MZYQJ v Minister for Immigration - [2012] FMCA 13

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYQJ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 13

MIGRATION – Independent Merits Review – whether the reviewer denied the applicant procedural fairness, failed to apply correct legal principles, ignored relevant material, made a finding for which there was no evidence or failed to deal with a claim made by the applicant.

Migration Act 1958 s.477

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263
MZXSA vMinister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231
SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133
SZGDBv Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 431
SZMIAv Minister for Immigration and Citizenship [2008] FCA 1909

Applicant:

MZYQJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIWER

File number:

MLG 1245 of 2011

Judgment of:

Riley FM

Hearing date:

19 December 2011

Date of last submission:

19 December 2011

Delivered at:

Melbourne

Delivered on:

13 January 2012

REPRESENTATION

Counsel for the Applicant:

Sharon Burchell

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Chris Horan

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

ORDER

The time for filing the application be extended to 29 August 2011.

DECLARATION

In recommending to the first respondent that the applicant is not a person to whom Australia owes protection obligations, the second respondent denied the applicant procedural fairness by failing to consider all of his claims.

ORDER

The first respondent by himself and his servants and agents be restrained from relying on the recommendation.
The first respondent pay the applicant’s costs fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1245 of 2011

MZYQJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant seeks:
a)an extension of time in which to file his judicial review application filed on 29 August 2011; and
b)in the event that the extension of time application is successful, review of the recommendation of the Independent Merits Reviewer that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant arrived in Australia as an offshore entry person on 1 May 2010. He applied for a Refugee Status Assessment. On 7 September 2010, the assessor assessed the applicant as not being a person to whom Australia owes protection obligations. On 27 September 2010, the applicant requested an independent merits review. On 18 May 2011, the reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations.

Extension of time application

It was common ground that the application to this court was filed out of time and that the matter could only proceed if an extension of time were granted under s.477 of the Migration Act 1958.
The relevant matters to consider in determining an extension of time application are:
a)the extent of the delay;
b)the reason for the delay;
c)the prejudice to the applicant, the respondents and any other relevant people arising from granting or not granting the extension; and
d)the merits of the substantive claim.
The first respondent noted that the length of the delay in the present case was short. Consequently, the first respondent submitted that the only relevant factor for determination in relation to the extension of time application was the prospects of success of the substantive claim.
The applicant was given written notice of the reviewer’s decision on

13 July 2011. He had 35 days from that date to file an application with this court. That is, he had until 17 August 2011. His application was in fact filed on 29 August 2011, meaning that it was about 12 days late.
The applicant’s solicitor said in an affidavit affirmed on 29 August 2011 that the applicant had experienced various difficulties in obtaining legal assistance.
There is potentially very grave prejudice to the applicant if the extension of time is not granted. There was no suggestion of any particular prejudice to the first respondent or any other person if an extension of time is granted. However, there is clearly a public interest in the prompt resolution of public law matters.
There is some merit in the substantive proceedings, in the sense that a number of the matters raised are at least arguable, as can be seen from the reasons given below.
I consider, in all the circumstances of this case, that it is appropriate to grant an extension of time. The delay is very short. The explanation for the delay is reasonable. The prejudice to the applicant of not granting an extension of time is potentially grave while the prejudice to others is slight. There is some merit in the substantive proceeding.

Claims

The applicant claimed that:
a)he is a stateless Faili Kurd;
b)he was born in Iraq and lived there with his parents until they were killed by Saddam Hussain when he was two years old;
c)after that, he was expelled from Iraq and lived with an aunt in Iran;
d)he had no identification or other papers in Iran;
e)when he was caught by the Basij from time to time, and unable to produce papers, he was arrested;
f)if the Basij were young, he could bribe them and be released;
g)otherwise, he would be taken to the mosque;
h)that happened two or three times;
i)he was released from the mosque after paying money;
j)if he returns to Iran or Iraq, he may be jailed because he left Iran illegally and came to Australia on a fake passport;
k)he is stateless;
l)the authorities will think he is against them because he sought asylum in Australia;
m)the authorities will think he is a spy;
n)he was living in Iran illegally, without any legal status and without any documentation.

