DZACV v Minister for Immigration
[2012] FMCA 678
•7 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DZACV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 678 |
| MIGRATION – Review of decision of Independent Merits Reviewer – whether the Reviewer asked the wrong questions – whether the Reviewer failed to consider the claims of the applicant – whether Reviewer required to make finding in relation to s.91R(1) and (2) of Migration Act 1958 (Cth) – where Reviewer did not consider process by which applicant’s father could apply for visa – where Reviewer found that applicant obtained his own valid passport – whether Reviewer failed to take into account relevant considerations – whether Reviewer failed to provide substance of adverse country information to applicant – whether Reviewer’s decision may have been affected had substance of information been provided to applicant – whether failure to provide substance of information error of law – credibility – whether finding of credibility an essential and significant element of decision – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.36(2), 91R(2)(f) |
| Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319 Kioa v West (1985) 159 CLR 550 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZQGA v Minister for Immigration and Citizenship [2012] FCA 593 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 |
| Applicant: | DZACV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 8 of 2012 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 July 2012 |
| Date of Last Submission: | 24 July 2012 |
| Delivered at: | Sydney by video-link to Darwin |
| Delivered on: | 7 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Karapanagiotidis |
| Solicitors for the Applicant: | Northern Territory Legal Aid Commission |
| Counsel for the Respondents: | Mr T Liveris |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DNG 8 of 2012
| DZACV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant who arrived in Australia on 21 November 2010 at Christmas Island as an unauthorised entrant claimed to be an undocumented stateless Faili Kurd from Ilam in Iran. Having made a claim to be a person to whom Australia owed protection obligations he was interviewed by a RSA officer on 25 January 2011. The officer found that he did not have a genuine fear of harm and that there was not a real chance of persecution occurring should he return to Iran. That decision was made on 15 March 2011. The applicant then requested an Independent Merits Review of the decision. He attended a hearing before an Independent Merits Reviewer[1] together with his migration agent. On 5 January 2012 the Reviewer found that he did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth)[2] and that he should not be recognised as a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.
[1] “Reviewer”
[2] “Act”
The applicant’s claims for protection were succinctly put in a written statement made by him on 22 January 2011 [CB 38 – 39] in which he says:
“I am a stateless Feyli Kurd with no identity and citizenship in Iran. As such I am not enjoying basic dignity and human rights. I have been denied access to good work opportunities with legal protections, health care and education. My life is miserable in Iran with no prospects for advancement.
Further, my family including myself did not have access to a white card. It was never provided to my father.
Therefore because I had no identity documents, I was fearful of venturing into the town because I would be subject o random detention and questioning by the authorities such as the police. Following arrest, I may be held in custody and tortured.”
If I return to Iran I will be executed because I left Iran illegally. Also as a Feyli Kurd I fear persecution due to my status as a stateless person.”
There was no significant change to those claims when the applicant was interviewed by the Reviewer. The applicant told the Reviewer that his grandparents have both been born in Iran in the province in which he lived. His parents had been born in Iraq. He was questioned as to where they might have been born. He responded “probably in Baghdad and they moved to Iran in 1980”. He told that they lived first in tents and then moved to their village about six years ago where they lived in a property owned by AK with a telephone. His father worked as a shepherd for AK. The applicant told that he had had five years of unofficial schooling and had then gone to work with his father as a shepherd and had done some work in construction from about the age of 12. He had worked all the time until his departure.
The Reviewer questioned the applicant about his lack of documentation. He told that his father had tried to get documentation but had been rejected. He stated that as his father could not get an ID he could not either. The Reviewer raised with the applicant independent country information which indicated that whilst there were a large number of Faili Kurds in Iran the vast majority of them were Iranian nationals with documents. The Reviewer raised with the applicant the Iranian citizenship law which provided that citizenship passed from father to son and that as his grandfather had been born in Iran his father would be an Iranian citizen and so would he. The applicant countered that there was no evidence that they were Iranians because there were no documents at that time.
The Reviewer raised with the applicant the fact that he told that he had no difficulty getting through Tehran airport with a photo substituted passport. The Reviewer pointed out the country information showing it was very difficult to get through that airport with false documents.
The Reviewer cited considerable country information which, with one exception, it is conceded was available to the applicant. This concerned a number of unregistered Iraqi Faili Kurds, the treatment of Kurds in Iran, Iranian citizenship and Iranian passports, departure from Imam Khomeini Airport and re-entering Iran.
