from the claimant, the assessor finds the two men who were looking for him in May 2010 were not from the Iranian authorities, so were not state agents. Consequently, his fear of persecution from visits by state agents about May 2010 is not well-founded.
However, those three sentences each have a different character: the first is a statement of the evidence given by the applicant; the second contains a finding of fact made by the second respondent on the basis of that evidence, together with an inference drawn from the fact found, and the third is a conclusion of mixed fact and law arrived at after having regard, presumably, to what is required is a matter of law to establish persecution and the facts found by the second respondent.
At the hearing before me, counsel for the applicant identified that the sentence I have emboldened in paragraph 27 above is the relevant finding of fact. Counsel argued that there was no evidence to support that finding.
The parties are not in dispute about the principles that apply to this ground. Both accept that it is well established that “an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence”: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11].
However, there has to be a complete absence of evidence from which the second respondent could have made the relevant finding or drawn the necessary inference to support the finding. In Australian Postal Corporation v D’Rozario [2014] FCAFC 89 at [118] the Full Court said:
[118] An insufficiency of evidence or other material does not sustain a “no evidence” finding. The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made: VAAW of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 202 at [33]-[37] (Spender, Tamberlin and Kenny JJ): Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J). The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: SGLB at [41] (Gummow and Hayne JJ, with who Gleeson CJ agreed at [1]); Shop Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [31]] (TraceyJ).
Put another way, there is no error of law in an administrative decision-maker making a wrong finding of fact unless there is a complete absence of evidence that might support that finding: Attorney-General (NSW) v Quinn (1990) 170 CLR l at 35-36.
The statement made by the second respondent: “While he was in Thailand, his father was able to ascertain that the two men were not from the authorities.” was supported by evidence. There was evidence before the second respondent that at his initial entry interview on 28 March, 2011 the following exchange occurred between the departmental officer and the applicant (who was assisted by a translator):
DIBP officer: Okay so you have decided to go overseas. But you left Thailand went back to Iran. What made you leave Iran this time and come to Australia?
Translator:When I had contact with my father, I had a discussion with him. And he suggested that the people who were after me, they were not from information office. Otherwise, I couldn’t leave Iran. And he believed that everything is quiet now and I can go back.
The second respondent referred specifically to that exchange (albeit in a slightly different format) in her statement of reasons. Counsel argues that it is not evidence which could support the finding (if it be one) by the second respondent that “While he was in Thailand, his father was able to ascertain that the two men were not from the authorities.” The applicant suggests that there are two difficulties with that passage.
First the passage does not suggest that the applicant’s father was able to “ascertain” that the relevant men were not from the information office. At best the passage is evidence that the applicant’s father merely “suggested” that the relevant people were not from the information office.
The first respondent argues that the applicant’s submissions on this point simply attempt to engage with the merits of the second respondent’s decision. I agree. Whilst there is a difference between a mere suggestion that something is the case and a positive ascertainment that something is the case, the distinction in the context of the relevant evidence in this case, is a distinction without a difference. That is so because on the basis of the applicant’s father’s suggestion that the relevant men were not from the information office and that everything was “quiet” the applicant said that he returned to Iran. The word “suggested” in the exchange between the applicant and the first respondent’s officer described the act of imparting information between the applicant’s father and the applicant. The word “ascertain” used by the second respondent in her reasons is used to describe the conclusion that the applicant’s father had arrived at which he had then imparted to his son.
Moreover, to the extent that the sentence under consideration contains an inference or a conclusion, the inference that the applicant’s father had ascertained that the relevant men were not from the information office was open by reason of the applicant’s evidence that his father had suggested to him that the men were not from the information office. It was reasonable in the circumstances for the second respondent to draw the inference because on the material before the second respondent the applicant had in fact drawn the same inference. He returned to Iran after his father had suggested to him that the relevant men were not from the information office and that everything was quiet.
