Cqi18 v Minister for Home Affairs
[2020] FCCA 3104
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQI18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 3104 |
| Catchwords: MIGRATION – Independent merits review – applicant claims as stateless undocumented Faili Kurd – claim to fear harm on basis of being a spy abandoned before second independent merits reviewer – applicant found not to be credible – original grounds of review abandoned and replaced by six further grounds – whether reasoning illogical – whether no evidence for finding that applicant is an Iranian national – whether a failure to consider that decision might be wrong – whether law misapplied in relation to complementary protection – whether failure to consider unarticulated claim – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss. 67. 68 Migration Act 1958 (Cth), ss. 5, 7, 14, 36, 40, 47, 368, 425, 430 Migration Amendment (Complementary Protection) Act 2011 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: AEH16 v Minister for Immigration and Border Protection [2019] FCCA 34 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Aronson, Mark, Judicial Review of Administrative Action (Lawbook Co, 4th ed, 2009) |
| Applicant: | CQI18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | MARA MOUSTAPHINE (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) |
| File Number: | MLG312 of 2019 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 4 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr. D. Kelsey-Sugg |
| Solicitors for the Applicant: | Asylum Seekers Resource Centre |
| Counsel for the Respondents: | Ms. J. Lucas |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
The name of the second respondent be amended in the title of the proceeding to Mara Moustaphine (In her capacity as Independent Merits Reviewer).
The amended application dated 24 April 2020 be dismissed.
The applicant pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG312 of 2019
| CQI18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| MARA MOUSTAPHINE (IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER) |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 24 April 2020, the applicant seeks judicial review of a decision by an Independent Merits Reviewer (Reviewer) made on 27 September 2012 in the review of a decision of a delegate of the first respondent (Minister) that the applicant did not meet the criteria for a protection visa under s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Act). Like the delegate, the Reviewer also found that the applicant did not meet either criterion for the visa and recommended that the applicant not be recognised as a refugee or as a person to whom Australia owed complementary protection obligations.
By way of overview, the application has now been the subject of an Independent Merits Review (IMR), a successful application for judicial review in the then Federal Magistrates’ Court, a further IMR, an application to the Federal Court of Australia and, following the second IMR, the present application to this Court.
For the reasons which follow I have concluded that the six grounds of review advanced by the amended application should be rejected. I have concluded that: (1) the Reviewer’s reasoning provided a rational basis for her conclusion that she was not satisfied the applicant had been born in Iraq or was a stateless undocumented Faili Kurd as he had claimed; (2) jurisdictional error was not established on the basis of a failure to consider whether her decision might be wrong; (3) the Reviewer did not misapply the law in relation to the claim for complementary protection; (4) the ‘no evidence’ challenge to the finding that the applicant was an Iranian national was not made out; (5) there was no error by the Reviewer in failing to consider an unarticulated claim that the applicant might be harmed by reason of a mental illness.
Background
The background to the application is common ground.
The applicant, a male of Faili Kurd ethnicity and a Shi’ite Muslim aged 36 years, came to Christmas Island on 21 July 2010 using a passport but which he said had been taken from him by a people smuggler. At that time the applicant claimed himself to be a stateless, undocumented, Faili Kurd, having never held the citizenship of any country. He made no claim of affiliation with any political group.
The applicant claimed that he had been born in Iraq in 1984, during the period of Saddam Hussein’s rule as President of that country.
The applicant said that in Iran he had worked as a ‘loose hand’ on construction but was otherwise unemployed, with some loose work last undertaken in 2008. The applicant said that his family comprised his parents, two sisters and two brothers, who were stateless. He referred to one brother as missing. The applicant claimed that his other brother, said to be a member of the Pajad Party, had been executed by the Iranian Government in 2009. The applicant claimed that if a family member had been involved with a resistance or opposition party, the whole family was then exposed to being targeted and persecuted. He claimed that following the execution of his brother he had fled the country.
The applicant claimed that his parents had moved from Iraq to Iran when he had been approximately six years old. He said that his parents had done so in order to see if they could get legal documents and apply for citizenship. The applicant said that when they failed to secure citizenship, his parents had moved back to Iraq. The applicant claimed to have had no contact with his parents or to know where they were at that time.
The applicant also said that following his brother’s execution he had lived as a fugitive for a year in the area of the Waskoor Mountain. The details of the applicant having lived on the Waskoor Mountain was also included in the details of his residential address as annexed to each of his: Personal particulars for the purposes of a character assessment; request for an RSA and statement of his claims; and, the statement of his history as set out in his lawyer’s submissions. The question of his residence on the Waskoor Mountain was also addressed in detail in the reasons of the first IMR who did not accept this claim.[1]
[1] First IMR Reasons, [40]-[41].
The applicant said that in light of the increasing presence of the armed forces (Basij), following the 2009 presidential elections in Iran, the escalating violence by the Basij, coupled with an increase in the executions of Kurds on political grounds and previous experiences with Iranian authorities, he had increased feelings of apprehension and insecurity for his future existence in Iran and that, for these reasons, he had fled from Iran.
Processing on entry
The following matters were uncontroversial and are largely taken from the applicant’s submissions.
