MZYTH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 905

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYTH v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 905

MIGRATION – Application for review of Independent Merits Review decision – whether applicant denied natural justice by non-provision of two pieces of country information – consideration of material before RSA and IMR hearings – applicant not denied natural justice. 

Migration Act 1958

SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45
Plaintiff M61/2010Ev Commonwealth of Australia (2010) 243 CLR 319

Applicant: MZYTH

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 1788 of 2011

Judgment of: Burchardt FM

Hearing date: 24 August 2012

Date of Last Submission: 24 August 2012

Delivered at: Melbourne

Delivered on: 4 October 2012

REPRESENTATION

Counsel for the Applicant: Mr Townsend

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Ms Szydzik

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1788 of 2011

MZYTH

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This case involves what both parties agree is a short natural justice point.  Did the Independent Merits Reviewer (“the Reviewer”), whose decision dated 26 May 2011 gave rise to this application, accord the applicant natural justice in respect of country information or not?  In order to understand the force of the competing assertions made about this issue, it is necessary to look at what in fact occurred. 

2. It should be noted that a point about extension of time is now regarded by both parties as being irrelevant. 

3. The applicant arrived in April 2010 without any travel documents at Christmas Island.  During an initial interview he mentioned his lack of citizenship in Iran as a Faili Kurd and the fact that he had been beaten up in 2005 and detained for 40 days.  He articulated his claims in writing on 20 June 2010 at Court Book (“CB”) 64-65.  Those claims essentially were to the effect that he is a stateless person, he feared persecution if sent back to Iran, was uneducated and had no schooling, and referred again to the incident “about five years ago” when he was beaten and detained for 40 days. 

4. A Refugee Status Assessment (“RSA”) interview followed, the record of which is set out at CB 79 and following. 

5. Substantial amounts of country information were referred to at CB 81-83 and at CB 85, the assessor recorded:

   “… He claims to have departed Iran using an Iranian passport with his photograph contained therein in a false name.  He claims that his passport was checked by one person at the airport.  It was put to him that this was not consistent with country information which indicates passports are examined at least three times when departing.  He then said that two people looked at his passport.  He said that the smuggler told him not to worry and that he did not pay the final instalment to the smuggler until after he arrived in Australia.”

6. At CB 91 the assessor recorded country information about leaving Iran from Imam Khomeini International Airport.  The matters set out were detailed and give further detail of the three security checks to which the assessor had already referred. 

7. At CB 95-96 the assessor said:

   “He claims to have departed Tehran via Imam Khomeini International Airport, holding an Iranian passport bearing his photograph in a false name.

   Available information (4:37 and 4:38) suggests that there exist strict security procedures for leaving Iran from Imam Khomeini International Airport.  It was put to him at his RSA interview that passports were examined at Imam airport on a number of occasions during the departure process, and it was difficult to accept that he left on a false passport as it would most likely have been detected.  He claims that the smuggler assured him he would be able to exit using the passport.  I regard the claimant’s explanation in regard to how he was able to circumvent security vetting with a false Iranian travel document to be implausible and to run counter to the available country information.  I consider the available information suggests that it is more likely he left on a valid Iranian passport.

   Even if it was to be accepted that he left on a false Iranian passport, I am not satisfied that he would suffer Convention related persecution for this reason (assuming he was questioned about it) if he returned.  I regard any punishment he may be subject to in this regard to be by operation of an apparently legitimate law of general application.  As stated above the available information indicates that, apart from paying fines, he would not face problems, including detention, with the authorities upon return.”

8. This matter was also raised at the IMR review.  Relevant extracts are at paragraphs 15 and 16 (CB 108-109).  At CB 113 the Reviewer set out country information about departure from Iranian airports and passport issues. 

9. In the ultimate the Reviewer found that, contrary to his assertions, the applicant was well-educated and had not been truthful about his education.  The Reviewer also found that the applicant departed the Imam Khomeini International Airport on a genuine Iranian passport (CB 123 paragraph 40).  He further found that the applicant was not poor as he asserted he was (see CB 125 at paragraph 45). 