The second difficulty suggested by the applicant with the second respondent’s reliance upon the applicant’s evidence set out in the passage extracted above from the entry interview is that it refers to “information office” rather than “authorities” or “Iranian authorities”. That is to say, the applicant argues that the second respondent has substituted the word “authorities” for the words “information office”. Allied with this ground is the suggestion by the applicant that the interpreter at the interview did not correctly interpret what the applicant had said.
The applicant points out that there are three versions of the relevant passage from the entry interview to be considered. The first is the version recorded by the second respondent in her reasons. The applicant claims (and it appears to be conceded) that this version is not an entirely accurate reproduction of the relevant exchange between the applicant and the interviewer. The second version is an accurate transcription of the relevant exchange that, in fact, took place. That version was prepared by the applicant’s solicitors from the audio recording made of the interview. Whilst there are differences between the first and second versions, the differences are not significant.
The third version of the relevant exchange is a fresh interpretation of the words spoken by the applicant in Farsi at the entry interview. The interpretation was undertaken by an interpreter from the Telephone Interpreter Service engaged by the solicitors for the applicant for these proceedings.
The three versions of the relevant passage from the applicant’s entry interview are as follows:
Version set out by second respondent in her reasons:
Q:Okay, you left IRAN went to THAILAND - but then went back to IRAN. What made you leave this time?
A:When I had contact with my father, he suggested that the people who were after me, were not from Information Office, otherwise, I wouldn’t have been able to leave IRAN. He believed everything was quiet, so I could go back.
The concededly more accurate transcript:
Q:Okay so you’ve decided to go overseas. But you left Thailand and went back to Iran. What made you leave Iran this time and come to Australia?
A:When I had contact with my father, I had a discussion with him. And he suggested that the people who were after me, they were not from information office. Otherwise, I couldn’t leave Iran. And he believed that everything is quiet now and I can go back.
The re-interpretation of the applicant’s answer by the TIS:
A:Toward the end of the four months that I spent outside the country I spoke with my father and he was of the opinion that the people who were searching family were not from Ettela’at [Ministry of Intelligence and National Security] most probably, otherwise I would not be able to leave the country on my own genuine passport. “So now the dust has settled I think you can return”.
In my view, the differences between versions one and two are insignificant. The words in the initial interview referenced by the second respondent were capable of supporting the findings made by the second respondent. That is so notwithstanding that the evidence referred to “information office” and the second respondent’s reasons referred to “Iranian authorities” and “state agents”. In my view it was not unreasonable for the second respondent to use the terms “Iranian authorities” and “state agents” as compendious terms as she did.
The purported interpretation of the words spoken by the applicant at his initial interview on 28 March, 2011 where the evidence was translated as the “people who were after me, were not from Information Office…” clearly invited the inference that the “Information Office” was one of, or part of, the Iranian authorities and an agency of persecution as far as the applicant was concerned. Given the nature of the applicant’s claims, the inference was reasonable and open to the second respondent when she had regard to that evidence. That is especially so given that the applicant’s own representatives' submissions made on 6 December, 2011 to the second respondent are replete with references to “Iranian authorities” rather than specifying the particular authority or body about which it is that he complains.
To the extent that the second respondent found, as a matter of fact, that the applicant’s father had ascertained that the men who had come to the applicant’s home looking for him were not from the Iranian authorities, that finding was open to the second respondent on the material before her. In my view, this ground of review has no merit.
Ground 2
Ground 2 is expressed in the amended application as follows:
2. In the alternative to ground l, there was a breach of the rules of natural justice because the Second Respondent failed to give reasonable notice to the applicant of the substance of matters that the Second Respondent knew of and that it considered were credible, relevant and significant to the applicant’s claims.
