MZZFD v Minister for Immigration
[2013] FCCA 2096
•6 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFD v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2096 |
| Catchwords: MIGRATION – Judicial review of independent merits reviewer’s recommendation – reviewer re-opened assessment after commencement of s.36(2)(aa) – further submission by applicant – whether in consideration of s.36(2)(aa) applicant denied procedural fairness and/or failed to consider integer of claim – review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R(3), 425 |
| Plaintiff M61/2010 E v the Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 BZACF & Anor v Minister For Immigration & Anor (No.2) [2013] FCCA 486 Kioa v West (1985) 159 CLR 550 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 |
| Applicant: | MZZFD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | JAMES SILVA IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 54 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 30 October 2013 |
| Date of Last Submission: | 30 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the First Respondent: | Mr Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.
The Application filed by the Applicant on 16 January 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 54 of 2013
| MZZFD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| JAMES SILVA IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review and declaratory and injunctive relief in relation to a recommendation made by an Independent Merits Reviewer (“reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant is a citizen of Iran and is of Persian ethnicity. He arrived at Christmas Island on 16 November 2010.
On 21 January 2011, the applicant requested a Refugee Status Assessment (“RSA”). On 1 March 2011, the RSA found that the applicant was not a person to whom Australia owed protection obligations. On 18 April 2011, the applicant sought an Independent Merits Review Assessment (“Assessment”).
The Assessment was finalised and the recommendation was sent to the Department of Immigration and Citizenship (“the Department”) on 22 March 2012.[1] The reviewer found that the applicant did not meet the criterion for a Protection Visa under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Migration Act”), as it then stood, and recommended that the applicant not be recognised as a person to whom Australia has protection obligations. It is to be noted this report was not sent to the applicant.
[1] Affidavit of James Wardlaw filed 17 May 2013, Annexure JW-1
On 24 March 2012, s.36(2)(aa) of the Act (“the complementary protection provisions”) came into effect. On 5 April 2012, the applicant’s lawyers sent to the Department a “Further Submissions in Support of Complementary Protection” (“the Further Submissions”) (Court Book (“CB”) p.162-181). The Department advised the reviewer that it had not acted on his recommendation dated 22 March 2012. The reviewer considered that the amendments to the Act providing for complementary protection, “amount to an exceptional circumstance in this case” and “decided to re-open the matter and prepare a revised report, taking into account the information in the submission.” (CB p.204)
A recommendation by the reviewer dated 20 June 2012 found that the applicant did not meet the criteria for a Protection (Class XA) Visa set out in s.36(2)(a) and s.36(2)(aa) of the Act, and recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant filed an application for judicial review in this Court on 16 January 2013, and an amended application on 20 May 2013.
Grounds for judicial review
The grounds for judicial review are as follows:
“1.The applicant was denied procedural fairness in the conduct of the reviewer’s assessment of complementary protection.
Particulars
(i)The applicant was not offered a hearing on the issue of complementary protection; and/or
(j)The applicant was not alerted to the live issues under review in the assessment of complementary protection; and/or
(k)The recommendation of 20 June 2012 and the assessment of complementary protection relied heavily upon earlier findings of fact that were made and contained in the recommendation of 22 March 2012.
2.The reviewer denied the applicant procedural fairness in its consideration of complementary protection and/or failed to consider an integer of the applicant’s claim namely whether he had become a Christian having regard to his claimed beliefs and his conduct in Australia.
Particulars
(a)The applicant claimed to have converted to Christianity.
(b)In the context of complementary protection, the reviewer failed to consider this claim.”
These grounds relate to the applicant’s claims under the complementary protection provisions of the Act and, specifically, in relation to religion.
The Assessment
In order to appreciate the grounds of review it is appropriate to observe that the applicant participated in two interviews with the reviewer, one on 28 September 2011 and one on 3 November 2011.
The claims and evidence relating to his religious activities, status and beliefs emerged during the 3 November 2011 interview and were articulated in the Further Submissions (CB p.162-186).
