SZQYA v Minister for Immigration
[2012] FMCA 957
•19 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQYA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 957 |
| MIGRATION – Application to review recommendation of Independent Merits Reviewer – whether reviewer failed to accord procedural fairness in relation to country information – whether reviewer asked the wrong question or incorrectly applied the law – whether reviewer failed to address or inadequately addressed one of the claimed bases for the applicant’s fear of persecution. |
| Migration Act 1958 (Cth), s.91R |
| BRGAE of 2008 v Minister for Immigration and Citizenship and Another [2009] FCA 543 Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541; [2003] FCAFC 298 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZJRU v Minister for Immigration and Citizenship and Another (2009) 108 ALD 515; [2009] FCA 315 SZJTQ and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 563; [2008] FCA 1938 SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66 |
| Applicant: | SZQYA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2825 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 13 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Joyce |
| Solicitors for the Applicant: | Michael Jones |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison |
DECLARATIONS
That in recommending to the first respondent that the applicant not be recognised as a person to whom Australia has protection obligations, the second respondent failed to accord the applicant procedural fairness in that he failed to put the substance of information in a Danish Immigration Service Report dated 2008 referred to in his findings and reasons to the applicant for comment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2825 of 2011
| SZQYA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks relief in respect of a recommendation by the second respondent (the IMR or reviewer) of 1 August 2011 that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant arrived at Christmas Island by boat on 18 August 2010. He claimed to be stateless and to have lived in Iran illegally. On 18 September 2010 he made a request for Refugee Status Assessment (RSA). On 25 January 2011 he was assessed as not meeting the definition of a refugee in the Refugees Convention. The RSA did not accept that the applicant was stateless, that he had lived in Iran illegally as he claimed or that his claims regarding his identity, the travel document on which he travelled or his need for protection were true.
The applicant sought review by an independent merits reviewer. His representative provided written submissions to the reviewer dated 7, 14 and 27 July 2011. The applicant attended an interview with the reviewer on 8 July 2011. A transcript of the interview is in evidence before the court as an annexure to the affidavit of Michael Terence Jones affirmed on 13 July 2012.
Decision of the IMR
In his statement of reasons the reviewer summarised the applicant’s claims as a claim that:
…he was fearful of being returned to Iran where he would face persecution in the form of arrest, interrogation and detention on account of his actual/imputed political opinion of being opposed to the Iranian regime on the basis that he has applied for asylum in Australia and membership of a particular social group namely stateless individuals in Iran or stateless Kurds in Iran.
The reviewer set out the applicant’s claims at the IMR interview and referred briefly to the adviser’s submissions and to country information.
The applicant claimed that he did not know where and when he had been born, but that he was adopted at about age two and brought up by a Turkish family residing in Tehran, Iran until the age of 12 when he went to live and work in a slaughterhouse. He claimed that he had not inquired about his real parents or been given proper information about them. He was told by his adopted mother that his mother wore Kurdish dress and that the adoption was not legally registered.
He was educated to grade 5 standard. He started working with his adoptive father at age seven. Once he started working in the slaughterhouse he gave his father all his wages until he was about 18 years old. Thereafter he gave his wages to his brother, who would bank the money in the brother’s bank account. The applicant could not open his own bank account. The applicant’s employer did not pay him for a year or two but bought him a car, although he had no licence to drive and only drove it in the slaughterhouse yard. The car was in the employer’s name. After three weeks some equipment was burnt out and he was blamed. The employer sold the car and kept the money. He claimed he had no identity or residency papers and had never applied for any, although his father had unsuccessfully tried a few times to get him some documents. The applicant claimed that when he was 12 or 13 years old the police arrested him and asked for his ID papers and he was detained until his father came and had him released. He had borrowed money from his brother to come to Australia. The applicant agreed he “lived a reasonably normal life” in Iran between ages 18 and 20.
Contrary to the conclusion of the RSA, in his findings and reasons the reviewer accepted that the applicant was a stateless person from Iran. As the applicant had made no claim for protection against any other country, the IMR assessed his claim against Iran as his country of habitual residence.
The reviewer considered the applicant’s claims that he feared harm and discrimination as a stateless person in Iran whose “adopted” family were Iranian citizens of Turkish ethnicity. He recorded that the applicant claimed that his adopted mother had told him his natural mother “had Kurdish dress”, but that he knew very little about his natural parents and for most, if not all, of his life he had known his adopted family as his family.
The IMR acknowledged that the applicant claimed to fear persecution based on his “supposed Kurdish ethnicity and race” and also as “a stateless person with no identity or residency papers in Iran” even though he had been born in Tehran and lived there all his life.
The IMR was not satisfied that what he described as “the material consulted” provided “independent corroboration of claims that the Iranians or Persians specifically target Kurds on a general and indiscriminate basis, notwithstanding that individual Kurds may have been targeted either individually for other reasons”. The reviewer acknowledged that many Kurds had been “generally oppressed, marginalized and discriminated against in the allocation of resources and finances by the Iranian government and authorities as compared to their Persian counterparts”. However the reviewer found that there was no evidence to support the assertion that the social and other discrimination claimed by the applicant or his adviser was “so severe as to amount to persecution” as referred to in the Convention definition of a “refugee”.
The reviewer did not accept that the applicant was denied the right to an education, having regard to the fact that he attended school for a number of years until he left to work in a slaughterhouse at about age 12. The reviewer had regard to the fact that the applicant had worked for most of his life at the slaughterhouse and that before leaving Iran in 2010 he had a second job there. While accepting that the applicant might have been “paid irregularly or at a lower rate than others”, the IMR found that he was still able to work and subsist and, in his own words, “live a reasonably normal life” between ages 18 and 20. The IMR considered the applicant’s claim that he had been unable to open a bank account and gave his wages to his brother to bank, but had regard to his evidence that he got on well with his brother. The reviewer accepted that the applicant “may have been exploited by his parents over the years”, especially when they were buying a house and he was younger, but found that he appeared to have “lived reasonably well at the slaughter house that was convenient for him to do so given the circumstances” and that he had been asked to join the Basiji.
The IMR did not accept that services had been “systematically denied” to the applicant by his family or others because of his race and ethnicity. He found that although instances of discrimination may have occurred “it [did] not appear that there was a policy of active discrimination against [the applicant] as a Kurd”. He found that the applicant had been able to work and find employment from a very young age. The IMR did not accept that as an alleged Kurd the applicant faced or would face in the future a real chance of general social discrimination amounting to persecution in Iran based on his race or ethnicity.
In relation to the other claims made by the applicant, the reviewer noted that refugee status was not accorded to persons “merely because they [were] stateless and unable to return to their country of former habitual residence”. He found that the fact the applicant may not be able to return to Iran without more did not give rise to refugee protection obligations in Australia.
The reviewer had regard to the applicant’s evidence that he was not married, that he had been born some 29 to 30 years earlier in Iran and that he had left Iran through Tehran airport in August 2010 on a false passport with the aid of a smuggler. He claimed to believe that he could not return safely to Iran. At his initial interview in September 2010 the applicant had claimed he left Iran because he was stateless, he had no one there and because his life “was not good”. However the reviewer observed that the applicant had never been physically mistreated, although he had to give his earnings to his parents and employer. The reviewer addressed the fact that in his statement of September 2010 the applicant had referred in part to his statelessness “being the cause of all his problems”, had claimed that he could not get ID papers in his circumstances, that he had suffered as a result and that he had been stopped by the police on two occasions, asked to show his papers and detained until his adoptive father came to the police station and paid a bribe.
The reviewer was prepared to give the applicant the benefit of the doubt and accept that his evidence “ha[d] been largely consistent and credible without any embellishment or obvious exaggeration”. The reviewer was also prepared to accept that the applicant had left Iran in 2010 and that his family remained there, “apparently unaccosted” in any way, as citizens of Iran with Turkish ethnicity.
