DZACO v Minister for Immigration
[2012] FMCA 552
•7 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 552 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer – protections claims of an offshore entry person from Iran – applicant claiming religious and political persecution – applicant not believed in critical respects – whether the Reviewer made findings unreasonably, failed to consider elements of the applicant’s claims or failed to accord the applicant procedural fairness considered – no reviewable legal error. |
| Migration Act 1958 (Cth), ss.5, 91R |
Minister for Immigration v SZMDS (2010) 240 CLR 611
NAHI v Minister for Immigration [2004] FCAFC 10
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBEL v Minister for Immigration (2006) 228 CLR 152
SZOOR v Minister for Immigration [2012] FCAFC 58
SZOXI v Minister for Immigration [2011] FCA 911
SZNOE v Minister for Immigration [2012] FCA 96
| SZQGA v Minister for Immigration [2012] FCA 593 SZQOJ v Minister for Immigration & Anor [2012] FMCA 298 SZQVO v Minister for Immigration & Anor (No 2) [201] FMCA 512 |
WACO v Minister for Immigration (2003) 131 FCR 511
| Applicant: | DZACO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 78 of 2011 |
| Judgment of: | Driver FM |
| Hearing dates: | 27 June 2012 at Darwin |
| Delivered at: | Sydney, via videolink to Darwin |
| Delivered on: | 7 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | NT Legal Aid Commission |
| Counsel for the Respondents: | Mr T Anderson |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed on 19 April 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 78 of 2011
| DZACO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JILLIAN BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to restrain the first respondent (the Minister) from relying upon a report and recommendation of the second respondent (the Reviewer) in relation to the protections claims of an offshore entry person. The report and recommendation was made on 21 November 2011 and was notified to the applicant by letter dated 23 November 2011. The following statement of background facts is derived from the submissions of the parties.
The applicant is an offshore entry person, as that term is defined at s.5 of the Migration Act 1958 (Cth) (the Migration Act). He is an Ahwazi Arab and a Sunni Muslim from Iran. He arrived at Christmas Island on 14 September 2010 and submitted claims in support of a request for a Refugee Status Assessment (RSA) on 7 November 2010[1], which included his statutory declaration[2]. The applicant subsequently provided additional personal and country information for the purposes of the RSA[3].
[1] court book (“CB”) 39-84
[2] CB 40-45
[3] CB 88-169
The applicant claimed to fear persecution for reasons of religion (Sunni Muslim), his race/ethnicity (Arab) and imputed political opinion[4].
[4] CB 203
On 4 April 2011, the RSA found that Australia did not owe the applicant protection obligations[5].
[5] CB 179-196
On 30 May 2011 the applicant requested an Independent Merits Review (IMR) of the RSA[6]. The applicant made written submissions to the Reviewer via his solicitors dated 20 August 2011[7]. The applicant was interviewed by the Reviewer on 26 August 2011[8]. The Reviewer and the applicant’s solicitors subsequently exchanged correspondence and some translated documents were provided to the Reviewer[9].
[6] CB 197-200
[7] CB 203-207
[8] CB 254-259 [48]-[78]
[9] CB 208-245, CB 259-263 [79]-[84]
The applicant’s factual claims included the following[10]:
[10] see CB 254-259
a)The applicant claimed he and his family had suffered discrimination including land confiscation.
b)The applicant claimed to have suffered emotional harm, harassment and discrimination for reasons of religion and when attending the Eid prayers.
c)When attending Eid prayers, other Arabs took photos of him praying in a Sunni way. The applicant knew that they were taking photographs of him while praying because he was arrested twice and at Court told not to mix with political people and that his Eid photos showed him praying with such people.
d)The first time the applicant was arrested was before the Eid prayers but he was soon released. The second time was about 20 days after his first arrest, when the authorities approached him with photos, asking him to identify persons and held him for two days.
