DZAFF v Minister for Immigration
[2015] FCCA 544
•13 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZAFF v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 544 |
| Catchwords: MIGRATION – Application for judicial review of Independent Merits Reviewer (“IMR”) decision – whether reviewer’s decision “illogical” and not open to any reasonable reviewer – whether reviewer denied applicant natural justice by sending adverse issues letter to applicant’s agent – whether reviewer failed to follow previous decision of Refugee Review Tribunal – grounds of application not made out. |
| Legislation: Migration Act 1958, s.36(2aa) |
| 1001288 [2010] RRTA 912 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 MZYQF v Minister for Immigration and Citizenship [2012] FCA 1270 Percerep v Minister for Immigration and Multicultural Affairs [1998] 86 FCR 483 |
| Applicant: | DZAFF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | DNG 59 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 12 February 2015 |
| Date of Last Submission: | 25 February 2015 |
| Delivered at: | Melbourne (By video to Darwin) |
| Delivered on: | 13 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burnside QC with Ms Kirwan |
| Solicitors for the Applicant: | Ward Keller |
| Counsel for the First Respondent: | Mr Anderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 59 of 2014
| DZAFF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
This application was filed on 22 December 2014 and seeks judicial review of an Independent Merits Review decision, dated 23 August 2012. The grounds are set out in the application, and are expanded in written submissions filed on 5 February 2015 following orders made by a Registrar on 23 January 2015. A further affidavit was filed by the applicant's solicitor also on 5 February 2015.
The matters raised by the applicant assert jurisdictional error by the Reviewer. They involve a very detailed examination, both of what the applicant has had to say from time to time and the process whereby the Reviewer dealt with the matter. In these circumstances, it is, in my view, appropriate to start by examining the materials contained in the Court Book (“CB”).
The Materials in the Court Book
The applicant is a citizen of Iran who arrived in Australia on 29 May 2010. His unauthorised arrival interview is at CB13-39, and took place on 1 July 2010. At CB23 (continued on CB32), the applicant responded to the question, "Why did you leave your country of nationality (country of residence)?” I shall paraphrase the applicant's response.
The applicant had a girlfriend who worked with the Sepah. Her brothers also worked with the Sepah and with the Basij. The applicant entered into a relationship with the girl until the day he made a sexual relationship with her. Because he was "horny", he lost his control and took her virginity, albeit this was on a consensual basis. Then "some" day, there was a crowd at the applicant's door and the girl's brothers were looking for him. He escaped but was chased by the brothers with knives and other weapons. The applicant said further:
“I don't know who told them the secret but I continued to receive messages that I will be killed.”
The applicant never returned home and hid, and waited to see if matters settled down but nothing changed. He left Iran to save his life.
The applicant articulated a second reason for his departure from Iran at CB32. The second reason is:
“that there is not a suitable situation for life. The protests, the chaos + society which has become separate [sic] into
2 factions.”
The applicant confirmed that the brothers chasing him was the main reason why he left.
At CB25 and CB33, the applicant described an incident involving one of his tenants. The applicant took the tenant's laptop, the tenant was subsequently arrested, and the officials sought the laptop from the applicant. The applicant confirmed, however, that when the relevant officials could not find anything, they did not come back.
At CB28, it is recorded that the applicant applied for and obtained his own passport and, from CB29, it is apparent that he departed Iran lawfully. At CB31, the reasons for the applicant not wishing to return to Iran are recorded. Essentially, the applicant expressed a fear that he would be killed by the girl's brothers.
The applicant subsequently sought Refugee Status Assessment, and prepared a statutory declaration in support which is at CB71-73. The applicant said he had fled Iran fearing an honour killing, and that he would not be protected by the authorities. The applicant said:
“I befriended a girl called (name omitted). She was 23 or 24 old [sic]. She became my girlfriend and we were going out for
2 weeks. (The girl) worked for the local Revolutionary Guard office. Her brothers were members of the Basij militia.
During our relationship we spent almost all the time together and became very close. About one month before I fled, about early April, I took her to my house. We had sexual intercourse. It was by mutual consent. (Girl) was a virgin. She lost her virginity to me.
According to Islamic law a woman can only lose her virginity to her husband. About 2 or 3 days after having sex with her I was returning home when I realized there was a group of males in front of our house. There were about 4 or 5 of them. They were at my front door and appeared to be talking aggressively to my mother. I did not approach but watched from afar. I rang my mother on my mobile. She told me that these men were angry and were looking for me. They told my mother that they after me [sic] because I had done something to their sister. They did not tell her then that I had sex with the sister. My mother realized later.
One of the men noticed my car and notified the others. They ran towards me with sticks, knives and daggers. I sped away in my car and escaped.”
The applicant articulated his fears at CB72. He feared harm from the Basij as they might consider his having premarital sex a religious crime. He feared harm from the girl's family for the same reason.
At CB74-79 is the record of the IAAAS interview. I note that at CB77, the applicant articulated three matters relating to Convention grounds of “Particular Social Group, possible religion, and relation to Koran”. Otherwise, in my view, nothing of any present moment emerges from that record.
