MZZBT v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBT v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 462

Catchwords:
MIGRATION – Independent Protection Assessor – reasonable apprehension of bias – unreasonableness – failure to give genuine and proper consideration.

Legislation:
Migration Act 1958 s.65

Cases Cited:
Goodwin v Commissioner of Police [2012] NSWCA 379
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; [1987] 14 ALD 291
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446; [2010] HCA 48
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17
NADH of 2001 v Ministerfor Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328
Re Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 58 ALD 609; (2000) 168 ALR 407; (2000) 74 ALJR 405; (2000) 21(2) Leg Rep 2; [2000] HCA 1
Re Refugee Review Tribunal; Ex parte H(2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28

Applicant:

MZZBT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

IMOGEN SELLEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File number:

MLG 1312 of 2012

Judgment of:

Judge Riley

Hearing date:

3 May 2013

Date of last submission:

3 May 2013

Delivered at:

Melbourne

Delivered on:

13 June 2013

REPRESENTATION

Counsel for the Applicant:

Nola Karapanagiotidis

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Martin Smith

Solicitors for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore Lawyers

ORDERS

The application filed on 18 October 2012 and amended on 6 February 2013 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1312 of 2012

MZZBT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

IMOGEN SELLEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a recommendation made by an Independent Protection Assessor. The assessor recommended that the applicant not be recognised as a person to whom Australia owes protection obligations.
The applicant is a citizen of Iran. He claimed that:
a)he had a well-founded fear of persecution by reason of an imputed political opinion;
b)he copied and distributed political material;
c)he had a compact disc copying business;
d)he was asked by two customers to make 3000 copies of certain films that were banned in Iran;
e)for that purpose, he bought 3000 plastic sleeves at a market;
f)the Basiji saw his purchase and questioned him about it at the market;
g)later that day, the Basiji went to his house;
h)he fled to his aunt’s place where he remained until he left for Australia on a false passport;
i)a summons has been issued for his arrest; and
j)his brother has been arrested and tortured.
The assessor considered that the applicant’s claims were implausible and the applicant was without credibility. The assessor considered that the applicant’s claims were internally inconsistent and the applicant was evasive and contradicted himself. The assessor considered that the applicant did not have a legitimate claim under the Refugee Convention or under the complementary protection provisions.

Ground of review

The only ground of review in the application filed on 18 October 2012 and amended on 6 February 2013 is:
The assessor denied the applicant procedural fairness and/or committed an error of law in that its recommendation is affected by apprehended bias and/or it made findings that were unreasonable and/or it failed to give proper and genuine consideration to the applicant’s case.
Particulars Centre this word
(a)The assessor made adverse credibility findings that were not properly open to it and/or that misrepresented the applicant’s evidence and/or that were unreasonable.
(b)The assessor made findings of implausibility that were not properly open to it and/or that were unreasonable.
(c)The assessor failed to engage in a genuine and proper consideration of the applicant’s claims.
This one ground has three components:
a)apprehended bias;
b)unreasonableness; and
c)failure to give proper and genuine consideration.