e)Four days after the last period of detention the applicant met with his friends at a person named Mahdi’s house and was shot. On this occasion the applicant was at Madhi’s house with another man called Kazim. Mahdi got a phone call that they were under surveillance and he was told to run. Madhi and Kazim stayed to burn documents and the applicant left. Mahdi was killed at the house and Kazim was arrested. The applicant was shot at whilst he was leaving in his car.
f)The applicant claimed to have been assisting his friends in their activities by sending letters to the UNHCR Ahwazi Rights Organisation and printing materials and letters to and from the UK.
g)After being shot the applicant had no other involvement with the authorities up until he was summonsed. A summons was served once every 20 days. The final notice said he must be present at Court in April for the charges.
h)The applicant did not go to Court because he believed the authorities would charge him on political grounds and his friend Mahdi had been executed.
i)After the applicant did not appear they arrested his father for two days. In October 2010 the authorities then arrested his brother to find out the whereabouts of the applicant. The applicant’s brother was detained for 20 days and released upon his father paying a bribe.
j)The applicant had the following documents; copy of the third and fourth summons, the title deeds of the house, and a membership document from the Ahwazi Human Rights Organisation dated 8 July 2011. The membership document had been in his email for several months. The applicant had not had previous direct contact with the organisation but he had contact with a person called Hamidi Kanani, who was a member.
k)The applicant did not want to be known as an activist but by helping Mahdi and Kazim, by letting them use his office and printing materials, he was helping. The applicant had also sent news to the Ahwazi organisation in 2005.
l)In post hearing submissions, the applicant’s advisers also claimed that the applicant had instructed them in July 2011 that when he was in hiding at his home, some people were sent to his office and picked up his computer and information machines and that amongst the information found on them were communications with the “Human Rights Society in England.” The applicant therefore believed that this was evidence demonstrating to the authorities that he was a dissident.
The Reviewer’s findings[11]
[11] References to the IMR report are by paragraph
The Reviewer recommended in her report that the applicant not be recognised as a person to whom Australia has protection obligations[12]. The Reviewer made significant adverse credibility findings against the applicant. She was “not satisfied that beyond the bio-data information [the applicant] has provided a truthful account of his claimed incidents of harm or of claimed (sic) having come to the attention of the Iranian authorities”[13].
[12] CB 248-278
[13] CB 264 [86]
The Reviewer accepted that the practice of Sunni Islam was not promoted by the Iranian State however it was recognised by the Constitution. The Reviewer accepted the examples of discrimination provided by the applicant (such as being called an infidel or unbeliever and non issue of marriage certificates for Sunni religious marriages) but found that such discrimination did not constitute serious harm[14].
[14] [94]
The Reviewer accepted the applicant was ethnically Arab, spoke Arabic and had always resided in Ahwaz and identified with his Arab cultural ancestry. The reviewer therefore accepted the applicant was a member of a particular social group of Ahwazi Arabs[15].
[15] [98]
The Reviewer accepted the applicant’s oral evidence of “structural discrimination” of Arabs and accepted that the applicant had experienced discrimination for the essential and significant reasons of his Arab race and/or membership of a particular social group[16]. The Reviewer however did not accept that any of the discrimination experienced by the applicant involved serious harm, for the purposes of s.91R of the Migration Act[17].
[16] [99] and [100]
[17] [101]
The Reviewer also accepted that the applicant maintained and expressed pro ethnic Arab/pro Ahwazi Arab political opinions but found that although he held such political opinions it did not extend “either in fact or by implication to anti government or anti regime.”
The Reviewer did not accept any of the claims relating to the applicant’s attendance at Eid prayers in 2006 during which he was photographed[18]. The Reviewer did not accept that the day after the Eid prayers the applicant was charged with converting to Sunni Islam and that a warrant was issued for his arrest for a charge of praying in a Sunni Mosque. The Reviewer did not accept the substance of the applicant’s claim and found such a claim to be “contradicted by the independent information that Sunni Islam is recognised in the Constitution and [was] thus … objectively implausible”[19].
[18] [104]
[19] [91]
The Reviewer referred to the various changes and inconsistencies to the applicant’s evidence over time[20] and concluded that the many anomalies could not be attributed to interpreter difficulties or interview shortcomings[21].
