DZACP v Minister for Immigration & Anor
[2012] FMCA 570
•7 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 570 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer – applicant an offshore entry person claiming persecution in Iran as a Faili Kurd – applicant not believed – Reviewer failing to consider a claim of perceived Iraqi nationality and failing to afford the applicant procedural fairness in the interview she conducted with him – reviewable legal error established. |
| Migration Act 1958 (Cth), ss.5, 36 |
| Applicant S76 of 2003 v Minister for Immigration [2005] FCAFC 120 SDAQ v Minister for Immigration (2003) 129 FCR 137 SZQFR v Minister for Immigration & Anor [2011] FMCA 785 |
| Applicant: | DZACP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | JANET DUCKMANTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 1 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 29 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: | Australian Government Solicitor |
ORDERS
The first respondent is restrained from relying upon the report and recommendation of the Independent Merits Reviewer dated 23 November 2011.
The Court declares that the recommendation of the Independent Merits Reviewer dated 23 November 2011 was not made in accordance with law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNG 1 of 2012
| DZACP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| JANET DUCKMANTON 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 respect of the protection claims of an offshore entry person. The report and recommendation is dated 23 November 2011. It was notified to the applicant by letter dated 28 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 a Faili Kurd and a Shia Muslim from Iran who claims to fear persecution on account of his race or ethnicity[1] and imputed political opinion. He arrived at Christmas Island on 13 October 2010 and submitted claims in support of a request for a Refugee Status Assessment (RSA) on 2 January 2011[2], which included his statutory declaration[3].
[1] I express no view whether Faili Kurds constitute a racial or ethnic group distinct from other Kurds. It appears to have been accepted in other cases that Faili Kurds constitute a particular social group in both Iran and Iraq
[2] Court Book (CB) CB 33-76
[3] CB 34 -38
On 13 May 2011, the RSA found that Australia did not owe the applicant protection obligations[4].
[4] CB 79-92
On 26 May 2011 the applicant requested an Independent Merits Review (IMR) of the RSA[5], supported by written submissions prepared by his solicitors[6].
[5] CB 94-99
[6] CB 100-140
The applicant’s factual claims can be summarised as follows:
a)his family have been expelled from Iraq. The applicant himself was born in Iraq;
b)the applicant was a Faili Kurd living in Iran. His parents were issued with identity cards known as “green cards” which were cancelled in 2003;
c)the applicant claimed serious discrimination on the grounds of ethnicity and his status as a stateless person in Iran;
d)the applicant claimed to have been involved in anti-government activities, in the nature of publicising slogans and attending demonstrations. Consequently, he was detained and tortured on at least two occasions by the Iranian security agency known as “Etela’at”.
The applicant’s claims were overall summarised as follows[7]:
As a stateless Faili Kurd, our client has no prospect of legalising his status, and no prospect of improving his situation in Iran. Should he be returned to Iran, our client fears ongoing persecution in the form of severe discrimination on the basis of his race (Faili Kurd), membership of a particular social group (stateless persons in Iran), and perceived nationality (Iraqi). Our client also fears persecution on the basis of his imputed political opinion of opposition to the Iranian regime, which he fears will be exacerbated by his Kurdish ethnic identity. Our client’s risk profile on the basis of his imputed political opposition to the Iranian government is further increased as a consequence of his attempt to seek asylum in Australia.
[7] CB 102.4
The Reviewer conducted an interview with the applicant on 7 September 2011[8].
[8] Annexure A to the affidavit of Carl O’Connor affirmed 8 May 2012, CB 151-156 [19]-[56]
During the interview the Reviewer told the applicant that some of his answers were “so full of contradictions that I really am finding it very difficult to believe what you’re telling me”[9] and that one of his answers “doesn’t make sense at all”[10]. At that point she said “we’ll just move along”, but at the end of the interview invited further comment[11] and gave the applicant’s adviser an opportunity to make further oral or written submissions[12]. The adviser said she would address the inconsistencies in a written submission[13].
The Reviewer’s findings[14]
[9] Transcript (T) 48.42
[10] T 49.15
[11] T 55.37
[12] T 56.1
[13] T 56.5
[14] References to the IMR decision are by paragraph
The Reviewer recommended in her report that the applicant not be recognised as a person to whom Australia has protection obligations[15].
[15] CB 144-182
The Reviewer made significant adverse credibility findings against the applicant. The Reviewer refused to give the applicant the benefit of the doubt of any inconsistencies[16].
[16] [87]
For the purpose of the recommendation the Reviewer was prepared to proceed on the basis that the applicant was born in Iraq; that in 1980 he and his family were expelled to a refugee camp in Iran where they were all registered as refugees and issued with green cards[17].
[17] [88]
After considering the applicant’s evidence on a number of issues[18] the Reviewer made the following finding[19]:
In summary, after carefully examining all of the claimant’s foregoing evidence, I find that he has provided inconsistent or contradictory statements, or implausible or recently fabricated evidence (as detailed above) on all significant issues. As a result, I am unable to accept the truth of any of his claims relating to his treatment by the authorities in Iran, and I am not satisfied that the claimant ever suffered severe and serious physical persecutory harm in Iran.
[18] See [88]–[99]
[19] [112]
The Reviewer had before her the submissions quoted above prepared by the applicant's solicitors in which it was alleged that the applicant “fears ongoing persecution in the form of severe discrimination on the basis of his race (Faili Kurd), membership of a particular social group (stateless persons in Iran) and perceived nationality (Iraqi)”[20].
[20] CB 102
In her report, the Reviewer noted, and indeed quoted, the written submission made by the applicant’s solicitors that raised the issue of perceived nationality.[21] She then addressed that issue in this way[22]:
However, during the course of both the Refugee Status Assessment and Independent Merits Review processes, the claimant himself limited his claims for refugee status to having a well-founded fear of persecution in Iran because of (i) his race (Faili Kurd); (ii) his Statelessness and (iii) his (anti-government) imputed political opinions. At no stage in the proceedings had the claimant personally claimed to have a well-founded fear of persecution in Iran because of his “perceived nationality (Iraqi)" and therefore I do not intend to address this matter.
[21] CB 175 [83]
[22] CB 175 [84]
The applicant submitted to the Reviewer that she should “assess his claims exclusively against Iran, being his country a former habitual residence”[23]. The Reviewer found that the applicant was a stateless Faili Kurd, that his country of former habitual residence and country of reference was Iran, and that he currently has no legal right to reside in any other country[24]. The Reviewer therefore accepted the applicant’s submission and assessed his claims exclusively against Iran.
[23] CB 128
[24] CB 175 [85]
The Reviewer was unable to accept most of the applicant’s evidence, but accepted his evidence that he and his family were registered as refugees and held green cards until 2003[25]. However, she was unable to determine whether or not the applicant had obtained Iranian citizenship, finding it was a “real possibility”[26].
[25] CB 152 [25], CB 176 [88]
[26] CB 177 [92]
In any event, the Reviewer was not satisfied that the applicant had ever suffered persecution in a Convention sense in Iran, or that there was a real chance of him so suffering in the reasonably foreseeable future[27].
