DZAAN v Minister for Immigration
[2012] FMCA 37
•25 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZAAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 37 |
| MIGRATION – Application for judicial review of finding of Independent Merits Reviewer regarding application for protection in Australia – Refugees Convention – applicant claims to be stateless Faili Kurd whose country of last permanent residence was Iran – claim for refugee status because of persecution arising from religion, ethnicity and imputed political beliefs – claim reviewer failed to consider a discrete integer of the applicant’s claim – whether such integer clearly articulated – allegation of denial of procedural fairness – applicant not able to call possible corroborative evidence from his wife – practical injustice – declaration of error made. |
| Migration Act 1958 (Cth), ss.36(2), 476, 477(1) |
| Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 SZQGP v Minister for Immigration [2011] FMCA 701 Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte applicants S134/202 (2003) 211 CLR 441 Diatlov v Minister for Immigration & Multicultural Affairs (1999) 167 ALR 313 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 SZHWI v Minister for Immigration & Multicultural Affairs [2007] FCA 900 MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FMCA 1454 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 W148/OOA v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 SZILP v Minister for Immigration & Citizenship [2007] FMCA 592 W360/01A v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 449 Re Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 Re Minister for Immigration & Multicultural Affairs: ex-parte Applicant S20/2002 (2003) 198 ALR 59 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 DZABG v Minister for Immigration [2012] FMCA 36 Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168 Wiseman v Borneman [1971] AC297 at 308 Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485 SZDGC v Minister for Immigration & Citizenship (2008) 105 ALD25 Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] Tran v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 126 FCR 199 |
| Applicant: | DZAAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | DOMENIC LENNON IN HIS CAPACITY AS MERITS REVIEWER |
| File Number: | DNG 20 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 27 October 2011 |
| Date of Last Submission: | 27 October 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 25 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid |
| Counsel for the First Respondent: | Mr d’Assumpcao |
| Solicitors for the First Respondent: | Australian Government Solicitor |
DECLARATION
In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent erred by failing to afford the applicant procedural fairness by denying the applicant the opportunity to present his case at the hearing.
ORDERS
The first respondent pay the applicant’s costs fixed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 20 of 2011
| DZAAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| DOMENIC LENNON IN HIS CAPACITY AS MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant arrived in Australia, by boat, reaching Christmas Island on 21 July 2010. He did not have valid travel documents. As Christmas Island is excised from the Australian migration zone, he is to be regarded as an offshore entry person, as defined by section 5 of the Migration Act 1958 (Cth) (hereinafter referred to as “the Act”).
On 22 August 2010, the applicant was interviewed by officers of the Department for Immigration & Citizenship (hereinafter referred to as “the Department”). In this interview, he indicated that he was born in Sarob Nogil, in the province of Ilam, in Iran. He indicated that he was a Faili Kurd by ethnicity and a Shia Muslim by religion. He claimed to be stateless.
On 4 September 2010 the applicant requested to be assessed by the Department as to his refugee status. In a statement supplied in support of this application, the applicant stated he feared returning to Iran, because as a Faili Kurd, he was hated by the Iranian government.
The applicant’s parents were both born in Iraq but were expelled to Iran in the 1980s during the Iraq/Iran war. As a consequence, it is the applicant’s position that he is an undocumented Faili Kurd, who has been living illegally in Iran. He claimed to fear persecution, at the hands of the Iranian authorities, as a result of his Faili Kurd ethnicity.
In his initial entry interview, the applicant had expressed a fear that if he returned to Iran, without identity documents, he might be executed or hanged. He was also fearful that he might be identified as a spy. These fears were exacerbated by the applicant’s apprehension that he was liable to be recognised as a Kurd by Iranian authorities.[1]
[1] See Casebook at page 19
In a statutory declaration, submitted in support of his application for refugee status assessment, the applicant reiterated his concerns regarding his lack of identity and that, as a Faili Kurd, he was hated by the government. He stated as follows:
“I also fear returning to Iran because I left the country illegally and obtained a false document (passport) to leave the country. This would be considered a crime and I will be jailed for a very long time and even killed if I return to Iran.”[2]
[2] See Casebook at page 45
The applicant’s claim for refugee status depends on him satisfying the definition of “refugee”, provided by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) which provides that a “refugee” is a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
On 20 September 2010, an officer of the Department determined that the applicant did not meet the necessary definition of refugee and accordingly was not a person to whom Australia owed a protection obligation under the Refugee’s Convention. The second respondent, Mr Lennon conducted an independent merits review (hereinafter referred to as the “IMR”) of this decision.
Prior to the IMR, the applicant’s lawyers and migration agents provided a further submission in which he reiterated his concerns that he was liable to be targeted by the Basij[3] because of his Faili Kurd ethnicity. In addition, the following submission was made:
“The Iranian government does not allow entry back into Iran if a refugee has been living outside Iran; therefore, our client would not be able to return.”[4]
[3] The Basij is a paramilitary militia in Iran. It is engaged in internal security in Iran.
[4] See Casebook at page 99
On 5 April 2011 Mr Lennon interviewed the applicant, in the presence of his representative, Ms Tangsilsat in Darwin. The applicant was assisted by a Kurdish interpreter. I have been provided with a transcript of the interview.[5]
[5] See affidavit of Rebecca Sharkey filed 20 September 2011
In this interview, Mr Lennon asked the applicant if there was anything in addition to matters pertaining to his national status and ethnicity as a stateless person and a Faili Kurd respectively, which the applicant wished to raise in respect of his claim for protection.
At this stage, the applicant indicated that he was concerned about the political involvement of his father-in-law. It was asserted that this person had been involved with the Green Movement in Iran. The Green Movement was established in Iran following the disputed election return in that country in 2009.
In this interview the applicant indicated his father-in-law was involved in the management of the Green Movement and had been compelled to go into hiding as a result. It was said his life was in danger. The applicant also stated that if his father-in-law was arrested, he (the applicant) would be linked to his father-in-law’s political activities.