[20] [104]-[112]
[21] [113]
The Reviewer attached no weight to the summons provided by the applicant because of a number of anomalies[22].
[22] [116]
The Reviewer did not accept that the applicant was involved in the Ahwazi Human Rights Organisation, noting that the first time such a claim had been made was at the IMR interview. The Reviewer found the letter from the organisation to contain “totally contradictory” information to what the applicant had provided at all stages.
At [124] and [125] the Reviewer dismissed completely all of the applicant’s factual claims, aside from his evidence of his family’s land being compulsorily acquired by the government.
The Reviewer did not accept that the applicant would be at risk of persecution upon return to Iran[23] including as a returning failed asylum seeker who had left the country on a false passport[24].
[23] [130]
[24] CB 276-277 [126]-[130]
The judicial review application
These proceedings began with a judicial review application filed on 23 December 2011. The applicant now relies upon an amended application filed on 19 April 2012. There are seven particularised grounds in that application:
1. The Second Respondent’s finding that the Applicant was not detained and abused because he was found to be praying in a Sunni way at the Eid Festival was unreasonable.
Particulars
(a) The Second Respondent did not accept that the Applicant was “detained and abused by the Basij because he was found to be praying in a Sunni way at the Eid Festival or that the day after the Eid Prayers he was charged with converting to Sunni Islam and that a warrant was issued for his arrest.
(b) The Second Respondent provided the following two reasons for its rejection of the Applicant’s claims:-
(i) The substance of the narrative was that a photo was taken of him which he had knowledge of because the Talaat had referred to it when questioning him about his associates (a claim that was later rejected); and
(ii) The Applicant’s claims and his adviser’s assertion were “contradicted by the independent information that Sunni Islam is recognised in the Constitution and thus [were] objectively implausible.”
(c) The Constitution did not in any way contradict the Applicant’s claim or provide a basis to dismiss them as “objectively implausible.”
(d) Such reasoning was unreasonable and demonstrates error on the part of the Second Respondent in its ultimate finding.
2. The Second Respondent’s finding that the Applicant held a “political opinion that was pro ethnic Arab/pro Ahwazi Arab” but it did not extend “either in fact or by implication to anti government or anti regime” was unreasonable.
Particulars
(a) The Second Respondent accepted that the Applicant had a “pro ethnic Arab/pro Ahwazi Arab political opinion.”
(b) Its finding that this did not extend “either in fact or by implication to anti government or anti regime” was not open to it on the basis of the material before it.
3. The Second Respondent failed to properly consider whether the Applicant was at risk of serious harm upon return to Iran in the event that he was politically active.
Particulars
(a) The Second Respondent could not dismiss the possibility that the Applicant upon return to Iran might become politically active or more widely involved in the promotion of pro Arab/pro Ahwazi Arab culture.
(b) The Second Respondent therefore considered what would occur to the Applicant if he were to return and be politically active.
(c) The Second Respondent found that it was open for the Applicant to do so “in accordance with Iranian laws that apply to all Iranian Citizens.”
(d) The Second Respondent’s assessment of this claim failed to take into account the independent evidence concerning Ahwazi Arab rights activists and/or imposed a condition on the Applicant that he was required to act within the confines of the law, even if such laws were discriminately applied to Ahwazi Arabs.
4. The Second Respondent denied the Applicant procedural fairness in its treatment of the documentary material relied upon by the Applicant.
Particulars
(a) The Applicant submitted and relied upon documentary material in support of his claims, including two “Summon Letters” of 8 June 2010 and 8 July 2010.
(b) The Second Respondent raised with the Applicant some of its concerns in relation to the Summons.
(c) The Second Respondent however failed to provide the Applicant with an opportunity to address the purported “anomalies” in the material that were relied upon by the Second Respondent to disregard the Summons’ in their entirety.