In his findings and reasons the Reviewer accepted that the applicant was a Faili Kurd and a Shia Muslim. He did not, however, accept that the applicant was stateless or undocumented. He accepted independent country information from a DFAT report that it was probable that the majority of Faili Kurd refugees in Iran were registered and whilst that did not exclude a claim to be an undocumented Faili Kurd refugee that itself did not constitute the person a refugee. The Reviewer’s conclusions about the applicant’s status commence at [127] [CB 210]:
“[127]The claimant states he had been an unregistered Faili Kurd in Iran as he had been born to parents who had been unregistered refugees from Iraq. He claims his father had previously attempted to obtain documents/Iranian citizenship for the family but had not been successful.
The Reviewer continues at [128]:
“[128]However, other information given by the claimant leads me to conclude that he is not a non-citizen of Iran, undocumented and stateless. Whilst the claimant claims to have suffered significant hardship in Iran, with constant and cumulative discrimination and persecution all his life as a direct result of his statelessness and lack of documentation, much of his own evidence shows he did not suffer the disadvantaged life he claims.”
There follows seven dot point paragraphs which at this stage of these reasons I shall paraphrase as follows:
i)His education and the reasons for him commencing work at age 12.
ii)His ability to work for thirteen years.
iii)His residence in T village for the whole of his life and his parents’ renting of a property with a telephone.
iv)The fact that he made no claims that members of his immediate family had suffered any particular harm in the village.
v)The fact that he was able to gather a large sum of money to finance his travel to Australia evidencing that he and his family were not prevented or hindered from working or earning a livelihood.
vi)The fact that he travelled to Ilam city a number of times notwithstanding his earlier assertions to the assessor that he did not travel to the city.
vii)That he had no spoken of any actual experiences of harm or harassment at the hands of the Iranian authorities.
The Reviewer used this evidence as indicative of the fact that the applicant and his family were not undocumented non citizens. The Reviewer then proceeds at [129] [CB 212] to say:
“[129]Based upon his own evidence, his family background strongly suggests that he is in fact an Iranian national. The father of the claimant’s father was an Iranian who had been born in Ilam province. Iranian citizenship laws show that nationality descends from the father, and it follows the claimant’s father is also an Iranian national through descent. I note the claimant’s maternal grandfather had been born in Ilam province too, and it follows the mother is an Iranian national. He states his parents could not prove their antecedents and when they came to Iran the family land had been confiscated and so they had no property in Iran. It is reasonable to consider the existence of an Iranian grandfather who had been born and resided in the province with land, would provide evidence to satisfy the Iranian authorities of the father’s Iranian nationality. The family’s well settled lives in the village reinforce this.
…”
At [130] the Reviewer deals with the applicant’s departure saying at [CB 213]:
“[130]Whilst not determinative of the issue, his evidence that his passport was made for the purpose of getting through the airport and did get him through the airport checks without any difficulty at all, suggests the ease of his passage was because the passport was in fact his own, legal Iranian passport.”
The Reviewer’s conclusions are found at [131] and [132] [CB 213]:
“[131]In sum, I accept the claimant is a Faili Kurd. However, country information shows the large majority of Faili Kurds in Iran are Iranian nationals. I do not accept that his ethnicity therefore means he is stateless, undocumented or a displaced/stateless Iraqi or a child born to displaced/stateless parents from Iraq. I accept the claimant was born and resided in a village in Ilam province, Iran. Yet when I consider his claims concerning his life there, and the circumstances of his immediate and extended family, I conclude he did not reside in Iran as a non-citizen: he was not undocumented and/or stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation after he re-enters. I accept that the claimant and his family never held Amayesh cards, but conclude this is because they were not non-citizens/stateless/refugees/undocumented in Iran and they had no need to hold Amayesh cards. I conclude the claimant never sought an Amayesh card not because he thought he would not be issued one, but because he had no need to. I do not accept the claimant or any of his family have been unable to access appropriate public serves and benefits in Iran.
[132]In the light of my findings, I have not gone on to assess whether the claimant has, or is able to seek and obtain, Iraqi nationality.”
The Reviewer then proceeds to consider the applicant’s claims relating to the danger he anticipated should he return as a failed Faili asylum seeker but not an undocumented stateless one. This part of the decision is not specifically challenged by the applicant (save as to the fact of his statelessness) but there does appear at [136] [CB 214] an important paragraph:
“[136]Intertwined with his stated fear to return to Iran is the claimed manner of his departure using an Iranian passport to which he was not entitled, and how his travel to Australia would be viewed by the Iranian authorities if he does return there. However, in light of the foregoing I find he is an Iranian national and so I do not accept he had any need to organise a false passport to depart Iran. It follows I conclude the passport he used to depart Iran was in fact his own legal Iranian passport issued in Ilam.”