The decision of the reviewer

The reviewer considered that Iran was the applicant’s country of habitual residence. The reviewer did not accept that the applicant was born in Iraq of Faili Kurd parents and deported to Iran. On the applicant’s own evidence, the reviewer accepted that the applicant was able to work in Iran and save $US12,000 to travel to Australia. The reviewer considered that the applicant’s encounters with the Basij were the result of their high level of surveillance of all people living in Iran. The reviewer considered that the applicant was not targeted because he is a Faili Kurd and did not suffer serious harm.
The reviewer found the applicant’s explanations for being unable to speak Faili Kurd and for having no contact with other Faili Kurds in Iran to be implausible and inconsistent. The reviewer considered that if the applicant had lived with his Faili Kurd parents until he was two years old, and then brought up by a Faili Kurd aunt, he would have been able to speak Faili Kurd and would have had connections with other Faili Kurd people in Iran. The reviewer found that the applicant is not a Faili Kurd from Iran and would not be perceived to be one on return.
The reviewer did not accept that the applicant would be imputed with a political profile or treated differentially because he had departed Iran illegally. The reviewer did not accept that the applicant would, in the reasonably foreseeable future, face a real chance of serious harm in Iran for any Convention reason.

Ground 1

The first ground of review in the amended application filed on

17 November 2011 is:
The Reviewer denied procedural fairness or failed to apply correct legal principles in that she ignored relevant material or made a finding for which there was no evidence.

Particulars

a)The Reviewer made a finding that the applicant’s evidence at the interview was that although his Aunt’s mother tongue was Faili Kurd, he could not recall what language she spoke and that the explanation provided in the agent’s letter dated 20 June 2011 (sic) that his aunt spoke to him in Farsi because they lived in Tehran was inconsistent with the evidence given by the applicant at the interview that he could not remember what language she spoke to him [55] [CB 246].
b)In fact, the Reviewer misapprehended the applicant’s evidence given at the interview on 11 May 2011 (T14:00 to T16:30):
“Reviewer:What was your Aunt’s mother tongue? What was her language?
Applicant:Faili Kurds also know Persian. It is not just Faili Kurd they know.
Reviewer:What was your Aunt’s first language? The main language she used to communicate?
Applicant:With me it was Persian. She would communicate with me in Persian.
Reviewer:What was your Aunt’s first language? The language she learnt and spoke as her first language?

Applicant:     I was small, I don’t know.
Reviewer:     Did she speak to you in Faili Kurd language?
Applicant:     No, Persian …. Because we were in Tehran.”
c)In rejecting the consistency in the applicant’s claims about his language, the Reviewer misapprehended the applicant’s evidence and denied procedural fairness to the applicant and failed to deal with his claims.
d)Further or alternatively, there was no evidence to support the Reviewer’s finding that the applicant gave evidence that his Aunt’s mother tongue was Faili Kurd and he could not recall what language she spoke.

In relation to this issue, the reviewer said, under the heading, “Claims and Evidence”:
14.The claimant was interviewed on 11/05/2011. The interview was conducted with the assistance of an interpreter in the Persian and English languages. Also present was Ben Hakim, the claimant’s agent. At the commencement of the interview I asked that claimant why he had requested a Farsi and not a Faili Kurd speaking interpreter. He said that he cannot speak the Faili Kurd language. He grew up with his paternal aunt and he spoke Farsi in the family home. I asked the claimant why he spoke Farsi in the home if his aunt’s mother tongue was Faili Kurd. He said he was small at the time and therefore he learnt to speak Farsi.

