DZAAS v Minister for Immigration - [2012] FMCA 40

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DZAAS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 40

MIGRATION – Application for judicial review of recommendation of Independent Merits Reviewer regarding applicants claim for refugee status – application for extension of time in which to bring application – applicant stateless Faili Kurd who last place of permanent residence was Iran – asserted that the reviewer failed to consider discrete integer of applicant’s claim for asylum namely his liability to persecution by reason of imputed nationality – whether such claim clearly articulated – no jurisdiction or legal error established – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 46A(2), 476, 477

Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004)144 FCR 1 MZXLB v Minister for Immigration and Citizenship and Refugee Review Tribunal [2007] FCA 1588 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 MZXIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1454 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZQEN v Minister for Immigration & Anor [2011] FMCA 648 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Applicant:	DZAAS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

DNG 26 of 2011

Judgment of:

Brown FM

Hearing date:

26 October 2011

Date of Last Submission:

26 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 Anderson

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The time for making the application provided by section 477(1) of the Migration Act 1958 (Cth) is extended up to and including 22 June 2011.
Application dismissed.
Applicant to pay the First Respondent’s costs fixed in the sum of $5,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 26 of 2011

DZAAS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant was born in 1987 in the town of Mehran, in the province of Illam, in Iran, which is near that country’s border with Iraq. By ethnicity he is a Faili Kurd. By religion he is a Shia Muslim.
The applicant claims his parents were also born in Iran but migrated to Iraq as children. During the regime of Saddam Hussein, they were forcibly returned to Iran. Although the applicant was born in Iran, it is his position that, as a consequence of his parent’s circumstances, he is stateless, being neither a citizen of Iraq nor Iran.
The applicant arrived at Christmas Island, by boat, on 26 February 2010, without valid travel documents. As his entry was not authorised by the Australian authorities, he is to be regarded as an off-shore entry person, as defined by section 5 of the Migration Act 1958 (Cth) (hereinafter referred to as “the Act”).
On 2 May 2010, with the assistance of a Migration Agent, the applicant applied to officers of the first respondent for a refugee status assessment. In a statutory declaration in support of his application, the applicant stated that he left Iran because he was fearful that he may be killed or seriously harmed by members of the Basij.[1]
[1] The Basij is a volunteer militia established in Iran in 1979 by Iyatollah Khomeini following the overthrow of the regime of the Shah of Iran. The Basij is widespread throughout Iran and is regarded as an instrument of the current government in that country.
The applicant further stated that his father had been “chased” by members of the Basij, because he was a Kurdish Faili and an illegal resident in Iran. As a consequence of this attention, he had suffered serious injury.
The applicant himself claimed that he had been exploited by his Iranian employer because, as a Kurdish Faili, he had no basic rights in Iran. He also claimed that he himself had been subject to the attention of the Basij, who had visited his work place and arrested and killed a number of his friends.
In his statutory declaration, the applicant stated as follows:
“The Basij are always targeting Faili Kurds as they believe we have no place in Iran. Kurdish Faili have no identity or rights … the Basij believe that we Kurdish Faili do not belong in Iran and should go back to Iraq. They call us ‘Arab insect eaters’. They say, ‘this is our country, what the hell are you doing here’.”[2]
[2] See Case book at page 47
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 16 June 2010 an officer of the Department of Immigration & Citizenship 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 Griffin conducted an independent merits review (hereinafter referred to as the “IMR”) of this decision.
Prior to the IMR, the applicant’s migration agent provided a further submission, in which the applicant reiterated his claim that he was at risk of persecution, in Iran, as a result of being a Kurdish Faili, who was stateless and thus living illegally in Iran. Clearly, the applicant raised a claim that he was liable to be subject to persecution, through the agency of the Basij, as a result of his ethnicity as a Kurdish Faili.
In addition, in these written submissions the applicant asserted that he could not seek the protection of the Iranian authorities. In particular, the following written submission was made:
“The applicant is not able to seek protection from the authorities, as he is fearful from a government itself. [sic] The government and the police will never help a Kurdish Faili, they do not consider the applicant, or any Kurdish Faili person as Iranian.”[3]
[3] See Case book at page 97
The second respondent interviewed the applicant on 15 October 2010, with the assistance of an interpreter fluent in both Kurdish and English. He published his report on the IMR on 2 February 2011. He summarised the applicant’s claim for protective status under the refugee’s convention as arising because he was liable to come to the adverse attention of the Basij and other Iranian government authorities because of his ethnicity as a Faili Kurdish person and as a potential returnee to Iran, from a western country, who had departed Iran illegally without legitimate identification papers.
Ultimately, the second respondent concluded that the applicant did not meet the criterion for a protection visa set out in section 36(2) of the Act. As such, he recommended to the first respondent that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugee’s Convention.
The applicant seeks judicial review of this decision and contends that the second respondent fell into error in his conduct of the IMR to such an extent that he exceeded the jurisdiction conferred upon him and accordingly his decision should be set aside and the Minister for Immigration & Citizenship be restrained from relying on it in any way.

