MZZKG v Minister for Immigration

[2014] FCCA 237

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 237

Catchwords:
MIGRATION – Application for review of Independent Merits Reviewer decision – claims of denial of procedural fairness – whether applicant alerted to issues dispositive of application – whether Reviewer’s decision open on the materials – whether country information adequately disclosed – Reviewer’s decision not irrational or unfounded on evidence – criticisms not made out – application dismissed. 

Legislation:  
Migration Act 1958 (Cth)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Plaintiff M61/2010E v Commonwealth of Australia & Ors (2010) 243 CLR 319

Applicant: MZZKG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: LUKE HARDY IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

File Number: MLG 595 of 2013

Judgment of: Judge Burchardt

Hearing date: 12 December 2013

Date of Last Submission: 24 December 2013

Delivered at: Melbourne

Delivered on: 14 March 2014

REPRESENTATION

Counsel for the Applicant: Ms Karapanagiotidis

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Riley

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The Application be dismissed. 

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 595 of 2013

MZZKG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

LUKE HARDY IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an application for judicial review of a decision of the second respondent (“the Reviewer”) dated 27 October 2010.  The applicant now relies upon grounds 1, 2 and 4 of the grounds set out in the Application filed on 2 May 2013. 

2. Ground 1 relates to an alleged failure in respect of natural justice.  Ground 2 asserts that the Reviewer dismissed the applicant’s factual claims without a proper basis to do so, and ground 4 asserts a denial of procedural fairness in that the Reviewer relied on country information which was not put to the applicant. 

3. For the reasons that follow, I do not think the criticisms are made out and it follows that the application will be dismissed.  

Preliminary Issue – Delay in Application

1. The date of the Reviewer’s decision was 27 October 2010.  The Application was of course not filed until 2 May 2013. 

2. By leave of the Court, the applicant has filed on 24 December 2013 an affidavit of Philippa Dixon who is the lawyer representing the applicant.  Much of the material in the affidavit is hearsay but for these purposes nothing turns on that.  The affidavit relevantly deposes that the applicant has suffered from depression and anxiety during his time in detention, deposes to vary significant difficulties in obtaining legal representation, and the delays inherent in assessment by Victoria Legal Aid and the obtaining of legal assistance. 

3. No request has been made to cross-examine Ms Dixon.  In the circumstances, I am prepared to and do accept that the applicant’s delay in filing his Application is both understandable and ought be excused. 

The Material before the Reviewer

1. Where, as is the case here, a decision is attacked on the footing that findings on evidence were not open to be properly made, it is necessary to traverse in some detail what it was that the Reviewer had before him.  The record of the Unauthorised Arrival Entry Interview is at Court Book (“CB”) 10-30.  The relevant pages start at CB19-20 where the applicant was asked why he had left his country of nationality.  (It should be noted the interviewer’s handwriting is not always easy to make out).  The applicant claimed to be a supporter of the Green Movement and referred to somebody called Massoud, a person of some significance in the history of the matter.  Relevantly, the applicant said:

   “Mashood, the one helping me distribute leaflets, friends came & they took him.  No one give us answers - no one tell us anything.  Because our home was identified – I left home and stayed with grandparent’s house.  3 or 4 times I stayed in this house.  My father told me same will happen to me what happened to Massoud.”

2. When asked why the people were looking for him, the applicant replied:

   “Masood brothers told me there were cameras in the street which identified me.  Because I was working with Masoud.”

3. When asked who the people were, the applicant replied:

   “I did not see them but my father told me he had not seen these people.  He did not know who are these people.  My father told me by phone the same people came to the supermarket near our house.  They were standing a few blocks from our house.  That is the reason why I left Iran.  My life was in danger.”

4. At CB20, the applicant recorded:

   “I was member of green movement in Iran.  I write slogans on walls & papers.  In June 2009 I distributed green headbands to people.  At night we write slogans on walls & streets.  I joined demonstrations in June, July, Sep 2009 in streets of Tehran.  There were over thousand people.  I had no id card.”

5. I note that at CB24, in describing how he had left Iran, the applicant said:

   “I had valid passport.”