5. The Second Respondent failed to consider whether the Applicant would be imputed with a political opinion on account of his status or membership of a particular social group of “failed asylum seekers” and/or whether Article 34 would be discriminately applied to him for reasons of being a failed asylum seeker.
Particulars
(a) The Second Respondent referred to the Applicant returning to Iran and the fact of his asylum claim in Australia becoming known.
(b) The Second Respondent however failed to assess, in light of the country information before it, whether the Applicant was at risk of harm by virtue of being a failed asylum seeker returning to Iran.
(c) The Second Respondent also failed to consider whether Article 34 would be discriminately applied to him for reasons of being a failed asylum seeker.
6. In the alternative to ground [5] the Second Respondent’s finding that if the Applicant was taken to the Special Court as a consequence of arriving in Iran without a passport and his application for asylum was known would not lead to any adverse treatment was a finding made without evidence and/or was unreasonable.
Particulars
(a) There was evidence before the Second Respondent that failed asylum seekers were at risk of [serious] harm for reasons of imputed political opinion of return to Iran.
(b) The Applicant’s previous travel outside of Iran and his return on those occasions were irrelevant to this issue.
(c) There was no evidence to support a finding that if his application for asylum in Australia became known he would not “be viewed as suspicious, or as a political or social activist, or in any other manner as opposed to or critical to the Iranian State” and/or such a finding was unreasonable.
7. The Second Respondent denied the Applicant procedural fairness by failing to raise with him any matters and/or information relevant to whether the Applicant would be at risk of harm if returned to Iran.
Particulars
(a) As outlined in grounds [5] and [6] above the Second Respondent considered a claim concerning whether the Applicant would be at risk of harm upon return to Iran.
(b) The Second Respondent made a finding that he would not be at risk but failed to raise this issue with the Applicant at any stage.
Ground 6 was abandoned at the hearing before me on 27 June 2012.
I have before me as evidence the court book filed on 22 March 2012 and a supplementary court book filed on 20 June 2012. I also received as evidence the affidavit of Carl O’Connor made on 19 April 2012, to which is annexed a transcript of an interview conducted by the Reviewer with the applicant on 26 August 2011. In addition, I received an affidavit made by the applicant on 15 June 2012 annexing several documents relied upon by the applicant before the Reviewer about which the applicant gives evidence. Neither of the deponents were required for cross-examination.
Both parties made written and oral submissions. The applicant contends that the Reviewer’s findings that he was not detained and abused because he was found to be praying in the Sunni way at the Eid Festival and that the applicant held pro ethnic Arab and pro Ahwazi Arab political opinions but not anti government or anti regime political opinions were unreasonable. The applicant further contends that the Reviewer fell into error in considering whether the applicant was at risk of serious harm upon return to Iran in the event that he was politically active. The applicant further contends that the Reviewer’s treatment of documentary material relied upon by the applicant was procedurally unfair. The applicant also alleges procedural unfairness in relation to matters or information relevant to whether he would be at risk of harm if returned to Iran. Finally, the applicant contends that the Reviewer failed to consider whether the applicant would be imputed with a political opinion on account of his status or membership of a particular social group of “failed asylum seekers” and whether he would be discriminated against in the application of the law of Iran applying to returnees who left Iran unlawfully by reason of him being a failed asylum seeker.
The Minister denies that the Reviewer fell into error in any of the alleged respects.
Consideration
It is common ground that this Court has jurisdiction to hear and determine the application[25].
Did the Reviewer engage in unreasonable reasoning?
[25] SZQGA v Minister for Immigration [2012] FCA 593
Ground 1
The applicant contends that the Reviewer’s non-acceptance of his account of having being detained following the Eid Festival and subsequent events was unreasonable because his claims were not contradicted by independent information that Sunni Islam is recognised in the Iranian Constitution[26].
[26] Applicant’s Contentions (AC) [21]-[26]
To succeed on this ground the applicant must establish that the Reviewer’s recommendation was so unreasonable, illogical or irrational that no reasonable reviewer could have made it[27]. The correct approach is to ask whether it was open to the Reviewer to engage in the process of reasoning she did and to reach the conclusions she made on the material before her[28]. A finding cannot be considered unreasonable, illogical or irrational if there is room for a reasonable, logical or rational person to reach the same conclusion on the material[29].