The Refugee Status Assessment (“RSA”) record is at CB84-88. The assessing officer found, at CB87, that the applicant did not face persecution for a Convention reason. The officer characterised the applicant's fear as that of prosecution "as a result of engaging in a pre-marital relationship". I note that in the materials, the officer found that (CB87):
“(The applicant) states that around 2 or 3 days after having sex with his girlfriend he was driving home when he noticed a group (4 or 5) of men in front of house.”
The officer found that this matter involved a family feud and a possible prosecution under a law of general application. The officer was equivocal about the applicant's claims, and noted that he had been able to leave Tehran Airport without any hindrance.
The applicant applied for Merits Review and his then-lawyers, Vrachnas Lawyers, wrote on his behalf. The materials they forwarded are at CB93-102. The response to the RSA decision is CB93-94.
Essentially, the submission was that, "He fears persecution for reasons of religion and membership of a particular social group as a result of engaging in premarital sex with this then girlfriend." In CB94-98, there is what I would describe as general country information but at CB97-98, the submission said:
“It is clear from this evidence that Iranians who are perceived to oppose the current regime or to support liberal or western views are at risk of serious harm in Iran. It is also clear that the authorities, and particularly groups such as the Basij, act in an arbitrary and abusive manner. While it is acknowledged that many Iranians, particularly young Iranians, privately oppose the current regime and support the establishment of a more liberal society in Iran, and not all are at immediate risk of serious harm for holding these views, it is our submission that those who have been identified and targeted because of their real or imputed anti‑government views or activities in the past face a real chance of experiencing serious harm amounting to persecution within the reasonably foreseeable future because of these views.
(The applicant), as a result of engaging in pre-marital sex has been identified by Sepah members.
It is submitted that as someone already identified, there is a real chance that (the applicant) will be detained or face other serious harm at the hands of the Basij or the Iranian authorities if he returns to Iran now.”
Also at CB98, the submission referred to the risk of persecution the applicant might face as a failed asylum seeker. At CB98-102, an extensive extract was set out from a decision of the Refugee Review Tribunal in matter number 1001288 [2010] RRTA 912 (“RRTA 912”). Although I will return to this decision in due course, I note that the Australian information relied upon in that decision dated from 2004, Canadian information from 2005, and Danish information from 2009. I note that in that decision, the Tribunal found that the applicant in that case was more likely to face difficulty under the post-2009 regime as a failed asylum seeker. On the particular facts in that case, the applicant was held to face a risk of persecution because of opinions imputed to him as a result of his failed asylum-seeker application in Australia.
Vrachnas Lawyers submission pointed to the fact that the applicant does not have a passport and, therefore, faced persecution if he returned to Iran.
This material was considered by the first Reviewer whose report issued on 5 July 2011. That decision has since been set aside but I note, in paragraph 9 (CB105) that the applicant provided a certified copy of his Iranian passport.
There seems to have been some confusion in the materials, but I note that it now seems agreed that the applicant no longer has the passport with which he actually exited Iran.
At paragraph 16 of the report, the applicant was recorded as telling the Reviewer that he had been with his girlfriend for two weeks.
At paragraph 20 (CB107), the applicant stated for the first time that he had used a condom when he had sex with his girlfriend. At paragraph 26 (CB108), the applicant asserted that he did not know how it was that the girl's family had found out about what had happened. And at paragraph 28, he stated that although he did not know how the family found out, it must have been through his girlfriend. At paragraph 32 (CB109), the applicant made it clear that the only reason he left Iran was the sequelae to the relationship with his girlfriend.
The applicant then raised issues arising from his tenant. He gave what the Reviewer thought was a different version of those events. At paragraph 73 (CB117), the Reviewer, notwithstanding doubts, accepted the applicant's versions of events with the girl, and (in part) his version of events about the tenant. The Reviewer found against the applicant for reasons that are no longer relevant.
Cameron FM, as his Honour then was, remitted the matter by consent on 17 February 2012, (CB126), because of an acknowledged failure on the part of the Reviewer to assess the applicant's claims to fear persecution of the basis of his religion.
Vrachnas Lawyers wrote to the second Reviewer, whose decision is the subject of this application, at CB128-133. This submission relied, additionally, on the complementary protection regime arising under s.36(2aa) of the Migration Act 1958 (“the Act”), and emphasised the applicant's religion (as an apostate) as a ground upon which the applicant relied.
At CB134-135, there is an invitation to comment sent by the Reviewer's staff to Vrachnas Lawyers on 31 July 2012. It required a response by 14 August 2012, and raised three matters which were all about alleged inconsistencies in the accounts the applicant had given, from time to time, about his relationship with the girl. It is clear that the Reviewer followed the matter up but there was no reply (CB136-137), but this is a matter to which I will return when considering the grounds of application.
