DZABC v Minister for Immigration
[2012] FMCA 322
•20 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZABC v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 322 |
| MIGRATION – Judicial review – offshore entry person – decision of Independent Merits Reviewer – allegation of jurisdictional error for failure to refer country information to applicant – question of materiality – no error. |
| Migration Act 1958 (Cth), ss.36.2, 46A, 91R(3), 476 |
| Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 SZPZI v Minister for Immigration and Citizenship [2011] FMCA 530 |
| Applicant: | DZABC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARGARET FOWLER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | (P)DNG 37 of 2011 |
| Judgment of: | Burnett FM |
| Hearing date: | 16 November 2011 |
| Date of Last Submission: | 16 November 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the Respondents: | Mr Anderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed 29 July 2011 be dismissed.
That subject to any submissions by the applicant within seven (7) days of the delivery of this judgment, the applicant pay the respondent’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNG 37 of 2011
| DZABC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARGARET FOWLER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant in this instance is a 23 year old Iranian who arrived in Australia by boat without travel documents on 16 April 2010 as an unauthorised boat arrival on a vessel which was code named Pullenvale. He had left Iran on 6 April 2010 by an international flight from Tehran via Dubai to Indonesia. After a short stay in Indonesia, he boarded a boat for Australia which was intercepted by the Royal Australian Navy on 16 April 2010, resulting in his being brought to the Christmas Island Immigration Detention Centre that day. He lodged a statement of claim and request for a refugee status assessment on 11 July 2010. That process was conducted under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (the Act) whether he would allow an applicant to make an application for a Protection Visa. In this case, a negative assessment was notified to the applicant on 3 August 2010 following which the applicant applied for an Independent Merits Review on 25 February 2011 under those procedures. Ms Margaret Fowler conducted the review from the IMR Sydney office on 7 February 2011. The review was conducted in the presence of his migration agent and with the assistance of an interpreter in the Farsi language. Following the review, Ms Fowler recommended by her report of 17 June 2011 that the applicant did not meet the criteria for a Protection Visa set out in s.36(2) of the Act, and that accordingly the applicant would not be recognised as a person to whom Australia has protection obligations under the 1951 Convention.
The applicant applied for judicial review of the IMR decision by application filed 29 July 2011. That application was subsequently amended on 24 October 2011 and constitutes the basis for the grounds considered hereafter. In this instance, throughout the administrative and judicial proceedings, the applicant has been held in immigration detention as an “offshore entry person.” It is accepted that the IMR report attracts judicial review and that the present applicant is within this court’s jurisdiction under s.476 of the Act based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14 at [51].
It follows that, by reason of the judicial review jurisdiction upheld in Plaintiff M61, it is this court’s function to consider whether the IMR’s report reveals any error of law including denial of procedural fairness in its reasoning or procedures, or the procedures followed before its making. The relief sought in the amended application can only be contemplated if the applicant can satisfy the court that such an error is present. It is not the function of the court to engage in merits review of the IMR findings or of the risks which the applicant might face if he is returned to Iran. Nor is it the court’s function to consider whether the applicant should be permitted to reside in Australia.
It is now settled that when examining the IMR reasons for legal error the Minister’s instructions as to the contents of his report make it appropriate to examine the report on the same principles as would be applied to a statement of reasons given by a Migration Tribunal; see SZPZI v Minister for Immigration and Citizenship [2011] FMCA 530 at [12] – [13]. Those principles include the obligation not to read the IMR’s statement of reasons “minutely and finely with an eye keenly attuned to the perception of error” but to adopt a benign approach, attempting to understand ambiguous or poorly explained reasoning; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291.
The Applicant’s Claims
Subject to matters which are expressly identified, the applicant’s personal circumstances are largely undisputed. He is a citizen of Iran who arrived at Christmas Island as an unauthorised boat arrival on a vessel on 16 April 2010. He is 23 years of age and belongs to the Shia sect of Islam. He left Iran on 6 April 2010 from the international airport of Tehran, flying to Indonesia via Dubai in the United Arab Emirates. He departed Iran using his own passport. On arrival in Indonesia he made contact with an intermediary who arranged for him to travel to the Indonesian coastline where he joined a boat destined for Australia. The boat was intercepted by the Royal Australian Navy before he was taken to Christmas Island.