3 November 2011 interview
The applicant’s evidence given in this second interview in relation to religion is described by the reviewer as follows (CB p.202-204):
“72.Asked whether he had any other reasons for leaving, and now being unable to return to Iran, the claimant added that there is the question of religion. He said that his father is Zoroastrian, and his brother Christian. For his part, the claimant is sick of Islam, which is an insult to Iranians. Replying to my observation that he had not raised any such claims previously, the claimant said that he has always had these feelings towards Islam. He does not go to the mosque, and studied religion only because it was forced on him. I observed that many young Iranians resent the clerics and their political clout, and are far from being strict observes of the Islamic faith. I wondered why the claimant had failed to mention this claim previously, if he now felt that they put him at risk of persecution. He replied that ‘they’ have disturbed him, interfering with the lives of Iranians in so many ways, and he has had enough. In somewhat unfocused remarks, the claimant said that ‘they’, the people with this Arab religion, have different beliefs from him, they kill people, they are brutal.
73.The claimant said that he had not mentioned his claims relating to religion earlier because he had wanted to concentrate on his main claim. He had thought of claiming to be a Zoroastrian, but did not pursue this because he did not have enough information about it. He now feels more comfortable pursuing a claim based on religion.
…
75.I flagged to the claimant that I had serious and growing concerns about his claims. He appears to have been a businessman who left Iran on his own passport, and his claims were now evolving considerably.
76.On the claimant’s concerns about being at risk of persecution as a failed asylum seeker, the representative drew attention to the large amount of information on this matter, much of it uncertain and inconclusive. I advised the claimant that the Australian authorities would not divulge either the fact or the contents of his refugee claims to the Iranian authorities. I noted country information indicating the large numbers of Iranians travelling abroad (for instance, in 2009) including for longer periods. I noted that Iranians with a political profile appeared to be at a heightened risk of being subject to the scrutiny and perhaps unwelcome attention on their return. As for those who had been absent for longer periods and/or who had left illegally, reports suggested that they may be subject to questioning and perhaps monitoring, but these along did not appear to amount to persecutory harm.
77.The claimant replied obliquely that all the Christmas Island detainees know him, and those returning (implicitly, to Iran) had seen him talking to people about religion and attending church. He does not want to be forced to change his religion. He stressed that he does not want to have to submit to the fundamentalists in Iran, threatening that he would insult the supreme leader if he has to return to Iran. In response to my concern that the claimant had not previously mentioned religion (particularly at the primary stage), and that this might cause me to doubt his claims, the claimant said that right now he believes in God but does not adhere to any single religion. In Australia, he attends church and undertakes religious study, although he left his copy of the Bible in prison (Silverwater). He said that, although his father is Zoroastrian and his brother Christian, the family are not religious at all. Replying to my observation that many Iranians are nominal Muslims only, the claimant commented that he does not believe in Islam at all.
78.I alerted the claimant to the operation of s.91R(3) of the Act, requiring me to disregard certain conduct in Australia. He replied that he understood that provision. He said that, if he returns to Iran, he would declare that he is not Muslim, and will no doubt face arrest and punishment. He voiced frustration that he had been in detention for a lengthy period, with no outcome thus far.”
Further Submissions of the applicant
The Further Submissions of the applicant reaffirmed the applicant’s claims of refugee status pursuant to s.36(2)(a) and submitted, as an alternative a reliance on s.36(2)(aa), “that there is substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if refouled.” (CB p.162)
Relevantly, the Further Submissions stated (CB p.164):
“During the Applicant’s interview he made statements that he was being forced into Islamic religion and practices against his will, despite sanctions against this conduct. The Applicant has claimed to privately follow Zoroastrian faith, like his father, and to have openly rejected Islam while in Australia. The Applicant expresses concern that if refouled, this information will reach Iranian authorities and he will face further persecution. The Applicant made claims that he wishes to follow Christianity, and will denounce Islam if returned to Iran.