[27] CB 182 [117]
The judicial review application
These proceedings began with a judicial review application filed on 3 January 2012. The applicant now relies upon an amended application filed on 8 May 2012. There are four particularised grounds in that amended application:
1. The second respondent failed to consider a claim advanced by the applicant, namely that he feared persecution on the grounds of his perceived nationality (Iraqi).
Particulars
(a) The applicant’s adviser claimed that the applicant feared persecution on a number of grounds, including his “perceived nationality (Iraqi).”
(b) The second respondent expressly did not deal with this claim on the basis that the applicant had not “personally claimed to have a well founded fear of persecution in Iran” on this basis.
(c) The second respondent was required to consider the claim as it was a claim squarely raised and never abandoned by the applicant.
2. The second respondent failed to consider a claim advanced by the applicant, namely whether he was at risk of persecution on the grounds of being an undocumented Faili Kurd living in Iran.
Particulars
(a) The applicant claimed that he was born in Iraq and that he and his family were expelled to Iran.
(b) The applicant claimed that in Iran his parents were issued with Green Cards and they were cancelled in 2003.
(c) In considering the applicant’s claims, the second respondent failed to consider whether the applicant was at risk of future persecution on the basis of being an undocumented Faili Kurd.
3. The reviewer erred in failing to consider the applicant’s protection claims against Iraq
Particulars
(a) The reviewer accepted that the applicant had been in Iraq and that he was of Faili Kurdish ethnicity and stateless.
(b) Although the reviewer found that the applicant had “no legal right to reside in any other country” it was satisfied that the applicant would have a “practicably exercisable right to reside in Iraq.”
(c) In light of this finding, the reviewer was obliged to assess whether the applicant would be at risk of persecution [for that] reason in Iraq.
(d) In relation to Iraq, the applicant had claimed that he would be at risk of harm because people would recognize his accent and consider him to be a spy.
4. The reviewer denied the applicant procedural fairness in the conduct of its hearing.
Particulars
(a) The applicant gave evidence at hearing to having been detained in 1989 by the authorities for approximately 10 days.
(b) At hearing, the applicant answered questions in relation to this incident.
(c) At hearing, the reviewer responded by commenting that the applicant’s answers were full of contradictions, difficult to believe and that they didn’t make sense.
(d) The reviewer directed the applicant to “move along” instead of affording him an opportunity to clarify his answers and/or provide further evidence to the reviewer.
(e) In its decision, the reviewer did not accept that this incident had ever occurred.
I have before me as evidence the court book filed on 5 April 2012 and the affidavit of Carl O’Connor made on 8 May 2012. Mr O’Connor’s affidavit introduces a transcript of the interview conducted by the Reviewer with the applicant from Canberra via videolink to Christmas Island on 7 September 2011.
Both parties took the opportunity to make written and oral submissions. The applicant contends that the Reviewer fell into error by failing to consider his claim that he feared persecution in Iran on the grounds of his perceived Iraqi nationality. The applicant further contends that the Reviewer erred in failing to consider his claims for protection in relation to Iraq and in failing to consider whether the applicant was at risk of persecution on the grounds of being an undocumented Faili Kurd living in Iran. Finally, the applicant contends that the hearing opportunity afforded him was procedurally unfair.
The Minister denies that the Reviewer fell into error in any of the asserted respects.
The Minister contends in respect of these grounds that:
a)the Reviewer considered the applicant’s claim to fear persecution upon return to Iran because of his perceived Iraqi nationality but found he did not have any such subjective fear. Alternatively, the Reviewer was not obliged to consider any such claim because it was unsupported by any evidence or other material, or was impliedly abandoned;
b)the Reviewer did not fail to consider the applicant’s claim to be at risk of future persecution upon return to Iran because he was an undocumented Faili Kurd to the extent she was able to, given that she was unable to accept most of the applicant’s evidence. Alternatively, the applicant had not satisfied the Reviewer that he would return undocumented because she was unable to find whether or not he was an Iranian citizen;
c)the Reviewer had no obligation to consider whether the applicant had a well-founded fear of persecution in Iraq because she found that he “currently has no legal right to reside” there and considered his claims exclusively against Iran as requested. Alternatively, the applicant made no claims against Iraq that the reviewer was obliged to consider; and
d)the Reviewer gave the applicant sufficient opportunity to address her concerns about his evidence concerning alleged events in 1989, however that matter was of no real relevance in any event and had no bearing on the Reviewer’s finding that the applicant did not face a real chance of persecution in the future.
Consideration
It is common ground that this Court has jurisdiction to hear and determine the application.[28]
[28] SZQGA v Minister for Immigration [2012] FCA 593
Ground 1 – Did the Reviewer fail to consider a claim of perceived Iraqi nationality?
The applicant's first ground of review raises questions as to the meaning of [84] of the Reviewer's report[29], and as to whether she addressed the issue of perceived nationality as raised in the adviser’s written submission in a way that demonstrates reviewable legal error.
[29] CB 175
The applicant contends that [84] should be read to mean that she would not consider the claim because it was not made by the applicant personally, only in his adviser’s written submission[30]. Thus it is alleged it was not dealt with[31].
[30] Applicant’s Contentions (AC) [15]
[31] AC [14]
This argument is said to require acceptance on the part of the Court that the Reviewer made a fundamental error in failing to understand that an applicant's claims in circumstances such as these are principally made on their behalf by their agents (in this case solicitors), upon whom they are heavily reliant for the articulation of their case. The Minister submits that it is inconceivable that the Reviewer could have had the misunderstanding contended for by the applicant.
The applicant’s adviser claimed that the applicant feared persecution on a number of grounds, including his “perceived nationality (Iraqi)”[32].
[32] CB 102.4
The Reviewer declined to deal with that claim. The Reviewer stated the following at [84] of her report[33]:
… At no stage in the proceedings had the claimant personally claimed to have a well founded fear of persecution in Iran because of his “perceived nationality (Iraqi)” and therefore I do not intend to address this matter.
[33] CB 32
Whether or not the applicant “personally” made this claim, the claim was clearly made on his behalf by his advisers instructed by him. The claim also arose generally on the material and submissions made to the Reviewer concerning stateless Faili Kurds in Iran.
The applicant contends that, in these circumstances, instead of refusing to deal with the claim, the Reviewer was required to consider it or at least raise it with the applicant.
The applicant contends that, by failing to consider a claim that was squarely raised by the applicant’s advisers and also on the general material, the Reviewer committed a “jurisdictional error”[34] and denied the applicant procedural fairness[35].
[34] In IMR cases I prefer to use the expression “legal error” – see SZQZV v Minister for Immigration & Anor [2012] FMCA 472 at [20]
[35] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [47]; SAAD v Minister for Immigration [2003] FCAFC 65 at [40]
The Minister submits that the Court should not reach such a conclusion in circumstances such as these where the Reviewer has otherwise addressed the claims put forward by the applicant’s solicitors as if they were made personally by the applicant[36], and there is an alternative and preferable meaning to be given to [84] on a fair reading.