In his entry interview he reported to have claims of a fear of returning to Iran on the basis that he may be arrested due to an imputed adverse political opinion. He stated that he had participated in an anti-government demonstration in June 2009 following the election of Mr Ahmadinejad as president. He claims to have been upset because of the outcome of the election of Mr Ahmadinejad who he considered had been elected following a rigged election against his opposition opponent, Mr Mousavi.
He says subsequently in December 2010 on a religious festival date, Ashura Day, he and a friend decided to attend a demonstration being held at Enghelab Street, Tehran. He says he joined a protest adding his voice to the anti-government slogans. After about an hour the applicant saw the Basijis and plain clothes security officers entering a crowd and witnessed fighting between the security officers and demonstrators. He says a security officer proceeded to beat up his friend and, in defence of his friend, he picked up a stick and commenced beating approaching Basijis. He said, fearing arrest, he escaped the scene and went home where his father advised him to leave Tehran. He says his father arranged for him to travel to a remote part of Iran where he took up residence in a relatives’ villa for about three and a half months. He says that during that period it was reported to him through his family that the Basijis repeatedly visited his parents’ home looking for him. Accordingly, his father decided that he should leave Iran and to assist in that endeavour his father contacted a friend who worked at the airport. He says that his father was advised by that friend that the applicant’s name was on a list of wanted persons and that accordingly his father had to pay a large amount of money to ensure his safe departure from Iran.
Following the applicant’s arrival in Australia he subsequently took up the practise of Christianity and converted to the Christian faith. He underwent a Christian baptism on 10 October 2010 and seeks to add this matter to his original claim on the basis that the fact of his conversion from Islam to Christianity would also render him at real risk of harm if he were to be returned to Iran.
On 3 August 2010 the applicant’s fears were assessed as not being well founded and accordingly he was found not to be a refugee. The RSA officer recorded that whilst he had participated in protest activities, the two occasions that he joined a protest were too far between and accordingly the assessor concluded that the applicant did not have strong anti-government views which would lead him to be identified as a dissident by the Iranian authorities.
Following the negative RSA assessment he applied for an Independent Merits Review and was interviewed on 17 February 2011 via a video conference by a reviewer located in Sydney. At that time the reviewer was provided by the applicant’s agent with written submissions addressing:
a)Country information on politically active youth in Iran;
b)Country information on Christian converts in Iran;
c)Country information on exit procedures in Iran; and
d)Country information on returnees to Iran.
Those oral submissions were subsequently supplemented by written submissions dated 25 February 2011.
The IMR reviewer accepted that the applicant was an Iranian national and that he took part in two protests following the 2009 elections in Iran. He also accepted that he attacked a Basiji when his safety was imperilled by another Basiji. The reviewer however was unable to determine how the applicant would have been recognised at the demonstration. He did however accept that he would have been fearful of being sought by the Basijis and that he received advice from his father to leave Tehran until things calmed down. However, the reviewer considered that the applicant’s oral testimony about the Basijis coming to his house and the detention of his brother seemed to lack credibility. He did not accept the applicant’s claims regarding the Basijis’ visitations upon his house as credible and did not accept that his brother was detained following and because of his involvement in the demonstration on Ashura Day in 2009. He did consider it plausible that, even if the applicant was targeted because of his assaulting the Basijis or his participation in protests, he may be able to get through the airport on his own passport.
In considering the country information, the reviewer noted that bribes appear to be commonly used to allow people to exit Iran when they would otherwise be unable to do so. However, notwithstanding those matters, the reviewer did not accept the applicant was on a black list or that he left the country illegally.
