SZQYX v Minister for Immigration
[2012] FMCA 650
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQYX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 650 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer in respect of the protection claims of an offshore entry person – applicant claiming political persecution in Iran – applicant not believed in important respects - whether the Reviewer overlooked an element or integer of the applicant’s claims considered – whether the Reviewer breached the rules of procedural fairness or made a factual finding for which there was no evidence considered – reviewable legal error established. |
| Migration Act 1958 (Cth), ss.5, 14, 36, 46A |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v SZNVW (2010) 183 FCR 575 SGBB v Minister for Immigration (2003) 199 ALR 364 SZAPC v Minister for Immigration [2005] FCA 995 Tuitaalili v Minister for Immigration [2012] FCAFC 24 VWBFv Minister for Immigration (2006) 154 FCR 302 |
| Applicant: | SZQYX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2896 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 27 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mrs R T Bell |
| Solicitors for the Applicant: | Carroll & O'Dea |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The first respondent is restrained from relying upon the report and recommendation of the Independent Merits Reviewer dated 7 November 2011.
The Court declares that the recommendation of the Independent Merits Reviewer dated 7 November 2011 was not made according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2896 of 2011
| SZQYX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| RODGER SHANAHAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to restrain the first respondent (the Minister) from relying upon a report and recommendation of the second respondent (the Reviewer). The Reviewer’s report is dated 7 November 2011 and was notified to the applicant by letter dated 10 November 2011.
The applicant is from Iran and had made claims of political persecution based upon the making of a film. The following statement of background facts in relation to the applicant’s claims and the Reviewer’s report and recommendation on them is derived from the submissions of the parties.
The applicant is a citizen of Iran. On 17 November 2010 without a visa the applicant arrived in Australia and entered the Territory of Christmas Island which pursuant to s.5(1) Migration Act 1958 (Cth) (the Migration Act) is an “excised offshore place”. The applicant was classified an “unlawful non- citizen”[1] and “offshore entry person”[2]. Pursuant to s.46A of the Migration Act an offshore entry person cannot make a valid application for a visa unless the Minister exercises his discretion under s.46A(2) to permit him to do so.
[1] s.14 Migration Act
[2] s.5(1) Migration Act
The applicant was first interviewed on 24 December 2010 for initial entry processing. He lodged a request for Refugee Status Assessment (RSA) and was interviewed on 15 February 2011. A negative assessment was notified to the applicant on 4 May 2011. The applicant then applied for an Independent Merits Review (IMR) and was interviewed by the Reviewer on 14 October 2011. In his report to the Minister the Reviewer recommends that the applicant does not meet the criterion for a protection visa under s.36(2) of the Migration Act.
The applicant’s claims
The applicant made relevant claims in the initial interview[3], RSA interview[4] and the IMR interview[5] and Submissions in Support of an Application for Independent Merits Review dated 6 October 2011.
[3] court book (CB) 28, 36-38
[4] CB 99–100
[5] CB 143–147
The applicant’s claims were (in brief summary) that as a result of concerns at a false election and the treatment of others by the paramilitary Iranian force known as the Basij he planned to make a film. It was to be made with a friend (Ali) with whom he attended Apteh International College. He planned to use multimedia to screen the film at the French ANNCY short film festival. The film would challenge and be critical of the Government. Ali had written the script and the applicant assisted. They had asked other graphic design students at the college to help make the film.
Ali was arrested at the college. This was because of the plan to make the film and screen it in France. The applicant claimed the security forces searched his own parents’ house on three occasions looking for him. The applicant lived with his grandparents and stayed there to avoid them. The applicant claimed he feared arrest and was fearful of the treatment he would receive from the Government if he returned.
He claimed his father found out through his connections that the applicant was on a “black list” and his father paid a bribe at the airport so the applicant could leave the county. The applicant claimed he had a valid passport.
The applicant’s claims were also contained in the Submissions in Support of an Application for IMR dated 6 October 2011 where the applicant’s claims are summarised and explained. On 12 October 2011 the applicant’s lawyer sent the written submission to the Reviewer[6]. His submissions[7] include a claim regarding the treatment of failed asylum seekers on return to Iran.
[6] SCB 9
[7] at page 44 (supplementary court book (SCB 52))
The applicant attended an interview with the Reviewer on 14 October 2011. On 7 November 2011 the Reviewer made a report recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The decision
The Reviewer found that the applicant was not a reliable or credible witness and that his evidence was unsupported, based upon supposition and, in one key case, contradictory.