The Decision of the Reviewer
The Reviewer set out an introduction and the relevant law at CB140-142 and no criticism has been advanced, so far as I am aware, of the matters there set out. The Reviewer paraphrased the entry interview at CB142-143. When one compares the Reviewer's paraphrase with the materials at CB23 and 32 (about the girl), and in CB25 and CB33 (about the tenant), it is clear that the Reviewer very closely reflected what the applicant had said at the entry interview.
The Reviewer then detailed the RSA interview at CB143-145. The Reviewer set out the relevant parts of the applicant's statutory declaration in full and also noted the interview with the RSA officer. The Reviewer noted the reference earlier referred to, CB77, when the applicant had nominated a particular social group and religion as the Convention grounds of his application. The Reviewer referred - correctly, in my view - to the applicant putting his claims as a member of a particular social group and based upon his religion (paragraph 34 (CB145), and also as a failed asylum seeker (paragraph 35). The Reviewer noted in that paragraph specifically a reference to RRTA 912.
The Reviewer then set out a summary of the applicant's evidence as set out in paragraphs 14-45 of the first IMR review. That extract consists entirely of the first Reviewer's record of what was said by the applicant and the Reviewer at the hearing. There has been no suggestion, as I understand the matter that the account is materially inaccurate although there are matters, very clearly raised by counsel for the applicant, as to the difficulties that might arise with interpretation to which I shall return. I have, of course, already referred to these matters when I traversed the first IMR hearing earlier.
The second Reviewer went on to paraphrase the applicant's submissions at CB151, in my view correctly. The Reviewer then went on to record the interview that had taken place with the applicant on
9 May 2012 at CB151-156. I do not seek to paraphrase every observation recorded by the Reviewer. I note that at paragraph 48, CB152, the applicant said that he and his girlfriend developed their relationship by driving around nearly every day after she finished work for an hour or two. It was, maybe, three or four weeks before he invited her to his apartment. At that stage, they had not done anything but drive around and talk.
At paragraph 49, the applicant said that he thought his parents were not at home but said this was hard to remember as it was two years ago.
At paragraphs 52-56 (CB152-153), the Reviewer recorded:
“52. They were at his house for about 2-3 hours and they had sex. He was asked if it was the first time that she had sex and he said that he did not ask her. It just happened he thought that it was the first time. At the time she never said nor did anything that made him think that it was the first time. The reviewer asked if it was his first time and he responded it was hard to say it was a very private matter.
53. The claimant was asked of he had no plans why he did he have a condom [sic] and he said that he could not remember saying that. He then said that it was not unusual to have condoms in Iran; any house would have a condom. It was put that as his parents were elderly they were presumably not there’s [sic] so whose condoms were they? He said that he did not know. He responded he had sex before but it was a private matter, maybe he always has one, maybe had had one now [meaning at the interview].
54. The reviewer explained that it came up at the last interview when he was asked about whether he was concerned about getting his girlfriend pregnant and he said that he used a condom. He said because of what had happened he had trouble remembering. He did not remember. It was explained that at the last interview it had been an issue that using a condom seemed to be inconsistent with having sex in a moment of passion. Whereas now he was saying that he was not sure if he used a condom. The claimant responded that he was not a devil or a bad person and he had not planned to destroy her life. He was a single person and there were condoms available and they had sex.
55. After they had sex she was very upset and said that this had created a lot of problems what were they going to do. They did not talk about marriage as in Iran parents mostly decide who a person gets married to. The claimant decided that he would try to find a doctor so that she would be the same as she was before. He did not know where to find a doctor who performed this operation. He was asked how he was going to find out and he said that in Iran you asked a few questions of a few people and you found out.
56. He saw her after they had sex in the car and she kept telling him that he had ruined her life. He was asked if he found a doctor and he said that if he had found a doctor he would not be here now. He was asked why did he look for the doctor rather than her and he said that he had caused the problem and maybe she was shy. The claimant said that based on his investigation such an operation would cost between 500-600 USD. He was asked whether there was any discussion in public in Iran about such operations and he responded that it was an Islamic country and these things would not be discussed. Further in Iran it was difficult to get information on the internet to find out about these types of things.”
At paragraph 60 (CB153), the applicant said that the girl's brothers came to his home a week or two weeks after he had had sex with the girl. The Reviewer put it to him that he had previously said two to three days. The applicant said he could not remember. At paragraphs 63-64 (CB154), the applicant was not able to say how the brothers found out about the matter. The Reviewer noted that it was unlikely the girl would tell her family but also (paragraph 64) seems, implicitly, to wonder who else could have told them.
In paragraphs 72-74, the Reviewer traversed the incident with the tenant and, at paragraph 75, the Reviewer noted the applicant left Iran lawfully. At paragraph 78, the Reviewer traversed the applicant's claims to fear as a result of his application for asylum. I note that:
“It was put to him that the country information indicated that failed asylum seekers were only at risk if they had been involved in political activities before they left Iran or had been in involved in anti‑regime activities outside of Iran.”