Concerning the applicant’s conversion to Christianity, the reviewer noted that whilst in recent times Christian converts in Iran have not been convicted of apostasy, reports do indicate that during the period of 2008 to 2010 many Christian converts had been arrested and detained. She noted that individuals convicted of apostasy can be sentenced to death or life imprisonment under Shaira law although material from the Christian news service indicated that the last Iranian Christian convert from Islam executed by the Iranian government occurred in 1990. In this case, given the reviewer’s assessment of the applicant’s interest in religion prior to his arrival in Australia as being minimal, she concluded that the applicant had not satisfied her that he engaged in the conversion to Christianity otherwise than for the purpose of strengthening his refugee claim and that accordingly the matter ought be disregarded pursuant to s.91R(3) of the Act.
In respect of the other substantive basis of his application the reviewer concluded that whilst the applicant did attend the demonstrations in June and December 2009 and that he did assault a Basiji who was attacking his friend, she did not accept that he was identified at the demonstration in December 2009 or that he departed Iran otherwise than through proper processes on his own passport.[1]
[1] CB 70 paras [102] and [105].
The reviewer also doubted other aspects of the applicant’s claims. For instance, she doubted and considered it incongruent that the applicant was prepared to risk using a passport in his own name indicating an intention to travel when he also claimed that he was hiding for three months prior to his departure from Iran out of fear of the authorities and possible arrest. She noted his claim that he was able to pass through security checks using a passport in his own name even though he was wanted by the authorities and that his name was on a blacklist. Although she also noted that if this was in fact the case the lack of organisation by the relevant authorities meant that the blacklist system did not always work. Notwithstanding this, she found, in the circumstances, that the claimant in attempting to leave the country did do so by a passport in his own name and that he was able to secure his passage through several checkpoints and on to a plane without recourse to bribery. Accordingly, she concluded that she was not satisfied his departure from Iran through Tehran airport was a departure orchestrated by his father to overcome security checks, that is to say by recourse to bribery.
Generally, she was not satisfied that the harm feared by the applicant was for his imputed political opinion or that it was well founded. She considered the evidence did not support such a conclusion. Having reached that view, the reviewer considered it unnecessary to determine whether the harm feared amounted to persecution in the relevant sense.
The applicant was advised of the reviewer’s decision on or about 17 June 2011 and made application for judicial review on 27 July 2011. The application was amended by the amended application filed 24 October 2011. Three grounds are advanced:
a)The reviewer misconstrued and/or misunderstood the Convention ground of imputed political opinion and/or conflated the grounds of actual and imputed political opinion and/or failed to deal with the claim of imputed political opinion as properly understood and/or misunderstood the nature and basis of the applicant’s fear on the ground of imputed political opinion;
b)The reviewer misconstrued s.91R(3) of the Migration Act in purporting to disregard the applicant’s conduct in Australia and she did so on the basis of a misunderstanding or misconstruction of the case or claim advanced, and/or there was no supporting evidence for the finding that there was no evidence that the applicant was interested in religion before coming to Australia and that finding was integral to the determination that the applicant’s conduct in Australia was to be disregarded; and
c)The IMR failed to afford the applicant procedural fairness by not drawing his attention to and inviting him to comment upon country information relevant to his ability to pass through Tehran airport notwithstanding he claimed to be of adverse interest to the Iranian authorities.
Ground 1 – Imputed Political Opinion
The applicant contended that the reviewer failed to consider an integer going directly to the question of whether or not the criterion about which she had to be satisfied for the purposes of establishing whether he (the applicant) was owed protection obligations was considered. In particular, it was contended that the reviewer misconstrued or misunderstood the Convention ground of imputed political opinion and/or conflated the grounds of actual and imputed political opinion. Accordingly, it was submitted, it failed to deal with the ground of imputed political opinion, as properly understood, as the basis of the applicant’s fear. This was particularly contended to be so given that IMR accepted the applicant’s presence at the 27 December 2009 Ashura Day demonstrations; that he attacked a Basiji; there was a face to face confrontation; and, there was a tacit or implied acceptance that the attacked Basiji and his colleagues saw the applicant and then chased him as he made good his escape.