The reviewer referred to the applicant’s claimed fear of returning to Iran in part because of his statelessness and lack of ID papers and his claim that stateless people were discriminated against in areas such as employment, education, public healthcare, owning property and voting at elections. However the reviewer found that the applicant had been educated to year 5 level before working full-time to help his adopted family, that he had been able to work at two jobs at the slaughterhouse, that there was no suggestion that he was paid less than a subsistence wage and that he had given money to his brother to bank on his behalf. The IMR had regard to the fact that, on his own evidence, the applicant had been able to live a reasonably normal life.
The IMR found that the level of discrimination “was not so significant as to threaten the [applicant’s] capacity to subsist and live” and that the “alleged denial of access to basic services” did not “threaten his capacity to subsist and live a reasonably normal life”.
Further, on the information before him and having regard to the evidence about the applicant’s experiences in Iran, the IMR was not satisfied the applicant had a well-founded fear of persecution or that he would suffer persecution on account of his race or statelessness if he returned to Iran now or in the reasonably foreseeable future. The IMR acknowledged that, given the circumstances, the applicant “may be affected” by “incidents of some discrimination and hardships”, but found that this did not amount, separately or cumulatively, to a well-founded fear of persecution for a Convention reason.
The reviewer also considered the applicant’s claim that he would be at risk “for leaving Iran illegally with a false passport containing his photo and seeking asylum in the West”. He found that the 2008 Danish Immigration Service Report noted that a person who had left Iran illegally, but was not registered on the list of people who could not leave Iran, would not “face problems with the authorities upon return”, but may be fined. He also found that to the knowledge of an (unidentified) embassy, people who left Iran illegally were not detained on return, although the embassy did not know what would happen if a person was unable to pay the fine. The IMR found that it appeared that laws about infringement of departure laws and those applying to illegal returnees were laws of general application “not specifically targeted against ethnic minorities” (like Kurds) or returnees like the applicant.
The IMR found that there was no authoritative evidence to support claims of targeting and killing returnees from a Western country like Australia. He also found that there was no evidence that Iranian authorities would be informed that the applicant was a failed asylum seeker in Australia and observed that “reports indicate that Iranians returning to Iran after leaving the country illegally will not face problems like detention apart from paying a fine”.
Overall, the reviewer concluded that based on the information available he was not satisfied that the applicant would suffer persecution by the Iranian authorities and their supporters “on account of either cumulatively or separately his race and ethnicity as a stateless Kurd or as stateless individual” or his actual or imputed political opinion of being “opposed to the Iranian regime on the basis that he applied for asylum in Australia” if he returned to Iran now or in the reasonably foreseeable future.
The applicant sought review by application filed in this court on 9 December 2011. He now relies on an amended application filed in court on 13 July 2012. There are three grounds in the amended application.
Procedural fairness
Ground one is that the reviewer “failed to observe the requirements of procedural fairness in relation to country information that formed the basis of his recommendation to the Minister”.
There are four particulars to this ground. They are as follows:
a)The applicant claimed that if he was forced to return to Iran he would face limitations and difficulties on account of his having left illegally and might be imprisoned.
b)The applicant provided evidence from the internet of such a case of imprisonment which was not translated or considered by the second respondent.
c)The second respondent relied upon a Danish Immigration Service Report dated 2008 to dispute the claims of the applicant without putting the Report or the substance of its findings to the applicant in the interview conducted on 8 July 2011.
d)The second respondent had a duty to consider relevant and available country information regarding the treatment of returned failed asylum seekers which indicates that such persons may face arrest or imprisonment on return.
The first particular to ground one merely recites part of the applicant’s claim. There are, in essence, three aspects to this ground.
Internet evidence
The first aspect of this ground is that the reviewer erred in failing to translate or consider evidence in Farsi from the internet that was provided by the applicant. It was submitted that the reviewer was under an obligation to translate and consider such material in circumstances where the applicant claimed that if he was forced to return to Iran he would face limitations and difficulties on account of having left Iran illegally, and that he might be imprisoned. At the IMR interview he provided evidence from the internet in Farsi said to be about the imprisonment of a person who had been deported to Iran and imprisoned. He had also provided evidence of his past experiences as an undocumented child labourer, including arrests by the police and what was said to be exploitation by his employer and adopted family.
Counsel for the applicant submitted that the reviewer’s failure to consider the evidence the applicant provided about an illegal returnee having been arrested and imprisoned led to a failure to observe procedural fairness in relation to the applicant’s claims.
According to the transcript of the IMR interview, after the reviewer asked the applicant what he believed would happen to him if he were to return to Iran (transcript p.27 lines 39-40), the applicant responded that he would “go back to the same difficulties” and that it was possible that “they may imprison me” (transcript p.27 lines 43-44). The hearing continued (at transcript pp.27 – 28):
MR KARAS: What do you mean possible they would imprison you? Who would imprison you and why?
[APPLICANT]: This is a person that they have deported and is imprisoned …..
MR KARAS: When was that, do you know?
[APPLICANT]: I don’t know this, but they took it from the Internet.
MR KARAS: Okay. So you’re saying that this shows a person who was deported, where from, and who is now in prison. You don’t know what for. You don’t know anything about it other than you got it from the Internet?
[APPLICANT]: Yes, this is they were imprisoned for some time. They was illegally in the country and illegally exited the country.
MR KARAS: Sorry, illegally exited the country.
[APPLICANT]: Yes.
MR KARAS: Okay. Anything more you want to say about those papers? Do you want them or do you want a copy of them or what?
[APPLICANT’S ADVISER]: It’s okay.
MR KARAS: Okay. Do you want it back or may I keep this?
[APPLICANT]: No, I don’t want it.
MR KARAS: Okay. All right. Any more comment about this?
[APPLICANT]: No, only I know that this person has been deported, he’s back in Iran and he’s now in prison and this is the worst prison that they say that exists in Iran.
The applicant submitted that as the document provided was in Farsi the reviewer could not consider it if it had not been translated unless there was evidence (which there was not) that the reviewer spoke Farsi. In these circumstances there was said to be no evidence that this document was taken seriously by the IMR.
Counsel for the applicant confirmed that there was no evidence before the court as to the content of this document other than the description by the applicant in the interview. It was contended that there was a duty on the reviewer to at least consider that document on its own terms based on general principles of procedural fairness. Counsel for the applicant referred to the decision of the Full Court of the Federal Court in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; [2004] FCAFC 151 at [82]-[83] in support of the proposition that the IMR was bound to inquire as to the content of the document. There was also said to be a duty to comprehend the basis upon which the applicant’s claim was made consistent with the principles of procedural fairness referred to in Plaintiff M61/2010E v The Commonwealth of Australia and Others; Plaintiff M69/2010 v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41) and as was said to be required by authorities such as Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58.
The applicant’s main contention appears to be that the reviewer failed to observe the requirements of procedural fairness because he failed to obtain a translation of the Farsi document produced by the applicant. However it has not been established that the reviewer was under a duty to obtain such a translation in the circumstances of this case or that his failure to do so amounted to a failure to observe the requirements of procedural fairness.
First there is “no unqualified duty to obtain a translation of all material that a claimant may seek to rely upon” (SZMXS v Minister for Immigration and Citizenship [2009] FCA 1549 at [23] per Flick J). Whether or not there was a lack of procedural fairness would depend on the circumstances of the case. It is relevant to have regard to what occurred in the IMR interview. The applicant explained the content of the document. He was asked twice by the reviewer if there was anything more that he wanted to say about it. It has not been suggested that the applicant did not accurately explain the content of this document or that the “gist” of the document was not understood by the IMR (S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [49] per Moore J). Furthermore, in the reviewer’s reasons for decision, in summarising the evidence at the interview, he referred to the fact that the applicant had presented a “paper extract” referring to a person who was deported to Iran and was imprisoned. The article was said to be in Farsi without a translation. The reviewer recorded that the adviser did not want a copy of this document and that the applicant had downloaded it from the internet.
