SZQFK v Minister for Immigration - [2011] FMCA 644

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFK v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 644

MIGRATION – Judicial review of IMR report concerning Iranian – refugee claims disbelieved – no duty on reviewer to make further inquiries concerning corroborative documents – no legal or procedural error identified – application dismissed.

MIGRATION – Practice and procedure – unrepresented applicant held in detention – whether Court should adjourn hearing due to efforts of migration agent and other helpers to obtain legal aid – applicant opposed any adjournment of hearing – effect of s.57 of the Legal Aid Commission Act 1979 (NSW) – ‘special circumstances’ that prevented adjournment – hearing completed and judgment delivered without adjournment.

Federal Magistrates Court Rules 2001 (Cth), Pt 12
Judiciary Act 1903 (Cth), s.79
Legal Aid Commission Act 1979 (NSW), s.57
Migration Act 1958 (Cth), ss.36(2), 46A, 91R(3), 476
Migration Amendment (Complementary Protection) Bill 2011 (Cth)

Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39
Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
Wilson v Alexander (2003) 135 FCR 273

Applicant:

SZQFK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 908 of 2011

Judgment of:

Smith FM

Hearing date:

9 August 2011

Delivered at:

Sydney

Delivered on:

26 August 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the respondents’ costs in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 908 of 2011

SZQFK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

LUKE HARDY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

This matter has encountered procedural difficulties, which I propose to recount in this judgment before explaining why I have decided that it must be dismissed on its merits.
The applicant arrived in Australia by boat which was taken to Christmas Island in September 2009. At an entry interview on

28 September 2009, he claimed to fear return to his country of nationality, Iran, and gave reasons. On 2 October 2009, he requested an assessment by the Department of Immigration of his refugee status, under procedures designed to assist the Minister to decide under s.46A of the Migration Act 1958 (Cth) whether he would allow the applicant to make an application for a protection visa. A negative assessment was notified to the applicant on 12 November 2009, and the applicant then applied for ‘independent merits review’ under those procedures.
The applicant was interviewed by a reviewer, Mr Karas, at Christmas Island on 15 December 2009. On 14 January 2010, Mr Karas recommended that the applicant should not be recognised as a refugee, but the applicant remained in detention. In January 2011, the Minister directed a second IMR review, following the judgment of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41 (“Plaintiff M61”). Mr Hardy became the second Independent Merits Reviewer, and delivered a report making the same recommendation on 30 March 2011. Throughout the administrative proceedings, the applicant was assisted by migration agents, initially Florin Burhala & Associates Lawyers, of Melbourne, and after February 2010 by Dr Mohamed Al Jabiri of Sydney.
The applicant’s present application to the Court was filed on 9 May 2011. It seeks an injunction to restrain the Minister from removing the applicant from Australia, a declaration that Mr Hardy’s report is affected by legal error, and other consequential relief. Until around the time of the application, the applicant had been held in immigration detention as an ‘offshore entry person’, but the current basis of his detention in Silverwater gaol in Sydney is not clear to me.
The Minister concedes that Mr Hardy’s report attracts judicial review, and that the present application is within this Court’s jurisdiction under s.476 of the Migration Act, based on the High Court’s reliance on s.75(v) of the Constitution in Plaintiff M61 at [51]. No issues as to time limits or the availability of relief are raised by the Minister.
Nor has the Minister taken any point in relation to the competency of Dr Al Jabiri to sign the original application “at the instruction of the applicant who is not available and able to sign for himself”, notwithstanding that Dr Al Jabiri is not a legal practitioner. The circumstances under which this happened are suggested in the purported affidavit of the applicant. This is also signed by Dr Al Jabiri, with a purported jurat: “affirmed by the deponent at Villawood verbally to me and signed for him at his request, while he was on the rooftop of the Stage 2 building at Villawood Immigration Detention Centre.” It is reasonable to infer that these circumstances led the applicant to be further detained in Silverwater gaol, where, according to his and Dr Al Jabiri’s statements to the Court, it has been impossible for him to communicate with his agent.
However, the applicant was produced before me at the first court date on 24 May 2011, and should be taken to have ratified the actions of

Dr Al Jabiri. If I have not implicitly done so, I dispense with any non-compliance with the Rules in relation to the initiation of the proceedings. The applicant was able to talk to Dr Al Jabiri who was present on that occasion, and at his request I referred the matter to the Registrar under Pt.12 of the Rules for referral to a member of the Court’s de bono panel for legal assistance. I also directed a time-table for the preparation of the matter leading to a hearing appointed for

9 August 2011, and gave a copy to the applicant.
The referral was accepted by the Legal Aid Commission of NSW, subject to its own policies, and according to an email to the Court on