10. It is fair to say that the Reviewer simply did not believe substantial proportions of the applicant’s evidence and it may be noted in passing that the Reviewer’s reasoning was by no means entirely inconsistent or illogical. 

11. The parties were largely ad idem as to the applicable law.  Both parties referred me to the decision of the Full Court of the Federal Court in SZQHH v Minister for Immigration and Citizenship [2012] FCAFC 45. Although, of course, I have had regard to the whole of that decision, the principles upon which the parties relied are perhaps best summed up at paragraphs [29]-[30] where the Full Court said:

    “Country information in many documents can be repetitive or, as with the DFAT report, can summarise information from a variety of sources. Here, the information in the CSM article was country information. The reviewer had to put to the applicant, for his consideration and comment, the aspects of that information that the reviewer considered may bear upon the applicant’s claims: 243 CLR at 357 [91], 358 [98].  The Court said in 243 CLR at 357 [91]:

    “…procedural fairness required the Reviewer to put before the Plaintiff the substance of matters that the Reviewer knew of and considered may bear upon whether to accept the applicant’s claims.”  (Emphasis added).

    However, the Reviewer’s obligation of procedural fairness did not require the Reviewer to put to the applicant every piece of country or other information that the Reviewer was considering.  Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the Reviewer on an issue in the review, of which the applicant was not already on notice.  The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences.  That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests.  Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.”

12. Here I think it is conceded that there were two documents which were not put to the applicant, namely, a UK Home Office Country of Origin Report document from 2010 and DFAT country advice dated 3 August 2010.  These documents are annexed as JCT 1 and JCT 2 to the affidavit of Joel Christopher Townsend affirmed on 10 August 2012. 

13. The applicant submits that this information “includes equivocal information about the rigidity of procedures relating to transit through Tehran Airport.  This information might have tended to contradict the view that it was “highly unlikely” that the applicant could have passed through the airport as he claimed, and that the likelihood of his departure in the circumstances he described was “minimal in the extreme” (applicant’s written submissions paragraph 24).”

14. The applicant’s written submissions at paragraph 25 submit that the country information “includes equivocal information about the risks to failed asylum seekers or undocumented persons returning to Iran.  This information might have tended to contradict the view that there was “no evidence” that the applicant faced significant mistreatment on his return to Iran.”

15. It is the failure to disclose this information that is submitted to give rise to the natural justice point. 

16. So far as the country information about leaving Imam Khomeini International Airport is concerned, the first respondent submitted that in fact these matters were well and truly canvassed in substance by the matters put by both the Reviewer and before that, the RSA assessor.  It was also submitted that a more detailed examination of the materials in fact before the Reviewer without objection is to the same effect (see first respondent’s tab 8 at paragraph 27.05-27.06 and at 31.01 and 31.07). 

17. In my opinion the applicant was put on express notice both by the RSA assessor and the Reviewer as to what it was that he was being asked to comment on.  The material disclosed by the RSA interviewer (see CB 91) made it quite clear what this history was about.  The material relied upon by the RSA assessor is, in my view, in substance the same as that about which the applicant makes complaint.  The substance of what takes place according to the RSA assessor upon departure was plainly put to the applicant fairly and squarely (see CB 95-96).  He could be in no doubt that this was an area of concern and interest. 

18. The country information was also clearly traversed at the IMR interview (see paragraphs 15 to 16 at CB 108-109). 

19. The country information paragraph paraphrased at CB 113 is, in my view, entirely consistent with the material of which the applicant makes complaint also. 

20. In these circumstances, in my opinion, the applicant was not denied natural justice by not being referred specifically to the two pieces of country information in respect of the complaint that was made. 

21. It follows, therefore, that the Reviewer did not fall into error and did not fail to provide the applicant a proceeding that was fair (see
    Plaintiff M61/2010E 243 CLR at [78]).

22. The application must therefore be dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: 

Date:  4 October 2012