This is not a case in which the reviewer had no evidence at all as to the content of an untranslated document. As in WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66 at [34], he had the benefit of the applicant’s explanation of the content and took that explanation into account. There is no basis to suggest that the document was not considered by the reviewer having regard to his reference to it (cf X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319; [2002] FCA 56 and see SZMXS at [25] and cases cited therein). The reviewer considered the applicant’s claims including his claim to fear persecution if he returned to Iran from a Western country such as Australia, and his claim to fear persecution for having left Iran illegally. Thus the apparent claim made by the applicant in reliance on the untranslated document was addressed. The IMR had regard to country information in reaching his conclusion, in particular, his finding that the claim that persons were targeted and possibly killed on return to Iran from a Western country like Australia for that reason was “unsupported by any authoritative evidence”.
As stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]:
It is plainly not necessary for [a decision-maker] to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between [the decision-maker] failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by [the decision-maker] to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
While these remarks were made with reference to the Refugee Review Tribunal, the same may be said in relation to the IMR (and also see Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 at [31]-[35] per French CJ and Kiefel J and [66]-[73] per Gummow J). This is not a case in which an inference should be drawn that the decision-maker failed to consider an issue raised by the evidence advanced on behalf of the applicant (see Applicant WAEE at [47]). Moreover, even if the document had been overlooked, this would not establish legal error as it was merely an item of evidence in support of the applicant’s claim to fear harm as a returnee to Iran and that claim was considered by the reviewer (see Applicant WAEE at [46]-[47], Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28] per North and Lander JJ and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [51]). This aspect of ground one is not made out.
The Danish Immigration Service Report
The next aspect of ground one relates to the Danish Immigration Service Report of 2008 (the Danish Report) referred to in the reviewer’s findings and reasons. As set out in particular (c) to ground one, it is contended that the reviewer relied upon this report to “dispute” the claims of the applicant without putting “the Report or the substance of its findings” to the applicant in the interview.
In his findings and reasons the IMR referred to the Danish Report in the context of consideration of what was described as the claim that the applicant “would be at risk for leaving Iran illegally with a false passport containing his photo and seeking asylum in the West”.
The reviewer stated (at [46]-[47]):
The Danish Immigration Service Report dated 2008 noted that a person who has left Iran illegally and who is not registered on the list of people who cannot leave Iran, will not face problems with the authorities upon return, though the person may be fined. To the knowledge of the embassy, people who have left Iran illegally are not detained upon return. The embassy [does] not know what happens if a person who is unable to pay the fine (sic). Further, it appears that any infringement of the law of departure from Iran and the law applying to illegal returnees is a law of general application and not specifically targeted against ethnic minorities like the Iranian Kurds.
The claim that persons are targeted and possibly killed on return to Iran from a Western country like Australia for that reason of itself is unsupported by any authoritative evidence. As noted the laws applying to those who left Iran illegally are as indicated laws of general application and not laws applied discriminately to Iranian Kurds or returnees like the claimant. Also, there is no evidence before the Reviewer that the Iranian Embassy for example or the immigration officials in Iran would be informed that the claimant is a failed asylum seeker in Australia or that he has applied for asylum here. The Reviewer notes the confidential nature of this matter. As noted the reports indicate that Iranians returning to Iran after leaving the country illegally will not face problems like detention apart from paying a fine.
The IMR concluded that overall, based on the information available to him, he was not satisfied that the applicant would suffer persecution on the bases claimed, including as a stateless Kurd or a stateless individual, and for his actual or imputed political opinion of being opposed to the Iranian regime on the basis that he applied for asylum in Australia should he return to Iran now or in the reasonably foreseeable future.
The applicant submitted that the substance of the information in the Danish Report was credible, relevant and significant and had to be put to him for comment. The IMR was said to have failed to accord the applicant procedural fairness in the sense considered in Kioa and Others v West and Another (1985) 159 CLR 550 at 628 – 629; [1985] HCA 81 per Brennan J and as discussed in Plaintiff M61/2010E at [85] and [91].
In the alternative it was submitted that the IMR had erred in failing to put the adverse conclusions drawn by him based on the Danish Report to the applicant for comment as adverse conclusions which would not obviously be open on the known material (see Kioa at 573 and 588 per Mason J and 634 per Deane J and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 at [29]-[30]).
The applicant acknowledged that the Danish Report had been raised in relation to departure from Iran in the RSA’s decision and by the IMR on that issue, and had been cited by the applicant’s adviser in relation to concerns about the RSA relying on other out-of-date country information about difficulties in leaving Iran illegally. However other information in the Danish Report was relied on in the IMR’s decision in relation to the separate issue of whether a person would face problems on return to Iran. The applicant pointed out that the Danish Report was not mentioned at the IMR interview and nor were the adverse conclusions drawn from it by the reviewer in his decision put to the applicant, notwithstanding post-interview submissions from his adviser requesting that any adverse information be put to him directly.
In effect, the applicant’s submission is that in the circumstances of this case, and notwithstanding that the applicant was, through his adviser, aware of the Danish Report, the substance of that part of the report that was relevant to the reviewer’s findings in relation to the applicant’s claim that if he would be at risk on return to Iran for having left Iran illegally with a false passport and seeking asylum in the West had to be put to him for comment. This was also expressed as a submission that the reviewer should have put to the applicant the substance of the adverse inference or conclusion drawn from that part of the Danish Report in circumstances where the use made of the Danish Report differed from the use made of that report by the RSA.
The first respondent submitted that as this report was referred to in the RSA decision and in post-hearing correspondence between the adviser and the reviewer, the applicant was plainly aware of the report and had relied on it through his adviser. In these circumstances it was contended that there could be no breach of procedural fairness (Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [27], [30] and [33] per Rares and Jagot JJ).
The first respondent also submitted that if it was contended that the reviewer was obliged to put his ultimate reasoning in the form of preliminary conclusions or thought processes to the applicant for comment, it was well established that, as Lord Diplock stated in F Hoffman-La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295 and as was cited with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at [48]:
[T]he rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.
Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ continued in SZBEL (at [48]):
Procedural fairness does not require [the decision-maker] to give an applicant a running commentary upon what it thinks about the evidence that is given.
The extent of an IMR’s obligation to accord procedural fairness was considered by the High Court in Plaintiff M61/2010E. In that case the Court found (at [91]):
Thirdly, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s 424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s 424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.
The High Court reached that conclusion in circumstances where an important basis for the reviewer’s conclusion that the applicant’s fears were not well-founded was country information provided by the Department which had not been put to the applicant by the IMR in the course of the review (Plaintiff M61/2010E at [85]). Nor had any of the “propositions recorded in the reviewer’s reasons” that were apparently based on such country information (some of which differed from the applicant’s claims about treatment on return to his home country) been raised with him or his adviser for their comment or consideration (Plaintiff M61/2010E).
Similarly Plaintiff M69 was found by the High Court to have been denied procedural fairness in circumstances where the reviewer had relied on country information to conclude that the applicant’s illegal exit from his home country did not put him at risk (Plaintiff M61/2010E at [95]). Notwithstanding that their Honours acknowledged that some of the facts revealed by country information may have been “sufficiently” put to the applicant or his adviser for comment, the High Court found that the applicant was denied procedural fairness because the reviewer did not put the substance of country information concerning the treatment of failed asylum seekers returning to the home country in question to him for his consideration and comment (Plaintiff M61/2010E at [98]).