Apprehended bias

The test for apprehended bias is well established. It arises where a fair-minded, properly informed, lay observer might reasonably think that the decision-maker might not bring an impartial mind to the making of the decision: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; (2001) 75 ALJR 982; (2001) 9 Leg Rep 20; [2001] HCA 28 at [28] and [29]. In Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 178 ALR 421; (2001) 75 ALJR 679; (2001) 22(6) Leg Rep 2; [2001] HCA 17 at [72], it was explained that a mind is not impartial if it is:
… so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
Conduct which might give rise to a reasonable apprehension of bias in curial proceedings might not do so in administrative proceedings, where the decision-maker undertakes most if not all of the questioning: NADH of 2001 v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [19].
The applicant in the present case sought to make out the ground of reasonable apprehension of bias partly by reference to the assessor’s reasons for her recommendation. The first respondent argued that recourse to the reasons for the recommendation was contrary to the decision of the High Court in Michael Wilson & Partners Ltd v Nicholls (2001) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; [2011] HCA 48.
In that case, Gummow A-CJ, Hayne, Crennan and Bell JJ said at [67] and [68]:
[67] As pointed out earlier in these reasons, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been "the crystallisation of that apprehension in a demonstration of actual prejudgment" … impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
[68]The Court of Appeal was wrong to take account as it did of the reasons for judgment published by Einstein J after the trial in deciding whether in this case there was a reasonable apprehension of bias. … (emphases added)
Basten JA explained in Goodwin v Commissioner of Police [2012] NSWCA 379 at [15] the effect of Michael Wilson as follows:
The test of reasonable apprehension of bias, formulated by reference to how a fair-minded bystander might view the matter before determination of the case, cannot rely on the final judgment: Michael Wilson & Partners Ltd v Nicholls[2011] HCA 48; 244 CLR 427 at [67] (Gummow ACJ, Hayne, Crennan and Bell JJ). Where a party seeks to rely upon a final judgment, following an earlier recusal application based on a reasonable apprehension of bias, it will usually be necessary to plead actual bias: Michael Wilson & Partners at [65] and [68]. Actual bias was not relied upon in the present case and it would be necessary, therefore, to put to one side any concerns arising from the flaws in the approach adopted by the primary judge, as revealed in the final judgment, in order to address the challenge based on apprehended bias, raised at the commencement of the second hearing below. …
Neither Michael Wilson nor Goodwin concerned a decision of an administrative decision maker. However, the point made in those cases seems to apply equally to both curial and non-curial proceedings. Consequently, it appears that the High Court in Michael Wilson overturned previous authority to the contrary. I proceed on the basis that I should not look at whether the reasons for the recommendation:
somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias … .
The applicant did not allege in his written application or in his written or oral submissions that the assessor was actually biased. The applicant’s counsel confirmed twice during her oral submissions, in answer to questions from the bench, that the applicant did not allege actual bias.
In his written submissions, under the heading “Apprehended bias”, the applicant submitted that:
30.A fair minded lay person could properly come to the view that the assessor did not bring an open mind to her task of assessing the applicant’s application and/or had pre-judged the applicant’s claims, by reason of the following: -
(a)The assessor made adverse credibility findings that were not properly open to it and/or that misrepresented the applicant’s evidence and/or that were unreasonable.
(b)The assessor made findings of implausibility that were not properly open to it and/or that were unreasonable.
(c)The assessor failed to engage in a genuine and proper consideration of the applicant’s claims.
These submissions turn on the assessor’s reasons for her recommendation. However, the court is not permitted to consider the reasons for the recommendation in determining an application based on a reasonable apprehension of bias, as opposed to actual bias.
In the course of seeking to substantiate the ground of reasonable apprehension of bias, the applicant referred to certain passages from the transcript of his interview with the assessor. The first occurred at pages 44 to 45 of the transcript and is as follows:
Assessor: … So I don’t understand what it was that they were caught with that would have connected you to them, because the DVDs are still in your house at that time.
Interpreter: So then in the first instance, that I actually gave 2500 copies to [N] and [A] – you probably haven’t read my story completely.
Assessor: I’ve read your story completely
Interpreter: Because the first instances, I actually made the copy of The Story of Soraya. Have you read my case?
Assessor: Yes but - - -
Interpreter: Okay. Okay. Look, in the first instances, I copied 2500 of DVDs and I gave it to [A]. Two days later, he called me and said, “Make 3500 copies – additional copies of that clip.”
Assessor: Okay
Interpreter: Once I gave them the 2500 order and took the order to make another 3500 it was then that the authorities raided my house.
Assessor: Okay. Thank you … .
That passage does not give rise to a reasonable apprehension of bias. The assessor began by asking the applicant to explain a point that she said she did not understand. She remained calm when the applicant alleged that she had not read her story completely. She listened to his explanation and finished by thanking him for it. There is no hint in this passage of anything that could give rise to a reasonable apprehension of bias.
The second passage from the assessor’s interview that the applicant relied upon was from page 21 of the transcript and is as follows:
Interpreter: ... Since I came to Australia I grew old – probably 10 years older than my age because of the problems I have gone through. When I left Iran and I wanted to board in the plane, I didn’t see my mother and I didn’t see my brother. Put yourself in my shoes when you are my age and think of the problem that you encounter. Well, imagine that you won’t be able to see your sick mother – you won’t be able to see your brother. I wasn’t actually planning to come to Australia … I’m frustrated. Somebody needs to come and tell me what I am supposed to do. I can’t live in limbo – I can’t live. I have come to this country, and I’m not returning to my own country. I’m not planning – I’m not going back to my own country, because I’ve got a lot of problems. If you prepare a hanging rope and give me the option to return to your country or being hung, I would rather be hung in Australia. Do you think that I’m a 40 years old man? No. It’s just two weeks that I turn 18.
Assessor: Okay. Well, we will take a break, [applicant]. I understand that the focus is upsetting, and if I was in your position, I would be very upset.
Interpreter: It’s almost one year that I’m in this country. My desire is to go to school. My desire to go to English class and learn English. I can’t – constantly a lot going through my mind – thinking of my interview, thinking of my mother, thinking of my future … .
In this passage, the assessor’s response to the applicant’s statements was sensitive and accommodating of his needs. It does not give rise to a reasonable apprehension of bias.
The third passage from the assessor’s interview that the applicant relied upon was from pages 46 to 47 of the transcript and is as follows:
Assessor: I understand that that’s the real life video of her death. In your statement, though, you say that you copied a movie – a dramatisation of her life. So what happened in that one? What happened in that film?
Interpreter: No. I haven’t said such a thing, no. Sorry – by dramatising you mean make a play?
Assessor: He says, “One order, Mr [A] gave me – included copying the movie titled – so not her death – Nega Arga Sultan – in the street. This movie is a dramatisation of a true story of a girl who was killed in the demonstration”. So that’s quite different from the YouTube footage of her being shot.