The submissions of the agent were paraphrased at paragraphs 79-88 (CB156). At paragraphs 83, 86 and 87, the Reviewer said:
“83 The claimant's agent submitted that failed asylum seekers without a profile were persecuted on return even if they had not been involved in political activities. The act of seeking asylum could be interpreted as an act of political dissidence. The agent referred to IRN 37255 which he confirmed was the country advice quoted extensively in the RRT decision he had referred to. The reviewer indicated that when the source material referred to in that advice was examined all those who had difficulties on return had been involved in political activities.
86. The agent submitted that the claimant had stated that (the girl's) family might have reported the matter to the authorities. It was possible that they had reported that the claimant had raped (the girl) rather than that she had engaged in consensual sex. The way the system worked in Iran the claimant's agent would not have been surprised if this had occurred.
87. It was submitted that the claimant had offended against Sharia law in Iran and anyone who broke Sharia law was regarded as an infidel. So not only would the claimant be imputed with the political opinion he would be imputed with religious opinion that were adverse to Islamic ways.”
In paragraph 89, the Reviewer recorded the correspondence sent to the applicant's lawyers to which reference has already been made.
The findings and reasons of the Reviewer are at CB157-164.
At paragraph 99 (CB159), the Reviewer found:
“It would seem that the only source from where her family could find out was his girlfriend.”
This aspect of the decision was raised by the applicant's grounds of application and I will return to it.
At paragraph 103, the Reviewer said:
“When the reviewer examines the claimant's evidence as a whole, including all the interviews the claimant has participated in, the reviewer is not satisfied that the claimant had sex with his girlfriend and that her family have found out and intend to harm him for having been responsible for his girlfriend losing her virginity. Consequently the reviewer is not satisfied that the authorities in Iran will harm the claimant (or would let others harm the claimant) or bring adultery (or rape) charges against him for having sex with his girlfriend. The reviewer does not accept that the claimant faces a real chance of being charged with rape or adultery if he returned to Iran and his fear is not well-founded. The reviewer is not satisfied that the claimant has breached Sharia law and therefore is not satisfied that he would be imputed with an anti‑government political opinion as a result. Equally the reviewer is not satisfied that he would be regarded as having offended against religion. He would not be regarded as an infidel.”
It is immediately apparent that the Reviewer rejected all the applicant's Convention claims including that of religion.
At paragraph 105, the Reviewer dealt with the claims arising from the episode with the applicant's tenant. Even on the applicant's version, which the Reviewer doubted in any event, the Basij had not continued to pursue the applicant. There does not seem to be any challenge to this aspect of the decision.
At paragraphs 106-114 (CB160-161), the Reviewer dealt with the applicant's claims as a failed asylum seeker. The Reviewer accepted, (paragraph 108), that there was a real chance the applicant might be questioned and monitored upon his return, but found that this did not give rise to serious harm and persecution within the meaning of the Convention. At paragraph 110, the Reviewer observed from country information (including that referred to by the applicant), the risk of harm on return to Iran depends on the political profile of the returnee. At paragraph 114 (CB161), the Reviewer found that the applicant had no political profile.
At paragraphs 115-118 (CB162), the Reviewer dealt with the applicant's claims as an apostate/religion. The Reviewer found that the applicant's agent's claims were mistaken. The matters raised did not, in fact, refer to the applicant.
The Reviewer went on to consider other matters, and then considered the applicant's claims cumulatively and found that there was no real chance of persecution and, therefore, there was no obligation on Australia to provide Convention protection to the applicant. The Reviewer then dealt with the complementary protection regime and no point appears particularly to arise from that matter.
General Points
No one has taken any point about the approximately 28 month delay before this application was filed after the Reviewer's decision was handed down. Although it is obviously a long time, I will, therefore, give this matter no weight whatsoever.
The second general point to be made is that this is not a matter of merits review. It is not a question of whether I personally would have arrived at the same conclusion as the Reviewer. It is, rather, a matter of whether the Reviewer fell into error as described by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41. In that decision, the High Court examined inter alia the operation of the merits review process and asserted relevantly at [77]:
“…the assessment and review must be procedurally fair and must address the relevant legal question or questions.”
At [78] the High Court continued:
“There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
It should be noted that in that case the High Court found that both the applicants were being denied procedural fairness because in one instance (Plaintiff M61), the Reviewer had not considered the claim advanced by the applicant and further had determined the matter in large part by reference to country information not disclosed to the applicant (see at [84]-[85] and [90]-[91]).
Similar difficulties applied in the case of Plaintiff M69 of 2010.
This concludes my traversal of the materials in the CB for present purposes. I now turn to the grounds set out in the applicant's application. Although senior counsel for the applicant - helpfully, if I may say so - concentrated his submissions on particular matters of emphasis rather than slavishly following the grounds themselves, it is convenient to take them as they stand in the originating application.
Ground 1: The Second Respondent committed an error of law and/or denied the applicant procedural fairness in recommending that the applicant not be recognised as a person to whom Australia has protection obligations.