[27] Minister for Immigration v SZMDS (2010) 240 CLR 611 (SZMDS) at 643 [119] and 645 [123]
[28] SZMDS at 648 [133]
[29] SZMDS at 649 [135]. See also SZOXI v Minister for Immigration [2011] FCA 911 at [45]-[47]; SZNOE v Minister for Immigration [2012] FCA 96 at [84]-[87]; and SZOOR v Minister for Immigration [2012] FCAFC 58 at [2]-[15], [75]-[85], [112]-[113]
In the application of the above principles it is also necessary to recall that the Reviewer was entitled to interpret and place such weight as she considered appropriate on the country information before her[30].
[30] NAHI v Minister for Immigration [2004] FCAFC 10 at [10]-[14]
The Reviewer’s non-acceptance of the applicant's claims was principally reached on credibility grounds. Thus it is also worth recalling the oft quoted observation of McHugh J in Re Minister for Immigration; Ex parte Durairajasingham[31] that findings on credibility are “the function of the primary decision-maker par excellence”.
[31] (2000) 168 ALR 407; [2000] HCA 1 at [67]
In my view, the Reviewer's non-acceptance of the applicant's claims in this regard was open to her on the material before her. It was not unreasonable, irrational or illogical and does not demonstrate reviewable legal error. Ground 1 fails.
Ground 2
The applicant contends that the Reviewer’s finding[32] that he had a pro-Arab, but not a more broadly based anti-government political opinion was also unreasonable.
[32] CB 269 [102]
At [102] of the Reviewer’s report she states[33]:
[The applicant’s] evidence at every stage of his application process attests to his underlying grievances about the authorities’ treatment of and government policies towards Arabs living in Khuzestan Province and/or members of the particular social group of Ahwazi Arabs, and thus I accept that he has a pro ethnic Arab/pro Ahwazi Arab political opinion. The claims [the applicant] has advanced regarding his attitude towards the Iranian authorities pertain only to his personal life experiences living in Ahwaz. I note he has not at any time commented upon or made claims about broader Iranian Government policies, the widely protested 2009 elections, and his entry interview evidence is that he has not been involved with any political group, organisation, activities or protests, and at the conclusion of that interview he expressly states he is not involved with politics.[34] For these reasons I find [the applicant’s] political opinion is pro ethnic Arab/pro Ahwazi Arab but does not extend either in fact or by implication to anti government or anti regime.
[33] CB 269
[34] Paragraph [25]
The Reviewer considered that the applicant’s opinion was anti-government to the extent that he disagreed with “the authorities’ treatment of and government policies towards Arabs”. The observation that his political opinions did not extend to “broader Iranian Government policies” or “the widely protested 2009 elections” was open to her. It was not unreasonable, irrational or illogical in any relevant legal sense.
In any event, the applicant made no claims based on an actual political opinion of broad opposition to the Iranian regime. The impugned findings at [102] were in my view a reflection of the limited character of the applicant’s political claims.
Further, the Reviewer went on to consider whether the applicant faced a real chance of harm “for reason of any political opinion (actual or implied) if he returns to Iran in the reasonably foreseeable future” and found that he did not[35].
[35] CB 276 [125]
Ground 2 fails.
Did the Reviewer otherwise err in considering the applicant’s claims of political activity?
Ground 3
The applicant contends that the Reviewer failed to properly consider whether he was at risk of serious harm upon return to Iran in the event that he was politically active.
As noted above, the Reviewer positively found, following an assessment of the evidence before her, that the applicant did not face a real chance of harm for his actual, or any imputed, political opinion. She also positively found that upon his return he could repeat his past political practices, “without any risk of persecution because of his political opinion”[36]. The Reviewer accepted what the applicant said during his entry interview and found that he had “not been associated or involved with any political or social groups or organisations”[37]. She rejected any evidence he gave to the contrary.