During the course of the interview, Mr Lennon expressed some doubt regarding the validity of the applicant’s claim that he risked persecution as a result of the political views of his father-in-law, which might be attributed to him. In this context the following exchange took place:
“MR LENNON: No, but you were interviewed in August last year and you were invited to explain why you were scared of going back to Iran. Then a month later in September, interviewed again, invited to explain why you were scared to go back to Iran - no mention of your father-in-law and the problems that posed for you. Why is that?
INTERPRETER: That was my feeling that the first incident I have mentioned would be sufficient to complete the find.
MR LENNON: Still, it's obviously a very important matter to bring forward today.
INTERPRETER: My wife arrived after me. She's the best evidence that can provide to you. That's the genuine story I'm trying to present.
MR LENNON: Yes. Look, in fairness to you I have to raise issues that occur to me from time to time to give you a chance to respond to them. It's a big step to leave one's country and embark on a hazardous journey over to the other side of the world. You would have been thinking along the way of what you were going to tell the Australian officials when you arrived. You were interviewed shortly after you arrived and then a month later and you were invited by the officer to explain the reasons why you were scared of going back to Iran. I know that, because I've listened to those interviews. You didn't make any mention of the problem you faced as a result of your family politics. That would raise a doubt in my mind as to whether or not it's true, because I'd expect people would explain to the officials why they didn't want to go back. You also filled out a statutory declaration - no mention of your father-in-law.
INTERPRETER: Since day one I said that I am married; I have no paperwork - legal paperwork - to show that my marriage is registered. If I told officials at day one that my father-in-law was like this, in trouble, and my wife is like that, I have a wife but you wouldn't believe it. I would like to express that my wife is here. She is evidence and the story is genuine. It happens to her. You can ask her as well.
MR LENNON: So you didn't tell the officials because there was no way of proving that you were married?
INTERPRETER: Yes.”[6]
[6] See Transcript of 5 April 2011 at page 22
It is common ground between the parties that Mr Lennon did not take evidence from the applicant’s wife. Ultimately, Mr Lennon determined that the applicant did not meet the criterion for a protection visa set out in section 36(2) of the Act. Accordingly, he recommended to the first respondent that the applicant not be recognised by him as a person to whom Australia owed a duty of protection under the Refugee’s Convention.
The applicant was provided with the IMR on 10 May 2011. He commenced proceedings, in this court, on 14 June 2011. It is accepted by all concerned that this was within the timeframe specified by section 477(1) of the Act, which is 35 days.
In his application, the applicant seeks a declaration that Mr Lennon’s report is affected by legal error and injunctive relief to prevent the Minister and Officers of the Department from relying upon it.
In essence, the applicant asserts that Mr Lennon’s report is vitiated by two distinct incidents of legal error. Firstly, it is asserted that the IMR failed to deal with an essential integer or component of the applicant’s case,[7] namely his claim that the Iranian government does not allow entry back into Iran of a refugee, who has been living outside that country.
[7] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
This is the position of the applicant, as a Faili Kurd non-national, previously residing in Iran. Accordingly, the applicant asserted that he would not be able to return to Iran. It is asserted that Mr Lennon did not consider this aspect of the applicant’s claims and this is sufficient to establish jurisdictional error.[8]
[8] See Dranichnikov vMinister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24]
Secondly, it is asserted that the IMR failed to accord the applicant procedural fairness and so denied the rules of natural justice by not allowing him the opportunity to present his case at hearing through not allowing his wife to be called to give evidence on his behalf.
The first respondent concedes that the IMR is amenable to judicial review and is within this court’s jurisdiction pursuant to section 476 of the Act following the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[9]
[9] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
Pursuant to section 476, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions, as does the High Court pursuant to paragraph 75(v) of the Constitution. This provision grants the High Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
In his application, filed 14 June 2011, the applicant seeks a judicial review of Mr Lennon’s report on two bases:
“Ground 1
The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
The particulars of which are as follows:
The Second respondent failed to address one of the claimed bases of the Applicant’s fear of persecution and/or to consider and/or deal with an integer of the claims and/or a relevant consideration and/or the case as put and/or a central element of the Applicant’s claims being the claim that the Iranian government does not allow entry back into Iran if a refugee has been living outside Iran ( ipso facto the position of the Applicant as a Faili Kurd non-national previously resident in Iran) so the Applicant would not be able to return to return to Iran .
Ground 2
The decision of the Second Respondent was made in breach of an essential pre-condition to its jurisdiction or the exercise of its power to recommend that the Applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees and/or it failed to observe the requirements of procedural fairness and/or it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.
The particulars of which are as follows:
The Applicant requested that his wife be called as a witness but the Second Respondent “decided not to do so having taken the view that the claimant’s failure to mention this claim until his interview with me together with the lack of a plausible explanation for that failure indicated that it was a concoction and that the presumably corroborative evidence from the claimant’s wife would merely corroborate a concoction”. This approach gives rise to a denial of procedural fairness and/or a breach of the rules of natural justice by denying the Applicant the opportunity to present his case at the hearing (there being no statutory code in operation concerning the calling of witnesses and consideration of whether to do so) and the common law rules of natural justice applied.”
A third ground, based on ostensible bias, was expressly abandoned by the applicant at the outset of the hearing before me on 27 October 2011.
It is the function of the court to consider whether Mr Lennon’s report reveals any error of law, including a denial of procedural fairness, in its reasoning or in the procedures followed before its making. The relief sought in the application can only be granted if I am satisfied that Mr Lennon made such an error. It is not my function to engage in a merits review or make my own findings as to the applicant’s refugee status.[10]
[10] See SZQGP v Minister for Immigration [2011] FMCA 701 per Smith FM at [4]
The Independent Merits Review
In the IMR, Mr Lennon summarised the contents of the applicant’s interview, made on his entry to Australia. In this interview, the applicant claimed that he had left Iran because, as a Faili Kurd, he had no rights or citizenship in Iran; was ineligible to own land; and had no access to education and health care. He personally had been often forced into hiding by the police and was fearful of the Basij, the Iranian militia.
In interview with Mr Lennon, the applicant stated that he had no nationality and was caught between Iraq and Iran because he was a Faili Kurd. He reiterated he lacked rights in Iran and stated that he had been exploited in his employment because he was a Faili Kurd. Fellow workmates of his had been arrested and had disappeared, when they had disputed with the employer and questioned their significantly reduced wages.
