SZQOX v Minister for Immigration

[2012] FMCA 566

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 566

MIGRATION – Application for review – independent merits reviewer – whether applicant denied procedural fairness – whether particulars of information had to be put to the applicant. 

Migration Act 1958 (Cth), s.91R

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88; [2005] HCA 72
Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771
Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81
NARO v Minister for Immigration [2005] FMCA 55
Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 85 ALJR 133; [2010] HCA 41
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82

Applicant: SZQOX

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1922 of 2011

Judgment of: Barnes FM

Hearing date: 12 March 2012

Date of Last Submission: 23 April 2012

Delivered at: Sydney

Delivered on: 29 June 2012

REPRESENTATION

Counsel for the Applicant: Mr C Jackson

Solicitors for the Applicant: Carroll & O’Dea

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1922 of 2011

SZQOX

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant seeks review in relation to a recommendation by the second respondent in his capacity as independent merits reviewer (the IMR) to the first respondent, the Minister for Immigration and Citizenship, that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. 

2. The applicant arrived on Christmas Island on 14 August 2010. He claimed that he was born in Iraq and that he was a stateless Faili Kurd who had lived in Iran.  On 12 December 2010 he made a request for a refugee status assessment (RSA).  The RSA accepted that the applicant was a stateless undocumented Faili Kurd, but found that he did not have a well-founded fear of persecution for a Convention reason in Iran.  On 17 May 2011 the applicant sought independent merits review.  The reviewer concluded the review on 22 July 2011.

3. The applicant claimed that he was a Faili Kurd whose parents were born in Iraq.  He was born in Iraq in 1976.  He claimed that his family “was expelled from Iraq and deported to Iran” (where his paternal grandparents had been born) when he was a child (in the 1980s).  He remained in Iran until 2007.  He claimed that he was stateless and that although he had held a “green card” in Iran it had been taken by the authorities when he returned to Iraq in 2007.  He claimed that after about three months in Iraq in 2007 he had returned to Iran illegally and had lived there until mid-2010 without documentation.  The applicant claimed he had suffered discrimination and had trouble finding work, that he was poorly paid and that he was denied social services in Iran.  He married an Iranian citizen in 2009 but claimed he dare not apply for citizenship through her and that he had no right to Iranian citizenship through his wife.  He claimed he left Iran illegally, albeit on an Iranian passport in his own name and with his own photograph, but that he did not experience any difficulty leaving via Tehran airport. 

4. He claimed to fear that he would be discriminated against across all areas of his life and also that he would be arrested because he last entered and left Iran illegally, that he would be interrogated and tortured by the authorities as a stateless person without a green card, accused of spying, deported and that he would be at risk as a failed asylum seeker. 

5. The applicant’s adviser claimed to the IMR that the applicant feared persecution on account of his nationality or lack thereof, his ethnicity as a Faili Kurd, an imputed political opinion of opposition to the Iranian regime and membership of the particular social groups of undocumented Faili Kurds and failed asylum seekers.  The adviser elaborated on the applicant’s claims to have a well-founded fear of persecution for Convention reasons, including because of his illegal status as an undocumented stateless Faili Kurd and his inability to identify himself as a Faili Kurd. 

6. In the statement of reasons, the IMR outlined at length the claims made by the applicant at various stages, including in the IMR interview (a transcript of which is before the court as an annexure to the affidavit of Maithri Panagoda affirmed on 8 March 2012), as well as country information in relation to matters such as Faili Kurds in Iran, Iranian citizenship, re-entering Iran and departure from Tehran airport.

7. In his findings and reasons, the reviewer summarised the applicant’s claims that he had been a displaced stateless Iraqi in Iran, that he had no right to enter and reside in Iran or Iraq, and that as a displaced Faili Kurd from Iraq in Iran with no identity documents, other than a green card up to 2007, he had suffered discrimination in the past, largely in relation to lack of access to education, work, insurance, public medical care, freedom of movement within the country, property ownership, marriage registration and recourse to the law, and that he would face such discrimination in the future and feared the authorities and the Basij militia.  The reviewer recorded the applicant’s claim that as an undocumented Faili Kurd he had been “taken advantage of and paid much less than Iranian nationals”, that his family had suffered discrimination and harm in the past, and that while he had completed a Photoshop course, he was not issued with a certificate because he was a Faili Kurd and that he was referred to as an “Arab”.  He also claimed that because he was a Kurd who had left Iran illegally and had sought asylum in Australia if he returned to Iran he may be accused of being a spy and suffer serious harm. 

8. The reviewer found that there was a “significant credibility issue” as to the identity of the applicant in circumstances where he had provided no documentation that established his status in Iran or Iraq or that otherwise established his personal details, nationality, or lack of nationality.  Nonetheless, notwithstanding the absence of relevant and compelling documentary evidence, based on the totality of the applicant’s evidence for the purposes of the decision the reviewer proceeded on the basis that the applicant’s identity was as set out in the review.

9. The reviewer accepted that the applicant was a Kurd Faili and found that his claim to be of Iraqi origin displaced in Iran was consistent with country information about displaced Faili Kurds from Iraq residing in Iran, albeit such information also showed that the great majority of Faili Kurds in Iran were Iranian nationals. 

10. However the reviewer rejected the claim that the applicant was a “stateless” Faili Kurd for reasons which he gave.  First, the reviewer had regard to the applicant’s description of his life in Iran, including his claim that while he held a green card until 2007 he had “nonetheless suffered constant discrimination, not just because he [wa]s undocumented, but also due to his Kurd Faili ethnicity and his Iraqi birth”.  It had been submitted that “as a stateless Faili Kurd without any documents [the applicant had] suffered substantial, official, and systematic discrimination of government and society [amounting] to persecution”.  The reviewer considered the submission that the applicant feared official persecution, including on account of his Faili Kurd ethnicity and lack of nationality.  However the reviewer found that “much of the [applicant’s] own evidence [did] not show that he [had] suffered the disadvantaged and persecuted life in Iran he ha[d] portrayed”.  The reviewer had regard to the absence of any evidence of actual experiences by the applicant of harm or adverse attention at the hands of the police, Iranian authorities, pro-government groups or anyone at all and found that, given the claim that adverse attention and ill-treatment naturally flowed from an individual’s status as an Iraqi refugee and/or stateless individual in Iran, the lack of claims of any such actual adverse attention and ill-treatment strongly suggested that the applicant did not live in Iran as a non-citizen.

11. In addition, while the applicant had “spoken of great difficulties in accessing education”, the reviewer found that the fact that he had completed high school and a post-secondary technical course “undermine[d] his claim that he was unable to access education, and suggeste[d] he had another basis for undertaking the technical course”.

12. Insofar as the applicant had claimed that his freedom of movement within Iran had been severely restricted and that he never had permission to work in Iran, the reviewer had regard to the fact that he also claimed he had “travelled from Ilam province to Tehran over many years where he undertook seasonal printing employment”, and that “in 2007 he travelled to Tehran and lived and worked there without any documents or permission at all”.  The IMR also had regard to the fact that the applicant did “not claim, despite ample opportunity, that he ever had any difficulties or came to the adverse attention of the authorities or non-State agents travelling between Ilam city and Tehran, or in Tehran where he never had permission to live at all”.  The reviewer was not satisfied that travelling to work early in the morning and taking back streets in Tehran explained how the applicant never attracted any adverse attention over such a long time.  The IMR found that this suggested that the applicant had “some other basis for demonstrating his right to travel within Iran and live in Tehran” and that it suggested that “he did not live in Iran as a non-citizen”.

13. Insofar as the applicant had spoken of poor employment opportunities in Ilam and limited and poor-paying employment in Tehran, the reviewer accepted that Ilam province was a poor province, but had regard to the applicant’s evidence that “his part-time employment in Tehran (to 2007) was because the printing of calendars was seasonal and not for other reasons”.  The IMR found that the applicant’s work arrangements did not show that he was a Faili Kurd who lacked documents.

14. The reviewer also addressed the applicant’s contention that “he never held permission to work” and his claim that it was “difficult for him to find work because employers hiring undocumented Faili Kurds risked a fine”, but concluded that on the applicant’s own evidence he had undertaken the same employment over a significant period, including full-time work, and that he was not prevented from working or excluded from work in Iran.  The reviewer found that “despite the claimed difficulties [the applicant said] he had in finding and undertaking work because he was an undocumented Faili Kurd, the long period in which he actually undertook the printing work suggest[ed] he had some other basis for working in Tehran and that he did not live in Iran as a non-citizen/undocumented Faili Kurd”.

15. In addition, the reviewer found that the applicant’s ability to gather what he said was the equivalent of US$9,000 to pay a smuggler in order to travel to Australia undermined his claim that “he was taken advantage of and grossly underpaid” in his employment because he was an undocumented Faili Kurd.  The reviewer found that the applicant’s “capacity to gather that sum suggest[ed] his employment conditions and circumstances in Iran were not as restricted and impoverished as he claim[ed], that “his wage was significantly better than he claim[ed]” and that it was not restricted for the reason that he was taken advantage of as an undocumented Faili Kurd, and that this also suggested that the applicant did not live in Iran as a non-citizen.

16. Further, the reviewer had regard to the fact that the applicant’s paternal grandparents, as well as his mother’s mother, were Iranians and to Iranian citizenship law that showed that nationality descended from the father.  The reviewer found that it followed that the applicant’s father was also an Iranian national by descent.  It had regard to the applicant’s claim that his father had tried to get Iranian citizenship 15 years earlier, but was unsuccessful because he had no documents, but found that the applicant had not explained “why the father waited until about 1995 in order to prove his Iranian nationality”.  The reviewer found that, based on the applicant’s own evidence, his family background strongly suggested that he was, in fact, an Iranian national. 

17. The IMR also had regard to the applicant’s marriage to an Iranian national in 2009 and her move into his apartment in Tehran at a time he claimed he was in fear of the authorities and pro-government agents in Tehran and working very long hours for little income and no benefits.  The reviewer found that the applicant’s “marriage to an Iranian national suggest[ed that] he had a higher social and economic standing in Iran than he claim[ed]” and that his “family antecedents suggest[ed] he was not a non-citizen in Iran”.

18. In addition, the reviewer observed that the applicant had not claimed, despite ample opportunity, that any of his relatives (such as his father and five siblings residing in Iran, only one of whom was said to be an Iranian national) had suffered harm in Iran.  The reviewer found that this suggested that the extended family had not suffered ill-treatment worthy of mention and similarly that they were not non-citizens.

19. The reviewer found that the applicant’s claim that he was given a false passport and departed Iran through the international airport in Tehran without difficulty raised “serious concerns”.  While he accepted that country information “suggest[ed] it may be possible to bribe airport personnel [and hence] leave through the airport illegally”, he noted that this would “include bribing of a lot of airport staff members”.  In any event, the IMR found that the differing accounts the applicant had given of the assistance he received from a smuggler to facilitate his departure raised concerns with his story.  The IMR set out the various claims the applicant had made in this respect and also had regard to information about the existence of several document checks, including after entry into the area for travellers only and after check-in at the airport, which showed that, contrary to the applicant’s initial claim, the smuggler could not have accompanied him to the counter where an immigration officer checked passport and personal information.  The reviewer found aspects of the applicant’s changing claims in this respect to be unconvincing and did not accept the applicant’s story about passing through the airport with the assistance of a bribed official.  The IMR found it highly unlikely that a person with a false passport could pass through the security checks at the airport and found that the country information, the applicant’s changing story and his evidence that the Iranian passport he travelled on was in his name and contained his photograph strongly suggested that he had departed Iran with a legal Iranian passport which would show he was not a non-citizen.

20. The reviewer concluded:

    In sum, I do not accept that the claimant had illegal and low paying employment, where he was taken advantage of as an undocumented Faili Kurd.  I do not accept that he led the disadvantaged life that he claims.  I do not accept and nor does he claim, that he suffered any ill-treatment in Iran at the hands of the Basij, security or Intelligence agencies, police, or the Iranian authorities.  Nor do I consider that his claim that he held a green card until 2007 explains the conclusions I have reached.  I conclude that his financial circumstances and social standing in Iran were significantly higher than he has claimed, and indicative of a Faili Kurd who was also an Iranian national.  I conclude he was not an illegal worker subject to harassment by inspectors, Basij, and/or other similar agents.  I conclude he was able to get marriage registration.  Based upon country information, those parts of the claimant’s evidence that I do accept, and in light of the forgoing, I accept the claimant resided in Iran but do not accept that he resided there as a non-citizen.  It follows that I do not accept he risks deportation on his return.

21. Hence, while the reviewer accepted that the applicant was ethnically a Faili Kurd, he did “not accept that his ethnicity therefore mean[t] that he [wa]s a stateless or displaced Iraqi”. 

22. The reviewer had regard to country information, referred to in the reasons, showing “the large majority of Faili Kurds in Iran [we]re Iranian nationals” and found it significant that while a number of reports suggested that ethnic and religious minorities, including Kurds in Iran, faced a degree of discrimination and, in some cases, persecution by the Iranian authorities, there was no information found in the sources consulted which suggested that Faili Kurds were “subject to discrimination or persecution on the basis of their ethno-religious identity”.  The IMR also had regard to advice from the Department of Foreign Affairs and Trade that the Post was not aware of Faili Kurds being targeted because of their ethnicity and the fact that this advice had not changed by March 2010.  While the IMR accepted that Faili Kurds who were non-citizens did experience adverse treatment, on the material before him the reviewer did not accept that the applicant was such a non-citizen.  The reviewer did not accept that because the applicant was a Faili Kurd he would be denied basic rights or face serious harm amounting to persecution in the reasonably foreseeable future. 

23. The reviewer had regard to the fact that while the applicant was a Kurd, he had not claimed, despite ample opportunity, to have undertaken anti-regime activities in or outside Iran or in support of Kurdish separatism.  He did not accept that the mere fact that the applicant was a Faili Kurd meant he had an imputed anti-regime political opinion in circumstances where he had no political profile based on his ethnicity.  In light of country information, the applicant’s particular and individual claims, and his lack of a political or religious profile, the IMR did not accept that he would face serious harm from the authorities, Basij, or similar pro-government groups because of any Convention ground.  The IMR did not accept that the applicant’s ethnicity meant that he would face serious harm amounting to persecution on return to Iran in the reasonably foreseeable future.

24. The reviewer addressed the fact that the applicant was a Shia Muslim, which was said to be the majority religion in Iran, but found that there had been no specific incident of persecution pointed to in this respect and concluded that the applicant’s ethnicity and religion had not caused him and would not cause him any problems of a religious nature in Iran.

25. The reviewer also considered the applicant’s claim to fear persecution as a returnee to Iran. The IMR accepted that any attempt to involuntarily return the applicant as a failed asylum seeker would involve consultation with the Iranian authorities. However the reviewer had regard to the fact that DFAT was not aware of any widespread pattern of maltreatment of returning failed asylum seekers by Iranian authorities and was of the view that while the country information showed that a returnee who left Iran illegally and applied for asylum overseas would be likely to be detained, questioned and fined on their return, and might be monitored, such treatment did not rise to the level of serious harm within s.91R(2) of the Migration Act 1958 (Cth) for a Convention reason.

1. In relation to the claim that the applicant left Iran illegally, the reviewer rejected the applicant’s claim that he had organised a false passport at additional cost when (as a citizen) he would have no need to do so.  While the IMR accepted that the applicant used a people smuggler to make arrangements to come to Australia by boat, the IMR found that this did not show that he was stateless as he claimed.  The reviewer did not accept that such past actions would cause the applicant any difficulties on return to Iraq.

2. The reviewer also considered, but rejected, the possibility that the Iranian authorities had reason to target the applicant before he departed Iran, finding that he had no political or public profile in Iran at all and that there was nothing to suggest he would be considered a political dissident or agitator on his return.  The IMR found on the material before him that there was nothing in the applicant’s employment or profile that suggested he would be of adverse interest to the Iranian authorities on his return.  The reviewer did not accept that the mere fact of the applicant coming to Australia and seeking asylum would cause him to be persecuted on his return to Iran.

3. In light of the reviewer’s conclusions, he did not assess whether the applicant was able to seek and obtain Iraqi nationality.  Rather, the reviewer concluded that he did not accept that the applicant was stateless and had no right to enter and reside in Iran.  Hence the IMR rejected the applicant’s claims that he faced discrimination and persecution in Iran on the basis of being a stateless and undocumented Faili Kurd from Iraq.  On the basis of the claims the reviewer accepted, he concluded that the applicant did not suffer serious harm in Iran for any reason, whether for being a Faili Kurd, or a displaced Iraqi refugee.  Having regard to the absence of any claim he had undertaken any political activities in Iran, the reviewer did not accept the applicant would be imputed with a political opinion regarding support for Kurdish separatism and support of the Iraqi government, or accused of spying for Iraq or Australia, or anything else to do with his ethnicity or other characteristics, and did not accept that he faced a real chance of persecution for any Convention reason.  The reviewer recommended that the applicant not be recognised as a person to whom Australia had protection obligations. 

Procedural Fairness

1. In his original application for judicial review filed on 29 August 2011 the applicant relied on two grounds.  He did not file an amended application in accordance with directions made on 27 September 2011 or file written submissions 14 days prior to the hearing date.  After the first respondent filed written submissions on 5 March 2012, in written submissions filed for the applicant on 8 March 2012 it was stated that the applicant pursued only one ground of review, being the first particular of the first ground.

2. At the hearing it emerged that the applicant also sought to rely on matters other than those contained in the first particular to ground one in support of the proposition that he was denied procedural fairness because certain information was not put to him.  After the hearing the applicant filed an amended application clarifying the precise basis for the ground on which he relied.  Each of the parties was given a further opportunity to file written submissions in relation to the new matters raised by the applicant at the hearing. 

3. The ground now relied on in the amended application is as follows:

   The Applicant was denied procedural fairness, because particulars of information which was credible, relevant, and significant, and which impacted adversely on his claim to be undocumented and stateless, were not put to him.

   PARTICULARS:

   (i)That Faili Kurds who have been able to prove their family links to Iran have been granted citizenship;

   (ii)That the Civil Code of Iran provides a liberal basis for the grant of citizenship;

   (iii)That individuals of religious and ethnic minorities did not face any difficultiebtaining (sic) a passport (RD144[88]);

   (iv)That false passports were now relatively rare, and by implication, difficult to obtain, since a new passport application system had been put in place (RD144[85]);

   (v)It would be necessary to bribe a lot of airport officials in order to leave Iran unlawfully (RD144[88]).

4. First, it is necessary to clarify the scope of the asserted failure to provide procedural fairness that was ultimately relied on by the applicant. 

5. In pre-hearing written submissions the applicant contended that, in fairness, copies of certain documents should have been provided to him by the IMR with an explanation of what they might indicate adverse to his case, in particular his claim to be stateless and his claims about his departure from Iran in addition to the matters referred to in particulars (i) and (ii) above. 

6. Counsel for the applicant acknowledged that at the IMR interview the reviewer put to the applicant that Iranian citizenship flowed through the father.  In oral submissions it was contended however that this was not sufficient disclosure of the adverse material on this point which the IMR had before him such as to accord the applicant procedural fairness.  The applicant appeared to maintain a contention that in some respects the “documents” that were the source of information referred to in the decision should have been provided to the applicant for comment or that, at the least, the source of the information identified.  It was contended that the IMR relied on this information to support the conclusion that the applicant was, in fact, a citizen of Iran.  The amended application refers only to “particulars” of information. 

7. In submissions reference was also made to a DFAT advice of 13 September 1999 which was said to indicate that “those who had been able to prove their family links to Iran have been granted citizenship” and to articles 976 and 979 of the Civil Code of Iran which, according to the applicant’s submissions, “appears to allow for the liberal grant of Iranian citizenship”.  In addition it was also suggested that a UNHCR cable dated 28 May 2008 which stated that there were believed to be around 2,000 registered Faili Kurd refugees remaining in Iraq and DFAT advice of 9 March 2010 which indicated that while it was not clear how many unregistered Faili Kurds remained in Iraq the post had been told of a further 4,000 unregistered Iraqi refugees (some of whom would be Kurd Failis) had to be put to the applicant for comment. 

8. It was also initially submitted that the IMR had to put to the applicant information from a Faili Kurd website indicating that there were 3 million Faili Kurds in Iran of whom only 7,000 were registered or unregistered asylum seekers.  The applicant subsequently conceded that the IMR had put the information from the Faili Kurd website to the applicant at the IMR interview.  Nonetheless, in oral submissions it was suggested that the conclusion drawn from this information should have been put to the applicant.  However the grounds in the amended application now relied on by the applicant do not relate to such information. 

9. As indicated the particulars in the amended application relating to these matters are now limited to a contention that particulars of information “[t]hat Faili Kurds who have been able to prove their family links to Iran have been granted citizenship” and secondly “[t]hat the Civil Code of Iran provides a liberal basis for the grant of citizenship” ought to have been put to the applicant on the basis that such information was credible, relevant and significant to the issue of acquisition of Iranian citizenship by Faili Kurds and impacted adversely on his claims to be undocumented and stateless. 

10. This modification appears to involve a recognition that procedural fairness does not necessarily require provision of the source document to an applicant.  Insofar as the applicant maintains any contention that the copies of the documents containing the information referred to in the particulars to ground one had to be given to the applicant, as discussed further below, it has not been established that a failure to provide specific documents (or to identify the specific source of the information referred to in the particulars) would constitute a failure to accord procedural fairness in this case. 

11. In addition, in oral submissions counsel for the applicant submitted for the first time that country information referred to by the reviewer in relation to departure from Tehran airport was relevant to the question of whether the applicant was in fact the holder of a genuine Iranian passport and therefore a citizen, rather than someone who had resorted to bribery to obtain a false passport and/or had bribed airport officials.  Particular reliance was placed on the fact that in its summary of country information about departure from Tehran airport the reviewer referred to information about obtaining Iranian passports, including information provided by the Immigration and Refugee Board of Canada in 2006 about a 2000 report that individuals of religious and ethnic minorities did not face any difficulties obtaining a passport and reporting that while in the past forged or fraudulent Iranian passports had been abundantly encountered, a new passport application system was instituted in Iran in March 2005 and it had been claimed that there were no reports of false passports from March to August 2005.  The IMR was said to have stated that this information suggested that “whilst false Iranian passports may have been prevalent prior to 2005, there appear[ed] to have been a reduction after changes in 2005”.  It was submitted that the IMR’s conclusion that there had been a significant reduction in the availability in false passports since 2005 should have been put to the applicant for comment.  However in the Amended Application this aspect of the applicant’s claims was expressed as a contention that particulars of the information that individuals of religious and ethnic minorities did not face any difficulty obtaining a passport and that false passports were now relatively rare, and by implication, difficult to obtain since a new passport application system had been put into place should have been put to the applicant.  Reference was made to paragraphs [84], [85] and [88] of the IMR’s decision.  This contention is discussed below. 

12. Insofar as it was contended at the hearing that the IMR should have put to the applicant for comment the information referred to in paragraph [87] of the IMR decision to the effect that passports were checked at least twice during the exit procedure from the airport and also information that according to a March 2006 UNHCR report, during the final stages of security checks conducted prior to entering the waiting area for departure, a Disciplinary Forces Officer verified in a database whether the passport was fake and whether the person in front of the officer was the same person whose name and photo appeared on the passport, this contention is not directly reflected in the ground in the amended application.  In any event, as discussed below, the substance of such information was put to the applicant during the IMR interview. 

13. Finally, at the hearing it was contended for the applicant that the reviewer was obliged to put to the applicant information (from the Danish Immigration Service Report) that it would be necessary to bribe a lot of airport officials in order to leave Iran unlawfully as set out at paragraph [88]. Such matters were said to be relevant as going to the question of whether the applicant was travelling on a genuine passport as a citizen of Iran. The amended application expresses this as a contention that the applicant was denied procedural fairness in that particulars of information that it would be necessary to bribe a lot of airport officials in order to leave Iran unlawfully were not put to him.

14. As the High Court stated in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 85 ALJR 133; [2010] HCA 41 at [91]:

    … procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. 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. (footnotes omitted)

15. Counsel for the applicant contended that procedural fairness required that particulars of information that was relevant, credible, significant and adverse to the applicant be put to him (Siddik v WorkCover Authority of NSW [2008] NSWCA 116) and that as the focus was on the procedure and not the outcome it was not necessary that such information actually be relied upon by the decision-maker in the decision (Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 225 CLR 88; [2005] HCA 72 at [14] – [18]), albeit in this case it was contended that there had been such reliance.

16. In support of this proposition the applicant relied on remarks of McColl JA of the New South Wales Court of Appeal in Siddik at [101] in relation to the circumstances in which an appeal panel could of its own initiative consider grounds other than those identified by a Registrar provided it gave the parties an opportunity to be heard. In that context her Honour recognised that “determinations, which affect the ‘rights, interests and legitimate expectations’ of the parties, attract requirements of procedural fairness: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (at 584) per Mason J”.  Her Honour continued:

    This includes giving a party an opportunity to deal with material which can be characterised as credible, relevant and significant and adverse to the interests of that person: Applicant VEAL of 2002 … (at [14] – [18]). 

17. As the first respondent contended, insofar as the applicant maintained any contention that the reviewer was obliged to provide him with copies of the country information itself or extracts from the country information, Bennett J stated in Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [34] in relation to the Refugee Review Tribunal:

    [The decision-maker] was not obliged to provide the appellant with the specific documents recording the information where the substance of the information was provided.

18. The first respondent also placed reliance on the remarks of Allsop J (as he then was) in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 at [28]:

    Natural justice is ultimately a question of fairness…Sometimes, as here, [the decision-maker] will reach for specific material for assistance.  In doing so it was only informing itself of matters against which to assess the claims of the appellant.  If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.

19. Similarly, in SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19] – [20] Allsop J stated:

    It is not part of the obligation of the Tribunal to provide copies of all the country information material.  The question is one of fairness…

    Having examined the material, I am of the view that the issues were raised fairly with the appellant and there was no breach of procedural fairness evidenced by the transcript.

    (Also see NARO v Minister for Immigration [2005] FMCA 55 at [57]).

20. The notion of information that is credible, relevant and significant reflects the remarks of Brennan J in Kioa and Others v West and Another (1985) 159 CLR 550 at 628 to 629; [1985] HCA 81 in relation to the proposition that a person should be put on notice of the issues to be resolved and matters adverse to his interest as follows:

    A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise ... The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.  Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.  Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. ... 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.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information.  He will be neither consoled nor assured to be told that the prejudicial information was left out of account.

21. In VEAL Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ pointed out that the concept “credible, relevant and significant to the decision” to be made must be considered in the context of the particular decision.  Their Honours observed at [16] – [17]:

    What is meant by "adverse information that is credible, relevant and significant to the decision to be made"?  As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons.  Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error.  In particular, what Brennan J said about "information that is credible, relevant and significant" takes its meaning from the point his Honour had made only a few sentences earlier: that "[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made".  Moreover, what is meant by "credible, relevant and significant" must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, "are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise".  Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised.  They are to be applied to the processes by which a decision will be reached.  

    It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached.  That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information.  And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made.  "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision.  And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made.  References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.  

1. Their Honours recognised at [29] that it is not necessarily the case that a copy of the document containing the information has to be given to the applicant.  Disclosure of the substance of the information is generally sufficient as recognised in Applicants S1266 of 2003, VHAP of 2002 and SZBPM.  In some circumstances the source of information or a copy of the document containing the information may have to be put to an applicant.  This is not such a case. 

2. The applicant has not established that in this case procedural fairness required the reviewer to put to him the specific documents referred to in the particulars to ground one of the application or the source of the information referred to in the particulars.  This is not a case in which the “form or source of credible, relevant and significant information” had to be disclosed in order to enable the applicant to address it.  As the High Court stated in Plaintiff M61 at [91] procedural fairness requires the reviewer to put before an applicant “the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims”. 

Faili Kurds, Iranian citizenship and the Civil Code

1. The ground in the amended application is that “The Applicant was denied procedural fairness because particulars of information which was credible, relevant and significant, and which impacted adversely on his claim to be undocumented and stateless, were not put to him”.  It is convenient to consider particulars (i) and (ii) together.  The first contention in particular (i) is that particulars of information that “Faili Kurds who have been able to prove their family links to Iran have been granted citizenship” had to be put to the applicant.  Particular (ii) is to the effect that particulars of information that “the Civil Code of Iran provides a liberal basis for the grant of citizenship” had to be put to the applicant. 

2. It appears from the applicant’s submissions that the first particular relates to information obtained by the reviewer from a DFAT advice of 13 September 1999 summarised in paragraph [76] of the reasons for decision together with other information relating to “Iranian citizenship”.  DFAT was said to have provided advice on the situation in Iran for Iraqis displaced to Iran during the Iran/Iraq war (from September 1980 to August 1988) (as the applicant claimed to be and the IMR accepted).  In that context it reported that Iranian citizenship had been granted to “some” Iraqis who had:

   …been able to prove their family links to Iran…the remainder [were] issued green cards.

3. The actual wording of the relevant part of the DFAT advice is then set out in the reviewer’s reasons as follows:

   With regard to your advice that the June 1999 issue of refugee reports indicated that of the 350,000 Iraqis expelled to Iran at the time of the Iran-Iraq war, those who have been able to prove their family links to Iran have been granted citizenship, and the remainder have been issued green cards, our interlocutors said this was correct but noted there were applications pending of individuals claiming Iranian ancestry but who have not been able to substantiate their claims.  They have no idea of the numbers involved (DIMA Country Information Service 1999…(sourced from DFAT advice of 13 September 1999)). 

4. In the IMR’s findings and reasons no specific reference was made to this DFAT advice in relation to the situation for Iraqis who had been displaced during the Iran-Iraq War.  The reviewer did not accept that the applicant’s claim to be of Iraqi origin displaced in Iran was “consistent with country information which shows that displaced Faili Kurds reside in Iran, albeit the great majority of Faili Kurds in Iran are in fact Iranian nationals”.  The reviewer then referred to a 2008 UNHCR report and 2010 DFAT advice. 

5. There is no evidence before the court that there was information in the precise terms appearing in particular (ii) before the IMR.  It appears that this is intended to be a reference to the substance of information about the Civil Code of Iran referred to in the IMR’s reasons as follows:

   The Civil Code of Iran, dated May 1928 and last amended in 1985, indicates that individuals who have an Iranian father are considered to be Iranian subjects.  The Civil Code of Iran also states that individuals born in Iran to foreign parents are considered to be Iranian subjects if one of their parents was born in Iran or if they resided for at least one year in Iran after the age of 18.  According to Article 979 of The Civil Code of Iran individuals can apply for Iranian nationality if they (sic) eighteen years or over and have resided in Iran for five years.  The Civil Code of Iran stipulates the following criteria for obtaining Iranian nationality: 

   BOOK 2 – CONCERNING NATIONALITY

   Article 976

   The following persons are considered to be Iranian subjects:

   (1) All persons residing in Iran except those who foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government. 

   (2) Those born in Iran or outside whose fathers are Iranian. 

   (3) Those born in Iran of unknown parentage. 

   (4) Persons born in Iran of foreign parents, one of whom was also born in Iran. 

   (5) Persons born in Iran of a father of foreign nationality who have resided at least one more year in Iran immediately after reaching the full age of 18; in other cases their naturalization as Iranian subjects will be subject to the stipulations for Iranian naturalization laid down by the law. 

   (6) Every woman of foreign nationality who marries an Iranian husband, 

   (7) Every foreign national who has obtained Iranian nationality. 

   …Article 979

   Persons can obtain Iranian nationality if they:

   (1) Have reached the full age of 18. 

   (2) Have resided five years, whether continuously or intermittently, in Iran. 

   (3) Are not deserters from military service. 

   (4) Have not been convicted in any country of non-political major misdemeanours or felonies.  In the case of Clause 2 of this Article, the period of residence in foreign countries in the service of the Iranian Government will be considered as residence in Iran. 

6. In the findings and reasons no specific reference was made to the Civil Code but the IMR referred to Iranian citizenship and laws as follows:

   The parents of the claimant’s father were both Iranians (as was his mother’s mother).  Iranian citizenship laws show that nationality descents from the father, and it follows that the claimant’s father was also an Iranian national by descent.  The claimant stated his father tried to get Iranian citizenship 15 years ago, but he had no documents and so was unsuccessful.  However, he did not explain why the father waited until about 1995 in order to prove his Iranian nationality.  Based upon the claimant’s own evidence, his family background strongly suggests that he is in fact an Iranian national.  

7. First, to the extent the information in particular (i) referred to the issue of green cards to Iraqis displaced during the Iran-Iraq war it was consistent with the applicant’s claims and not adverse. 

8. Further, while no specific reference was made to this advice in the IMR’s findings and reasons, in considering the applicant’s claims to be a stateless Faili Kurd in Iran the reviewer accepted that the applicant’s claim to be of Iraqi origin displaced in Iraq was “consistent with country information which shows that displaced Faili Kurds from Iraq reside in Iran”.  Such a finding was consistent with the applicant’s claims.  Insofar as the information in question provided support for such a finding, it was not adverse material that had to be put to the applicant so that he could deal with potentially adverse consequences of the use of such information. 

9. Beyond this, it is important to bear in mind that what procedural fairness requires is to be determined in the particular case.  The reviewer is not obliged to put every item of information to the applicant.  What is essential is that the applicant is afforded the opportunity to address the substance of information that may potentially be used adversely to his interests, that is information that is credible, relevant and significant to the decision to be made (Kioa v West at 628).

10. In this case information to the same effect as the information in particular (i) was referred to in the decision of the RSA as follows:

    A number of sources, including UNHCR, International Crisis Group, have indicated that Faili Kurd refugees who could present documentary proof of their Iranian ancestry or family links to Iran have been able to obtain Iranian citizenship. 

11. Thus the applicant was on notice of this information.  Moreover, the substance of what may be seen to be implicit in the information cited by the IMR about Iranian citizenship and Faili Kurds, to the effect that the great majority of Faili Kurds in Iran were in fact Iranian nationals and that citizenship was granted to those who had been able to prove family links to Iran, was raised at the IMR interview as was the information in the Civil Code referred to in particular (ii). 

12. Relevantly, in the interview the reviewer raised, on a number of occasions, the issue of the circumstances in which Faili Kurds may be Iranian citizens.  First, after the applicant confirmed that he had been born in Iraq and that the family was expelled to Iran in 1980 (transcript p.3) and a discussion of his family members, the reviewer asked the applicant (transcript p.5) whether his sister was an Iranian citizen and obtained confirmation that she was an Iranian citizen because she was married to an Iranian man.  The reviewer then asked (transcript p.6) whether the sister’s husband was a Faili Kurd as well and received an affirmative answer.  The applicant confirmed that the husband became an Iranian citizen over 40 or 50 years ago by providing identification documents to the Iranian consulate in Iraq. 

13. The reviewer then confirmed with the applicant (transcript p.6) that his parents were both born in Iran and put to him (relevant to both the first and second particulars in the amended application) that country information (transcript p.7) showed:

    …that Iranian citizenship or nationality flows normally from the males, so the fact that your father’s parents were born in Iran might suggest that your father was also an Iranian national.

14. In this exchange the IMR sufficiently put to the applicant the substance of the relevant significant adverse information about the Iranian law.  It was not necessary to identify the Iranian Civil Code as the source of such law in order to afford the applicant an opportunity to respond.  The applicant’s response reveals that he understood the significance of proof of family links and the applicable law.  The applicant drew a distinction between the parents of his sister’s husband (who he said were smart enough to apply to the Consulate or Embassy to get citizenship) and his father, who he claimed had no identification. 

15. Subsequently (transcript p.10) the reviewer specifically drew to the applicant’s attention that one of the issues the reviewer had to decide was whether he accepted that the applicant was stateless.  At that point the reviewer put to the applicant the information that the overall population of Faili Kurds in Iran was estimated to be three million, and the number of Faili Kurd refugees in Iran appeared to be quite small, with the UNHCR believing there were around 7,000 registered Faili Kurd refugees in Iran, and the Australian Department of Foreign Affairs suggesting there may be 4,000 unregistered Iraqi refugees in Iran, some of whom were probably Faili Kurd.

16. Importantly, the reviewer (transcript p.11) also explained that the point was that there were far more Faili Kurds who were Iranian citizens in Iran than there were displaced Iraqi Faili Kurds in circumstances where the applicant’s claim was limited to his ethnicity as a Faili Kurd and to the fact that he was undocumented. 

17. The reviewer also obtained confirmation from the applicant (transcript p.16) that his wife was a Faili Kurd who had Iranian citizenship.  Moreover, towards the end of the hearing the applicant’s advisor asked the reviewer to ask the applicant to describe his family’s efforts to obtain Iranian citizenship.  The applicant claimed (transcript p.25) that his father was interested in getting Iranian citizenship and about 15 years ago had been “curious” to chase it up, but that because he did not have any documentation or identification he was unsuccessful.  However he also volunteered (at p.29) that his wife’s father was Iranian and her family were all Iranian citizens with Iranian identification. 

18. It is clear that the applicant, and his adviser, were on notice of the issues and the substance of the adverse information referred to in particulars (i) and (ii) and, from the applicant’s evidence, of the fact that Faili Kurds who had been able to prove their family links to Iran (like his sister) had been granted citizenship. 

19. Having regard to the whole of the transcript of the interview with the applicant, it is apparent that the substance of the information that Faili Kurds who had been to prove their family links to Iran had been granted citizenship was clearly put to and addressed by the applicant in the course of the IMR interview as well as having been referred to by the RSA.  It was not necessary for the reviewer to put to the applicant for comment that the source of that information was the particular DFAT cable or other specific country information such as the Faili Kurd website, the UNHCR report of 28 May 2008 and the DFAT cable of March 2010 or copies of such documents.  No denial of procedural fairness is made out on the basis contended for in particular (i). 

20. I have had regard to the applicant’s assertion that the DFAT advice of 13 September 1999 which stated that those who had been able to prove their family links to Iran had been granted citizenship should not be seen in isolation, but rather in conjunction with the country information consisting of the Iranian Civil Code.  As the applicant conceded, the notion that Iranian citizenship flowed through the father was raised with him in the course of the hearing (at transcript p.7) when the reviewer put to him country information showing the Iranian citizenship or nationality flows normally from the males so that the fact that his father’s parents were born in Iran might suggest that his father was also an Iranian national. 

21. It is apparent from the applicant’s response, addressing his family background, that the applicant was aware that this information had implications for his status under Iranian citizenship law.  He endeavoured to explain how, notwithstanding his family lineage, citizenship was unavailable to him.  Indeed he conceded that if his grandparents had obtained their Iranian citizenship or birth certificates from the Iranian Consulate or Embassy in Iraq: “it [would] be really easy for us to claim our Iranian citizenship because our names would be in the registry offices” (at transcript p.7). 

22. In other words, it is clear that the information that Iranian citizenship flowed through men (as provided for in the Civil Code) including through the applicant’s grandfather to his father (and by implication through his father to him) was raised.  The applicant had the opportunity to respond to such information and its relevance to his circumstances.  He was afforded practical justice in this respect in the context of an interview in which he was clearly put on notice that the reviewer was considering whether or not he was a stateless Faili Kurd in Iran.  Sufficient attention was drawn to the subject of concern and the substance of the information in the Iranian Civil Code relevant to his particular circumstances. 

23. Insofar as the applicant contended that the reviewer was obliged to raise the issue of whether the applicant was an Iranian citizen eligible by virtue of his family lineage for citizenship, it is apparent from the whole of the transcript of the interview that the reviewer raised with the applicant the substance of the issues that arose based on country information about the fact that Faili Kurds who had been able to prove family links to Iran had been granted citizenship and that the Civil Code of Iran provided a basis for the grant of citizenship. 

24. Insofar as the applicant contended that it was necessary to put to him that the civil code of Iran provided a “liberal” basis for the grant of citizenship, the concept of liberality would be a matter of the reviewer’s reasoning or thought processes.  What was necessary was that the reviewer put to the applicant the relevant effect of the Iranian citizenship legislation for a person in the position of the applicant.  It is apparent from the transcript of the hearing that the reviewer put to the applicant that the Iranian citizenship legislation showed that citizenship flowed through the father, so that the fact that the father’s parents had been born in Iran might suggest his father was also an Iranian national.  This obviously, by implication, raised the issue that if the applicant’s father was an Iranian citizen then similarly he too was entitled to Iranian citizenship. 

25. No denial of procedural fairness is established on the basis contended for in particulars (i) or (ii) of ground one. 

Iranian passports

1. At the hearing counsel for the applicant raised new matters which, as documented in the amended application, involve three further issues in which it was contended that the applicant was denied procedural fairness because particulars of specified information which was said to be credible, relevant and significant impacting adversely on the applicant’s claim to be undocumented and stateless were not put to him. 

2. Counsel for the applicant acknowledged that there was some discussion in the IMR interview of the applicant’s departure from Iran, that in broad terms a question was raised about the genuineness of the applicant’s passport that and there was some discussion about how one would leave Tehran airport.  Nevertheless it was submitted that this was not sufficient, because the reviewer considered relevant and extracted very particular information about this issue and that both the applicant and his adviser should have been given the opportunity to address such information as credible, relevant, and significant information.  That was said to be so even though the reviewer did not rely heavily on this material in reaching his conclusion, on the basis that what was in question was the significance of the material with reference to the claims made, rather than the manner in which the particular decision-maker ultimately determined the matter (VEAL).

3. The first two complaints relate to country information regarding Iranian passports.  Particular (iii) refers to particulars of information “[t]hat individuals of religious and ethnic minorities did not face any difficultiebtaining (sic) a passport”.  The amended application filed after the hearing refers to the reviewer’s decision at page 144, paragraph 88.  Paragraph 88 is not on p.144 of the reviewer’s decision.  It appears that this is intended to be a reference to paragraph 84 (which appears in the part of the decision in which the reviewer summarised country information about “Departure from Tehran airport”).  That paragraph refers to a Canadian Immigration and Refugee Board Report dated 3 April 2006 (although the footnote refers to a UK Border Agency, Country of Origin Information Report for Iran of 31 August 2010).

4. In any event, the quoted material in paragraph 84 described information provided in 2006 about Iranian passport features and the procedure for applying for an Iranian passport.  It included the following statement:

   While obtaining a passport was more complicated for certain individuals, namely those why had ‘matters to settle with the Iranian authorities’ or married women who must first obtain permission from their husbands in order to apply for a passport, the 2000 report stated that individuals of religious and ethnic minorities did not face any difficulties in obtaining a passport...

1. There is no other evidence of identification of the “2000 report”.  In oral submissions counsel for the applicant submitted that this material suggested that obtaining an Iranian passport was relatively straightforward and hence was relevant to the question of whether the applicant was the holder of a genuine Iranian passport and therefore an Iranian citizen. 

2. In addition it was submitted that other information that was arguably adverse in relation to whether the applicant was the holder of a genuine passport related to the impact of the new passport system and was described in paragraph [85] of the reviewer’s decision as follows:

   In 2006, based on consultations with UNHCR personnel in Tehran, UNHCR advised the Immigration and Refugee Board of Canada that counterfeit Iranian passports are widely available, with the price dependant on quality.  The April 2006 response that cites this advice also quotes a 2003 Citizenship and Immigration Canada (CIC) Passports and Travel Documents training manual that notes “[i]n the past, forged or fraudulent Iranian passports have been abundantly encountered”.  However, this response then notes that a new passport application system was instituted in Iran in March 2005 and quotes the director general of the Iranian Police Passport Department who claims that there were no reports of false passports between March and August 2005…This suggests that whilst false Iranian passports may have been prevalent prior to 2005, there appears to have been a reduction after changes in 2005. 

3. However, particular (iv) to the ground in the amended application is as follows:

   That false passports were now relatively rare, and by implication, difficult to obtain, since a new passport application system had been put in place (RD144 [85]);

4. In the findings and reasons part of the reviewer’s statement of reasons the reviewer did not specifically refer to the information in paragraphs [84] and [85] of the decision, but found generally (after addressing country information about security procedures) that:

   The country information, together with the claimant’s changing story, and his evidence that the Iranian passport was in his name and had his photo, strongly suggests that he departed Iran with a legal Iranian passport.  This would in turn show he is not a non-citizen. 

5. Nonetheless, consistent with VEAL, what is in issue is whether the reviewer failed to put information to the applicant that was credible, relevant and significant, impacting adversely on his claim to be undocumented and stateless, that is, a non-citizen without identity documents such as a green card.  First, in relation to particular (iii) the issue before the reviewer was whether the applicant was a non-citizen, not whether as a citizen he nonetheless experienced difficulty obtaining a passport as a Faili Kurd.  As counsel for the applicant conceded, the issue of obtaining a passport is not the same as the issue of citizenship.  As discussed below, the substance of the reviewer’s concerns about whether the applicant held a genuine passport was raised with him. 

6. Counsel for the applicant contended that the information that there had been a significant reduction in the availability of false Iranian passports since 2005 had to be put to the applicant on the basis that this could reinforce the conclusion that it was unlikely that he had been travelling on a false passport or that he had been able to obtain a false passport.  I note however that the information in question did not state that there had been a “significant” reduction or that false passports were “relatively rare”.  Indeed the information cited by the IMR commenced with the observation that in 2006 the UNHCR had advised the Immigration and Refugee Board of Canada that counterfeit Iranian passports were widely available with the price dependent on quality.  It was in the course of that response to the IRB that the UNHCR also referred to the new passport system instituted in March 2005 and quoted the clauses by the Iranian Police Passport Department that there “appears” to have been a reduction after 2005 changes, the essence of this information being to the effect that counterfeit Iranian passports were widely available in 2006 (albeit not “abundantly encountered” or “prevalent” as they had been prior to 2005).  The information that counterfeit Iranian passports were available was consistent with the applicant’s claims. 

7. At several points in the interview with the applicant the reviewer raised the issue of the veracity of the passport used by him to depart Iran.  Importantly, the reviewer pointed out that the fact that the passport was in the applicant’s own name and had his own photograph (as he had stated) suggested that it was genuine (transcript p.18).  The applicant’s response (that he was “not really sure if that was genuine or not Iranian passport” but that a people smuggler had organised it) indicates that he was given an opportunity to address the relevant issue of whether he had a genuine Iranian passport in circumstances where there was no suggestion that the applicant’s ethnicity of itself affected his ability to obtain a passport (but rather the issue was whether he was a citizen). 

8. The reviewer also raised with the applicant (at p.22 of the transcript) the issue that the reviewer had with his departure from Iran on a passport in his own name bearing his photograph and also the fact that on his evidence he had not done or been part of any anti-government activities either in Iran or outside Iran (consistent with the country information in paragraph [84] referred to above in relation to particular (iii)) on the basis that, setting aside the applicant’s claims to be undocumented, there was “nothing else that would bring you to the adverse attention of the Iranian authorities”.  In this context the reviewer reiterated that the fact that the applicant left Iran with a passport with his photograph on it and in his own name created a concern that it might have been a genuine passport.  The applicant responded.  He addressed security at the airport and claimed it was not a genuine passport although it had his details and photograph on it (transcript p.22).  The issue of significance or subject of concern was raised with the applicant.  It has not been established that the reviewer was otherwise obliged as a matter of procedural fairness to put to the applicant the information referred to in particulars (iii) and (iv). 

Departure from Tehran Airport

1. The last issue raised in the amended application (in particular (v)) is a contention that the particulars of information that “[i]t would be necessary to bribe a lot of airport officials in order to leave Iran unlawfully (RD144 [88])” had to be put to the applicant for comment. 

2. Paragraph 88 (on p.145-146 of the court book) is as follows:

   The Danish Immigration Service’s report also reported on the possibility of being able to bribe officials when leaving Iran:

   “A western embassy (3) stated that Iranians abroad might be misinforming foreign authorities by saying that they have left Iran illegally through an airport, as this is very difficult due to thorough security checks.  However, it was elaborated that it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally.  This, though, will include bribing a lot of airport staff members since there are several check points in the airport.  Sajdrabi at first rejected that it is possible for anyone to bribe his or her way through the airport.  It was explained how the Immigration Police does not have influence on who can exit Iran, as it is the information in the computer system that will provide information as to who is prohibited from leaving Iran.  However, it was later stated that in cases where a person does manage to leave Iran illegally this is not due to flaws within the computer system but rather a human error – i.e. a person has been bribed.”

3. It is relevant to note that this information was referred to after the reviewer set out in some detail information from the same source (and another report) on security procedures for leaving Iran and the various security checks on passports during the exit procedure.  In the amended application the applicant did not raise any claim about whether that information was sufficiently put to him. 

4. In the findings and reasons part of the decision, the information about bribery of airport officials was not used adversely to the applicant.  Rather, the reviewer found (at [109]):

   The claim that he was given a false passport and he then departed Iran through Imam Khomeini International Airport without difficulty also raises serious concerns.  Country information suggests it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally, but this, though, will include bribing of a lot of airport staff members.  However, the claimant has given differing accounts of the assistance he received from a smuggler to facilitate his departure which raises concerns with his story:

   ·    At his interview on 9 September 2010 the claimant described the smuggler [KD] accompanying him to the check-in counter, [K] told him which check-in counter to go to (a male officer), and then left him. 

   ·    At his interview on 15 December 2010 he described passing through the first gate by showing his ticket and passport, and then later when the flight was announced he went to the counter 1 where a bribed officer stamped his passport and waved him through; and the smuggler had told him the day before how to go through the check. 

   ·    At my interview the claimant at first claimed the smuggler named [KDY] did not enter the airport, but only dropped him off; and he had told the claimant the night before about which gate to go through,.  When I sought to confirm this story, the claimant then stated the smuggler waited to see if he passed the security checks.  When I pointed out this differs from his first interview where he said [K] came with him to the check-in and then left him, the claimant discussed how it had been pre-organized and the airport has huge doors of glass which you can see through although he could not tell if the smuggler had in fact waited. 

5. It can be inferred that what was of concern to the reviewer was not information about the need to bribe personnel to depart Iran on a false passport, but rather inconsistencies in the applicant’s claims and the country information about the number of security checks (including the Immigration Police computer check in the travellers only area of the airport) the substance of which was put to the applicant in the interview. 

6. The reviewer continued at [111]:

   The report shows that the smuggler was not able to accompany the claimant to the counter where the Immigration officer checks the passport and personal information on a computer system as he claimed at his first interview.  Nor was the claimant’s changing account of the smuggler possibly being able to see through glass doors, or of waiting to take a phone call if anything went wrong, convincing.  In sum, I do not accept the claimant’s story of passing through the airport with the assistance of a bribed official.  I cannot discount the possibility that a person with a false passport can pass through these security checks, however, it appears highly unlikely.  The country information, together with the claimant’s changing story, and his evidence that the Iranian passport was in his name and had his photo, strongly suggests that he departed Iran with a legal Iranian passport.  This would in turn show he is not a non-citizen. 

7. As set out above, while the applicant claimed he departed Iran with a counterfeit passport, at the interview when the reviewer put to him that the fact that the passport he travelled on had his photo and his name suggested it might be a genuine Iranian passport, he replied that he was not really sure whether it was genuine or not but that it was organised for him by a smuggler (transcript p.18).  In that context (relevant to the fact the applicant had been able to depart Iran without difficulty) the reviewer raised with the applicant the substance of country information that was relevant and adverse about departure from the Iran airport from a variety of sources (including the UK Border Agency and the Danish Immigration Service) in relation to the strict and numerous security checks and the procedure to be followed by passengers in going through various checks at the airport.  In particular, the reviewer referred to information that passports were checked at least twice during the exit procedure from the airport and that at the final stage an officer checked the passport via a computer system.  The reviewer also put to the applicant that it was not credible that at that stage the immigration officer (whom he said had been bribed) would pick up a phone and call the people smuggler to assist.

8. In other words, the reviewer raised his concern that information about security at Tehran Airport was such that the applicant’s passage through security indicated that he had a genuine passport.  The reviewer related this information to his concern that the applicant was an Iranian citizen and not the subject of adverse interest from the Iranian authorities. 

9. In the IMR interview the procedures at Tehran Airport were discussed at some length (as were inconsistencies in the applicant’s evidence about what occurred at the airport and the involvement of the people smuggler).  The reviewer sufficiently raised with the applicant concern about the applicant’s account of how he passed through security with the assistance of a people smuggler.  The applicant had the opportunity to respond.  He asserted not only that bribery of particular officials had taken place but, in particular, that the people smuggler was present and that the electronic checking was not performed in his case (transcript p.22). 

10. However, the reviewer’s acceptance, based on the information in question, that bribery was possible was consistent with the applicant’s claim.  The information about bribery was not adverse information that had to be put to the applicant for comment. 

11. The applicant understood the case he had to meet and had a genuine opportunity to respond to it.  The subjects of concern to the reviewer, including issues about the applicant’s claims about his departure from Iran without difficulty (and the substance of the relevant country information in that respect) were sufficiently raised with the applicant. 

12. It has not been established that the applicant was denied procedural fairness in the manner contended for in particular (v) in the amended application or otherwise. 

13. As no lack of procedural fairness has been established on any of the bases contended for by the applicant the application must be dismissed. 

I certify that the preceding one-hundred and one (101) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  29 June 2012