Interpreter: Look, I have already told my story. I don’t know that the interpret translate – interpret it as a film or a DVD or what – I’m telling you the story that happened. Previously, I told you that these clips were actually made live.
Assessor: Yes. I understand what you said before.
Interpreter: I told you honestly that everything was live.
Assessor: Okay.
Adviser: Sorry interviewer, which one is that – which stat dec?
Assessor: This is in his – the second one, at paragraph 21.
Interpreter: Well, look, if there is any ambiguity, please let me know and I will clear it for you. I don’t know if it was the mistake of interpreter, it was the mistake of the agent, it was the misunderstanding of the interview – I don’t know. I told them the story, so if there is anything that is not clear to you or any ambiguity, let me know and I will clear it for you. Well, I hope you appreciate that I have been here for a long time and I’m tired, and I’m pretty sure that you’re tired too. So I don’t want to, you know, say something that, you know, jeopardise my case. I’m tired. My problem is not really only my problem. It is the problem – my family is the major problem.
Assessor: I understand, [applicant]. I’ve heard – I really have heard you saying that.
Adviser: Interviewer, I must say it’s interpreter error, because during one hour – it will – I go through with him what type of, you know, clip in there, and he told me – I can undertake that he told me it’s a live – it’s a live take, and as it’s the nation of ….. he say he didn’t witness, but he took the live clip of the thing and he burn it to DVD. So I took – undertake that he actually told me.
Assessor: Okay.
Interpreter: Yes.
In that passage, the assessor raised with the applicant a perceived inconsistency in his evidence. The assessor carefully explained the concerns that she had with the applicant’s evidence and gave him an opportunity to explain the discrepancy. She appears to have listened while he spoke. This passage does not give rise to a reasonable apprehension of bias.
The applicant attached to his written submissions a document headed “Credibility finding cross-reference table”. It contained a number of passages from the assessor’s reasons for her recommendation and a number of extracts from the transcript of the assessor’s interview. The extracts from the transcript are as follows:
Pages 31-32
Interpreter: I actually decided that once these CDs are distributed, people who are not aware of what the government is doing become aware and also like myself – hate the regime and the government. People actually wanted to change the regime, and I decided to contribute as little as I can to this process of changing the regime.
Assessor: Okay. What were the political – like, I think you’ve said in a number of places that – well, you were saying that you developed political opinions against the government, and as you were saying, you became passionate about copying the CD’s, but what I want to know is what are the opinions of the government that you hold?
Interpreter: My opinion – my view – was to replace the clerics – moulos – and they don’t rule any longer in my country.
…
Interpreter: The thing that I watched on the DVD and previously, I explained to you – torture that the people were going through – the killing, and – you know, this is quite reasonable and obvious. I mean, even yourself, if you see in your own country innocent people are being killed for no reason, wouldn’t you be disturbed and upset? My countries wouldn’t allow me to watch a female being badly bashed by baton or one of my countrymen being shot dead. I couldn’t accept it. I couldn’t – my countries wouldn’t allow me to accept. Watching those DVDs and being dragged into the politics, I was no longer interested in making money or saving the money. All I wanted to do – to be effective – an effective element in, you know, changing the government.
Assessor: Now, you mentioned earlier, [applicant], that you got interested in this by seeing people selling the CDs and DVDs in the street. Is that right?
Page 41
Assessor: So how did [N] distribute the material that you copied for him?
Interpreter: I don’t know anything about the way he was operating. I was not at the level to find out about the – you know, how he was operating. I would just copy it and give it to him.
Assessor: I am a little bit surprised by that, [applicant], because you’ve obviously been talking a lot about how important it is that this material is getting around to people. So it’s a little hard for me to match these ideas up, that on the one hand, you really want to get this stuff out to people. On the other hand, you copied something which may cost you your life without even asking or knowing what [N] was doing with the material.
Interpreter: It’s very clear.
Assessor: Not to me it’s not. If it was clear, I wouldn’t have asked.
Interpreter: I was actually – knew very well that he was in this business and he had the shop. I knew that he was going to distribute it among the people. What he was going to do with the 3500 CDs in his pocket? I knew that he was going to distribute it among the people, but to whom and how and when, I don’t know. I didn’t ask. I don’t know. Probably [N] had quite a number of, you know, sub-branches – sub-distributers, you know, in the country …
Pages 42-43
Assessor: But that doesn’t make – I’m just having trouble making sense with you now saying that – are you all right – I’m so confused about it that it’s hard to express what I’m confused about. So are you now saying that the Basij stopping you and seeing you with the CD or DVD covers has nothing to do with the raid on the house?
Interpreter: Yes. It doesn’t have anything to do with the raiding on the house. Look, later on I was thinking to myself, “Who were those who raided my house?” Because I was upstairs, and I didn’t know who they were, and then I thought that these two persons might be, and I said, “Well, look, no. This was a one-off incident and it had nothing to do with raiding my house” I said, “Well, it’s coincidental that the same day the Basijes raided my house.”
Assessor: Okay.
Interpreter: Now, I think to myself, and 100 per cent that, “Look, probably either [A] or [N] have been arrested and questioned, “Where do you get such a large quantity of DVDs,’” and they probably had dobbed me. If they are facing torture and execution, they don’t hesitate to give, you know, my details or my – information about me. He knew my place – he knew my address, because he was coming, you know, to the yard of our house and collecting …
…
Assessor: Well, I think that either [A] or [N] had been arrested, you would have heard something about that.
Interpreter: How would I get that information?... Even now, this is what I think. I mean, you just put yourself in my shoes. You’re sitting at home doing your work, and all of a sudden your house is raided. What do you make of it?
Pages 51-52
Assessor: Okay. In one of your earlier interviews, [applicant], you were – I think the information you gave is that the Basij took your address.
Interpreter: No. I didn’t say that. The incident that happened to me – I explained everywhere – the same everywhere I go – every time I express.
Adviser: Sorry, interviewer, I have trouble trying to find where he said that, that the Basij took his address.
Assessor: I’m pretty sure it’s in his entry interview. I will have a look. It’s in his entry interview. There’s a note that says, “They took his home address and let him go.”
Adviser: We would submit that that’s probably just one of the interpreter errors.
Interpreter: Sorry?
Adviser: I would submit that it must be one of the interpreter errors …
Interpreter: If you have a problem you can actually listen to the record.
Assessor: I will, [applicant].
Interpreter: Well, look, I told them the story that happened to me. Everywhere that I went, I said the same thing. I told them that the Basij, they talk to me and then they set me free. Where have I said that I gave them the address, or they asked about my address?
Assessor: In your first interview with the Department, [applicant]. The notes that I have indicate to me that – it says that, “They took my home address and let me go.”
Interpreter: I can’t remember. You show it to me - I can’t remember such a thing.
Assessor: Well, I can only show it to you in English. I will go back and check, [applicant]. I don’t make any decisions about these types of inconsistencies without checking notes and checking recordings. My understanding was that that was how they knew where they lived, because you had given them your address. Okay. So they let you go and what happened after that?
Interpreter: Then I went back toward my home – house.