[36] CB 276 [125]
[37] CB 275 [123]
The applicant complains about the Reviewer’s finding at [125][38]:
Beyond [the applicant’s] evidence of his family’s land being compulsorily acquired by the government and that he wanted to lodge a complaint but his father decided not to proceed with that process,[39] I do not accept [the applicant] has ever come to the attention of the authorities in Iran for any reason whatsoever. I do not accept he has ever been detained and/or arrested for any reasons. It follows from this that I do not accept he has or will be issued summonses for any past activities he has undertaken in Iran, or that a warrant for his arrest has or will be issued in respect of any period prior to his departure in 2010, or that there is any file on him at any Iranian Court about his Sunni religious practice, land confiscation, listening to BBC or association with friends who have come to the adverse attention of the authorities. Nor do I accept his father has been required to lodge property deeds for bail on his behalf, or that his brother has ever been detained by authorities who have been seeking [the applicant’s] whereabouts. I find [the applicant] does not have any political or social activist profile with the authorities or that they have any knowledge of his pro ethnic Arab/pro Ahwazi Arab views. Based on the independent information provided by his advisor I find in the reasonably foreseeable future he will be able to continue expressing his views regarding Arab cultural history and identity in Khuzestan as he has in the past with his family and friends, without any risk of persecution because of his political opinion. If [the applicant] is interested in becoming politically active or more widely involved in the promotion of pro Arab/pro Ahwazi Arab culture it is open to him to do so in accordance with Iranian laws that apply to all Iranian Citizens. I find there is not a real chance [the applicant] will face persecution for reason of any political opinion (actual or implied) if he returns to Iran in the reasonably foreseeable future.
[38] CB 275-276
[39] Declaration paragraph 21
This ground relies on in the Reviewer's finding that the applicant enjoyed a legal entitlement to participate in political activity in Iran. There was country information before the Reviewer about the repression of Ahwazi political activists in Iran[40]. The Reviewer did not find that the applicant would become politically active, was likely to become politically active, or even that there was a real possibility that he would become politically active upon his return to Iran. She simply observed that “if” he did so, he could lawfully do so.
[40] See CB 206
Further, there was no evidence that the applicant intended to become politically active if he returned to Iran. In these circumstances it was unnecessary for the Reviewer to give any consideration to the matters now raised by the applicant that pertain to the risk faced by political activists. There is therefore no merit in this ground because the applicant had not claimed to be, or to want to be, an activist, and the Reviewer did not expect the applicant to modify his behaviour should he return to Iran.
Did the Reviewer deny the applicant procedural fairness?
Ground 4
The applicant contends that he was denied procedural fairness by the Reviewer because she did not identify and seek his comment on all of her concerns with respect to the summonses provided to her by the applicant.
The Reviewer identified and sought comment on country information relevant to the summonses which noted in particular that “summonses in Iran can easily be obtained illegally and / or forged”[41]. The applicant responded to the Reviewer’s query concerning the absence of signatures and numbers on the summonses, but did not respond to the Reviewer's suggestion that the summonses were not genuine[42].
[41] CB 260-261 [83], CB 239-240
[42] CB 262 [84], CB 242
In determining that it was appropriate to entirely disregard the summonses the Reviewer noted further anomalies with respect to the addresses and dates on the summonses[43]. The applicant suggests he could have responded to these further anomalies if asked[44].
[43] CB 273 [116]
[44] AC [50]
The applicant provided the summonses to the Reviewer to corroborate the claims that he was wanted by the Iranian authorities and feared persecution on that account. However, the Reviewer made comprehensive credibility findings against the applicant. She believed almost nothing he said. As noted above, she commenced her findings by saying she was “not satisfied that beyond the bio-data information [the applicant] has provided a truthful account of his claimed incidents of harm or of claimed (sic) having come to the attention of the Iranian authorities”[45].