In his contentions the applicant submitted that the reviewer completely disregarded the possibility and/or probability of recognition and/or identification of the applicant in the context of a face to face confrontation because it repeatedly linked the question of recognition to the issue of his political opinion. That is, whether he had a pre-existing political profile. The offending passages relied upon by the applicant were said to be contained particularly at paragraphs [90] to [92] and paragraph [94] of the reasons for decision. Relevantly, those paragraphs included the following observations by the IMR who referred to herself in the third person as “the Reviewer”:
“90. … In [the applicant’s] case, his evidence does not support that he was targeted by the Basiji for his taking part in the demonstration and the Reviewer finds as such, but that he was targeted as he attacked one of the Basiji when trying to assist his friend.
91. The [applicant] did not explain how he would have been recognised in the demonstration but the Reviewer accepts that he was fearful of being sought by the Basiji and was advised by his father to leave Tehran until things calmed down.
92. The Reviewer is unable to determine how [the applicant] would have been recognised at the demonstration. There is no evidence that [the applicant] had a political profile or was actively involved in any political process or activity or that there was any reason for the Iranian authorities to view him as having a political opinion other than his attendance at the demonstration on Ashura Day 2009. [The applicant] showed no commitment to the Green Movement and has no evidence of having any knowledge of any such movement. When asked by the Reviewer if and how he identified himself at the demonstration he was unable to respond. When told about the use of green wrist and headbands worn by members of the green movement as outlined in the country information, he said that he wore a green wristband. The Reviewer does not accept that [the applicant] identified himself as part of the Green Movement at the demonstration on 27 December 2009 in this way and finds that he was not personally recognised at the demonstration.
…
94. The Reviewer does not accept that [the Basiji came to his parents house and detained his brother] is credible and does not accept that [the applicant’s] brother was detained following, and because of, [the applicant’s] involvement in demonstration on Ashura Day 2009. The reviewer having found that [the applicant] was not recognised at the demonstration find that the Basiji did not come to his house looking for him.”
The integer said to have been ignored or conflated with another matter was contended to be the finding by the IMR that the applicant had a fear on the ground of imputed political opinion. For the applicant it was contended that the IMR had completely disregarded the possibility and/or probability of his being recognised or identified in the face to face confrontation that occurred in his exchange with the Basiji because it repeatedly linked the question of recognition to the issue of his actual political opinions. That is, whether he had a pre-existing political profile which was never his claim. The essence of the submission advanced on his behalf was contained at paragraphs 30 and 31 of the written outline, which was not further advanced or better explained in oral submissions. Counsel’s submission was that the rejection of his imputed political opinion occurred because of a flawed approach to the issue of recognition.
For the respondent it was contended that the applicant’s approach to the IMR’s reasons for decision was to read them with an eye too keen to detect error. It submitted that, consistent with the High Court’s observation in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 195 CLR 259 at 272, this court should not be “concerned with looseness in the language … nor with unhappy phrasing” in its consideration of the Tribunal’s decision.
The logical link complained of concerns the purported recognition of the applicant, as is inferred by his complaint that the day following the demonstration the police attended his parent’s residence. By reason of those matters it is contended that the matter of imputed political opinion has been conflated into the issue of recognition. Plainly, if that were the case, the IMR ought to have considered whether recognition did indeed enliven the prospect of imputed political opinion giving rise to a Convention fear. However, as was submitted for the respondent, the applicant’s case proceeded on a false premise, namely that that was in fact the finding of the IMR.
At paragraph 93 of the IMR’s reasons it addressed the issue of the Basiji attending his parent’s house the day following the demonstration. She noted his complaint that “his brother was detained for eleven days and that he did not know where his brother was detained or whether he had been mistreated in that time.” The IMR however did not accept the applicant’s assertions on this matter. She concluded:
“93. … The [applicant’s] oral evidence about the Basiji coming to his house and the detention of his brother, and seeming lack of knowledge about and disinterest in this, was in the view of the Reviewer lacking.
As noted in the quoted passage quoted earlier from paragraph 94, the IMR simply did not accept the applicant’s evidence.