7 July 2011 a solicitor from its administrative law section was “able to speak to him yesterday by AVL at the Metropolitan Remand and Reception Centre, Silverwater. Several earlier attempts to arrange to speak to him had been unsuccessful. I gave him some advice. He is not seeking that Legal Aid NSW represent him at court.”
However, on the day before the hearing Dr Al Jabiri emailed to the respondents’ solicitor a copy of a letter from the Legal Aid Commission dated 4 August 2011 which refused an application for legal aid. He said “we are lodging an application with NSW Legal Aid for a review of its decision” and said “this may require an adjournment of tomorrow’s hearing while we continue the search for legal assistance to (the applicant)”. A subsequent email purported to attach a ‘completed’ application for review. Under s.57 of the Legal Aid Commission Act 1979 (NSW):
57Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a)that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b)that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c)that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.
The Full Court of the Federal Court has held that this applies to Federal courts by reason of s.79 of the Judiciary Act 1903 (Cth) (see Wilson v Alexander (2003) 135 FCR 273 at [20]).
I raised the question of adjournment with the parties at the commencement of the hearing, which was delayed due to the difficulties of producing the applicant from Silverwater gaol. The Minister’s counsel did not dispute that I would be bound to adjourn the matter, unless I formed the opinion in s.57(c) that there were “special circumstances that prevent” this. He did not seek to rely upon the applicant’s statements which suggested that, in effect, he had not authorised any application for review of the Legal Aid Commission’s decision.
The applicant told me that he was unaware of the emails sent to the respondent’s solicitors by Dr Al Jabiri, and was unaware of the correspondence with the Legal Aid Commission, including the existence of an outstanding application for review. He said that he did not want to adjourn the hearing, but wanted the matter heard today and decided by me without delay, because the protracted immigration proceedings and his detention was affecting his mental health. He had been told that his ‘other matter’ – which I assume involves charges arising from his participation in a rooftop demonstration at Villawood - would be completed by appearances on 25 August and 7 September 2011. The Minister’s counsel was unable to give me any information about that matter.
The applicant’s demeanour at the start of the hearing appeared to my lay, but not inexperienced, observations to be clearly depressed. His history of nearly two years’ incarceration since reaching Australia makes such a condition very understandable. Unfortunately, neither he nor the Minister were able to provide me with a psychological assessment, which the applicant said had been obtained while he was in Silverwater gaol. Nor did the Court Book contain a STARTTS psychological assessment which had been shown to Mr Hardy. I was therefore slow to accede to the applicant’s repeated requests that the hearing should not be adjourned to a later date.
I adjourned briefly, to allow the applicant to speak to Dr Al Jabiri privately by telephone, and he did so. Upon resumption, the applicant said that Dr Al Jabiri had advised him to seek an adjournment, but that he continued to want the hearing to be concluded without adjournment.
I concluded that, although the applicant may have been suffering some symptoms of depression, he had explained an understandable and rational decision, and that I should assume his competency to make it. I therefore indicated that I would proceed with the hearing, and proposed to deliver my judgment on 26 August, but that I would allow him an opportunity to reconsider whether he wished to pursue the Legal Aid review application and seek to re-open the hearing before that date. The applicant accepted this course, and participated in the hearing intelligently. In my opinion, the applicant’s opposition to the adjournment of the hearing in the circumstances in which it was made, and taking into account my opinions on the merits of the matter which I shall address below, provided ‘special circumstances that prevented’ me from following the directive in s.57 of the Legal Aid Commission Act.
After I had reserved my judgment, Lopich Lawyers of Kiama filed a notice of address for service as the applicant’s legal representative. At their request, I appointed a directions hearing on 19 August 2011. They did not file an application seeking leave to re-open the hearing, nor any affidavit in support. Mr Robison of counsel appeared, but could not assure me that either he or his instructing solicitors received instructions from the applicant personally to seek leave to re-open the hearing, or had had any personal contact with him. As I understood counsel’s somewhat confused statements from the bar table, the Kiama solicitors had filed their appearance on a request from a refugee support group to provide de bono services to the applicant. Counsel did not know how they had become involved in the applicant’s case, and knew nothing of Dr Al Jabiri’s previous involvement in the matter. He had not seen any of the court documents, including the IMR report.
Counsel’s instructions were that there was an outstanding Legal Aid review application made by the refugee support group, and he sought an adjournment under s.57 of the Legal Aid Commission Act. However, these instructions were inconsistent with a statement by his instructing solicitor to the solicitor for the Minister, which was to the effect that a grant of legal aid had now been made in relation to the present proceedings. If so, the effect of s.57 is now spent, and I have a completely unfettered discretion whether to entertain the application to re-open the hearing after having reserved my judgment.
Taking into account all that counsel said to me, I remained unpersuaded that, in fact, the applicant had been consulted about the recent activities purportedly taken on his behalf, and that he desired me to delay delivering my judgment. I was unpersuaded that any arguable grounds for review might be found by any newly involved legal representative. I was unpersuaded to reconsider and vacate my previous orders which had concluded the hearing of the matter on