The applicant entered Australia at Christmas Island, being an ‘excised offshore place’ as defined in s 5 of the Act. As a result, upon entry, he became an unlawful non-citizen and an ‘offshore entry person’.[2]
[2] Act, s 14.
Under the Act, an offshore entry person cannot make a valid application for a visa if the person is in Australia and is an unlawful non-citizen.[3] The applicant was for that reason unable while in Australia to make a valid application for a protection visa under s 36(2)(a).
[3] Act, s 46A(1).
Nonetheless, the applicant was entitled to apply to the Minister for a Refugee Status Assessment (RSA), which he did on 19 September 2010, claiming to be a refugee within the meaning of s. 36(2)(a) of the Act.[4]
[4] The administrative arrangements that led to the Department making RSAs are explained in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, 342.
For the purposes of the RSA, on 21 October 2010, the applicant’s then advisors (Playfair) provided a written outline of the applicant’s claims.
On 11 November 2010, the Court delivered judgment in Plaintiff M61/2010E v Commonwealth of Australia,[5] in which it held that in conducting an Independent Merits Review, a reviewer was bound to afford procedural fairness and to act according to law. Consequently, on 22 November 2010, the applicant was interviewed in the presence of an interpreter. On 8 December 2010, a Refugee Status Assessment decision was made, which decision was adverse to the applicant.
[5] (2010) 243 CLR 319 (Offshore Processing Case).
On 10 January 2011, the applicant requested an Independent Merits Review of the RSA decision (first IMR), and on 16 May 2011, the applicant made submissions in support of that request. On 23 May 2011, the applicant was interviewed at Christmas Island for the purposes of the first IMR, this occurring in the presence of his advisor and an interpreter.
On 12 September 2011, the first IMR was decided against the applicant. The applicant subsequently applied to the Federal Magistrates’ Court for review of the first IMR. As a consequence, a second IMR was conducted.
The Migration Amendment (Complementary Protection) Act 2011 (Cth) (Amendment Act) was assented to on 14 October 2011 and the relevant provisions in that Act became operative on 24 March 2012. The Amendment Act introduced[6] a new criterion in addition to the existing criteria in s 36(2) for the grant of a protection visa, being the criterion for complementary protection inserted by s 36(2)(aa) of the Act.
[6] By Item 12 in Sch 1 to the Amendment Act.
For the purposes of the second IMR, on 28 August 2012, the applicant was interviewed by the Reviewer at Christmas Island. Also present at this interview was the applicant’s then lawyers, Playfairs, and an interpreter. On 27 September 2012, the second IMR recommendation was made, again, adversely to the applicant (Second IMR Recommendation). It is this recommendation which is the subject of the current proceeding.
Procedural history
On 21 May 2018, the applicant applied to the Federal Court of Australia for an extension of time to lodge an application for review of the Second IMR Recommendation. Quite what had occurred between August 2012 and May 2018 was not explained.
At a first case management hearing on 6 July 2018, the solicitor advocate representing the Minister made a number of submissions, including that: the Federal Court lacked jurisdiction to determine the application (as the application was filed in the Federal Court’s original jurisdiction, which was limited under s 467A of the Act); the Federal Circuit Court had jurisdiction to determine the matter;[7] if the applicant sought review of the Second IMR Recommendation in the Federal Circuit Court, the time limits under s 477 of the Act would not apply.[8] The Minister consented to discontinuance of this Court proceeding with no order as to costs.
[7] Citing SZQGA v Minister for Immigration and Citizenship (2012) 204 FCR 557.
[8] Citing SZQDZ and Others v Minister for Immigration and Citizenship (2012) 200 FCR 207.
On 20 July 2018, Moshinsky, J determined that the applicant be referred for legal assistance under r 4.12 of the Federal Court Rules 2011.
On 8 February 2019, the applicant, who was then in detention and self-represented, filed an application for judicial review of the Second IMR Recommendation and by which he advanced six unparticularised and generic grounds of review. The applicant also filed an affidavit made on 5 February 2019 by which the grounds of review were reiterated and briefly amplified and to which he exhibited a copy of the reasons of the Reviewer dated 27 September 2012 (reasons).
By his response filed on 22 February 2019, the Minister sought dismissal of the application on the ground that the decision was not affected by jurisdictional error.
On 2 April 2019, orders were made, by consent, directing that the matter be listed for final hearing and affording the parties opportunities to: amend their initiating documents, file any supplementary affidavits and make submissions.
On 27 April 2020, the applicant filed an amended application by which the original grounds of review were abandoned and replaced by six further grounds of review. On 1 May 2020, the applicant’s lawyer affirmed an affidavit to which she exhibited copies of some 11 records made by a health provider styled International Health and Medical Services (IHMS) and which were relied upon in relation to Ground 6.
Upon receipt of the applicant’s submissions, the solicitor for the Minister, commendably, and as model litigant, communicated with the applicant’s lawyers, observing that no submissions had been made in relation to the new Ground 6. As a result, the applicant’s lawyers took steps to file supplementary submissions and the hearing of the amended application thereby proceeded without unnecessary interruption or delay.