Again, these passages show that the assessor raised matters with the applicant in a fair and clear manner. They do not give rise to a reasonable apprehension of bias.
The applicant also relied on a document headed, “Additional Examples”, that was filed during the hearing. It quoted a number of passages from the assessor’s reasons for her recommendation, as well as a number of passages from the transcript. The transcript passages are as follows:
Transcript page 31 to 32
Assessor: … So what political opinions did you develop as a result of watching this material?
Interpreter: I actually decided that once these CDs are distributed, people who are not aware of what the government is doing become aware and also like myself – hate the regime and the government. People actually wanted to change the regime, and I decided to contribute as little as I can to this process of changing the regime.
Assessor: … but what I want to know is what are the opinions of the government that you hold?
Interpreter: My opinion – my view – was to replace the clerics – moulos – and they don’t rule any longer my country.
Assessor: Are there other things that you don’t like?
Interpreter: Nothing of the cleric and – you know, moulos – that you like or I like. There is nothing, you know, to like about them.
Assessor: Okay. Sorry – maybe you didn’t understand. What else, as a result of watching these DVDs – what other things did you learn about the government or Iranian society that you don’t like now?
Interpreter: The thing that I watched on the DVD and previously, I explained to you – torture that the people were going through – the killing, and – you know, this is quite reasonable and obvious. I mean, even yourself, if you see in your own country innocent people are being killed for no reason, wouldn’t you be disturbed and upset? My countries wouldn’t allow me to watch a female being badly bashed by baton or one of my countrymen being shot dead. I couldn’t accept it. I couldn’t – my countries wouldn’t allow me to accept. Watching those DVDs and being dragged into the politics, I was no longer interested in making money or saving money. All I wanted to do – to be effective – an effective element in, you know, changing the government.
Transcript page 37
Interpreter: Then when I started doing, you know, these political DVDs, I gradually became interested in the whole issue.
…
Interpreter: Yes of course. At the beginning, I was a bit concerned, but watching the first DVD, it really transformed me, and I thought, “Well, look, I need to do this. I have to do this.”
Transcript page 39 to 41
Assessor: Ok. And the consequences of being caught with these two DVDs, what are they?
Interpreter: Okay. With no exception, they destroy you – no mercy, they destroy you. …
…
Assessor: Okay. Just in relation to this film, [applicant]. The information that I have about it is that it is the, or one of the, most popular – this is The Stoning of Soraya – it’s one of the most popular bootleg films in Iran, and in 2010, it was reported that there were 20,000 bootleg copies circulating, so there’s a number – maybe put this, and I will continue with the question? So, you know, and I have read, you know, media reports about woman talking about it in the hairdresser, so it sounds like a lot of people have seen it, but I haven’t read anything about anyone being in trouble for having a copy, let alone executed.
Interpreter: Look, yes, people they have this CD, but I started my job – my work – with copying The Story of Soraya, and after that there are thousands of these CDs in the hands of people. Even the clips that the authorities will keep – by the hands of mob – by the hands of demonstrator – are illegally distributed among the people, so what will be the punishment for this? This issue – this incidence – is so grievous that still my family are involved with it. Well, you are talking about a country where absolutely there is no law, let alone, you know, a person like me with his 3500 DVDs being confiscated – forget about The Story of Soraya. Well, I have actually involved myself in politics. I was doing political work, and at the time that I was doing this, I was only 17 years of age. I was very young. A 16 year old boy, you know – if they get me, they will kill me – they will execute me. I don’t want to die. I’ve got along future ahead of me. I want to be a useful citizen of a country – to serve the people of the country where I’m residing.
…
Assessor: Okay. So I think there’s a film called – or a program called Parazit, which I’ve read is a satire - - -
Interpreter: Yes.
Assessor: - - - of, you know, the political leaders and the president and there’s about one million downloads online of it each week, and it’s very popular amongst the clerics – they like to watch it. So again I have some concern that there’s some tolerance for some of this material.
Interpreter: When you are talking about the Parazit program – I have seen the Parazit program from A to Z, and sometimes, even, they make small pocket of Homeini – but they are talking about – first of all, they are talking about the ….. and the ….. that, you know, is happening in Iran. In one occasion, they made a puppet of Khamenei about this size, and put it on the table, and they said, “This is the most deceived person.” I have seen all these parodies. Of course, if the authorities find a copy of it in your hands, they probably put you in jail for the rest of your life. I started my job with The Story of Soraya, and along the road, then they confiscated 3500, you know, DVDs. Well, look, the producer of the parody – and he mentioned Kambiz Hosseini is one of them – do you want me to spell it for you?
Transcipt page 45
Assessor: Okay. Thank you. Okay. So you said, [applicant], that you got to know [A] through [N].
Interpreter: Yes.
Assessor: So could you tell me how you got to know [A]? How did you meet?
Interpreter: [N] told me that he has got a friend by the name of [A] who is also making these DVDs – political DVDs – and sometime later, [A] contacted me and said, “I’m the friend of [N]” and that’s how I got to know.
Assessor: And how did he contact you?
Interpreter: He contacted me on the phone – rang me. Then he came to our house and we meet each other, and gradually I started taking his orders as well.
Assessor: What do you mean by “gradually starting to take his order”?
Interpreter: He told me that, “Look, I need 2500 copies of this DVD, and he gave me the original one,” and also I copied for him.
Assessor: Okay. In some of your earlier evidence, [applicant], you said he gave you a USB, not a DVD.
Interpreter: Lately, he was giving me the USB.
Assessor: What does that mean, lately?
Interpreter: You know, for these 2500 one, he gave me a USB. I don’t know – I don’t know why it’s so important for you to know whether it is USB or a DVD. I made 3500 and then 2500. Does it really matter whether it was copied from USB or DVD? I think the issue is much more greater than, you know, anything with USB or source DVD.
Transcript page 57
Assessor: You didn’t try and get a passport in your own name?
Interpreter: No. They wouldn’t give me a passport.
Assessor: Why was that?
Interpreter: There are conditions to the issuing passport. You need to be adult. You also need to complete your military services.
Assessor: As I understand it, [applicant], it’s possible as a child to get a passport with the permission of either your father or your guardian, so in this case, if your father has passed away, then your mother’s permission.
Interpreter: My elder brother knew that if me, as his younger brother, get arrested, he would be destroyed and executed. Obviously, he wouldn’t try to go and ask for a genuine passport in my name.
There is nothing in those passages that raises a reasonable apprehension of bias. The assessor was fairly raising various matters with the applicant and giving him a reasonable opportunity to answer.
The applicant submitted that a reasonable apprehension of bias also arose in this case from the content of a letter sent by the assessor after the hearing to the applicant’s adviser. The letter is dated 7 November 2012 but it was common ground that it should have been dated 2 May 2012. The letter is at CB173.
The first issue the applicant took with that letter concerned a passage at CB177 which is as follows:
General credibility
The Assessor notes the frequency with which the claimant appears to have changed or tailored the evidence he has given in his written statements and interviews, in response to questions and doubts expressed by interviewers and decision makers.
Depending on the weight the assessor gives to any change, the Assessor may infer that the relevant claim, or that the claimant’s evidence as a whole, is not credible.
The claimant is invited to respond to the above information in writing.
The applicant noted that the assessor’s statements in that passage were broad and general and gave no particulars. The applicant submitted that the passage is expressed as conclusions rather than as questions. Consequently, the applicant submitted that the passage indicated that the assessor had already made up her mind.
I accept that the passage quoted above was not sufficient to alert the applicant to the matters about which the assessor thought he had changed or tailored his evidence. However, this was an aspect of the assessor’s thinking processes rather than a matter about which the assessor was obliged to alert the applicant. Indeed, it was not argued that this passage gave rise to a denial of procedural fairness.
I do not accept that the passage quoted above expressed conclusions rather than asked questions. The assessor said that:
a)the applicant “appears” to have changed his evidence;
b)“Depending on the weight the assessor gives to any change” (emphasis added); and
c)the assessor “may” infer that the applicant’s evidence was not credible.
The assessor in this passage was not expressing fixed conclusions. The assessor then invited the applicant to respond to these matters in writing. This indicates that the assessor was open to receiving and considering further evidence and argument.