At interview with Mr Lennon (but not in the initial entry interview) the applicant raised concerns about his father-in-law’s political views and profile. In particular he stated that his father-in-law was part of the “Green Movement”[11] which had come into being following the disputed 2009 election. The applicant stated that his father-in-law was an organiser for the Green Movement.
[11] The Green Movement was a protest organisation which originated in Iran in 2009 following the disputed election in that country.
The applicant stated that he personally was not involved in the Green Movement but was subject to arbitrary arrest because of his family connection to his father-in-law. He stated that he had restricted his movements because of his father-in-laws political views. Mr Lennon noted that this issue had not been raised by the applicant either in his first entry interview or subsequent statutory declaration.
Mr Lennon noted that the applicant had been employed as a farm labourer; brick layer; and ceramic tiler for a number of years. The applicant had never been detained or otherwise seriously harmed in Iran.
Because of the lateness of the applicant’s raising of the issue of his fear of being targeted because of his father-in-law’s political views, Mr Lennon had cause to doubt the applicant’s credibility. In this context Mr Lennon formed the view that the applicant was “inventing a political profile to enhance his chances of success on review.”[12]
[12] See Casebook at paragraph 70
Mr Lennon specifically rejected the applicant’s two explanations for the lateness in raising this claim. Firstly that the applicant had believed that the information he had already provided regarding the treatment of Faili Kurds in Iran would be sufficient to found his claim for asylum; and secondly, he was fearful that he might jeopardise his case by making claims, which he could not prove, particularly that he was married and so was able to establish the existence of his father-in-law.
However, in interview with Mr Lennon it was the applicant’s position that since his wife had now joined him in Australia, he was in a position to prove his marriage and connection to his father-in-law and so make the claim of imputed political opinion. In this context, Mr Lennon determined as follows:
“I find that the claimant has added the imputed political opinion claim to his claims following the delegate’s decision to refuse his application in the hope that it would increase his prospects of success. I note the claimant’s request that I take evidence from his wife in relation to her father’s political activities. However, I decided not to do so, having taken the view that the claimant’s failure to mention this claim until his interview with me together with the lack of a plausible explanation for that failure indicated that it was a concoction and that presumably corroborative evidence from the claimant’s wife would merely corroborate a concoction.”[13]
[13] See Casebook at paragraph 71
Mr Lennon had access to country information concerning Iran, particularly regarding the status of Faili Kurds in that country. Mr Lennon summarised this information as follows:
“I accept that the independent country information indicates that there is discrimination against Faili Kurds and other displaced persons in Iran, especially for those who do not hold official documentation. This discrimination is manifest in limitations on access to registration, property ownership, education, health, employment and other economic activities. When viewed cumulatively it arguably constitutes persecution.”[14]
[14] See Casebook at paragraph 81
Although Mr Lennon doubted the applicant’s credibility in respect of his father-in-law’s political profile and statements by him regarding his documentary status in Iran, Mr Lennon found that the applicant was a stateless Faili Kurd; as such his status was as an illegal immigrant in Iran; and accordingly his prospects of employment in that country had been and continued to be limited.[15]
[15] See Casebook at paragraph 79
In all these circumstances, Mr Lennon accepted that the applicant had experienced discrimination in Iran on the basis of his nationality (being an imputed Iraqi); his membership of a particular social group (being an undocumented displaced person of Iraqi origin); and because of his race (Faili Kurd). However, he specifically rejected that the applicant had suffered persecution, within the terms of the Refugees Convention, for any of these specific reasons. Mr Lennon’s specific finding was as follows:
“The claimant’s particular circumstances do not support the finding that he has a well-founded fear of persecution in Iran by reason of the two of the three Convention nexuses relied upon at the interview with me and accepted by me, namely his nationality (imputedly Iraqi), membership of a particular social group (being undocumented displaced persons of Iraqi origin) and his race (Faili Kurd). The third nexus, imputed political opinion, has been rejected. While general country information indicates that stateless Faili Kurds are exposed to the risk of a number of forms of discrimination which may in combination amount to persecution I am not persuaded, on the totality of that information and the information relating to the claimant’s own circumstances, that the claimant, returning to his home in Sarob Nogil, faces a real chance of persecution.”[16]
[16] See Casebook at paragraph 83
In respect of the applicant’s claims that he was liable to persecution, in the event he returned to Iran, because of the circumstances in which he had left that country, Mr Lennon found as follows:
“I note that in his first entry interview the claimant expressed a concern that if he goes back to Iran without documents he might be executed as a spy and that that risk was heightened by the fact that he is a Kurd. In their submission of 4 November 2010 his representatives expanded on that claim. This raises the issue of imputed political opinion (anti-government and pro-Western government views) and particular social group (failed asylum seekers). However, despite being invited by me in his interview on 5 April 2011 to identify any grounds upon which he claimed to fear persecution he did not raise this Convention claim.
I have nevertheless considered whether the claimant is exposed to a real chance of persecution by virtue of being a failed asylum seeker. Independent country information is limited but suggests that failed asylum seekers who have publicly expressed dissatisfaction with events in Iran may face increased risks should they return to Iran.
Having considered the country information on this issue and the claimant’s circumstances (including the fact that I have rejected his claim to be associated by marriage with the Green Movement) I do not accept that there is a real chance that he would be persecuted by reason of being a failed asylum seeker returning to Iran from the West or by reasons of being a failed asylum seeker who is a stateless Faili Kurd. While asylum seekers who have a high profile or have engaged in anti-regime demonstrations or other activities may be at risk I do not accept that the claimant is at risk by virtue of being a returnee from the West or a failed asylum seeker.
I accept that if the authorities become aware that he departed Iran irregularly (on a false passport) the claimant would be liable to prosecution under the relevant legislation. However this would be the application of a law of general application rather than persecution of the claimant by reason of a Convention attribute.”[17]
[17] See Casebook at paragraphs 87-90
Accordingly, Mr Lennon found that the applicant did not have a well founded fear of persecution in Iran on the basis of any of the following matters, either individually or in combination:
·Nationality (imputed Iraqi);
·Membership of a particular social group (undocumented displaced persons of Iraqi origin, who were returnees from the west and failed asylum seekers);
·Race (Faili Kurd);
·Imputed political opinion.