This somewhat generalised ground of application was not the subject of any specific address in the oral submissions made. The ground is dealt with last in the applicant's outline of submissions and only briefly at paragraph 33. The matters asserted in paragraph 33 proceed on the footing that the Reviewer made an erroneous finding concerning the sexual relationship with the girlfriend. The question of the extent to which the Reviewer erred in reaching that conclusion is covered by ground 2 and I will not, therefore, deal with ground 1 further.
Ground 2: The Second Respondent's findings that the applicant was not in the relevant claimed relationship and did not have a sexual encounter with his girlfriend were unreasonable and/or illogical.
The parties seem to generally agree about the relevant law. Both refer the Court to Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611. In SZMDS, Crennan and Bell JJ said, at [130]:
“In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Bell and Crennan JJ continued at [135]:
“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”
The applicant's written submissions traverse the Reviewer's findings and the evidence given in detail. These matters were further expanded in the oral submissions made. Counsel took the Court to the paragraphs of the Reviewer's decisions dealing with the evidence and the subsequent finding as to the incident with the girl. Counsel emphasised that this information was given through an interpreter, and noted that it was highly improbable that the same interpreter was used on both occasions.
Counsel submitted that it was inherently illogical and irrational to find, on the basis of minor discrepancies given through different interpreters, that the applicant's evidence should not be accepted. It was submitted that the words in Farsi that were translated would never be known to the Court, as is clearly correct. Against this, however, I point out that there has been no application to have transcript of the interviews made available, notwithstanding that the applicant is, and has at all times, been legally represented, and by extremely experienced and skilful representatives at that.
It was also submitted that it was illogical or irrational, in circumstances where the relevant events were two years previous, for the Reviewer to draw adverse inferences from what was submitted to be (paragraph 10, written submissions):
“...minor points at the fringe of events: the sort of discrepancies that are likely to be found in any honest account, especially after the Applicant has spent several years in detention.”
Much was made of the asserted failure of the Reviewer to understand the difference between the time that the applicant and the girl had been seeing other, and the time they had had a relationship. This was a matter that fell particularly upon the alleged discrepancy between the two accounts given by the applicant of having had a two-week relationship and then seeing his girlfriend for three to four weeks.
In my view, these criticisms are not made out. There is no doubt that the applicant said in his statutory declaration (CB71) that he was going out with his girlfriend for two weeks. He also said, in the same declaration, that the brothers attended his home two to three days later with a view to harming him. He repeated the two-week estimate in the first review hearing (paragraph 16, CB106). At paragraph 48 (CB152) in the second review, the Reviewer recorded the applicant as saying:
“He saw her nearly everyday [sic] after she finished work for an hour or two. It was maybe three or four weeks before he invited her to his apartment.”
The finding made by the Reviewer (paragraphs 94 CB158) was:
“94. He had repeatedly said that he had been in a relationship with his girlfriend for two weeks when they had sex together and this was something that was gone over in some detail in the previous IMR interview as the reviewer expressed some surprise that their relationship had progressed so far so quickly yet his evidence to the reviewer was that they had been seeing each other for maybe three to four weeks when he invited her to his apartment. In the context of this case this is a significant difference.”
In my view, a difference of time between two and four weeks in a matter so crucial to the applicant is a matter that is capable of being perceived of some significance. I fully accept the potential difficulties with memories that the applicant might have and the possibility, not made out as the transcript has not been provided, of difficulties arising from interpretation. Nonetheless this was an event of the most crucial significance in the applicant's life. He fled his country, as he says, because of it.
While the Reviewer might well have come to the conclusion that this was a relatively minor discrepancy, nonetheless the duration and somewhat unusual nature of this relationship would have been such that it was not unreasonable for the Reviewer to expect them to have been firmly fixed in the applicant's mind. Similarly, the Reviewer's finding that there is a big difference between the two to three days that the applicant initially suggested the brothers had come to see him and one to two weeks was open on the material. The first is almost instantaneous and the second is relatively lengthy.
Once again, it seems to me that this is a matter on which minds could differ, but it could not be said that the only conclusion at which the Reviewer could reasonably and logically have arrived was that these were minor discrepancies to be set aside. There were, of course, a number of other matters relied upon by the Reviewer, but I do not propose to traverse each one in terms. There are, however, two points I would wish to make.
First, while the events had taken place two years previously, this does not mean, as the applicant infers, (paragraph 10, written submissions), that discrepancies in the applicant's various accounts of the matter should be set at nought. These were events of the greatest possible significance to the applicant. On his version, it involved the girl agreeing to intercourse on the first occasion she was in a private place with him in circumstances where the applicant thought (albeit for reasons not articulated) she was a virgin. According to him, this event and its sequelae led him to flee for his life.
Second, and consequentially, there is nothing illogical or irrational in the Reviewer regarding the discrepancies in the applicant's accounts as significant. It needs to be borne in mind that "illogical" for these purposes means that no logical or rational decision-maker could come to this conclusion. Although the evidence shifted from time to time, the applicant asserted, inter alia:
(a)The girl was a member of the Basij, the “moral police” in Iran as the applicant described them.
(b)After two weeks (or maybe three to four weeks - I do not accept the applicant's analysis which seeks to expand the timelines), during which the applicant and the girl drove around together almost every day after work, they went to his parents' premises and had sex during a two to three hour visit.