[36] See for example CB 181-182 [116]
I accept that a claimant for refugee status must satisfy the relevant decision maker that they have an actual fear of persecution that they consider to be Convention related (a subjective fear), that is also objectively well-founded. Failure to satisfy a decision maker of a subjective fear will be fatal to any claim[37].
[37] SDAQ v Minister for Immigration (2003) 129 FCR 137; S76 of 2003 v Minister for Immigration [2005] FCAFC 120
The Minister contends that there was no evidence before the Reviewer either from the applicant directly or from his solicitors that he had a subjective fear of persecution on account of being perceived to be an Iraqi national. The Minister submits that [84] of the Reviewer’s report should be interpreted as meaning that the applicant had limited his claims which did not include a claim of a fear of harm in Iran because of perceived Iraqi nationality.
The Minister concedes that the Reviewer’s choice of language was “unhappy phrasing”[38]. The Minister contends that, in effect, the Reviewer did deal with the claim by finding that there was no evidence of any fear by the applicant of harm in Iran by reason of perceived Iraqi nationality.
[38] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
The Minister advances other reasons why this ground should be rejected.
In Dranichnikov v Minister for Immigration[39] at [24] the High Court spoke of a duty to consider clearly articulated arguments relying upon established facts. Here, although it may be accepted that there was a claim that the applicant feared persecution on account of “perceived nationality”, there was no argument and no facts to support it. Further, in Applicant WAEE v Minister for Immigration[40] at [45] the Full Court said:
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 had satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty… (emphasis added).
[39] (2003) 77 ALJR 1088
[40] (2003) 75 ALD 630
The Minister concedes that there may have been a contention which, if accepted, may have justified concluding that the applicant was entitled to protection, but says that that contention was not supported by any material, let alone probative material. In particular, it was not supported by any evidence from the applicant from which the Reviewer could have concluded that he held a relevant subjective fear that was objectively well-founded.
I accept there is authority for the proposition that a claim not expressly made need not be considered unless there is a “substantial clearly articulated argument relying on established facts” which “clearly emerge[s] from the materials”, even if such a claim “might be seen as arising”[41]. The Minister contends that Applicant WAEE[42] demonstrates that an express claim must also meet this test before it can be said that legal error flows from its non-consideration.
[41] NABE v Minister for Immigration (No 2) (2005) 144 FCR 1 at 22 [68] and the authorities referred to therein
[42] At [45], quoted with approval in NABE at [63]
In summary, the Minister contends that [84] of the Reviewer’s report should be read as consideration and rejection of the applicant's claim based on perceived nationality. Alternatively, the Reviewer did not err in declining to consider the matter as there was simply nothing to consider; no evidence, no country information, and no submissions.
In the alternative, the Minister contends that the Reviewer was entitled to consider that the claim had been abandoned in the absence of any evidence or submissions to support it. The Minister draws support for that contention from the decisions of Cameron FM in SZQFR v Minister for Immigration[43] and Burchardt FM in MZYQZ v Minister for Immigration[44]. However, in the former case it was plain that there was no clearly articulated claim, and in the latter case it was plain that the claim had been abandoned.
[43] [2011] FMCA 785 at [38]-[48]
[44] [2012] FMCA 265 at [18]-[28]
I prefer the submissions of the applicant on this issue. The applicant’s solicitors made a detailed and lengthy written submission on behalf of the applicant to the Reviewer[45]. At CB 102 the solicitors submitted:
As a stateless Faili Kurd, our client has no prospect of legalising his status, and no prospect of improving his situation in Iran. Should he be returned to Iran, our client fears ongoing persecution in the form of severe discrimination on the basis of his race (Faili Kurd), membership of a particular social group (stateless persons in Iran), and perceived nationality (Iraqi). Our client also fears persecution on the basis of his imputed political opinion of opposition to the Iranian regime, which he fears will be exacerbated by his Kurdish ethnic identity. Our client’s risk profile on the basis of his imputed political opposition to the Iranian government is further increased as a consequence of his attempt to seek asylum in Australia.
[45] Reproduced at CB 100-139
Further, in the same submission[46] the solicitors submitted:
The Basij play a central role in the elimination of threats to the existing Iranian regime. With increased discretionary powers, the Basij have targeted Faili Kurds as a group within Iranian society who are commonly perceived to hold ambitions for political autonomy within Iran. The perceived affiliation of Iranian Faili Kurds with their Iraqi counterparts place Faili Kurds within Iran at an increased risk of being targeted by the Basij. The ethnicity of Faili Kurds and their imputed Kurdish nationalism is a central reason why they are targeted by the Basij.
[46] At CB 108
The claim having been made expressly on behalf of the applicant by his solicitors and particularised by reference to the risk flowing from perceived connections to Iraqi Kurds, it required consideration by the Reviewer. The Reviewer could not simply brush the claim aside as not having been made personally by the applicant. The Reviewer herself found at [91] of her report[47]:
In the light of the claimant’s evasive, inconsistent and contradictory evidence on this matter, I am satisfied that the claimant’s parents (and possibly both the claimant and his brother) were citizens of Iraq prior to their expulsion to Iran in 1980, and that the claimant’s inconsistent statements on this issue were a deliberate attempt to mislead me in order that I did not form the view that, based on the country information (which I read him), he could return to Iraq and claim Iraqi citizenship. Although the claimant told me that he had never returned to Iraq, based on his statement in his Statutory Declaration that his family still have friends in Iraq to whom they made enquiries about the claimant when he was purportedly “missing” and asked if they had seen the claimant “in the neighbourhood”, I am satisfied that the claimant and his family have contacts in Iraq sufficient to assist him in providing the documents necessary for him to establish Iraqi citizenship and, as he is reasonably well-educated, he would be able to negotiate the complex bureaucratic processes associated with completing the procedure of acquiring Iraqi citizenship. I am satisfied that the claimant would have a practicably exercisable right to reside in Iraq.
[47] CB 176-177
It is ironic that the Reviewer gave voice to the very perception that she said she would not consider. Nevertheless, the Reviewer considered the applicant’s other claims in relation to Iran as his country of reference. This was on the basis that the applicant is a stateless Faili Kurd whose country of former habitual residence was Iran. I find that the applicant, through his solicitors, had clearly articulated a claim of perceived Iraqi nationality. Moreover, the solicitors had explained the significance of the claim. There is no evidence that the claim was abandoned. For reasons I will explain below, the interview conducted by the Reviewer could not have supported any reliable conclusion as to the applicant’s subjective fear.
Even on the generous view contended for by the Minister, the Reviewer’s report was a wholly inadequate exploration of the applicant’s circumstances should he return to Iran and be perceived to be an Iraqi national. The Full Federal Court has recently confirmed the importance of a complete examination of an applicant’s claims in reports and recommendations prepared by Independent Merits Reviewers[48].
[48] See MZYPW v Minister for Immigration [2012] FCAFC 99, in particular at [12]-[14] and [23]-[24]
I find that Ground 1 has been established.