Particulars
a. In making the Finding of Fact, the Second Respondent relied on a passage from the applicant’s Entry Interview where the applicant said that his father had told him that the men looking for him in May 2010 were not from the ‘Information Office’.
b. The rules of natural justice required that the Second Respondent give the applicant reasonable notice of the substance of the matter referred to in paragraph (a) and a reasonable opportunity to comment on that matter or the inference the Second Respondent intended to draw from that matter, namely that the men were not state agents or state authorities.
c. The Second Respondent failed to give the applicant reasonable notice of the substance of the matter referred to in paragraph (a) or a reasonable opportunity to comment on that matter or the inference the Second Respondent intended to draw from that matter.
The applicant submits that in the alternative to ground 1, the second respondent’s reliance on what she recorded as the applicant’s answer statements in his protection obligations determination interview (set out above) “amounted to a denial of procedural fairness”.
Drawing upon Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [27], the applicant submits that in making the finding the subject of ground 1 of this review (paragraph 154, set out above) “it is clear that the Assessor considered the information in the partial transcript to be ‘credible, relevant and significant. She relied on that information to make findings that the men looking for the Applicant were not from the Iranian authorities. Accordingly, procedural fairness require Assessor to give the Applicant an opportunity to deal with the information…”
The applicant argues that in her interview with the applicant on 22 January, 2012 the second respondent canvassed with the applicant issues concerning the visits to his home in Tehran by men who were looking for him but she did not raise the issue of what his father had been able to “ascertain”, nor what the term “Information Office” meant.
The applicant further argues that the second respondent was relying on a misinterpretation of what the applicant said during the initial interview. I have set out the relevant versions of the applicant’s answer to the second respondent above.
The second respondent argues that the audio recording indicates that the applicant used the term “Ettela’at” in his answer and that the interpreter expressed that term in English as “Information Office”. However, the applicant argues that the “correct” interpretation is “Ministry of Intelligence and National Security”. However, there is no evidence before me that the interpretation upon which the second respondent relied was not “correct”. There is evidence that another interpreter, from the Telephone Interpreter Service, has interpreted the relevant words as a reference to “Ettela’at”, but that of itself does not mean that the first interpreter was wrong. It may simply mean that the second was wrong.
In my view, even if the interpretation of that part of the applicant’s evidence in the entry interview was inaccurate, the applicant has been able to convey his case on this point to the second respondent.
It is not to the point to suggest that the second respondent did not raise her approach to the relevant passage of evidence with the applicant. There is no obligation on the second respondent to expose her thought processes or analysis of the evidence before her: SZBEL v Minister for immigration and Multicultural and indigenous Affairs (2006) 228 CLR 152 at (48).
As I have set out above, the issue of the visits by people to the applicant’s house and the identity of those people were a central feature of the applicant’s case. As the first respondent points out, in the applicant’s protection obligations determination, his evidence of his father advising him that the men were not from the authorities was referred to by the officer conducting that determination. The findings of fact made by the officer in the protection obligations determination were to the effect that it was not credible that the authorities maintained an interest in the applicant to the extent of visiting his home. The protection obligations determination officer did not accept that the authorities had visited the applicant’s home.
The submissions made on the applicant’s behalf for the purposes of the review dated 6 December, 2011 addressed the issue of the identity of the men visiting his home. The applicant provided further statements in response. He was alive to the issue. Specifically, referring to the visits by people to his house, the applicant says in his statement included with his representative’s submissions:
20. In the decision the delegate stated:
I do not find it credible that the authorities maintained and interest in him to the extent of visiting his home on three occasions, once pretending to be a friend, once pretending to be two friends and once declaring it was Ettela’at and Sepah. That is because this visits occurred in May 2010 (two visits) and November 2010 (one visit) a considerable time after the last day of the claimant's slogan writing on walls.
21. At least once or twice since I have been in Australia they have visited my home.
22. My Father told me this.
23. I was told that they asked about my whereabouts. They said to my Father “where is your son?”
24. My Father said that I was not in Iran and that I had left the country.
25. The first visit they pretended to be a friend. My Mother knew this friend and knew that they were not declaring who they were.
26. On the next occasions they said that wanted to speak to me and ask me some questions. They said nothing was wrong but wanted to talk to me.
27. The reference to Ettela’at and Sepah by the delegate is wrong. I never said this. Ettela’at is a part of Sepah.
28. Sepah is the organisation which actually looks for people and Ettela'at is a unit of that organisation. These organisations and unit all try and support the regime any way they can. Their job is to stop anyone they think is trying to hurt the regime.
He also said, in a separate statement which also formed part of the submissions:
Visit by Iranian government
4. Approximately two months ago people on behalf of the Iranian government went to my house in Iran to look for me.
5. They did not introduce themselves.
6. They spoke to my Father.
7. They said to my Father that they were looking for me.
8. My Father said to them that I had gone out of the country.
9. I was only told this by Sister approximately two to three weeks ago.
10. My Father said that they cannot talk to me about these things anymore as it is not good to speak about such things on the phone.
11. The visit has caused my Mother to become emotional disturbed and she is now taking medication for stress.
The applicant submits that whilst the applicant was given an oral hearing by the second respondent, the second respondent relied upon a misinterpretation of the applicant’s earlier evidence without the applicant having any opportunity to clear up that matter. There was, he argues, practical procedural unfairness. But, I accept the first respondent’s submission that the possible misinterpretation referred to by the applicant does not reach the required standard to mean that the applicant was denied a real and meaningful opportunity to give evidence and present arguments. The issue was addressed by the second respondent by reference to the understanding that the applicant was asserting that the visits to his home on three occasions were by people from a government agency.
In my view no error of law is identified by the ground of review.
Ground 3
Ground 3 is expressed in the amended application as follows:
3. The Second Respondent failed to deal with an integer of the applicant’s claim, namely that he was at risk not merely as a failed asylum seeker but as a failed asylum seeker whose combination of other circumstances placed him at greater risk of selective and discriminatory harm.
Particulars
a. In the course of the Second Respondent’s review, the applicant clearly articulated a claim that he feared returning to Iran because he would be a failed asylum seeker whose circumstances included (“the Claimed Circumstances”)
i. His parents had participated in political rallies or demonstrations.
ii. He may be imputed with a political opinion as a result of his parents’ actions.
iii. He had written anti-government slogans around the time of the 2009 elections in Iran with a man who was later arrested twice.
iv. Unidentified men (who he believed to be from the authorities) had attended at his home looking for him in about May 2010 and again in about June 2010.
v. Men from the authorities (Sepah) had attended his home looking for him in about October 2010, and again on two or three subsequent occasions.
vi. He had exited Iran illegally, travelling by road through Turkey.
vii. He had been baptised in the Christian faith and had attended Christian church services, and other Iranian detainees were aware of his participation in Christian gatherings.
b. Alternatively, the Claimed Circumstances arose clearly on the material before the Second Respondent.
c. The submissions made to the Second Respondent on behalf of the applicant included a submission that ““on a cumulative basis the claimant’s imputed political opinion, religion and membership of particular social group/s will give rise to selective and discriminatory harm by the Iranian authorities if he is returned to Iran”.
d. The Second Respondent referred to the applicant’s claim based on “his membership of particular social groups, namely returnees from a Western country, or failed asylum seekers returning from a Wester country” but failed to consider whether the applicant’s status as a failed asylum seeker combined with the Claimed Circumstances gave rise to a real chance of persecution if he were to be returned to Iran.
e. Further, the Second Respondent failed to consider whether the applicant’s status as a failed asylum seeker combined with the Claimed Circumstances gave rise to a real risk that he would suffer significant harm if he were returned to Iran.
The applicant points out that part of his claim before the second respondent was that his “cumulative” circumstances would give rise to selective and discriminatory harm by the Iranian authorities if he were returned to Iran. The second respondent noted that submission.
There is no doubt that the second respondent was bound to consider whether the applicant’s circumstances, taken cumulatively, gave rise to a well-founded fear of persecution (for s.36(2)(a)) or a real risk of significant harm (for s.36(2)(aa)). The applicant rightly submits that in relation to s.36(2)(a), the second respondent identified and considered each of the applicant’s individual claims, and in respect of each claim concluded that it did not give rise to a well-founded fear of persecution. Then, at paragraphs 189 and 196 of her reasons the second respondent said:
189. The assessor considered (sic) finds on the evidence, that the claimant’s various claims when considered cumulatively do not give rise to a well-founded fear of persecution for a Convention reason.
…
196. His claims based on being a failed asylum seeker and a returnee from a Western country do not establish that he would be at real risk of harm if not returned to Iran. Considering his claims cumulatively, the assessor finds he is not at real risk of harm if returned to Iran. The assessor considered the claim that he left Iran illegally by crossing into Turkey, and find on the basis of country information that this does not establish he would be at real risk of significant harm if returned to Iran.
The applicant argues that whilst in the paragraphs quoted above the second respondent asserted that she considered the applicant’s claims in a cumulative way, that assertion does not conclude the matter because the Court must assess for itself whether all of the matter have truly been taken into consideration: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [30].
The applicant argues that whilst the second respondent rejected various parts of the applicant’s claims, she also accepted a number factual matters upon which he relied and which were capable of supporting his overall claim. Upon a proper analysis of the second respondent’s reasons, he argues that the Court cannot conclude that the second respondent in fact gave his “cumulative” claims “proper, genuine and realistic” consideration.
According to the applicant’s submissions the factual matters relevant to this issue accepted by the second respondent were that:
a)His parents had participated in political rallies or demonstrations, albeit ‘just as part of the crowd”.
b)He had written anti-government slogans around the time of the 2009 elections, including writing those slogans with Saeed.
c)His friend Saeed had been arrested twice, and the applicant had heard no contact from Saeed since the second arrest.
d)Unidentified men had attended at his home looking for him in about May 2010, and again some time after June, 2010 (whilst he was in Thailand).
e)Men from the authorities attended at his home looking for him in about October, 2010 and again on two or three occasions.
f)He exited Iran illegally, travelling by road through Turkey.
g)He had attended Christian church services at Christmas Island and in Brisbane, and went through a baptism ceremony. Other Iranian detainees were aware of his participation in church gatherings.
The applicant submits that on a fair reading of the second respondent’s statement of reasons, it can be seen that she did not consider whether those matters taken together satisfied either s.36(2)(a) or s.36(2)(aa).
In my view, however, this ground has no merit. The second respondent’s reasons reveal that the second respondent did in fact consider the matters raised by the applicant, and more. It is of significance that the second respondent recorded that there were matters to be considered that were not put forward by the applicant or his advisers, but which nonetheless arose on the material before her. She recorded these at paragraph142 of her reasons which I have set out above at paragraph 18.
As to his parents political activities and any imputed political opinion by reason of his parents activities, the second respondent said:
28. The claimant said his parents were participating in the political rallies/demonstrations but that ‘they were just as part of the crowd’. He was involved in writing anti Government slogans during the Presidential election.
146. The assessor accepts the claimant’s parents participated in the political rallies/demonstrations but ‘just as part of the crowd’; and as a consequence the claimant may be imputed with a political opinion as a result of his parents’ actions. However, on the evidence before the assessor that his parents were just part of the crowd, the assessor finds this evidence does not give rise to a well-founded fear of persecution for a Convention reason.