The reviewer had earlier rejected the applicant’s statement that he had been wearing a green wristband, a common identifier of the dissidents at the demonstration. Accordingly, the only evidence accepted by the IMR was that the applicant was at the demonstration and that he intervened when his friend was being attacked by the Basiji. However the applicant subsequently escaped without being arrested by the Basiji and it would seem that there is no basis to believe that he was identified on that occasion or any other occasion, for that matter. The IMR had earlier noted that “there is no evidence that [the applicant] had a political profile or is actively involved in any political process or activity or that there was any reason for the Iranian authorities to view him as having a political opinion [except for] his attendance at the demonstration on Ashura Day 2009.” However, as I have earlier noted, there is no evidence to demonstrate that the authorities have any knowledge of his attendance on that occasion.
Although the applicant’s counsel sought by his submissions to carefully avoid the issue, the real position appears to be that the applicant is unhappy with the findings made by the IMR upon her review. It is not appropriate on judicial review for a court to engage in a revisiting of the merits and I will not do so on this instance. In my view there was no error in the approach of the IMR in her assessment of the applicant’s case. Findings made by her were open on the evidence and are not illogical or irrational. The applicant’s application on this ground is dismissed.
Ground 2 – Jurisdictional Error occasioning misapplication of s.91R(3)
The second error contended for concerns the IMR’s application of s.91R(3) to the applicant’s evidence that since arriving in Australia he has converted to Christianity and that his conversion gives rise to a fear for Convention purposes.
It was contended by the applicant that in concluding that the applicant’s conversion to Christianity should be disregarded by operation of s.91R(3), the IMR erred in reaching that conclusion because there was no evidence that he (the applicant) had been interested in religion before coming to Australia, when, in fact, that was not the evidence at all.
In her reasons the IMR stated:
“21. On 4 February 2011 Natalie Young from the Refugee Advice and Casework Service submitted a statement from [the applicant] and advised that he had converted to Christianity and wished for this to be added to his claim for protection. A Certificate of Baptism dated 10 October 2010 was included with this submission. It was stated that this new information was highly relevant to [the applicant’s] claims for protection and the assessment of the risk to which [the applicant] would be subjected if he were to return to Iran.
22. In his statement of 3 February 2011 [the applicant] advises that since his RSA assessment he has converted to Christianity and fears that he would be executed if he returned to Iran as conversion is illegal. “Because of my political problems they are going got [sic] kill me, so being Christian is just part of my problems.” He states that his family do not know of his conversion and he has not told them as they are quite religious and would not like it. He said that while he was in Iran he had never felt able to explore Christianity due to religious constrictions and that he likes Christianity because it talks about love and forgiveness. He goes to Church every day in the detention centre and reads the Bible every day. He believed that some Iranian Muslims have returned to Iran from the camp and have told others that he is a Christian.”[2]
[2] CB page 54 paragraphs [21] and [22].
Further at paragraph 49 the IMR noted:
“49. In relation to his conversion to Christianity [the applicant] told the Reviewer that he had been interested in other religions since he was about seventeen years old but could not get any information on other religions in Iran. It was not possible to explore religions other than Islam.”
The applicant’s submission was that the evidence of his being interested in religion, particularly Christianity, was ignored by the IMR in the sense that the IMR ignored his contention that he had been constrained from exploring other religions whilst in Iran. He contended that was significant as it went to the genuineness of his past interest in Christianity. Thereby, that matter affected the question of his genuineness of conversion and subsequent engagement in Christian practice in Australia. He contended that the IMR’s failure to take that matter into consideration gave rise to jurisdictional error. In support of this, the applicant relied upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 where at [63] the Full Court (Black CJ, French and Selway JJ) stated:
“[63] It is plain enough, in the light of Dranichnikov, that 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 is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error 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’ — Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
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 s 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.”