These claims have not been addressed in previous submissions and therefore we respectfully request that they be taken into consideration when assessing this submission for complementary protection. We have included country information relating to religion and Iran. (CB p.164)
…
Conversion of a Muslim to any other religion and the act of proselytising is considered to be an apostasy in Iran and according to Sharia law is punishable by death or lifetime imprisonment, as reported in the RRT country information below. We submit that the Applicant will be seen as a practising Christian in Iran having embraced the Christian faith. The situation in Iran for Christian converts is known to be precarious, and those that have converted face to real and imminent threat of death. We submit that this will be the case whether or not the Applicant officially converts. (CB pp.165 to 166
…
Conversion of a Muslim to any other religion and the act of proselytising is considered to be an apostasy in Iran and according to Sharia law is punishable by death or lifetime imprisonment, as reported in the RRT country information below.
The Applicant has become a Christian…” (CB p.168)
It is to be noted that the submission referred to a letter from a Minister of Religion at the Curtain Immigration Detention Centre (CB p.168). The applicant’s lawyers later advised the reviewer, by email dated 14 June 2012, that this reference was an unintentional mistake and that the applicant continues to attend church services (CB p.182).
The Further Submissions included extracts of country information regarding Christian converts in Iran (CB p.168-181).
20 June 2012 Recommendation
It is appropriate here to set out the reviewer’s consideration of the applicant’s oral evidence and his summary of the applicant’s claims as framed in the Further Submissions.
The reviewer summarises the evidence of the applicant (given at the 3 November 2011 interview) regarding his fears of persecution on the grounds of religion as confused and evolving and that the applicant appeared to be making the following points (at CB p.215-216 [126]):
“a) none of his family is religious;
b) …he does not adhere to any single religion;
c)he objects… to the impact of Islamic fundamentalism on life and politics in Iran; and
d)he has participated in Christian activities such as church services and Bible reading in Australia…” he would declare that he is not Muslim on returning to Iran and feared “the consequences if any Iranian detainees in Christmas Island were to return (to Iran) and disclose his involvement in Christian activities.”
The reviewer summarises the claims in the Further Submission regarding the applicant’s “religious stance” (CB p.204-205 [83]) as :
·“He claims to have previously told the reviewer that he had been forced into Islamic religion and practices against his will.
·He follows the Zoroastrian faith, like his father.
·He has openly rejected Islam while in Australia, and is particularly concerned that this information will reach the Iranian authorities and increase his risk of persecution.
·Related to this, the claimant states that he wishes to follow Christianity, and will denounce Islam if he returns to Iran.”
The reviewer also describes the Further submissions of the applicant on complementary protection provisions as updating and expanding the claims made by the applicant in the second interview, relevantly as, including a claim to follow the Zoroastrian faith and:
· “The submission highlights the claimant’s attachment to Christianity, variously stating that ‘he wishes to follow Christianity’, that he ‘has become a Christian’, that he ‘will be a member’ of the persecuted Christian minority, and that he will be perceived ‘as a practising Christian’.
· Related to these claims is a broad rejection of Islam – that he was forced to practice Islam in Iran, that he has openly rejected Islam since arriving in Australia, and that he will denounce it if he returns to Iran” (at CB p.216 [127])
The consideration by the reviewer of the applicant’s claims based on religion can be summarised as follows:
a)The reviewer formed the view that the applicant presented his claims based on religion only as an afterthought and found that the claimant had lead a fairly secular lifestyle in Iran and was not satisfied that the applicant’s “fairly agnostic views” have in the past, or will in the future, cause him to challenge or protest against the views of religious Shia Muslims. Further as religion has not played a significant part in the applicant’s life, the reviewer did not accept the applicant had “rejected Islam or that he would be motivated to denounce it in the future” (at CB 216 [128]).
b)The reviewer was not satisfied the applicant’s lifestyle in the past caused authorities or anyone to take an adverse view of him and that there was a reasonable chance of this occurring in the future. Nor was the reviewer satisfied the applicant “faces a real chance of additional scrutiny of his religious views, or of serious harm, for any reasons related to the other family member’s religious views” (at CB p.217 [129])
With respect to the applicant’s claim for refugee protection under s.36(2)(a), the reviewer then dealt with the applicant’s claims as to Christianity as follows:
“130.In relation to Christianity, the claimant has stated that he has become a Christian and wishes to follow the faith (although he does not claim to have actually converted) and that, in any event, he will be perceived in Iran as having converted because of his church attendance in Immigration detention.
