SZQZF v Minister for Immigration
[2013] FMCA 23
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZF v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 23 |
| MIGRATION – Review of recommendation made by an Independent Merits Reviewer – whether reviewer failed to bring to the attention of the applicant, or allow the applicant an opportunity to consider and comment on, information available to the reviewer – whether the reviewer failed to afford the applicant procedural fairness by making findings without any evidence or making references from evidence that were not open to him – whether the reviewer applied the wrong test. |
| Migration Act 1958 (Cth), ss. 36, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 SZQESv Minister for Immigration & Anor [2011] FMCA 876 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal & Ors (1986) 70 ALR 147 United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). |
| Applicant: | SZQZF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2918 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 September 2012 |
| Date of Last Submission: | 23 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms JC McDonald |
| Solicitors for the Applicant: | Rodney Lewis |
| Counsel for the Respondents: | Mr HPT Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 13 December 2011, and amended on 3 September 2012 and further amended on 20 September 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $10,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2918 of 2011
| SZQZF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER (IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER) |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 13 December 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 3 September 2012 and further amended on 20 September 2012, seeking declaratory relief in respect of a recommendation to the first respondent, made by the second respondent, Mr Chris Packer in his capacity as Independent Merits Reviewer (“the reviewer”), on 4 November 2011, that the applicant not be recognised as a person to whom Australia had protection obligations under the United Nations Convention Relating to the Status of Refugees[1] (“the Refugees Convention”).
[1] United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention ”).
The application to the Court also seeks injunctive relief and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (“M61/M69”).
Background
On 17 November 2010, a vessel code-named “Wickham” on which the applicant was travelling was intercepted by the Australian Navy. Consequently the applicant was taken to Christmas Island as an “irregular maritime arrival” (CB 85).
At the time of arrival the applicant claimed that he was a stateless Faili Kurd (CB 2, CB 15.3 and CB 40.8). Consequently, on 24 November 2010, an “entry interview” was conducted with the applicant by an immigration officer, with the assistance of an interpreter, at Christmas Island (CB 10 to CB 31).
Claims to Protection
On 11 February 2011, the applicant made a request for a Refugee Status Assessment (“RSA”). Included with that RSA request was a statement outlining the applicant’s claims to protection in Australia as a refugee (CB 58 to CB 61).
The applicant claimed that his parents became stateless when the Iraqi government would not issue identity cards to them, even though they had both been born in Iraq (CB 58.6). Consequently, the applicant claimed that, in 1980, his parents moved to Iran, where the applicant was born (CB 58). He claimed to be an unregistered Faili Kurd in Iran.
The applicant claimed that during his youth he was denied the opportunity to go to school and “deprived of everyday rights that others had”, and was harassed and beaten by the police because he “did not have an identity” (CB 59.7). This also included difficulties with employment. If returned to Iran the applicant claimed that he would be “detained, imprisoned, tortured and killed” (CB 61.4).
The applicant claimed that he was “frightened” to travel to Iraq because he had grown up in Iran, which had been at war with Iraq. He therefore could not live in Iraq now as a stateless Faili Kurd (CB 59.3).
The Department
On 23 March 2011, the applicant’s representative wrote to the respondent Minister’s department (“the Department”) and provided further submissions to those originally made at the RSA (CB 73 to CB 82).
On 24 March 2011, the Department wrote to the applicant and informed him that it had been determined that he was not a “refugee” as defined by the Refugees Convention (CB 83 to CB 101).
Independent Merits Review
On 19 May 2011, the applicant applied for an Independent Merits Review of the RSA (CB 108 to CB 114). On 14 September 2011, the reviewer received submissions from the applicant’s representative in support of his review application (CB 115 to CB 136). On 20 September 2011, the reviewer conducted an interview with the applicant who was assisted by his representative. Further submissions where provided to the reviewer on 10 October 2011 (CB 137 to CB 144).
On 4 November 2011, the reviewer made a recommendation to the first respondent that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention.
The reviewer understood the issues arising from the applicant’s claims to be:
1)Whether the applicant was not a citizen of Iran and was therefore stateless?
2)Whether the applicant, noting that he was a Faili Kurd, had the right to enter and reside in Iran?
3)Whether as a failed asylum seeker returning to Iran the applicant would face persecution?
Given the thrust of the applicant’s complaints before the Court, it is important to note that the reviewer found that the applicant was not a witness of truth and that much of his “story” was not true. Before the Court the applicant’s arguments reveal that he either did not note this plainly obvious feature of the reviewer’s analysis or, if he did, he did not understand its significance and relevance to the disposition of much of the grounds of his application to the Court.