(c)The applicant said the girl was a virgin but was not upset by the march of events. He later said she was very upset.
(d)The applicant said the girl's brothers came after him.
The Reviewer did not accept that sex had taken place. This was in the context of taking the evidence expressly "as a whole" (paragraph 103 CB159). While there is some equivocation in the Reviewer's account, and decision, as to who would have told the brothers and the girl's family of what had occurred, any knowledge must inevitably have come from her as she was the only person present other than the applicant. The Reviewer clearly considered the applicant's claim as put.
In MZYQF v Minister for Immigration and Citizenship [2012] FCA 1270, Dodds-Streeton J said at [59]-[60]:
“[59] In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 ; (2010) 115 ALD 303, the Full Federal Court considered the relevance of a misunderstanding or disregard of evidence by the Refugee Review Tribunal. At [28], North and Lander JJ (with whom Katzmann J agreed at [35]) relevantly stated that:
… an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim …
[60] It is also trite law that reasons such as those of an IMR should be read fairly and as a whole, and that the reviewing court should not approach them with “an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). Nor should the reviewing court be astute to conclude that an IMR failed to consider a particular point in the context of otherwise comprehensive reasons in which the issue is at least identified (Applicant WAEE at [47]).”
I have to say that I do not find the Reviewer's conclusions illogical in the sense earlier described. A Reviewer might feel that the applicant's account was unbelievable, even without the applicant's inconsistencies of evidence. I should make it clear, if I have not already done so, that I regard some of the inconsistencies as being capable reasonably as being held significant. For example, the initial account of being "horny" and taking her virginity contrasted with the later account involving the use of the condom.
Moreover, the idea of a highly moral girl having her first sexual encounter almost immediately on being alone with this man for the first time might reasonably be thought unbelievable by a reasonable Reviewer. In my view, the finding of the Reviewer, at paragraph 103, meets exactly this characterisation. Accordingly, in my view, this ground must fail.
Ground 3: The Second Respondent committed an error of law and/or denied the applicant procedural fairness in proceeding to a recommendation before the applicant had opportunity to respond to the adverse information as outlined in the Second Respondent's correspondence of 31 July 2012.
The affidavit of Kevin Joseph Kadirgamar, filed 5 February 2015, shows that the letter sent by the Reviewer to Vrachnas Lawyers on
31 July 2012 was, indeed, received. Although counsel for the first respondent sought to suggest that the terms of the affidavit leave open the prospect that the applicant was, indeed, made aware of that correspondence, as I indicated to senior counsel for the applicant, I think it is far more probable than otherwise that the matter was simply overlooked by the applicant's then lawyers. It is clear that Vrachnas Lawyers did nothing about the letter.
The applicant's written submissions complain that the respondent did not even enquire (paragraph 24) if the letter had been received. That is unfair and incorrect. It is apparent from CB137-138 that the Reviewer followed up on 16 August 2012, and that on 20 August 2012 a person, apparently called Anca Tofan, spoke with someone at Vrachnas Lawyers:
“...who promised to get back to us with an answer to the below request before COB today.”
The Reviewer followed up again on 22 August 2012 but nothing was provided until 28 August 2012. It is clear that the Reviewer decided to proceed without information provided because the decision was dated 23 August 2012.
Counsel for the applicant articulated a number of criticisms of the way in which the Reviewer dealt with the matter. It was submitted, strongly so, that it was inappropriate to press an enquiry of this sort by letter.
It was submitted that because the matters raised by the letter went to issues of credit, they should have been put to the applicant orally at an interview and, if need be, a further hearing should have been conducted to enable this to occur.
It was further submitted that the enquiry was perfunctory, and that unfairness was caused by the fact that the applicant himself was never told the enquiry was made and, therefore, was deprived of an opportunity to respond. It was submitted that the guidelines for merits review, at paragraph 7.2.1, (a copy of which was tendered to the Court) clearly showed that this was not the appropriate way to proceed. Reference was also made to the judgment of Weinberg J in Percerep v Minister for Immigration and Multicultural Affairs [1998] 86 FCR 483 at 504(B) to (C) where his Honour said:
“In cases involving matters which may be compensable in monetary terms, such an oversight by a legal representative may be treated as some form of waiver, or perhaps as disentitling the applicant as a matter of discretion to relief for denial of procedural fairness. The possibility that the applicant may have an effective remedy against his legal representative will provide some justification for that approach. It will be of little comfort to the applicant in the present proceedings, however, to be told that the deportation order made against him must stand because, through no fault of his own, but rather through the fault of his solicitor, important correspondence was not read and, as a result, no submissions were addressed to the Tribunal on what may have been an important issue.
Where a decision-maker has received material which is, or may be, adverse in a material respect to a party, it is not unreasonable to expect that the fact that this material had been received will be emphasised during the course of the hearing, and the party adversely affected invited to be heard in relation to it. If the material has been previously read, and sealed, because of its sensitive or confidential nature, the party who may be adversely affected by it should, in my view, be given an opportunity to be heard in relation to any such confidentiality orders.”
It was submitted, consistently with that authority, that where no reply had been received from the applicant, it was an essential obligation for the Reviewer to make sure that the applicant was aware of the issues that her letter had raised. It was submitted that its absence constituted a denial of natural justice. It was further submitted that it was to be presupposed that the matters having been raised in the letter to the applicant's lawyer, these were significant matters in the mind of the Reviewer. I note that the Reviewer’s final decision relevantly closely followed the relevant parts of the matters set out in the letter.
In Plaintiff M61/2010E the High Court noted (at [40]) that the steps recorded in the IMR manual would be undertaken as a means of meeting Australia’s obligations under the Refugees Convention Refugees protocol and “the only statutory powers that could be engaged to avoid breaching Australia’s international obligations were the powers under ss.46A and 195A”
The High Court went on to say at [69]:
“What is presently important is that what the Department did, in conducting assessments and obtaining reviews, was done in consequence of a ministerial decision that those steps be taken. In requiring those steps to be taken, the Minister did not seek to (and did not) delegate any power. But the fact that the steps were taken in consequence of a ministerial decision is important.”
This decision, of course, took place against the background of an examination as to the lawfulness or otherwise of the then detention of the two applicants. The applicant in this case happens also to be in immigration detention.
As already indicated, the High Court went on to take it as well settled (see [74]) that the requirements of procedural fairness were necessary to be applied to the applicants under this regime.
The Guidelines (which were addressed, inter alia, in the parties additional written submissions), themselves do not appear to be mandatory. Paragraph 1.1 states:
“The following guidelines are designed to assist Independent Merits Reviewers, appointed to undertake Independent Merits Review of negative Refugee Status Assessment (RSA) findings.”
The role of the Independent Reviewer is described at paragraph 4.1 and insofar as procedure is concerned reads:
“As the Independent Review process is non-statutory, the role of the Independent Reviewers is advisory and not determinative. The process is to be prompt, investigative and informal.
When Independent Reviewers are reviewing a negative RSA finding they are:
- not bound by technicalities, legal forms, rules of evidence; and
- expected to act in accordance with principles of procedural fairness in order to determine the merits of the case.”
Paragraph 4.1 sets out a number of matters that the Reviewer is supposed to demonstrate including:
“the Independent Reviewer will provide the claimant with an opportunity to comment on adverse information which is credible, relevant and significant to the review.”
At paragraph 7.1 the Guidelines note that invitations to comment on adverse information “should be put to the claimant in writing or orally at the interview”.
A set of timeframes is set out in clauses 7.2 and 7.2.1.
I note that in dealing with responses from the applicant’s or their agent clause 7.2.1 asserts:
“In the event that the claimant or their agent do not respond within the timeframe set by the Independent Reviewer and no alternative timeframe has been agreed to by the Independent Reviewer, the Independent Reviewer should notify the claimant and their agent that he/she will continue with the review and a finding may be made without giving the claimant an opportunity to provide any further comment or information.”
I further note pursuant to clause 7.3:
“Any communication with a claimant’s agent should be treated as having been with the claimant themselves.”
Finally, I note that as part of the Attachment D – Procedural Fairness page 39 of the Guidelines it is asserted:
“if new credible, relevant and significant information becomes available that is adverse to the claimant, the information, along with written reasons why it may be adverse to the claimant and should be provided to the claimant through their agent for comment.”
The following points should be noted. First, the letter from the Reviewer to Vrachnas Lawyers expressly informed that:
“If the Assessor does not receive the information within the time period above or as extended, they may make a decision on the review without taking any further action to obtain the information” (CB135).
The Reviewer followed up, as earlier indicated, and inter alia received an express assurance from Vrachnas Lawyers that the request for information would be complied with by the 20th August 2012. The Reviewer, not having been provided with that information on that date, clearly proceeded with the determination.
In my view, the steps taken by the Reviewer were consistent with the Guidelines and consistent with the requirement to give the applicant procedural fairness.
In circumstances where the applicant was legally represented, it was not, in my view, incumbent upon the Reviewer to ensure that the correspondence had been personally received by the applicant. Pursuant to clause 7.3, the Reviewer was to treat communication with the agent as communication with the applicant personally. This is all the more so when a representative of the applicant's lawyers expressly assured the relevant officer that a response would be received by close of business on the day and this was not adhered to.
Further, I do not think that the Reviewer was required to have a viva voce hearing to put credit issues to the applicant. The correspondence sent to the applicant's lawyers was sent as part of the procedural fairness regime under the Guideline. Given the tenor of the Guideline (the page 39 extract above does not suggest it was necessary to have a viva voce hearing) the criticisms advanced by the applicant's counsel of the information-gathering process and, in particular, the difficulties of interpretation and the like, it is hard to see why a viva voce hearing would make any difference in any event.
Put shortly, the procedure adopted by the Reviewer was consistent with the Reviewer's obligation to give the applicant procedural fairness.
