SZQWR v Minister for Immigration
[2012] FMCA 667
•8 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 667 |
| MIGRATION – Application for review decision of the Independent Merits Reviewer – whether the reviewer failed to afford the applicant procedural fairness – whether the reviewer’s reasoning was irrational, illogical or not based on findings of fact – whether the reviewer failed to give “proper and meaningful” consideration to country information – whether the reviewer misunderstood one of the applicant’s claims – no error – application dismissed. |
| Migration Act 1958 (Cth), ss.476, 477 |
| Ministerfor Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 SZQDZ v Minister for Immigration & Citizenship & Anor [2012] FCAFC 26 SZOOR v Minister for Immigration [2012] FCAFC 58 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 |
| Applicant: | SZQWR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARA MOUSTAFINE, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2692 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 July 2012 |
| Date of Last Submission: | 30 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 25 November 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2692 of 2011
| SZQWR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARA MOUSTAFINE, IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application, made on 25 November 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking injunctive relief and a declaration in relation to the recommendation of Ms Mara Moustafine (“the reviewer”), in her capacity as Independent Merits Reviewer, that the Minister not recognise the applicant as someone to whom Australia owes a protection obligation under the 1951 Refugees Convention.
Background
The applicant arrived in Australia by boat on 18 August 2010 (CB 47). In an interview on arrival his country of citizenship was recorded as “Iran”, although he subsequently claimed that he was stateless (CB 31).
Refugee Status Assessment
The applicant was taken to Christmas Island and, on 19 November 2010, he applied for a Refugee Status Assessment (“RSA”) (CB 29 to CB 46).
Under the Immigration Advice and Application Assistance Scheme (“IAAAS”), the applicant was assisted in making that request by “Playfair Migration and Visa Services” (CB 29). “Mr Kamran Ghanbari” and “Petra Playfair” of Playfair Migration were subsequently appointed as the applicant’s representatives and authorised recipients for the purpose of the RSA (CB 61 to CB 63).
The applicant’s claims to protection were set out in a written statement (CB 59 to CB 60). Those claims can be summarised as follows:
1)He is stateless, of Kurdish ethnicity and Sunni Muslim religion.
2)The applicant’s family (headed by his grandfather) were expelled from Iraq in early-1981. They lived in Iran, but were stateless. As a result the applicant could not attend school and commenced paid employment at the age of 16 years.
3)The applicant was frequently harassed by the Iranian authorities. Further, he was discriminated against by employers because of his background. He was unable to get a drivers licence, marry, or have access to proper health care in Iran.
4)If he moved to Iraq, he would continue to be stateless.
5)If returned to Iran he faced a real chance of being persecuted because he left illegally and because he is a Faili Kurd.
In addition, at the RSA interview the applicant claimed that he had been assaulted by members of the Basij (paramilitary forces in Iran) in 2006 (CB 82). He claimed that the Basij accused him of being a “thief” because he did not have identity documents and that he had been beaten and his arm was broken by them. When asked, the applicant claimed that that was not the only time that he was assaulted by the Iranian authorities.
On 7 February 2011 the Departmental assessor found that the applicant was not a person to whom Australia owed protection obligations (CB 85). While the assessor expressed “doubt” (CB 71), he ultimately accepted that the applicant was a stateless Faili Kurd. Given that Iran had been the applicant’s habitual residence, he considered the applicant’s claims with reference to Iran (CB 72). In that context, the assessor was unable to accept the applicant’s claims and found that the applicant had “…not faced serious restrictions – upon his capacity to earn a livelihood, access education, access health service or obtain personal documentation” (CB 85).
Independent Merits Review
The applicant applied for Independent Merits Review (“IMR”) of the assessor’s decision on 18 February 2011 (CB 92 to CB 96). He was again assisted by Playfair Migration.
On 15 July 2011 the applicant’s representatives provided, by email, “Pre IMR Submissions” (CB 97 to CB 113). Those submissions summarised the applicant’s claims to protection (CB 98), including the claim raised by the applicant before the assessor that he had been assaulted, on several occasions, by the Basij. Country information in support of those claims was also put forward.