The framework leading to the IMR

Christmas Island is excised from the Australian migration zone. As such, asylum seekers who arrive there by boat are categorised as “offshore entry persons”. Such persons are excluded from applying for protection visas, via orthodox channels, to enable them to remain in Australia pursuant to the provision of the Refugee Convention.
However, pursuant to section 46A(2) of the Act, the first respondent is granted a discretion to grant an offshore entry person such a visa if the Minister “thinks that it is in the public interest to do so …”.
As a result of this legislative discretion, invested in the Minister, an administrative protocol was devised by the Department for Immigration & Citizenship (hereinafter referred to as “the Department”), which was intended to provide specific advice to the Minister as to whether Australia’s protection obligations, under the Refugees Convention, were engaged in the case of each person who arrived in Australian territory at an excised offshore place (such as Christmas Island) and claimed to be a refugee.
This protocol envisaged two distinct and independent steps. Firstly, each such arrival would be subject to a Refugee Status Assessment (“the RSA”) by officers of the Department. Secondly, there would be an IMR of each such Refugee Status Assessment. The intention being that there would be an independent and arm’s length review of any decision made by Departmental officers, which was contrary to the applicant concerned.
The purpose of the IMR was to make a recommendation, to the Minister, about whether Australia had protection obligations to any persons claiming so. If the reviewer concerned did conclude that Australia did owe a protection obligation to any such claimant, advice would be provided to the Minister in such terms so that the discretion arising under section 46A(2) could be properly exercised.
The nature of the ministerial discretion, contained in section 46A(2) and the constraints on its exercise, were considered by the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[4] The High Court concluded that those making inquiries, on which the Minister would act, were bound to act according to law and afford procedural fairness to the persons potentially affected by the Minister’s decisions.
[4] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
In addition, in Plaintiff M61/2010E the High Court held that decisions in respect of applications for protection visas, arising at the IMR stage, were subject to judicial review in the original jurisdiction of the High Court as a consequence of 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 on 22 June 2011, the applicant seeks a declaration that the IMR was not made in accordance with law. As a consequence, he seeks an injunction restraining the first respondent and other officers of the department from relying on the recommendations of the IMR in respect of his assessment that the applicant did not meet the criterion for a protection visa provided by section 36(2) of the Act as a consequence of it having been found that Australia did not owe the applicant any protection obligations under the Refugee’s Convention.
The Federal Magistrates Court’s jurisdiction to deal with applications for judicial review in migration matters is founded on section 476 of the Act. Pursuant to this section, the court has the same original jurisdiction, in relation to migration decisions, as the High Court has under paragraph 75(v) of the Constitution.
However, the Act prescribes a timeframe for the making of such applications. Pursuant to section 477 the time for making such applications is within 35 days of the making of the decision, which is sought to be challenged.
The second respondent completed the IMR on 2 February 2011. The decision was conveyed to the applicant under cover of a letter dated 24 February 2011. In this letter, the applicant was informed of the implications arising from him personally of the High Court’s decision in Plaintiff M61/2010E in respect of the possibility of him seeking judicial review of the IMR.
Accordingly, the application herein being commenced on 22 June 2011 is out of time. Pursuant to section 477(2) of the Act, the Federal Magistrates Court may extend the time period for the institution of proceedings for judicial review, if it is satisfied that it is necessary to do so in the interests of the administration of justice.
The applicant seeks such an extension of time. This application is opposed by the first respondent. However, there is no issue between the relevant parties that the jurisdiction of this court has not been otherwise enlivened pursuant to the provisions of section 476.
The grounds of the application are as follows:
“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 it exceeded its jurisdiction and/or constructively failed to exercise jurisdiction.”
More particularly, it is asserted that the second respondent:
“… failed to address one of the claim basis of the Applicant’s fear of persecution which was actually and/or constructively before it and/or to consider and/or deal with an integer of the claims and/or constructively before it 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 claim being the claim that the Applicant feared persecution by reason of his status of being “Iraqi” as a Faili Kurd which means former citizens of Iraq and his fear of harm on the basis of his nationality and/or ‘imputed nationality’ and/or identity and/or membership of a particular social group so constituted.”
Essentially the applicant submits that the second respondent fell into jurisdictional error because he did not consider an essential integer or component of his claim namely that he was liable to persecution, in Iran, because of the nationality which would be imputed to him of being an Iraqi.
It was conceded by the applicant that consideration had been given, in the IMR, to the possibility of the applicant suffering persecution in Iran as a result of his race – Faili Kurd – and his membership of a particular social group – namely a returnee from a western country, who had departed Iran illegally and who lacked legitimate identity documents.
The criticism is that the IMR has given no consideration to this issue of imputed nationality – the applicant being perceived by the Basij and other agents of the Iranian authorities as being an Iraqi. As such, the IMR failed to consider a specific ground of persecution arising under the convention, namely the applicant’s nationality and as such, fell into such jurisdictional error as to vitiate the decision in question.
In support of his contention, counsel for the applicant relies on the description of the review function described by Allsop J in Htun v Minister for Immigration & Multicultural Affairs[5] 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.”
[5] Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]
It is the applicant’s case that one of the essential integers of his claim for asylum is the risk that he will be subject to persecution in Iran, on the basis of the nationality likely to be attributed to him by the Basij and other actors in Iran and such persons will be motivated to harm him because he is perceived to be an Iraqi.
It is the applicant’s submission that this claim for persecution, on the basis of his nationality, was raised by him in his statutory declaration and other materials submitted on his behalf by his Migration Agent, particularly the statement where he attributes, to the Basij, the belief that Kurdish Faili “do not belong in Iran and should go back to Iraq” and the Iranian government and the police do not consider any Kurdish Faili person, including the applicant, to be an Iranian.
The applicant is critical of the IMR for not considering this aspect of his claim for asylum but rather determining the matter on the basis of his ethnicity and membership of a particular social group. This is the basis of the jurisdictional error raised on his behalf.
It is also submitted that the second respondent must be held to have constructive knowledge of the situation pertaining to Faili Kurds in Iran, that is they are perceived to be Iraqis, who belong in Iraq rather than Iran.
This constructive knowledge is said to arise from Mr Grifin’s prior experience as an independent merits reviewer and particularly because he dealt with a case concerning an applicant who shared some characteristics with the applicant in this matter, namely he was a stateless Faili Kurd, born in Iraq, but who had been expelled to Iran, by Saddam Hussein during the Iran/Iraq conflict and deprived of his Iraqi citizenship as a consequence.
In that particular case,[6] information about the situation in Iraq for Faili Kurds had been produced from a source related to the Associated Press, which attributed the following statement to Washington’s Envoy to the UN Human Rights Council.
“Faili Kurds are not simply persecuted due to their identity as Kurds. They are also persecuted due to their imputed identities as Iraqi’s. Given the continued hostile relationship between Iraq and Iran, and bitter memories of both sides of the Iran/Iraq war of 1980 – 1988, Faili Kurds, regarded as ‘Iraqi’ by the local Iranian population, are subject to significant risks of extra judicial violence, discrimination and occasional arrest.”[7]
[6] Annexed to the applicant’s contentions of fact and law filed 8 September 2011 at annexure A being an independent merits review conducted by Mr Griffin on 24 October 2010 and delivered on 31 January 2011.
[7] Ibid at page 8