Ground 4: The Second Respondent committed an error of law and/or denied the applicant procedural fairness in its consideration of the applicant's claim that he was at risk of persecution as a failed asylum seeker.
I have not set out the particulars to this ground as they are somewhat lengthy. What is asserted, in substance, is that the applicant asserted a risk of harm upon return to Iran as a person who was a failed asylum seeker, that the Reviewer failed to engage with this claim, and the Reviewer’s finding was made without any evidentiary basis. Further, it was submitted that the Reviewer failed to apply comity with the Refugee Review Tribunal decision RRTA 912. The Reviewer's findings have already been paraphrased earlier in this judgment.
Consideration of the force of the submissions made depends upon a detailed reading of the Tribunal decision and upon the country information referred to in that decision, and the extent to which the Reviewer was correct to conclude, at paragraph 110 (CB161):
“From information set out above the reviewer concludes that it depends on the political profile of a failed asylum seeker as to whether they face a risk of harm on their return to Iran.”
Counsel for the first respondent submitted that in the event that the applicant's submission was upheld, every Iranian refugee claimant in Australia would have to be granted a protection visa. I accept that if it was to be accepted that every returned asylum seeker in Iran faces such harm, then they would require to be granted visas. This, however, is neither here nor there. If all these persons were, in fact, to meet the criterion, then the fact that it would create administrative or other difficulties for the authorities is irrelevant to the legal issue.
There is no challenge - nor, in my opinion, could there be - to the Reviewer's finding that the applicant did not have a political profile and would not face risk of harm (whether Convention based or serious harm under the complementary protection regime) if returned on the basis of being perceived to be a political activist. He has no political profile, and the Reviewer roundly rejected the prospect of risk on the basis of the alleged sexual episode which the Reviewer did not accept had occurred.
It should be noted that the decision RRTA 912 sets out country information relating inter alia to returned asylum seekers in Iran. That country information appears to have been referred to directly by the applicant through his agent (see paragraphs 83-85, CB156). The Reviewer had regard to the country information referred to in RRTA 912 and appears to have examined the country information directly (see paragraph 108, CB160). The Tribunal in RRTA 912 noted at paragraph 143:
“In 2010 it is extremely difficult to gauge the treatment of returnees or how they are perceived by the regime, however it is likely that all persons perceived to be opponents of the regime are currently subject to more intense scrutiny and to harsher penalties than they would otherwise have been during the presidency of Mohammed Khatami. Furthermore it is certain that at least some returnees from Australia and elsewhere have been subjected to varying degrees of ill treatment by authorities upon return ranging from monitoring, interrogation, and detention. There are reliable reports that some returnees from Canada have been physically harmed and there is at least one report of a returnee dying following physical harm upon return. It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of the Iranian embassy by informants and subsequently passed onto Iranian authorities.”
The Tribunal went on to note at paragraph 146 that the scenarios whereby the applicant in that case would come to the attention of the Iranian authorities was by no means certain. It is to be noted that the applicant in that case did not then hold a passport or other travel document and it is clear that this was a decisive consideration in the Tribunal’s ultimate conclusion that the applicant would face a risk of harm on return to Iran.
In this case, it is not entirely clear to me whether the applicant presently holds a passport. He does not hold the passport with which he left Iran but there appears as I have noted earlier to be some reference to his holding a passport during the currency of the hearing.
More importantly, it is to be noted that the decision of the Tribunal in RRTA 912 did not amount to a wholesale finding that all failed asylum seekers returned to Iran would face harm. While clearly conscious of the prospect that the chances of such harm had been increased by the re-election of Ahmadinejad regime in 2009, it is equally clear in my opinion that the Tribunal concentrated its findings on the applicant individually in that case.
Furthermore, and perhaps more importantly, the Reviewer was not entirely convinced by the Canadian report which was plainly the most severe (in terms about outcome to the returnees). At paragraph 112 (CB161) the Reviewer referred to the Iranian material and at paragraph 113 noted that:
“This advice unfortunately does not provide the reports on which that information is based.”
It is clear from paragraphs 108-110 that the Tribunal examined the country information referred to in RRTA 912 in some detail and it is not apparent to me that the finding at paragraph 110 that:
“It depends on the political profile of a failed asylum seeker as to whether they face a risk of harm on their return to Iran.”
is inappropriate. It is by no means wholly inconsistent, (as I infer the applicant submits), to the outcome of the decision in RRTA 912.
I further note the qualifications expressed by the Reviewer about the case raised by the applicant’s agent, of a person seriously harmed when returned to Iran and subsequently returned to Australia, at paragraph 111 (CB161).
In these circumstances, it is not possible to say that the conclusion that the Reviewer arrived at was arrived at without evidence to support it. Furthermore, and in any event, I think that the Reviewer's analysis of the effect of the RRTA 912 decision and the country information contained in it was at least open to the Reviewer on the materials before her.
Conclusion
As none of the applicant's grounds are sustained, it follows that the application must be dismissed with costs.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Associate:
Date: 13 March 2015
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