9 August 2011.
However, I adjourned the oral application made by counsel to re-open the hearing until 26 August 2011, being the date when I had informed the applicant that I would deliver my judgment. I ordered the Minister to produce the applicant at that listing, and indicated that the Court would arrange for the attendance of an interpreter. I said that there would then be an opportunity for the applicant and any lawyer wishing to take instructions from him to confer, and to clarify whether, in fact, the applicant wished to adopt counsel’s oral application. I indicated that I would receive submissions concerning this, before deciding whether to proceed to deliver judgment or to give directions for the reconvening of the hearing on a later date.
At the listing on 26 August 2011, the applicant attended and was given an opportunity to instruct counsel with the assistance of an interpreter. He maintained his request that I give judgment, and not vacate my previous orders. I therefore have delivered the present judgment.

The applicant’s refugee claims

At his entry interview at Christmas Island in September 2009, the applicant is recorded as giving his reasons for leaving Iran:
My life was in danger and I didn’t have security. I was having a sexual relationship with a married woman (named) for months. Her husband deputy of the police station. The husband caught us one night in bed. Penalty for adultery in Iran is death by stoning or hanging.
When the husband, (named) caught us I thought he went to get a weapon from the kitchen and grabbed my clothes and pushed past him and ran away.
There are no other reasons.
The applicant gave more details of this incident and of his subsequent movements in a statement attached to his RSA application, and at the RSA interview on 6 October 2009.
The RSA assessment made on 12 November 2009 assumed the truth of the claimed history, but concluded that the consequences of adultery which were feared by the applicant would be “the result of the application of a law of general application which does not operate in a discriminatory fashion”, so that “the claimant does not face a real chance of persecution for reasons of his race, imputed political opinion or particular social group, his religion or any other Convention related reason.”
The applicant maintained his fear of punishment for adultery as his sole ground for seeking refugee protection, at an interview with Mr Karas, the first IMR reviewer, held at Christmas Island on 15 December 2009. He said that he had left Iran lawfully on his own passport, and that it was a coincidence that he had met his brother in Indonesia and then travelled with him to Australia, where their sister has residence. Unlike his brother, he denied being “involved in politics in Iran”. He said that since leaving Iran the aggrieved policeman had raided his house with other police looking for him.
Mr Karas assessed the applicant as having been “frank and honest in his account of why he left Iran”, but was not satisfied that he met the definition of refugee under the Convention. As did the RSA assessment, he concluded that Iran’s laws relating to adultery were of general application and would not be applied discriminately for a Convention reason.
In February 2010, Dr Al Jabiri was appointed as the applicant’s migration agent at the request of “relatives and friends of the applicant in Australia”. The applicant was, at that time, apparently held in a detention centre in Perth. Dr Al Jabiri sought a further review of the applicant’s refugee status, and emailed to the Department on 1 March 2010 a submission with a number of documents in support of a claim to fear political persecution, and other documents showing the applicant’s sporting achievements (see Court Book pp.111, 127, and 145). The former documents were copies of purported official documents with translations, and a letter from the applicant’s parents. The official documents were a “final” court summons dated 29 December 2009; a court order of the Revolutionary Court dated 2 February 2010 recording a sentence in his absence for “persistent participation in protects rallies and illegal groups” and for “receiving and distributing anti-revolutionary and subversive material”; and a letter to a lawyer reporting the sentence of nine years incarceration and 99 lashes.
The consideration given to this material within the Department during 2010 is not shown in the Court Book. However, the applicant remained in detention, and by letter dated 26 January 2011 he was invited to “undergo a new merits review” consequent upon the High Court’s judgment in Plaintiff M61 (see Court Book p.108). I assume that it was concluded that Mr Karas’ report suffered from one of the defects found by the High Court: the opinion that “this merits review is not bound by Australian law”.
Mr Hardy was then appointed as the new IMR, and the applicant was invited to an interview which was held on 25 February 2011 at Villawood Detention Centre, where he was then located. Shortly before the interview, Dr Al Jabiri sent a letter to Mr Hardy which stated (Court Book p.154):
We wish to advise a significant change in circumstances for (the applicant) since his transfer to Villawood from Christmas Island then Perth. He has informed us that he has undergone a conversion to Christianity. We present in confirmation of this a Certificate that he was baptised into the Immanuel Family Church on May 16 last year and a statement by an Australian Student Minister knows him well.
We would submit that this development would lead inevitably to even more serious complications if he was forcibly returned to Iran. We trust that the evidence of the Revolutionary Court sentence of nine (9) years imprisonment is on his file. The Reviewer will, we are sure appreciate that in Iran, conversion from Islam is not tolerated and offenders can be sentenced to be flogged then put to death.
The enclosed documents were a certificate of baptism on 16 May 2010, which Mr Hardy was told had been “issued in Perth after (the applicant) had been moved from Christmas Island to Perth IDC”, and a letter from a student minister confirming the applicant’s attendance at her bible study group at Villawood detention centre from August 2010.
A transcript of the recording of Mr Hardy’s interview on
25 February 2011 is not in evidence, but he included a full description in his report, which I accept. Dr Al Jabiri was present at the interview, and “tabled a report by STARTTS being a psychological assessment of (the applicant) citing PTSD. He also presented a letter from a Hillsong volunteer worker visiting Villawood named Sonia Woo which is not very detailed but asserts that (the applicant) has deep devotion to Christianity”. Neither of these documents is reproduced in the Court Book, nor tendered in evidence before me by either party.

According to Mr Hardy’s account of the interview, he questioned the applicant about his family and other background in Iran. He explored the timing of his claimed involvement in political demonstrations and his secret propaganda activities, and the adultery incident. He clearly drew to the applicant’s attention that the credibility of all his claims was in issue, as a result of his delay in claiming a fear of persecution on political grounds, and other concerns which were drawn to the applicant’s attention.
Mr Hardy put to the applicant that “documents and outcomes can be bought from people working within state authorities in Iran”, and that he might not “believe these documents and claims were genuine”. The applicant “said a person could maybe contact the Revolutionary Court”.
After a break in the interview to allow the applicant to confer with

Dr Al Jabiri, the applicant commented upon matters of concern which had been put to him. He also responded to Mr Hardy’s concern that “his disclosure of claims about having converted to Christianity was a very recent one”. He gave an account of his conversion while held in detention in Perth. He also claimed that a returned asylum seeker had told his family in Iran, and that “the whole neighbourhood knew this now and spits on the family”. He also claimed that the church that baptised him had published a photo of his baptism on the internet, but appeared to withdraw this claim when Mr Hardy said that he had not found this when searching the internet.
Mr Hardy clearly explained to the applicant that he would be bound to consider the effect of s.91R(3) of the Migration Act, and outlined its terms. The applicant maintained that “his conversion was genuine and heartfelt”.
Dr Al Jabiri was given an opportunity to make comments and submissions, and did so. He was invited to make a submission on whether the applicant would face persecution as a returning asylum seeker and any other matter, and was given two weeks to do this.
Dr Al Jabiri took that opportunity, and forwarded a written submission on 3 March 2011. The submission is incorrectly dated 1 March 2010 (see Court Book p.108). It addressed the three refugee claims relied upon by the applicant, and sought to explain why the applicant should be believed in relation to his claims. It also submitted:
We assert that all three of the above matters provide a well-founded basis for (the applicant’s) deep fears about what will happen to him if he is forcibly returned to Iran. We submit that you can now be satisfied beyond doubt that (the applicant) will be arrested on his arrival in Tehran airport and carried off to serve the prison sentence involved at either Evian prison or one of the clerical regime’s notorious prisons where torture and other persecutory treatment is routine. He will also be interrogated about the other matters and as a result could be sentenced to death and/or lashing.
It will be of interest that the Minister on February 24 last, laid down as a government policy setting, a ruling that applicants for protection not be refouled if they are at risk of torture, inhumane treatment or likely death. To give effect to this he has introduced legislation to make this part of migration law.
We appreciate that you in your current role will always stand by policy unless there are cogent reasons not to, so we take the liberty of enclosing a copy of the Minister’s announcement.
A copy of the Minister’s ‘announcement’ is not reproduced, but it is reasonable to assume that it related to the Migration Amendment (Complementary Protection) Bill 2011 (Cth), which is awaiting debate in the Senate.

Mr Hardy’s opinions

Mr Hardy’s report is dated 30 March 2011, and the letter notifying the applicant is dated 5 April 2011. The applicant claimed not to have seen a copy of the report, but I consider it probable that, at least, its contents was explained to him subsequently by Dr Al Jabiri and the legal aid solicitor who gave him advice. He appeared to be aware of the reasoning adopted by Mr Hardy. In the course of the hearing, I took the applicant through the report, drawing his attention to its significant findings, before inviting him to make his submissions to me.
In his report, Mr Hardy recounted the history of the matter at greater length than I have summarised above. He referred shortly to country information which confirmed the general premises of the applicant’s three claims, i.e. as to the severity of penalties for “extra-marital sexual activity in Iran”, the “draconian approach the regime in Iran takes to the expression of political opinions at variance with the policies and decrees of the state”, and that “if a Muslim presents in Iran as a convert to Christianity, even as a person who is in the process of converting, he or she will be prosecuted and sentenced as an apostate”. He also referred at greater length to country information concerning the situation of Iranian citizens returning from abroad, including that of failed asylum seekers.
Under the heading ‘findings and reasons’, Mr Hardy first reminded himself of the difficulties facing the applicant when presenting his claims:
I have taken into account that undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth, especially in the context of interviews constrained by time and reliant on interpretation, where an applicant may be slow to realise what is relevant and what degree of detail is required. However, this does not mean that inconsistent evidence or the late introduction of significant new claims are unimportant or should not reflect on credibility.
I have taken into account that (the applicant) is a witness who has evidently experienced stress and anxiety whilst living in detention for several months after a long and arduous journey across land and sea. Records of his recent medical and psychological history are before me. He was moved from Christmas Island suffering what were later diagnosed to be psychological problems. Such stress could understandably give rise to a heightened state in which a person might have difficulty recalling precise details, or the recalling a consistent order in which the relevant events occurred. A person might also, on the spur of the moment, overstate facts and exaggerate claims here and there. To a reasonable extent I have maintained a flexible approach to the evidence, including allowance for instances where I consider some claims by (the applicant) have been somewhat misunderstood or misrepresented in the po(s)t-interview submission.
He then closely examined the applicant’s claimed history, explaining elements which he had difficulty accepting. These included that it was “a complete coincidence that he and his brother (named) both arrived in the same country where their sister has been living for many years”. He also explained the difficulties arising from the applicant’s early denial of any political activities, and his presentation through most stages of the RSA and IMR process of a case which was “quite exclusively a case of discovered adultery”.
Mr Hardy closely considered the applicant’s claim to have left Iran due to an adulterous relationship discovered two or three days earlier by a disaffected spouse. He characterised the story as “a combination of major coincidences and arguably wild risks”, and explained its inconsistencies with later claims to have also taken part in a political protest after the discovery of his adultery. He did not accept the truth of this claim.
He also explained reasons which “lead me to conclude that the “political opinion” claims are false claims,” and found “that opportunism drove (the applicant) to fabricate a political profile late in the day”. When arriving at a conclusion on the political claims, he considered the weight to be given to the documents presented by

Dr Al Jabiri:
I must reach my own findings on the documents. Looking at (the applicant’s) evidence about his political activities overall, considering their provenance and giving weight to the independent information that indicates that it would be easy to create a document that looks like a photocopy of a court summons (or court order), I find that I cannot rely on any of the documents (the applicant) has submitted. This finding also refers to the Iranian solicitor’s letter.
Taking all the relevant evidence into account, I do not accept that (the applicant) was involved in any political activities public or covert in Iran. I do not accept that he was suspected of such involvement, or, for that matter, that a case was (or would be) mounted against him in proxy for some other grievance. I do not accept that he would be suspected of having been involved in such activities in Iran even were he to return there from a country like Australia. I do not accept that (the applicant) faces a real chance of persecution for reasons of “political opinion” real or imputed.
Mr Hardy then examined the claim relating to the applicant’s conversion to Christianity. He accepted that he had been baptised, and had engaged in other conduct “of becoming familiar with Christian teaching and of affiliating with Christians in activities including Baptism, prayer and religious study”. He considered the applicant’s account of his conversion:
I listened to (the applicant) discussing how he hated Islam because the Iranian government used it to hold power over people back in Iran and how he loved Christianity because it gave him here a sense of peace. I put to him that for someone who hates Islam it might be considered odd that he embraced a religion that espoused the messages of so many of Islam’s own prophets. In reply, he said he had had access to no information about Christianity in Iran, implying that he might have come closer to embracing Christianity there had he been able to access enough information about it. I do not get the sense here of a spiritual journey. He suggested that all that stood between him and being a Christian back in Iran was, one, the lack of information about Christianity there and, two, the fact that it is a crime in Iran to abandon Islam for another religion. These two conditions do not exist in Australia, where he said it was suggested to him by a convert in Perth that he read the Bible and consider Christianity, but on the information he gave me at the hearing, in response to questions about when and why he embraced this system of believing, he did not have much to say: he talked about what he did not like and what people suggested he do, and although he did say that he converted in May 2010 without trying to exploit the fact in his refugee status case, and even allowing for some people and some members of other cultures to be less articulate in introspective matters, particularly under stress, (the applicant) did not leave me with the impression of his having undergone, at any stage of his recent life, a genuine, subjective spiritual journey.
He considered the effect of s.91R(3) of the Migration Act, and concluded:
I am mindful, meanwhile, of the possibility that even in cases where there might be evidence of having converted to strengthen one’s refugee status claims, other more legitimate motivations might also have been at work or at least have come into play at some stage. There might be evidence in a case, over time, of a legitimate social engagement with or social or psychological dependency on a new Christian support group, for example. However, I find that (the applicant’s) motivation is solely about strengthening his refugee status claims. I am also of the view that (the applicant) engaged in religious conversion in Australia and engages in affiliation with Christians solely to strengthen his claim to refugee status.
On this basis I must disregard this conduct on the part of (the applicant) and all that flows from it.
I believe that (the applicant) will not live in any way, even discretely or subjectively, as a Christian in Iran because he is not subjectively religious to any significant degree and not genuinely Christian.
Mr Hardy concluded that the applicant would not come to the attention of Iranian authorities in relation to his involvement with Christians, and did not accept “that he would identify as a Muslim (or distance himself from Christianity) out of fear of persecution but rather because he is not genuinely Christian.” He therefore found that he would not face a real chance of persecution in Iran for the Convention-related reason of “religion”.
After discussing some other matters, Mr Hardy considered the situation of the applicant as found by him, and the independent information about returnees to Iran. He concluded that “I do not accept that (the applicant) would attract in Iran any significant imputations of a negative or dissident political profile for reasons of having sought asylum in Australia.”
He did not accept that the applicant faced a real chance of Convention-related persecution in Iran, and found that he “does not meet the criterion for a protection visa set out in the Migration Act 1958.”

The grounds of review

Under the judicial review jurisdiction upheld in Plaintiff M61, it is the function of the Court to consider whether Mr Hardy’s report reveals any error of law, including denial of procedural fairness in its reasoning or the procedures followed before its making. The relief sought in the present application can only be contemplated if I am satisfied that

Mr Hardy made such an error. It is not the function of the Court to engage in merits review of Mr Hardy’s findings on the credibility of the applicant’s evidence and claims, nor to form its own opinions on whether the applicant should be believed or should be permitted to reside in Australia.
I have been conscious of the applicant’s difficult circumstances, and that he has not been legally represented in the proceedings. I therefore examined the material before me, and Mr Hardy’s reasoning in particular, to discover any arguable ground of legal error. However, I was unable to find a ground. In my opinion, Mr Hardy’s report shows a proper awareness of the evidence and claims which he was required to consider, and reveals no error in his application of the definition of refugee in the Convention, as adopted and adjusted by the provisions of the Migration Act. I can find no ground for restraining the Minister or his officers from exercising statutory powers and discretions under the Migration Act with reliance upon Mr Hardy’s opinions and recommendation in his report, should they choose to do so.
I have examined the grounds which were included in the application, presumably by Dr Al Jabiri. These have not been explained or supplemented by any amended application or written submission. The applicant, himself, was unaware of their contents, and at the hearing declined an opportunity to address them specifically. I am therefore left only with the arguments I can glean from their framing, and with the written submissions of the Minister’s counsel in response.
The following grounds and their particulars are presented:
1.The decision of the second respondent was affected by errors of law in that the second respondent erred in his understanding and application of Articles 1A(2) and 33(1) of the aforesaid Refugee Convention
Particulars
The phrase, “protection of that country” in Article 1A(2) refers to the protection offered by the state and state actors being, in this case, the government of Iran and its security apparatus the Ettela’at and its paramilitary enforcement group, the Basij. The second respondent held that the applicant did not fall within the definition of Article 1A(2) because he would not come to the attention of the above Iranian authorities because, the second respondent asserted, he found that he “could not rely” on the documents relating to the applicant’s summons and sentencing in absentia by the Tehran Islamic Revolutionary Court, 16th Branch and the Tehran solicitor’s letter. Significantly the second respondent dismissed these documents in one paragraph without any indication of whether he took any steps to have them checked or verified, even though they had been brought to the first respondent’s attention in March 2010. This becomes an error of “jurisdictional fact” in the sense of the Full Federal Court finding [SFGB v MIMIA [2003] FCAFC 231 of 24 October 2003], about incorrect findings of fact that can lead to jurisdictional error.
2.The decision of the second respondent was affected by a further error of law in that the second respondent made an incorrect finding of fact about the likelihood of the Iranian authorities finding out about the applicant’s conversion from Islam to Christianity in Australia.
Particulars
The second respondent engaged in extended discussion at length about the undoubted conversion and baptism of the applicant in Australia and whether he did so under circumstances covered by s 91R(3) of the Act. But he failed to recognize that the applicant has no passport and therefore the Department would have to signal the applicant’s return by requesting travel documents for him, thereby bringing him to the close attention of the Iranian authorities, whose Ettela’at officers in the Embassy would thoroughly check him. It is now known that his news of his conversion has been broadcast across Iran. This demonstrates that the second respondent failed adequately to consider the means by which the applicant would be returned to Iran, in reaching his factually-incorrect finding that he would not face a real chance of persecution Iran for reasons of religion.
3.The decision of the second respondent was affected by a further error of law in that the second respondent did not afford the applicant natural justice by the second respondent’s failure to give fair and full consideration to the applicant’s mental condition in assessing the applicant’s claims to persecution despite the weight of expert medical opinion put before him
Particulars
The second respondent alluded to the applicant experiencing “stress and anxiety”. The line of reasoning the second respondent then pursued, with such remarks as claims being vague, incongruous, confusing and inconsistent, indicates that he regarded the claims as being made by a reasonable person in a stable frame of mind. The medical evidence before him particularly from the S.T.A.R.T.T.S. psychological assessment was that the applicant was traumatized, suffering a chronic mental condition and an unstable suicide risk.
4.Finally the second respondent failed to give any consideration to the policy announced by the Minister on Thursday 24 February 2011 and advised to the second respondent on 1 March 2011, 30 days before he published his decision. That policy of now incorporating the requirements of Article 33(1) of the Refugee Convention on refoulement in Australian protection decision-making and being enshrined in the Migration Act is binding on the second respondent as a servant of the Minister.
5. Particulars
Article 33(1) of the Convention requires signatory states not to return (refoule) asylum-seekers to their home country if their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Australian migration law at present implements this only obliquely. But the Minister has now introduced migration legislation in the Parliament to “eliminate unnecessary processes” for people at risk of torture, inhumane treatment or likely death to receive a protection visa. The second respondent acknowledged receipt of the ministerial announcement, but made no comment on it, notwithstanding his obligations as a servant of the Minister to abide by policy. In this the second respondent was in error at law.
Ground 1 appears to contend that Mr Hardy erred in law when declining to rely upon the applicant’s documents, by failing to take ‘any steps to have them checked or verified’ or to require such steps to be taken by the Department of Immigration. The ‘steps’ which are alleged to have been available are not explained.

If, as the applicant invited Mr Hardy at the interview, it is suggested that ‘checking’ should have occurred with Iranian Revolutionary Court officials, then such a procedure would be contrary to recognised refugee-determination processes which require the decision-maker to keep the matter confidential from the agencies of the asserted persecuting country. It is not suggested that there was any technical investigation which could have conclusively established that these copied documents were not fabrications.
Moreover, in my opinion, no principle of law required Mr Hardy to ‘take steps’ to investigate the documents beyond examining their overt reliability and considering their weight in the light of country information and, importantly, in the light of his overall assessment of the applicant’s evidence (cf. Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 at [38]-[39]). In my opinion, Mr Hardy’s reasoning concerning the applicant’s documents, which I have extracted above, shows a proper weighing of their evidentiary weight, and his conclusions were rational and open on the evidence presented to him by the applicant.
Unaided by any specific submission, I cannot find in the administrative Guidelines governing Mr Hardy’s procedures, any obligations of inquiry, or a promise of inquiry procedures in the RSA and IMR procedures, more demanding that those imposed on migration tribunals under the Migration Act. In that context, it has been held that the Refugee Review Tribunal normally has no duty to conduct additional investigations as to the genuineness of corroborative documents submitted by a refugee claimant (see Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [1] and [25], and Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [1], [20], and [86]).
I accept the Minister’s submissions that the judgment in SFGB, cited in the ground, does not assist the applicant. In that case, the Full Court held that a factual finding by the Tribunal was unsupported by any evidence before the Tribunal, and that the only evidence before it was to the contrary of the finding. In the present case, there was country information identified by Mr Hardy, which was put to the applicant, upon which it was open to him to conclude that “it would be easy to create a document that looks like a photocopy of a court summons (or court order)” purportedly originating in Iran. That conclusion may also have been supported by a consideration of the appearance of the documents tendered by the applicant and the circumstances in which they were tendered to the Department of Immigration.
I therefore am unable to identify any good argument of legal error raised by Ground 1 and its particulars.
Ground 2 argues that Mr Hardy failed to take into account the fact that the applicant could only be returned to Iran on travel documents provided specially by the Iranian authorities, before finding that the application would not face a real chance of persecution for reason of religion.
However, I accept the submission of the Minister’s counsel that