It is the position of the first respondent that the IMR correctly dealt with the case, which was squarely put before it by the applicant. It is submitted that the applicant did not expressly articulate any claim for protection based on the discrete basis of nationality likely to be attributed to him. The Minister’s position is that the IMR was “not obliged to deal with claims that are not articulated and which do not clearly arise from the materials before it.”[8]
[8] See NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) (2004)144 FCR 1 at [60].Emphasis added.
This is the central legal issue in this case. The controversy being centred on the issue as to whether there was a further distinct claim made by the applicant, which “clearly arose on the materials” and which was articulated by the applicant himself in his own language, being a specific issue in respect of which the IMR should be taken to have had constructive knowledge because of his administrative dealings with persons of Faili Kurdish nationality in the recent past.

The findings made by the Independent Merits Reviewer

Mr Griffin summarized the applicant’s claims for protective status in Australia as arising from his Faili Kurdish race/ethnicity and as a result of his membership of a particular social group of “returnees”.[9] As such, he did not specifically allude to any claim for refugee status on the basis of nationality, either imputed or otherwise.
[9] See case book at page 137
In his reasons, Mr Griffin set out in full the contents of the applicant’s statutory declaration and in particular his assertion that the Basij perceived that Kurdish Faili “do not belong in Iran and should go back to Iraq”.[10] In this context, it is submitted on behalf of the applicant that although a claim for refugee status on the basis of nationality had not been expressly articulated, it was one which was clearly emerging from what the applicant had stated.
[10] Ibid at page 137
Mr Griffin made reference to country information pertaining to Iran. This information confirmed that the Iranian Government continued to have a poor human rights record, particularly in respect of the holding of free and fair elections. However information available to him from the Australian Department of Foreign Affairs and Trade (DFAT) indicated that:
·Faili Kurds in Iran were not being targeted because of their ethnicity;
·Iraqi refugees, including Faili Kurds, tended to be treated well in comparison with Afghanis;
·Racially motivated violence in Iran is rare;
·The treatment of Faili Kurds had not changed since the disputed election of June 2010;
·Faili Kurds who were politically active were liable to be targeted but this was as a result of their political activism rather than their ethnicity.
Mr Griffin, following his interview with the applicant, found him to be lacking credibility. This finding arose as a result of inconsistencies between statements made by the applicant in his initial statutory declaration and what he said in interview with Mr Griffin. When Mr Griffin raised these contradictions with the applicant, he found the answers given to him to be “vague and non-responsive”
The major issue in respect of which issues of credibility arose was the discrepancy between what the applicant stated in his initial statutory declaration regarding the Basij killing two of his workmates and his later statement at interview that he had subsequently seen the two men concerned alive and working.
In his assessment of the applicant’s claim, Mr Griffin found that there was no credible evidence to support the contention that the applicant would be persecuted on the basis that he had left Iran illegally or was stateless or would be thought to be a spy.
In respect of issue arising from the applicant’s ethnic background, Mr Griffin said as follows:
“I accept that some, possibly most, Faili Kurds (and other minority groups) experience discrimination and hardship in many forms in Iran. However, I accept the Department of Foreign Affairs and Trade advice that they are not targeted because of their ethnicity and that racially motivated violence against any group in Iran is rare…however being discriminated against does not necessarily amount to persecution. Even if I were to accept the workplace visit by the Basij, it was a single incident and the claimant was able to go back to work for the same employer for months and was not sought by the Basij either at work or in his home.”[11]
[11] Ibid at page 142
On these bases, Mr Griffin found that the applicant did not meet the criterion for a protection visa and accordingly he recommended to the Minister that the applicant not be recognised as a person to whom Australia owed protection obligations under the Refugees Convention.