6. At CB25, the applicant referred to his arrival in Jakarta and relevantly said:

   “My passport was stamped – immigration officer asked me for extra.”

7. At CB27, in response to the question as to if he had any reasons for not wishing to return to his country of nationality, the applicant said:

   “If I go back to Iran, no one can find anything about me.

   We heard from voice of America that those people active in political matters or demonstrations had disappeared or did not return home.”

8. Relevantly, the applicant continued:

   “I was against the government - I was distributing green ribbons (illegible) slogans on the wall – being member of green movement.”

9. At CB28, the applicant responded to the question, “How do you prove you belong to green movement?”  He replied:

   “There is no office of green movement.”

10. He was then asked, “Who were you reporting to?”  He replied:  

    “Innaloo – person in election post.  He was leader of election post after election – he was leader of green movement.

    How did you contact Innalou? By phone - he called us - delivered us boxes of headbands, green ribbons for wrists & paint spray for slogans on the walls.”

11. At CB48-50, the applicant’s Statement is set out.  The applicant described his excitement about Mousavi’s Green Movement and stated:

    “A large spontaneous uprising and the demonstrating from thousands and thousands of the citizens not only but especially in Tehran erupted. 

    I shared that indignation and joined in contributing time and energy to the distribution of Green Movement symbolic attire, wrist and head bands, brochures, spray paint for political announcements and protests.  I took part in demonstrations. 

    A friend of mine, Masoud, shared some of these tasks also.  We took instructions from and met with a local Green Movement leader, Inanloo.  We all really hoped for change. 

    This activity was doomed to inevitable failure because no recount was ordered, but I continued, and so did Masoud, with involvement until the anniversary of the election, in June 2010. 

    Then Masoud was taken away in August and I knew it was because of his involvement and that I too would be at risk.  His family were following up the dis-appearance of their loved son and brother and came to the information that CCTV footage had identified him as an active distributor of Green Movement supporting livery (sic) and materials.”

12. The Statement went on to assert that the applicant could have been taken away also but was not as he was out of the city and that he thereafter went into hiding.  The applicant asserted that Masoud’s brother, Majid, told him not to return and that his father reported that the local supermarket owner observed men staking out the family home.  Those people knocked on the home door the same day. 

13. The Statement went on at CB49:

    “Suspicious people pretending commercial interest or friendly interest sometimes in disguise were calling and my family knew that they were dangerous and told me to stay away.  They also reported that a neighbour was a dangerous agent or spy, according to a shopkeeper.

    So I decided I must leave Iran to save my life and made initial enquiries about how to leave Iran.

    I continued carefully working because I had obligation to paid up customers but I was terrified and only drove around other cities, not Tehran.”

14. The Statement relatively also asserted:

    “From Indonesia I learned more.  They were continually visiting and harassing my family with enquiries about my family and I learned that other Green Wave people were being arrested, including promoters and publicity activists like me.

    After arriving in Christmas Island a call home revealed that my brother Ali, aged 26 and not a strong person was arrested by intelligence officers bearing government warrants but then was released after a few hours because the CCTV footage exonerated him.” 

15. The applicant went on to depose to his fear of return and the likely harm that would befall him were this to be the case. 

16. The Refugee Status Assessment (“RSA”) decision is at CB63-75.  At CB65, the Assessor paraphrased the applicant’s claim relevantly as:

    ·     Masoud worked in a shoe factory and the claimant made friends with him through their mutual activities via Inanloo;

    ·     In August 2010 Masoud’s brother called the claimant and said two men came to the door asked for Masoud, said they were friends and Masoud met them and went with them and they had not seen him since.  They went to the hospitals and police stations and could not find him.  Later they found he was taken away because he distributed pamphlets against the government;

    ·     Masoud’s brother found this out by going to the police station who told him Masoud was taken away by the Ettela’at; his brother had no idea how Masoud had been identified and taken away but warned the client to take care because he thought Masoud may have been captured on CCTV and the claimant may have been recorded as well;”

17. The Assessor’s paraphrasing of the applicant’s claims is otherwise in my view unremarkable because it is consistent with what the applicant has said from time to time. 