First, the Reviewer did not accept the applicant's claim that he would be killed or arrested on return to Iran because of his proposal to make a short film because, while there was information to suggest that filmmakers have been arrested by the Iranians authorities and imprisoned, that information referred to prominent filmmakers who had made and screened films.
Secondly, the applicant’s claim that his friend was arrested rested solely on a phone call claimed to have been received from another friend.
Thirdly, while the applicant claimed that the security forces came to his parents' house three times, he could not explain why they had never sought to find him at another relative's house. The Reviewer found the applicant's claim to have stayed at his grandfather's house unmolested for over a year at the same time the security forces were looking for him was implausible. Similarly, he found that if the applicant was genuinely in fear of his life from the government he would not have waited in the same location for a year before leaving the country.
Fourthly, the applicant gave “contradictory” evidence in respect of his friend’s arrest. The Reviewer found that at his first interview the applicant said that he had never tried to contact his friend but at the IMR interview he claimed that he had unsuccessfully tried to contact the friend using different mobile phones.
The Reviewer did not accept the applicant's claim that he was only able to leave Iran as a result of his father's bribing officials because it was based solely on his assertion that his father had connections from living in Shiraz for a long time. The Reviewer found that even if the applicant was on a blacklist, the country information indicated that airport officials have no discretion to allow a person who is on a blacklist to board an international flight.
For those reasons the Reviewer concluded that the applicant did not have a well founded fear of persecution in Iran for a Convention reason.
The judicial review application
These proceedings began with an application filed on 15 December 2011. The applicant now relies upon a further amended application filed on 29 June 2012. There are three particularised grounds in that application:
1. The Second Respondent failed to afford procedural fairness to the Applicant by failing to consider an integer of the Applicant’s claim and take into account relevant considerations and thereby fell into jurisdictional error.
Particulars
1.1 The Applicant claimed that he was fearful because of the government’s treatment of those who depart Iran and seek asylum abroad and return as failed asylum seekers, and that on his return he may come to the notice of relevant authorities, whether as a failed asylum seeker and/or because he was considered to have departed illegally or so treated in any event.
1.2 Such a claim was based on an imputed political view, being pro-Western, or anti government.
1.3 Alternatively, the claim was based on membership of a particular social group being “failed asylum seekers” returning to Iran.
1.4 The claim was expressly agitated including in the written submissions made on the Applicant’s behalf on page 44 of the “Submissions in support of an Application for Independent Review”.
1.5 There was significant evidence within the country information that supports the claim, including but not limited to:
a) UK Home Office, Country of Origin Report – Iran, 26 January 2010 page 209 to 210.
b) Danish Refugee Council, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc, April 2009, pages 34, 38 to 39.
c) Amnesty International Publications, From protest to prison: Iran one year after the election, 2010, page 55.
d) Bureau of Democracy, Human Rights, and Labour, US Department of State, IRAN: Iran – Country Reports on Human Rights Practices – 2006, 6 March 2007, page 24.
2. The Reviewer failed to comply with the common law rules of procedural fairness by failing to provide the Applicant with an opportunity to [properly] respond to representations of fact made by the Reviewer and thereby put his case better.
Particulars
2.1 The Reviewer put to the Applicant that he had previously stated in the RSA interview “that he had never tried to contact Ali.” (Pg 28 of the Affidavit of Beryl Fitzhenry sworn 4 April 2012).
2.2 In fact, the Applicant did not state in the RSA interview that he never tried to contact Ali. (Affidavit of Ms Beryl Fitzhenry sworn 28 June 2012).
2.3 The Reviewer mistakenly represented to the Applicant a set of circumstances, which were wrong.
2.4 The Applicant relied on the Reviewer’s representation and lost a reasonable opportunity to present his case better.
2.5 The Reviewer failed to afford the Applicant an opportunity to properly respond to these representations and present his case better.
3. Alternatively, the decision of the IMR was based on a factual finding for which there was no evidence.
Particulars
3.1 The IMR found that the Applicant’s evidence which was “central” and/or “key” to his claim was based on contradictory evidence given by the Applicant in the RSA hearing. (Para 61 and 68 of the IMR decision.)