Submissions

(a) Applicant’s submissions

It is submitted on the applicant’s behalf that he had clearly articulated in the words of his statutory declaration that as he had no Iranian identity but was imputed with an Iraqi one – as an Arab insect eater – he had been subjected to and remained liable to persecution in Iran because of this imputed nationality. It was further submitted that this aspect of his claim “imputed nationality” or “being treated as an Iraqi” had not been examined or considered in any way by Mr Griffin.
In this context, reliance was placed on the summary of the applicable legal authorities made by Finkelstein J in MZXLB v Minister for Immigration and Citizenship and Refugee Review Tribunal [12] concerning claims for refugee status where it was asserted the basis for the claim could be constructively identified from the material presented, whether or not specifically articulated. His Honour said as follows:
“It is not in dispute that the tribunal is under a duty to consider the various ways a claim for refugee status can be articulated from the material before it, whether or not the ground is mentioned by the applicant himself…In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[13] the Full Court explained that the tribunal must consider claims unarticulated by the applicant but ‘raised squarely’, by the material available to the tribunal. There is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it.”
[12] MZXLB v Minister for Immigration and Citizenship and Refugee Review Tribunal [2007] FCA 1588 at [14]
[13] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
In essence, it is submitted that the applicant “raised squarely” the issue of his fear of persecution on the basis of being regarded as an Iraqi by both state and non state actors in Iran in his statutory declaration. In his particular circumstances, there was little more he could have done to articulate this aspect of his claim for refugee status.
Further, it was submitted that Mr Griffin personally had country information available to him concerning the risk of persecution arising to Faili Kurds in Iran due to their imputed identities as Iraqis and on the basis of their imputed nationality as Iraqis. This information had been referred to by him in a decision concerning another Faili Kurd claimant which had been determined by him two days prior to the current matter.
I have set out the information verbatim above. In brief the country information indicated that Faili Kurds were not persecuted due to their ethnic identity as Kurds alone but also because of their imputed identity as Iraqis. This was significant given the on going hostility between Iran and Iraq, which was long standing and bitter as a result of the war between the two countries between 1980 and 1990. As such Faili Kurds who were regarded as Iraqis were subject to significant risks of extra-judicial violence, arbitrary arrest and discrimination.
The applicant is critical that the findings of the IMR are completely silent as regards to the applicant’s fears based on his status as a “non-citizen of Iran”. Further, as a specialist tribunal, it is asserted that Mr Griffin should have brought his knowledge of the situation for Faili Kurds in Iran to the individual circumstances of this case.
In this regard, reliance was placed on what was said by the Full Court of the Federal Court (Mansfield, Selway and Bennett JJ.) in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs.[14] There it had been stated that such Tribunals are not limited to the evidence formally put before them. As such, given their specialised responsibilities, these Tribunals are likely to acquire a detailed understanding of the political and legal situation in various parts of the world.
[14] SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [21]
It is submitted that considerations of this type go to the requirements, both implied and explicit, for the IMR to be procedural fair. It is submitted that the applicant has squarely raised the issue of persecution on the basis of implied nationality by what he stated in his statutory declaration. As such Mr Griffin was under a duty to consider this aspect of his claim. As he did not do so, particularly when he himself had knowledge of the issue, he has failed to exercise an aspect of his jurisdiction.
In particular, Mr Gibson, counsel for the applicant, submitted as follows:
“It is submitted that the IMR should be taken to have notice of the nature of the claim raised as well as judicial or constructive notice of the country information on which it was based which had been before him and within his knowledge in dealing with other Faili Kurd cases in essentially identical circumstances for the present purposes. In addition it can be argued that the Applicant did in essence articulate a claim of the kind in question. On either or both basis or in combination it can be said that the claim clearly arose from the material before the IMR.” [15]
[15] See Applicant’s Contention of Fact and Law at paragraph 46
In this case, the IMR has recounted in full the contents of the applicant’s initiating statutory declaration in which he sets out, using his own terminology, his concerns about the perception of the Iranian authorities towards him as an ‘Arab insect eater’ who has no entitlements in Iran.
The applicant rejects any contention that this exposition of his case amounts in any way to a consideration of his claim for asylum on the Convention ground of nationality.
It is Mr Gibson’s position that what is required of the IMR, in it requirement to consider this particular component of the applicant’s claim, is one characterised by an active intellectual process, which is not satisfied by a mere regurgitation of material or recital of facts.[16] What is required is for the decision maker to fix his mind upon each of the aspects of the applicant’s claim which have caused him to seek protection in Australia.
[16] See MZXIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1454 at [41] – [44] per Riley FM