Did the Reviewer fail to consider a claim by the applicant that he was at risk of persecution in Iran as an undocumented Faili Kurd?
The applicant claimed that he was born in Iraq and that he and his family were expelled to Iran.
The applicant claimed that in Iran his parents were issued with green cards and they were cancelled in 2003. In his statutory declaration of 2 January 2011 the applicant stated the following[49]:
My parents were issued with a green card which was cancelled by the Iranian authorities in 2003 and the government never replaced it with any other card, my parents applied for a white card several time to no avail so we were unable to travel anywhere in Iran.
… I have no documents and will not be issued with any because of this, wherever I’d go in Iran I’d need at some point to evidence my identity and this I cannot.
[49] CB 34, [6] and [29]
The applicant’s adviser also made the following submission[50]:
Our client was unable to obtain basic rights or benefits in Iran, including access to regular education, access to medical facilities and resources or the right to freedom of movement within Iran, with his Green Card restricting his movements. Our client has also experienced extreme discrimination in relation to his rights to work. Since the Iranian government refused to exchange his Green Card for a White Card in 2003, our client has been without documentation.
[50] CB 101.7
In terms of being undocumented, the advisers also submitted: “authorities are able to easily identify stateless Failis as Kurdish due to their lack of documentation and green or white cards”[51]. Further, it was submitted that “combined with their undocumented status, common practice of being refused work permits and inability to relocate to seek employment, the ability of Faili Kurds in Iran to earn income sufficient to subsist is seriously curtailed”[52].
[51] CB 110.3
[52] CB 123.2
The applicant contends that the Reviewer failed to consider whether the applicant was at risk of future persecution as a stateless, undocumented, Faili Kurd.
The applicant submits that the Reviewer confined herself to what had happened to the applicant in the past, when he was documented, and this is best demonstrated by the Reviewer’s conclusion at [113][53]:
Whilst accepting that all non-Iranian citizens residing in Iran are discriminated against (irrespective of whether or not they are Stateless), I do not accept that the claimant suffered cumulative discrimination amounting to persecution because he is a Faili Kurd as he was able [to register as a] refugee and therefore able to access at least 8 years of government-funded education; both he and other family members were able to find sufficient work to fund his trip to Australia and were therefore not denied the capacity to subsist; and, as I pointed out to the claimant, he and his family would be able to access the newly established UN-funded medical insurance scheme.
[53] CB 38
The applicant contends that, by failing to consider the claim advanced by him and by failing to consider the risk of future persecution, the Reviewer committed reviewable legal error.
I accept that it is relevant to consider past persecution in assessing a protection visa applicant’s case. In Minister for Immigration and Ethnic Affairs v Guo[54] the majority held:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
[54] (1997) 191 CLR 559 (Guo)
However, the inquiry does not end there. In SBZF v Minister for Immigration[55] Lander J held at [50]-[52]:
[50] It is, of course, relevant in determining whether there is a real chance that an event will occur for a particular reason in the future to consider whether similar events have or have not occurred in the past for the same or similar reasons. It was appropriate, therefore, for the Tribunal to determine whether or not the appellant herself had been subject to persecutory conduct for a Convention reason: Guo 191 CLR 559.
[51] However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.
[52] In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.
[55] [2008] FCA 1486
I prefer the Minister’s submissions on this ground.
The flaw in the Reviewer’s approach is said to be that she confined her consideration to the past, “when he was documented”[56]. However, as the applicant notes in his contentions, he claims to have lost his “documented” status in 2003[57]. On any view of her report it is improbable that the Reviewer confined her consideration to “when he was documented”.
[56] AC [23]
[57] AC [19]; CB 146.4 [10]; CB 149.5 [13]; CB 150 [15]; CB 155 [45]-[46]
In any event, it is evident that the Reviewer had the future in mind in the concluding observation in the impugned paragraph [113] of her report[58], where she refers to the applicant being “able to access the newly established UN-funded medical insurance scheme”. It is also clear from the Reviewer’s conclusion that she applied the appropriate Convention test in finding that the applicant “has never suffered serious harm amounting to persecution in Iran for a Convention-related reason, and that there is not a real chance of him so suffering in the reasonably foreseeable future”[59].
[58] Extracted at AC [23]
[59] CB 182 [117]; cf MZYPV vMinister for Immigration [2012] FCA 296 at [9], [18]-[20]
Further, the Reviewer was unpersuaded that the applicant was undocumented, or would be on his return. She was entirely unsatisfied with the applicant’s “general credibility”[60]. She considered there was a “real possibility that the claimant… is now… an Iranian citizen… I am unable to make a finding on this matter”[61]. The Reviewer was unable to determine whether the applicant was born in Iran or Iraq, but decided to “proceed on the basis” that the applicant was born in Iraq, but subsequently became a registered refugee in Iran[62], as he claimed[63].
[60] CB 176 [87]; cf CB 181 [112]
[61] CB 177 [92]
[62] CB 176 [88]
[63] CB 152 [25]; though he said this only entitled him to attend a government school. The Reviewer had regard to country information that “Some 760 in Ilam were able to obtain Iranian citizenship after a complicated process, while the general number has dropped in recent years as many repatriated to Iraq after the fall of Saddam. Today there are believed to be some 7,000 registered Faili Kurds remaining in Iran. ( - Accessed 14 May 2009”
The Reviewer did not find that the applicant was documented any later than 2003 when he claimed to have lost his green card, but was nevertheless not satisfied that after that time he and his family were denied the capacity to subsist. To the contrary, she considered that they were able to save a significant sum to fund his trip to Australia[64], said to be $11,000.00[65]. She entirely rejected the applicant’s claim to have been imprisoned for three years during this period[66].
[64] CB 178 [96]-[97], CB 181 [113]
[65] CB 156 [51]
[66] CB 179-181 [99]-[112]
I accordingly accept, as Raphael FM recently found in DZACI v Minister for Immigration[67], that the Reviewer “has made a separate finding that whatever the situation might be, the applicant’s general untruthfulness has meant that the claim cannot be accepted”[68].
[67] [2012] FMCA 379
[68] at [25]
On this basis, any error of the sort complained about cannot be considered to have affected the outcome and should not found relief on discretionary grounds[69].
[69] SZBYR vMinister for Immigration (2007) 81 ALJR 1190; 235 ALR 609; [2007] HCA 26 at [27]-[29], [49]-[90], and [91]; SZMCD v Minister for Immigration (2009) 174 FCR 415 at 437-439 [115]-[128]
Did the Reviewer err in failing to consider the applicant’s protection claims in respect of Iraq?
The Reviewer accepted that the applicant was of Faili Kurdish ethnicity (whatever that may mean) and Shia Muslim religion and that he was stateless and “his country of former habitual reference and country of reference [was] Iran”[70].
[70] [85]
Although the Reviewer found that the applicant had “no legal right to reside in any other country” she was nonetheless satisfied at [91] that the applicant would have a “practicably exercisable right to reside in Iraq.”
The practical effect of Article 1A(2) of the Refugees Convention is that where a person who claims to be a refugee is found to be stateless (or without nationality) then the person is to be considered against their country of former habitual residence[71].