The applicant sought review of the Reviewer’s decision and on 1 June 2012 filed with this court an Amended Application originally of six grounds. Only four were argued before me and I shall deal with each in turn. Before doing so I should say that it is perhaps unfortunate that the Reviewer chose to emphasise his concern about the applicant’s status and only tangentially dealt with his claimed well founded fear of persecution. The effects of this will be seen in the forthcoming discussion.
“Ground 1
In assessing the applicant’s nationality or citizenship, the second respondent failed to ask the correct questions and/or failed to consider the claims advanced by the applicant.
Particulars
(a)The reviewer did not accept that the applicant was an undocumented, stateless, Faili Kurd.
(b)The reviewer’s findings were based partly on the information provided by the applicant.
(c)The reviewer found that the applicant’s work and employment history did not demonstrate that the applicant had been “prevented” from either studying or working.
(d)The applicant’s claim was that he faced discrimination and that he had been denied access to good work opportunities and had no right to legal protection, health care and education.
(e)The second respondent asked itself the wrong questions in reasoning that because the applicant had not been prevented from studying or working he was therefore not an undocumented, stateless Faili Kurd.
(f)The second respondent further erred in its finding that “given the claims that such harassment and ill-treatment naturally flows from a status as a stateless Faili Kurd, the lack of such ill-treatment strongly suggests that he did not have that status in Iran.”
The way the ground was argued before me is best found in the applicant’s written submissions:
“[25]In assessing whether the Applicant was a member of the claimed particular social group and/or whether he was documented, the reviewer asked itself the wrong questions and/or failed to consider the claims advanced by the Applicant.
[26]The reviewer proceeded on the basis that an undocumented person would necessarily be:
· Prevented from accessing schooling;
· Prevented from working or earning a livelihood; and
· Harassed and ill treated by the authorities.
[27]In finding that the Applicant had not been subject to any of the forms of harm above, the reviewer found that the Applicant had in fact been documented in Iran.
[28]There was no basis for the reviewer to use this set of criteria in assessing whether the Applicant was undocumented or formed part of the particular social group claimed. Also, the Applicant’s claims did not provide a sufficient basis, notwithstanding the reviewer’s comments.”
I am afraid that I cannot agree with the applicant that the Reviewer has set a series of criteria into which he expected a successful applicant to fit. I am more in sympathy with the case put by the respondent that these dot points constitute a refutation of the particular claims that the applicant has made and that as he made those claims as indicating both his statelessness and his persecution there is a natural conflation. In the first dot point, dealing with education, the Reviewer makes comment on the applicant’s ability to read and write Persian which suggested that he had undertaken more than the five years of informal schooling, to which he admitted. But the real point of that paragraph, so far as the applicant’s claims are concerned, is the Reviewer’s reliance on country information in relation to the rates of out-of-school children in Ilam province, this issue is dealt with in relation to Ground 3 below.
The second dot point relates to work opportunities. It is a refutation of his claim that he was deprived of work but also suggests a refutation of the requirement found in s.91R(2)(f), a finding the Reviewer would be required to make in order to be satisfied that the applicant was a person to whom protection obligations were owed.
The third dot point refutes the claim that his family would not have access to rental accommodation (see [CB 209]) but is used by the Reviewer to indicate that the family were not undocumented non citizens. This is also the indication given in the fourth dot point which deals with the fact that no claims are made that his family suffered any harm in the village. The sixth dot point refers to the ability to collect the $7,500.00 required to finance the applicant’s trip:
“When I pointed out 5.5 million was a lot and queried how it was possible for them to save that much, he stated it is not a lot of money and listed their work and few expenses. However, I do not accept this explanation explains how they were able to save a significant amount for Iran, particularly as he also claims the family lived in hardship. In Iran his ability to save and gather such a significant sum shows he (and his family) were not prevented or hindered from working or earning a livelihood for any reason.” [CB 211]
This again goes more to s.91R(2)(d) and (2)(f). The fifth dot point indicates a possibly erroneous view of the applicant’s credibility which to my mind is irrelevant because the final conclusion of the Reviewer that the applicant had gone to Ilam city a number of times was one that the applicant himself accepted. The final dot point notes that the applicant has not complained of any experience of harm or harassment at the hands of the Iranian authorities and finds that the lack of such ill-treatment strongly suggested that he did not have the status of an undocumented Faili Kurd.