(b) Respondent’s submissions

The respondent’s primary position is that no claim for refugee status on the basis of Iraqi nationality clearly emerged from the material advanced by the applicant. Even if it did, under the rubric of the expression “Faili Kurd” Mr Griffin considered all aspects of the applicant’s claim.
It is further submitted that Mr Griffin’s reasons for decision should be considered fairly and in context. He was aware that the applicant claimed to be subject to persecution in Iran because he was a Faili Kurd and as such, Mr Griffin was aware that this descriptor encapsulated persons who were generally regarded as having associations with Iraq because of this ethnicity.
In particular, reliance was placed on the DFAT country information to which Mr Griffin made reference where it was reported that Australian Embassy staff in Iran were:
“not aware of Faili Kurds being targeted because of their ethnicity, that Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans,…”
As such, it is asserted that Mr Griffin has impliedly considered this aspect of the applicant’s claim and rejected it because of his acceptance that Faili Kurds, including those specifically associated with Iraq, are currently relatively well treated in Iran. It was with this understanding that Mr Griffin considered that applicant’s claimed fear of persecution at the agency of the Basij and rejected it because he did not find the applicant to be believable.
Thus, it is submitted by Mr Anderson, counsel for the Minister that:
“On a fair reading of the report, the Reviewer considered that to be a Faili Kurd in Iran meant to be a stateless and to be considered a former citizen of Iraq. Indeed, this meaning is encapsulated by the ethnic descriptor of “Faili Kurd”, as repeatedly submitted by the applicant…” [17]
[17] See Respondent’s Contentions of Fact and Law at paragraph 19
In this context, Mr Anderson invokes the oft quoted salutary warning to courts, such as this one, who are conducting a review of the decisions of non-judicial decision makers, to not approach the reasons of such decision makers “with either an eye keenly focused on the perception of error or with an ear keenly attuned to the perception of error.”[18]
[18] See most recently Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Hayne J at footnote 73
It is submitted that as the applicant’s claim for judicial review is lacking in merit, his application for an extension of time should be rejected.

The time limit issue

Pursuant to section 477(2) of the Migration Act this court has a discretion to extend the time for the making of an application pursuant to section 476. The section reads as follows:
“477(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
In the present case, the applicant received the decision of the second respondent on or around 24 February 2011 but possibly as late as 20 March 2011. His application for judicial review was filed on 22 June 2011. On my calculations, he is between fifty nine and eighty three days out of time.[19]
[19] See affidavit of the applicant filed 22 June 2011 at paragraph 5
In support of his application for an extension of time, the applicant filed an affidavit concurrently with his application for judicial review. He deposed that he had been in immigration detention in Darwin at the time he had received notification of the result of the IMR but had been moved to another detention centre in Maribyrnong, Victoria shortly afterward. This had caused him to loose contact with his legal representatives, who were based in Darwin.
He further deposed that after a period of fifty days detention in Victoria, he was returned to detention in Darwin. As a result he was able to resume contact with his lawyer in mid May of 2011 and they filed the current application shortly afterwards.
In all these circumstances, he contended that the interests of justice demand that time be extended in his case. It was asserted that the respondents had not suffered any demonstrable prejudice as a result of the delay, which in any event could not be described as amounting to a significant period of time.
The respondents do not point to any specific incident of prejudice arising to them if time is extended. Their only objection to extending the period is that the application is without merit and accordingly it would not be in the interests of justice for the court to extend time.
The issues raised by the applicant are clearly very significant ones to him personally. He has provided an explanation for the delay arising from his circumstances of detention. I do not dismiss the veracity of this explanation, which seem to me to be a reasonable one given the applicant’s personal circumstances.
In Fisher v Minister for Immigration and Citizenship and Another,[20] Stone J suggested that the concept “…in the interests of the administration of justice” in section 477(2)(b) “…would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospect of success.”
[20] Fisher v Minister for Immigration and Citizenship and Another (2007) 162 FCR 299
In SZNZI v Minister for Immigration & Anor[21] Smith FM identified two critical considerations relevant to the discretion to extend time pursuant to section 477(2)(b) firstly an explanation, reasonable to the circumstances for the party’s default and secondly that “the party in default had a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order.”
[21] SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11]
The arguments advanced by the applicant in this case are, in my view, not without prospects of success. It is asserted that the second respondent has failed to consider an important aspect of his claim for refugee status, namely that he is liable to persecution in Iran because he will be imputed to be by nationality an Iraqi.
If I do not grant the applicant the extension of time sought by him, it may result in him loosing any entitlement to appeal against my finding.[22] This does not appear to me to be in the interests of the administration of justice. The time which has elapsed since time expired is relatively short. No specific prejudice arises to the Minister. In all the circumstances, I have decided to make an order under section 477(2) in the applicant’s favour.
[22] See SZQEN v Minister for Immigration and Anor [2011] FMCA 648 per Raphael FM at [14]