I do not accept that the passage quoted above could have given rise to a reasonable apprehension of bias. The assessor said at the beginning of her letter, at CB173, that she had not made up her mind about the information contained in the letter. The whole point of the letter was to raise matters with the applicant for his comment, and to enable the assessor to take those comments into account. Obviously, the assessor had formed a certain view of the evidence before she sent the letter. That view was not favourable to the applicant. But there is no vice in that. A reasonable apprehension of bias only arises where a fully informed, fair-minded observer might think that a decision maker might have become so fixed in a particular view that no further evidence or argument could alter it. The passage cited above does not give rise to such an apprehension.
The second issue that the applicant took with the letter concerned the following passage from CB173 to CB174:
Claimant’s character
The claimant claims to have been interested in becoming a street vendor of CDs and DVDs but chose not to because he could get in trouble with the authorities. The claimant also claims to have been unhappy about leaving his mother and that he was not involved in the decision made by his family to send him to Australia. The assessor also notes that an Assessment Report of the claimant’s age dated 22 September 2011 records the claimant as not having any degree of social/personal independence, discretion or decision making of any significance and expressing juvenile themes and preferences when discussing his work and past-times.
Depending on the weight the assessor gives to this information, she may form the opinion that the claimant was, until the time he left Iran, a cautious adolescent, still to develop adult interests and that he did not possess the willingness to produce political materials in the full knowledge that such activity could put him at risk of execution for crimes against the Iranian regime, as he claims.
The applicant argued that a reasonable apprehension of bias arose from:
a)the assessor’s use of an age assessment of the applicant for a purpose for which it was not intended; and
b)the assessor coming to a fixed and determined view as expressed in the letter.
I do not consider that a reasonable apprehension of bias arises from using the age assessment as the assessor did. It was information available to her. Nor do I consider that the assessor had come to a fixed and determined view when she sent the letter. The assessor said:
Depending on the weight that the assessor gives to this information, she may form the opinion that … .
That is not an indication of a fixed and determined view. Moreover, the letter asked the applicant to respond to the matters that had been raised. There is no reason to apprehend that the assessor did not intend to take the response into account.
The applicant also relied on the following passage from the interview with the assessor, at pages 43 to 44 of the transcript:
Interpreter: Now, I think to myself, and 100 per cent that, “Look, probably either [A] or [N] have been arrested and questioned, “Where do you get such a large quantity of DVDs,’” and they probably had dobbed me. If they are facing torture and execution, they don’t hesitate to give, you know, my details or my – information about me. He knew my place – he knew my address, because he was coming, you know, to the yard of our house and collecting - - -
Assessor: But I mean, you would have – there’s a few things I think about that. I think that you would have heard, because you were still at the country at the time. I just really doubt that they would dob in the person who was just doing the copying. You were not the instigator in this. You were just someone copying them.
Interpreter: I didn’t understand.
Assessor: Well, I think that either [A] or [N] had been arrested, you would have heard something about that.
Interpreter: How would I get that information? Look, how did I knew – how could I get the information? Even now, this is what I think. I mean, you just put yourself in my shoes. You’re sitting at home doing your work, and all of a sudden your house is raided. What do you make of it?
Assessor: I mean, the other thing – the reason why I doubt that is – they were – I just doubt that they would have dobbed you in, because you are a minor person in this. You are just coping CDs. They are the ones who are responsible for – so the crime is the distribution of the material. You could copying them and be completely innocent.
Interpreter: Well, look, are you telling me that those CDs or DVDs that were confiscated from my house, they are not an offence by itself – they are not a crime?
Assessor: But this – but they got to you before they confiscated the CDs. They weren’t confiscated at that time. They didn’t have 3500 DVDs in their possession, because they were in your house.
Interpreter: Who were in my house?
Assessor: What you’re telling me is that [N] or [A] got arrested, as a consequence of which, the authorities came to your house and seized DVDs. Okay. Can I continue, please?
Applicant: Yes
Assessor: You’re also telling me that they got arrested because of the 3500 DVDs. So in time, this doesn’t make sense, because the DVDs are still in your house. So there’s nothing – if [A] were arrested prior to them coming into your house.
Adviser: I’m sorry, I have to interfere, because he didn’t tell you that [N] or [A] got arrested because of the CDs that got confiscated. He never said that. He just said that that CD – DVD confiscated is an offence by itself.
Assessor: I’m sorry – can I continue?
Adviser: That’s what I’m trying to put to you.
Assessor: And I’m going to make sense of it for you.
Adviser: Yes, because – review it – he never mentioned that, so maybe you misunderstand.
Assessor: No, I’m not misunderstanding him. He’s telling me that the authorities came to their house – having arrested either [A] or [N], and [A] or [N] disclosing his identity to the - - -
Interpreter: The Basijes.
Assessor: … to the authorities. So I don’t understand what it was that they were caught with that would have connected you to them, because the DVDs are still in your house at that time.
Interpreter: So then in the first instance, that I actually gave 2500 copies to [N] and [A] – you probably haven’t read my story completely.
Assessor: I’ve read your story completely.
The applicant submitted that the flaw in this passage was that the assessor cut off the adviser and said that she did not misunderstand the applicant at all. The transcript does not read as though the assessor cut off the adviser at this point. He appears to have finished speaking before the assessor started. I do not see how that passage could have given rise to a reasonable apprehension of bias.
The applicant also relied on a passage at page 48 of the transcript of the assessor’s interview with the applicant in which the applicant’s adviser attempts to explain what the applicant had meant. That passage, passage A, is as follows:
Advisor: Yes – interview, before you continue – on behalf of the client, I need to clarify a couple of things, because you mentioned in the stat dec itself that the main reason why you think – that my client think that the Basij come to search and it seemed like it was because of the incident that he got caught in the morning by the Basij, and during the interview – and he think that because of [A] and [N] was arrested. I just want to mention that that’s what he think. It’s not the fact that he know that those are arrested. And also, I just wanted to basically propose that the reason why the agent’s saying that – because my client thinks that they’re not related – it’s a coincidence that they caught in the morning and in the afternoon, they come to raid the house.
I explain to my client, because he’s a minor – I just explain to him the psychology of the bit – adult – that when he told the Basij that, “I didn’t do anything wrong. I did not copy any illegal CD,” it’s a red flag. Give it to the Basij that, “I’m doing something wrong, I’m doing some illegal CD,” and that’s when the Basij raiding him in the house. So I will submit that that’s what the agent taking the statement – and that’s the main reason. But my client, because he’s a minor, he doesn’t understand that all adult doesn’t listen and think the same way that he is, so that’s why he think it’s a coincidence that it happened. So I’m trying to explain – that’s the main thing. That’s why it’s in a bit, you know, conflict – which one is which one.
Interpreter: That’s right.
The applicant did not note the immediately following passage, passage B, which is as follows:
Advisor: So I just submit it’s maybe both – because both of them are just suspicion. It’s just what he think – and that’s what that one – but we will submit that the first, that because the morning Basij caught him red-handed with those one – it’s more likely than not that [A] and [N] get caught, because my client didn’t know whether he get caught or not. One more thing, before we proceed, because I got a lot of article that mention that al those internet and the blogger – they got jail, like 19 and a half years sentence. I can forward it to you.
Assessor: Yes please.
Advisor: I will do that. Thank you. Basically it’s from the country of origin, UK Home Office and also a report – I think Reporters Without Borders – I think that one, especially.
Assessor: So what was the Reporters Without Borders?
Advisor: Reporters Without Borders on 27 March 2012 – in that article, there’s many of those journalists and anything that – in the website or generally is – even the one that is the son of the IRGC leader. They get into trouble as well. Especially in the UK Home Office, they mention – I will forward it to you. They get in jail, like 19 and a half years for distributing and all those discrimination – so you will see that the charge is well – the charge if he was sending back is not light – it’s not trivial. It’s very severe.

