SZQWS v Minister for Immigration
[2012] FMCA 429
•23 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 429 |
| MIGRATION – Review of conduct leading to recommendation of Independent Merits Reviewer – whether recommendation made according to law – application dismissed. |
| Constitution, s.75 Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7 |
| SZQXX v Minister for Immigration & Anor [2012] FMCA 415 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZQWS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2693 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 23 May 2012 |
| Date of Last Submission: | 23 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The proceeding before this Court, commenced by way of application filed on 25 November 2011, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,250.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2693 of 2011
| SZQWS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MARA MOUSTAFINE IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution.
This is an application for judicial review of conduct leading to the recommendation by Mara Moustafine in her capacity as Independent Merits Reviewer (“the Reviewer”), dated 10 October 2011, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Iraq and of Shi’a faith and Faili Kurd ethnicity.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the Reviewer’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
Background
On 18 August 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 13 September 2010, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 19 November 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 7 February 2011, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 4 March 2011, the applicant applied for Independent Merits Review of the RSA.
On 10 October 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 25 November 2011, the applicant filed an application in this Court seeking judicial review of the Reviewer’s recommendation.
Legislative framework
The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, in SZQXX v Minister for Immigration & Anor 2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3] Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4] M61 (2010) 243 CLR 319 at [70].
[5] M61 (2010) 243 CLR 319 at [66].
[6] M61 (2010) 243 CLR 319 at [67].
[7] M61 (2010) 243 CLR 319 at [73].
[8] M61 (2010) 243 CLR 319 at [76].
[9] M61 (2010) 243 CLR 319 at [89].
[10] M61 (2010) 243 CLR 319 at [78].
[11] M61 (2010) 243 CLR 319 at [73].
[12] M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14] M61 (2010) 243 CLR 319 at [99]-[100]
[15] Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16] M61 (2010) 243 CLR 319 at 360-361 [101]-[104].
The Applicant’s request for RSA
The applicant provided a statutory declaration in support of his request for RSA in which he claimed that:
a)He is a stateless Faili Kurd and a Shi’a Muslim.
b)He was born in Baghdad, Iraq on 6 July 1978 into a Faili Kurd family.
c)He fears returning to Iran because he lived there for 32 years having been expelled from Iraq when he was three years old.
d)In Iran, he did not have any rights, was not able to obtain proper employment, could not get married, could not obtain a driver’s license, could not obtain proper healthcare and did not have a right to ownership.
e)As a stateless person in Iran, he could not make complaints to police and on many occasions had to bribe the police in order to be allowed to go home after work.
f)His wage was one third of the wage received by Iranian citizens.
g)He was scared to go the Iranian authorities to obtain “some kind of identification”.
h)He fears persecution if he was to return to Iran because he lived there illegally and left illegally.
i)In Iran, Faili Kurds are persecuted by the authorities and the community because they are Kurd and Iraqi.
j)In Iraq (Baghdad), Faili Kurds are persecuted because they are Kurds and Shi’a faith.
k)In the Kurdish region of Iraq (Iraq Kurdistan), Faili Kurds are persecuted by other Kurds because Failis are Shi’a Muslims and the majority of Kurds are Sunni Muslims.
Refugee Status Assessment
On 19 November 2010, the applicant attended an interview with an officer of the Department of Immigration and Citizenship.
On 7 February 2011, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
Independent Merits Review and recommendation
On 4 March 2011, the applicant lodged an application for review of the RSA finding by the Reviewer.
The Reviewer referred to information give by the applicant at his entry interview and quoted in full the applicant’s written statement, dated 19 November 2010, submitted as part of his RSA application.
The Reviewer summarised the claims made by the applicant at the RSA interview.
The Reviewer also summarised a submission given to the Reviewer, dated 14 July 2011, by the applicant’s advisers summarising his “key claims”.
The Reviewer summarised the further information given by the applicant at the interview with the Reviewer on 27 July 2011, including exchanges the Reviewer had with the applicant, matters of concern about the applicant’s evidence put by the Reviewer to the applicant, and country information, including information which the Reviewer found to be inconsistent with the applicant’s evidence.
The Reviewer found that inconsistencies in the applicant’s evidence with country information, as well as implausibilities, in the applicant’s evidence raised doubts as to the applicant’s credibility and could not be disregarded in assessing his claims.
The Reviewer found that the applicant was not reliable, credible or truthful about his experiences in Iran and raised questions as to whether anything said by the applicant could be relied upon.
Ultimately, the Reviewer rejected the applicant’s claims to be a stateless and undocumented Faili Kurd who had been deported from Iraq with his family in 1981 and that he had suffered past persecution or had a well-founded fear of persecution for a Convention reason if he was to return to Iran.
Accordingly, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The proceeding before this Court
The applicant was represented before this Court by Mr Nair, of counsel.
At the commencement of the hearing, counsel for the applicant confirmed that the applicant relied on the grounds contained in the application filed on 25 November 2011 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
i) In the Statement of Reasons – and under the heading of Findings and Reasons – the reviewer, inter alia, at [117] said:
As I put to the claimant at interview, while he claimed to be of Faili Kurdish ethnicity, I was concerned he did not speak Kurdish and came from the predominantly Persian province of Qazvin. I find it implausible that, as a child born in Iraq into a Faili Kurdish family he could grow up unable to speak, as well as understand his native dialect, as he claimed.
ii) At [122] the reviewer said:
In view of the inconsistencies, implausibilities [sic] and shifts in the claimant’s evidence outlined above, I am not satisfied that the claimant has been truthful about his identity, status or experiences in Iran. I am not satisfied that the claimant and his family were Iraqi refugees living in Iran after being deported from Iraq, nor that they are Faili Kurds, stateless and undocumented. I consider that the claimant is an Iranian citizen from Qazvin province who is not of Faili Kurdish ethnicity.
iii) It is clear from the reviewer’s finding that it was implausible that as a child born in Iraq into a Faili Kurdish family could grow up unable to speak, as well as understand his native dialect (notwithstanding that he arrived in Iran when he was two, had not started to speak, lived in an area where the people were Persian and his father opposed his children learning Faili Kurdish so that they could not be identified) was both material and crucial to the determination the reviewer purported to make.
iv This finding was not based on rationally probative evidence. It was mere suspicion or speculation, conjecture. This finding and the purported determination and recommendation were irrational, illogical or not based on findings or inferences of fact supported by logical grounds.
2. The reviewer did not accord the applicant natural justice and procedural fairness. The reviewer did not put to the applicant the substance of matters that the reviewer knew of and considered to bear upon whether or not to accept the applicant’s claims.
Particulars
i) The reviewer said, inter alia at [119]:
My scepticism is compounded by the claimant’s vague evidence as to who the Faili Kurds were
ii) The information the review relied on in regard to who the Faili Kurds were is detailed in the country information in the Statement of Reasons at [80] to [81] under the heading of Faili Kurds.
iii) The reviewer has failed in the Statement of Reasons to reproduce, at [81], the entire segment extracted from the Faylee Kurds Democratic Union website. This extract is, for convenience reproduced here in full:
Iraqi Faylee Kurds and their role in the Iraqi Kurdish national movement
Who are the Faylee Kurds and where do they live?
Faylee (Faylee, Faili, or Feli) Kurds are, as their name tells, an inseparable segment of the Kurdish population in Iraq and an integral part of the Kurdish nation, which is divided among many countries in the Middle East, mainly Iraq, Iran, Syria and Turkey. Faylee Kurds have themselves shown, over the years, and still show this fact and reality by words and deeds. They speak a dialect that belongs to the southern Kurdish dialect called Luri which is spoken in the southern areas of Kurdistan proper, particularly on both sides of the border areas between Iraq and Iran.
However, all Kurds speaking this dialect are not called Faylee. One can say that Kurds speaking this dialect and living in and around Baghdad as well as some cities and towns in eastern and sourthern Iraq are called Faylee. There are many and diverse explanations for why these Kurds are called ‘Faylee’; however there is no plausible, well documented and generally convincing or accepted one.
Faylee Kurds in Iraq have lived mainly in Baghdad (largely in the Kurdish quarter (Agdelkrad, a Ghetto) and when they became better off economically they moved to more affluent areas, such as Etefiya, Jamila and Shari’ Falastin) and in lesser numbers in towns and cities near the borders with Iran from as north as south of the historically and demographically Kurdish city of Kirkuk to as far south as north of the sourthern city of Basra. On the Iranian side of the borders, Faylee Kurds (though not referred to by this name) live in the provinces of Kirmashan and Illam and southward though not called Faylee Kurds. Since the mass expulsions from Iraq in the seventies and eighties there is a large number of Faylee Kurds in Tehran as well.
(iv) Relevantly, information contained in this country information to the effect Faili Kurds speak a dialect that belongs to the sourthern Kurdish dialect called Luri was not put to the applicant.
v) It can be inferred – and the Court should infer – that this information (about ‘Luri’) was material and crucial to the reviewer’s determination. In this regard it should be noted that the applicant at [36] when asked ‘which dialect of Kurdish his family spoke, the applicant said his family spoke Sorani Kurdish’. In contending the inference the Court should draw, the applicant notes that Wikipedia states:
Sorani (Kurdish: Sorani; also called Central Kurdish) is the name of a Kurdish language that is spoken in Iran and Iraq. Sorani is one of the main Kurdish languages, which are a branch of the Iranian languages.
3. The reviewer failed to take into account relevant information.
Particulars
i) The reviewer said, inter alia at [119]:
My scepticism is compounded by the claimant’s vague evidence as to who the Faili Kurds were
ii) The information the reviewer relied on in regard to who the Faili Kurds were is detailed in the country information in the Statement of Reasons at [80] to [81] under the heading of Faili Kurds.
iii) Notwithstanding that the reviewer failed in the Statement of Reasons to reproduce, at [81], the entire segment extracted from the Faylee Kurds Democratic Union website, as above (Ground 2), it is clear that all the information was before the Reviewer. This includes the information not reproduced as follows:
However, all Kurds speaking this dialect are not called Faylee. One can say that Kurds speaking this dialect and living in and around Baghdad as well as some cities and towns in eastern and southern Iraw are called Faylee. There are many and diverse explanations for why these Kurds are called ‘Faylee’; however there is no plausible, well documented and generally convincing or accepted one.
iv) The information before the reviewer clearly shows that the speaking of Luri does not conclusively show the speaker to be a Faili Kurd. Further, there are many and diverse explanations why some Kurds called Faili Kurds are so called.
v) This information clearly shows that there is no simple, definite answer as to ‘who the Faili Kurds were’.
vi) It is clear that failure to take into account this information was material and crucial to the reviewer’s purported determination. It is clear that the reviewer failed to do so.”
Ground 1
Counsel for the applicant submitted that central to the applicant’s claims was his fear of persecution by reason of being a Faili Kurd. Counsel for the applicant submitted that one of the reasons that the Reviewer disbelieved the applicant was because the Reviewer did not accept the applicant’s explanation that he was two years old when he arrived in Iran as a reason why he did not speak Kurdish. Counsel for the applicant submitted that the Reviewer’s finding that the applicant was not a Faili Kurd based on this evidence, was illogical and irrational.
Counsel for the applicant submitted that the issue of race was crucial to the applicant’s claims and was therefore a jurisdictional fact. In support of that proposition, counsel for the applicant referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [37]-[40] per Gummow ACJ and Kiefel J.
Counsel for the applicant submitted that in making the critical finding that the applicant is an Iranian citizen who was not of Faili Kurdish ethnicity, the Reviewer’s finding was irrational and illogical and not based on findings or inferences of fact supported by logical grounds or probative evidence.
The relevant finding by the Reviewer to which counsel for the applicant referred is as follows:
“As I put to the claimant at interview, while he claimed to be of Faili Kurdish ethnicity, I was concerned that he did not speak Kurdish and came from the predominantly Persian province of Qazvin. I find it implausible that, as a child born in Iraq into a Faili Kurdish family, he would grow up unable to speak, as well as understand, his native dialect as he claimed. I do not find convincing the claimant’s various explanations that it was because he was 2 years old when he arrived and had not yet started to speak; that the people in the area were Persian; that the generation raised in Iran all spoke Persian; and that, as he told the RSA interviewer his father opposed his children learning Faili Kurdish so they could not be identified.”
Counsel for the applicant submitted that the Reviewer should have put to the applicant that the applicant’s explanation that he was only two years old when he arrived in Iran, was a concern for the Reviewer.
A fair reading of the Reviewer’s written record summarised the exchange it had with the applicant about the applicant’s assertion not to be able to speak Kurdish. The Reviewer’s written record states the applicant’s explanation to be because the people in the area where he lived were Persian and his parents spoke Kurdish and Arabic but their language was Persian from childhood. The Reviewer noted that the Reviewer put to the applicant that it was unusual for a child born in a Kurdish family outside Iran not to speak Kurdish and, consequently, asked what language the applicant spoke when he first arrived in Iran from Baghdad. The Reviewer noted that the applicant responded that he was a two year old at the time and had not yet started to speak and that the generation raised in Iran all spoke Persian. The Reviewer noted that the Reviewer pointed out to the applicant that, in the Reviewer’s experience, Kurds of the applicant’s generation spoke Kurdish even if they did not read or write it. The Reviewer noted the applicant’s response that it depended on which area people lived.
It was open to the Reviewer not to accept the applicant’s explanation as to why he did not speak Kurdish, including his explanation that it was because he was two years old when he arrived in Iran and had not yet started to speak. The Reviewer’s written record makes clear that the Reviewer put to the applicant the Reviewer’s concerns about that explanation, namely, that in the Reviewer’s experience Kurds of the applicant’s generation spoke Kurdish even if they did not read or write it. The Reviewer was not satisfied by the applicant’s responses.
Accordingly, it was open to the Reviewer to have regard to the applicant’s explanation that he could not speak Kurdish because he was two years old when he arrived and to find that explanation unpersuasive.
In the circumstances, the Reviewer’s bases, including the applicant’s “various explanations”, which the Reviewer found unconvincing, were sufficient to ground the Reviewer’s finding that the applicant is an Iranian citizen who is not of Faili Kurdish ethnicity.
I do not accept the applicant’s submission that the Reviewer’s finding to this effect was illogical or irrational.
In the circumstances, the Reviewer’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Reviewer (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Counsel for the applicant also submitted that the Reviewer’s finding that the Reviewer’s scepticism was compounded by the applicant’s “vague evidence as to who the Faili Kurds were”, was not open to be made. This was because of country information before the Reviewer that included information that there are many and diverse explanations for why Kurds are called “Faylee”, although, there is no plausible, well documented and generally convincing explanation.
However, I do not accept that the country information, suggesting many and diverse explanations for why Kurds may speak a particular language, to be relevant to the Reviewer’s finding that the applicant’s evidence was “vague” as to who were the Faili Kurds.
In making that finding, the Reviewer stated that the Reviewer asked the applicant how the Faili Kurds differed from the Kurds in the north of Iran and noted that the applicant did not answer directly, but said that Kurds in Iran were mostly Sunni. The Reviewer noted that, although the applicant mentioned that there were some Shi’a Kurds in Iran from 100 years ago, it was unclear to the Reviewer whether the applicant was identifying them as Faili Kurds. The Reviewer noted that, when the Reviewer asked the applicant specifically what distinguished a Faili Kurd, the applicant “spoke in general terms about historic tribal land battles, with Faili Kurds living a nomadic existence because ‘they were weaker’ though he did not identify their area as being between the borders of Iran and Iraq close to Illam”.
In the circumstances, it was open to the Reviewer to characterise the applicant’s evidence referred to above as “vague” and to find that it compounded the Reviewer’s scepticism about the applicant’s claim to be a stateless, undocumented Kurd.
Accordingly, ground 1 is not made out.
Ground 2
In support of ground 2, counsel for the applicant submitted that in light of the applicant’s evidence that his father spoke Sorani Kurd, the Reviewer should have put to the applicant country information that stated that Faili Kurds speak Luri.
However, I accept the submission of counsel for the first respondent that there was nothing to suggest any difference between Sorani and Luri dialects in relation to Faili Kurds, or that the Reviewer had rejected the applicant’s claim that his father spoke Sorani.
In any event, even if there was an inconsistency, there is nothing in the Reviewer’s written record to suggest that it relied on any such inconsistency.
The Reviewer’s written record identifies inconsistencies that caused it concern and which were ultimately part of the reason for the Reviewer finding that the applicant had not been truthful about his identity, status and experiences in Iran. The Reviewer’s written record makes clear that the Reviewer put to the applicant particular inconsistencies that caused it concern and noted the applicant’s responses. A fair reading of the Reviewer’s written record does not suggest that any difference in the Sorani and Luri dialects was an inconsistency identified or relied upon by the Reviewer adversely to the applicant.
Accordingly, ground 2 is not made out.
Ground 3
I understand the complaint in ground 3 to be that the Reviewer failed to take into account relevant information, being country information to the effect that information on Kurds is generally vague.
Counsel for the applicant submitted that, in finding its scepticism about the applicant’s claims to be compounded because the applicant’s evidence as to who are Faili Kurds was vague, the Reviewer disregarded the vague and general nature of the country information relating to who are the Faili Kurds and where they live.
However, as referred to in these reasons in ground 1, I do not accept that the characterisation of the applicant’s evidence as to who were the Faili Kurds as “vague” to be related to the country information about Faili Kurds. I accept that the country information was in general terms and concluded that there is “no plausible, well documented and generally convincing or accepted” explanation about who are the Kurds and where they live.
A fair reading of the applicant’s answer to the Reviewer’s question about how the Faili Kurds differed from the Kurds who lived in the north of Iran was capable of being characterised as “vague”. The applicant’s response to the Reviewer’s question was not general in the sense of the information referred to in the country information.
It was a matter for the Reviewer to assess the applicant’s evidence and the weight it accorded to that evidence. It is not unsurprising that, having found the applicant’s evidence as to who were the Faili Kurds to be “vague”, that the Reviewer’s scepticism about the applicant’s evidence was enlivened. In the circumstances, the Reviewer’s findings were open to it on the evidence and material before it and for the reasons it gave.
Moreover, a fair reading of the Reviewer’s written record suggests that the Reviewer’s question to the applicant about how the Faili Kurds differed from the Kurds in the north arose from the applicant’s evidence that the applicant’s father spoke Sorani Kurdish and that his family’s ethnicity was Faili Kurdish and their religion was Shi’a. This enquiry followed an exchange between the Reviewer and the applicant about concerns put to the applicant by the Reviewer that most Kurdish people from Baghdad tended to settle in Ilam and other Kurdish areas, rather than Qazvin where the applicant claimed to live.
In the circumstances, I am not satisfied that the Reviewer ignored relevant evidence in finding that the Reviewer’s scepticism about the applicant’s claims was compounded by the applicant’s vague evidence as to who were the Faili Kurds.
Accordingly, ground 3 is not made out.
Conclusion
In the circumstances, the Reviewer’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations was done according to law.
Accordingly, the proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 23 May 2012
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