The Reviewer’s findings in the dot paragraphs are not the sole basis for his finding that the applicant is not a stateless Faili Kurd. As previously noted the Reviewer goes on to discuss the nationality issue and the descent from the applicant’s grandparents and the passport issue before coming to the conclusions set out at [131] [CB 213] extracted at [9] of these reasons.
The respondent argues that the Reviewer had no need to make any comment that he did not accept that the applicant had suffered serious harm within s.91R(1) and (2) because this was clearly implied in the dot points and there was only a claim that such harm as the applicant would suffer would be suffered because of his statelessness not because of his ethnicity. There was not a claim that in general Faili Kurds suffered as he had suffered. Whilst it might have been preferable if the Reviewer had dealt with 91R(1) and (2) in terms, his failure to do so does not amount to a jurisdictional error in the circumstances of this case.
“Ground 2
The second respondent failed to take into account relevant considerations and/or failed to consider the process by which the applicant and/or his father could apply for citizenship.
Particulars
(a)The second respondent found that the applicant’s family background suggested that he was in fact an Iranian national.
(b)The second respondent found that it was “reasonable to consider the existence of an Iranian grandfather who had been born and resided in the province with land, would provide existence to satisfy the Iranian authorities of the father’s Iranian nationality.
(c)The second respondent failed to consider the process of applying for citizenship and/or failed to take into account the application of Article 983 of the Civil Code of Iran.”
In her written submissions Ms Karapanagiotidis states:
[39]The reviewer entirely failed to consider the process by which the Applicant’s father could apply for citizenship and/or the practicality of the Applicant’s father providing sufficient evidence “to satisfy the Iranian authorities.”
She then makes reference to other information that the Reviewer had in his possession about the difficulty of obtaining Iranian citizenship by proving Iranian ancestry. She says at [44] and [45]:
“[44]The reviewer failed to consider relevant information that may have been critical to its overall assessment of the Applicant’s nationality and outcome of the Applicant’s case. The Reviewer’s reasons reveals that no regard was paid to other relevant information contained in the country information and the Iranian Civil Code itself that was central to the issue of nationality and the process of obtaining it. As such, it is contended that in relation to a critical issue the reviewer failed to ask itself the correct questions and/or failed to have regard to relevant information: SZOAU v Minister for Immigration & Anor [2010] FMCA 606 (19 August 2010) at [118] to [131]; SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938; Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87-89].
[45]Having before it information concerning the formal documents required to prove nationality and in the context of the Applicant’s claims that they were often discriminated and called “son of an Arab” (transcript, P-13), the reviewer failed to consider whether the Applicant, even if he fell within the provisions of the Civil Code, would have his Iranian nationality recognised.”
It is correct that the applicant argued that his father had tried to establish his identity and had failed, and if that was where the matter was left then there would be some strength in an argument that the Reviewer had failed to take into account the very relevant material about the difficulty in establishing that connection with Iran that was so necessary to obtaining citizenship. However, the Reviewer has made an independent finding that the applicant travelled to Indonesia on his own passport. That being the case, he had already established his own Iranian citizenship and the matter was simply not further in issue. For these reasons Ground 2 cannot succeed.
“Ground 3 (former Ground 5)
The second respondent denied the applicant procedural fairness in failing to raise with the applicant issues relating to his education and/or literacy levels.
Particulars
(a)In finding that the applicant was not a non-citizen of Iran, undocumented and stateless, the second respondent relied, in part, on the applicant’s history of education and level of literacy.
(b)The second respondent made a finding that the applicant’s “literacy strongly suggest he undertook more than the 5 years of informal schooling at night that he claims.
(c)In his application the applicant had described himself as someone who was “illiterate” and without formal education.
(d)The second respondent failed to raise the issue of the applicant’s education and/or level of literacy with the applicant and thereby denied him procedural fairness.”