The obligation to put credible relevant and significant information to an applicant for comment was considered by Brennan J in Kioa v West at 628 – 629 as follows:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise … in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made (and see Mason J at 587 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 at 162 [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ referring to Alphaone).
In Alphaone the Full Court of the Federal Court referred to general principles applicable where the rules of procedural fairness apply to a decision-making process (as here), including that the subject of a decision is entitled to have his mind directed to “any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made” and also, relevantly, to “any adverse conclusion which has been arrived at that would not obviously be open on the known material” (at [30]).
The Full Court of the Federal Court considered the application of these principles to an IMR review in SZQHH. After referring to the fact that “[t]he principles of procedural fairness require that persons whose interests may be adversely affected receive a fair hearing by the use of an appropriate procedure in the circumstances” (at [25]) Rares and Jagot JJ made the point (at [26]) that:
…what will be both sufficient and necessary to ensure a fair hearing will depend on, and vary with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations.
Thus in this case, given that the principles of procedural fairness apply (see Plaintiff M61/2010E), it is necessary to consider the context in which the IMR decision was made (noting the absence of the detailed statutory prescriptions applicable to the Refugee Review Tribunal) and the surrounding facts and circumstances of the particular case.
In Kioa Brennan J referred generally to the flexibility of the principles of natural justice and the need to determine the content of the principles “in the light of the particular circumstances” (at 626). As Allsop J put it in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 (at [28]) “natural justice is ultimately a question of fairness” (and see SZPAC v Minister for Immigration & Anor [2011] FMCA 517 at [17]-[19]). Hence it is necessary to consider the particular circumstances of this case.
Relevantly, as Rares and Jagot JJ pointed out in SZQHH (at [27]):
An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source: Applicant VEAL of 2002 at [15], [29]..
Rares and Jagot JJ observed in relation to country information (at [29]) that “the reviewer had to put to the applicant, for his consideration and comment, the aspects of that information that the reviewer considered may bear upon the applicant’s claims” (and also see Plaintiff M61/2010E at [91]).
In this case the first respondent did not dispute that the information from the Danish Report referred to in paragraph [47] (and also the “reports” referred to in paragraph [48]) of the IMR’s decision was credible, relevant and significant and apparently adverse to the applicant’s interests. It is clear that it could and did bear upon the applicant’s claims. The IMR concluded that the information in the Danish Report and other country information about the treatment of illegal returnees to Iran supported the conclusion that the applicant would not be at risk on return for leaving Iran illegally with a false passport containing his photo and seeking asylum in the West.
Moreover, notwithstanding that the reviewer accepted that the applicant was stateless (and noted at [27] that as a stateless person the applicant may be unable to return to Iran), the reviewer regarded as credible, relevant, significant and adverse to the applicant’s claims the information in the Danish Report about the treatment of Iranians who left Iran illegally on return to Iran.
I have borne in mind that, as Rares and Jagot JJ continued in SZQHH (at [30]):
However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
In determining whether particular information had to be put to the applicant, Rares and Jagot JJ considered not only whether the same information was otherwise before the applicant (in another item of country information), but also whether he had a “proper opportunity” to deal with such information (at [33]) as well as whether he was on notice that an issue in the review was the matter canvassed in the information in question.
In SZQHH Rares and Jagot JJ concluded that the reviewer’s use of a particular article that was not put to the applicant for comment did not constitute a denial of procedural fairness. The same information was in other material of which the applicant and his adviser were aware and the applicant had a proper opportunity to deal with the information being on notice of the issue in question.
However I do not regard their Honours’ reasons as amounting to an unqualified proposition that in every case the fact that an applicant has a copy of a document containing particular information necessarily means that there cannot be a denial of procedural fairness. As stated in Plaintiff M61/2010E, procedural fairness may require that an applicant’s attention be drawn to those “aspects” of the information adverse to his interests. If the circumstances are such that the applicant has not been put on notice of a critical issue and matters adverse to his interests (including any adverse conclusion arrived at which would not obviously be open on the known material) there may be a denial of procedural fairness because the applicant in such a case is “denied an opportunity to make meaningful submissions” (SZQHH per Flick J at [71] and see Rares and Jagot JJ at [33]). Even if it is inherent in the remarks of Rares and Jagot JJ that no denial of procedural fairness arises “where the substance or gist of information has been disclosed” (emphasis added, see Flick J at [69]) that was not the situation in this case.
In this case the Danish Report was listed in the RSA decision as part of the information before the officer directly relevant to the case (described as “CISLIB 17329 – Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID cards, Summons and Reporting, etc”). It is clear from this description that it addressed a number of issues.
The RSA specifically referred to this report in the context of accepting that there could be a basis for the applicant’s claim that he had been “fearful” about trying to obtain identity documents. The RSA recorded that the Danish Report stated that:
…even Kurds who are not politically active face increasing difficulties with the Iranian authorities, such as discrimination and harassment solely on the grounds of their ethnicity.
The RSA also referred to the Danish Report in relation to whether it would be possible for a person to bribe his or her way through airport security checks to exit Iran illegally and recorded:
The report of the Danish Fact finding mission to Iran of 2008 states that “A western embassy stated that Iranians abroad might be misinforming foreign authorities by saying that they have left Iran illegally through an airport, as this is very difficult due to thorough security checks. However, it was elaborated that it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally. This, though, will include bribing of a lot of airport staff members since there are several check points in the airport”. The report later states that “According to the airline liaison officer and document advisor at the embassy, some Iranians manage to leave through the airport on forged documents. The embassy has recently come across three false Schengen visas. In such cases bribery might also be involved”.
The RSA did not accept that the applicant left Iran by air using a fraudulent Iranian passport. However the RSA did not address the issue of whether the applicant would face problems with the authorities on return as someone who had illegally departed Iran and was a failed asylum seeker.
In a submission of 7 July 2011, apparently given to the IMR on the day of the interview (8 July 2011), the applicant’s adviser referred to various items of country information. The adviser quoted the particular part of the Danish Report referred to by the RSA in relation to discrimination and harassment of Kurds set out at [65] above.
The adviser also raised the claim that the applicant would face serious harm at the hands of the Iranian authorities on the basis of perceived anti-government views because he had travelled to Australia and applied for asylum. In that context the adviser referred to a Refugee Review Tribunal decision in which the Tribunal member had referred to information suggesting that there was ill-treatment of such returnees to Iran.
I have considered the circumstances relevant to the requirements of procedural fairness in this particular case. In particular, it is important that in the 7 July 2011 submission the adviser specifically asked the IMR to provide the applicant with an opportunity to comment on “any adverse material credible, relevant and significant to [the] recommendations” and an explanation of why such information may be adverse to the applicant. The adviser also asked that the applicant be fully appraised of and given an opportunity to address all relevant issues adverse to his claims. Further, the adviser asked the IMR to advise if such an opportunity to comment (which was said to be based on the RSA Procedures Manual and to reflect the common law rules of procedural fairness) went beyond the requirements of procedural fairness or the reviewer’s obligations.
There is no evidence of any reply to this request by the IMR. At the IMR interview on 8 July 2011 the reviewer did not address the adviser’s request. Nor did he raise with the applicant any specific independent country information, although he raised generally that he had read that it was “very hard for someone to leave Iran with false documents because of all of the checks and checkpoints one has to pass through” (transcript p.26 lines 45-46). The reviewer did not raise with the applicant any suggestion that despite his claimed illegal departure from Iran and his application for asylum, he would not face problems with the authorities on return such as to put him on notice that this was an issue in the review.
In a post-interview written submission to the IMR of 14 July 2011, the applicant’s adviser referred to the fact that they had not been informed in writing of the particular issues of adverse concern that the IMR might have in relation to the applicant’s case. Despite this, the adviser stated that the submission attempted to comment on all matters understood to be of concern to the reviewer during the interview. The adviser also asked to be notified of issues in the review as follows:
If there are other issues considered by you to be adverse to [the applicant’s] case that are not addressed below, we request that you please notify us of these in writing so that we may have an opportunity for consideration and comment.