131.The claimant linked his conversion to Christianity with his rejection of Islam (which I do not accept as an accurate reflection of his connection with that religion), yet at the interview he also said that he believes in God but is non-religious. I have significant doubts about this claim. First, as noted above, the late presentation of this claim raises questions about its sincerity and purpose. Second, the claimant has given no real explanation or insight into his shift from a basically non-religious person into a religious (Christian) one. This would be a major step in a person’s life, and I am not satisfied on the available evidence that the claimant has become religious or, more specifically, Christian.”
As to the applicant’s evidence regarding his attendance and involvement in Christian services and activities whilst on Christmas Island, and in Curtin IDC, the reviewer stated he was not satisfied that the applicant engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee and hence the reviewer disregarded this conduct, in accordance with s.91R(3) of the Act, in determining whether the applicant had a well-founded fear of persecution. (at CB p.217 [133-134]).
The reviewer’s consideration and findings regarding the applicant’s claims under s.36(2)(a) were expressed thus:
“135.I find on the available material – disregarding the conduct that falls within s.91R(3) of the Act – that the claimant is not a Christian, will not be perceived as such and has no interest or motivation to engage in any relevant conduct if he returns to Iran. I therefore find that he faces no real chance of persecution arising in connection with Christianity, or any other religion (such as any association with Shia Islam, Zoroastrianism or his non-religious disposition)” (CB p.217 [135]).
Turning to the complementary protection provisions; s.36(2)(aa), the considerations and findings of the reviewer are as follows:
“145.I rely on the above findings of fact when assessing whether the claimant meets the requirements for complementary protection. Additionally, I have taken into account his conduct in Australia, having accepted that he has attended Christian services on Christmas Island and at Curtin IDC, and that he may also have ‘contributed’ in some form during these services. The claimant claims that this conduct puts him at risk of harm because people returning to Iran have seen him talking about religion and attending church. He implied that he meant fellow detainees. There are no details of who the person or persons of concern are, their links with the claimant (if any), and whether they would have the resources and motivation to inform the Iranian authorities or anyone of the claimant’s activities in Immigration detention. This claim involves mere conjecture, and I do not consider that it provides substantial grounds for believing that there is a real risk of significant harm.
146.Taking the claims and evidence as a whole, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Iran, there is a real risk that he will suffer significant harm.” (CB p.219 – 220)
Applicant’s submissions
Procedural Fairness Ground
The applicant’s first ground for review is that “the applicant was denied procedural fairness in the conduct of the reviewer’s assessment of complementary protection”. The applicant emphasises the particular chronology of this matter (see [3] to [6] above).
The applicant submitted that it was settled that the reviewer was required to accord the applicant procedural fairness guided by common law principles: Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth [2010] 243 CLR 319 (“M61”).
The applicant submits that, by reason of the commencement of the complementary provisions (see [5] above), the issues arising in relation to the recommendations under review were enlarged and, as such, the applicant should have been afforded an opportunity to be heard on the issue: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [33], [34] and [44]; BZACF & Anor v Minister For Immigration & Anor (No.2) [2013] FCCA 486 (“BZACF”) at [11]. The applicant concedes that these decisions concerned s.425 of the Act. However, the applicant submits that the proposition that the commencement of s.36(2)(aa) operated to enlarge the issues under review is equally applicable to this matter. The applicant submits that clearly the reviewer took the view that the matter should be re-opened; (CB p.204 at [24] & [81]) and procedural fairness required that the applicant be accorded the opportunity to be heard with respect to the issues which had been enlarged.