I have set out the relevant dot-point paragraph at [7] of these reasons and I have also noted that in my view the remark made by the Reviewer “his literacy strongly suggests” is firstly not a finding in itself and secondly the refutation that the Reviewer was making was of the claim that because the applicant was an undocumented Faili Kurd he did not have access to any advanced education. The Reviewer concludes that this is nothing to do with his nationality or his statelessness but is entirely due to the fact that it was common in this area to bring children into the workforce as soon as possible to bolster the income of the families:
“Country information shows there have been high rates of out-of-school children in the deprived Ilam province, for a number of reasons including: low income of families; poor cultural levels; scattered and thinly populated villages; and making use of boys and girls in income generating activities of the family. I do not accept his commencement of work at a young age shows he was prevented from accessing schooling for any reason (ie because he is stateless/undocumented or as he is a Faili Kurd.)” [CB 27]
Regrettably, this finding is based upon country information that does not appear to have been put to the applicant which is prima facie a breach of the requirements of procedural fairness binding this type of determination, see Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319,[3] Kioa v West (1985) 159 CLR 550, Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
[3] “M61”
In M61, in circumstances where country information was not put to the first plaintiff, the High Court unanimously held at [91] that:
The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.
And in relation to country information not being put to the second plaintiff, their Honours opined at [98]:
As for want of procedural fairness, it may well be that some of the facts said to be revealed by country information were sufficiently put to the plaintiff or his adviser for comment. It is plain, however, that the reviewer did not put to the plaintiff country information she had before her concerning the treatment of failed asylum seekers returning to Sri Lanka. Not putting the substance of the country information to the plaintiff for his consideration and comment denied him procedural fairness.
At first sight, the failure appears to be minimal in relation to the decision as a whole but that is not the test. In SZQGA v Minister for Immigration and Citizenship [2012] FCA 593, Barker J considered in some depth the authorities in relation to when a failure to provide procedural fairness might constitute a jurisdictional error, or otherwise entitle a party to relief. He noted at [134-135] that:
“[134]Since Craig, the High Court has held that denial of procedural fairness may also constitute jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 26 CLR 57.
[135]Having regard to Craig, however, it is clear that not every error of law will amount to “jurisdictional error”. See also Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82.”
It is worth setting out at length His Honour’s reasons at [146-149]:
“[146] However, whether the demonstration of any error of law or any apparent denial of procedural fairness will automatically entitle a party to the relief of injunction or declaration, if sought, may be doubted. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond), a decision of the Tribunal was challenged on a ground permitted by s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the basis that “the decision involved an error of law”. Chief Justice Mason at 353 said that a decision does not “involve” an error of law unless the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been or might have been different. The Chief Justice said:
The critical question on this aspect of the case is whether, but for the alleged error of law on which the respondents rely, the decision might have been different by reason of the possibility that the Tribunal would not have made the findings of fact relating to the settlement in the terms in which they were made.
[147] In their joint judgment in Bond, Toohey and Gaudron JJ in a similar way emphasised that, for the purposes of this statutory ground of judicial review, for an error of law to be “involved in a decision” something more than the mere occurrence of error is necessary. Their Honours said, “The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute”. Their Honours added that conversely, an error is not involved in a decision if it did not contribute to the decision or if the decision must have been the same regardless of the error. Thus, to show that an error of law is involved in a decision it is necessary, at the very least, to show that the decision may have been different if the error had not occurred.
[148] Justices Toohey and Gaudron added, however, that the approach just adumbrated may be compared with the operation of the rules of natural justice where an allegation is made to which a person has had no opportunity to respond. Their Honours referred to what was said in this regard in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 603, where Wilson J said that a deportation order in respect of the appellants should be set aside for want of procedural fairness “with some reluctance” because at most it awarded a very slender technical victory to the appellants. His Honour noted that given the immigration policy it was difficult to see how even an emphatic reversal of the imputation in the successfully impugned reasons for decision could affect the result. However, his Honour considered that, having decided that decisions under the Migration Act must be attended with procedural fairness, “it would frustrate the purpose of the A.D.(J.R.) Act if a breach of the rules of natural justice were to be condoned, in the exercise of the discretionary powers of disposition conferred … merely because the breach was not shown to have affected the decision”.
[149] It also seems generally to be accepted that it is no answer, where denial of procedural fairness is demonstrated, to resist relief on the basis the error involved is “trivial”: see for example, Ex parte Aala at [59] (Gaudron and Gummow JJ).” [emphasis added]
His Honour went on to consider Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and referred in particular to the judgment of Gaudron and Gummow JJ, with whom Gleeson CJ agreed, where their Honours stated:
“No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution141. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission. Her Honour said:
"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. (Footnote omitted.)"”