Apart from credibility issues and factual issues about past events in Iran, the adviser’s submission addressed the circumstances in which the applicant had departed Iran. In that context the adviser referred to the fact that the source of the country information suggesting it was difficult to leave Iran because of all the checks (as had been raised by the reviewer at the interview) had not been disclosed during the IMR interview. The adviser requested that if such information “[was] to be used in a manner adverse to [the applicant]” he should be informed of the exact source of the information so that he had an opportunity for consideration and comment.
By email to the adviser of 20 July 2011, a copy of which was filed in court on 13 July 2012 in a Supplementary Court Book, an officer from the Independent Protection Assessment Office advised that the reviewer had asked him to write and had stated that the source of the country information suggesting that it was difficult to leave Iran requested in the adviser’s submission of 14 July 2011 was the information “referred to in [the applicant’s] RSA Decision dated 25 January 2011”. The IMR asked that any further submissions be received no later than a specified date. There is no evidence of any notification by the IMR of other country information as requested in the adviser’s submission of 7 July 2011 or of notification of other adverse issues as requested in the submission of 14 July 2011. The IMR did not suggest that the information referred to in the email of 20 July 2011 had any relevance to issues in the case other than the difficulty of leaving Iran or to the applicant’s other claims.
The applicant’s adviser made a further submission to the reviewer of 27 July 2011 commenting on the circumstances in which the applicant departed Iran. He referred specifically to the particular aspects of the items of country information referred to in the RSA decision (including the Danish Report) relating to departure from Iran. The letter set out the part of the Danish Report in relation to leaving Iran illegally that had been referred to in the RSA decision as well as extracts from the other information about leaving Iran. In that context the adviser suggested that the other items of information referred to by the RSA and put to the applicant by the reviewer were outdated (being from 1999 to 2005) and should be given limited weight. It was submitted that the Danish Report of 2008 provided the most up-to-date information and specifically referred to procedures adopted at Tehran airport. The adviser pointed out that the Danish Report stated that it was possible to depart Iran illegally on forged documents and using bribery and suggested that it supported the applicant’s claim about the possibility of departing Iran illegally. The adviser stated that they had located this report in its entirety and drew the reviewer’s attention to a detailed description of departure procedures at the new Tehran International Airport that had opened in around 2004.
In his reasons for decision the IMR summarised some aspects of country information. Interestingly, this included material from a US State Department 2010 Country Report and a UK Home Office Report of 26 January 2010, neither of which was referred to in the RSA decision or otherwise drawn to the applicant’s attention by the IMR. The US State Department Country Report of 11 March 2010 was said to indicate that the Iranian government required exit permits for foreign travel for all citizens and restricted foreign travel for some.
Oddly, the IMR’s summary of part of the UK Home Office Report of 26 January 2010 (which, it appears, is a report other than the subsequently listed UK Home Office Reports of 6 August 2009 and 31 August 2010) is, at least in part, in the same terms as the quote from the Danish Report in the RSA’s decision in relation to the difficulty of leaving Iran illegally through an airport. It is not clear whether this is an error. Nothing turns on this for present purposes, except insofar as it is clear that the cited information (whatever its source) did not relate to the situation for illegal returnees to Iran.
The IMR’s reasons also include a list of other reports. Most of the information described under the headings “Independent Evidence” and “Country information” was not referred to by the RSA and was not put to the applicant for comment by the IMR. The only information the IMR put to the applicant consisted of the sources of information in relation to the issue of the difficulty in leaving Iran described in the email of 20 July 2011. However no issue is taken in these proceedings about disclosure of any information other than the substance of the aspects of the information in the Danish Report considered in paragraphs [46] and [47] of the IMR’s decision. Nor was any issue raised about the IMR’s failure to put to the applicant the “other” reports said by the IMR to indicate that Iranians returning to Iran after leaving illegally would not face problems like detention apart from paying a fine.
The Danish Report is not in evidence before the court. The applicant’s submissions proceeded on the basis that the reference to the “knowledge of the embassy” in paragraph [46] of the IMR’s reasons was a reference to sources interviewed by the Danish fact-finding mission as described in the Danish Report. If the information from the embassy was from a source other than the Danish Report a further procedural fairness issue would arise. However it is not necessary to determine that issue in these proceedings.
It is not in dispute that the Danish Report was the source of the information that a person who had left Iran illegally who was not registered on the list of people who could not leave Iran would not face problems with the authorities on return, but may be fined, and that it was one of the reports said to indicate that Iranians returning to Iran after leaving illegally would not face problems on return apart from a fine.
In the particular circumstances of this case I am satisfied that procedural fairness required the IMR to put to the applicant the substance of the aspects of the information in the Danish Report relied on in his report in relation to the situation for returnees to Iran, notwithstanding the fact that another aspect of the Danish Report was put to the applicant and the adviser then obtained a copy of the Danish Report and addressed what it said about departure from Iran.
Despite specific requests from the applicant’s adviser, the reviewer did not raise with the applicant either the issue to which the aspect of the Danish Report referred to in his findings and reasons related or the substance of the particular information in question. The IMR did not respond to the adviser’s request to be informed of all relevant country information. The IMR only put to the applicant the particular aspect of the Danish Report that related to difficulties leaving Iran illegally and other information on the same issue when that particular issue was subsequently raised in light of the fact that this was the IMR’s only reference to country information in the interview. This was, however, an issue that was quite separate from difficulties returning to Iran after an illegal departure.
It can be inferred that the Danish Report dealt with a number of discrete issues. The IMR did not provide a copy to the applicant’s adviser (which might, in some circumstances, have alerted the applicant to the potential relevance of the whole report to the review). The fact that the adviser obtained a copy of the report of his own volition did not put the applicant on notice of the potential relevance of information in the report other than that referred to by the IMR. Furthermore, the applicant and his adviser were not alerted to the potential relevance to the review of information in the Danish Report to the issue of return to Iran, let alone the potential relevance of information about Iranians returning to Iran to the situation of a stateless person returning to Iran. The applicant did not have a meaningful opportunity to deal with the potentially adverse consequences of that aspect of the Danish Report.
The IMR did not raise any issue with the applicant or his adviser about the risk to illegal returnees who had sought asylum in the West. The adverse conclusion drawn in relation to a person found to be stateless from country information about Iranians returning to Iran (see the IMR decision at [47]) cannot be said to be an issue of which the applicant was on notice such that the fact that the applicant’s adviser was referred to another part of the Danish Report and obtained a copy of the report meant that the IMR’s use of the aspect of the Danish Report in issue did not involve a denial of procedural fairness (cf SZQHH at [34]). In the particular circumstances of this case, to afford procedural fairness to the applicant in the sense considered in SZQHH and cases referred to therein, it was necessary for the reviewer to put to the applicant for comment the aspect of the Danish Report relied on in his decision.
Indeed, even if it could be said that all the material in the Danish Report was known to the applicant and his adviser, as a matter of procedural fairness the applicant was entitled to have drawn to his attention and to have an opportunity to respond to the adverse conclusion drawn by the IMR about the situation for a stateless returnee based on information about Iranian returnees. Such a conclusion (that the applicant would not “face problems” or, more generally, persecution for any of the Convention reasons) was not an obvious and natural evaluation of that material (Kioa v West at 573, 588 and 634 and Alphaone at [29]). Hence procedural fairness required the IMR to advise the applicant of such adverse conclusion (or, as described in Plaintiff M61/2010E at [85], the propositions based on such information) to give him the opportunity to deal with its potentially adverse consequences by responding to the IMR (SZQHH per Rares and Jagot JJ at [30] and per Flick J at [71]). In the absence of such opportunity there was a denial of procedural fairness such as to warrant the relief sought by the applicant.