I put to the claimant that if his aunt’s mother tongue was Faili Kurd then she would have communicated to him in that language. He said he was small and did not know what language she used. He said she never spoke to him in the Faili Kurd language. He is not married because he did not have documents and had lots of difficulties.
15.He was born in Iraq and deported to Iran when he was a young child. He does not know if his aunt was issued with a Green card. He grew up in the care of his widowed aunt because his parents died when he was two years old. He did not attend school, he was taught to read and write by his landlord.
The reviewer said further, under the heading, “Findings and Reasons”:
55.I have considered the evidence submitted by the claimant about his inability to speak the Faili Kurd language and lack of contact with other Faili Kurds. Firstly, I do not accept that if the claimant was a Faili Kurd living in Tehran for most of his life that he was not acquainted with any Faili Kurds and did not know any Faili Kurds who had married. Secondly, I do not accept that if the claimant was born of Faili Kurd parents and raised by his paternal aunt who was also a Faili Kurd from Iraq and her mother tongue was Faili Kurd that he would not speak some Faili Kurd language. I do not accept that his aunt never spoke to him in the Faili Kurd language or that he only spoke Farsi in the home if his aunt’s mother tongue was Faili Kurd. Furthermore, the claimant gave contradictory responses when this was put to him. I do not accept his initial explanation at the interview that he was small and did not know what language she communicated to him in. The claimant said he lived with his aunt until he was eighteen years old and I do not accept that he does not know what language they communicated in during this period. Even if they communicated in other languages such as Farsi I do not accept that none of their communication was in the Faili Kurd language. The country information indicates that Faili Kurds speak their own dialect – the Faili Kurd dialect and that Kurds are generally referred to by the dialect they speak hence Faili Kurds. It is reported that in Iraq and Iran, “Faili” is used as a general term to refer to deportees from Iraq (Faylee Kurds Democratic Union undated, ‘Iraqi Faylee Kurds FKDU website; Jafar, M. R. 2010, ‘Faylee Kurds in Iraq’, presentation to Gulan, London, 30 November). I can accept that if someone migrates as a young child to another country they invariably learn to speak the language of the host country. However, in this claimant’s case he spent his first two years in Iraq with his Faili Kurd parents and then he travelled to Iran with his Faili Kurd aunt who was his primary carer for the next sixteen years. His evidence at interview that although her mother tongue was Faili Kurd, he could not recall what language she spoke, he only spoke Persian in the home and he cannot speak the Faili Kurd language was unconvincing. The explanation provided in the agent’s letter dated 20 June 2011 that his aunt spoke to him in Farsi because they lived in Tehran is inconsistent with the evidence given by the claimant at interview (at [14] that he could not remember what language she spoke to him. Having regard to his family background, I would have expected the claimant to have been able to speak some Faili Kurd language or to have provided a more convincing reason as to why that was not the case. The fact that his landlord taught him to read and write in the Persian language does not account for the claimant’s inability to speak the Faili Kurd language.

I conclude that if the claimant had been born to Faili Kurd parents in Iraq and raised by a Faili Kurd aunt from Iraq whose mother tongue was Faili Kurd that he would be able to speak the Faili Kurd language. I find the claimant’s lack of contact with the Faili Kurd community and explanations about why he cannot speak the Faili Kurd language implausible and inconsistent.
In these circumstances, the applicant submitted that:
23.The Reviewer did not accept that the applicant was a stateless Faili Kurd from Iran [CB 246]. A significant reason for this conclusion was the Reviewer found that the applicant gave contradictory responses at the IMR interview that, although his Aunt’s mother tongue was Faili Kurd, he could not recall what language she spoke and that the explanation provided in the agent’s letter dated 20 June 2011 that his Aunt spoke to him in Farsi because they lived in Tehran was inconsistent with the evidence given by the applicant at the interview that he could not remember what language she spoke to him [55] [CB 246]. However, that finding was wrong. The applicant’s (sic) stated at the IMR interview (T14:00 to T16:30):