Legal Principles

An error which goes to the jurisdiction of an administrative body was described in these terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[23]
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[23] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Essentially, an administrative decision which involves a jurisdictional error is regarded, in law, as no decision at all.[24] In addition, an administrative tribunal carrying out a review function must exercise the jurisdiction conferred upon it, in the sense that it is required to consider all aspects of the case put before it. Otherwise, a decision made without reference to such material constitutes a failure to exercise jurisdiction.[25]
[24] See Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 at [45]
[25] See Minister for Immigration and Multicultural and Indigenous Affairs v Bhardwaj (2002) 209 CLR 597 per Callinan J at [63]
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:[26]
“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.”
[26] Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]

This is the nub of the present case. The applicant contends he has put his case as best he can before the IMR to describe his situation. However his case has not been considered in respect of the issue of potential persecution to him as result of a nationality which may be ascribed to him. In this regard it is argued that it was not up to the applicant to articulate his claim to this degree or to pick the “correct Convention label” which applied most appositely to his situation.
On the other hand, it is contended by the respondent that this issue was either not sufficiently raised by the applicant or it was indirectly considered and rejected by Mr Griffin upon a fair reading of his decision. In this context, Mr Anderson relies on what was said by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs: [27]
“The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.”
[27] SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [18]
This hearing is directed towards the legality of the IMR’s decision not its merits. It is the role of the decision maker alone to make the necessary findings of fact on which his decision is predicated, from the evidence which was properly available to him. It is not the function of this court to substitute its own findings of fact in respect of that evidence.[28]
[28] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
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)[29] 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)
[29] 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 whether they are specifically articulated or not. However the reviewer is not required to seek out such a ground in a creative manner. He is not required to consider a case which is not expressly made out or which does not arise clearly on the materials before him.
The failure of a reviewer to consider a claim raised by the evidence (whether or not articulated) amounts to a failure of procedural fairness and therefore leads to a jurisdictional error. However a judgement that a reviewer has failed to consider a claim not expressly advanced is not one which should be lightly made. If such a claim is required to be considered it must emerge clearly from the materials available to the reviewer.
The important distinction is that although the reviewer is required to consider claims which although not articulated arise clearly on the face of the material, it is “not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it.”[30]
[30] Ibid at [60]
The emphasis being on whether such claims arise clearly. Each such case must be judged on its own circumstances to determine whether an error of jurisdiction has arisen. In NABE the Full Court of the Federal Court said as follows:
“…a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and it is misunderstood or misconstrued by the Tribunal. 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.’ ” [31]
[31] Ibid at [63]
Accordingly, the central issue in this case is whether Mr Griffin failed to consider the case advanced by the applicant, in all its aspects, and so failed to exercise the jurisdiction conferred upon him. However that is not an end to the matter. Such a failure may not of itself amount to a jurisdictional error. The failure to consider a not expressly articulated component of a claim for asylum must be examined in the context of the case in which arises.
Essentially the failure to consider such an implied claim may have no consequence so far as the outcome of the case is concerned because of other findings of fact which have been made by the reviewer or tribunal in question. This is the respondent’s contention. Mr Anderson argues that this failure by Mr Griffin to consider specifically the applicant’s nationality is of no moment when the whole context of the case is considered.
In particular he asserts that the reviewer, on the basis of the country information available to him from DFAT, namely that Faili Kurds were not specifically targeted within Iran, dealt properly with the applicant’s claim for asylum because by implication Mr Griffin was aware of the connections between the applicant’s Faili Kurdish ethnicity and imputed Iraqi nationality both in the context of Iranian officialdom and the risk of receiving attention from the Basij. In particular Mr Griffin had country information available to him which indicated that Iraqi refugees were comparatively well treated in Iran.
As such, Mr Anderson submits that, when the whole context of Mr Griffin’s decision is considered, it cannot be said that he has misunderstood or misconstrued the applicant’s case as either expressly or impliedly raised by him. Rather the applicant’s case has been rejected on the basis that it was not accepted that he had ever been subject to concerted persecution by the Basij because Mr Griffin had found that he (the applicant) had been able to work in Iran, for the same employer for an extended period of time and had been undisturbed.