Having regard to the nature of the information and the apparent view of the reviewer as to the direct relevance of the information in question to his rejection of part of the applicant’s claims, this is not a case in which it is necessary for the applicant to present evidence of some “practical injustice” resulting from the IMR’s failure to invite comment (see Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541; [2003] FCAFC 298).
Whether duty to consider relevant country information
In particular (d) to ground one it is claimed that that the reviewer had a “duty” to consider relevant and available country information regarding the treatment of returned failed asylum seekers which indicated such persons may face arrest or imprisonment on return.
The applicant contended that the reviewer was under a duty to inquire as to relevant up-to-date information, apparently on the basis that the adviser had raised concerns about his reliance on out-of-date country information. However that concern related specifically to the relative weight to be given to the items of country information referred to in the RSA report about departure from Iran. This concern was not such as to give rise to a general duty to inquire in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
The fact that further, potentially relevant information (a Departmental Guidance Note on Iran) was “released” by the Department of Immigration and Citizenship on 11 July 2011 (after the IMR interview and before the decision) about the adverse consequences for illegal returnees to Iran as failed asylum seekers which was neither drawn to the attention of the reviewer by the applicant or his adviser or referred to by him is not indicative of error in the manner contended for by the applicant. While no error is established on this basis, the matters raised by the applicant demonstrate the importance in procedural fairness terms of the reviewer raising the critical issues and aspects of information the reviewer considers may bear on the applicant’s claims to give him an opportunity to respond to potentially adverse consequences as discussed above.
It has not been established that the Guidance Note on Iran was before the IMR such that he could be said to have erred by preferring other more dated information in the manner considered in SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885 (cf SZJTQ and Others v Minister for Immigration and Citizenship and Another (2008) 172 FCR 563; [2008] FCA 1938). No other basis on which the reviewer’s failure to refer to this information could amount to reviewable error was contended for by the applicant.
I also note that the Guidance Note on Iran states that it was prepared to assist case officers, but was “not provided for direct quotation”. Rather, it advised officers to consult original source documents to form their own opinions. The reviewer referred to the Danish Report (cited in the Guidance Note on Iran about questioning of returnees travelling on travel documents issued by an Iranian embassy, especially those who left Iran illegally), albeit to other effect. The fact that the Guidance Note on Iran referred to other sources which might be said to support the applicant’s claimed fears of mistreatment as a returned failed asylum seeker is not such as to establish error on the part of the IMR in circumstances where there is no evidence that such source material was put before him. As indicated, the applicant does not rely in these proceedings on the IMR’s failure to put to him for comment the substance of other information that is referred to in his decision. The claim in particular (d) to ground one is not made out.
Ground two
While one aspect of ground one is made out and warrants the relief sought I have also considered the other grounds relied on by the applicant.
Ground two in the amended application is as follows:
The second respondent committed jurisdictional error by asking the wrong question or incorrectly applying the law.
Particulars
a) The second respondent erred in his understanding of the applicant’s situation by applying to the applicant, as an undocumented stateless person, information concerning the likely harm to an Iranian citizen as a result of illegal departure from the country.
Issue was taken with the reviewer’s finding in paragraph [47] of his decision that:
As noted the reports indicate that Iranians returning to Iran after leaving the country illegally will not face problems like detention apart from paying a fine.
It was submitted that in making this finding, the reviewer had erred in his understanding of the applicant’s situation by applying to the applicant, who had been accepted by the reviewer to be a stateless person, information concerning the likely harm to an Iranian citizen as a result of illegal departure from the country.
In oral submissions counsel for the applicant contended that the claim put forward or arising on the material in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 had not been considered according to law because the reviewer failed to consider the actual issue, which was that the applicant was undocumented, albeit he had previously lived in Iran. It was submitted that the reviewer had asked the wrong question and had not given effect to what was lawfully required by the Migration Act and the Refugees Convention and thus had failed to exercise jurisdiction. The applicant contended that this error led to the reviewer’s subsequent findings that he was not satisfied that the applicant would suffer persecution for a Convention reason should he return to Iran, and that he did not meet the criteria for a protection visa in the Migration Act.
Paragraphs [46]-[47] of the reviewer’s decision are set out at [38] above. Insofar as the applicant takes issue with the use of country information concerning Iranians returning to Iran in relation to the applicant, who was stateless, the issue of whether such information had to be put to the applicant for comment is discussed above in relation to ground one. Beyond this, the choice and interpretation of country information was a factual matter for the reviewer (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]).
While issue may be taken with the logic of the IMR’s partial reliance on information about returning Iranians given his acceptance that the applicant was stateless, this was not the only reason for the reviewer’s conclusion in relation to the applicant’s claim about being an illegal returnee who had sought asylum. It has not been established that the reviewer misunderstood the applicant’s claims and hence did not consider that one of the applicant’s claims was that he was stateless. Notwithstanding his claim to be stateless, the applicant also claimed to be at risk on return to Iran as a failed asylum seeker who had left Iran illegally with a false passport containing his photograph on the basis of an actual or implied political opinion of opposition to the Iranian regime. The reviewer considered both this claim and the claims based on the applicant being a stateless Kurd or stateless individual. It has not been established that the reviewer failed to respond to a “substantial, clearly articulated argument relying upon established facts” in the sense considered in Dranichnikov (at [24]).
Ground two is not made out.
Ground 3
Ground three in the amended application is as follows:
The second respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the applicant’s fear of persecution.
Particulars
a) The applicant claimed that if he was forced to return to Iran there was a real chance that he would continue to be persecuted for a Convention reason, as a member of a social group, namely undocumented persons who are Non-Iranian yet reside in Iran.
b) The applicant provided credible evidence of his earlier exploitation as a child labourer, his lack of access to a formal education beyond year 5, the difficulties he faced in employment and in all areas of life where identification documentation is required.
c) the applicant provided credible evidence of the likelihood of continuing future exploitation and discrimination and his well-founded fears of arbitrary arrest and imprisonment on return.
d) The second respondent fell into error by focusing on the position of Iranians in general, or Iranian Kurds, or stateless persons. In doing so he neglected to consider the essential and significant reasons for persecution being the combination of the applicant’s illegal adoption, his lack of identity documentation, his resulting experiences as an exploited child labourer in a slaughterhouse, and their combined effect with his statelessness.
The applicant relied on the fact that in Plaintiff M61 at 356 the High Court confirmed that a failure to address one of the claimed bases for an applicant’s fear of persecution may constitute a denial of procedural fairness.
It was acknowledged that in his adviser’s submission of 7 July 2011 the applicant had made an express claim to fear persecution on the basis of his membership of a particular social group of “Stateless individuals in Iran and/or Stateless Kurds in Iran” (as well as the actual/imputed political opinion claim). However the applicant submitted that in the IMR interview and in various submissions made on behalf of the applicant, it emerged that the “underlying cause” of the applicant’s difficulties was not simply his statelessness but also his lack of identity documents due to the circumstances of his birth and his adoption (which were submitted to have resulted in his exploitation as a child and as an adult in the slaughterhouse). It was submitted that the applicant’s claims and the material before the reviewer (in particular his claims at the interview and in submissions) revealed an underlying claim of membership of a particular social group of “undocumented persons who are not Iranian, yet reside in Iran” that was not considered by the reviewer. Particular reliance was placed on the evidence of the applicant at the IMR interview raising concern about the past consequences of his lack of documentation and his fears about the future in the absence of documentation.
In particular reliance was placed on the adviser’s contention (transcript p.47 lines 24-30):
...and that is as an undocumented person with no work rights. I would say that is a clear situation in which one’s capacity to subsist is threatened; also taking into account the fact that an undocumented person cannot rent property, cannot own a house, can’t accumulate assets. Again, related, but slightly different, would be we would ask you to consider a case of cumulative discrimination amounting to persecution on the basis of all of the rights which an undocumented person in Iran would be excluded from.