The applicant submits the manner in which the reviewer dealt with his claims under the complementary protection provisions, as to religion is unsatisfactory. Reference is made to the reviewer’s consideration of the claim in the Further Submissions that the applicant privately follows the Zoroastrian faith as follows:
·“More confusingly, the submission states that the claimant ‘has claimed to privately follow the Zoroastrian faith’. There is no detail on when he made such a claim, or any attempt to reconcile it with his other statements that his father practiced Zoroastrianism (by implication, not other family members), or with his claims elsewhere in the same submission about his interests in Christianity. I am not satisfied, on the basis of this statement alone, that the claimant is a Zoroastrian or will be perceived as such.” (at CB p.216 [217)
Reference is also made to the reviewer’s consideration of the applicant’s claim that his conduct in Australia will put him at risk of harm (CB p.219-220 [145]).
The applicant submits the reviewer raises issues “in the dark” because the applicant was not on notice of the contents of the earlier recommendation (dated 22 March 2012). Moreover, the applicant’s claims in the Further Submissions are simply dismissed for want of information, as being speculative and because of inconsistencies with earlier statements.
Procedural fairness required that the applicant be informed of the case against him and provided with an opportunity to be heard on what issues had arisen in relation to the complementary protection provisions.
In the alternative to a further hearing, the applicant submitted that, procedural fairness required that the applicant be alerted to the fact that the second respondent had made recommendations, which were contained in a document (dated 22 March 2012) and that this was material the reviewer would rely on in deciding the applicant’s claims pursuant to the complementary protection provisions. The applicant submits that in the particular circumstances of this case, there was a document that, on any assessment, contained adverse information that is credible, relevant and significant to the recommendation made by the reviewer on 22 June 2012: Kioa v West (1985) 159 CLR 550 per Brennan J at 629.
Integer of Claim Ground
The applicant states in their Contentions of Fact and Law filed 20 May 2013:
“55.The reviewer therefore committed an error of law by failing to deal with an integer of the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40]; MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 (11 July 2012).”
In his amended application the applicant described the integer of his claim as “whether he had become a Christian having regard to his claimed beliefs and conduct in Australia”.
In oral submissions, the applicant’s Counsel identified a modified integer of claim by reference to the following extracts from the Further Submissions:
“The Applicant made claims that he wishes to follow Christianity, and will denounce Islam if returned to Iran” (CB p.164);
“We submit that the Applicant will be seen as a practising Christian in Iran having embraced the Christian faith”
(CB p.165);“The Applicant has become a Christian” (CB p.168);
and the advice by email dated 14 June 2012, that the applicant “continues to attends the church services” (CB p.182).
The integer of claim articulated in oral submissions was identified as, whether by reason of the applicant’s conduct in Australia, the applicant had become a Christian or would have been perceived as having embraced Christianity.
The applicant notes the reviewer’s invocation of s.91R(3) in disregarding the applicant’s evidence of his conduct whilst in Australia for the purpose of his findings under s.36(2)(a). The applicant submits that the consideration evidenced in paragraph 145 of the recommendation does not disclose a real or actual assessment of whether the applicant had become a Christian or would have been perceived as having embraced Christianity. The applicant submits that the way in which the issues as to the applicant’s faith is considered is in a very confined way; that is, whether those returning to Iran from the detention centre where the applicant was detained would “dob” him in.
The applicant submits that having failed to consider an integer of the applicants’ claims articulated in the Further Submissions, the reviewer fell into jurisdictional error and relief by way of injunction and declaration should be granted.