Claims to protection
Section 36 of the Act creates a class of visas known as protection visas. Section 36(1A) requires that an applicant for such a visa satisfy the criterion in s. 36(1B) and at least one of the criteria in s 36(2). Section 36(2)(a) states that a criterion for a protection visa is that the applicant for the visa is “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” (Refugee Criterion).
Section 36(2)(aa) states that a criterion for a protection visa is that the applicant for the visa is “a non-citizen in Australia (other than a non-citizen mentioned in s 36(2)(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” (Complementary Protection Criterion).
The applicant claimed to be a stateless undocumented Faili Kurd who feared persecution or significant harm if returned either to Iraq or Iran.
The following claims were made in his protection application:
a)the Iranian government discriminated against Faili Kurds who were regarded as an enemy of the Iraqi and Iranian governments;
b)due to his ethnicity, the applicant faced discrimination at all levels of society;
c)as the applicant did not have a passport or any legal documents that gave him status in any country, he could not be sent back to either Iran or Iraq. If he was to return to either country, he feared persecution and possible execution;
d)as brother to Samad (a member of the Pajad Party), the applicant feared consequences in the form of imprisonment and/or execution;
e)if returned to Iraq, the applicant feared serious harm from the Sunni’s in Iraq. He contended that his father took the family from Iraq due to the religious persecution and trouble between the Shi’as and Sunnis;
f)if the applicant was returned to Iraq, he would be at real risk of suffering the continued denial of a right to Iraqi nationality. From this denial was said to flow the denial of a number of fundamental human rights that impacted every aspect of the applicant’s life including the denial of a right to earn a living and denial of access to basic services that threatened his capacity to subsist;
g)the applicant claimed he would also face serious physical harassment, detention, kidnapping, forced expulsion or serious violence and possibly death at the hands of the Iraqi authorities, sectarian militia groups or other ethnic and religious based groups within Iraq on the grounds of his ethnicity, religion and imputed nationality as an Iranian;
h)as a Kurd, the applicant claimed he would be at a further risk of being kidnapped, tortured or even killed by authorities or members of certain political groups on suspicion that he was a supporter of Pro-Kurdish groups.
As appears above, the burden of the claim to a well-founded fear of persecution was grounded upon Iraqi based factors. However, the applicant had also made specific claims for protection which were set out in, or are apparent from, his various submissions to the Reviewer[s], and included the following:
As to Iran:
a)the central premise of the applicant’s claimed fears of harm in Iran was that in 2009 his brother had been arrested, detained and executed as a member of the Kurdish separatist PJAK party;
b)the applicant feared persecution from the Iranian authorities because he was a stateless and undocumented Faili Kurd;
c)the applicant feared persecution from the Iranian authorities because of his actual/imputed political opinion as being pro-Kurdish and anti-Iranian regime.
As to Iraq:
a)the applicant feared returning to Iraq because he was regarded as an enemy of the Iraqi Government and would be accused of being an informant and spy;
b)the applicant could not be sent to Iraq as he did not have a passport or any legal documents that gave him status in any country;
c)should he be returned to Iraq the applicant feared persecution and possibly execution due to being regarded as a spy and informant to the Western Countries about the hostility and human rights violations against stateless Faili Kurds;
d)the applicant did not know where his parents were, would not be recognised or accepted in Iraq, and had been deported from Iraq;
e)the applicant could not have a secure life, would have no identity and no rights, would be denied education and would not be able to get married officially in Iraq.
IMR’s decisions
It was common ground that the Court need not be concerned with the reasons on the First IMR Review. The reasons given on the Second IMR Review, which were comprehensive, comprised 42 pages, 201 paragraphs and were structured as follows: Introduction: [1]-[5]; Relevant Law: [6]-[20]; Claims and Evidence: [21]-[153]; Findings and Reasons: [154]-[197]; Conclusions: [198]-[200]; and, Recommendation: [201].
Relevantly, in the ‘Claims and Evidence’ section, the following material was referred to: (a) Evidence on the Department’s file (Biodata and Entry interview; RSA Application and statement of claims; and RSA Interview); (b) Evidence before the Independent Merits Reviewer (Advisor’s Submission to First IMR; First IMR Interview; Claimant’s Mental Health Issues to Second IMR; Second IMR Interview; Post-interview correspondence; and Country Information). It may be noted that, in the course of the hearing at the Second IMR, following consultation with his agent, the applicant ‘dropped’ claims to a fear of harm based upon the Shi’a religion, human rights violations against stateless Faili Kurds or to being a spy: [106].
In the section addressing the ‘Second IMR Interview’, under the heading ‘Procedural Fairness Issues’, the Reviewer said at [107] that she had put to the applicant and invited his comment on “inconsistencies and issues of concern” in his evidence and information which might be adverse to his claims. The Reviewer went on to discuss the following topics: (a) Why the applicant’s family left Iraq: [108]-[110]; (b) Mass deportation of Faili Kurds: [111]; (c) Education: [112]; (d) PJAK party: [113]-[118]; (e) How the applicant heard of his brother’s execution: [119]; (f) Why and when his parents returned to Iraq: [120]-[121]; (g) How he arranged travel out of Iran: [122]-[123]; (h) His claimed identity as an undocumented Faili Kurd deported from Iraq to Iran: [124]-[126]; (i) Serious harm amounting to persecution for a Convention reason: [127]-[130]; (j) Returnees and Failed asylum seekers: [131]-[132].