Barker J concluded at [157] that:
“The position … in relation to denial of procedural fairness is less ambiguous. Ultimately the decision in Ex parte Aala, following Stead, is that denial of procedural fairness, while not falling into a distinct category of its own, will often lead to the effective invalidation of an impugned decision. One can understand how this is so. It will often be extremely difficult to say what decision might have been made by an administrative decision-maker if there had been no denial of procedural fairness in a given case — and it is not for the review court to speculate. To try to reconstruct a decision-making process or to rework the apparent basis upon which a decision has been made, in order to state with any confidence what the result might have been or would have been but for denial of procedural fairness, is likely to be a speculative and unproductive task and certainly one likely to lead to injustice, because the judicial reviewer is not equipped and is not charged with responsibility to make the sort of administrative decision that the primary decision-maker has been set up to determine.”
In the present case the Reviewer based his finding that the applicant was not a stateless Faili Kurd, in part, on country information adverse to the applicant’s claim the substance of which was not put to the applicant. The information was used to refute the applicant’s claim that as a stateless Faili Kurd he is denied access to education. As outlined above, this in turn went to only one of seven reasons establishing the Reviewer’s disbelief that the applicant had suffered the disadvantage he claimed, which grounded the Reviewer’s finding that he was not a stateless Faili Kurd. This omission on the part of the Reviewer was a denial of procedural fairness. It is certainly impossible to speculate what effect the applicant’s response may have had upon the Reviewer, as the opportunity to respond was not given to the applicant. And, I must bare in mind Barker J’s comment that relief should not be resisted on the basis that the error involved is trivial.
However, in this case, I am of the opinion that any correction to the denial of procedural fairness would not have affected the Reviewer’s ultimate finding that the applicant was not a stateless Faili Kurd. Firstly, it was the applicant’s own evidence that his cessation of education was in order to work and, in any case, contrary to the adverse country information and based on the applicant’s level of literacy, the Reviewer did not believe that the applicant’s education was as minimal as claimed. Secondly, whilst acknowledging that one must not speculate, the other six dot-points strongly suggest that it is unlikely that the Reviewer would have come to a different opinion. Finally, the Reviewer made an independent finding that the fact the applicant had been able to leave Iran without difficulty “suggests […] the passport [he used] was in fact his own, legal Iranian passport” [130] CB213. Whilst the Reviewer states at [130] that this is not “determinative of the issue” of his status as a stateless Faili Kurd, he goes on to state at [136] CB 214 that:
“…in light of the foregoing I find that he is an Iranian national and so I do not accept that he had to organise a false passport to depart Iran. It follows I conclude the passport he used to depart Iran was in fact his own legal Iranian passport.”
This is a finding that was open to the Reviewer on the evidence before him, and it is not for this court to interfere with such a finding. Thus, it follows, to borrow from Barker J as cited above, that the decision would not have been different if the error had not occurred. Ground three is not made out.
The next ground is:
“Ground 4 (former Ground 6)
In assessing the applicant’s credibility, the second respondent failed to take into account relevant considerations and/or misconstrued the applicant’s evidence.
Particulars
(a)In finding that the applicant was a citizen of Iran, the second respondent relied upon its finding that the applicant had travelled Ilam city a number of times without any adverse attention from anyone.
(b)The second respondent referred to an inconsistency in the applicant’s evidence concerning his travel to Ilam.
(c)The second respondent rejected the applicant’s explanation for the inconsistency.
(d)At hearing, the applicant gave evidence that he had earlier raised this issue with his advisers and the second respondent accepted this to be the case. Further, the applicant claimed at hearing that he had never attended the city centre in Ilam.
(e)The second respondent’s finding failed to take into account the applicant’s earlier, consistent account to his adviser and unfairly misconstrued the claims made by the applicant.”
I cannot accept this argument. Firstly, the interpretation of the applicant’s responses to questions is very much a matter for the Reviewer and not for this court. Secondly, the Reviewer shows that there was a true contradiction in the applicant’s evidence as to the number of times he went into Ilam city between his evidence to the assessor and his evidence to the Reviewer. The Reviewer gives a reason why he does not accept the applicant’s explanation and there is no suggestion that he did not give the response to the assessor that the Reviewer put to him. In the light of the decision as a whole it would be difficult to say that this particular credibility finding was an essential and significant element of the decision but even if it was it would be difficult for this court to find that it constituted a jurisdictional error given the nature of the finding. It was not findings as to the applicant’s credibility that provoked the Reviewer to find that he was not a stateless person. It was the applicant’s own evidence that led the Reviewer to believe that he had obtained his own passport and utilised it to pass out of Iran.
As I have been unable to find that the Reviewer fell into an error of law in the manner in which he reached his decision the application must be dismissed and the applicant must pay the first respondent’s costs assessed in the sum of $6,471.00.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 7 August 2012
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