For all these reasons, Mr Lennon recommended that the claimant not be recognised as a person to whom Australia owed protection obligations pursuant to the Refugees Convention.
The appeal grounds
a) Ground one – the applicant would be refused re-entry to Iran
It is the applicant’s submission that Mr Lennon failed to consider an essential integer or component of the applicant’s claim for asylum in Australia, namely that he would not be able to re-enter Iran because the Iranian government did not allow a refugee, who had been living outside of Iran back into the country.
This submission was specifically made by the applicant’s lawyers and migration agents in a submission forwarded to Mr Lennon on 4 November 2010. It is submitted that Mr Lennon has either misconstrued or overlooked this submission and, as a consequence, has failed to exercise the jurisdiction conferred upon him.
The High Court has held that it is a jurisdictional error for a decision maker to misconstrue or overlook a visa criteria arising under the Act. In particular, “a decision maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.”[18]
[18] See Re Minister for Immigration & Multicultural & Indigenous Affairs and Anor; ex parte applicants S134/202 (2003) 211 CLR 441 at [85]
Essentially, it is the applicant’s submission that Mr Lennon has given no consideration whatsoever, either active or implied, to his submission that he is not able to return to Iran because he has lived outside that country and is a stateless person.
In support of his contention, counsel for the applicant relies on the description of the review function provided by Allsop J in Htun v Minister for Immigration & Multicultural Affairs[19] as follows:
“The requirement to review the decision [pursuant to the provisions of the Act] requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the jurisdiction embarked upon. The claims or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration… It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
[19] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
i) The applicant’s submissions in detail
Mr Gibson, counsel for the applicant, places significant emphasis on the fact that Mr Lennon accepted and made a positive finding of fact that the applicant, as a result of his Faili Kurdish ethnicity and his status as a stateless person, had been subject to significant levels of discrimination, whilst he had lived in Iran.
It is in this context that it is submitted the failure of Mr Lennon to consider the discrete integer of the applicant’s claim, regarding his alleged inability to re-enter Iran, was particularly significant as, if this aspect of the case had been properly considered, it might have “tipped the balance” in favour of the applicant being granted refugee status, when all his other claims for protection were considered cumulatively with it.
In this context, Mr Gibson relies on the decision of Diatlov v Minister for Immigration & Multicultural Affairs.[20]The applicant in the case was an ethnic Russian who had resided in Estonia. He claimed he would be refused re-entry to that country because he was not recognised as a citizen of Estonia.
[20] Diatlov v Minister for Immigration & Multicultural Affairs (1999) 167 ALR 313
Mr Gibson relied on the following passage from the case:
“As I understood Mr Braham’s alternative argument, the doubt as to whether the applicant could re-apply for a residency permit was relevant to the first of the two cumulative conditions.[21] That is, the inability of the applicant to re-enter Estonia (assuming he was unable to do so) was an element in the discrimination visited upon ethnic Russians in Estonia, including the applicant, by reason of their inability to gain citizenship…”.[22]
[21] These two conditions were firstly the applicant concerned was outside his country of habitual residence owing to a well-founded fear of persecution and secondly such a person was unwilling to return to that country because of such fear.
[22] Ibid at [35]
It should however be noted that Sackville J did not specifically determine this issue – the issue being whether a refusal of re-entry to a person to his former place of habitual residence could amount to discrimination. As I understand it, Mr Gibson’s submits that the issue remains undetermined and thus it is theoretically open for his client to argue that, if it is, in combination with Mr Lennon’s finding that it is arguable that the discrimination previously perpetrated on the applicant, in Iran, in the areas of “registration, property ownership, education, health, employment and other economic activities” might “cumulatively” constitute persecution, a failure to consider this issue (re-entry) in conjunction with the other established areas of discrimination amounts to a failure to exercise jurisdiction.
Accordingly, it is Mr Gibson’s argument that the applicant’s inability to re-enter Iran was an element in the discrimination visited upon undocumented stateless Faili Kurds and this was not considered by Mr Lennon, in an aggregate sense, with the other discrimination perpetuated against his client (and others sharing his ethnicity) in Iran and accordingly the finding which Mr Lennon made regarding the inapplicability of the Refugees Convention to the applicant involved a misapplication of the law.
More specifically, it is Mr Gibson’s submission that Mr Lennon did not deal with this aspect of the claim at all. This was notwithstanding the fact that the country information, to which Mr Lennon had access stated, inter alia:
“An asylum seeker who is not Iranian would not normally be allowed to re-enter. We are not able to comment on differences in the application of penalties or the scrutiny towards failed asylum seekers.”[23]
[23] See Casebeook at 145 – DFAT country information dated 20 December 2010
Mr Gibson is critical that Mr Lennon has not specifically referred to this country information nor to the letter from the applicant’s solicitors and migration agents of 4 November 2010 in the finding section of his report to the Minister. As such, it is contended that it is self explicit there has been no express or implicit consideration of this integer of the applicant’s claim, which has been “squarely” advanced.[24]
[24] See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
It is further submitted that the failure of Mr Lennon to consider this component of the applicant’s case has not been “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.”[25]
[25] See NABE (ibid) at [63]
Rather, it is submitted that the failure to consider the issue of the applicant’s ability to return to Iran was an essential and independently standing component of his case, which required “active intellectual consideration.”[26]
[26] See MZXLB v Minister for Immigration & Citizenship [2007] FCA 1588
In this regard, Mr Gibson relies on WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[27] where the Full Court of the Federal Court said as follows:
“If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by section 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.”