By way of overview, the Reviewer reasoned that the applicant’s identity was a key issue in the review, and in particular, his claim to be a stateless and undocumented Faili Kurd, born in Baghdad, Iraq in 1984 and who came to Iran in around 1990-1991: [126], [154]. The Reviewer observed that in the absence of corroborative documents, such as a passport or green card, she only had the applicant’s word for this: [126]. She observed that both the Departmental officer and the first IMR Reviewer had pointed to inconsistencies in the applicant’s evidence [124]. During the hearing, the Reviewer raised with the applicant nine overarching concerns regarding his identity that were detailed at [126].
Insofar as are relevant to the present application, the reasons of the Second IMR review included the following ‘Findings and Reasons’:
a)based on the applicant’s evidence that his parents and older siblings “did not speak Arabic”, his “scant knowledge” of his family’s history in Iraq and his assertion that Iraq was “not his country”, the Reviewer was not satisfied that the applicant was born in Iraq. For those reasons, she discounted Iraq as a possible country of reference against which to assess the applicant: [154];
b)the Reviewer concluded that the applicant was in fact a national of Iran and assessed him against Iran as his country of reference and receiving country: [155];
c)the Reviewer could not disregard aspects of the applicant’s account of his experience in Iran as being central to his claims which she found to be implausible and unsupported by evidence including by independent country information. She said these matters raised doubts about the applicant’s overall credibility and the reliability of his evidence: [162];
d)the applicant’s truthfulness was identified as a real concern: [163];
e)the Reviewer was not satisfied that the applicant’s brother had been arrested, detained and executed for his involvement in the PJAK party, nor that the applicant was at risk due to association with his brother: [178]. The Reviewer gave, in essence, two reasons for this, being that the applicant had given inconsistent evidence as to:
i)how he knew his brother had been arrested and executed in 2009: [179];
ii)whether he himself was involved in the PJAK party: [183].
As a consequence of the finding at 38(a) above, the Reviewer did not consider any of the applicant’s claims in relation to Iraq. The decision not to do so was consistent with the applicant’s submission that Iran should be considered as his country of reference.
The Reviewer concluded that the applicant was a national of Iran [155]. In light of various inconsistences and implausibilities in the applicant’s evidence, the Reviewer was not satisfied the applicant or his family had ever lived in Iraq, that he had been deported by Saddam Hussein from Iraq to Iran in the mass deportation of Faili Kurds between 1989-1991, or that he had lived the life of an undocumented and stateless Faili Kurd deportee: [164], [173].
In arriving at these conclusions, the Reviewer observed that she found aspects of the applicant’s account of his experience in Iran, which were central to his claims, to be implausible and unsupported by evidence, including having regard to independent country information: [140]-[142], [194]-[195]. This raised doubts about the applicant’s overall credibility: [162]. While the applicant sought to attribute various inconsistencies in his evidence in part to his illiteracy and lack of education, the Reviewer was not satisfied that this would affect his truthfulness, which was the Reviewer’s primary concern: [163].
The Reviewer did not find the applicant to be a reliable, credible or truthful witness about his experiences in Iran and questioned whether anything he said could be relied upon: [164].
The Reviewer found that the applicant’s claimed stateless identity was undermined in several key aspects of his account: [165]-[172]:
a)the Reviewer found it unusual that neither the applicant’s parents nor older siblings, who were born and grew up in Iraq spoke Arabic. While accepting that the applicant himself may not speak Arabic if he was 5 or 6 years old when he left Baghdad, the Reviewer did not find it plausible that, even if his family had lived in an area of the city inhabited by other Faili Kurds, his parents and older siblings would not know Arabic (beyond using it to pray);
b)at [166], the Reviewer referred to her earlier observations set out at [125][9] where she had addressed with the applicant areas of concern regarding his claim to be a stateless Faili Kurd born in Iraq, including that: (i) the years when he claimed his family left Iraq were not the times of mass deportations; (ii) the Reviewer could not locate the place where he said that he had lived in Illam (Waskoor Mountain in the Shirwan district of Illam);[10] (iii) the fact he had been unable to talk about his family’s life in Iraq, other than that they talked about suffering and bad times (to be contrasted with country information which suggested that before Saddam Hussein, Faili Kurds had experienced good living conditions in Iraq); (iv) the applicant had not demonstrated any sense of who the Faili Kurds were or their history (other than saying they did not have identity documents); (v) it was unusual for people who had been displaced and suffered injustice, such as Faili Kurds, not to have (and to have passed onto their children), a family narrative about their displacement coupled with an attachment to their former homeland; (vi) while the applicant spoke Faili Kurdish, she would have to take into account country information[11] that the dialect spoken by people in Iran who were not Faili Kurds and therefore had to consider whether the applicant might be an Iranian Shi’a Kurd or Luri; (vii) the Reviewer also put to the applicant that at the time of his family’s suggested arrival in Iran, green cards were issued quite freely to deportees from Iraq;