18. The RSA decision set out at CB66-68 a list of the material before the RSA Officer and this included copious quantities of country information.  The decision included at CB69 a description of the 2009 election and its aftermath at CB69-71. 

19. At CB72, the Assessor recorded that she had put to the applicant:

    “… information presented at interview that indicated that mere asylum seeking did not create grounds for convention based harm. 

    It was also put to the claimant that all the country information I had read indicated that the Iranian authorities pursued those who were instigators not the ordinary protestor and consequently this did not support his claims.  The claimant did not agree and cited Masoud’s situation.  This claim, of the arrest of his friend, is an assertion by the claimant with no way of verifying its veracity.  I do note that the more recent resurgence of protest activity has led to the arrest of demonstrators on location at the time of demonstration and at times in response to violence by demonstrators themselves [4.30-4.35] but the claimant has no connection with these protests as he was on Christmas Island at the time.”

20. The Assessor noted at CB72, the applicant’s claim that Masoud is being held in Kahrizakh Solitary.  The Assessor noted a concession by the applicant’s representative that this was not something that the applicant knew but something he thought was possible.  The Assessor observed:

    “Again this is an unverifiable assertion by the claimant.”

21. The Assessor also found:

    “I find the claimant did leave Iran legally and that in his case this is also indicative that there was no adverse interest in him.  I do not accept that he is the same as Masoud and this consideration is based in part on the fact of the claimant’s exit from Iran where the checking process is stringent [4.22, 4.36, 4.37 and 4.38].  The need for illegal travel arose once he was in Indonesia. 

    As to Masoud himself, taking into account the claimant’s description of their relationship, I conclude the claimant was only his acquaintance.  That the claimant did not know what Masoud’s job in the shoe factory was indicates their relationship was not a strong bond.  They had met during the pre-election campaign.  Their mutual time spent together in protest activity again according to his account during the RSA interview comprised legal low level campaigning prior to the 2009 elections, four days after the elections and then waiting around for the June 2010 commemorative protest to take place which was aborted.  The claimant later added that they had protested together during Ashura in December 2009.  His RSA statement of claims indicated broadly that he had continued protest activity until June 2010 but I consider the more precise account that was elicited during the course of the RSA interview to be more likely.

    Consequently the claimant’s profile was extremely low level and at no time was he arrested or even detained and questioned.  Masoud’s involvement can only be surmised however by the claimant’s reference to him as a distributor of leaflets and materials he has been portrayed as similar to the claimant.  The description of both the claimant and Masoud accords with very low level activity such that may have resulted for some in short detention with a release at the time [4.11] and in the claimant’s case did not result in anything.

    The claimant’s account of Massoud’s arrest, the claimant’s own fear of arrest and the surveillance that commenced soon afterwards are not plausible. …”

22. The Assessor went on to give reasons supporting that conclusion. 

23. The Assessor did not accept that the applicant was wanted prior to his departure from Iran and did not consider that he would be at risk were he to return.  The Assessor relevantly stated at CB74:

    “As the claimant departed legally and as I find that there is no adverse interest in him I find that he will not be subjected to persecutory treatment on return even if the authorities come to know that he applied for asylum in Australia.”

24. The applicant’s migration agent forwarded a post-hearing submission on his behalf which is at CB84-87.  This provided a video of an Ashura protest following the 2009 elections and an article from New York Times dated 25 September 2011 about the circumstances of American hikers who had recently been released from an Iranian jail.  This material was forwarded in the context of whether the applicant as a politically active Iranian asylum seeker returning from a Western country would be targeted on the basis of membership of that social group.  

The Reviewer’s Decision

1. Having set out the Introduction and Relevant Law, the Reviewer paraphrased the Entry Interview, the applicant’s RSA application, statutory declaration and RSA Interview at CB92-94.  In my opinion they are an accurate paraphrase. 

2. At CB95-100 the Reviewer paraphrased what was described in paragraph 40, CB95 as “In his 9 June 2011 IMR submission”.  That submission does not appear to be in the Court Book, and I have no means of knowing whether or not the Reviewer’s account is a correct one.  Given however, that the other materials paraphrased by the Reviewer seem to me to be entirely accurate, and further given that no submission has been made about this aspect of the matter by either counsel, I will accept that it is an accurate recitation for these purposes.  I note further that at paragraph 54 (CB96-100) the applicant set out an extract from an “Amnesty International 2010 Report: Iran”, which certainly indicates that the applicant’s adviser was alert to the fact that the situation of opponents to the government in Iran was a matter very much in issue.  