The reviewer’s disbelief of the applicant’s claims was central to the reviewer’s finding that the applicant was not a stateless Faili Kurd. At [185] (at CB 188) of the reviewer’s statement of reasons, the reviewer noted that the applicant’s “evidence became vague” when the reviewer asked questions concerning where his parents had been born and where they had lived in Iraq. The reviewer noted that the applicant stated that he “had not been curious” about where his parents were born ([185] at CB 188). However, the reviewer found that this explanation was “… not credible in the light of the significance of the family history to the claimant, particularly as he claims to be stateless [and therefore] his vague evidence about the family antecedents in Iraq raises concerns as to whether they were in fact displaced Iraqis and stateless” ([185] at CB 188).
Further, this claim was undermined by the applicant’s evidence that the reason why his parents had not been issued “Amayesh cards” (identity cards) was because they were considered Iranians rather than Iraqis ([186] at CB 188).
The reviewer relied on the applicant’s evidence that all of his grandparents were from Iran and that his family’s long residence in Tehran suggested to the reviewer that his family had maintained a “settled and comfortable” life in Tehran and had always been recognised as Iranian nationals ([187] and [189] at CB 189 and [196] at CB 191 to CB 192).
The reviewer noted the applicant’s “changeable and often vague evidence” in regard to the claimed harassment he received while working as an unregistered self-employed labourer ([192] at CB 190 and [193] and [195] at CB 191). Although the reviewer accepted that the applicant had been brought to the adverse attention of Tehran council officials (because he did not have the required licence, insurance and uniform) the reviewer found that this did not extend to the applicant coming to “… the adverse attention of the police, Basij or any other Iranian authorities for reason of being stateless, undocumented, an imputed Iraqi or a Faili Kurd or any combination of these” ([193] at CB 191). Nevertheless, the applicant’s statement that he wore Kurdish pants where he worked caused the reviewer to find that this decision by the applicant strongly suggested that he did not have a subjective fear of being identified as Kurdish at his workplace ([194] at CB 191).
Ultimately, the reviewer concluded that the applicant was ethnically a Faili Kurd, but that he was not stateless as was claimed and, therefore, he was not at risk of “deportation” from Iran for this reason ([198] – [199] at CB 193). Nor did the reviewer accept that the applicant had a profile such as to come to the adverse attention of the authorities and suffer persecution for a Refugees Convention reason ([202] at CB 194 and [205] at CB 194 to CB 195). The reviewer did accept that, if returned to Iran, the applicant may face questioning, detention and possibly a fine because he was a returnee failed asylum seeker. However, the reviewer found that this conduct would not amount to “serious harm” in the Refugees Convention sense ([203] at CB 194).
Further, and contrary to what was asserted by the applicant, the reviewer found that the applicant had not left Iran illegally. That was based on the reviewer’s finding that the applicant had left Iran without any difficulty and that, if he had used a false passport, he would have done so in circumstances where he would have undergone strict security checks at the relevant airport ([204] at CB 194). Therefore, in the absence of any difficulty, the reviewer found that the applicant used a genuine Iranian passport.
Consequently, in light of the above findings, the reviewer did not consider it necessary to assess whether the applicant had, or was able to obtain, Iraqi nationality ([207] at CB 195) as he found that the applicant had a right to enter and reside in Iran and that if the applicant returned to Iran he had not, and would not in the reasonably foreseeable future, face persecution for a Refugees Convention reason ([208] at CB 195).
Application to the Court
The applicant applied to the Court on 13 December 2011. On 3 September 2012 an amended application, initially ordered by the Court, was filed out of the time. Leave was granted at the final hearing for the applicant to rely on that amended application.
Also during the final hearing, the applicant sought leave to raise an additional ground not pleaded in the amended application. Ultimately, leave was granted for the applicant to file a further amended application, and any written submissions with respect to that further amended application, by 20 September 2011. The Minister was granted leave to file any written submissions in reply by 19 October 2012.
A further amended application, and further written submissions, were filed by the applicant on 20 September 2011. The respondent Minister filed further written submissions, with the leave of the Court, on 23 October 2012.
The further amended application is in the following terms:
“That the decision of the Independent Protection Assessment Reviewer (Reviewer) was affected by legal error in that:
1. The Reviewer, in reaching his recommendation dated 4 November 2011 (IMR), did not observe procedural fairness requirements in that he did not bring to the attention of the Applicant or allow the Applicant an opportunity to consider or comment on information known to the Reviewer which the Reviewer considered may bear upon the Applicant’s claim and from which the Reviewer drew conclusions adverse to the Applicant’s claims, namely that the Applicant was not stateless and was not an undocumented Faili Kurd and/or failed to put that information to the Applicant accurately and so misled the Applicant.