The applicant was interviewed by the reviewer on 21 July 2011. His migration agent was present at that interview ([22] at CB 123)
On 10 October 2011 the reviewer recommended that the applicant not be recognised as a person to whom Australia owed a protection obligation (CB 143). The reviewer’s findings, and reasons for that recommendation, were set out in her statement of reasons ([91] at CB 139 to [115] at CB 142).
The reviewer found that the applicant’s evidence was, in critical parts, “inconsistent with country information, implausible and unsupported” ([95] at CB 139). That led the reviewer to conclude that the applicant was not a witness of truth in relation to his claims to protection ([96] at CB 139).
Given the applicant’s vague and inconsistent evidence, the reviewer was not satisfied that the applicant, nor his family, were ever Iraqi refugees in Iran ([102] at CB 140 to [103] at CB 141). As result, she did not accept that the applicant was a Faili Kurd ([102] at CB 140).
The reviewer found that the applicant was an Iranian citizen ([109] at CB 142). As such, she rejected his claims to have suffered persecution on the basis of his race, his perceived nationality and on any other Refugee Convention basis ([111] at CB 142). The reviewer found that the applicant had left Iran legally and that the applicant would not face harm if returned to Iran by reason of any claimed illegal departure. Further, the reviewer was not satisfied that the applicant faced persecution if returned to Iran because he was a failed asylum seeker ([113] at CB 142).
Application to the Court
The grounds of the substantive application are as follows:
“1. The second respondent (‘the reviewer’) did not accord the applicant natural justice and procedural fairness. The purported determination and recommendation was not based on evidence. In the alternative, the purported determination and recommendation was irrational, illogical or not based on findings or inferences of fact supported by logical grounds.
[Particulars omitted.]
2. The reviewer failed to take into account relevant information. The reviewer did not give proper and meaningful consideration to country information the reviewer purportedly relied on.
[Particulars omitted.]
3. The reviewer failed to consider the applicant’s claims in that the reviewer misunderstood or misconstrued the applicant’s claim and based his/her recommendation (in whole or in part) on this error.
[Particulars omitted.]
The application to the Court also included an application pursuant to s.477(2) of the Act for an extension of time for the making of the application. However, in light of SZQDZ v Minister for Immigration & Citizenship & Anor [2012] FCAFC 26, it was not necessary for the Court to consider the grant of any extension of time. Nor was it pressed at the hearing.
Before the Court
At the hearing Mr R Nair of counsel appeared for the applicant. Mr H P T Bevan of counsel appeared for the respondent Minister. The Court had before it the Court Book and written submissions filed by both the applicant and the respondent.
The applicant tendered a document headed “Iraqi Faylee Kurds and their role in the iraqi kurdish national movement” which was said to be downloaded from a website of the “Faylee Kurds Democratic Union”. The respondent did not object, and that document was marked “Applicant’s Exhibit 1” (“AE1”) to allow him to make his argument. Subsequently it appeared he sought to rely only on the first three paragraphs of that document, specifically in relation to ground two.
Ground One
While the ground as stated makes reference to a failure to accord the applicant natural justice and procedural fairness, when regard is had to the particulars, and to the applicant’s written and oral submissions, the real thrust of the complaint in ground one appeared to be that the reviewer’s determination, and her subsequent recommendation to the Minister, were “irrational, illogical or not based on findings or inferences of fact supported by logical grounds”.
That complaint is particularised with reference to the reviewer’s statement at [106] (at CB 141):
“As I put to the claimant at interview, it is also implausible that he would have grown up in a Faili Kurdish family unable to speak, not just understand, their dialect, as claimed. I do not find convincing the claimant’s explanation that it was because he lived in a non-Kurdish area and read Farsi books.”
At the interview, the reviewer had put to the applicant that “… another key issue for [her] in assessing the credibility of what he had told [her] about being a Faili Kurds was that, even accepting that he was young, [she] found it unusual for Faili Kurds not to speak in the Faili Kurdish dialect” ([61] at CB 130). In response to that, the applicant had explained that it was not considered unusual for him not to speak that language as he had lived in a non-Kurdish area and had read Farsi books ([62] at CB 130).
The applicant’s complaint appeared to be that the reviewer assumed that Faili Kurds would grow up speaking the Faili Kurdish dialect and that that assumption led to a finding that it was “implausible” that the applicant would have grown up in a Faili Kurdish family in Iran and would not speak that dialect. The applicant’s attack was that that finding underpinned the critical finding of fact that the applicant was not a Faili Kurd and that finding was critical to the determination, and recommendation, made by the reviewer.
The Applicant’s Submissions
The applicant’s written submissions asserted that there was “no logical connection” between a child being born into a family of a certain ethnicity, which lived in a country different to its “native” place, and a child being able to speak, as opposed to simply understand, that “native dialect”. Further, that there was no “probative evidence”, or basis, upon which the reviewer could draw that inference, nor reject the applicant’s explanations for that fact.
Further, that the reviewer’s finding that the applicant was not a Faili Kurd, a critical finding of fact (with reference to SZOOR v Minister for Immigration [2012] FCAFC 58 (“SZOOR”) at [11] per Rares J), was, in part, supported by her conclusion that it was “implausible” that the applicant could not speak the Faili Kurdish language if he had grown up in a family of Faili Kurds as claimed.
In those circumstances, the applicant submitted that the reviewer’s finding that the applicant was not a Faili Kurd was based on “assumption” or “inference”, and was not supported by logic. In addition, that there was no evidence to support, nor lend weight to, that conclusion. On the basis of that finding, that is that the applicant was not a Faili Kurd, the reviewer was said to have gone on to conclude that the applicant had not suffered harm in Iran, nor faced a real chance of persecution in the reasonably foreseeable future if returned to Iran, on the Convention ground of race.
The applicant’s written submissions in relation to ground one referred the Court to Ministerfor Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) at [51] per Gummow ACJ and Kiefel J. However before the Court Mr Nair explained that his reliance on SZMDS was for the purpose of pressing that the reviewer’s finding that the applicant was not a Faili Kurd was a “finding of race” and that that was, in the context of the current case, a jurisdictional fact. The reviewer’s error in relation to that critical finding of fact (said to arise from her irrational and illogical reasoning in relation to her finding at [106] which, in part, underpinned that “finding of race”) was therefore said to give rise to jurisdictional error.
[I note that before the Court Mr Nair initially expressed the reviewer’s error as being in relation to the applicant “being a member of a social group”. However, in light of his subsequent oral submissions, I understood Mr Nair’s argument to be in relation to the applicant’s race.]
The Respondent’s Submissions
First, the Minister submitted that the reviewer’s reasoning in relation to her finding at [106] (at CB 141) was both “orthodox and unremarkable”. That is that, despite the applicant’s assertion to the contrary, it was logical for the reviewer to conclude that an individual who grew up in a family where his grandfather and parents spoke Faili Kurdish would also speak Faili Kurdish.
Second, that the reviewer’s finding of “implausibility” ([106] at CB 141) was only one element of the reviewer’s assessment of the credibility of the applicant’s claims. It was not, in and of itself, determinative of the applicant’s credibility, nor his claim to be a Faili Kurd.
Third, the reviewer had put the applicant on notice that she found it “unusual” that he did not speak the Faili Kurdish dialect and, in those circumstances, she was entitled to proceed to evaluate the applicant’s claims based on her experience as to the language skills of members of a family unit.
Finally, in response to the applicant’s references to the reasoning of Gummow ACJ and Kiefel J in SZMDS, the Minister referred the Court to the reasoning of Crennan and Bell JJ (at [130]) and Heydon J (at [78]) in that case for the appropriate legal principle in relation to irrationality and illogicality.
Consideration: Ground One
There are a number of flaws in the applicant’s submissions in relation to this ground.
First, the applicant’s ground relies on the reviewer’s reasoning in relation to her finding at [106] (at CB 141) being irrational and illogical. That is the reviewer’s finding that it was “implausible” for the applicant to say he was a Faili Kurd when he could not speak the Faili Kurdish dialect in circumstances where it would be expected that, having grown up in such a family, he would be able to speak it. As submitted by the Minister, that finding was, in the circumstances and for the reasons set out below, both “orthodox and unremarkable”.
Second, even if that reasoning was found to be irrational and illogical, the applicant’s complaint is dependent on the Court finding that that irrationality and illogically “infected” the reviewer’s entire reasoning in relation to the critical finding of fact that the applicant was not a Faili Kurd. That critical finding of fact was underpinned by a number of findings, of which the impugned finding at [106] (at CB 141) was only one.
In relation to the first issue, it was never satisfactorily explained to the Court the logical basis for the applicant’s assertion that the reviewer’s finding at [106] was irrational, illogical or not based on evidence.
In relation to the applicant’s complaint that that finding was irrational or illogical, it was unclear which test the applicant relied on. Despite attempts at the hearing to clarify the applicant’s position, it remained unclear whether he relied on the test in SZMDS as enunciated by Gummow ACJ and Kiefel J, Crennan and Bell JJ, or even neither or the two.
In the current case, even if the approach taken by Gummow ACJ and Kiefel J in SZMDS was adopted, the reviewer’s finding at [106] (at CB 141) can not be said to be irrational or illogical. The probative basis for the reviewer’s finding was the applicant’s own evidence and her evaluation of it and his explanations as to why he could not speak the Faili Kurd dialect (see further below).
Nor can the reviewer’s finding be said to offend the test enunciated by Crennan and Bell JJ, and consistent with the approach taken by Hayden J, in SZMDS at [130] to [131] and [78] respectively. As was said by their Honours, while minds may differ, it is not illogical or irrational for a decision maker to make a finding that was open on the material presented. A different reviewer may have possibly reached a different view and may have proceeded on a different path of reasoning. That possibility does not make the reviewer’s conclusion and the findings underpinning it irrational or illogical.
Nor can it be said, despite the applicant’s assertion to the contrary, that the reviewer’s finding was not based on evidence. The evidence relied on by the reviewer in making the finding at [106] (at CB 141) was the applicant’s own evidence. In particular, the applicant’s evidence as to the closeness of his family and that his parents and grandfather all spoke Faili Kurdish.
The reviewer’s finding was based on her evaluation of that evidence. Further, at the interview the reviewer explored the issue with the applicant and put him on notice that she found it “unusual” that, in light of his evidence, he could not speak Faili Kurdish ([61] at CB 130). Further, the reviewer considered the applicant’s explanations as to why he could not speak that language and, in light of his other evidence, was not satisfied with the explanations provided by him ([61] at CB 141). In those circumstances, as Mr Bevan submitted, the reviewer’s reasoning that the applicant would be expected in the circumstances to also speak Faili Kurdish was both “orthodox and unremarkable” as an evaluation of that evidence.
It should just note that, while not pressed or argued by the applicant as such, the reference in the ground as stated to a failure of procedural fairness cannot be sustained. The applicant was, on the evidence before the Court, put squarely on notice as to the matter and given the opportunity to respond.
Finally, before the Court Mr Nair sought to draw an analogy between the children of Vietnamese immigrants living in Australia who did not speak Vietnamese, despite it being their parent’s language, and the current case. Further, the Court was invited to take judicial note of the fact that first generation Vietnamese children in Australia did not, for the most part, speak Vietnamese. Putting to one side that this is not the type of matter amenable to judicial note, it is difficult to see how it is analogous to the applicant’s situation, beyond the mere broad assertion that first generation children of those who settle in another country do not speak the language of their parents. The general circumstances of the post-war migration to Australia would, in my observation, argue against that.
With respect to the second issue, even if it could be said that the reviewer’s finding at [106] (at CB 141) was irrational, illogical or not based on evidence, that finding, contrary to the applicant’s assertion, did not “infect” the reviewer’s critical finding that the applicant was not a Faili Kurd. Therefore, to the extent that the applicant sought to rely on Gummow ACJ and Kiefel J in SZMDS to argue that the reviewer’s ultimate determination, and recommendation, was “infected” by the making of a critical finding of fact (that the applicant was not a Faili Kurd) which was not supported by logical grounds or evidence (because it was based on the reviewer’s allegedly illogical, irrational and unsupported finding at [106] at CB 141), that argument must also fail.
The applicant’s attack proceeds on the basis that the reviewer’s critical finding that the applicant was not a Faili Kurd resulted from her finding that it was “implausible” that the applicant could not speak the Faili Kurd dialect if he had grown up in a Faili Kurd family as claimed. To the extent that the applicant implies that the critical finding was based solely on that fact, this must be rejected.
Rather, as Mr Bevan correctly submitted, the reviewer’s critical finding that the applicant was not a Faili Kurd was based not only on the impugned finding at [106] (at CB 141), but also numerous other findings (see the other factors at [98] (at CB 140) to [105] (at CB 141)and [107] to [108] (at CB 141)). Further, while the finding that the applicant was not a Faili Kurd was plainly a finding critical to the determination, and recommendation, made by the reviewer, it was based on many other factors, or findings, none of which the applicant now says are illogical or irrational in themselves or when taken together.
To the extent that the applicant seeks to rely on SZOOR for the proposition that one successfully impugned finding, of many, infects all of the findings underpinning a critical conclusion based on those findings and the conclusion itself, then this does not assist the applicant in the current circumstances.
In SZOOR the impugned finding was clearly so connected in reasoning and purpose that it allowed for the conclusion reached by the Court. In the current case, while plainly connected by the fact that the matters in each finding relate to the applicant, each item is distinct and self-contained. The applicant did not address this before the Court.
Ground one is not made out.
Ground Two
The applicant’s second ground raises two related complaints. First, that the reviewer failed to take into account relevant information, being information before her in relation to “Faylee” Kurds. Second, that the reviewer did not give “proper and meaningful” consideration to information which she purported to rely upon.
The information was said to be information from the “Faylee Kurd Democratic Union” website. In particular, the report set out, in part, in the reviewer’s statement of reasons at [70] (at CB 132) and, in full, in AE1.
The Applicant’s Submissions
First, although it was unclear exactly to what end, the applicant submitted that the reviewer had failed to reproduce in her statement of reasons the “entire segment” of the “Faylee Kurd Democratic Union” website. Instead, she had only reproduced an extract of the relevant report. This in circumstances where the applicant subsequently sought to rely on only the first three paragraphs.
Second, that it was “clear that all the information was before the reviewer” ([26] of the applicant’s written submissions) and that the information contained on that website showed that there was no simple definition of Faili Kurds. Despite that, the reviewer had rejected the applicant’s evidence that Faili Kurds were defined solely by their lack of identity cards (noting that the applicant disputes that that is a proper characterisation of his evidence – see further below in respect of ground three) ([103] at CB 141).
It was the applicant’s submission that his evidence before the reviewer was entirely consistent with the country information and that, in those circumstances, the Court should infer that the reviewer failed to have “proper and meaningful” regard to that country information. In support of that, the applicant referred the Court to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [21] to [23] per Madgwick J (with whom Conti J agreed) and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595.
Before the Court the applicant emphasised that the reviewer purportedly relied on certain information (although not clear, probably a reference to what the reviewer set out at [70] at CB 132) about whom the Faili Kurds were and how they could be identified. The applicant invited the Court to read the first three paragraphs of AE1 and to find that there was no evidence in that document to support the proposition that there were characteristics unique to, or a definition of, Faili Kurds.
The first complaint in the ground can therefore be best understood as a complaint that the reviewer failed to take into account relevant information in the sense that she did not take into account, or give proper consideration to, the whole of the relevant part of what is now AE1. In particular, she did not properly consider, or take into account, those parts of that report that she omitted from her statement of reasons.
The second complaint flowing from ground two is that, if proper regard were given to the entire first three paragraphs of the “website”, the reviewer’s finding as to the characteristics common to Faili Kurds was wrong. That is, that the Court should find that the information contained in that report is to the effect that there is no agreement amongst Faili Kurds as to their defining characteristics. Therefore the applicant should not have been expected to supply answers consistent with the reviewer’s definition.
The Respondent’s Submissions
First, it was the Minister’s view that the “information” relied on by the applicant did not, on its face, assist him. That is, that the information only related to Faili Kurds living in and around Baghdad (in Iraq), an area in which the applicant had never lived, nor claimed to live.
Second, that, even if the country information referred to by the applicant was consistent with the applicant’s evidence to the reviewer, which in the Minister’s view it was not, then the reviewer’s failure to refer to that country information would, at most, amount to a failure to refer to particular evidence. It would not constitute jurisdictional error.
Finally, with reference to Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (“SZJSS”) at [23] – [30], the Minister submitted that “in substance” ground two sought impermissible merits review.
Consideration: Ground Two
I can only agree with the Minister that the applicant’s ground fails both on the facts and at law.
First, it is clear that the reviewer had before her the report (and certainly the first three paragraphs) from the “Faylee” Kurd website ([70] at CB 132.10). What was extracted from that report and reproduced in her statement of reasons was clearly and primarily those parts relevant to Iran, and not the remainder relevant to Iraq.
The parts of the report which the applicant invited the Court to consider, and which were omitted from the reviewer’s statement of reasons, were predominantly concerned with Iraq, and in particular Baghdad. What the reviewer reproduced from the report was that Faili Kurds are spread over a number of countries, they speak a particular dialect, not all Kurds speaking that dialect are called Faili, and in Iran Faili Kurds are located in certain provinces. All of that was relevant to the reviewer’s assessment of the applicant’s claims as put by him.
None of the information said to have been “ignored” by the reviewer related to Iran. It related to the situation in Iraq. Given that the applicant’s claims to fear persecutory harm all emanated from claimed circumstances, and claimed incidents, in Iran, it is difficult, if not impossible, to see how that information can be said to be relevant to the situation and characteristics of Faili Kurds in Iran.
Further, in relation to the relevant information dealing with Faili Kurds on the Iranian side of the border, there is no reference to Faili Kurds living in the Qazvin province of Iran (where the applicant claimed to have lived). Rather, the report, contrary to the applicant’s assertion now, supports the reviewer’s assessment that it was not plausible that a family of Faili Kurds, deported from Iraq, would go to live in that province instead of a province like Ilam with “thousands of others” of Faili Kurds (see [107] at CB 141).
Second, as illustrated by the statements above, the applicant’s attack depends on the Court making its own factual finding as to the applicant’s evidence in light of country information. The applicant’s attack in that sense crosses the line into asking the Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
In those circumstances, I agree with Mr Bevan that what the High Court said in SZJSS is apposite ([24] of the respondent’s submissions):
“… In that case, the High Court reviewed the authorities relating to what constituted ‘proper, genuine and realistic consideration’. Their Honours concluded this review with the following:
‘In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of ‘proper, genuine and realistic consideration’:
‘[45] That which had to be properly considered was ‘the merits of the case’. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merits review.’”
[Footnotes omitted.]
Ultimately, the choice of, and weight to be accorded to, country information is for the relevant decision maker. In my view, Mr Bevan is correct to submit that the applicant has not established (on balance) that the information fell into that category requiring mandatory consideration as explained, for example, in Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Nor has the applicant explained, even if the information could have assisted him, how the reviewer’s failure to consider it would be more than a mere failure to advert to particular evidence, and therefore would be demonstrative of jurisdictional error (WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]).
What the applicant’s attack ultimately ignores is that, while reference was made by the reviewer to country information, what relevantly counted against the applicant was the unsatisfactory nature of his own evidence. His evidence was found, in relation to Faili Kurdish factors relevant to his claims, to be “vague” ([103] at CB 141), “confused” ([104] at CB 141), lacking credibility ([105] at CB 141) and “implausible” ([106] at CB 141). Further, his explanations were found to be “convoluted and unconvincing” ([107]).
In all, ground two is not made out. The reviewer did not fail to consider relevant information. Nor did the reviewer fail to give proper consideration to relevant information before her.
Ground Three
Ground three asserts that the reviewer misunderstood one of the applicant’s claims. That is, that she failed to consider the applicant’s claim as put by him. The particulars to the ground refer to the reviewer’s statement at [103] (at CB 141):
“The claimant gave vague evidence as to who the Faili Kurds were, defining Faili Kurds solely by their lack of identity cards, which was their sole distinction from Shi’a Kurds ...”
The thrust of the complaint is that the reviewer was “factually wrong” in reporting that the applicant defined “Faili Kurds solely by their lack of identity cards, which was their sole distinction from Shi’a Kurds”. The applicant had provided evidence, in answer to the reviewer’s question as to who the Faili Kurds were, that (at [25] at CB 123):
“Faili Kurds were … Kurds whom the Iranians did not recognise as Iranian and the Iraqis did not recognise as Iraqis. Denied citizenship and ID in both countries they have to live illegally in both countries without ID or documentation”.
The Applicant’s Submissions
However, the applicant’s submissions (at [35] – [39]) assert that the applicant gave further evidence in relation to the characteristics unique to, or definition of, Faili Kurds:
“35. At [25] the reviewer noted:
‘Asked who Faili Kurds were, the claimant responded that they were Kurds whom the Iranian did not recognise as Iranian and the Iraqis did not recognize as Iraqis. Denied citizenship and ID in both countries they had to live illegally in both countries without ID or documentation.
36. At [27] the reviewer noted:
‘… the claimant … said Iraq was mainly Sunni and Faili Kurds being Shi’a, moved 500 years ago to Iran and maybe because Faili Kurds were Shi’a they might be labelled as Iranian.’
37. At [34] the reviewer noted:
‘The claimant said his family were the only Faili Kurdish family in the village, although there were 5 or 6 ‘other Kurds’. Asked what he meant by this, he said Iranian Kurdish people who were Shi’a. Asked why he did not call them Faili Kurds, the claimant said among the Kurds there were some Faili, some Sorani who lived in different countries and spoke different dialects.’
38. At [61] the reviewer, inter-alia, noted:
‘The claimant responded that those Kurds who live in Iran were not Faili. He said there were two kinds of Kurds in Iran – Kurdish Iranians and Faili Kurds and that even the languages they spoke were different.’
39. At [61] the reviewer noted that the applicant ‘drew a distinction between Shi’a Kurds living in Iran and Faili Kurds as people who had no identity.’”
It was the applicant’s submission that his evidence (as set out at [70] and [71] above) was broader than, and not accurately reflected by, the reviewer’s characterisation of it at [103] (at CB 141). Further, that the reviewer’s characterisation of that evidence was one of the bases on which the reviewer went on to find that the applicant was not a Faili Kurd.
Before the Court, Mr Nair confirmed that the applicant’s attack was that the reviewer had failed to consider a claim made by the applicant. That is, that he was a Faili Kurd. It was the applicant’s submission that that claim had to be determined in the context of the applicant’s evidence as to who the Faili Kurds were and, as was revealed in her statement of reasons, the reviewer had misunderstood, or mischaracterised, the applicant’s evidence’s on that issue. In those circumstances, it was the applicant’s submission that the reviewer did not “properly” consider the applicant’s claim to be a Faili Kurd.
Finally, although it was not explained how, the applicant submitted that that error supported ground two and his complaint that the reviewer failed to properly and meaningfully have regard to country information.
The Respondent’s Submissions
In response, the Minister submitted that the reviewer’s statement of reasons, in particular her summation of the applicant’s evidence
([92] – [93] at CB 139), revealed that she had understood the applicant’s evidence in relation to the characteristics, or definition, of Faili Kurds.
Further, that the applicant’s reading of the impugned paragraph ([103] at CB 141) required it to be scrutinised with “an eye keenly attuned to error” (Wu Shan Liang). If fairly read, as it ought to be, then, in the Minister’s view, that passage accurately reflected the applicant’s evidence as recorded elsewhere in the statement of reasons.
Consideration: Ground Three
What is immediately apparent in the applicant’s attack is that he has confused the concepts of claims made by the applicant and evidence given in support of those claims.
The applicant’s central claim was that he feared persecutory harm if he were to return to Iran because he was of Faili Kurd ethnicity. The other claims made by the applicant, with the possible exception of his claim to fear harm because he had left Iran illegally, were all claims that related directly to that central claim and arose out of the evidence he gave as to events in Iran
Plainly the reviewer dealt with that central claim. To the extent that the applicant seeks to rely on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, I cannot see that the reviewer failed to deal with any of the applicant’s other claims that related to, or underpinned, that key claim. Nor did the applicant point to any failure by the reviewer to have either understood, or included in her statement of reasons, his claims in that regard, noting that the reviewer summarised the applicant’s claims to fear persecutory harm in her statement of reasons (see [92] – [93] at CB 139).
What remains, therefore, and what appeared to be the real thrust of the applicant’s complaint before the Court, was the assertion that the reviewer made a wrong finding of fact in relation to part of the substratum of fact finding (that is, the applicant’s evidence as to whom the Faili Kurds were), and that that wrong finding of fact resulted in the reviewer not properly considering the applicant’s central claim that he was a Faili Kurd, which informed her ultimate conclusion, and recommendation, to the Minister. As with ground two, that attack fails both at the factual level and at law.
In support of that complaint, in submissions, the applicant extensively relied on the reviewer’s own account of what was said at the interview. There is no suggestion, let alone evidence by way of transcript, to say that that account is at issue.
That account reveals that when asked at the interview: “… who the Faili Kurds were …” ([25] at CB 123), the applicant’s response concerned the lack of identity cards in Iran and the lack of recognition by the Iranian authorities of Faili Kurds as Iranian. The reviewer returned to this matter later in the interview and recorded that she put her concerns to the applicant “… in assessing the credibility of what he had told me about being a Faili Kurd …” ([61] at CB 130). It is clear that the reviewer had concerns about a number of aspects of the applicant’s evidence. In particular, that “… when asked how he defined Faili Kurds, he had immediately spoken about them not having ID cards and drew a distinction between Shi’a Kurds living in Iran and Faili Kurds as people who had no identity” ([61] at CB 130.7).
The reviewer was therefore “correct” to state, or rather had a probative basis to record, that the applicant sought to define Faili Kurds with reference to identity cards, and with reference to their distinction from Shi’a Kurds.
The applicant sought to make something of the use of the word “solely” as it appears in [103]:
“The claimant gave vague evidence as to who the Faili Kurds were, defining Faili Kurds solely by their lack of identity cards, which was their sole distinction from Shi’a Kurds living in Iran.”
[Emphasis added].
In submissions Mr Nair referred to what he said were other relevant references in the reviewer’s account of the interview (see as set out at [71] above). However, I agree with the Minister that that submission ignores that, when squarely asked for the description, or “definition”, of Faili Kurds, the applicant replied with reference to the matter of ID cards, and the distinction with Shi’a Kurds. That he may have made reference to linguistic differences in answer to other questions does not detract from the circumstance that his answer to the specific question of the characteristic, or definition, of Faili Kurds was their lack of ID cards, and their distinction with Shi’a Kurds.
As Mr Bevan correctly submits, when read, at least fairly (although in the circumstances, I believe a plain reading would suffice), the impugned passage in the reviewer’s analysis reveals that the reviewer did not misrepresent, nor misunderstand, the applicant’s evidence. Ground three is not made out.
Conclusion
None of the grounds of the application to the Court, made with the assistance of legal advice and representation, are made out. In those circumstances, the application must be dismissed. I will make an order accordingly.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 8 August 2012
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