[27] See WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630 at 640-641
Given the contents of the letter of 4 November 2010, it is the applicant’s contention that the issue of his inability to return to Iran had been put with sufficient clarity, so as to require Mr Lennon to consider the matter. It is said that Mr Lennon did not ask the question as to whether or not he considered the applicant could or could not return to Iran and, as he did not, the IMR failed to complete its jurisdictional task.[28]
[28] See SZHWI v Minister for Immigration & Multicultural Affairs [2007] FCA 900 at [15] per Allsop J
Mr Gibson fairly makes the concession that Mr Lennon’s reasons are thorough and comprehensive and include extensive recital of country information regarding the situation in Iran for stateless Faili Kurds. However, it remains his submission that Mr Lennon has failed to consider relevant material in this case.
In particular, he would categorise the process of consideration required of Mr Lennon, in respect of the issue of the applicant’s ability to return to Iran, as being characterised by an active intellectual process, which is not satisfied by a mere regurgitation of material or recital of facts.[29]
[29] See MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2006] FMCA 1454 at [41] – [44] per Riley FM
The salient matter in the present case being that there is nothing in Mr Lennon’s findings and reasons, which indicate that he had in any way embarked upon the process of actually fixing his mind upon the applicant’s claim that he would be denied re-entry to Iran and the consequences this would have for him as a stateless and undocumented Faili Kurd.
ii) The respondent’s submissions in detail
The respondent submits that the issue of the applicant’s potential return to Iran has been adequately examined by the reviewer, if his reasons as a whole are considered and given a fair reading. It is submitted that Mr Lennon subjected each of the applicant’s claims to a close analysis, which is relevant given that the specific claim the applicant would be precluded from returning to Iran, by reason of his stateless status, was not a claim which was “expressly” articulated by the applicant.
In particular, Mr d’Assumpcao, counsel for the respondent, makes reference to the fact that, in his entry interview, the applicant indicated that he might be executed as a spy on his return to Iran. In interview, Mr Lennon invited the applicant to expand upon this aspect of his claim, an invitation which the applicant did not pursue.
Mr d’Assumpcao points to the specific finding made by Mr Lennon that he did not accept that there was “a real chance that [the applicant] would be persecuted by reasons of being a failed asylum worker returning to Iran from the West or by reason of being a failed asylum seeker who is a stateless Faili Kurd.”[30] Whilst noting the contents of the solicitor’s letter of 8 April 2011, Mr d’Assumpcao argues that the applicant was given every opportunity to advance any aspect of his case pertaining to difficulties which may arise to him in respect of returning to Iran.
[30] See Casebook at page 150
In particular, the reviewer accepted that the applicant was stateless. Although he doubted the applicant’s contention that he had left Iraq illegally, Mr Lennon turned his mind to the consequence of the applicant being prosecuted on the basis that he had left Iran on a false passport. In such circumstances, the reviewer found that the applicant would be liable for prosecution under the general Iranian law rather than to persecution for a convention reason.
Necessarily the finding that the applicant would be prosecuted by the Iranian authorities for leaving Iran illegally, not withstanding his prima facie appearance of statelessness, presumes that he would be allowed to re-enter that country. As such it is a finding which subsumes any requirement to consider the more generic issue of the implications of statelessness for the applicant.
Mr d’Assumpcao concedes that Mr Lennon perhaps could have dealt with the issue more clearly. In this regard, he relies on the cited monitory principle in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[31] namely:
“… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised under over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the decisions-maker, upon proper principles into a reconsideration of the merits of the decision.”
[31] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
Accordingly, it is the respondent’s submission that the reviewer must be taken to have impliedly rejected the applicant’s contention that he would not be allowed to return to Iran, given the level of consideration which had been given other aspects of the applicant’s claim, particularly the risk that he would be executed as a spy or prosecuted for illegally exiting the country.
It was also submitted that Mr Lennon had considered the implications of the applicant’s allegedly illegal mode of departure from Iran. In this context he found the applicant might be liable to prosecution under a law of general application rather than for any Convention related reason.
As such, it is submitted that it is the case that the reviewer found that the applicant, whose former country of residence was Iran, would be able to return to that country. Accordingly, it is submitted that no error of law has been demonstrated.
Ground 2 – procedural unfairness – refusal of reviewer to take evidence from the applicant’s wife
It is clear that Mr Lennon elected not to take evidence from the applicant’s wife in regard to the claim for protection advanced by him for protection on the basis of an imputed political view arising from his relationship with his father-in-law. The reason given by Mr Lennon was that he considered that the only purpose which would be served by calling the wife was that she would corroborate the applicant’s concocted story about the issue. The implication being that he considered it inevitable that the wife too would lack credibility.
i) The applicant’s submissions in detail
It is the applicant’s position that there was a clear failure by the reviewer to accord him procedural fairness by not allowing the wife to be called. It is submitted that this amounts to a legal or jurisdictional error as the applicant has been denied the opportunity to present his proper case at hearing and so the common law rules of natural justice have been breached.
Essentially, Mr Gibson asserts that Mr Lennon has pre-judged the potential probative value of the wife’s evidence and assumed that she will not be credible.
In Mr Gibson’s submission, the wife was the best source of evidence about the possibility that the applicant might be subjected to persecution on the basis of an imputed political opinion arising through his father-in-law’s association with the Green Movement. However, the reviewer pre-judged the quality of this evidence, particularly that it might be corroborative of the applicant’s evidence, on the basis that it would “merely corroborate a concoction.”
Mr Gibson asserts that doing the best he could, in a difficult and daunting situation, the applicant made it clear to Mr Lennon the significance, from his perspective, of his wife’s evidence, when he made the following statement to Mr Lennon in the interview:
“My wife arrived after me. She's the best evidence that can provide to you. That's the genuine story I'm trying to present.”
In Mr Gibson’s submission there was nothing more the applicant could reasonably do to bring to the attention of the reviewer the importance and centrality of his wife’s evidence to his application for refugee status.
In support of his position, Mr Gibson relies on W148/OOA v Minister for Immigration & Multicultural Affairs[32] where the principle is stated that the assessment of the credibility of a witness is fundamentally a matter for the decision maker concerned.
[32] See W148/OOA v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
However, in the present case, it was asserted that there was no evidence whatsoever available to Mr Lennon on which he could found the conclusion, which he made about the wife’s lack of credibility. The only way he could have logically reached this conclusion was by personally assessing the quality of her evidence, which he did not do.