First Respondent’s Submissions
Procedural Fairness ground
The first respondent submits that the requirements of procedural fairness are concerned with practical fairness and the question is ultimately one of fairness not technical niceties: In SZBEL at [29] the Court approved the following statement of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (at 591-2):
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”
The first respondent submits that the decisions in SZBEL & BZACF should be distinguished because they concerned the statutory scheme under the Act relating to the conduct of hearings by the Refugee Tribunal and these are, “not engaged in respect of Independent Merits Reviews of the kind now under consideration”: M61 at [91]. The respondent drew the Court’s attention to the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 where Lander & Gordon JJ (with whom Besanko, Flick & Jagot JJ concurred) stated at [157] in relation to M61:
“The High Court’s decision means the procedural fairness obligations for RSAs and IMRs (the reviewers) are not informed by those at the Migration Act specifically requires of the Refugee Review Tribunal, but by the common law. In that regard, the assessor or the reviewer is under more onerous obligations in relation to the provision of Country information.”
The first respondent submitted that “there is no universal right to an oral hearing”: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (“NAHF”) (2003) 128 FCR 359 at [33].
The first respondent notes in its Written Submissions filed 28 June 2013, that the Further Submissions made on behalf of the applicant by his lawyers relied on what was said at the interviews conducted by the reviewer:
“19.The submission repeated those claims made at the interview and requested they be taken into consideration in the context of seeking to satisfy the complementary protection criterion in s36(2)(aa) of the Act. There was no request made for a further interview, and it was unnecessary for the Reviewer to conduct one in the circumstances, where no new claim was raised.”
The first respondent submits that the applicant was clearly on notice that his religious claims were doubted and questioned. This is apparent from the concerns raised by the reviewer, at the November 2011 interview, in relation to his claims of persecution based on religion:
·That the applicant had not raised any such claims (as to religious faith) previously and that many young Iranians are not strict observers of the Islamic faith (at CB p.202 [72]).
·That the reviewer had “serious and growing concerns about his claims…. and his claims were now evolving considerably” (at CB p.203 [75]).
The first respondent noted that in Kioa at p.573, the critical issue was a very prejudicial comment made by the Department in relation to the applicant which was not brought to his attention though they had been put to the Minister’s delegate who made the decision to refuse the applicant’s visas under the then provisions of the Act.
The first respondent further pointed out that in the decision in SZBEL the High Court held that the Refugee Review Tribunal failed to accord the appellant procedural fairness having not provided him “with a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review” [at 44].
The first respondent conceded that the considerations of the applicant’s activities in Australia were disregarded by the reviewer pursuant to s.91R(3) of the Act. The first respondent submits that the evidence as to the applicant’s activities in Australia in relation to his faith (and set out at CB p.217 [132]) was, on a plain reading of paragraph 145 of the recommendation (CB p.219), taken into account by the reviewer for the purpose of considering the complementary protection provisions.
The first respondent submits that the reference by the reviewer, in its consideration of the complementary protection provisions in relation to the absence of details regarding fellow detainees who may report to Iranian authorities or others regarding the applicant’s religious activities referred to (at [145]) was not a determinative issue. The first respondent submits that it is apparent, having to regard to the recommendation of the reviewer, that everything was at issue because of the reviewer’s findings about the applicant’s credibility: SZBEL at [47].
In summary, the first respondent submits that as the Further submissions were based on the claims made by the applicant at the second interview during the course of which the reviewer drew the applicants attentions to his concerns, the applicant was on notice of the critical and adverse issues upon which the reviewer would ultimately base his decision.
The first respondent submitted that it was a nonsense to suggest that, merely because there had been an earlier written recommendation contained in a document prepared by the reviewer (on 22 March 2012), this document should have been made available to the applicant to comment on. The reviewer had made clear in his 22 June 2012 recommendation that, in light of the commencement of s.36(2)(aa) and the fact that the recommendation dated 22 March 2012 sent to the Minister had not been acted on, he would, re-open the matter and put the whole of the recommendation to one side. The reviewer was entitled to take into account his earlier findings in relation to the applicant’s evidence both as to the claim to be a refugee for a Convention reason and his consideration of the applicant’s evidence as to his and his families religious faith and activities in Iran, his activities in Australia and his evidence as to what might happen when he returned to Iran.