c)at [167] the Reviewer found the applicant’s lack of knowledge about his family’s life in Iraq over many years to be even more implausible (again referring to the concerns put to him as set out at [126]). The Reviewer found at [168]-[169] that her reservations had been compounded by the applicant’s lack of awareness of key elements of his family’s Faili Kurdish history and culture, including what tribe they were from and that he defined Faili Kurds solely in terms of their lack of identity documents. The Reviewer was not satisfied that a child who had actively experienced his family’s alleged deportation from Iraq would have such a vague recollection of what happened and not be familiar with the story of his family’s displacement;
d)the Reviewer observed that given the mass deportation of Faili Kurds were reported to have taken place in the 1970s and 1980s, it was incongruous that the applicant’s family left Iraq between 1989 and 1991 when, by his own evidence, the applicant said his father had responded immediately to Saddam’s announcement that all Faili Kurds had 24 hours to leave Iraq;
e)the applicant’s evidence about what had happened after his family arrived in Iran and his early years there was also vague and inconsistent, including with respect to country information: [169];
f)the Reviewer made observations regarding the inconsistency with the applicant’s claim that his parents could not get identity documents in Iran despite making consistent efforts. The Reviewer considered this to be important and referred to country information that deportees from Iraq arriving in Iran at the time, including Faili Kurds, were well received and that identity cards were freely available. The Reviewer reasoned that it did not make sense that the applicant’s family would have been unable to get them or needed them to hide in a remote area, nor that the applicant’s siblings had been denied education as claimed: [170]-[172];
g)the Reviewer observed that the applicant’s rationalisation of his inconsistent evidence about his schooling was disingenuous: [170];
h)the Reviewer was also not satisfied by the applicant’s evidence responding to country information on the ready availability of green cards, particularly as he had said that his parents had made concerted efforts to obtain identity records: [171]-[172].
[9] It being common ground that this reference was erroneous and was an intended reference to [126].
[10] See also Reasons at [60], [174].
[11] See also Reasons at [138].
For those reasons, the Reviewer concluded that she was not satisfied the applicant had ever lived in, or been deported from, Iraq, or lived the life of an undocumented stateless Faili Kurd deportee: [173].
The Reviewer further observed that she had been unable to locate on a map the Waskoor Mountain in Shirwan district of Ilam province, where the applicant claimed he had lived in Iran: [174]; see also [60], [126]- [127]. It appears from the reasons at [174] that the Reviewer had made a somewhat sustained effort to locate the Waskoor Mountain.
The Reviewer concluded that the applicant’s apparent familiarity with Khoramabad as reflected in his evidence, as well as his statement that he was not from Ilam, suggested he was probably from the province of Lorestan in western Iran, rather than the Ilam province: [174], [129].
The Reviewer noted that while the applicant said that he spoke Faili Kurdish and drew a distinction between Faili Kurdish and Luri, by his own evidence the language spoken in his area ‘tilted towards Luri’. The Reviewer observed that when she drew the applicant’s attention to country information that Faili Kurdish was a dialect of Luri and that it was also spoken by people who were not Faili Kurds, his only comment was that he was originally Faili Kurdish from the mountains: [175]. This reasoning is to be understood in the context of the earlier finding at [127] that the applicant had given evidence that he had lived in hiding in the mountains but then accepted he had originally stated that he had lived on the outskirts of Tehran and only moved to the mountains after, as he claimed, his brother had been hanged: see also [22], [42].
For those reasons, the Reviewer was not satisfied that:
a)the applicant was being truthful about his origins and considered that he may be a Shi’a Kurd or Luri from Lorestan of the type about which he had given evidence: [175], see also [155], [186];
b)the applicant had suffered any form of discrimination in Iran due to his lack of identity documents (including a denial of rights to education, health care or a right to work legally): [176].
As to the latter point, the Reviewer noted the applicant’s own evidence was that he had been able to work in Tehran from the age of 15 or 16.
The Reviewer reasoned that as an Iranian national the applicant had a right to enter and reside in that country and that he had concocted his claim to being a stateless undocumented Faili Kurd who had been deported from Iraq during the period of mass migrations effected under the regime of Saddam Hussain: [175].
The Reviewer proceeded to examine (and rejected) the central premise upon which the applicant claimed to fear persecution in Iran, being that as a result of the arrest and execution of his brother, he would be at risk of harm as a result of an actual or imputed political opinion as being pro-Kurdish and as an opponent of the Iranian regime: [29], [177]-[185], [188]. Notably, those reasons were not the subject of challenge.
Having earlier found that the claim to have paid for assistance to leave Iran illegally had been concocted, the Reviewer reasoned that as she had found the applicant was an Iranian national there was no need for him to have obtained a false passport or to have left Iran illegally: [186]-[187]; see also at [24], [30], [100]-[104].
The Reviewer found that the applicant did not meet the criteria for the visa and recommended that he not be recognised as a person to whom Australia owed complementary protection obligations: [195], [201].
Review of IMR Decisions – error of law
As the Reviewer’s recommendation is not a privative clause decision under the Act, the test on judicial review is whether her recommendation was based on an error of law, not whether there was jurisdictional error. In Minister for Immigration and Border Protection v SZSNW (SZSNW), a case involving a challenge to the recommendation of an Independent Merits Reviewer, Buchanan J, observed:[12]
If this case was about jurisdictional error (which it is not) it would be necessary to show that an error of law had been committed which affected the exercise of power (see Craig v State of South Australia; Minister for Immigration and Multicultural Affairs v Yusuf. That is because jurisdictional error is not committed by mere procedural infelicity, or even by error of law, which is not material to the exercise of power.
In the case of judicial review of decisions of administrative decision-makers, where jurisdictional error need not be shown (e.g. cases arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth)), Courts will intervene if a decision-maker disregards a matter which must be taken into account. Again, a material effect on the exercise of power must be apparent. The test was stated by Mason J in Minister for Aboriginal Affairs v Peko- Wallsend Ltd:
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision. (Citations omitted)
See also Hossain v Minister for Immigration and Border Protection.[13]
[12] (2014) 229 FCR 197, [85]-[89], (Mansfield and Perram JJ agreeing generally [2], [6], [104], [110]).
[13] (2018) 264 CLR 123, [20]-[25] (Kiefel CJ, Gageler and Keane JJ); [63]-[65] (Edelman, Nettle JJ).
Notwithstanding the parties’ acceptance that the Reviewer’s decision may be set aside for error of law, their submissions were frequently derived from principles in authorities concerned with jurisdictional error.
Otherwise, it was accepted that an administrative decision maker may fall into error if he or she identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material in a way that materially affects the exercise of powers, or, in some instances, makes an erroneous finding or reaches a mistaken conclusion.[14]
[14] Craig v State of South Australia (1995) 184 CLR 163, 179; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, [82].
Consideration
While the amended application for review contained six grounds of review, Ground 1 was abandoned at the hearing. Further, for the reasons set out below, it is also convenient to address Ground 3 after Ground 5.
Ground 2 – illogicality
Amended Ground 2 reads:
The Reviewer’s finding that she was not satisfied that the applicant was born in Iraq as he had claimed, was tainted by error in that it was the product of a process that was procedurally unfair to the applicant, or was affected by legal unreasonableness, irrationality and/or illogicality.
Particulars:
(a)In finding that she was not satisfied that the applicant was born in Iraq, the Reviewer misunderstood and made unwarranted assumptions in relation to the applicant’s evidence regarding the extent to which his family spoke Arabic; his knowledge of his family’s history in Iraq; and his comment that Iraq: “was not his country”. Properly understood, the applicant’s evidence in those respects could not have supported the Reviewer’s finding.
In substance, Ground 2 contended that the Reviewer’s conclusion she had not been satisfied the applicant was born in Iraq could not have been supported by his evidence, properly understood: [154].
Applicable principles
The making of a finding of fact which is a critical step in the ultimate conclusion reached, and for which there is no evidential support may constitute jurisdictional error.[15] By extension, a decision may be affected by jurisdictional error where it is irrational, illogical or not based on findings or inferences of fact supported by logical grounds.[16]
[15] SZMWQ v Minister for Immigration [2010] FCAFC 97; (2010) 272 ALR 59, [125] (Rares, Besanko and Flick JJ); SFGB v Minister for Immigration [2003] FCAFC 231; (2003) 77 ALD 402, [19] (Mansfield, Selway and Bennett JJ).
[16] Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30 at [36]-[37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [130]-[139]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Relatedly, a number of principles relevant to adverse credibility findings were referred to in the parties’ submissions as follows:[17]
[17] Citing AEH16 & Anor v Minister for Immigration & Border Protection [2019] FCCA 34, [87]-[90].
a)while findings as to credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review;
b)the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae;
c)in each case, it is necessary to analyse what the decision-maker has decided;
d)without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis;
e)a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the relevant decision was not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn;
f)jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims;
g)unwarranted assumptions by a decision-maker as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the decision-maker to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it;
h)jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”;
i)findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error. In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN,[18] that:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny . . .
See also BZD17 v Minister for Immigration and Border Protection[19]; Minister for Immigration and Border Protection v Sabharwal[20].
[19] [2018] FCAFC 94, [34] (Perram, Perry and O’Callaghan JJ).
[20] [2018] FCAFC 160 (Perram, Murphy and Lee JJ).
A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, it is said that “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”. More recent authority recognises that while the introduction of a requirement that the illogicality should be ‘extreme’ before error is made out is not supported by the decisions from which the principles are derived, nonetheless, a high threshold is to be imposed.[21]
[21] AWU16 v Minister for Immigration and Border Protection [2020] FCA 513, [23]-[28] (Mortimer J).
Submissions
In support of Ground 2, the applicant submitted that the Reviewer’s recommendation was erroneous by reason that it was the product of a process that was procedurally unfair, or was affected by legal unreasonableness, irrationality or illogicality. However, the broad scope of that submission was somewhat narrowed by the challenge to the reasoning process employed by the Reviewer in the ‘Findings and Reasons’ section of the Statement of Reasons: [154]-[197].
The Minister submitted that the reasons, which had considered in detail the applicant’s evidence regarding his identity as given at various stages of the visa process, as well as relevant country information on the issue, should be read fairly, and as a whole, and did not disclose error.
Resolution
In opening, counsel for the applicant stated that he was content for Ground 2 to be determined upon the parties’ written submissions, however, the issues raised in relation to Ground 2 were touched upon briefly by counsel for the Minister and then by the applicant in reply.
The applicant’s challenge under Ground 2 may be understood as having been framed by reference to the holding in Plaintiff M61/2001 that the: “IMR was bound to afford procedural fairness to the person whose claim to be a refugee was being reviewed, and was bound to act according to law by applying relevant provisions of the Act in the light of decided cases”: see also SZSNW. [22] So much must be accepted.
[22] (2014) 229 FCR 197, [8]-[9] (Mansfield J), [78]-[91] (Buchanan J), [105] (Perram J).
The Court is entitled to take the Second IMR Reviewer’s written statement of reasons as setting out the findings of fact that she considered material to her recommendation, and as reciting the evidence and other material which she considered relevant to the findings she made.[23] By extension, the reasons may be taken as representing what the Reviewer herself considered to be important and material. For that reason, I also accept that what is present — and what is absent — from the reasons may enable the Court on review to find error.[24]
[23] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [10], [34], [68].
[24] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [44], [69]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.
The particular to this ground of review was confined to the finding that the Reviewer had not been satisfied that the applicant was born in Iraq. This finding was expressed in the introductory paragraph given by the Reviewer in providing her statement of Findings and Reasons at [154]:
The claimant arrived at Christmas Island undocumented. He claims to be a stateless and undocumented Faili Kurd born in Baghdad, Iraq in 1984, who moved to Iran with his parents and older siblings between 1989 and 1991. Based on his evidence that his parents and older siblings did not speak Arabic, his scant knowledge of his family’s history in Iraq and his assertion that Iraq was not his country, I am not satisfied that the claimant was born in Iraq and have discounted it as a possible country of reference against which to assess the claimant.
By that introduction, three substantive reasons were given as to why the Reviewer had not been satisfied the applicant was born in Iraq. First was that his parents and siblings did not speak Arabic. Secondly, the Reviewer attached weight to the applicant’s scant knowledge of his family history. Thirdly, reliance was placed upon the applicant’s evidence that Iraq was not his country. The applicant submitted that each of those reasons was based on unwarranted assumptions, a misunderstanding of the applicant’s evidence, and/or a failure to give proper, genuine or realistic consideration to significant matters. It is accordingly necessary to it best address each of those matters in turn.
Arabic
The applicant submitted that there were two problems with the Reviewer’s ‘assertion’ that the applicant’s evidence was that his parents and older siblings did not speak Arabic. First it was said that that was not what the applicant had said. Secondly, was that the Reviewer had assumed that because many Faili Kurds from Baghdad spoke Arabic, so too must the applicant’s parents and older siblings.
No transcript was relied upon in this Court as to the evidence given by the applicant before the Reviewer or at any earlier stage of the matter.
Arabic was first mentioned at [28], where the Reviewer said “Asked what language his parents spoke, the claimant said Kurdish and that only his father knew Arabic but not his mother or the claimant or his siblings” At [42] (7th bullet), the Reviewer, having listened to a recording of an interview held with the applicant at Christmas Island on 23 May 2011, recorded that the applicant “He said several times that he could not go to Iraq because he did not speak Arabic, though his parents did”.
Contextually, at [69], the Reviewer considered this evidence:
The claimant said he was the youngest child in his family; that his siblings did not go to school in Baghdad and that he remembered nothing of his life in Baghdad. He said the family spoke only Faili Kurdish. While his father spoke some words of Arabic, the others only prayed in Arabic. I pointed out that many Faili Kurds from Baghdad spoke Arabic. He said this was the case for those who had the opportunity to be in the community and be educated.
The applicant submitted that it was implicit in the assertion that “many Faili Kurds from Baghdad spoke Arabic”, that not all Faili Kurds from Baghdad spoke Arabic. It was then complained that why the Reviewer had assumed the applicant’s family should belong to the category of Faili Kurds who spoke Arabic was not explained in the statement of reasons. It was further submitted that to say that “many Faili Kurds from Baghdad spoke Arabic” was a meaningless comparator and otherwise “so vague and imprecise it could not possibly be used as a basis to undermine the applicant’s credibility.”
Attention was then drawn to the reasons at [97], where Reviewer said:
The claimant said his parents only used the Arabic of the Koran to pray. I told the claimant that, while I might understand that, as a child who left Iraq at the age of six, he might not speak Arabic, I found it less credible that his parents, who lived in Baghdad for a long time would not speak it. The claimant said his parents grew up in Baghdad but lived among Faili Kurds and did not mix much with Arabs. I said I found this difficult to believe and pointed out that in earlier evidence he had said both his parents spoke Arabic.
It was submitted that, properly understood, the applicant’s evidence was that Arabic was used as a liturgical language while Kurdish was spoken at other times.