3.2 In fact, the Applicant did not give this evidence in the RSA hearing. (Affidavit of Ms Beryl Fitzhenry sworn 28 June 2012)
I received as evidence the court book filed on 17 February 2012 and a supplementary court book filed on 31 May 2012.
I also received two affidavits by Beryl Fitzhenry made on 4 April 2012 and 28 June 2012. Annexed to those affidavits respectively are transcripts of interviews conducted by the Reviewer and the RSA officer.
Both parties made written and oral submissions. The applicant contends that the Reviewer erred in three respects: first, by failing to consider an integer of his claims, being his fear of harm as a failed asylum seeker should he be required to return to Iran; secondly, by breaching the general law rules of procedural fairness by failing to provide the applicant with an opportunity to respond to the Reviewer’s concerns about inconsistencies in the applicant’s account at the RSA and IMR stages; and thirdly, or in the alternative, by basing the report and recommendation on a factual finding for which there was no evidence.
The Minister denies that the Reviewer fell into error in any of these respects.
Consideration
Ground 1 – Did the Reviewer overlook part of the applicant’s claims?
The first ground of the further amended application is that the Reviewer failed to afford procedural fairness to the applicant by failing to consider an integer of the applicant’s claims. The claim which it is said the Reviewer did not consider was that the applicant was fearful because of the Iranian government's treatment of those who depart Iran and seek asylum abroad and return as failed asylum seekers.
The applicant’s claims concerning his fears were contained in a statutory declaration made on 14 February 2011[8]. In that declaration, the applicant claimed that he believed that the government or its agents would mistreat him if he went back to Iran for trying to make a movie against the regime and trying to get others to join him. In the applicant's submissions to the Reviewer it was submitted that the “applicant's claims are contained in his Statement in support of his Application for Refugee Status Assessment and addressed above”[9]. On page 44 of that submission, the lawyers submitted: “Additionally, the government’s treatment of those who depart Iran and seek asylum abroad, and who are then considered traitors and spies, has been one of excessive violence, force and cruelty.”[10] The Reviewer did not refer to that claim in his reasons.
[8] CB 91
[9] SCB 22
[10] SCB 52
In determining the question of whether a decision-maker is required as a matter of law to consider a particular claim, the “question, ultimately, is whether the case put by the (applicant) before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it"[11].
[11] SGBB v Minister for Immigration (2003) 199 ALR 364 at [18] cited with approval by the Full Court in NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [60]; see also Tuitaalili v Minister for Immigration [2012] FCAFC 24
In the present case, the Minister contends that there was no error on the part of the Reviewer in failing to consider the issue raised by the applicant’s advisors in their submission because the applicant himself never expressed any fear in those terms. Further, the Minister contends that the asserted fear was not supported by any evidence. I disagree and prefer the applicant’s submissions on this issue.
The applicant was clearly concerned about his treatment on return. The applicant expressed subjective fear of returning to Iran at the initial entry interview, the RSA and the IMR[12]. The Reviewer was obliged under the general law, with the assistance provided by the guidelines for IMR Reviewers, to consider all such written material put forward by or on behalf of the applicant[13]. This was recently confirmed by the Full Federal Court in MZYPW v Minister for Immigration[14] at [12]-[14]. Flick and Jagot JJ also said at [24]:
The reasons for the recommendation are the very means by which the Minister is informed of the facts peculiar to each particular claimant and why, if at all, their circumstances warrant allowing them to make an application for a protection visa. They serve a centrally important and fundamental purpose. The document recording the recommendation to the Minister is important to both the claimant and the Minister. Even though it may be accepted that the reasons for a recommendation may not be drafted by those persons with the skills and expertise of an experienced legal practitioner, the reasons must clearly and accurately set forth the claimant’s case and the findings and reasons for either accepting or rejecting those claims. It may safely be assumed that the Minister, when considering a recommendation that has been made, will not always have available to him a member of the Inner Bar to guide him through the text.
[12] Initial interview at CB 36, statutory declaration at CB 92, RSA CB 100 and IMR CB 143 at [16] CB147 at [152] of IMR
[13] In Minister for Immigration v Le [2007] FCA 1318 [81] the Court held “The Tribunal must consider all substantial issues before it even if the Applicant does not clearly articulate all such claims” (see also: NAZH v Ministerfor Immigration [2007] FCA 5).