The applicant said that passage A showed that the assessor was not open to the explanation provided by the adviser. However, that fails to take account of the fact that the assessor listened to the adviser and welcomed his offer to provide further information as shown in passage B. There is nothing in these passages that gives rise to a reasonable apprehension of bias.
The applicant’s real point in relation to passage A seems to be that the assessor did not accept the adviser’s explanation. That, of course, invites a descent into merits review.
The applicant took issue with the assessor’s questioning about the applicant’s claim that he bought 3,500 plastic CD sleeves at the market. The gist of the questioning was that the claim was implausible. Again, I do not see how this questioning, or the manner in which it was done, could have given rise to a reasonable apprehension of bias.
The applicant also raised an issue concerning the assessor saying that she would check the recording of an earlier interview to see whether the applicant had actually said what the notes of the interview indicated that he had said. The applicant produced a transcript of that interview in which the relevant section was missing. The applicant’s solicitor filed an affidavit in which he said he had listened to the recording but the relevant section was missing from the recording. The applicant accepted that, in these circumstances, the assessor probably attempted to check the recording but could not find the relevant passage because it was missing from the recording.
This was said to give rise to a reasonable apprehension of bias because the assessor did not alert the applicant to the fact that the relevant passage was missing from the recording and because the assessor did not accept the applicant’s explanation. These circumstances do not give rise to a reasonable apprehension of bias. On the contrary, the assessor indicated a willingness to listen to the recording of the earlier interview but was unable to do so for reasons beyond her control. The point about the assessor not accepting the applicant’s explanation requires, impermissibly, an examination of the recommendation. It also seeks merits review.
The applicant also complained that the assessor did not take account of a relevant prior consistent statement. This concerns the ultimate recommendation of the assessor, so it cannot be taken into account on an application relating to apprehended bias.
Otherwise, the applicant’s submissions relied on findings made in the assessor’s reasons for her recommendation, particularly findings relating to credibility. On the authority of Michael Wilson, recourse cannot be had to those findings in an application concerning apprehended bias.
I do not consider that any of the matters raised by the applicant, whether considered singly or cumulatively, could have given rise to a reasonable apprehension of bias. The reasonable apprehension of bias ground is not made out.