This was said to be a clear articulation of the part of the applicant’s claim referred to in ground three.
In addition, in a post-hearing written submission the applicant’s adviser submitted that the Iranian laws would not allow the applicant to be recognised as having Iranian citizenship and the applicant’s “unlawful status has caused him to lead a difficult and excluded life.”
The applicant contended that while in his findings and reasons the reviewer referred to the applicant’s fear because of his statelessness and lack of ID papers, he had erred by not fully considering the claims put forward by the applicant. It was also said that the reviewer had failed to link the cumulative integers of the applicant’s claims of past persecution and his fears as to the future to the lack of documentation and identity he faced as a member of a particular social group of undocumented persons who were not Iranian and yet resided in Iran (see SZPZI v Minister for Immigration & Anor [2011] FMCA 530).
The reviewer was said to have fallen into error by focusing on the position of Iranians in general or Iranian Kurds or stateless persons. It was submitted that in so doing the reviewer neglected to consider the essential and significant reason for the claimed fear of persecution. This was said to amount to a failure to address adequately one of the claimed bases for the applicant’s fear of persecution and hence to constitute a denial of procedural fairness (see Plaintiff M61 at [90] and Dranichnikov at [24]-[25] per Gummow and Callinan JJ, and at [95] per Hayne J).
The applicant did not suggest that an express claim of membership of the suggested particular social group was made by him. It was submitted that a claim of membership of the particular social group posited in ground three of the amended application arose on the material before the reviewer. Reliance was placed on SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [75], referring to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55]-[63], and Applicant WAEE at [45]-[47]).
It was submitted that as a claim based on the posited particular social group arose on the material, the reviewer was obliged to determine whether the group or class to which the applicant implicitly claimed to belong was capable of constituting a social group for the purposes of the Convention, whether the applicant was a member of that social group and whether he had a well-founded fear of persecution for a Convention reason.
In written submissions counsel for the first respondent contended that not only was no claim that the applicant feared harm as an undocumented stateless person in Iran ever put, but also that his claims were explicitly put as being a member of a social group of stateless individuals or stateless Kurds in Iran (in contrast to the circumstances in SZPZI where there was said to be no clearly articulated social group). It was said not to be open to the applicant’s legal advisers to now seek to reformulate the basis of the applicant’s claimed fear in Iran. The first respondent contended that there could not be said to be a “substantial, clearly articulated argument relying upon established facts” that the applicant claimed to fear harm in Iran as an undocumented stateless person distinct from his claim to fear harm as a stateless Kurd. It was submitted that no such distinct claim clearly arose on the material before the reviewer such as to require it to be separately addressed within the principles considered in NABE (No 2) at [55]-[68]. In any event it was submitted that as the IMR found that the discrimination faced by the applicant did not amount to serious harm constituting persecution within s.91R(3) of the Migration Act 1958 (Cth) it was not necessary for him to address whether such discrimination was or would be for a Convention reason.
Unlike the position in SZPZI, this is not a case in which it can be said that the IMR considered a “sub-group” with additional distinguishing factors and not a more general group as a particular social group. Unlike the situation in Dranichnikov (at [23]) it is not contended that the decision-maker misunderstood or misstated the basis for the applicant’s case by expressing the particular social group on which he relied too broadly. Nor could it be, as the applicant expressly claimed to be a member of either or both particular social groups of stateless individuals in Iran or stateless Kurds in Iran. Those particular social groups were expressly identified in the applicant’s adviser’s submission of 7 July 2011.
In this case the applicant’s submission is that the decision-maker should have considered another particular social group in addition to those expressly raised by him. It is necessary to consider whether such a distinct claim clearly arose on the material before the reviewer.
In his adviser’s submissions made both before and after the IMR interview the applicant claimed to be a member of a particular social group of stateless individuals in Iran and/or stateless Kurds in Iran. The applicant’s lack of documentary evidence about his identity (and hence his inability to obtain citizenship under Iranian law) was one of the reasons given for his statelessness. It was also submitted that his lack of nationality (i.e. his statelessness) denied the applicant certain rights (including the right to obtain specified identity documents such as a passport, personal ID card, birth or marriage certificate). However his claim to fear persecution was said to be based on his statelessness.
In support of the proposition that the material before the reviewer clearly raised a claim that the applicant claimed to fear persecution as an undocumented non-Iranian residing in Iran, considerable reliance was placed by the applicant on extracts from the transcript of the interview with the reviewer. The transcript is before the court as an annexure to an affidavit of Michael Terence Jones affirmed on 13 July 2012. It was submitted that at several places in the interview the applicant had raised his lack of documentation as his main problem and claimed that it had led to persecution, discrimination and exploitation.
After the hearing, counsel for the applicant provided the court with a list of references to the transcript of the interview relied on in support of this ground. Most of these involved references by the applicant to his lack of identity papers and the consequences or feared consequences of that lack of documentation in response to questions about what had occurred in the past in Iran. Thus, in response to a question as to whether he decided to leave school as soon as he could read and write the applicant stated “[t]hat was one reason, and the other one was that I did not have documents to be able to go higher.” (transcript p.11 lines 4-5).
Also relied on was a lengthy extract from the transcript (at p.14 line 20 – p.19 line 5) which dealt with the applicant’s lack of documentation, his past fears of arrest, his past detention by the police and the “limitations” placed on him in his employment and otherwise. In this part of the interview, when asked if he had “any other identity papers or residency papers; any other documents at all?” (transcript p.14 lines 20 – 21) the applicant told the reviewer that he did not have anything, that he had not applied for such documents because “Where should [he] apply to?”, and his father “should have gone” and because he “could not do it”. The applicant claimed that his father had unsuccessfully sought documentation for him but that he himself had not applied, being afraid that he could be arrested because he did not have documents (transcript pp.14-15). When asked if he had ever been arrested or come to the attention of the authorities or the police, the applicant claimed that he was taken into detention by the police on two occasions when he was 12 or 13 because he did not have ID and that his father obtained his release by paying them to release him (transcript p.15).
While the applicant confirmed to the reviewer that he was not otherwise threatened, detained or ill-treated by anyone, he also claimed that he had “limitations” (transcript p.16 line 45). When asked what he meant, the applicant responded (transcript p.17 lines 1-4):
I had to escape from everywhere or I could not have access to anything, something like that. Like the incident that the employer bought me a car, and he accused me of, you know, damaging that equipment or whatever; whom I could complain to?
The applicant also told the reviewer that these events only happened to him, not to other family members and agreed that this was because they were Iranian citizens and had papers whereas he was not and did not have papers (transcript p.17 line 38 – p.18 line 1). He confirmed that he was not a citizen of Iran and that he did not have and had never had any Iranian identity papers, residency or ID documents, an Iranian passport or other papers (transcript p.18 lines 3-17). He confirmed he did not do military service, serve in the armed forces or join Basiji. When asked how he could become a member of the Basiji if he was not an Iranian citizen, as he claimed had been proposed to his father, the applicant claimed that if he had joined the Basiji, he would get a Basiji membership card, but that they would not give him any other documentation (transcript p.18 lines 19-44).
When asked again why he was not an Iranian citizen, although his parents and brother were, the applicant’s response was that this was because he did not have any documents. As to why he did not have documents, he said, “I don’t know.” The reviewer then asked the applicant about his natural parents and his adoption (transcript p.19).