[14] [2012] FCAFC 99
The written submission before the Reviewer dated 6 October 2011 outlined the applicant’s claim based on imputed political opinion and[15] detailed the applicant’s intention to screen his film in France. The submission refers in terms to the high-profile film directors who have screened films outside Iran. The submission states[16] the applicant’s intended “purpose of the production of the movie was to bring to the worlds attention Iran’s oppression of their people and the link with Sharia law and Politics.”
[15] at pages 2 (SCB 10) and page 5 (SCB 13)
[16] SCB 13
The submissions then outlined the situation in Iran and concluded:[17]
Additionally the government’s treatment of those who depart from Iran and seek asylum abroad and who are then considered traitors and spies has been one of excessive violence, force and cruelty.
[17] SCB 52
An integer of a claim must be expressly raised or squarely arise from the available material. The Courts have held that the use of the term “squarely” does not convey a precise standard. The applicant’s claim was raised in his advisor’s written submissions. There was significant evidence within the country information available to the Reviewer. This claim is clearly raised on the material. The applicant’s earlier written claims were not a pleading and the applicant was entitled to elaborate upon, explain and add to his claims with the assistance of his legal advisers. Where applicants are represented, their claims are principally made on their behalf by their agents, upon whom they are heavily reliant for the articulation of their case[18]. Unfortunately, it is not clear from the Reviewer’s report what consideration he gave to the 45 page submission, although he does specifically refer to earlier and later submissions made on the applicant’s behalf. The following statement at [52] of the report appears to reflect the Reviewer’s understanding of the submission in issue:[19]
The claimant’s advisers have submitted that his fear of persecution is based on his political opinion and religion and arises from the cumulative effect of the disappearance of his friend, the claimant’s awareness of the general insecurity in Iran and the ongoing visits by plain-clothes militia to his parents’ home. The claimant also submitted two English language newspaper articles from 2009: one on the instances of rape in Iranian prison and another on the death. (sic)
[18] See DZACP v Minister for Immigration & Anor [2012] FMCA 570 at [27]
[19] CB 147
In fact, the Reviewer questioned the applicant extensively about the basis upon which he left Iran, legally or illegally[20]. But at no point did the Reviewer consider how the applicant would be treated on return as a failed asylum seeker.
[20] See transcript of the IMR pages 25 and 27
There are numerous references in the country information to the treatment of Iranians on return. These are usually included in the information relating to exit procedures, which the Reviewer purported to have examined in detail[21]. Further, it is clear from the country information that the manner in which a national of Iran leaves the country will be relevant to his treatment on return. The applicant claimed that he left Iran without an exit stamp in his passport. That could not be checked as the applicant no longer has his passport. If there is no record of the applicant departing Iran lawfully, there is a possibility he could be questioned on return[22]. However, the Reviewer did not consider if the applicant would come to the attention of the authorities on return.
[21] Danish Refugee Council, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc, April 2009, pages 35-41; Amnesty International Publications, From Protest to Prison: Iran one year after the election, 2010, pages 53-55; UK Home Office, Country of Origin Report – Iran, 26 January 2010, pages 208-210 & pages 218-226; Bureau of Democracy, Human Rights, and Labour, US Department of State, IRAN: Iran – Country Reports on Human Rights Practices – 2006, 6 March 2007, page 24; Research Directorate Immigration & Refugee Board of Canada, Ottawa, Entry and Exit Procedures
[22] see UK Report, pages 210-211
This is a matter the Minister should have been informed about[23].
[23] see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [60]
The applicant’s submissions advance two alternative Convention nexuses for the applicant’s claim. The first is imputed political opinion and the second is membership of a particular social group. I do not think anything turns on that. Either or both connections to the Refugees Convention were available for consideration by the Reviewer.
The claim was specifically agitated by the claimant’s advisors[24]. The claim required consideration by the Reviewer and because it was not considered, the applicant should receive the injunctive and declaratory relief he seeks.
Ground 2 – Did the Reviewer fail to accord procedural fairness in relation to his adverse credibility assessment?
[24] see “Submissions in Support of an Application for Independent Review”, page 44
The second ground is that the Reviewer failed to afford procedural fairness by failing to provide the applicant with an opportunity to properly respond to representations of fact made by the Reviewer and thereby put his case better. The basis for this ground is the allegation that at the IMR interview the Reviewer put to the applicant that he had previously stated in the RSA interview “that he had never tried to contact Ali”[25]. However, the applicant never stated in the RSA interview that he never tried to contact Ali[26]. The applicant claims that there was no inconsistency and that he should have been given the opportunity to point this out to the Reviewer.
[25] page 28 of IMR interview
[26] see page 23 of RSA interview
Central to the applicant’s story was his relationship with Ali and the effect Ali’s disappearance had on him. The applicant stated in the RSA interview[27] he and Ali were “kind of fairly intimate friends”. In the IMR interview the applicant stated he was “my close friend”[28].
[27] page 22 of transcript
[28] see page 21
At the IMR interview, the applicant was asked to respond to the proposition of inconsistency but he was not given an opportunity to properly advance his case by checking the transcript and being able to explain the relationship further. The applicant denied he had given the evidence attributed to him in the RSA interview, however he contends that he was not afforded an opportunity to properly respond.
There is force in the applicant’s submission that the Reviewer was mistaken in finding inconsistency in the applicant’s account concerning contact with his friend Ali.
At [61] of his report, the Reviewer stated[29]:
For reasons set out below I did not find the claimant to be a reliable or credible witness. The claimant’s evidence that was central to his claims was unsupported, based on supposition and, in one key case, contradictory.
[29] CB 149
At [67] the Reviewer notes that it is “questionable” that the claimant was not arrested with his friend. At [68] the Reviewer finds “The claimant was also contradictory in his recounting of his response to his allegedly close friend Ali’s arrest.”
The transcript of the IMR and RSA hearings provides some support for the applicant’s contention that his accounts at each stage were not inconsistent concerning his friendship with Ali and his contact with him. However, if the Reviewer was mistaken in finding inconsistency where there was none, it does not necessarily follow that there was a want of procedural fairness. I prefer the Minister’s submissions on this issue.
The premise of this ground is that the applicant was not given the opportunity to “properly advance his case by checking the transcript and being able to explain the relationship further”[30]. The premise cannot be sustained. The purpose of the questions asked at the interview by the Reviewer was to give the applicant an opportunity to address the issues relevant to the decision to be made by the Reviewer. There is no evidence that, having been asked questions about what was said at the first interview, the applicant did not have an opportunity, beyond his own recollection, to assess whether the Reviewer’s understanding of what occurred at the interview was correct. The fact that the opportunity was not taken does not support the proposition that the applicant was denied procedural fairness. It is not the point that, had the applicant been better advised, he could have taken further steps to present a more compelling case or to adduce further evidence inconsistent with the Reviewer’s understanding[31].
[30] applicant’s submissions at [44]
[31] Minister for Immigration v SZNVW (2010) 183 FCR 575 at [30]
The applicant contends that the position in this case is different because he was misled by the Reviewer in the assertion the Reviewer put to him about his evidence at the RSA interview[32]. That consideration, however, depends upon a finding that the proposition put to the applicant by the Reviewer was false, or was not available to be put. For the reasons given in relation to ground 3 below, I am not able to make that finding.
[32] See Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
I reject this ground.
Ground 3 – Did the Reviewer make a factual finding for which there was no evidence?
The third ground is that the decision of the Reviewer was based on a factual finding for which there was no evidence. The finding for which it is said there was no evidence was that the applicant did not contact his friend[33].
[33] applicant's submissions at [57]
The applicant submits that there was “no evidence” supporting the finding the applicant did not contact Ali. The Reviewer’s finding was “central” and “key” to the case. The Reviewer rejected the evidence of the applicant largely on the basis of the finding that the applicant gave contradictory evidence.
The Reviewer found at [68] of his report that the applicant had given contradictory evidence in relation to his relationship with Ali and that he had fabricated his evidence in order to show they were good friends:[34]
The claimant was also contradictory in his recounting of his response to his allegedly close friend Ali’s arrest. During his RSA interview he had said that he never tried to contact Ali. In my IMR interview he claimed that he had unsuccessfully tried to contact Ali after his alleged arrest using several different (and hence untraceable) mobile phones, and claimed not to remember making his RSA statement. Such an inconsistency does not represent a minor difficulty in remembering dates or the specifics of conversations, but more likely an attempt by the claimant to establish concern for his allegedly close friend that he been missing from his evidence in earlier interviews.
[34] CB 150
The Reviewer did not accept the applicant’s evidence as credible, and a material reason given for this or relied on by the Reviewer was the inconsistency.
The applicant submits that he gave consistent evidence in the initial interview, the RSA interview, the IMR and in the written submissions provided to the Reviewer. There is said to be no other basis for finding that the Applicant gave contradictory evidence. It was a material finding the Reviewer gives for rejecting the “key” or “central” part of the applicant’s claim.
The applicant’s fear centred around the disappearance of his friend, the visits to his house by the authorities and the effect this had on him and the likely treatment by the authorities on return.
The Minister contends that the Reviewer did not make a finding whether or not the applicant contacted Ali. The finding made by the Reviewer was that the applicant was not a reliable or credible witness[35]. That finding is said to be clearly supported by evidence, and to not be impugned by the applicant.
[35] CB 149 [61]
I accept the Minister’s submissions, but with some hesitation. The finding that the applicant was not a reliable or credible witness was based upon a number of subsidiary matters: first, that the claimant's evidence central to his claims was unsupported and based on supposition; and secondly that the evidence was in one key case contradictory. The Reviewer detailed these perceived findings at [62]-[72] of his report[36]. The conclusion that the claim that the applicant's evidence was contradictory was, in turn, based upon the Reviewer’s understanding of what the applicant had said during the RSA interview, namely that he had never tried to contact his friend. It is this understanding that is the focus of the attack in ground 3. In order for the ground to be made out, the applicant must establish two things: first, that there was not a skerrick of evidence or other factual material from which that understanding can be drawn; and secondly, that the fact was a “jurisdictional fact”[37].
[36] CB 149-150
[37] Minister for Immigration v SGLB (2004) 207 ALR 12 at [39]; SZAPC v Minister for Immigration [2005] FCA 995 at [47]; VWBFv Minister for Immigration (2006) 154 FCR 302 at 306 (19)
The applicant relies upon the affidavit of Beryl Fitzhenry sworn on 28 June 2012 to support the allegation that there was no evidence from which the Tribunal's understanding could have been drawn. Annexure A to that affidavit is what purports to be a transcript of the interview conducted by the RSA assessor with the applicant. The relevant passages appear to be at pages 23 to 24. At page 24 the following exchange is recorded:
CW: And so you just never heard from Ali again after this time and was picked up by people who [inaudible] from the security forces?
PR: No, I never [inaudible] again.
I infer that the applicant’s response was responsive to the question put to him. It is not apparent that he said anything about whether he sought to contact Ali. However, the fact that Ms Fitzhenry found that the applicant's response to the interviewer's question to be in part inaudible renders more doubtful the contention that there was no evidence for the Reviewer’s understanding of what occurred at that interview.
The Minister also contends that there is nothing in the Migration Act to support the contention that the facts as found by the Reviewer is a precondition of the exercise of any power relevant to these proceedings[38]. For that reason, the question of whether or not the applicant said something at the first interview is said not to be a “jurisdictional fact” and the applicant is said to have not established the second of the two matters required in order to make out this ground.
[38] as to which see SZQDZ v Minister for Immigration (2012) 286 ALR 331
For the reasons I gave in SZQZV v Minister for Immigration & Anor[39] it is, in my view, not apposite to refer to jurisdictional facts in relation to the reports of IMRs. It is preferable to speak of fact finding which was central to the Reviewer’s recommendation. It is true that the Reviewer’s finding of fact concerning the supposed inconsistency in the applicant’s account concerning his contact with Ali was an important consideration for the Reviewer in drawing his adverse credibility conclusion. It was not, however, the only consideration. Further, while it is true that the transcript provides scant support for the Reviewer’s factual finding, I cannot rule out the possibility that the Reviewer may have garnered something more from the record of the RSA interview than is available from the transcript. In my view, while the evidence presented by the applicant in support of this ground is significant, it is insufficient to support a conclusion that there was no evidence whatsoever to support the Reviewer’s factual finding. Accordingly, while the contrary is clearly arguable, I find that this ground is not made out.
[39] [2012] FMCA 472 at [21]
Conclusion
In view of the Reviewer’s failure to consider part of the applicant’s claims, I will make the restraining order and declaration sought in the application.
For the reasons I gave in SZQZV v Minister for Immigration & Anor[40] at [2], I will not grant the order sought to quash the “decision” and neither will I grant a writ of mandamus.
[40] [2012] FMCA 472
I will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 17 August 2012
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