“Reviewer:What was your Aunt’s mother tongue? What was her language?
Applicant:Faili Kurds also know Persian it is not just Faili Kurd they know.
Reviewer:What was your Aunt’s first language? The main language she used to communicate?
Applicant:With me it was Persian. … She would communicate with me in Persian.
Reviewer:What was your Aunt’s first language? The language she learnt and spoke as her first language?
Applicant:I was small, I don’t know.
Reviewer:Did she speak to you in the Faili Kurd language?
Applicant:No, Persian …. Because we were in Tehran.”
24.The importance of this for the Reviewer’s reasons cannot be understated. The applicant maintained his consistent evidence that his Aunt spoke to him in Farsi because they lived in Tehran. By ignoring or overlooking the passage contained in his IMR interview evidence, the Reviewer rejected the consistency of the applicant’s claims about his Aunt and that they only spoke Farsi at home. This directly led to the rejection of his claims that he was a Faili Kurd from Iran [CB 246]. Further, if the applicant is a Faili Kurd then on the country information before the Reviewer:
a.It is likely that Kurds residing in Iran, including Faili Kurds, are identified as threats to internal stability of the state, and are therefore targeted by the Basij members [CB 242];
b.Faili Kurds who leave Iran without a valid travel document have no right to return [CB 243];
c.Illegal exit is not of itself a significant factor which would of itself give rise to a need to international protection. It may however add to the difficulties an applicant would face if they had attracted the adverse attention of the authorities for another reason [CB 244].
The applicant relied on SFGB v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 77 ALD 402, [2003] FCAFC 231 at [19] where the Full Federal Court said:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error… .
However, the Full Federal Court went on to say, at [20]:
unless the relevant fact can be identified as a ‘jurisdictional fact’, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact …. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a ‘bright line’, but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The applicant also relied upon SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133. In that case, the Tribunal found that the applicant was not a witness of truth. The applicant claimed to be the president of the local branch of the Khalistan Liberation Army. The Tribunal concluded that no such organisation existed because it was not known to the Department of Foreign Affairs and Trade, the United States State Department or the United Kingdom Home Office. However, there was evidence before the Tribunal that the Khalistan Liberation Army was known to Department of Foreign Affairs Trade.
Tamberlin J considered that:
10.… Therefore one of the principal reasons, if not the principal and most important reason, for a finding of lack of credibility and fraudulent conduct was based on a clearly erroneous fact. …
11. [The other reasons for the credibility finding] are somewhat scant, and pale into insignificance alongside the important finding that the Khalistan Liberation Army did not exist and therefore the applicant must have been telling lies.
In these circumstances, Tamberlin J considered that the relevant error was not simply an error of fact, but a basic error that amounted to jurisdictional error.
The applicant also relied on SZGDBv Minister for Immigration and Multicultural and Indigenous Affairs[2006] FCA 431. In that case, the appellant claimed in her original application that her house had been burned down. The Tribunal mistakenly said that the appellant had made no such claim in her original application. Based in part on the Tribunal’s misapprehension about the appellant’s original claim, the Tribunal concluded that the appellant had lied about her claim.
In these circumstances, Rares J said:
37.Of course, the Tribunal is entitled to make erroneous findings of fact and would commit no jurisdictional error by doing so. …
38.… Yet … the Tribunal only purported to consider the original claim because it misconceived it. Therefore, the Tribunal committed a jurisdictional error, and did not simply make an error of fact, because the actual claim made by the appellant was never considered.