[45] CB264 [86]
Similar statements are repeated throughout her findings. It was therefore unsurprising that the Reviewer would place no weight on the alleged summonses, having found that the events the applicant alleged caused him to be summonsed had not occurred, irrespective of the anomalies identified between the documents, the country information and the applicant's evidence. Given the credibility findings, and the Reviewer’s concerns about the documents on their face, she was entitled to disregard them.[46].
[46] WACO v Minister for Immigration (2003) 131 FCR 511 at 525 [58]
It was probably open to the Reviewer to disregard the summonses given her view of the applicant's credibility[47]. In any event, her assessment is further supported by her concerns about the documents themselves, and she invited comment on her concerns. The applicant complains that he was not invited to comment on every aspect of the Reviewer’s concerns. The applicant claims that he could have said something with respect to the addresses on the summonses if he had been invited to but I do not accept that any more comprehensive discussion about the documents at the hearing could have had a bearing on the outcome. Accordingly, I reject this ground.
Did the Reviewer otherwise err in failing to consider whether the applicant would face persecution as a failed asylum seeker?
[47] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70 [49]
Ground 5
The applicant contends that the Reviewer failed to consider whether he would face persecution as a failed asylum seeker, particularly by the “discriminate” application of Article 34.
The Reviewer found that the applicant's name was not on any airport checklist[48]. Having considered a range of country information[49], the Reviewer then found[50]:
If [the applicant] is taken to the special court as a consequence of his arrival without a passport or other travel document which contains an exit visa and the fact of his asylum claim in Australia becomes known, I do not accept he will be viewed as suspicious, or as a political or social activist, or in any other manner as opposed to or critical of the Iranian state … I have found he has no political or other adverse profile with the authorities. I am not satisfied [the applicant] will come to the adverse attention of the authorities in the reasonably foreseeable future because of his ethnicity or membership of a particular social group of Ahwazi Arabs. For these reasons I find [the applicant] will not come to the adverse attention of the Iranian authorities on re-entry to Iran beyond that of any Iranian who returns without a valid travel document. On the information before me I find there is not a real chance Article 34 will be discriminately applied to the applicant …”. (emphasis added)
[48] CB 276 [127]
[49] CB 276-277 [129]
[50] CB 277 [130]
I reject the applicant’s contention that the Reviewer failed to consider the applicant’s claim. The claim was considered. The question of whether the Reviewer considered every item of evidence advanced on his behalf in support of his claim does not assist him, and in any event, I am unwilling to infer that the Reviewer’s failure to refer to aspects of the adviser’s submission on the topic means that those aspects were not considered. This ground fails.
Ground 7
The applicant concedes that his claim that he was at risk of persecution upon re-entry or return to Iran was considered by the Reviewer at [126]-[130] of her report. He contends, however, that he was denied procedural fairness because of the Reviewer’s failure to discuss the issue with him at the interview or to afford him an opportunity to respond to information relied upon by the Reviewer.
I accept the Minister’s contention that, in essence the applicant contends that he was denied procedural fairness because the Reviewer considered and determined his claims to fear persecution if he was returned to Iran without informing him that she would do so, because the claims were not made or dealt with during the RSA process.
The Reviewer was obliged to deal with the claims made, and did so. That the claims may not have been made or dealt with during the RSA process was irrelevant in these circumstances. I accept that the applicant's attempt to invoke what fell from the High Court in SZBEL v Minister for Immigration [51] in different circumstances is arguable[52]. In the present case, however, at the IMR stage, the applicant knew, or should have known, that all of his claims were in issue[53]. I accept that the outcome may well have been different if that were not the case[54].
[51] (2006) 228 CLR 152, AC [64]
[52] SZQOJ v Minister for Immigration & Anor [2012] FMCA 298 at [31]
[53] Transcript, pages 45-47, correspondence at CB239-243 and [75]-[84] of the Reviewer’s report and recommendation
[54] See SZQVO v Minister for Immigration (No 2) [201] FMCA 512 in particular at [54]-[60]
This ground also fails.
Conclusion
The applicant has failed to demonstrate reviewable legal error by the Reviewer. Accordingly, I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 August 2012
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