Unreasonableness

The applicant referred to the recent High Court decision dealing with unreasonableness, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, ; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16 but relied on the dissenting judgment. Crennan and Bell JJ, in the majority, said:
129.It can be acknowledged that the contemporary invocation of "illogicality" or "irrationality" as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of "Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust", "arbitrary", "capricious" or "Wednesbury unreasonable"?
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. (emphasis added) (citations omitted)
Heydon J, also in the majority, said at [86]:
The difference between the Federal Court and the Tribunal may be put thus. The Federal Court thought that the first respondent's explanation for not seeking asylum in the United Kingdom was "perfectly plausible". There are pejorative meanings of the word "plausible", but they are not the meanings which the Federal Court was conveying. The Federal Court was saying that the explanation was "capable of being believed" or "apparently believable". The Tribunal, however, did not believe it. Something can be capable of being believed without actually being believed. For the Tribunal member to withhold belief from something which is "perfectly plausible" but which she did not find to have been satisfactorily explained and which she found not to be probable is not illogical.
The applicant criticised the “overwhelming adverse credibility findings” made against him, but acknowledged that credibility findings are ordinarily a matter par excellence for the decision-maker: Re Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 58 ALD 609; (2000) 168 ALR 407; (2000) 74 ALJR 405; (2000) 21(2) Leg Rep 2; [2000] HCA 1.
In particular, the applicant gave a number of examples in his written submissions. Firstly, at paragraphs 32 to 36 of the written submissions, the applicant said:
32.The assessor made a number of comments concerning the applicant’s demeanour and evidence, including that the applicant was “defensive” (CB 258 [254]) “aggressive” (CB 256 [242]) and “highly evasive and flippant” (CB 269[260]).
33.The various characterisations of the applicant and his evidence were based substantially on subjective impressions. These impressions were not borne out or supported by the applicant’s evidence and conduct at the hearing; giving rise to a reasonable apprehension that the assessor did not bring an impartial mind to its task.
34.For example, at paragraph [242] of its recommendation, the assessor made the following comment:-
A particular challenge that arose for me in this case was the claimant’s significant resistance to my attempts to clarify inconsistencies and genuine confusion I had about his claims. I found the claimant to be both aggressive and defensive, responding to most of my requests for clarification and my expressions of doubt about his evidence with rhetorical questions. He frequently told me the answers to my questions were obvious. On a number of occasions, He suggested that I had not read his file.
35.The corresponding transcript reference is located at pages 43-45 of the hearing transcript. The following exchange occurred between the assessor and the applicant:-
Assessor: ,.. so I don’t understand what it was that they were caught with that would have connected you to them, because the DVDs are still in your house at that time.
Interpreter: So then in the first instance, that I actually gave 2500 copies to [N] and [A] – you probably haven’t read my story completely.
Assessor: I’ve read your story completely.
Interpreter: Because the first instances, I actually made the copy of the Story of Soraya. Have you read my case?
Assessor: Yes but …
Interpreter: Okay. Okay. Look, in the first instances, I copied 2500 of DVDs and I gave it to [A]. Two days later, he called me and said, “Make 3500 copies – additional copies of that clip.”
Assessor: Okay.
Interpreter: Once I gave them the 2500 and took the order to make another 3500 it was then that the authorities raided my house.
Assessor: Okay. Thank you …
36.The hearing transcript demonstrates that the assessor had put to the applicant the proposition that his account did not make sense because [A] was arrested before the DVD’s even came into his house. At hearing the applicant responded by answering the assessor’s questions and inquiring as to whether she had read his case completely, no doubt because he had raised the issue of the 2500 DVD’s previously (CB 19). To infer or conclude from this exchange that the applicant was resistant, aggressive and defensive was unreasonable, unfair and gives rise to an apprehension of bias.
The applicant has misrepresented the facts of the case with this submission. The foundation for the assessor’s view that the applicant was resistant, aggressive and defensive is not confined to the passage from the transcript of the interview quoted in paragraph 35 of the applicant’s submissions. Having read the whole transcript, I consider that the assessor’s statements in paragraph 242 of her reasons were open to her.
Moreover, the assessor was in a position to hear the applicant’s tone and see his body language. The court is not. It would be very unusual for a court on review to find that an assessor’s description of the demeanour of a witness was unreasonable in the sense of evidencing jurisdictional error. This case does not approach that level.
Additionally, as SZMDS makes clear, the unreasonableness ground is not made out where one might reasonably take a different view of the facts leading to a particular finding. The unreasonableness ground is only made out where the ultimate conclusion reached by the decision-maker under s.65 of the Migration Act 1958:
is one at which no rational or logical decision maker could arrive on the same evidence.
The second example provided by the applicant is at paragraphs 37 to 39 of his written submissions. Those paragraphs are as follows:
37.Another example can be found at paragraph [252] of the recommendation where the assessor states the following:-
It is clear from the claimant’s evidence that he was not involved in the decision-making that led to him leaving Iran for Australia and, moreover, that it was not his wish that he left. He gave evidence in his POE and IPA interviews that, taken together, suggests that the reasons the claimant left Iran were unrelated to his principal claims.
· In his POE interview, whilst discussing the incident with the Basij in the shopping centre, the claimant became frustrated and said that he did not want to be in Australia; that he had friends living normally in Iran and that could be him. He asked the delegate why he should have come here.
· He similarly became frustrated in his IPA interview when I expressed my surprise that his family had not attempted to assist [P] to seek asylum. The claimant avoided my observation and expressed his frustration at his negative POE outcome, his suffering in Australia and said that if I rejected him, he could not go to school or play sport in Australia. He made the grandiose claim of preferring to be hung in Australia. Whilst his frustrations are understandable, he never qualified them with any recognition that there was safety for him here, that under the circumstances this was a good option for him, or any other similar statement that put his presence in Australia in context of the potential harm to him had he stayed in Iran. He merely stated vaguely that he had a lot of problems in Iran. I found his claim at the end of this discussion that if he returned to Iran he would be arrested and tortured to be unconvincing.
38.This finding can be cross-referenced with the following comments of the applicant at hearing (hearing transcript, p21):-
Interpreter: ... Since I came to Australia I grew old – probably 10 years older than my age because of the problems I have gone through. When I left Iran and I wanted to board in the plane, I didn’t see my mother and I didn’t see my brother. Put yourself in my shoes when you are my age and think of the problem that you encounter. Well, imagine that you won’t be able to see your sick mother – you won’t be able to see your brother. I wasn’t actually planning to come to Australia … I’m frustrated. Somebody needs to come and tell me what I am supposed to do. I can’t live in limbo – I can’t live. I have come to this country, and I’m not returning to my own country. I’m not planning – I’m not going back to my own country, because I’ve got a lot of problems. If you prepare a hanging rope and give me the option to return to your country or being hung, I would rather be hung in Australia. Do you think that I’m a 40 years old man? No. Its just two weeks that I turn 18.
Assessor: Okay. Well, we will take a break, [applicant]. I understand that the focus is upsetting, and if I was in your position, I would be very upset.
Interpreter: It’s almost one year that I’m in this country. My desire is to go to school. My desire is to go to English class and learn English. I can’t – constantly a lot going through my mind – thinking of my interview, thinking of my mother, thinking of my future …
39.The applicant’s comments at hearing and the exchange between the applicant and the assessor do not support the assessor’s finding that his evidence suggests that the reasons he left Iran were unrelated to his principal claims. In addition, the reference to the applicant’s grandiosity and the criticism of his failure to qualify his statements, when considered in proper context, are unfair or misleading and give further rise to an apprehension of bias.
I assume that this was intended to also be an example of unreasonableness, although the applicant does not expressly say so. Again, the applicant has referred to only one passage from the transcript of the assessor’s interview with the applicant when other passages of the transcript and documents lodged by the applicant also support the conclusions. The assessor’s use of the word “grandiosity” may not have been ideal. “Exaggerated” may have been better. However, it is not indicative of jurisdictional error. In this example, the applicant is essentially challenging the assessor’s assessment of the evidence and the merits of the decision. In my view, the assessor’s view of the applicant’s reasons for leaving Iran was reasonably open to her.
The next example of unreasonableness identified by the applicant is discussed at paragraphs 40 to 42 of the applicant’s written submissions. Those paragraphs are as follows:
40.A further example can be found at [254] of the assessor’s recommendation where she makes the following finding:-
The claimant’s evidence about the content of the seized DVD he copied for [A] was at times, superficial and changeable. There was some discussion in his IPA interview about the content concerning Neda Agha Sultan. The claimant told me the DVD contained the live footage of her death recorded on mobile phone. However, when I noted that his IPA statement referred to a dramatization of her life and that this was something quite different to the live footage, he became defensive and deflected to his tiredness and his concern for his family. Whilst I accept that interpreter and agent misunderstanding can occur, given the specificity of this particular claim in his POE statement and its consistency with the claimant’s entry interview, I do not accept that it was written in error. The claimant’s initial description of the contents of this DVD in his IPA interview was vague and he resisted giving information about the number of clips.
41.This finding can be cross referenced with the following exchange at the hearing (hearing transcript, pages 46-47):-
Assessor: I understand that’s the real life video of her death. In your statement though, you say that you copied a movie – a dramatization of her life. So what happened in that one? What happened in that film?
Interpreter: No I haven’t said such a thing, no. Sorry – by dramatizing you mean make a play?
Assessor: He says, “one order, Mr [A] gave me – included coping the movie titled – so not her death – Nega Arga Sultan – in the street. This movie is a dramatization of a true story of a girl who was killed in the demonstration”. So that’s quite different from the YouTube footage of her being shot.
Interpreter: Look, I have already told my story. I don’t know what the interpreter translate – interpret it is a film or a DVD or what – I’m telling you the story that happened. Previously, I told you that these clips were actually made live.
Assessor: Yes. I understand what you said before.
Interpreter: I told you honestly that everything was live.
Assessor: Okay.
Adviser: Sorry interviewer which one is that – which stat dec?
Assessor: This is in his – the second one, at paragraph 21.
Interpreter: Well, look, if there is any ambiguity, please let me know and I will clear it for you. I don’t know if it was the mistake of interpreter, it was the mistake of the agent, it was the misunderstanding of the interview – I don’t know. I told them the story, so if there is anything that is not clear to you or any ambiguity, let me know and I will clear it for you. Well, I hope you appreciate that I have been here for a long time and I’m tired and I’m pretty sure that you’re tired too. So I don’t want to, you know, say something that, you know, jeopardise my case. I’m tired. My problems I not really only my problem. It is the problem – my family is the major problem.
Assessor: I understand, [applicant]. I’ve heard – I really have heard you saying that.
Adviser: Interview, I must say it’s interpreter error, because during one hour – it will – I go through with him that type of, you know, clip in there and he told me – I can undertake that he told me it’s a live – it’s a live take, and as it’s the nation of … he say he didn’t witness, but he took the live clip of the thing and he burn it to DVD. So I took – undertake that he actually told me.
Assessor: Okay
Interpreter: Yes
42.The assessor’s finding suggests it has not bought an impartial mind to its task. First, it refers to the applicant’s statutory declaration and its “consistency with the entry interview” however the claim as to the film being a fabrication as opposed to live footage was never made in the entry interview. Second, the assessor in her finding failed to refer to the evidence given by the applicant’s adviser of the applicant’s prior consistent statement (particularly significant here given that the issue that arose at hearing had never previously been a live or contentious issue). Third, the description of the applicant’s evidence as “superficial and changeable” and his demeanour as “defensive” and deflective is not borne out by the exchange at the hearing. In terms of the applicant’s reference to being tired, it should be noted that this occurred at the end of the relevant exchange and approximately