The applicant also relied on SZMIAv Minister for Immigration and Citizenship [2008] FCA 1909.In that case, the applicant claimed in his original statutory declaration to have been involved in political activities between March 2007 and his arrest on 21 July 2007. The Tribunal, wrongly, concluded that the applicant had made no mention of that period in his original claim. Consequently, Rares J found that the Tribunal had misunderstood the applicant’s claims and thereby fell into jurisdictional error.
In the present case, the first respondent pointed out that the reviewer, before the passage of the transcript of the interview relied on by the applicant, had established that the aunt would have spoken Faili Kurd when she and the applicant arrived in Iran: page 4 lines 17 to 20 of the transcript. The reviewer, also at page 4 of the transcript, questioned the applicant about why he would have spoken Farsi at home if his aunt’s mother tongue was Faili Kurd. The applicant said he was small at the time and did not realise.
The first respondent conceded that the reviewer had misstated the applicant’s evidence in paragraph 55 of the reasons by saying that the applicant had said that he did not know in which language his aunt had communicated with him.
However, the first respondent submitted that any such error was an error of fact that did not amount to a failure to consider a claim, and thus deny procedural fairness, and did not amount to a failure to apply correct legal principles. The first respondent relied upon MZXSA vMinister for Immigration and Citizenship (2010) 117 ALD 441; [2010] FCAFC 123 at [84], where the Full Federal Court said:
It is plain from the tribunal's decision record that the tribunal was seized of the appellant's claims that he had a well-founded fear of persecution because of (a) his religious beliefs as a Kurdish Alevi; (b) his actual or an imputed political opinion based on his involvement in the trade union movement in Turkey as well as his association with the TKP; and (c) his membership of a particular social group.
The first respondent also relied on NABE vMinister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 at [53], where the Full Federal Court said:
It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [35] per McHugh J.
I accept that the reviewer misapprehended an aspect of the applicant’s evidence. However, I consider that the misapprehension was a simple factual error rather than a jurisdictional error.
Unlike SZGDB and SZMIA, I do not accept that the misapprehension, in the circumstances of this case, resulted in the reviewer failing to consider the applicant’s claims. Relevantly, the applicant claimed to be a Faili Kurd. The reviewer considered that claim in considerable detail. The applicant did not claim to fear persecution because he did not know his aunt’s mother tongue.
The misapprehension of the applicant’s evidence occurred in the context of the reviewer offering the applicant an opportunity to explain what obviously appeared to the reviewer to be a major hole in the applicant’s case. That hole was that the applicant could not speak Faili Kurd and did not have any social connections with other Faili Kurds in Iran, even though he claimed to be a Faili Kurd who had been brought up by a Faili Kurd in Iran.
The reviewer was not persuaded by the applicant’s explanations. When asked during the interview why he did not speak Faili Kurd at home, he said he “was small at the time and … didn’t realise.” The applicant’s response to the issue, that he was small, clearly did not seem to the reviewer to be any explanation at all. The applicant’s agent said in a post-hearing written submission that the applicant spoke Farsi at home because he lived in Tehran. The reviewer knew the applicant claimed that he lived in Tehran and spoke Farsi. That he did not also speak Faili Kurd was the very thing that the reviewer thought required explanation.
The reviewer’s misapprehension of an aspect of the applicant’s evidence was a minor part of one of the reviewer’s stated reasons for not accepting that the applicant is a Faili Kurd. Unlike SZEPQ, the reviewer’s misapprehension was not the principal, or even a major, reason for the reviewer’s inability to accept that the applicant is a Faili Kurd. It was at most a very subsidiary reason.
Fundamentally, the reviewer could not accept, in the absence of a reasonable explanation, that a Faili Kurd, who was brought up by a Faili Kurd in Iran, would not have spoken Faili Kurd at home and would not have had contact with other Faili Kurds in Iran (and would, presumably, have spoken Faili Kurd with them).
Paragraph 55 of the reviewer’s reasons begins:
I have considered the evidence submitted by the claimant about his inability to speak Faili Kurd language and lack of contact with other Faili Kurds. Firstly, I do not accept that if the claimant was a Faili Kurd living in Tehran for most of his life that he was not acquainted with any Faili Kurds and did not know any Faili Kurds who had married. Secondly, I do not accept that if the claimant was born of Faili Kurd parents and raised by his paternal aunt who was also a Faili Kurd from Iraq and her mother tongue was Faili Kurd that he would not speak some Faili Kurd language. I do not accept that his aunt never spoke to him in the Faili Kurd language or that he only spoke Farsi in the home if his aunt’s mother tongue was Faili Kurd
The reviewer then says, “Furthermore”. That suggests that what follows is a separate and additional reason, and the previously given reason (namely, that a Faili Kurd brought up by a Faili Kurd could be expected to speak the Faili Kurd language and to have had contact with other Faili Kurds in Iran) was sufficient in itself for the eventual conclusion. That reading of the reasons is reinforced by the fact that the reviewer then noted country information to the effect that Faili Kurds speak Faili Kurd and then returned to a discussion of the original reason, namely, that a Faili Kurd brought up by a Faili Kurd would have spoken the Faili Kurd language and would have had contact with other Faili Kurds in Iran.
In these circumstances, the reviewer’s misapprehension of the applicant’s evidence was not a significant aspect of the reviewer’s reasoning.
In relation to the no evidence ground, as explained above, there was some material at page 4 of the transcript of the interview that indicates that the applicant accepted that his aunt’s mother tongue was Faili Kurd.
There was no evidence that the applicant could not recall what language his aunt used to speak to him. However, unlike SFGB, I do not consider that this was a critical step in the reasons for decision. For the reasons already explained, on a fair reading of the decision, it was a separate and subsidiary reason.
The fact that the applicant was consistent in saying that he spoke Farsi only concerned the separate and subsidiary reason. Primarily, the reviewer did not accept that the applicant was a Faili Kurd because he does not speak Faili Kurd, although he claimed to have been brought up by a Faili Kurd.
In any event, the reviewer went on to consider the position if the applicant were in fact a Faili Kurd. Consequently, any error in relation to the assessment of whether the applicant was a Faili Kurd could not have made a difference to the decision. This ground is not made out.