At paragraph 101 of the IMR’s decision she made the following comments concerning “Conversion to Christianity:”
“101. In this case, there is no evidence of [the applicant] being interested in religion prior to coming to Australia and in fact he was not only a non practising Muslim but told the Reviewer that he was not religious, though he did state that he had attempted to explore religion whilst a teenager in Iran. Given this the Reviewer does not accept that [the applicant] had any real religious conviction prior to coming to Australia and whilst he may have been interested in exploring the tenets of other religions, he did not express any religious interest or indicate any propensity to become religious prior to coming to Australia. [The applicant] has not satisfied me that he engaged in this conduct otherwise than for the purpose of strengthening his refugee claim and therefore this behaviour must be disregarded.”
In respect of the IMR’s findings addressed at paragraph [101] of her decision, the applicant contended that his point about constraints and previous interest in religion was so significant, going as it did to the Tribunal’s assessment of his genuineness of any past interest in Christianity affecting the question of genuineness of conversion, that it plainly fell within the NABE principles. The applicant particularly relied upon the IMR’s observation that there was “no evidence” in respect of that matter as demonstrating the error in his approach. That was significant given her earlier observations at paragraphs [49] and [50] of her decision that the applicant had stated that he had “been interested in other religions since he was about 17 years old but could not get any information on other religions in Iran,” and that “when he came to Australia he had a feeling of freedom and that he why he went toward Christianity.”
Against that background, it is most puzzling that the IMR reviewer expressed herself in paragraph [101] as she did in the opening sentence by stating there was no evidence of the applicant being interested in religion prior to coming to Australia.
The respondent contends that the use of the words “no evidence” by the IMR simply constitutes “unhappy phrasing.”[3] On balance I think that is the case here. In reaching that view I am particularly mindful of the following sentence in paragraph [101] where the IMR continued:
“Given this the Reviewer does not accept that [the applicant] had any real religious conviction prior to coming to Australia and whilst he may have been interested in exploring the tenets of other religions, he did not express any religious interest or indicate any propensity to become religious prior to coming to Australia.”
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) at 272.
To my mind that sentence clearly demonstrates that the IMR weighed in her deliberations the statement made by the applicant concerning his interest in learning about religions other than Islam before leaving Iran. It is worthwhile noting that his expressed interest was in respect of “religions other than Islam” and not particularly Christianity. In addition, the IMR noted that from the evidence the applicant did not express “any religious interest or indicate any propensity to become religious prior to coming to Australia.” When those two matters are considered against the observation in the first sentence at paragraph [101] that there was “no evidence” of being interested in religion prior to the applicant coming to Australia, it seems self evident that as a matter of reasonable construction what the IMR was observing was a conclusion that despite the matters she was informed of, she did not as a matter of fact accept them. Chronologically, that observation also has to be considered against her remarks at paragraph [85] where she noted that she considered “that the claimant at times gave evidence that was not supported by the country information and that was at times not credible or believable. The Reviewer does not accept all of the matters put by the claimant in the interview in support of his claim and will discuss this below.”
Later in her reasons under the heading “Conversion to Christianity” she then made the controversial remarks at paragraph [101]. It is unfortunate that the IMR proceeded to open paragraph [101] with a sentence which included her conclusion rather than leaving her conclusion to the end of the paragraph. It is however in my view tolerably clear from the IMR’s reasons for decision that she did not accept the applicant’s statements concerning his interest in religion and that accordingly she was not satisfied that the applicant had discharged that onus cast upon him by s.91R(3). Although the applicant’s counsel’s point was well made in argument, for his point to succeed it would require, in my view, a reading of the IMR’s determination with an eye “keenly attuned to the perception of error” or afflicted “with looseness in the language … or with unhappy phrasing.”[4]
[4] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
Accordingly, giving paragraph [101] a beneficial reading, that is to say, reading it fairly, the IMR has simply characterised the evidence before her and considered the applicant’s statements concerning his earlier interest in religion. It has been subject to an evaluative process and it could not, in my view, be considered to have been ignored, overlooked or misunderstood. From a fair reading of the IMR’s decision as whole I am of the view that the IMR simply did not accept his evidence in relation to his earlier interest in religion and it followed that she properly disregarded his subsequent conduct in Australia concerning his conversion to Christianity in the absence of evidence by the applicant to satisfy her that his post arrival conduct was otherwise than for the purpose of strengthening his claims.