[71] SZIPL v Minister for Immigration & Anor [2008] FMCA 1501; SZIPL v Minister for Immigration [2007] FMCA 643; MZYEG v Minister for Immigration & Anor [2009] FMCA 1249
In this case, notwithstanding her comments to the contrary in relation to legal rights of residence, the Reviewer found that the applicant had a “practicably exercisable right to reside in Iraq”. In WAGH v Minister for Immigration[72] Hill J at [65] referred to the dictionary definition of “reside” as “to dwell permanently or for a considerable time; have one’s abode for a time.”
[72] [2003] FCAFC 194; (2003) 131 FCR 269
The applicant contends that, in light of her finding, the Reviewer was obliged to assess the applicant’s protection claims as against Iraq.
In relation to Iraq, the applicant had claimed that he would be at risk of harm because people would recognize his accent and consider him to be a spy. In his statutory declaration, the applicant stated[73]:
In Iraq, people will know I came from Iran because of my accent and they will accuse me of been a spy as they did many others whom had try to return there before.
[73] CB 37, [26]
The applicant complains that the Reviewer failed to consider the applicant’s claims and whether he would be at risk of persecution upon return to Iraq.
The Minister contends that the Reviewer was, in effect, led into error in her report by the submissions made on the applicant’s behalf by his solicitors.
The applicant submitted to the Reviewer that she should “assess his claims exclusively against Iran, being his country of former habitual residence”, as s.36(3) of the Migration Act “could not negate any obligation Australia has to provide protection” to the applicant because he did not have a “right to enter and reside” in Iraq[74].
[74] CB 128
The applicant referred to SZMWQ v Minister for Immigration[75] with emphasis on what was said to be Flick J’s reference to the right referred to in s.36(3) as “a right that was practically likely to be exercised”[76]. However this reference was misleading. As was pointed out by counsel for the Minister, the quoted passage said to be from Flick J in fact fell from Hill J in his dissenting judgment in WAGH v Minister for Immigration[77]. The majority in WAGH held that the right had to be legally enforceable[78], consistent with earlier authority. The judgment of Flick J (with which Besanko J agreed) in SZMWQ left the earlier authorities undisturbed on that point.
[75] (2010) 187 FCR 109; [2010] FCAFC 97
[76] CB 128
[77] (2003) 131 FCR 269 at 283 [62]-[63], quoted by Flick J at 187 FCR 137 [101]
[78] 131 FCR 279 [38] per Lee J; 285 [74] per Carr J
The Reviewer accepted the applicant’s submission in that regard. She found that the applicant was “Stateless; that his country of former habitual residence and country of reference is Iran; and that he currently has no legal right to reside in any other country”[79]. This finding was unequivocal. She therefore proceeded to consider the applicant’s claims “exclusively against Iran”, as he had requested.
[79] CB 175 [85]
Though unnecessary to do so, and rather confusingly, the Reviewer also addressed the evidence as to whether the applicant may be able to obtain Iraqi citizenship in the future. She was satisfied that he would be able to do so, and in that context stated that he would have “a practicably exercisable right to reside in Iraq”[80]. This phrase appears to refer to the test (incorrectly) asserted by the applicant’s solicitors. In any event, it was a finding of no consequence or relevance. It is clear from her earlier finding and general approach to the matter that the Reviewer applied the correct test in finding that the applicant “currently has no legal right to reside in any other country”.
[80] CB 177 [91]
The Reviewer clearly did not consider that s.36(3) applied to the applicant. It was therefore unnecessary for her to turn her mind to ss.36(4) and (5) of the Migration Act and consider whether the applicant had a well-founded fear of persecution in Iraq.
Further, and notwithstanding her comments at [91] the Reviewer was clearly not of the view that the applicant was currently an Iraqi national. She was unable to determine whether he was an Iranian national, and approached the matter on the basis he was stateless and considered his claims against Iran as his country of former habitual residence (as he requested). No error is apparent in that approach[81].
[81] SZIPL v Minister for Immigration & Anor [2008] FMCA 1501 at [35]
The applicant did not make any claims against Iraq requiring consideration. In my view, read in context, the applicant’s claims in relation to Iraq only arose for consideration if Iraq was a country of reference for the report. Iraq was not a country of reference once the Reviewer found that the applicant was a stateless former habitual resident of Iran and that s.36(3) of the Migration Act did not apply.
I accept that [91] of the Reviewer’s report was unnecessarily included because the Reviewer was led down a false path by the applicant’s solicitors’ submissions. Unfortunately, as I have already noted, the inclusion of that paragraph reinforces the error made by the Reviewer which is established in Ground 1. In other respects, in relation to this ground, while the Reviewer’s reasoning was confused and confusing, it has no significance in terms of the central issues requiring resolution by the Reviewer.
I reject this ground.
Was the interview conducted by the Reviewer procedurally unfair?
The applicant gave evidence at the IMR interview to having been detained in 1989 by the authorities for approximately 10 days.
The Reviewer did not accept that the applicant had ever been detained and in relation to this particular incident the Reviewer noted the following[82]:
… I asked the claimant whether this incident had caused him to have a criminal record. The claimant never directly answered this question and gave rambling and contradictory answers as to whether or not he had been convicted of any offence or not at that time [i.e. in 1989]. At one point he said he was not convicted but was released “on a guarantee”, but then (several times) said that he was convicted and released “on bail.” He then said that he was not convicted in a court. I advised the claimant that his answers to my questions were so full of contradictions that I found it very difficult to believe anything he was telling me. The claimant’s response was incoherent and rambling, and, as I advised him, it didn’t make much sense at all…
[82] At CB 180-181 [108]
At the interview, the applicant answered questions in relation to this incident.
When discussing the incident with the applicant, the Reviewer directed the applicant to “move along” instead of affording him an opportunity to clarify his answers and/or provide further evidence to the Reviewer[83]. The exchange concludes with the Reviewer saying to the applicant[84]:
All right. I’m afraid that doesn’t make sense at all. We’ll just move along. Thank you. Excuse me. Just be quiet. You say you were in gaol for three years. Is that correct?
[83] T 46-49
[84] T 49, line 15
After the above comment, a new topic was discussed.
The applicant contends that procedural fairness requires an applicant to be accorded a hearing that is fair. If there are matters or comments that make no “sense at all” than instead of being told to “move along” or “just be quiet” an applicant is entitled to provide further clarification and/or evidence. In cutting the applicant off in this matter, the Reviewer is said to have denied him fairness in the hearing.
I accept that, in a broad sense, procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its power. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it[85].
[85] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582; SZLGB v Minister for Immigration & Anor (2008) FMCA 332
The Minister contends that the Reviewer’s impugned comments, read in context, do not establish a want of procedural fairness.
Just prior to the “move along” statement the Reviewer commented that “I'm afraid your answers are so full of contradictions that I really am finding it very difficult to believe what you're telling me”[86]. These comments occurred towards the end of the interview. Closer to the end of the interview the Reviewer asked the applicant “Have you anything to tell me that you're not already told me?”[87]. The answer was no.
[86] T 48.42
[87] T 55.37
I disagree with the Minister’s submission. In my view, this case is a clear example of the difficulties involved in attempting to conduct a fair hearing by videolink to a remote location, especially where an interpreter is required. The Reviewer’s description of what occurred at the interview conducted before her graphically illustrate those difficulties:[88]
[88] CB 151-156
The claimant was interviewed by videoconference link between Christmas Island and the IPAO Canberra Office on 7/09/2011. His migration agent (Charabel Nehn from Craddock Murray Neumann) was present in Canberra. The interview was conducted with the assistance of an interpreter (number 5710) in the Kurdish (Faili dialect) language located with the claimant on Christmas Island.
After explaining the procedures to the claimant and making sure that he fully understood the interpreter, I asked him whether he had been ever known by any other name other than … . He said that he had the same name since birth. I advised him that on his Refugee Status Assessment file, it is recorded that he was also known as … . The claimant said that this was a mistake, and that he had never been known by that name.
The claimant told me that he was born in Kurfah, which he said is a town outside Baghdad, Iraq, where both his parents and one of his younger brothers were also born. Another younger brother and sister were born in Chardarwal (also could be spelt Shardowal), Iran. He said that his paternal grandfather was born in a village in Ilam, Iran, but that he did not remember where his maternal grandfather was born. He said that all of his father’s and mother’s many siblings were living in Ilam, and that he had no relatives now living in Iraq.
The claimant told me that when he and his family were expelled from Iraq in 1980, they were first sent to Mehran in Ilam, where they lived in tents in a refugee camp before going to Ilam city for 2 months. They then relocated to Chardarwal, where his family have lived in the same house ever since.
I asked the claimant if he had been to school in Iran. The claimant told me that he attended 9 classes: attending Shirkham primary school for 5 years and Firdoce Secondary School for 3 years. He said that both schools were government schools and that apart from an admission fee, the schools were free. He said that Farsi was the language spoken at both schools.
I (several times) asked the claimant if his younger brother (who was born in Iraq) also went to school. The claimant did not initially answer the question and his reply was confused and rambling. He said that because they didn’t have any ID, school was not much use and that this brother started carpet weaving when young. When pressed for a “Yes” or “No” answer as to whether this brother had ever gone to school, the claimant eventually said “No”. The claimant then contradicted himself said that like him this brother had gone to “night school” which was a government-run school for illiterate people where they both had learnt to read and write. When I questioned the claimant about his attendance at “night school”, he told me that both he and his brother worked as carpet-weavers in the day time and only attended school at night. He then said that his Iranian-born siblings also attended a government-run institution at night for about 1.5 hours. He said that he had attended school at night for 8 years and worked in the building industry in the daytime. He said that his siblings had only had 2 or 3 years education because their father wanted these children to learn a trade and earn a living.
The claimant told me that in the refugee camp, both his parents and all the children had each been given Green Cards bearing their individual names, although his father’s Green Card bore the names of all his children in addition to his own name. The claimant told me that each card contained a photograph of the holder; the name of the holder; the date of birth; the name of the mother; and when the holder had first entered Iran. On the back of the card were words to the effect that the card was for identification purposes only and that the holder was not entitled to any “benefits”. He acknowledged that he and his family were registered refugees. He also acknowledged that he had held a Green Card from a very young age, and that this entitled him to attend a government school, but he emphasized that not other benefits were available to him.
The claimant told me that his father had worked as a labourer for 25 years in Iran, but had been unable to work for the past 8 or 10 years as he was too old and had a problem with his back. He said that all of his brothers are working as carpet weavers.
I (several times) asked the claimant to tell me exactly when he first started work; what work he had done; and at what time. The claimant’s initial responses were rambling and evasive but he eventually told me that he got his first job when he was aged 15, and that between 1994 and 2007 he had worked as a building labourer He said that he had then worked for one year as a mechanic. When I queried these dates, he said that he had been jobless between 2007 and 2010 because he had been in jail. When I again queried whether these dates were correct, he said that he had worked as a mechanic from the beginning of 2007 until the middle of 2007, and that he had started working in 1985, but then he said that he had studied between 1985 and 1994. I advised the claimant that this contradicted his earlier statement to me that he had started work when he was 15 years old, not 7 years old, as he now indicated.
I asked the claimant whether he had ever belonged to any political group or organization. The claimant said that he had not been part of a political group but that at the end of 2006 or at the beginning of 2007 he had written anti-government graffiti on the walls of several buildings in Chardarval. He said that he had written such things as: “Down with Khomeni”; “Down with Khomanei”; and “Death to the Dictator”. He said that he had used spray paint to write these message sand had written them on all types of walls: on government buildings and private houses and on the streets. He said that he had spent 2 nights writing these words on walls around midnight but that nobody had seen him do these things and he was not arrested at the time.
I asked the claimant how he knew that nobody had seen him spray anti-government slogans on the walls of many buildings. The claimant said that five days after these episodes of night-time graffiti writing, he was arrested. He said that two men in civilian clothes who were “secret agents” came to his home. I asked him what time of day it was when they came and he said that it was about 5.00pm and dark, and he thinks it was winter time. He later said that it was 5.00am and everyone was still asleep. He said that when he opened the door, they asked him for his ID and asked him if he was “…”. He said that when he acknowledged that he was “…”, they put a blindfold over his eyes while he was at his front door and took him away. He was then handcuffed and taken to their car. I asked him if he was told why he was being taken away. He said that he was told that he had written anti-government graffiti and had been in a demonstration against the rise in the price of petrol. … He said he could not remember exactly when this occurred but thinks it was between the middle of 2006 and the beginning of 2007.
I asked to the claimant to tell me what happened next, and without referring to the notes he had in front of him. The claimant told me that he was then taken about an hours’ drive to “the station” where he was investigated, beaten, and tortured. He said: “They even but a bottle in my arse”. I asked him which “station” he was taken to. He did not answer this question. He said that he was taken to a small room; his blindfold was removed; and he was confronted by four men, none of whom wore uniforms. He said that they were “secret agents” and Basij. When I asked him how he knew this, he said that he knew it because the men went in and out of the room with security cards.
I asked the claimant to tell me about the question he was asked by these 4 men. He said that he was told that there was a photo of him at the demonstration held 5 days before. I (several times) asked him if the writing on the walls had been mentioned at that time. His response to this question was barely intelligible, evasive and rambling, and he again read from his notes. I again asked the claimant to stop reading from his prepared notes and to answer the questions I was asking him. He eventually said that “they knew” that he had written anti-government graffiti on the walls and although he had denied having done so, they had beaten him up and tortured him until he admitted to what he had written.
I then advised the claimant that I had a problem with his recent statements about his alleged graffiti spraying as he had never previously mentioned that he had sprayed anti-government slogans on walls. The claimant told me that he hadn’t mentioned it before because he was scared to do so, and frightened for his family. I advised the claimant that I didn’t believe this was the reason as he had made several other statements which were critical of the authorities, and therefore there was no good reason not to have mentioned his graffiti activities if they had truly occurred.