3. The Reviewer paraphrased matters put at the IMR interview at CB100-107.  I have read the entirety of the transcript as requested by counsel for the applicant and in my opinion, subject to some matters with which I will deal in more detail, the Reviewer’s paraphrase seems to me to be generally accurate, although it does involve certain overlaid matters of comment to the recitation of events. 

4. Having set out the post-interview submissions to which I have already referred, the Reviewer detailed independent country information at CB110-117.  As this relates to a particular ground of appeal I will return to that later. 

5. At CB117-123 the Reviewer made his Findings and Reasons.  It is fair to summarise by saying that the Reviewer did not believe the applicant.  Taken overall, the Reviewer found that the applicant had simply not engaged in the political activities he asserted and was not at risk in the event that he returned to Iran. 

The Grounds of Application

Ground 1 - The reviewer denied the applicant procedural fairness by failing to identify the live and critical issues under review.

Particulars

a)      The reviewer failed to put the applicant on notice that the existence of Masoud was in issue and/or failed to provide the applicant with an adequate opportunity to address this issue. 

(i)Central to the applicant’s claim was his relationship and/or association with a man named Masoud.

(ii)The reviewer did not accept, on the evidence before him, that the applicant “had a friend or acquaintance called Masoud who has or had the characteristics or experiences attributed to him.”

(iii)The previous Refugee Status Assessment (“RSA”) had accepted that the applicant had an acquaintance named Masoud but that they did not have a “strong bond” and were both only involved in “very low level activity such that that may have resulted for some in short detention with a release at the time and in the [applicant’s] case did not result in anything.”

b)The reviewer failed to put the applicant on notice that it did not accept his relationship and/or association with Mr Inanloo and/or failed to provide the applicant with an adequate opportunity to address this issue.

(i)The applicant’s claimed association with the Green Movement was principally through a person named Mr Inanloo.

(ii)The Reviewer did not explicitly reject the existence of Mr Inanloo but such a finding should be inferred.

(iii)The reviewer identified the relationship as a “crucial” one but failed to put the applicant on notice that it did not accept the purported relationship.

c)      The reviewer failed to put the applicant on notice that it did not accept that he had participated in the political activities he had claimed and/or failed to provide the applicant with an adequate opportunity to address that issue. 

(i)The applicant claimed to have engaged in election campaigning and also post election demonstrations.

(ii)The previous RSA accepted the applicant’s claims as to his political activities and involvement but found that such activities were “low key” or “low level” and not sufficient to attract attention by the authorities.

(iii)The reviewer failed to put the applicant on notice that it did not accept as claimed.

1. Counsel pointed to the fact that the RSA had accepted Masoud’s existence but the Reviewer did not.  Reference was made to the well-known passage in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] where the High Court extracted the following from the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 as follows:

   “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.”

1. The applicant’s contentions of fact and law at paragraphs 19-37 expand upon these matters.  The matters asserted however do not advance things much beyond the issues asserted in the particulars to the ground.  The relevant transcript references are included in each instance, and it then becomes a question as to whether the applicant was properly notified, if he should have been, of the possibility that the Reviewer might not accept his factual assertions in relation to the relationship and/or association with Masoud, the relationship with Mr Inanloo, and the extent of the applicant’s political activities. 

2. The first respondent’s submissions are likewise brief.  It is asserted at paragraph 5 that:

   “The first ground claims that the reviewer denied the Applicant procedural fairness, because it failed to put the Applicant on notice of some of its ultimate findings.  The reviewer was not in general obliged by procedural fairness to expose his thought processes or preliminary conclusions: (authority is then cited which I would take not to be controversial of itself).” 

3. By way of illustration of those authorities, in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 French CJ and Kiefel J said at [9]:

   “Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”

a.  Was the applicant notified properly about that the existence of Masoud was in issue and given an adequate opportunity to address this issue?