Ground 3 – Denial of Procedural Fairness
The applicant claims that there was a denial of procedural fairness giving rise to jurisdictional error by the IMR not having drawn to his attention country information which was material to her decision. In this respect the finding complained of was her determination that the applicant was not on a blacklist and left the country legally.[5]
[5] CB page 71 at [111].
It is not in issue that, as a matter of principle, there is a duty upon a decision maker to put to the applicant information that is adverse to his interests and is credible, relevant and significant to the decision to be made; Kioa v West (1985) 159 CLR 550 per Brennan J at [628] – [629] (see also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [16] and [17]; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gaudron J at [98] – [99].
In this instance the applicant’s complaint is that he was not specifically directed to information drawn from material included in the UK Home Office Report August 2010 and which was relied upon by the IMR. In Country of Origin Information Report for Iran dated 31 August 2010 produced by the Home Office, UK Border Agency at paragraph [18.03] under the heading “Corruption,” the Report noted:
“18.03 The US State Department Report on Human Rights Practices 2009, released 11 March 2010 (USSD Report 2009) noted that “Official corruption and a lack of government transparency persisted.” Furthermore, in the security forces: Corruption and impunity were problems.”
This section was quoted at paragraph [74] of the reasons for decision.
However, the Report continued with the following section which was not quoted:
“The law provides criminal penalties for official corruption but the government did not implement the law effectively and official corruption remains a serious and ubiquitous problem in all three branches of government.
Many officials expected bribes for providing even routine services. Individuals routinely bribed officials in order to obtain permits for illegal construction …”
It is this section in respect of which the IMR is alleged to have failed to afford natural justice, as it appears to have been later relied upon by the IMR.
At paragraph [110] of the decision the reviewer observed:
“The Reviewer notes that the country information indicates that bribery and corruption do exist in Iran. However, the UK Home Office Report referred to above, indicates that the prevalence of corruption relates to routine services where the paying of a bribe ensures service. The assessment by at least the UK Home Office is that security checks at Tehran airport are very strict and that it is “highly improbable” that a person using a forged passport would be able to pass through the various checkpoints and leave the country, though the Reviewer notes the information available which indicates that the disorganisation of some authorities in Iran and the possibility that a person may not be detected due to some human error.”
The applicant’s submission progressed that this matter underlay the conclusion formed in paragraph [111] that the applicant left Iran on his own passport and his departure was not “orchestrated by his father,” that is by payment of bribes.
It is not in issue that the applicant’s attention was not expressly drawn to that part of the report. The applicant submitted the reports of the Danish Immigration Services dated April 2009 and the UK Home Office Report dated August 2010 which were both relied upon by him to support his claim to be able to leave Iran by the payment of bribes, notwithstanding that he was on a blacklist at the airport.
It is plain from the written submission that the applicant himself did not direct the IMR to that part of the UK Report addressing bribery generally or of airport officials. He did however expressly refer the IMR to those parts of the Report prepared by the Danish Immigration Services addressing that issue.[6]
[6] CB page 48
It appears from the IMR’s reasons that only limited reference was initially had to the Home Office Report with it being cited as authority for corruption, but no more.
Plainly, the IMR relied upon the Danish Report on the question of bribery, it having quoted extensively from it at paragraph [73] of the reasons. In its written submission, the respondent contends that “approximately half of it [the UK Home Office Report – Corruption section] was quoted verbatim by the applicant in written submissions to the Reviewer.”[7] Respectfully, that submission is in error. The applicant’s written submissions to the IMR comprised a quotation from the Danish Immigration Services April 2009 Report quoted in part at paragraph [73] of the reasons.
[7] Respondent’s submissions at [22].
It follows that the IMR did not bring to the applicant’s attention and seek his comments upon that part of the Home Office Report which the IMR subsequently referred to as being material when discussing this aspect of the claim at paragraph [110] of her decision.