The applicant’s participation in slogan writing was a central feature of his case. The second respondent recognised that and referred to it extensively throughout her reasons (see paragraphs 29, 39, 62, 78, 79, 137, 140 and 142). At paragraph 147 the second respondent said:
147. The assessor accepts the claimant was involved in slogan writing around the time of the June 2009 elections, which triggered mass demonstrations. He gave conflicting evidence about when he stopped writing slogans. For the purposes of this assessment the assessor accepts the claimant wrote slogans on walls with Saeed Afshari and others up until the day of the mosque fire on 20 June 2009. The assessor prefers his original evidence that he stopped writing slogans after the fire at the mosque, and does not accept he continued this activity after the fire, either with Saeed or by himself. He was never caught writing slogans, and he was never spoken to by any person in authority about writing slogans. The claimant stated he didn’t think there would have been any evidence to incriminate him on Saeed’s mobile phone when he was arrested. Consequently, the assessor does not accept there is a real chance the claimant faces persecution in Iran as a result of having written slogans on walls around June 2009.
And at paragraph 193, the second respondent records:
193. In summary, the assessor has accepted he wrote slogans around the time of the June 2009 elections, but does not accept there is a real risk he will suffer significant harm if returned to Iran because of that conduct. The assessor has not accepted his other claimed political activities such as membership of the Kingdom Society, participation in the 1999 student protests. His parents’ participation in rallies/demonstrations as part of the crowd, does not give rise to the claimant being at real risk of suffering significant harm if returned to Iran. There is not a real risk the claimant will suffer significant harm from the unidentified men who visited his family home on two occasions in May 2010.
The second respondent accepted country information to the effect that a “returnee’s risk of mistreatment is proportionate to the individual’s political profile in Iran” (at paragraph 185). However, she found that there was no material before her to indicate that the applicant had any political or other profile in Iran that would cause him to be of interest to the Iranian authorities. That was clearly so.
As to the question of unidentified men visiting the applicant’s home, this too was a central feature of his case. That it was, was appreciated by the second respondent. Extensive reference to this claim was made by the second respondent throughout her reasons, and in particular at paragraphs 57, 142, 150, 151, 154, 160. At paragraph 162 the second respondent said:
162. The assessor considered the claimed visits by unidentified people cumulatively. The first was in late May 2010 when two unidentified men went to his house twice and apparently pretended to be his friend. He claims there was another visit one or two weeks after he had left for Thailand. On his return to Iran he went and asked if he could return to his job at the communications company, and was told people had been looking for him at work. He then claims Sepah (or Ettela’at) searched his house looking for him in about October 2010. He claims there have been two or three other visits since he left Iran. The claimant has stated repeatedly that his problems started after Saeed was arrested, but the assessor has found that Saeed’s last arrest was in about February 2010, more than three months before the first visit in May 2010. The assessor does not accept the Iranian authorities would go to such trouble to try and find the claimant because of his slogan writing activities which ended in June 2010. He was asked about any other reasons these. people may have had for looking for him, and he was not able to identify any reason. The assessor finds when considered cumulatively, these visits do not give rise to a well-founded fear of persecution for a Convention reason.
The second respondent also made reference to these matters in paragraph 193 of her reasons set out above. She also made specific reference to visits from men from Sepah at paragraphs 34, 35, 53, 54, 65, 116, 158, 160 and 162 of her reasons. I have set out what the second respondent said about this in paragraph 162 of her reasons above.
The second respondent considered the applicant’s claims that he had exited Iran illegally. She specifically referred to this matter at paragraphs 22, 30, 105 and 196 of her reasons. At paragraph 188 she said:
188. A claim arises on the claimant’s evidence that he departed Iran illegally by walking across the border to Turkey. The assessor has considered the relevant country information and prefers the information provided by the Danish delegation that a person who has left Iran illegally, and who is not registered on the list of people who cannot leave Iran, will not face problems with the authorities on their return, other than possibly being fined. The assessor does not accept the claimant’s actions in Iran would have caused him to be listed as a person who cannot leave Iran. He did leave Iran around 6 June 2010 and on the evidence there was no reason for him to have been so listed after he returned from Thailand.
The second respondent considered the applicant’s claims concerning his conversion to Christianity and his baptism at paragraphs 97, 104, 181, 183 of her reasons. At paragraph 184, the second respondent recorded:
184. While the assessor is of the view the claimant has not genuinely converted to Christianity, it is necessary to consider whether there would be a real chance of persecution on the basis of him being perceived to have an association with Christianity or be imputed to be an apostate on return to Iran. On the evidence before the assessor the claimant has only told his family of his conversion to Christianity, so the assessor finds there is not a real chance the claimant would suffer persecution in the reasonably foreseeable future for the reason of his actual or imputed Christian religion, or as an actual or imputed apostate, or through his involvement with the Christian church in Australia, or his conversion to Christianity.
The second respondent referred to the applicant’s claim based on “membership of particular social groups, namely returnees from a Western country, or failed asylum seekers returning from a Western country” at paragraphs 141 and 185 – 187 of her reasons. The applicant argues, however, that she failed to consider whether the applicant’s status as a failed asylum seeker combined with the all of the other matters raised by him (and set out above) gave rise to a real chance of persecution if he were to be able to return to Iran.
I reject that argument. The second respondent clearly considered each of those of the applicant’s claims that she accepted cumulatively. She said as much in paragraphs 189 of her reasons:
189. The assessor considered finds on the evidence, that the claimant’s various claims when considered cumulatively, do not give rise to a well-founded fear of persecution for a Convention reason.
Given the preceding extensive discussion of the applicant’s claims (both those identified by him and his representative, and those identified separately by the second respondent), and the consideration given to, and the findings made about those claims, little else was required from the second respondent. I accept the second respondent’s submission that the second respondent was not required to re-state all of the applicant’s claims again so as to satisfy a formulaic consideration of the ‘cumulative’ basis of the applicant’s claims.
As to the question of complementary protection pursuant to s.36(2)(aa) of the Act the second respondent said at paragraph 191 and 192 of her reasons:
191. Having concluded that the claimant does not meet the refugee criterion in s 36(2)(a), I am required to consider the alternative criterion in s 36(2)(aa). In submissions dated 19 April 2012 the claimant’s agent contends there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia there is a real risk that he will suffer significant harm. The basis for this claim is that the claimant has ‘previously been assaulted by the Iranian authorities because he wore a cross’, referring to the claim that a traffic officer slapped his face. If returned to Iran the claimant will continue to pursue his [Christian] faith and the agent submits he will be at real risk of significant harm.
192. The assessor considered all of the claims raised by the claimant, not just those specifically addressed by the agent in submissions on the complementary protection provisions. For the reasons set out above, the assessor found the claimant not to be a credible witness in respect of his claims for protection. The assessor concludes there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Iran, there is a real risk that he will suffer significant harm. This is because the assessor does not accept his evidence about the harm he claims he will suffer, or the reasons for suffering such harm.
Thereafter, in paragraphs 193 - 195 of her reasons, the second respondent summarised the findings she made in respect of the applicant’s claims and concluded:
196. His claims based on being a failed asylum seeker and a returnee from a Western country do not establish that he would be at real risk of harm if returned to Iran. Considering his claims cumulatively, the assessor finds he is not at real risk of harm if returned to Iran. The assessor considered the claim that he left Iran illegally by crossing into Turkey, and find on the basis of country information that this does not establish he would be at real risk of significant harm if returned to Iran.
In my view, the second respondent gave “proper, genuine and realistic” consideration to the applicant’s claim on a cumulative basis, both in respect of his claim for protection in respect of s.36(2)(a) and s.36(2)(aa) of the Act. She was alive to each of the claims and actively engaged with each of them.
There is no legal error identified by the applicant in this ground of review.
Conclusion
The applicant’s grounds of review have no merit. The decision of the second respondent is not affected by error. Accordingly, the application must be dismissed with costs.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 November, 2014.
Deputy Associate:
Date: 18 November, 2014.
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