I also advised the claimant that there was a problem as to the dates when these incidents purportedly occurred, and I drew his attention to para 14. of his Statutory Declaration dated 2/1/2011 in which he stated that the demonstration he witnessed which led to his subsequent arrest had occurred in 2006, whereas he had advised me that it had occurred in mid-2007.
The claimant continued to interrupt me and became very agitated, upon which his agent requested a break in which he could talk to his client.
After the break, I reminded the claimant that just before the break I had advised him that I had a problem with some of the dates he had earlier provided, and I drew his attention to the specific inconsistencies in his statements. The claimant said that because of the frustration he had endured since arriving on Christmas Island, he was unclear about exact dates, but these things had occurred between mid-2006 and mid-2007.
I advised the claimant that I was also having a problem with the dates when he was employed. The claimant said that he sated working in 1985 and worked up until the 3 years he was in jail.
I advised the claimant that I wanted to further discuss with him his time in jail and I reminded him that he had told me earlier that he had been tortured until he confessed that he had written anti-government words on the wall. The claimant agreed that this is what he had told me and that is what happened. He said that “they” had burnt his hands and arm with acid. I asked him if he had also been asked about his attendance at a demonstration. The claimant’s response was rambling, evasive, and incoherent. He said that he was shown his photograph and asked if he belonged to any anti-government particular group. He said that he was also told that they had a file on him which showed that he had been convicted of public disobedience; promoting western ideas, and corrupting the values of youths.
When I again had difficulty understanding the claimant’s answers to my questions, and realised that once again he was reading from prepared notes, I again (twice) reminded him that I did not want him to read his notes when he answered my questions, but that I wanted him to give me spontaneous answers.
I asked the claimant if he was told there was a file on him when he was first interviewed. He said that he was told about this file after he had been in prison for about 3 or 4 days. He said that they told him that he had a record, and “was now doing it again”.
I asked the claimant whether he had ever been arrested prior to this time. The claimant then told me that he had been arrested in 1989. He said that he had been arrested by “secret agents”, not the police, for promoting western clothing and attempting to westernise the youth of Iran. He said (eventually) that at that time he was asked questions and tortured and detained for about 10 days and was eventually “bailed out” by a friend of his father.
I asked the claimant whether this incident had caused him to have a criminal record. The claimant never directly answered this question and gave rambling and contradictory answers as to whether or not he had been convicted of any offence or not at that time [i.e. in 1989]. At one point he said he was not convicted but was realised “on a guarantee”, but then (several times) said that he was convicted and realised “on bail”. He then said that he was not convicted in a court.
I advised the claimant that his answers to my questions were so full of contradictions that I found it very difficult to believe what he was telling me. The claimant’s response was incoherent and rambling, and, as I advised him, it didn’t make much sense to me at all.
The claimant said that he had been in two different jails in different places in between 2007 and 2010; that he never saw any other detainees during this time in jail because they were “personal” jails where there was only one person in each room, although he was allowed to go into the jail courtyard for 20 minutes per day. He said that nobody knew about “political prisoners” like him. He (twice) acknowledged that he considered himself to be a “political prisoner” because he had written anti-government slogans on the walls and acknowledged that these acts were crimes in Iran.
I then suggested to him that if he had been a “political prisoner”, it was not because he was a Faili Kurd, but because he had sprayed anti-government slogans on the walls. The claimant’s response was that “it was easy for them to convict me of the crime” because they knew he was a Faili Kurd without any ID and it was therefore easy for them to convict him of that crime and put him in jail.
I then (twice) asked the claimant if it were possible that his Green Card had not been replaced with a White Card in 2003 because he had been convicted of a crime in 1989. The claimant said that “maybe” that was one of the reasons, but that none of his family members had yet received White Cards. I then asked the claimant whether it was possible that no members of his family had received White Cards because of his criminal conviction. The claimant against said that “maybe” that was the reason.
I advised that I found it difficult to understand why people like the claimant complained if they were not given a White Card, but also said that even if they had one, it was of no benefit to them. The claimant’s response was that even if he had been issued with a White Card, he still would not receive any of the benefits available to Iranian citizens, such as access to medical services or medical insurance. I then summarised the content of the article published on AlertNet on 11 August 2011 (see below) which outlined the new UN-assisted medical insurance scheme for registered Iraqi and Afghani refugees and other particularly vulnerable people. The claimant’s response was that these things are talked about but nothing ever happens.
I asked the claimant whether there had been any other incidents with the police or the Basij, other than the two he had already told me about. He said that there was nothing else to report.
I asked the claimant whether his parents were citizens of Iraq. He initially told me that they had no ID in Iraq but his answer was confused. I then asked him to answer my simple question: Were his parents ever citizens of Iraq? The claimant then said that their citizenship had been taken away from them when they were expelled from Iraq. He then said that in Iraq his parents had Faili Kurd ID cards but they did not have Iraqi citizenship but as Faili Kurds were allowed to live in Iraq. I then reminded the claimant that, in response to my questions on this matter, he had … just told me that his parents citizenship had been “take away from them” when they were expelled from Iraq. I pointed out to him that their citizenship could not have been “taken away from them” unless they were Iraqi citizens in the first place. The claimant then said that his earlier response to my question as [to] whether or not his parents were Iraqi citizens up until the time they were expelled from Iraq, had been “maybe” they had been Iraqi citizens.
I then advised the claimant that if his parents had been Iraq citizens, as a consequence of a law passed in Iraq in 2006, they were entitled to regain their citizenship if they returned to Iraq. The claimant made no response. I then asked him whether he had ever returned to Iraq and he sad: “Never”. He told me that he had no family left in Iraq.
I asked the claimant whether he had ever applied for Iranian citizenship. He told me that he had applied for Iranian citizenship sometime between 2003 and 2005. I (thrice) asked him to tell me why he thought he would have been entitled to Iranian citizenship as he had not been born in Iran. The claimant did not answer this question, but responded by saying that he and his family had applied for Iranian citizenship but because he had been in jail; was tortured; and had been convicted “of all these crimes” his application for Iranian citizenship was unsuccessful. He said that [he] came to Australian to get a better life and could never forget what had happened to him in Iran.
I asked the claimant where the money had come from to pay for his fare to Australia. He said that he had saved some money from his work as a labourer; his mother had given him some money; and he had borrowed money from friends and relatives. He said that he had collected $11,000. I put it to the claimant that this seemed to be quite a lot of money to be able to collect for a person who had only worked as a casual labourer who had been in jail for the three years immediately prior to his departure from Iran. The claimant said that “over there”, $11,000 “isn’t worth much” and that he and the family had saved money for such things as medical treatment.
I asked the claimant whether he was a religious person. He said that he was a Shi’a, but having suffered torture and “stuff like that”, he now did not accept any religion.
I again asked the claimant whether he had ever belonged to any political group in Iran and he said “No”.
I asked the claimant whether he had anything to now tell me which he had not already told me. He said “No”.