Reliance was also placed on other parts of the transcript, including the applicant’s responses to questions about his reasons for leaving Iran and his beliefs regarding his return (transcript p.20 lines 31-47). The applicant claimed he knew nothing about his father (transcript p.20 line 31) but that his adopted mother had told him he was adopted when he was two years old and that his natural mother had dressed in the Kurdish fashion. The reviewer then asked the applicant why he left Iran and believed he was unable to return (transcript p.20 lines 35-36), to which he responded “In what respect should I talk about it; emotionally or not having any documents and having no identity, nationality?” (transcript p.20 lines 38-39).
The reviewer then asked (transcript p.20 lines 41-44):
You left Iran and came to Australia and you’re seeking Australia’s protection because you fear persecution in Iran in the foreseeable future. I want to know why you believe you’re unable to return to Iran and why you feel you’re entitled to Australia’s protection.
The applicant responded, “Because I had limitations there. I did not have identity. I was deprived of everything.” (transcript p.20 lines 46-47).
Further, in response to a question about what made him believe that his parents and brother were not his “real” parents and brother, the applicant responded: “Because they have identity and I don’t have” (transcript p21 line 38), while (at transcript p.26) in response to a series of questions relating to his claim that his parents never formally adopted him, the applicant reiterated that he did not have any papers and was not included on his adopted family’s papers.
In addition, in response to another question as to what he believed would happen to him if he returned to Iran, the applicant claimed (at transcript p.27 line 43): “I have limitation. I cannot – I would go back to the same difficulties that I have, and it’s possible that they may imprison me”. Counsel for the applicant submitted that this referred to the limitations placed on the applicant by his lack of documentation and the possibility of imprisonment as a result.
When asked who would imprison him and why, the applicant referred to information from the internet about a person who had been illegally present in Iran, and who illegally exited the country, and who was subsequently deported, returned to Iran and imprisoned (transcript p.28).
When asked whether he or his family ever sought legal or other advice about his situation and his lack of identity papers, the applicant said no and referred again to his father’s unsuccessful attempts to get identity papers for him, including in a named city in north-western Iraq (transcript p.28).
After a discussion between the reviewer and the applicant’s adviser about inconsistencies in the applicant’s claims and credibility concerns, the adviser expressed concern that there may have been a misunderstanding of the applicant’s claims (transcript p.35). However while the adviser suggested (transcript p.35 lines 10-14) that, having regard to the way the applicant expressed himself, there was a “probability of miscommunication” and his expression and circumstances “may have contributed to a misunderstanding of his claims at the interview with his lawyer”, it appears that this issue was raised in relation to a specific inconsistency in his claims in relation to whether he was adopted at the age of one or two years old, and did not amount to a claim that there was some misunderstanding of his “underlying claims”. Moreover, the adviser suggested that the applicant’s “lack of documentation [wa]s a cause of statelessness” (transcript p.39 lines 32-33).
Subsequently, when asked again about what “limitations” he would have if he returned to Iran, the applicant claimed (transcript p.40 line 8): “Maybe I would be detained or go to prison”. Shortly thereafter he explained that the reason he had gone to live in the slaughterhouse was that it was “the only place that would – accepted me without a proper documentation and identification to give me a job” (transcript p.40 lines 15-17). The reviewer put to the applicant that he was saying that he lived in the slaughterhouse because as it was so far out of the city it was better to live there than to commute. When the applicant appeared not to understand, the reviewer asked whether he had been “kicked out” by his adoptive parents. Relevantly, the applicant then acknowledged that the location of the slaughterhouse out of the city was “maybe one reason” but also referred to the fact that the city was “more dangerous because there’s more police, more security checks, things like that” (transcript p.40 lines 32-33).
The reviewer then asked him if it was more convenient for him to live at the slaughterhouse. He claimed (transcript p.41 line 20) that he was “forced to” which he explained was because “I’m sure that if I had not stayed there then I would face some difficulties” (transcript p.41 lines 24-25). However the applicant’s adviser suggested that this was because the applicant felt “unspoken pressure” to move out of the family home and that he believed that if he had not moved out, his parents would have forced him to do so (transcript p.41 lines 29-32). The applicant agreed, but did not dispute the reviewer’s subsequent suggestion that there did not appear to have been any pressure on him to leave the family house and live at the slaughterhouse (transcript p.41 lines 36-43). There is nothing in this exchange that related to the absence of documentation.
Reliance was also placed by the applicant on an exchange between the reviewer and the applicant’s adviser (transcript p.46). In the context of addressing what should be covered in post-interview written submissions, the reviewer raised an issue about whether it would be of assistance to have a submission about legal issues. The adviser sought to emphasise that if the reviewer was satisfied that the applicant was stateless, and as an “undocumented person” was going to be working illegally, that would give rise to a risk of detention because of his “lack of identity” that would constitute serious harm amounting to persecution within the Migration Act. Again, this linked the applicant’s lack of documents to his statelessness.
It was also pointed out that, after the applicant said that there was a risk he may not get a job if he returned to Iran, the adviser added (at transcript p.48 lines 1-8):
Look, I was just going to say that – and this is just a closing remark – that the way that an undocumented person would have to live would be via the blackmarket, via the illegal economy, and in [the applicant’s] life – in a sense his work life has been a life in hiding. I mean, he has been living in an abattoir, and I don’t think that the Refugees Convention expects a person to be returned to a situation where their livelihood is dependent on the blackmarket, working in hiding. I don’t think that’s what it envisages.
It is the case that at the hearing the applicant did refer on several occasions to his lack of documentation as an obstacle to obtaining nationality, to his lack of documents as a stateless person and to the consequences. However in the post-hearing written submission of 14 July 2011 the applicant’s adviser repeated that the applicant claimed to fear persecution as a member of a particular social group of stateless individuals in Iran and/or stateless Kurds in Iran and reiterated the submissions in relation to his statelessness. The submission of 14 July 2011 also addressed the applicant’s failure to regularise his status.
In NABE the Full Court of the Federal Court acknowledged that the Refugee Review Tribunal was “not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated” (at [58]). The same may be said in relation to the IMR. However such an unarticulated claim must arise “squarely” or “clearly” on the material before the decision-maker and “will not depend for its exposure on conjecture or constructive activity” by the decision-maker (NABE at [58]).
As stated in NABE (at [68]):
Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.
The same may be said in this case. The applicant’s lack of documentary evidence about his identity was one of the reasons given for his statelessness and his lack of nationality was said to deny him the right to identity documents, which had caused him difficulties. However his claim to fear persecution was said to be based on his statelessness, an incident of which was the absence of documentation. It may be that there could be said to be a particular social group of undocumented persons living in Iran distinct from stateless Iranians. However that was not the way the applicant’s case was put. A substantial, clearly articulated argument relying on established facts did not arise clearly on the material before the IMR. In the circumstances of this case, having regard to the “threshold” required for a conclusion that the decision-maker failed to consider an unexpressed claim (NABE at [68]) it has not been established that the IMR fell into error by failing to consider whether the applicant had a well-founded fear of persecution as a member of a particular social group of undocumented persons resident in Iran.
In any event, even if such a claim could be seen as arising clearly on the material before the IMR, the reviewer did not have to make a finding about the existence of the posited particular social group because he clearly found that the discrimination faced by the applicant did not amount to serious harm within s.91R(1) of the Migration Act. Whether particular conduct is sufficiently serious to amount to persecution or serious harm within s.91R(1)(b) is a question of fact and degree for the reviewer (consistent with the approach taken in relation to the Refugee Review Tribunal). Given this finding, it was unnecessary for the reviewer to determine whether the discrimination and hardship faced by the applicant would be inflicted on him for a Convention reason, because it did not constitute persecution (see in particular BRGAE of 2008 v Minister for Immigration and Citizenship and Another [2009] FCA 543 and SZNOE at [78] and see Applicant WAEE at [47]). Ground three is not made out. However, as set out above, the applicant has established an entitlement to relief on the basis contended for in particular (c) of ground one.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 19 October 2012
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