The first respondent submitted that the applicant’s submission that he should have been provided with a copy or alerted to the content of the first recommendation (22 March 2012) in effect is imposing an obligation on the second respondent to “expose his or her mental processes or provisional views to comment before making the decision in question”: SZBEL at [24].
Integer of claim ground
The first respondent notes, in its written submission that:
“20.The applicant did not claim to have converted to Christianity, but the essence of his claim was that he feared he would be perceived as a Christian as a consequence of having attended some services whilst in immigration detention. In fact the submission claimed in relation to the issue of Christian converts, that the applicant would face harm “whether or not the Applicant officially converts (CB 116.1).”
The first respondent submits that the reviewer directly addressed the applicant’s claims as to Christianity when he stated at [131] of his recommendation, “I am not satisfied on the available evidence that the claimant has become religious or, more specifically, Christian.”
The first respondent submits the reviewer was entitled to rely on this finding made in relation to s.36(2)(a) of the Act, when considering the claim under s.36(2)(aa), taking into account that the reviewer additionally took into account and accepted the applicant’s conduct in Australia, “that he attended Christian services on Christmas Island and at Curtin IDC, and that he may also have “contributed” in some form during these services.”
The first respondent referred to the decision of Flick J SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 (“SZQFS”) at [17] for the proposition that “it is incumbent upon a claimant seeking refugee status to present for consideration all material sought to be relied upon”.
Consideration
Procedural fairness ground
It is settled that the procedural fairness obligations of a reviewer are informed by the common law principles: M61 at [91]
In Kioa, Mason J (as he then was) stated:
“The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? (at p.585)
…
In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.” (at p.587)
Brennan J stated:
“Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.” (at p.629)
In M61 the High Court relevantly stated in relation to the requirements of a review conducted by a reviewer [90] to [91]:
“Second, failing to address one of the claimed bases for the plaintiff’s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.
Third, 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 plaintiff’s claims”.
I am satisfied that the proposition that by reason of introduction of s.36(2)(aa), the issues to be considered by the reviewer were enlarged: SZBEL applies in this matter.
Section 36(2)(aa) introduced new and separate criterion to that mentioned in s.36(2)(a): SZQRB at [99].
However, the mere fact of the commencement of s.36(2)(aa) following the reviewer’s interview with the applicant in November 2011 does not dictate, as the applicant submits, that he be given an opportunity to be heard by way of oral hearing or otherwise.
In NAHF, Healy J stated at [33]:
“There is no universal right to an oral hearing, although there may be occasions when an oral hearing is necessary to accord with natural justice. In Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1996) 45 FCR 384 and Chen and Others v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591, it was held that the rules of natural justice did not entitle an applicant for refugee status seeking departmental review of an initially adverse decision to an oral hearing by the decision-maker in every case. In particular cases, for example, where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to written submissions, it may be that observance of the fundamental requirements of natural justice could only be satisfied by a determination made on an oral hearing. Those decisions were given at a time when the Act did not contain any provision equivalent to s 425”.
It is true that in this matter there was real issue of credibility raised in the recommendation, however, as the first respondent correctly points out, the applicant was alerted to this by reason of the concerns raised by the reviewer during the course of the interview with him on 3 November 2011: see [12] above.
In SZBEL at [48], the plurality approved a statement made by Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at p.369 that:
“…the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Their Honours continued:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
For this reason, procedural fairness did not require the applicant be provided with a copy of the earlier recommendation dated 22 March 2010. Nor was the reviewer required to conduct a further hearing or interview with the applicant.
The applicant complains about the unsatisfactory manner in which the reviewer deals with the claim that the applicant follows the Zoroastrian religion and his claim that his conduct in Australia puts him at risk of harm on returning to Iran.
There are two things which can be said about this. Firstly, the claim in the Further submission that the applicant claims to privately follow the Zoroastrian faith boarders on the absurd and it does so for the reasons provided by the reviewer. The claim does not arise from the applicant’s evidence at 3 November 2011 interview and is indeed contrary to it. As stated by Flick J in SZQFS: at [17]:
“It is incumbent upon a claimant seeking refugee status to present for consideration all material sought to be relied upon. This in Kioa v West [1958] HCA 81, 159 CLR 550 at 587, Mason J (as his Honour then was) said:
“The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he put forward.”
And, when addressing proceedings before the Refugee Review Tribunal in Abebe v Commonwealth of Australia [1999] HCA 14, 197 CLR 510 at 576, Gummow and Hayne JJ have similarly stated:
“[187]…The proceedings before the Tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
See also: Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946 at [39], 92 FCR 315 at 324 per Tamberlin and Katz JJ. Subsequently in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 at 405, Kirby J again stated:
[78] ... The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances ...
The proposition is consistently repeated. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [200] HCA 63, 228 CLR 152 at 164, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ thus said:
“[40]…it is for the applicant for a protection visa to establish the claims that are made…”
See also: Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45], 113 ALD 46 at 55 per Spender, Moore and Foster JJ; SZOOM v Minister for Immigration and Citizenship [2011] FCA 152 at [16] to [19]. It is not a course open to a claimant to advance such materials as he has available and to thereafter leave it to the delegate or the Tribunal to make its own further inquiries and to formulate a claim on behalf of the claimant.”
Second, the consideration by the reviewer regarding the applicant’s claim that his conduct in Australia places him at risk of harm (at CB p.219 [145]) is, fairly read in context, the reviewer’s reasoning, based on the evidence and argument made by the applicant. The applicant’s complaint is, in my opinion, in reality a complaint about the reasoning of the reviewer based on the factual material and therefore amounts to a request for an impermissible merits review.
In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:
“I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”
Integer of claim ground
In considering this ground for review the Court is mindful of the observations of the following authorities.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 it is stated at p.272:
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 in which the Full Court at [63] stated:
“It is plain enough, in the light of Dranichnikpov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is in a factual premise upon which [the] contention rests which has been rejected. Applicant WAEE (at 641 [47]).”
The reasoning of the reviewer in dealing with the complementary protection provisions at [145] may not be long and detailed. It may have been preferable for the reviewer in the opening sentence of that paragraph to have referred in very summary form to the findings of fact he was relying on or at least the paragraphs of his recommendation where those findings of fact were located. However, reading the recommendation as a whole and in particular that part under the heading ‘Religion’, it is clear that firstly, the reviewer identified an integer of the applicant’s claim as, “he will be perceived in Iran as having converted because of his church attendance in Immigration detention.” at [130] and secondly, the reviewer did not accept the claim because of his doubts about the sincerity of the claim and the fact that, on the available evidence, he was not satisfied “the claimant had become religious, or more specifically, Christian” (at [131]).
It is true that these findings were made in the contexts of s.36(2)(a) and that the applicant’s conduct in Australia in relation to his religious activities and beliefs were disregarded pursuant to s.91R(3). However, the reviewer made it clear at [145] that in considering the applicant’s claim under s.36(2)(aa) he took into account this conduct but was not satisfied that it was more than a mere speculative claim given the paucity of the evidence presented by the applicant.
Conclusion
I am not satisfied that the reviewer failed to accord the applicant procedural fairness as he was obliged to do in accordance with common law principles. I am satisfied that the reviewer considered the applicant’s integer of claim that he had converted to Christianity and/or that having regard to his activities in Australia he would have been perceived to have embraced the Christian faith.
I am satisfied that in the context of economic and efficient administrative migration decision making, the recommendation is adequate, cogent and sufficiently well explained. The findings and reasons are ones that were reasonably open to the reviewer having regard to his factual and credit findings, both overall and especially in relation to the applicant’s claim that he would suffer significant harm because, having regard to his activities in Australia, he would be perceived to have embraced the Christian faith on returning to Iran.
I am satisfied that the reviewer proceeded by reference to correct legal principles, correctly applied and acted in a way that was procedurally fair: M61 at [78].
The application for judicial review is dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 6 December 2013
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