Mr Gibson asserted that considerations of procedural fairness required that a decision maker must bring an independent mind to bear on the issue to be decided – in this case the question of the wife’s credibility. He further asserted that a jurisdictional error would be established in circumstances where a decision maker based its conclusion on its own perception of a matter, which required evidence.[33] It being asserted that this is precisely what Mr Lennon had done in this particular case.
[33] See SZILP v Minister for Immigration & Citizenship [2007] FMCA 592 per Driver FM
ii) The respondent’s submissions in detail
Mr d’Assumpcao conceded that there was authority to support the applicant’s submission that the failure to allow a party to call a witness could result in denial of procedural fairness, particularly in the context of whether that witness was capable of providing corroboration for a claim for refugee status.
In particular, he drew my attention to W360/01A v Minister for Immigration & Multicultural Affairs,[34] a decision of the Full Court of the Federal Court where Carr J (with whom Lee & Finkelstein JJ agreed) said as follows:
“In my opinion, in doing so the Tribunal so misconducted itself as to have fallen into jurisdictional error. It deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect, cf W412/01A v Minister for Immigration and Multicultural Affairs, and W396/01 v Minister for Immigration and Multicultural Affairs.
The Tribunal should have heard the evidence from Mr Ramezani about the appellant's illegal departure from Iran. It should have decided whether it was going to believe that evidence or not. If it did accept that the appellant had left Iran illegally, it would have had to have considered why he would have done that.” (citations omitted)[35]
[34] See W360/01A v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 449
[35] Ibid at page 456
However it is the respondent’s position that the circumstances of the present case are distinguishable from those prevailing in W360/01A. In particular, reliance is placed on the well established principle that the common law rules of procedural fairness are flexible and have no fixed content but rather must depend on the circumstances prevailing, particularly the issue at hand.
In Re Minister for Immigration & Multicultural Affairs: ex-parte Lam[36] the High Court (McHugh & Gummow JJ) observed that “the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next …”
[36] See Re Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 at [48]
In the same case,[37] Gleeson CJ spoke of a concept he entitled “practical injustice”. He said as follows:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[37] Ibid [37]
In the context, it is the submission of Mr d’Assumpcao that the applicant suffered no practical injustice by failing to call evidence from the applicant’s wife. Underpinning this submission is his assertion that a fair reading of Mr Lennon’s reasons indicates that there was nothing, which the applicant could do in a practical sense, to allay his (Mr Lennon’s) view about the overall credibility of the applicant’s account, particularly the reason which he provided for raising it at a late stage of the proceedings.
In his reasons, Mr Lennon makes comments adverse to the applicant’s credibility regarding the late raising of his claim to be at risk of persecution as a result of imputed political opinion. In particular, Mr Lennon rejected as implausible the applicant’s explanation that he had not done so earlier because firstly he considered that the information he had provided regarding the treatment of Faili Kurds in Iran would justify his claim and secondly, he did not want to risk his case by making claims, which he could not prove, given he was not in a position to establish his marriage at an earlier stage in the investigation of his claims.[38]
[38] See casebook at page 146
As such, it is Mr d’Assumpcao’s submission that Mr Lennon’s focus was firmly fixed on whether the applicant could explain, to Mr Lennon’s satisfaction, why he had raised the late claim. It is further submitted that the transcript of the interview between Mr Lennon and the applicant indicates that Mr Lennon raised with the applicant his concerns about the late raising of issues to do with the applicant’s father-in-law and, on more than one occasion asked him for an explanation about it.
In all these circumstances it is the submission of the first respondent that considerations of “practical injustice” required Mr Lennon to go no further.
In this context, reliance was placed on the dicta of McHugh and Gummow JJ in Re Minister for Immigration & Multicultural Affairs: ex-parte Applicant S20/2002:[39]
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.”
[39] See Re Minister for Immigration & Multicultural Affairs: ex-parte Applicant S20/2002 (2003) 198 ALR 59 at [49]
It is said by counsel for the first respondent that Mr Lennon’s mind has been irredeemably prejudiced against the applicant’s explanation and as such he was entitled to reach the conclusion that it would serve no purpose for him to take evidence from the applicant’s wife. Accordingly, it is asserted that Mr Lennon’s decision cannot be categorised as being either irrational or illogical and so his election not to call evidence from the applicant’s wife is not per se a denial of natural justice and so a jurisdictional error.
It is Mr d’Assumpcao’s further submission that Mr Lennon was under no obligation to provide commentary to the applicant in respect of his view about the status of his evidence, as he went along. In this regard he relies on the following statement of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs:[40]
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment.”
[40] See SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 at paragraph 48
Conclusions
It is a jurisdictional error for an administrative tribunal to fail to consider an aspect of a claim for refugee status, which, if accepted, would have supported the applicant’s claim for protective status.
In the context of cases involving claims for asylum, the principle was expressed as follows by the Full Court of the Federal Court in Dranichnikov v Minister for Immigration and Multicultural Affairs:[41]
“The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.”
[41] Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]
This is the issue upon which ground one of the applicant’s appeal turns. It is his case that Mr Lennon has failed to deal with an essential aspect of his claim for asylum, namely that as the Iranian government will not allow his entry back into Iran because he is a refugee, who has been living outside that country.
It is clearly the case that Mr Lennon considered many other aspects of the applicant’s claim for asylum, namely that he might be persecuted because of a nationality imputed to him; his race as a Faili Kurd; imputed political opinion; and relevantly that he was a member of a particular social group, namely displaced persons of Iraqi origins, who were failed asylum seekers.
As such, I am satisfied that Mr Lennon considered all aspects of the applicant’s case which were expressly placed before him. It is however the applicant’s position that, if Mr Lennon had turned his mind to the issue of the applicant not being able to re-enter Iran at all, because of the circumstances surrounding his departure from that country, it may have tipped the balance in favour of the applicant being accorded refugee status.