4 hours into the interview with the reviewer.

The applicant clearly made the claim in his statutory declaration made on 6 March 2012 that the film Neda Agha-Sultan in the Street was a dramatisation. At paragraph 21 of that statutory declaration, at CB152, the applicant said:
One order Mr [A] gave me included copying the movie Neda Agha-Sultan in the Street. The movie is a dramatisation of a true story of a girl who was killed in the street during a demonstration.
That statement is sufficient to support the assessor’s conclusion that the applicant changed his evidence on this issue during the interview with the assessor, whether or not the assessor was correct in thinking that the applicant said the same thing in the entry interview as he did in the statutory declaration. The assessor gave a sound reason for considering that the statement in the statutory declaration was not an interpreter error. The assessor had no obligation to refer to every item of evidence, including so-called prior consistent statements, consisting of the adviser’s claim that the applicant had told him a certain thing at an earlier date. This example does not support a conclusion of jurisdictional error on the grounds of unreasonableness.
The applicant also relied on the examples contained in the document headed “Credibility finding cross reference table”. With one exception, the applicant did not address each of those examples specifically. The one example which was addressed concerned the missing portion of the recording of the entry interview. I do not consider that there was any unreasonableness amounting to jurisdictional error in relation to the missing portion of the entry interview. It was simply missing. I have considered each of the other examples mentioned in the “Credibility finding cross reference table”. It seems to me that the applicant is simply seeking merits review in relation to them. They are not indicative of jurisdictional error.
The applicant also challenged a number of implausibility findings made by the assessor. For the reason explained by Heydon J in SZMDS at [86], I consider that the applicant’s argument about these matters is not well-founded.
Finally, the applicant also relied on the matters set out in the document titled, “Additional Examples”, filed during the hearing before this court. The applicant did not make any additional submissions specifically addressing those examples. I consider that the applicant is impermissibly seeking merits review in relation to these matters.
All in all, I do not consider that the assessor’s recommendation was unreasonable in the sense necessary to establish jurisdictional error.

Failure to give proper and genuine consideration

The question of whether failure to give proper and genuine consideration is a jurisdictional error was considered by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446; [2010] HCA 48 at [23] to [30] in the following terms:
23.General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions" is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin:
"The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
24.In 1989 with the codification of migration policy the Migration Act was amended significantly. At that time, judicial review of migration decisions was conducted under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act").
25.Grounds for review under s 5(1) of the ADJR Act include the ground that "the making of the decision was an improper exercise of the power conferred" by the relevant enactment. Section 5(2) provides that the reference to "an improper exercise of a power" includes a reference to "failing to take a relevant consideration into account", "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power", and "any other exercise of a power in a way that constitutes abuse of the power". Section 5(2)(f) identifies as a ground for review "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case". Section 6 provides further statutory grounds for review of conduct related to the making of decisions, which include a ground that the making of the proposed decision would be an improper exercise of power conferred by the relevant enactment.
26.In Khan v Minister for Immigration and Ethnic Affairs[20], Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister's delegate was required to "give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy."
27.On 1 September 1994, Pt 8 of the Migration Act was introduced. The new Pt 8 scheme for judicial review differed significantly from the provisions of ss 5 and 6 of the ADJR Act; it contained provisions which sought to exclude judicial review of migration decisions on numerous grounds, which included the grounds of failing to take relevant considerations into account and a breach of the rules of natural justice. Whilst recognising that statutory limits were then prescribed which bore upon the construction of improper exercise of power, in Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ observed that jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power.
28.It is sufficient for present purposes to note that from October 2001, Pt 8 as discussed above was repealed and replaced with the current Pt 8, including the privative clause provisions of s 474, which do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s 75(v) of the Constitution.
29.In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.
30.In Swift v SAS Trustee Corporation [32], Basten JA (with whom Allsop P agreed) noted Khan's case and said of the language of "proper, genuine and realistic consideration":
"That which had to be properly considered was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review".
(citations omitted)
The applicant referred to Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; [1987] 14 ALD 291, but not any of the more recent cases on this topic.
The recommendation of the assessor in this case is long and detailed. It seems to me to be a careful and thorough examination of all of the claims made by the applicant. I consider that the assessor in this case did give proper, realistic and genuine consideration to the applicant’s claims. Whether that is correct or not, the applicant with this ground is asking the court to slide into impermissible merits review. This ground is not made out.

Conclusion

As none of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 13 June 2013

[2013] FCCA 462

13 June 2013

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction