SZQVO v Minister for Immigration and Anor (No.2)

[2012] FMCA 512

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQVO v MINISTER FOR IMMIGRATION & ANOR (No.2) [2012] FMCA 512

MIGRATION – Review of recommendation by Independent Merits Reviewer – whether failure to provide information – denial of procedural fairness – declaration made.

Migration Act 1958 (Cth), ss.425, 476

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2011) 243 CLR 319
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
Commissioner for Australian Capital Territory Revenue v Aplhaone Pty Ltd (1994) 49 FCR 576
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Re Minister for Immigration and Multicultural and Ethnic Affairs; Ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74
Darabi v Minister for Immigration & Anor [2011] FMCA 371
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
SZQJH v Minister for Immigration and Citizenship [2011] FMCA 845
Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs (1991) 26 ALD 217

Applicant: SZQVO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: HUGH WYNDHAM, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 2584 of 2011

Judgment of: Nicholls FM

Hearing date: 26 March 2012

Date of Last Submission: 26 March 2012

Delivered at: Sydney

Delivered on: 15 June 2012

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitors for the Applicant: Craddock Murray Neumann

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law.

2. Application otherwise dismissed.

3. The applicant to pay the first respondent’s costs in relation to SZQVO v Minister for Immigration & Anor (No.1) [2012] FMCA 30 set in the amount of $1,500.00.

4. The first respondent to pay the applicant’s costs in relation to SZQVO v Minister for Immigration & Anor (No.2) [2012] FMCA 512 set in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2584 of 2011

SZQVO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 14 November 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking an injunction restraining the respondent Minister from relying on the recommendation of the second respondent, in his capacity as Independent Merit Reviewer (“the reviewer”), that the applicant not be recognised as a person to whom Australia owed a protection obligation under the United Nations Refugees Convention. The application also seeks declaratory relief.

Background

1. The applicant is an Iranian citizen of Sunni Muslim religion and Kurdish ethnicity (Court Book – “CB” – CB 2). He arrived at Christmas Island by boat on 4 November 2010 (CB 85).

Refugee Status Assessment

1. Shortly after his arrival, on 31 December 2010, the applicant requested that his claims to protection be assessed under the Refugee Status Assessment (“RSA”) process (CB 38 to CB 55). Included in his request was a statutory declaration, declared on 31 December 2010, in which the applicant set out his claims (CB 35 to CB 37). Namely:

   1)In 2008 to 2009 he had served in the Iranian military. On one occasion the applicant’s army patrol was fired upon by a group of “Kurdish Sunni fighters”. Despite being ordered to return fire, the applicant refused.

   2)In the ensuing gun fight the applicant was injured in the leg, lost consciousness, and was taken to hospital. In the hospital he was told that his commanding officer planned to “take [him] to the military court” for refusing to comply with an order. In addition, the commanding officer accused the applicant of being a supporter of the Kurdish fighters. Out of fear the applicant fled the hospital. ([8] at CB 35 and [11] – [14] at CB 26).

   3)While living elsewhere in the country, the applicant was contacted by his parents who told him that army personnel and intelligence agents had come looking for him. His father was taken to the police station for two hours and interrogated about the applicant’s whereabouts ([15] at CB 36).

   4)Further, he suffered discrimination because of his religion (Sunni Muslim) and ethnicity (Kurdish). He was denied employment opportunities, paid a lower wage, and not afforded the same political and legal rights as others in Iran ([9] – [10] at CB 35).

   5)The applicant feared being prosecuted, imprisoned and killed by the Iranian authorities if he returned to Iran, particularly the army and intelligence services. The applicant believed he would be persecuted by these groups because he is of Kurdish ethnicity ([7] at CB 35, [17] at CB 36 to [18] at CB 37).

2. The applicant authorised solicitors to act for him in relation to his request for an RSA (CB 53). On 11 January 2011 the applicant’s representative provided written submissions in support of the applicant’s claims (CB 77 to CB 82). In addition they advanced a further claim, being that the applicant risked persecution if he returned to Iran as a failed asylum seeker, as he would be imputed with anti-government political views.

3. On 7 March 2011 the applicant was notified that a Departmental officer (“the officer”) had determined that he was not a “refugee” as defined in the Refugee Convention (CB 83 to CB 97).

4. The officer had found the applicant’s evidence at the interview to be “… unconvincing, vague and often inconsistent with information contained in his RSA submission and his initial entry interview” (CB 93). Further, he found that the punishment for deserting the army was 12 months to two years imprisonment and that there had been numerous amnesties for military deserters in the past (CB 94). In these circumstances, the officer was not satisfied that the applicant had a well-founded fear of harm based on the circumstances of his desertion (CB 94). Nor, given his ability to leave the country legally, was he found to be of interest to the Iranian authorities (CB 95). Finally, the officer rejected the applicant’s claim that he feared harm because he would be a returned asylum seeker and would be imputed with

   
   

   anti-government political beliefs (CB 96 to CB 97).

Independent Merits Review

1. On 28 April 2011 the applicant’s representatives submitted the applicant’s request for Independent Merits Review (“IMR”) (CB 105 to CB 112).

2. On 30 August 2011 the applicant’s representatives provided written submissions, dated 26 August 2011, in support of the applicant’s claims (CB 113 to CB 168). Further written submissions, dated 10 October 2011, were provided on behalf of the applicant on 11 October 2011 (CB 169 to CB 184). The applicant was invited to, and attended, an interview to give evidence on 9 September 2011 (see the reviewer’s summary of what the he said occurred at [25] at CB 192 to [35] at CB 195).

3. On 11 October 2011 the reviewer recommended that the applicant not be recognised as a person to whom Australia owed a protection obligation (CB 185 to CB 206). The findings made, and reasons given, by the reviewer in support of this recommendation were set out in the “Statement of Reasons” ([40] at CB 203 to [56] at CB 206).

4. The reviewer found that the applicant was an Iranian citizen, although he had stated once during the interview that he was stateless ([40] at CB 203). Although the applicant had said he was Shia at an interview on arrival in Australia, the reviewer was satisfied that he was Sunni ([41] at CB 204). Given these two findings the reviewer assessed his claims as against Iran as the county of claimed persecution, and that the applicant feared harm because he was a Sunni Kurd ([40] at CB 203 and [45] at CB 204).

5. While accepting that Kurdish people in Iran suffered discrimination, the reviewer found that it was not to such an extent as to amount to persecution as it is understood within the meaning of the Convention ([45] at CB 204).

6. The reviewer accepted that the applicant had served in the army. Further, he accepted that the applicant did have personal knowledge of the area in which he claimed to have been injured, that that knowledge was possibly obtained from his deployment with the army, and that he did have a leg wound ([46] at CB 204 to [47] at CB 205). However, given the unlikely conflict scenario described by the applicant, the reviewer found “… that the entire encounter is a fiction of the claimant’s creation” ([48] at CB 205).

7. The reviewer considered, as a separate issue, whether the applicant had deserted the Iranian military ([49] at CB 205). He ultimately concluded that he had not deserted. This finding was based on the delay in the applicant leaving Iran, his claim that he was followed for a month subsequent to deserting (yet not arrested) and his inconsistent evidence as to the number and nature of visits by the authorities to his family home ([50] to [52] at CB 205).

8. Finally, the reviewer turned his mind to whether the applicant faced a real risk of harm in Iran as a failed asylum seeker. Given the lack of a “public profile”, the reviewer concluded that the applicant would not suffer persecution for this reason if returned to Iran ([53] at CB 205 to [54] at CB 206).

Before the Court

1. At the hearing Mr J F Gormly of counsel appeared for the applicant. Mr P Knowles of counsel appeared for the respondent Minister. Submissions were filed by both the applicant and respondent in accordance with orders made at the first Court date. Leave was granted for the affidavit of Ms Sue Archer of 10 February 2012, annexing a transcript of the interview before the reviewer, to be read into evidence for the applicant.

Application to the Court

1. The application contains three grounds, although only grounds two and three were subsequently pressed in both oral and written submissions. The relevant grounds are:

   “That the decision of the second respondent (the reviewer) was affected by legal error in that:

   1. The second respondent (reviewer) did not afford procedural fairness to the applicant in that the reviewer did not address certain integers of the applicant’s fear of persecution as a member of the Kurdish ethnic minority.

   Particulars

   a. The applicant made specific claims that as a member of the Kurdish ethnic minority the Iranian authorities would subject him to targeted harassment, mistreatment and serious physical abuse as well as discrimination.

   b. The reviewer limited his consideration of this claim to a consideration of discrimination against Kurds and whether this discrimination amounted to persecution.

   c. The reviewer did not consider whether the Iranian authorities would subject the applicant to the other types of harm for being Kurdish.

   2. The second respondent (reviewer) did not afford procedural fairness to the applicant in that the reviewer did not give the applicant an opportunity to ascertain or to be heard on an issue which was relevant to the reviewer’s rejection of the applicant’s claim of fear of persecution as a person who had sought asylum in Australia.

   Particulars

   a. In rejecting the claim the reviewer made assumptions about what would attract the Iranian authorities interest in the applicant as a failed asylum seeker, namely that there needed to be something more about the claimant in terms of his public profile.

   3. The second respondent (the reviewer) did not afford procedural fairness to the applicant in not giving the applicant an opportunity to comment on the country information he relied on in rejecting the applicant’s claim of fear of persecution as a person who had sought asylum in Australia.

   Particulars

   a. The reviewer indicated his view about what was required to attract the Iranian authorities interest in a failed asylum seeker was supported by country information, however he did not identify this information.”

Background to the Consideration

1. The grounds of the application arise from the High Court’s finding in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2011) 243 CLR 319 (“M61/M69”) (at [77]) that, relevantly, the type of review as conducted in the current case must be procedurally fair and must address the relevant legal questions.

2. The applicant’s representatives before the Minister’s department advanced a claim expressed generally to encompass their client seeking protection in Australia (see CB 77):

   “Country information provides evidence that the Iranian authorities persecute those who oppose their regime, particularly since the June 2009 election in Iran and the political turmoil which followed. It is our submission, supported by the information below, that as a result of claiming asylum in Australia, our clients will be imputed with anti-government or anti-Islamic Republic political views and will be more likely than not to suffer serious harm as a result.”

   [Emphasis added.]

3. The officer understood this specific claim to be, relevantly (CB 96):

   “As mentioned previously in this document, after the RSA interview, Ms Venessa Downing of Craddock Murray Neumann, emailed a submission which urges case officers to give significant weight to a recent Refugee Review Tribunal decision in their RSA decision-making. Specifically, that the claimant will be persecuted, due an imputed anti-government political opinion, if he now returns to Iran because he sought asylum in a Western country. Ms Downing has advanced the Refugee Review Tribunal (1001288 [2010] RRTA 912 (22 October 2010)) decision which considers the question of the treatment of failed asylum seekers on return to Iran in support of the claim.”

4. The officer considered the “general” claims as made above, found that each case turns on its own circumstances (CB 96) and, with reference to the country information, was (CB 97):

   “… not satisfied that the evidence supports a finding that the claimant faces a real chance of persecution on return to Iran because of an adverse political opinion imputed to him due to his seeking asylum in Australia. Following my finding above that the claimant was not arrested or detained or otherwise subject to adverse attention following the recent political protests in Iran or at any other time, there is no credible evidence before me to indicate that the claimant would be considered an opponent of the regime. I consider it most likely that his action in seeking asylum in Australia, if it became known to the Iranian authorities, would not be construed as expression of anti-government political opinion but rather as motivated by a desire for improved economic opportunities and conditions. The claimant has given no indication whatever that he has any sort of political profile in Iran. Despite his claims to the contrary, he has never been involved in any organisation or activity from which he could be imputed to hold an anti-government opinion, including membership of Christian religious groups. The claimant has indicated that he was not politically active in any way in Iran.”

   [Emphasis added.]

5. The officer found that the applicant did not meet the definition of “refugee” as set out in the Refugee Convention (CB 85 to CB 97).

6. The applicant, through his advisers, sought review (CB 107). In submissions dated 16 August 2011, amongst other matters, they specifically took issue with the officer’s finding that he ([3](e) at CB 116):

   “did not accept that there was evidence to support a finding that our client would face persecution on his return as a failed asylum seeker …”

7. In particular, reliance was placed on country information that supported the proposition that ([9](f) at CB 117):

   “those who have sought asylum abroad will be treated as opponents of the regime and dealt with severely upon their return …”

   that ([23] at CB 119):

   “The independent information suggests that he may be perceived as opposing the regime simply by virtue of his attempt to secure protection in Australia.”

   and ([24](d) at CB 119):

   “he will be perceived as a dissident by virtue of his activities outside Iran …”

8. The applicant’s representatives’ made reference to relevant country information that is reproduced at CB 153 to CB 160 under the heading of “Part 4 – Failed Asylum Seekers” and, in part, in their further submissions (CB 172).

9. The applicant’s attack in both grounds is concerned with [53] (at CB 205) of the reviewer’s record:

   “I have considered the evidence submitted regarding the treatment of failed asylum seekers. As I indicated to the claimant and his adviser at interview, the logical consequence of the argument that they were putting forward is that an Iranian only had to seek asylum in order to generate a well founded fear of persecution. I indicated that I did not find this persuasive and that I believed that, in order for a failed asylum seeker to attract the kind of attention that they were alleging followed an unsuccessful claim, there needed to be something more about the claimant, in terms of the person’s public profile. I believe this view is supported by country information. I do not accept that there is anything about the claimant to attract such interest on the part of the Iranian authorities.”

   [Emphasis added.]

Understanding The Arguments

[Ground one was not pressed.]

Ground Two

1. The applicant’s submission in relation to ground two is that the reviewer made a general “factual” assumption that more than the mere fact of a returnee being a failed asylum seeker would be needed before attracting the attention of the Iranian authorities. That is, that a returnee would need a “public profile” to engage their interest.

2. The argument is that this assumption, or belief, was not raised by the reviewer at the interview with the applicant. It was, however, part of the reviewer’s reasoning in disposing of a part of the applicant’s claims to fear persecutory harm if he were to return to Iran. The failure by the reviewer to put the applicant on notice of an issue dispositive of his case was a failure to afford him procedural fairness.

3. It is this “additional criterion” or embellishment that sits at the heart of the applicant’s case now. It is said to be the distinction between what the officer did and what the reviewer did. The failure to put the applicant on notice of this additional criterion is said to constitute the failure of procedural fairness.

4. The applicant’s case therefore rests on three important propositions. First, the applicant was not put on notice at the interview that the reviewer’s assumption about the Iranian authorities was, in fact, determinative of his ultimate recommendation to the Minister. Second, that that assumption was not obviously open on the material known to the applicant. [The concession is, at best, that it was equivocal.] Third, that the officer  and the reviewer reasoned in such distinctly different ways in resolving the issue now the subject of the application to the Court that the applicant was not on notice such that he could respond.

5. That difference was said to be that the officer determined the applicant’s claim in this regard by considering the applicant’s individual circumstances while the reviewer relied on a general assumption, based on country information, to dispose of the applicant’s claims.

Ground Three

1. Ground three derives from the same claimed circumstances in that the reviewer referred generally to country information which supported his conclusion that the mere fact of a failed asylum seeker returning to Iran was not sufficient of itself to generate a well-founded fear of persecution, and that there needed to be something more in terms of the “person’s public profile”. The complaint is that the reviewer did not identify this information such that the applicant was given an opportunity to comment on it. This was a failure to afford procedural fairness to him. That is, the applicant did not know the case against him and the case he had to answer.

2. In written submissions the applicant has collected a number of authorities to support his argument and to helpfully illustrate the errors that he asserts before the Court. It is worth being specifically reminded of ([21] – [24] of the applicant’s written submissions):

   “[21] In Re MIMA; Ex Parte Miah (2001) 206 CLR 57 at 86, [99]:

   ‘The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet that case that is put against him or her’.

   [22] In SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592 at [32] the High Court approved what the Full Court in Commissioner for Australian Capital Territory Revenue v Aplhaone Pty Ltd (1994) 49 FCR 576 at 590-591 ‘rightly said’:

   ‘It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.’ …

   [23] In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [19] the High Court said:

   ‘Brennan J in Kioa v West [[1985] HCA 81; (1985) 159 CLR 550; (1985) 62 ALR 321] said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is ‘credibly, relevant and significant’. That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. Mason J in Kioa v West went further. In his Honour’s view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J’s approach would not deny that this may be necessary in a particular case.’

   [24] In Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [9] the High Court expressed these principles:

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

   [Footnotes omitted. Emphasis in SZBEL.]

3. The Minister conceded that the reviewer, contrary to his assertion at [53] (see [25] above), did not raise with the applicant at the interview the “issue” of asylum seeker returnees to Iran. Any plain reading of the transcript reveals that Mr Gormly was correct in pressing this submission for the applicant in this regard.

4. However the Minister’s concession was limited to this being a “regrettable” factual error that, of itself, did not constitute a reviewable error. Although no reference was made to authority, I understood this to rely on such authority as Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 for the proposition that there is no error of law, in and of itself, in the decision maker making a wrong finding of fact.

5. The problem for the Minister is that, in this case, it was not a wrong finding of fact arising from the actual determination of the applicant’s claims. The error was not an error in fact finding about the applicant’s claims. Rather the error is revelatory of the reviewer’s misunderstanding or misinterpretation of what occurred at the interview.

6. Even if this was a “benign” mistake, it falls squarely within the applicant’s complaint that he was denied procedural fairness. Not only did the reviewer not raise this issue at the interview, he thought that he had, or chose to wilfully misrepresent that he had. Even if the former, it does not provide any basis for confidence that the reviewer gave proper attention to the process of the review or the applicant’s circumstances.

7. The applicant’s case is not put on some basis of an assertion of a misunderstanding of the applicant’s claims, or a failure to deal with an aspect of the claims. It is put on the basis of an element of unfairness in the procedure adopted arising from the reviewer’s failure to deal specifically with the applicant’s circumstances. The factual error therefore, while not revelatory of legal error in itself, is an important part of the actual legal failing alleged by the applicant.

8. The Minister also conceded that, in general, procedural fairness requires a decision maker to identify any critical issue on which the decision may turn and allow the affected applicant the opportunity to comment on that issue. The Minister relied on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”) and Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 ([18] of the Minister’s submissions) for the proposition that:

   “It may be accepted that, generally speaking, procedural fairness requires a decision maker to identify any critical issue upon which his/her decision may turn and allow a person affected an opportunity to comment on this issue …”

9. In my view, that reference to SZBEL was concerned with the procedural fairness obligations of the Refugee Review Tribunal (“the Tribunal”) as they arose from s.425 of the Act. The identification of an issue determinative of the review, at a hearing, is central to the Tribunal’s fulfilment of its procedural fairness obligations because the purpose of s.425 of the Act is to compel the Tribunal (unless the matters in s.425(2) of the Act apply) to invite an applicant to a hearing “… to give evidence and present arguments relating to the issues arising in relation to the decision under review” (see also SZBEL at [32]). No such compulsion exists in relation to the reviewer. Section 425 of the Act clearly does not apply given its exclusive application to the Tribunal.

10. The distinction is further evident when it is understood that the relevant procedural fairness obligations at common law may, in certain circumstances, be discharged in the current case other than at a hearing or an interview. For example by writing to an applicant and putting him on notice of the case against him.

11. Both the applicant and the Minister refer to SZBEL for the purpose of the approval therein (at [50] – [59]) of what was said by the Full Court in Commissioner for Australian Capital Territory Revenue v Aplhaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) (see [32] above). It is that expression of principle, and for that matter the reference to the principles enunciated in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (“Kioa v West”), as also referred to for example in Saeed (see [32] above), from which direction is provided to resolve this case. Rather than the diversion of what constitutes an “issue” said to arise in the disposition of the review, and whether it was raised at “the hearing”.

12. Simply put, in the current case, did the applicant know the case against him, and was he given the opportunity to address the issues on which the reviewer’s decision was likely to turn? This would include whether he was on notice of any “adverse conclusion” to be drawn which “would not obviously be open on the known material” (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594). Noting of course that the reviewer was not obliged to otherwise further expose his thought process in relation to the critical issue or the “adverse conclusion” (Alphaone, SZBEL at [29] – [32]; Re Minister for Immigration and Multicultural and Ethnic Affairs; Ex Parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [22] per Gleeson CJ, Gummow and Heydon JJ and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238 at [194] per Kirby J).

13. The Minister’s answer to the applicant’s attack is that the reviewer did not need to disclose the “assumption” impugned by the applicant now because, contrary to the applicant’s submissions, the officer rejected the applicant’s claim (arising from the failed asylum seeker returning to Iran circumstances) on the same basis as the reviewer. That is, there is no real distinction between the two approaches. The Minister’s position is that both the officer and the reviewer reached the same conclusion based on identical reasoning, but expressed it in somewhat different terms.

Consideration

Ground Two

1. I do not agree.

2. In submissions the Minister “conceded” that the officer did a far better job of explaining himself than the reviewer. The Minister however saw this as positive for his case because, it was submitted, the applicant was put on notice that his claims to fear persecutory harm, including the claims relating to returnees, may not be believed because he did not have “any additional features” which would bring him to the attention of the authorities if he were to return to Iran.

3. The officer’s relevant analysis is in his decision record immediately below the part extracted at [19] above and under the heading “Failed Asylum Seekers” (CB 96 to CB 97 –see also at [20] above).

4. A number of preliminary points need to be understood. First, the applicant’s claims in this regard essentially emanated from the submissions made by his advisers. Second, those submissions were focussed generally on returnees and were meant to relate to a number of the representatives’ “clients”. That is, the submissions were made in the general, rather than with some specificity to this particular applicant (see [18] above and at CB 77 – “our clients”).

5. It is clear that, notwithstanding this, the officer understood that his task was not to make some general pronouncement about the state of failed asylum seekers returning to Iran, but rather to determine whether this applicant, and the circumstances he presented, would lead to the Iranian authorities having an adverse view of him and whether this, in turn, would lead to a real chance that he would suffer persecutory harm on return.

6. The officer plainly understood that his focus must be on the applicant and his circumstances, and not on some general or hypothetical situation. That the submissions were made in a general fashion does not relieve the decision maker from addressing the specifics of the individual circumstances before him. This is made clear by the officer’s use of such phrases as “I have understood the applicant’s claim …” (CB 96.6) and “In the current case …” (CB 97.3). The officer plainly sought to apply the general to the specific.

7. Importantly, in doing so, he dealt with the general proposition as it was put. He then applied it to the circumstances presented, or more precisely to those circumstances concerning the applicant’s account of events in Iran surviving the relevant findings of fact.

8. What is clearly relevant to the issue under consideration now before the Court is that the officer considered the general submission about returnees who had unsuccessfully sought asylum as relating to the applicant’s particular claims. That consideration was not embellished with elements not contained in those submissions. Or, as Mr Gormly described the reviewer’s approach, by reference to an “additional criterion”. That is, the officer did not consider the applicant’s submission with the “additional criterion” that there needed to be a public profile before a returnee, in general, would be of interest to the Iranian authorities.

9. I agree with Mr Gormly that there is a difference in relevant substance with the approach taken by the reviewer. The applicant’s claim (when the representatives’ submission is properly applied to the actual case before the respective decision makers) was that, simply as a returnee who had unsuccessfully sought asylum, he would be at risk of persecutory harm from the Iranian authorities because he would be imputed with an anti-government view. The officer dealt with that claim.

10. The reviewer however disposed of that submission with reference to what he said was “the logical consequence” flowing from the submission (and the evidence provided by the applicant’s representatives’ in support). It may well be that it is a logical consequence of the submission that all returnees only had to seek asylum overseas to then meet the test of a well-founded fear of persecution. It may also well be that such a proposition should be rejected. It may also very well be that there needed to be “something more” about a claimant in terms of “the person’s public profile”.

11. However the issue of what profile is necessary to then come within the test of a well-founded fear of persecution, particularly in the broad and general sense, was not, contrary to the reviewer’s assertion (at [53]), put to the applicant. Nor, on balance, can it be said to arise from the quite specific and focused analysis of the officer. To a large extent the additional element that was unknown to the applicant, and introduced by the reviewer, was an expansion of the general proposition put by the applicant’s representatives. That was unique to the reviewer’s analysis and did not arise from the officer’s analysis.

12. It is the case that the reviewer is required to act fairly (Kioa v West at 584 and M61/M69). The applicant was entitled to be told, or to know, the case against him such that he could respond and put his case (Kioa v West at 587 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27]). As I said in Darabi v Minister for Immigration & Anor [2011] FMCA 371 (“Darabi”) at [91]:

    “… the decision-maker has an obligation to unambiguously and clearly raise the critical issues on which the decision will turn”

    Again in Darabi (at [92]), relying on Kioav West (per Brennan J at 628):

    “There is a clear requirement of fairness that a claimant be informed of the type of matters that the reviewer may take into account, but this does not lead to the proposition that procedural fairness requires the claimant to have the opportunity to comment on all ‘adverse’ information irrespective of its credibility, relevance or significance.”

13. In the current case the reviewer, for whatever mistaken reason, asserted or thought that he had done this. He had not. The Minister cannot now rely on the officer, who in this regard did his job properly, to cure the deficiency of procedural fairness afforded by the reviewer.

14. The relevant authorities agree that a fundamental principle of procedural fairness is that the decision maker identify for the person affected by the prospective decision any critical issue determinative of the question the decision maker is required to answer.

15. Some energy can be expended in determining what constitutes an “issue”. In relation to the comparable statutory obligation on the Tribunal, set out at s.425 of the Act, the inquiry may be directed at what is the issue or issues (dispositive) in the review of the delegate’s decision.

16. In both situations, the answer to that question is to be found with the giving of regard to the actual circumstances of the case in hand. As I said in Darabi (see at [100] and the reference there to VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 per Allsop J), what is fair depends on the circumstances of the particular case.

17. Further, and in my view, one of the advantages of the common law, dealing as it does with principles, as opposed to the expression of procedural fairness in the statute, dealing as it does with prescriptions and directions, is that the application of these principles illuminates the path for the Court in the consideration of the applicant’s grounds.

18. The question therefore for current purposes is not so much what is an “issue”, but what are the reviewer’s procedural fairness obligations to the applicant. The key, and relevant, obligations here are that the applicant has the right to know the case against him and to be given the opportunity to respond and put his case.

19. The difference between the parties in this regard has been referred to above. The question to be determined by the reviewer was whether the applicant had a well-founded fear of persecution for a United Nations Refugee Convention reason. The reviewer found that he did not.

20. In relation to the claim that he feared persecutory harm on return to Iran as a failed asylum seeker in the West, the reviewer’s reasoning is relevantly at [53] (see [25] above). That claim was disposed of on the basis that the mere seeking of asylum in the West was not sufficient to attract persecutory harm and finding that there “needed to be something more” in terms of “the person’s public profile”.

21. The Minister says that the applicant was on notice of this, and that the reviewer’s conclusion in this regard is obviously open from the known material because of what the officer set out at CB 97 (see [20] above).

22. The reviewer’s statement of reasons is poor in terms of explanation. Mr Knowles submitted that the thrust of [53] is that the reviewer did not accept that all asylum seekers returning to Iran would be imputed with anti-government views and that something more would be needed for this to occur. That “something more” was that the person would need to have a public profile.

23. The submission was that, while the officer reasoned from a different perspective, he came to the same conclusion. On balance, I do not agree. In my view there is a real and qualitative difference between “not [being] politically active in Iran” and a “person’ public profile”.

24. The officer dealt squarely with the claim as made. That claim was that the applicant, as a result of claiming asylum in Australia, would on return be imputed with anti-government “political views” (CB 77 and [18] above). The officer found that if the asylum claim became known to the Iranian authorities they would see this as being motivated by economic reasons rather than an expression of anti-government political opinion. In this consideration the officer was informed by findings that the applicant had not otherwise been involved or been active politically in any way.

25. By contrast, and demonstrating the comparatively inferior quality of the exercise of the task given to him, the reviewer, while dealing with the exact same claim, rejected it as a basis for finding that persecutory harm would befall the applicant on return to Iran because the absence of a “public profile” meant he would not attract the kind of attention claimed.

26. That finding may well have been reasonably open to the reviewer on what was before him (although the country information appears equivocal in this regard). In any event, the complaint before the Court is not that the reviewer had no evidence for the finding, did not deal with the claims as made, or was illogical or irrational.

27. The complaint is that he introduced another element (which Mr Gormly described as a “criterion”) to the question he was seeking to resolve. The failure to put this element to the applicant, and the absence of this element in the officer’s assessment, meant that the applicant was not on notice of, and unable to respond to, a part of the case against him. In other words, he was denied procedural fairness.

1. In partial response Mr Knowles submitted that the determination of the applicant’s ground may well have come down to whether there is some “additional” undisclosed feature about a “public profile” (with reference to the reviewer) that was not disclosed by the “need” for a “political profile” as found by the officer.

2. I should just note that, in my view, there is a subtle distinction that can be drawn from the latter part of that submission. The officer quite properly confined himself to dealing with the claim as made. The reference to the applicant not being politically active was a factual finding open on the material. Unlike the reviewer, the officer did not resort to a general statement of requirement to be met by an applicant before the relevant test could be satisfied. He confined himself to what was presented.

3. It is certainly not clear what the reviewer meant by “public profile”. If he meant “political profile” then this was open to him to have said so.

4. Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) cautions those engaged in judicial review of administrative decisions not to overzealously scrutinise decision records with an eye finely attuned to error. But I do not respectfully understand that caution to extend to a judicial officer doing the reviewer’s job for him. There is, in my view, a difference between drawing an inference where a probative basis for the inference exists, and reading into a statement of reasons something that is simply not there. Nor does Wu Shan Liang require any ambiguity or lack of clarity in the decision record to be resolved simply (“fairly”) in the decision maker’s favour (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9)

5. The deficient level of explanation, the poor quality of construction of the statement of reasons and the failure in this regard to deal with the claims as made, all hinder the resolution of the question before the Court.

6. I do not accept that a finding by the officer that the applicant did not have an active political profile equates to, or provides, a basis to say that the applicant would have had notice, and thereby the opportunity to address, the proposition that any failed asylum seeker returning to Iran would not be at risk unless, in general terms, that person had a “public profile”.

7. What is meant by this term? The reviewer does not explain. Nor is its extent or compass clear. In my view, a person can have a “public profile” without this necessarily being a “political profile”. It may be that such a person could come from a prominent family or be a non-political celebrity, such as a musician or artist. Or even a very senior Christian Cleric in a predominantly Shia Muslim country who was not politically active but was known “publicly” or had some “public profile” because of the rarity of such people in Iran.

8. It may be that, had he known that the resolution of his claim would depend on the question of a “public profile”, the applicant would have had nothing to say, or would not have been persuasive. But the issue is that he should have been given the opportunity to understand this, and the opportunity to speak to it. In all the circumstances, he was left in the dark. That is a breach of the reviewer’s procedural fairness obligation.

9. The applicant’s ground two is made out. Given the absence of any argument to the contrary, the applicant is entitled to the relief he seeks on this basis. I would make the necessary orders accordingly.

The Third Ground

1. I should also note that in the third ground the applicant complains that, in the impugned analysis referred to at [25] above ([53] at CB 205), the reviewer made reference to country information which he said supported his view about the need for a public profile before a “person” would attract the attention of the Iranian authorities.

2. The applicant complains that this reference to country information was unspecified in the reviewer’s statement of reasons. Therefore, in the circumstances, absent specificity or even some general reference, it is not possible to know what the information was that gave solace to the reviewer. In these circumstances, it is not possible to identify whether this was information before the officer, or information referred to in the applicant’s submissions to the officer or reviewer, or some other country information. If any of the latter, then no such information was put to the applicant at the interview or otherwise.

3. There is no dispute between the parties that procedural fairness may require that an applicant be informed of the substance of information adverse to his case and which is credible, relevant and significant (Kioa v West at 628 – 629).

4. This is not a case, as is often seen, of a dispute about whether the relevant decision maker had disclosed sufficient information, or made references such that the applicant could know the case put against him. Here the mystery derives from another example of a poor articulation or representation of the decision maker’s reasoning. Just what country information the reviewer thought supported his view may never be precisely known.

5. The Minister sought before the Court, by a process of deduction and elimination, to argue that this was either information cited by the officer or in submissions made by the applicant’s representatives. Given the language used by the reviewer at the beginning of the impugned paragraph ([53] at CB 205) and the reference to considering “the evidence submitted”, I accept that an inference may be drawn that what the reviewer was referring to was information referred to, and provided by, the applicant’s representatives.

6. Whether the reviewer’s reference was also meant to include other country information referred to by the officer is even less clear. The reviewer’s use of the phrase “evidence submitted” ([53] at CB 205) would argue against this, given that other country information referred to in the officer’s record was not the subject of submission.

7. In any event, whichever of the two sources, both would result in the applicant being on notice of that country information and generally its relevance to his case (see, as relied on by the Minister, SZQJH v Minister for Immigration and Citizenship [2011] FMCA 845 at [27] citing Pancharatnam v Minister for Immigration, Local Government & Ethnic Affairs (1991) 26 ALD 217 at 218-219).

8. The applicant’s arguments in relation to the second ground were left undeveloped beyond assertions that the reference to “public profile” to attract the Iranian authorities’ attention was “new”.

9. There was certainly reference in the material submitted by the applicant’s representatives to persons returning to Iran from western countries facing a risk of persecution because of an unsuccessful application for asylum (see for example CB 153). But even the Minister does not now clearly submit that this material could form the basis for the impugned “factual assumption” made by the reviewer.

10. For this the Minister relied on information cited by the officer (see “Country Advice – Iran: Asylum Seekers, 2009 Election Protests, Returnees, Tehran Airport, Arrival Procedures” at CB 97.2). This could support inferentially, and lend weight to, the reviewer’s factual assumption.

11. Nonetheless, it is the case that it is for the applicant now, with legal representation and on balance, to make out his case. The state of the evidence before the Court and the limited nature of the applicant’s submissions in relation to the third ground are such that, on the evidence and on balance, I am not satisfied that the third ground is made out.

Conclusion

1. Nonetheless, for reasons given earlier, the applicant has successfully revealed legal error on the part of the reviewer. I will grant the relief sought, and make orders as appropriate.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  15 June 2012