Mr Hardy’s conclusion that the applicant would not face a real chance of persecution as an apostate Muslim, was based upon an application of s.91R(3), i.e. an opinion that he was bound to disregard the applicant’s conduct in Australia in relation to his conversion to Christianity and ‘all that flows from it’. I can detect no error in Mr Hardy’s opinion that his reasoning would be required by that provision, if he was required to assess Australia’s protection obligations by reference to the provisions of the Migration Act which qualify the definition of refugee in the Convention. I consider that Mr Hardy was correct to understand that he was required to take this approach under the Guidelines governing his report (see Plaintiff M61 at [89]).
Ground 3 argues that Mr Hardy failed to assess the credibility of the applicant’s evidence with an understanding of the implications of the psychological assessment provided in a STARTTS report.
I am somewhat hampered in considering this ground, since this document has not been tendered in evidence before me by either party. The evidence which is before me suggests that the contents of the report were taken into account by Mr Hardy. Mr Hardy expressly noted that it was shown to him at the interview, and expressly reminded himself of the need to give allowance to the applicant’s mental state in the passage which I have quoted above. Whether other decision-makers might have treated this evidence differently goes to the merits of his conclusions, not to their legality. Moreover, the grounds upon which Mr Hardy rejected the credibility of the applicant largely depended upon the timing of his claims and inconsistencies and implausibility discerned in the details of the applicant’s evidence, and it is not suggested that these elements were all explicable as symptoms of PTSD.
The applicant made related submissions orally to me at the hearing. As I understood him, he submitted that Mr Hardy failed to appreciate his state of mind, which caused him to simplify his refugee claims by first presenting only his ‘adultery’ claim, and to be reticent in raising his ‘political claim’ until his adultery claim was rejected and he had corroborative documents, and then again to defer raising his ‘religion’ claim until seven months after his baptism and shortly before his interview. In respect of the latter, he submitted that Mr Hardy had failed to perceive that his delay in raising his conversion to Christianity pointed to the genuineness of his conversion and that it had not occurred solely to strengthen his case for protection.
However, I am not satisfied that Mr Hardy did not think about these points, which also appear to have been made to him by the applicant and his agent. I have above extracted part of Mr Hardy’s discussion where he noted the applicant’s claim that he had “converted in May 2010 without trying to exploit the fact in his refugee status case”.

Mr Hardy also carefully examined the applicant’s explanations for his delays in raising his claimed involvement in political activities and their discovery shortly after he left Iran. It is possible that other reviewers might have taken a different assessment of the applicant’s evidence, and a different path of reasoning when assessing the credibility of the applicant’s three claims and his motivation for participating in Christian activities. However, at their highest, I am not persuaded that the applicant’s criticisms of Mr Hardy’s report reveal any material evidence being ignored, nor any findings which were not open on the evidence and were rationally explained.
I therefore can find no error of law raised by Ground 3 and the applicant’s oral submissions which criticised Mr Hardy’s conclusions and maintained the truth and genuineness of his refugee claims.
Ground 4 (which includes the particulars which are numbered as ground 5), submits that Mr Hardy made an error of law by failing to anticipate the enactment of a Bill which would extend the ambit of s.36(2) of the Migration Act so as to allow protection visa applications to be granted on grounds extending beyond the ambit of the Refugees Convention (the Migration Amendment (Complementary Protection) Bill 2011 (Cth)).
The short answer to this submission is that, in my opinion, Mr Hardy made no error of law by interpreting the Guidelines for the Independent Merits Review of Refugee Status Assessments as requiring him to address the statutory criteria for the grant of protection visas in their terms as enacted in the Migration Act at the time of his report. In this respect, he made no legal error or breach of procedural fairness when posing the question for his report and recommendations:
The question that this assessment must address is whether the claimant, although not an applicant for a protection visa, meets the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 which relevantly refers to a non-citizen to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. That question is to be understood by reference to other relevant provisions of the Act, including ss.36(3)-(7), 91R-91U, and the decided court cases that bear upon those provisions.

Conclusion

After considering all the points raised in the applicant’s application, and in his submissions to me at the hearing, and after considering whether there might be other arguable legal errors affecting Mr Hardy’s report, I am unable to find grounds for granting any of the relief sought in the application.
I therefore dismiss it with costs.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 26 August 2011