The applicable principles which apply to cases where it is asserted a jurisdictional error arise because it is said an administrative tribunal has failed to deal with an aspect of a claim which is said to be impliedly rather than expressly put are enunciated by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[42] as follows:
“The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised on the material before it…There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case are not articulated…It has been suggested that an unarticulated case must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it…The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.” (citations omitted)
[42] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]
From this passage, I take it the reviewer is required to consider all claims which appear expressly on the face of the material before him or her whether they are specifically articulated or not. However the reviewer is not required to seek out such a ground in a creative manner. He or she is not required to consider a case which is not expressly made out or which does not arise clearly on the materials before him.
In this context, the Full Court had regard to the following comments of Gleeson CJ (albeit in dissent) in S395 v Minister for Immigration and Multicultural Affairs:[43]
“Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
[43] S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 quoted in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) at [62]
In my view, Mr Lennon closely considered the various contentions of the applicant. In particular, he turned his mind to the evidence before him regarding the circumstances surrounding his departure from Iran. In this context, he dismissed the applicant’s claim that he was at risk of being executed as a spy and considered that at worst there was the possibility that he may be prosecuted for leaving Iran on a false passport.
At the RSA and IMR stage, this was the thrust of the applicant’s case – he was fearful that he would be killed or tortured because of the circumstances of his leaving Iran and significantly because he would be assumed by the Iranian authorities to be a spy. Mr Lennon rejected both of these claims on the basis of his assessment of the applicant’s credibility and country information which was available to him.
In my view, there has been a significant change in focus in the applicant’s case at this necessarily more confined and technical review stage of the process. Undoubtedly Mr Lennon’s decision and indeed the material which were a precursor to that decision have been subject to the closest scrutiny by the applicant’s legal advisors with the hope that an error can be found.
In all these circumstances, I have come to the view that to assert that Mr Lennon failed to consider an essential integer of the applicant’s case, which was “squarely” raised by him on the face of the material available is one which can only be conjured up through an act of unacceptable creativity, when the entirety of Mr Lennon’s reasons are considered.
In this context, I rely on the comments of the Full Court in Applicant WAEE as follows:
“The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”[44]
[44] WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at 641 [47]
This passage was subsequently approved by Full Court in NABE (No 2) as follows:
“Every case must be considered according to its own circumstances. Errors of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected.’ ” [45]
[45] Ibid at [63]
For the reasons provided, I do not accept that Mr Lennon misconstrued the applicant’s case by failing to consider one of its essential components which had been implicitly raised by him. However, even if I am incorrect in this conclusion, in my view, the necessity to consider this aspect of the case was rendered nugatory by Mr Lennon’s finding that the applicant might be liable to an orthodox criminal prosecution by the civil authorities in Iran, upon his return to that country.
In DZABG v Minister for Immigration[46] I dealt with a similar argument put by Mr Gibson in regards to the application of Diatlov to cases where an asylum seeker was found to have suffered some elements of discrimination within his former place of habitual residence but that discrimination, although to be abhorred, was not found to amount to persecution for a Refugees Convention reason and later, either as a consequence of the circumstances of that person departure from his country of origin or as a result of something which had occurred subsequently, such a person was either stateless or faced the possibility of being so.
[46] DZABG v Minister for Immigration [2012] FMCA 36
I said as follows:
“In my view, Diatlov is a case which must be considered by reference to its own circumstances and, as such, I should take care to avoid either unduly or artificially extending its import and application. The case (and others cited within it) highlight the difficulties arising from the historical context of the Refugees Convention and its interplay with a subsequent and significant international convention to which Australia is a signatory namely the Convention Relating to the Status of Stateless Persons.[47] A stateless person is not necessarily a refugee.
[47] Convention Relating to the Status of Stateless Persons done at New York on 28 September 1954 which came into force on 6 June 1960.
…
In my view, as the law currently stands, Diatlov is authority for the following proposition: for a stateless person to come within the definition of refugee provided by Article 1A(2) of the Refugees Convention such a person must satisfy two cumulative conditions. Firstly the person must be outside his or her country of former habitual residence owing to a well-founded fear of being persecuted. Secondly he or she must be unable to return to that country, or owing to such fear be unwilling to return to it.
Essentially the loss of nationality per se is not sufficient to satisfy the requirements arising from the Refugees Convention for protection. Article 1A(2) of the Convention should be construed as including the requirement that a stateless person, outside of his or her country of habitual former residence, must also hold a well-founded fear of persecution. That is an absolute consideration. It cannot be aggregated by some subsequently arising factor, no matter how disadvantageous to the person concerned.
In this regard the Full Court authority of Minister for Immigration and Multicultural Affairs v Savvin [48] is relevant. In that case it was held that statelessness, of itself, is insufficient to satisfy the definitions arising from the Convention. In particular Spender J described the fear of being persecuted for a Convention reason as being the “talisman of the definition” and as such applied to both categories of persons coming within the purview of Article 1A(2), namely persons with a nationality and stateless persons. Katz J was untroubled at the separation of the two categories of person within Article 1A(2) by a semi-colon.” [49]
[48] Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168 at 169
[49] DZABG v Minister for Immigration (supra) at [119] and [134] – [136]
In my view, as Mr Lennon found that the applicant was not outside his former country of habitual residence for a Refugees Convention ground, it was not necessary for him to consider whether contingent difficulties possibly arising on the applicant’s return might, in aggregate, with the incidents of discrimination to which he had been previously exposed in Iran, constitute persecution within the meaning intended by the drafters of the Convention.
For these reasons, I do not believe that the first ground of the appeal is made out. In my view, Mr Lennon’s reasons are comprehensive and deal with the all the issues of the applicant’s grounds for protection. I have however formed a different view in respect of the second ground of appeal.
The second ground of appeal relates to issues of natural justice. Mr Lennon was under an obligation to observe these rules. However these “rules” do not have a fixed content. They are not to be applied in a rigid or mechanical fashion.[50]
[50] See Wiseman v Borneman [1971] AC297 at 308
In this case, Mr Lennon determined that he would not embark upon a process of hearing evidence from the applicant’s wife because this could only amount to the corroboration of an account, which had been concocted by the applicant.