Next, at [126], 2nd bullet, the Reviewer had raised the use of the Arabic language in the context of exploring concerns with the applicant in relation to his claim to be an undocumented Faili Kurd who had been deported from Iraq to Iran: “While he claimed his family came from Iraq, as already indicated, I found it unusual that his parents and older siblings did not speak Arabic, that the years when he claimed his family left Iraq were not the time of mass deportations.”
After referring to country information at [141] which defined Faili as an Arabic term used to describe a group of Kurds from the Zagros Mountains straddling Iraq and Iran, at [166], the Reviewer said:
As put to the claimant at interview and set out in paragraph 125,[25] I found it unusual that neither his parents, nor older siblings, who were born and grew up in Iraq, spoke Arabic. While I might accept that the claimant himself may not speak Arabic if, as he claimed, he was 5-6 years old when he left Baghdad, I do not find plausible that, even if his family lived in an area of the city inhabited by other Faili Kurds, his parents and older siblings would not know Arabic beyond using it to pray.”
[25] It was common ground that the Reviewer’s reference to [125] was an error and was an intended reference to [126]. Similar errors appear elsewhere in the Reasons.
I agree in the Minister’s submission that the Reviewer in fact observed that it was “unusual” that neither the applicant’s parents nor his older siblings, who had been born and grown up in Iraq, spoke Arabic. The Reviewer, while accepting that the applicant himself may not speak Arabic (if he was 5 or 6 years old when he left Baghdad), did not find it plausible that, even if his family lived in an area of the city inhabited by other Faili Kurds, his parents and older siblings would not know Arabic beyond using it to pray: [166].
I accept that those observations were open to the Reviewer. Contextually, it had been the applicant’s claim that his family had originated from the capital of Iraq, Baghdad. While taking into account that his family may have lived in an area of the city inhabited by other Faili Kurds, the Reviewer found that it was “unusual” that they did not speak Arabic.
Further, the Reviewer pointed to the applicant’s earlier evidence where he had said that both his parents spoke Arabic and that this had been put to him squarely: [97].
In the Reviewer’s detailed consideration of the applicant’s evidence, coupled with the other expressed concerns regarding the evidence relating to the applicant’s identity, I accept that the Reviewer was entitled to come to the views expressed in relation to the Arabic issue.
I agree that it cannot be said that the Reviewer’s observation (that it was unusual that the applicant’s parents nor siblings spoke Arabic), was a finding of fact, or a material fact. Rather, it was no more than the Reviewer’s assessment and evaluation of the evidence as to the inherent implausibility of the applicant’s claims.[26] Considered from those perspectives, the applicant’s submissions, which complained that the Reviewer had not explained why she found it less credible that the applicant’s parents would not speak Arabic, and had not explained why she did not find it plausible that his parents and older siblings would not know Arabic beyond using it to pray, sought to elevate the scope of the Reviewer’s obligation to give reasons in relation to those matters in a way that was unwarranted. It will also be recalled that a part of the applicant’s narrative had been that his parents had returned to Iraq.
[26] See e.g., Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 868, [28].
Not every instance of illogicality or irrationality in a decision-maker’s reasoning will give rise to error of law. Of central importance to the question is whether the suggested error involves an issue of jurisdictional fact.[27] In the present case, the applicant had pressed his claim to be assessed on the basis that Iran, not Iraq, was his receiving country and the Reviewer had adopted precisely that course. Further, the fact that the Court might not have reasoned in the same manner as the Reviewer is not always a basis for the Court to find error.[28]
[27] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [130]-[132] (SZMDS).
[28] SZMDS at [78] and [131].
The applicant was afforded an opportunity to satisfy the Reviewer that he had been born and lived with his family in Baghdad, Iraq: [22]-[23]. The Reviewer was not so satisfied. In my view, it was open to the Reviewer to reach the conclusion that it was unusual the applicant’s mother and older siblings did not speak Arabic.
Scant knowledge of family history
The Reviewer’s finding that the applicant had scant knowledge of his family’s history in Iraq was said to be a misrepresentation of his evidence. At interview, the applicant had said that he moved to Iran when he was 5 or 6 years old in 1990-1991: [68], cf [23]. It was then said that the applicant could not reasonably be expected to recall his life in Iraq.
In recounting the matters discussed at interview, the Reviewer said at [68]-[69] as follows:
In a discussion about his background, the claimant confirmed he was born in Baghdad in 1984 and was brought to Iran by his parents when he was 5 or 6 years old because of some religious issues. In Iraq his parents had been street vendors selling cigarette and had a hard life. Like other Faili Kurds, they had no rights to be registered legally. He said he could not be expected to know which city in Iraq they lived as he was only 5 or 6 years old at the time. When I pointed out that he could have asked his parents when he was older, the claimant said his father generally said he had been doing labouring in Baghdad Kerbala and some villages.
The claimant said he was the youngest child in his family; that his siblings did not go to school in Baghdad and that he remembered nothing of his life in Baghdad . . .
Associate:
Date: 19 November 2020
[18] [2016] FCA 516 (in a passage approved in CQG15 at [60]). (Citations omitted)
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