Ground 2

The second ground of review in the amended application filed on 3 November 2011 is:
The Reviewer denied procedural fairness or failed to apply correct legal principles in that she failed to deal with a claim made by the applicant.
Particulars
a)   The applicant made a claim that he is at risk of being jailed if returned to Iran or Iraq because he:
i)Travelled to Australia on a false passport;
ii)He does not have citizenship in any country;
iii)He does not have any documents;
iv)He is Kurdish Faili;
v)He came to Australia illegally to seek asylum so the authorities will think that he is against their governments and is a spy.
b)   In his statutory declaration at [CB 52], the applicant claimed:
What I fear might happen if I go back to my country: If I am sent to live somewhere else, such as Iran or Iraq, I will be at risk of being jailed because I have come to Australia on a fake passport. I do not have citizenship of any country and nowhere will accept me to live there.
Why I believe they will harm or mistreat me if I go back: Because I am Kurdish Faili and I am stateless, plus because I came illegally to Australia and they will think I am against their government because I came to seek asylum in Australia.
c)   In his agent’s submissions at [CB 219], the applicant again claimed that:
Independent country information shows Kurdish Faili non-citizens are a targeted and vulnerable minority group, without access to police protection …
d)   At the IMR interview, the applicant reinstated his claims that he cannot return at all because he does not have documents and the authorities will ask “why don’t you have them, maybe you are a spy”: T701.0.
e)   The Reviewer accepted that the applicant had left Iran illegally [CB 247] and relied on country information that indicated that people who depart from Iran illegally could face prison sentences and/or fines and may be at risk if they had attracted adverse attention of the authorities for another reason [CB 243-244].
f)    The Reviewer did not make any explicit findings on the integers of the applicant’s claims that he would be jailed because he was a failed asylum seeker and therefore imputed with a political opinion of being against the government or a spy and/or he does not have documentation and/or being a Kurdish Faili.
g)   Further or alternatively, the Reviewer failed to make findings on what will happen to the applicant when arriving in Iran without valid travel documentation and as a failed asylum seeker.
h)   Further or alternatively, on the “if I am wrong” test, if the applicant is a Faili Kurd, then the Reviewer’s own country information indicates that a Faili Kurd who leaves Iran without valid travel documentation has no right of return. The Reviewer failed to make findings on what will happen to the applicant when arriving in Iran as a Faili Kurd who left Iran without valid travel documentation.
i)    Further or alternatively, on the “if I am wrong” test, the Reviewer failed to deal with the applicant’s claim that as a Faili Kurd, he would be denied state protection in Iran.
This ground concerns the following passage from paragraph 58 of the reviewer’s reasons for decision:
I have considered what if I am wrong in regard to the claimant’s Faili Kurd ethnicity. However, on his evidence he was not denied a capacity to subsist as set out in s91R(2) of the Act and, there is no evidence to suggest that he would be denied from doing so in the future. He was not involved in political activity or imputed with a political profile. His contact with the Basij and other Iranian authorities does not suggest that he would be targeted by them or other authorities in the future for a Convention reason. The claimant’s profile does not support a claim that if he is apprehended at the airport for having illegally departed that he would be differentially treated and subjected to harm as would amount to persecution because of a political opinion imputed to him or for any other Convention reason. There is no evidence to suggest that he would be persecuted for any other Convention reason.
The first respondent submitted that the reviewer made the relevant findings at paragraph 58 of the reasons, namely:
The claimant’s profile does not support a claim that if he is apprehended at the airport for having illegally departed that he would be differentially treated and subjected to harm as would amount to persecution because of a political opinion imputed to him or for any other Convention reason.
The first respondent submitted that the finding was open on the evidence, based on country information including the following:
“Other than being fined, those who have left Iran illegally do not face any further problems with the authorities on return.”: CB244 [49]
“Illegal exit is not in itself a significant risk factor which would of itself give rise to a need for international protection. It may however add to the difficulties an applicant would face if they had attracted the adverse attention of the authorities for another reason.”: CB244 [49]
However, the problem with all this is that the reviewer has elided the applicant’s past and future in Iran without considering the effect of intervening events. The reviewer thought that, because the applicant, when he previously lived in Iran, had done nothing to cause him to be imputed with a political profile, he would continue to have the same profile if he returned to Iran. That did not take account of his claims that:
a)the authorities will think he is against them because he sought asylum in Australia; and
b)the authorities will think he is a spy.
This is a clear case of the reviewer failing to consider all of the claims of an applicant. The reviewer thereby fell into jurisdictional error.
I also note that the country information cited by the reviewer at paragraph 49 of her reasons is expressed to concern Iranians who depart illegally. It does not, on its face, apply to stateless, Faili Kurd, failed asylum seekers without documents who attempt to return to Iran.
Additionally, the country information cited by the reviewer particularly notes that illegal departure may:
add to the difficulties an applicant would face if they had attracted the adverse attention of the authorities for another reason.
The reviewer does not appear to have considered whether being a stateless, Faili Kurd, failed asylum seeker without documentation might attract the adverse attention of the authorities and add to the applicant’s difficulties upon return. The fact that the applicant did not suffer too greatly in the past, when he was arrested as a simple street vendor, does not necessarily mean that, now that the applicant has a rather more complex profile, he would get off as lightly if arrested by the authorities at the airport.

Conclusion

As one of the applicant’s grounds has been made out, there will be a declaration and injunction as sought by the applicant. The first respondent must pay the applicant’s costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 13 January 2012