1. It should be noted that the RSA Assessment did not accept what the applicant had said about Masoud, although it did accept that he existed.  The Assessor concluded that the applicant was only Masoud’s acquaintance and that they were both extremely low level political activists.  The Assessor (CB73) expressly dismissed the applicant’s account of Masoud’s arrest and the applicant’s own fear of arrest, and the surveillance that was alleged to have commenced thereafter. 

2. The applicant was, as the first respondent submits at paragraph 6 “questioned closely about his claims”.  By way of illustration only, I refer to the transcript at P-25, immediately following an assertion that Masoud was arrested by the authorities, the following interchange took place:

3. MR HARDY:

   “On the information I have, how possibly could Massoud’s brother have called you and started talking about this topic?”

4. THE INTERPRETER:

   “As I told you, the last time I met Massoud he got my phone number and I got his phone number.”

5. MR HARDY:

   “That doesn’t quite lead me to how his brother calls you and discusses all of this stuff with you who he has never met, and this is someone who the family doesn’t know because Massoud, according to you, you’re not friends.”

6. THE INTERPRETER:

   “We didn’t have any sort of relationship with each other, and we didn’t have anything to do with each other except that we do whatever we supposed to do between the protest, or during the demonstrations.  When they took Massoud, Massoud didn’t take his mobile phone with him.”

7. MR HARDY:

   “How do you know?”

8. THE INTERPRETER:

   “I asked this question from Massoud’s brother, that how did you get my number and who you are, and he said I am Majid, Massoud’s brother.  When Massoud’s unknown friend came to take him, he didn’t take his mobile with him.”

9. MR HARDY:

   “So the authorities have nothing at all to link Massoud with you, or you with Massoud?”

10. I have not set out all the transcript references in which Masoud is discussed, but a fair reading of the transcript would make it plain in my opinion to anybody that the Tribunal had real doubts about whether or not the applicant’s version of his interrelationship with Masoud was true. 

11. In these circumstances, I do not think that this criticism is made out, and I accept the general proposition that the Reviewer was not obliged to telegraph in advance or on a running basis his various conclusions in any event. 

b. The applicant was sufficiently put on notice about the Tribunal’s doubts about Mr Innaloo and given an adequate opportunity to address the issue

1. A reading of the transcript shows that the interaction between the applicant and Mr Inanloo was the subject of repeated questioning.  In fact, the applicant asserted both very little contact with Mr Inanloo and his information seems to me from time to time to have been inconsistent.  A thorough reading of the entirety of the transcript does not suggest that the applicant was not properly given an opportunity to canvass what it was he might wish to say about Mr Inanloo. 

2. At transcript P-26, line 44, the following is recorded:  MR HARDY:

   “You don’t sound very self-motivated in these movements; you wait for Mr Inanlu to call you and it doesn’t sound very consistent – the evidence about Mr Inanlu calling you and the intervals in between hasn’t been very consistent.”

3. On transcript P-27 further questions are put by the Reviewer to the applicant about Mr Inanloo. 

4. In my opinion the applicant was clearly on notice of the Tribunal’s doubts about Mr Inanloo and given an adequate opportunity to address them. 

c. The Applicant’s Political Activities

1. Here, the applicant already knew that the RSA assessor had not believed him about his political activities.  He must have been on notice therefore that this was going to be an important aspect to his claim.  The Reviewer put concerns about the applicant’s involvement in the passage just quoted above, and in my view the applicant would have been well aware this was a matter he needed to address. 

2. For these reasons, ground 1 cannot be made out. 

Ground 2 - The reviewer dismissed the applicant’s factual claims without a proper, evidentiary foundation and/or made findings that were unreasonable and/or denied the applicant procedural fairness in failing to give proper and genuine consideration to his claims.

Particulars

a)      There was no proper basis for the reviewer to reject the applicant’s claimed association with Masoud. 

(i)The reviewer erroneously identified, and relied upon, an alleged inconsistency between the applicant’s evidence and the RSA interview and his evidence before the reviewer; the applicant did not give evidence before the reviewer that he had no contact with Masoud on the day of the anniversary demonstration in June 2010.