At the end of the Interview, I asked the claimant’s agent whether he wished to make an oral submission. The claimant’s agent told me that he didn’t want to make an oral submission at this time, but that he may wish to make a written submission later.
During the course of the Interview I repeatedly advised the claimant that I did not want him to provide his answers to my questions by reading from a document he had in front of him. I found it necessary to repeat most of my questions several times until I received a straightforward and comprehensible answer. I also found it necessary to (several times) advise both the claimant and the interpreter to translate everything the claimant said, and not to have untranslated discussions between themselves, and not to keep interrupting me. (emphasis added)
The unsatisfactory character of the interview is supported by the transcript. This was a case where the Reviewer struggled to control the interview, where the applicant, who had been in detention for a long time, felt an urgent need to say what he wanted to say but was prevented from doing so, where the Reviewer was unable to obtain clear answers to her questions and where what the applicant and the Reviewer said was not necessarily translated completely or at all. There are too many instances to recite fully but the following exchange relating to the applicant’s claim of being arrested is illustrative[89]:
[89] T 45-47
MS DUCKMANTON: Okay. Just let’s stop there please. I want to go over this quite carefully because I didn’t understand what you were saying in its entirety. You were saying that you had previously – let’s go through this step by step. You had previously been arrested. When was that?
[THE APPLICANT]: It was during the (insdistinct) it was during the 80’s after the war.
MS DUCKMANTON: It was during when? I can’t understand you, interpreter.
[THE APPLICANT]: 20 years after the Iran Iraq war.
MS DUCKMANTON: When about was that – about what year?
[THE APPLICANT]: (indistinct) 1939 the war started and eight years later, the war finished, so 59-67 the war finished, according to - - -
INTERPRETER: Do you want me to convert that 67 for you?
MS DUCKMANTON: Yes please.
INTERPRETER: 1988.
MS DUCKMANTON: 19?
INTERPRETER: 1988 – 88. 1988.
MS DUCKMANTON: So you were arrested in 1988 or 1999?
[THE APPLICANT]: Yeah, 89 year – yes, around 89 – between 88-89.
MS DUCKMANTON: Just let’s be clear. Why were you arrested?
[THE APPLICANT]: Promoting western clothing, westernised clothing.
MS DUCKMANTON: I can’t understand.
MR NEHME: Promoting westernised clothing.
MS DUCKMANTON: Promoting what, western - - -
[THE APPLICANT]: What kind of shirts - - -
MS DUCKMANTON: For promoting western clothing, did you say? For promoting western clothing?
[THE APPLICANT]: Yes. Yes, foreign clothing – the western clothing, body clothing.
MS DUCKMANTON: That was in 1989?
[THE APPLICANT]: 89. Yes.
MS DUCKMANTON: Who arrested you?
[THE APPLICANT]: Because back then it was (indistinct).
MS DUCKMANTON: The what?
[THE APPLICANT]: (indistinct)
MS DUCKMANTON: The police or the Basij? The police?
[THE APPLICANT]: That was a different group underneath the agents, you know. They were secret agents. There was a different group there (indistinct).
MS DUCKMANTON: Secret agents, were they?
[THE APPLICANT]: They’re underneath the (indistinct) secret agents. It’s a different group.
MS DUCKMANTON: Are they not police – not police?
[THE APPLICANT]: No, not police. No.
MS DUCKMANTON: You were arrested by secret agents and what happened to you?
At one point both the applicant and the Reviewer became so frustrated that the hearing was interrupted so that the applicant’s adviser could speak to his client[90]:
[90] T 41
MS DUCKMANTON: There’s also a problem about the dates when this event seemed to have occurred. You said – just listen to me. You said in your statutory declaration that this happened in 2006. You said in your statutory declaration this happened in 2006, paragraph 14.
[THE APPLICANT]: 2006?
MS DUCKMANTON: 2006. Yes. Whereas you told me – no, just listen to me please. Don’t interrupt. Would you tell him to be quiet please, interpreter? Just wait till I finish.
[THE APPLICANT]: I was – you know, the journey was so hard and it was so full of frustration, you know - - -
MS DUCKMANTON: He gets into these (indistinct) every time he’s tested. Every time I test him, we go off on this - - -
MR NEHME: Goes off on and – yes, I - - -
MS DUCKMANTON: Your adviser wants to talk to you. We’re going to have a – I’m going to go out of the room for two minutes.
MR NEHME: This is (indistinct) natural justice. Is this your natural justice (indistinct) or - - -
MS DUCKMANTON: Well, we don’t have an order of that – natural justice - - -
MR NEHME: No, it would interfere with - - -
MS DUCKMANTON: I don’t usually let advisers talk to claimants but certainly for this particular issue.
I would go so far to say that the interview, viewed as a whole, was not a fair opportunity for the applicant to put his case to the Reviewer and answer her questions. The contention put forward by the applicant is a more limited one. I accept that contention.
The Minister seeks to avoid an adverse conclusion on this ground by referring to the opportunity afforded to the applicant’s adviser to make a post hearing submission. However, even the Reviewer’s discussion with the applicant’s adviser about the need for a further submission was problematic. The following exchange occurred towards the end of the interview[91]:
[91] T 56
MS DUCKMANTON: Okay. Does your adviser want to make an oral submission or would you like to make a written submission or don’t you want to do either?
MR NEHME: Look, I will address the inconsistencies with (indistinct) and see if there’s anything that can be done to address it, but in terms of making an oral submission based on what’s happened, I think I would be in a little bit of a difficult position to be able to do so.
MS DUCKMANTON: So the answer is you don’t want to make an oral submission now, but you may want to make a written submission later.
MR NEHME: I will bring the inconsistencies up with various individuals in the office and leave it to them to determine whether or not - - -
MS DUCKMANTON: So you don’t know the answer?
MR NEHME: Yes.
MS DUCKMANTON: Okay. You don’t want to say anything now?
MR NEHME: No, because it’s - - -
MS DUCKMANTON: Yes. That’s all I need.
MR NEHME: Yes.
MS DUCKMANTON: I just want to go through - - -
MR NEHME: Yes.
MS DUCKMANTON: Give you the opportunity, if you wanted to – I’ve given it to you. You don’t want to say anything now and you may want to – you may – say something later. You may or you may not. Is that the situation?
MR NEHME: Correct. Yes, thank you.
MS DUCKMANTON: That’s all right.
There followed a discussion about the timing of a further written submission but not its content. Such a submission was made, although it did not address all of the problems identified by the Reviewer at the interview. The Minister seeks to distinguish this case from SZLGB on the basis of the opportunity to make a post hearing submission. I disagree. In my view, the impugned comment by the Reviewer at the interview, while sufficient to establish a want of procedural fairness in relation to a significant element of the applicant’s claims was symptomatic of a more serious problem at the interview which casts into real doubt the adequacy of the whole interview.
I find that Ground 4 has been established.
Conclusion
I find that the Reviewer committed reviewable legal error as asserted in Ground 1 and Ground 4 of the amended application. I will grant the relief sought by the applicant.
I will hear the parties as to costs.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 August 2012
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