It is Mr Gibson’s submission that Mr Lennon was not entitled to reach this conclusion without himself directly assessing the credibility of the witness in question through the process of taking evidence from her and his failure to do so constitutes a breach of natural justice.
In Minister for Immigration & Citizenship v SZNSP [51] the Full Court of the Federal Court (North and Lander JJ; Katzmann J agreeing) considered the obligations residing in decision makers in refugee cases to consider corroborative evidence. In particular, they considered the dicta of McHugh and Gummow JJ in Applicant S20/2002.
[51] See Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485 at 492
In this context, reference was made to what was said by Finkelstein J in SZDGC v Minister for Immigration & Citizenship [52] where His Honour indicated that it was likely to be the case only in a “handful” of cases that a witness’ credit has been “so badly destroyed in cross examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.”
[52] See SZDGC v Minister for Immigration & Citizenship (2008) 105 ALD25
In SZNSP the Full Court said as follows:
“The case (Applicant S20/2002) does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving the attention to the corroborative evidence.
The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 does not sanction a practice of disregard in corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence.”
In this case, Mr Lennon declined to consider the potential evidence of the applicant’s wife, which may have corroborated his version of events and caused Mr Lennon to change his assessment of the applicant’s credibility. I accept that Mr Lennon was entitled to make a finding regarding the applicant’s credibility – that after all is one of the primary functions of the review process. In fact McHugh J has described findings on credibility as a function of the primary decision maker “par excellence” and as such a decision maker need not give detailed reasons as to why a particular witness was not believed.[53]
[53] See Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
In this case, Mr Lennon did not hear any evidence from the applicant’s wife. Nonetheless he provided reasons as to why he would not believe her. In so doing, in my view, it could only be said that he discharged his task of assessing her credibility on the basis of a presumption, which was unsupported by any evidence. As a consequence, I do not consider that he was in a position to discharge one of the central tasks entrust to a decision maker – that of weighing up and assessing the truthfulness or otherwise of accounts put to him. He had not placed himself in the quintessentially advantageous spot, which McHugh J ascribes to the primary decision maker.
As such, in my view, it constitutes a breach of procedural fairness or, to put it another way, it is an example of practical injustice, if a reviewer declines to allow evidence, which at least has the potential to change his view about the applicant in question’s credibility. In this case Mr Lennon was not in a position to assess or weigh the applicant’s wife’s evidence because he declined to allow it primarily because he had assumed what its content would be. However, as a matter of logic, he could not know definitively what that evidence would be. He presumed it would malignly corroborative of her husband.
Accordingly, in my view, Mr Lennon’s reasons for not taking evidence from the applicant’s wife were flawed. As North and Lander JJ point out in SZNSP, it is a jurisdictional error for a decision maker to make an adverse credibility finding and then refuse to consider corroborative evidence. It is also a matter of timing. In this case the corroborative evidence was a possibility. In a formal sense, it was not actually before the decision maker, which is in contrast to SZNSP where the decision maker made an adverse credit finding about the applicant in question and then declined to give any weight to a witness statement which ostensibly supported her position and which was available.
The problem which arises in the case is that, in one sense Mr Lennon did turn his mind to the wife’s evidence, albeit only in the sense he presumed to know what its contents would be and it would be disbelieved. However, in my view, what is required of a decision maker, in the position of Mr Lennon, arising from the dicta of SZNSP, is a process of active or intellectual consideration.[54] I do not consider that it can be deduced from the circumstances of this matter that Mr Lennon performed his task in this manner. After all the possibility that he may have found the wife to be a truthful witness, on the issue, must be regarded as at least a latent possibility in an intellectual sense.
[54] See MZXIV v Minister for Immigration and Multicultural and Indigenous Affairs (No2) [2006] FMCA 1454 at [41] – [44] per Riley FM and the cases cited by her particularly Tickner v Chapman & Ors (1995) 57 FCR 451
The applicant had indicated to Mr Lennon in interview that his wife was in Australia and presumably it was achievable that she could be made available to Mr Lennon. In that sense the circumstances in this case were different from SZNSP, where the witness in question was in China and as such the statement in question could not be said to unequivocally form corroboration of the applicant’s claim as it was at least a possibility that she herself had fabricated the document in question.
The issue was an important one for the applicant. Clearly the circumstances surrounding the IMR and the possibility that he may or may not be granted refugee status were of great moment to him personally. The application or otherwise of the rules of procedural fairness must be considered in this context.
I must consider the difficulties surrounding the applicant at the time of his interview. He was in an environment foreign to him and providing information through the medium of an interpreter. I agree with the assessment of Mr Gibson that in the applicant’s statement that his wife was “the best evidence” which he could provide and her story was “genuine” the applicant did his best to underline the significance of this aspect of the case to the reviewer and there was nothing more than this that he could to do to advance his position.
An essential aspect of procedural fairness is the opportunity to present one’s case, if full, to the decision maker concerned. The applicant’s wife was, from the applicant’s perspective, an essential part of his case. In suggesting to Mr Lennon that he should “ask her as well” and her “story is genuine” I accept that the applicant was requesting, as best he was able that his wife be called to give evidence on his behalf. Accordingly it follows that he was denied the opportunity to present his case as he wished to Mr Lennon.
As such, I accept that a practical injustice has been wrought on the applicant in the sense envisaged by Gleeson CJ in Lam. The applicant is entitled to perceive that he has not received a “fair crack of the whip”[55] in the sense that a witness whom he asserts is material to his application for asylum status has had her possible testimony rejected sight unseen by the applicable decision maker. I consider this was unfair to the applicant.
[55] See Tran v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 126 FCR 199 at 202
It may be that, if Mr Lennon had taken evidence from the applicant’s wife, it would have confirmed his suspicions about her credibility. However, he did not go the extra step required to be in a position to reach this conclusion. In a practical sense this was unfair to the applicant.
Accordingly I have found that the second ground of the appeal is made out. Accordingly there will be a declaration made that Mr Lennon failed to afford the applicant procedural fairness by failing to allow him to present his case at hearing by the calling of a witness. It must also follow that the first respondent should pay the applicant’s costs which I assess at $5,850.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 25 January 2012
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