That, however, is not the end of it. Although it is plain that this matter was not drawn to the applicant’s attention, a question arises as to whether the IMR’s reliance upon that part of the Home Office Report was material having regard to other matters, in particular the Danish Immigration Services April 2009 report which addressed the same issue. In particular, the observation relied upon by the IMR as earlier stated at paragraph [110] was:
“… The UK Home Office Report referred to above, indicates that the prevalence of corruption relates to routine services where the paying of a bribe ensures service. The assessment by at least the UK Home Office is that security checks at Tehran airport are very strict and that it is “highly improbable” that a person using a forged passport would be able to pass through the various checkpoints and leave the country, though the Reviewer notes the information available which indicates that the disorganisation of some authorities in Iran and the possibility that a person may not be detected due to some human error.”
When that passage is closely examined it can be seen that each of the integers making up the second sentence of that paragraph can find a source of authority for such proposition and conclusions in the Danish Immigration Services April 2009 Report. However, the UK Report, the effect of which is restated in the first sentence of the paragraph, does address a slightly different issue in that it noted that “many officials expected bribes for providing even routine service.” In the Danish Immigration Services April 2009 Report it simply observed that “bribery might also be involved.”
Although there is a minor difference in expression between the two reports, even if the IMR took the UK Report at its highest and most favourable for the applicant it does not appear to be material. It concluded that the ambit of corrupt practice was limited only to “routine services” and that because “security checks at Tehran Airport are very strict” it was “highly improbable” that a person using a forged passport would be able to pass through the various checkpoints and leave the country. Accordingly, the IMR found the applicant departed the country on his own passport (as the applicant had stated was the case) and did so without the need to bribe, implicitly because he was not on a blacklist.
The question of the payment of bribes for the provision of “even routine services” was clearly considered and addressed in the decision by the IMR. That was particularly so given the reference to observations in the Danish Immigration Services April 2009 Report that “it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally,” and later that “where a person does manage to leave Iran illegally this is not due to flaws within the computer system but rather a human error – i.e. a person has been bribed.” From the transcript of his examination by the IMR it is apparent that the circumstances of his passage through the customary pre-boarding administration was addressed. He explained how he says his father was said to have paid a bribe to an official. He then detailed how he followed a person through various points to a plane which he then boarded. But none of this was accepted by the IMR.
Accordingly, whilst he may not have been expressly directed to that part of the Home Office Report which noted bribes might be paid for routine services (in contrast to information that whilst it is unlikely a passenger might be able to pass through the various points unchecked, there is a possibility of such arising because of payment of bribes), and, given the general rejection of evidence as to the payment of bribes (and the applicant’s story on this point generally), it is difficult to see how such omission occasioned unfairness to the applicant in any event.
It follows, in my view, that although the passage complained of in the Home Office Report referring to officials expecting bribes for the provision of “even routine services” differs from the observations contained in the Danish Refugee Council Report concerning the bribing of airport officials, it is, in the context, a distinction without significance. If anything, the observations in the Home Office Report are less compelling than those in the Danish Refugee Council Report as the Home Office Report appears to address the matter of “routine services.” The nature of bribery contended for related to something more significant than routine services, namely the alleged assistance of a citizen on an airport watch list.
In his submissions the applicant relies upon the High Court’s observations in Plaintiff M61 at [35] as authority for the proposition that the failure to put country information relied upon will give rise to jurisdictional error. However, nothing in that decision departs from the principle enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (supra) at [63]. In my view, in this case the failure alleged had no consequence. The IMR rejected as a finding of fact the applicant’s evidence that officials were bribed. Accordingly, it matters little whether the alleged bribe was of a “routine character” or whether it was specific to bribery at the Tehran airport. The matter was “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected;” Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47] as cited in NABE v Minister for Immigration (supra) at [63]. This ground is dismissed.
Order
Application dismissed.
That subject to any submissions by the applicant within seven (7) days of the delivery of this judgment, the applicant pay the respondent’s costs fixed in the sum of $6,240.00.
I certify that the preceding zero (0) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 20 April 2012
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