(ii)The transcript of the hearing does not support the reviewer’s finding that the applicant provided evidence that was “inconsistent and unreliable as to the gap between July 2009 and the next time he saw and worked with Masoud”.

1. This ground was not the subject of specific attention in the applicant’s written submissions nor those of the first respondent.  No oral submissions were advanced either so far as I can recall from my notes.  Without such assistance it is difficult to evaluate the force of the ground of the particulars.  I would say having read the transcript that the Reviewer’s findings were reasonably open to him on the materials as they stood. 

2. Counsel for the applicant referred me to several authorities in this context, and I would repeat the passage referred to in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] where Crennan and Bell JJ said:

   “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.

3. The applicant’s written submissions deal with the question of

   
   

   Mr Inanloo at paragraphs 38-45.  This sets out a detailed recitation of the material in the transcript about what the applicant had to say about Mr Inanloo.  It was submitted, in summary, that a proper reading of the material shows that the applicant did not at any point contradict himself in respect of Mr Inanloo as the Reviewer purported to find. 

4. The written submissions of the first respondent at paragraph 7 submit that the applicant did give different versions of Mr Inanloo’s role during the hearing and referred to paragraph 136, CB120.  The relevant finding is as follows:

   “… His evidence about Mr Inanloo only having been a supporter who helped him was in direct contradiction to his description of Mr Inanloo being his supervisor, and also did not sit with his claim about having no means all by which he could contact Mr Inanloo to help or support him.”

5. In my opinion, that characterisation does suggest a measure of contradiction in the evidence put, and contrary to the submissions of the applicant, I do not think that the transcript makes out the criticism. 

6. Furthermore and in any event, if this was an error of fact, mere error of fact does not give rise to jurisdictional error. 

7. Taken as a whole and read fairly, I think the Reviewer’s conclusion in relation to the applicant’s evidence about Mr Inanloo was open to him. 

8. The second part of ground 2(a), ground 2(a)(ii) was not, so far as I can see and/or recall addressed in either party’s written or oral submissions.  Given this lack of assistance it is difficult to evaluate the criticism set out in Ground 2(a)(ii).  All I can say is that even if the Tribunal was in error in the fashion claimed it would not seem to me in the context of the review as a whole to give rise to jurisdictional error in this instance. 

Evidence Concerning the Brother’s Exoneration and whether it was by Reason of Photos or CCTV Footage

1. The applicant’s written submissions set out at paragraphs 46-47 what the Reviewer stated (CB121, paragraph 144) and the relevant transcript references. 

2. When you read the transcript at P-29-P-30, it is apparent that at P-29, line 25, the applicant said:

   “He told me that – my brother told me that they had some photos but they didn’t show it to me, but they had some photos.  He told me that they tortured him emotionally and physically, but he didn’t want, you know, to say it the way that I get upset.”

3. The Reviewer asked, “What sort of photographs?” and the applicant replied:

   “I hadn’t seen those photos, and they – he – my brother just told me they brought some papers in front of them – themselves, and he couldn’t see the photos.

   …

   He said that the photos were on – on A4 paper but I couldn’t ask them – they didn’t say anything and I wasn’t allowed to ask any questions.”

4. The Reviewer pointed out that the applicant had previously said that they had confirmed his brother’s identity through CCTV evidence not photos on paper and the applicant referred to what Masoud’s brother had told him to that effect.  The Reviewer however referred the applicant to the extract of his earlier statement which indicated that his own brother had been exonerated by CCTV footage and the applicant confirmed that that was so. 

5. In the circumstances, the finding of the Reviewer that there was an inconsistency and that this told against the applicant was clearly one that was open to him. 

Ground 4 - The reviewer denied the applicant procedural fairness by failing to provide him with an opportunity to respond to the substance and source of information that the recommendation relied upon as being significant, credible and adverse information. 

Particulars

a)      The reviewer raised with the applicant the issue of whether returned failed asylum seeker were at risk upon return and that country information suggested that “a person needs to have more of a known profile”. 

b)The reviewer however relied upon specific country information that contained additional and significant information that it failed to put to the applicant, including:

(i)the Foreign and Commonwealth Office (FCO) report, 5 September 2002 (paragraph [112]); which included information about the attitude and reassurances of the Iranian government; and

(ii)The article “The Kurdish asylum seeker Rahim Rostami, charged with ‘actions against the nation’s security’, released on bail”, Iran Human Rights (reference omitted); which included a reference to Rostami being able to live within the community in Iran.

c)The reviewer’s failure to raise the substance and source of this information constituted a denial of procedural fairness.