Conclusions

This case turns on whether the IMR failed to consider the applicant’s claim to have a well-founded fear of persecution in Iran by reason of the fact that he would be imputed to be an Iraqi national in Iran and would be subject to persecution as a result. For this ground to be successful, it will be necessary for the applicant to establish that this aspect of his claim clearly arose in the material before Mr Griffin and has not been considered by him and this, in the overall context of the matter, amounts to a denial of procedural fairness and a failure to exercise jurisdiction.
I am not persuaded that the applicant has satisfied either criterion. I am not of the view that the claim of persecution on the basis of the distinct ground of nationality was clearly articulated on the material before Mr Griffin. The applicant’s claim was that Faili Kurds are subjected to persecution in Iran generally and he himself had been subjected to specific attention from the Basij because he was a Faili Kurd.
On the basis of country information available to him, Mr Griffin did not accept that Faili Kurds, as a group of persons, were subject to persecution within Iran because they were Faili Kurds per se. Mr Griffin did accept on the basis of this country information that most Faili Kurds were subject to discrimination and hardship in Iran but this did not amount to persecution. In the country information, noted by Mr Griffin, there is a connection between refugees of Iraqi nationality and Faili Kurds.
Mr Griffin also did not accept that the applicant’s claims of having suffered specific incidents of persecution, at the agency of the Basij, were made out on the basis of his assessment of the credibility of the applicant. In his reasons, Mr Griffin found as follows:
“In the claimant’s case there are no particular and individual factors that distinguish him from the general Kurdish population and that would support his claim for protection. He has lived in Iran all his life and for the last 3 years in the capital city. He has worked continuously and was able to raise a significant sum of money to fund his departure from Iran. He originally claimed the Basij came to his workplace and chased him and two friends, who were both caught and beaten to death and that he left the country almost immediately. However, in his evidence to me he said he left some three months later after he saw the two workmates alive and working on another job. He was unable to give a meaningful explanation for these significant inconsistencies in his claims. I am satisfied that he has fabricated the claim of being pursued by the Basij. In any event, there is no evidence to suggest that he is of particular adverse interest to the Iranian authorities or actively sought by them. The fact that he was able to continue living and working for the same employer for several months in the capital city after this incident supports this conclusion.”[32]
[32] See Casebook at page 141
I am satisfied that Mr Griffin’s finding that the applicant is non distinguishable from the general Kurdish population in Iran and is not credible so far as his claim of being pursued by the Basij subsume any requirement for him to make specific findings about imputed nationality. As such, it cannot be said that Mr Griffin has either misconstrued or misunderstood the implications of the applicant’s case.
In this context, I accept Mr Anderson’s submission that the comments of Gleeson CJ in S395 v Minister for Immigration and Multicultural Affairs [33] albeit in dissent are apposite:
“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.”
[33] 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]
The application before Mr Griffin was considered on the basis that Faili Kurds were targeted in Iran and the applicant himself had been the subject of specific attention from the Basij. Both such contentions were rejected by Mr Griffin. I do not consider that the statement made by the applicant, in his statutory declaration that “Faili Kurds do not belong in Iran and should go back to Iraq” clearly raised a claim for persecution on the basis of imputed nationality. The claim remained one based on the fact the applicant was a Faili Kurd. To assert otherwise is, in my view, tantamount to raising a new claim at the judicial review stage.
Taking into account the submissions of Mr Gibson in respect of the sole ground for review, I am not persuaded that the reasoning of Mr Griffin manifests any failure to address any element in the applicant’s refugee claims, the absence of discussion of which would show material error of law.
It must follow from this conclusion that the application herein should be dismissed. It further follows that the applicant should pay the first respondent’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 four (104) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 25 January 2012