1. The applicant’s written submissions once again traversed the matters set out in the particulars and on one view do not advance the matter that much further.  The submission quotes the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia & Ors (2010) 243 CLR 319, where the High Court at [91] said:

   “… 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. 

   … The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made.  He did not.”

2. The first respondent submitted that the question of the risks upon return to Iran was plainly an issue before the RSA assessor.  At CB74, as counsel for the first respondent submitted, the assessor had concluded that the act of the applicant seeking asylum did not place the applicant at risk so it should have been clear that this was a matter in issue.  I accept that submission.  The question is whether the substance (or as the first respondent puts it, “the gist”) of the country information was adequately put to the applicant.  

3. What the Reviewer put to the applicant, following a series of questions at P-33-34 about what the applicant thought might happen to him if he returned to Iran was as follows at T-34, line 20:

   “MR HARDY:  It’s an issue that I’m grappling with.  Country information suggests that a person needs to have more of a known profile, you know, it might have been activities in Iran before he or she left, it might have been published activities or publicised activities in the country of asylum, like attending demonstrations or giving interviews on television like the boy in Norway.  Now my mind is open on this, but there is little evidence, and some expressions of doubt that a failed asylum seeker on his own, or on her own, just for having that document of return would face a penalty, yes unless it were found that that person had left illegally, which is an immigration law breached.  I hear what you say, it would be a different story if that identity were matched to a political profile of concern to the government.”

4. At T-35, the following was recorded:

   “MR HARDY:  I read some interviews between a British human rights – I think it was British human rights interviewer and former returnees, people who had returned to Iran from silent countries, and they were interviewed in their homes, and they said yes, we’re scared we could be picked up at any time.  But one point that you could draw from reading these interviews was that they were in their homes, they hadn’t been picked up.  We can appreciate they were scared but it’s not like some law was brought against them upon return.”

5. I accept the submission of the applicant that the Foreign and Commonwealth Office Report was not put in terms to the applicant.  The relevant extract is at paragraph 112, CB116, as follows:

   “According to the FCO, in the case of returned asylum seekers it has been reported by observers that they had seen no evidence that failed claimants, persons who had illegally exited Iran, or deportees faced any significant problem upon return to Iran (although cases that gain a high profile may face difficulties).  According to the CIRB in a July 1999 report: “Several times in the recent past, senior government officials have declared that all Iranians living abroad are welcome to return home without fear of reprisal … and the Foreign Ministry’s Consular Department has confirmed that applying for asylum abroad is not an offence in Iran.”

6. I note that it is on the same page at paragraph 114, the Reviewer recorded:

   “At our interview, I put to (the applicant) the substance of the following opinion from the Department of Foreign Affairs and Trade (DFAT):

   … We consider it unlikely that authorities would prosecute someone simply for claiming asylum overseas.  However, it is possible that a known dissident would be prosecuted in this way …”

7. The Reviewer’s assertion that he had put the substance of that matter to the applicant is, in my view, borne out by the extract from transcript,

   
   

   P-34. 

8. The foreign office material of which the applicant makes complaint is not shown to have been in any way, in my view, determinative of the application.  Arguably, to the extent that it was of any significance, the gist of it was put in the sense that what the Reviewer was saying to the applicant was that he did not face the likelihood of prejudice upon his return as a result of being a failed asylum seeker.  In all the circumstances, I do not think that this failure deprived the applicant of a fair hearing because the material simply was not sufficiently central to the conclusion that the Reviewer reached. 

The Material in Relation to Rahim Rostami

1. This matter may be dealt with shortly.  In my opinion, the first respondent is correct to submit that the information relating to Mr Rostami was not harmful to the applicant’s case. 

Conclusion

1. For the above reasons, none of the applicant’s grounds of application are in my opinion made out.  It follows that the application will be dismissed. 

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  14 March 2014