Particulars
The Reviewer informed the Applicant during the IMR interview that he had information ‘that the great majority of Faili Kurds in Iran are in fact Iranian nationals’ when in fact none of the country information referred to in the IMR Statement of Reasons makes this assertion.
Further, the Reviewer in reaching his recommendation drew upon information from the following material, the substance of which was not accurately put, either in the course of the review or at any other time prior to the recommendation:
Material contained in Exhibit ‘App 2’ being country information referred to at [128] – [135] of the IMR Statement of Reasons.
2. The Reviewer, in reaching his recommendation did not afford procedural fairness to the Applicant when he found at [199] and [208], without any evidence before him or in the alternative, by making references from evidence that were not open to him as a matter of law, that the Applicant had a right to enter and reside in Iran, and would not risk deportation.
3. The Reviewer, in reaching his recommendation did not afford procedural fairness to the Applicant when he found at [204] without any evidence before him or in the alternative, by making inferences from evidence that were not open to him as a matter of law, that the Applicant had departed Iran using a genuine Iranian passport.
4. The Reviewer, in reaching his recommendation, made a jurisdictional error by applying the wrong test as to what constituted a stateless person as he equated a right to obtain citizenship with nationality and so concluded, on the basis that the Applicant had paternal ancestors that were born in Iran, that the Applicant was not stateless and undocumented.”
Before the Court
At the final hearing Ms JC McDonald of counsel appeared for the applicant. Mr HPT Bevan of counsel appeared for the first respondent.
The Court had before it the Court Book and written submissions filed on behalf of the applicant and the respondent Minister. In addition, the applicant sought leave, which was granted with no objection, to read and rely on the affidavit of Janelle Therese Adams, sworn on 10 May 2010, which annexed a transcript (“T”) of the interview with the reviewer.
The applicant tendered two exhibits, with no objection by the respondent, being a “CD” containing copies of all country information relied on by the reviewer (Applicant’s Exhibit 1 – “AE1”) and a printed bundle of that country information (Applicant’s Exhibit 2 – “AE2”).
Ground One: Submissions
Ground one asserts a failure by the reviewer to afford procedural fairness to the applicant. This is stated in the ground to be revealed as a failure to put certain country information to the applicant for comment. This is said to be material which the reviewer used to base his findings that the applicant was not stateless and was not an undocumented Faili Kurd.
Before the Court, the applicant made clear that ground one was comprised of two complaints. First, that the reviewer denied the applicant procedural fairness as country information was misrepresented to the applicant. Second, that the reviewer did not have country information before him that provided a basis for what he told the applicant about the country information.
The applicant’s ground was initially particularised with respect to three pieces of country information. Further, the applicant’s written submissions addressed all three pieces of country information (see [13], [19], [23] and [26] of the applicant’s written submissions). However, before the Court, and following receipt of the Minister’s written submissions, the applicant conceded that the latter two documents (“The Injustice” and “Country Information Report No.337/99 – Status of Iraqi Refugees in Iran” – see particulars (b) and (c) to ground one) were not “supportive” of the point that the applicant was making and, in light of that, the applicant was not going to “refer” to the other two documents. I note that particulars (b) and (c) to ground one, as they appeared in the amended application, were not present in the further amended application.
Although the further amended application made reference to country information at [128] (at CB 169) to [135] (at CB 171), I understood the thrust of the applicant’s complaint to be made in relation to the first piece of country information. That is the “DIAC Country Information Service, 2011, Response to IRN 11487: Iran – Faili Kurds, (sourced from Department of Foreign Affairs and Trade (“DFAT”) advice of 16 March 2011) 27 April 2011”. That document was referred to by the reviewer at [135] (at CB 171) and [183] (at CB 188). Further, the applicant contended that, by inference, that document was referred to at [184] and [186] (at CB 188) of the reviewer’s statement of reasons (although see below, it is only one piece of country information relied on by the reviewer in this regard).
In respect of the first complaint, that the reviewer misrepresented the country information, that complaint was particularised with reference to the reviewer’s statement to the applicant, during the interview, that he had information “that the great majority of Faili Kurds in Iran are in fact Iranian nationals” (Transcript – “T” – T 28.4). The reviewer went on to state that:
“… For example, the UNHCR has said in 2008 that there are believed to be around 7,000 registered Faili Kurd refugees remaining in Iran. Other reports have referred to, for example, an Australian Department of Foreign Affairs report in March 2010 report that there could be a further 4,000 unregistered Iraqi refugees and some of those would be Faili Kurds. A Faili Kurd website has indicated that the overall population of Faili Kurds is about 2.5 million in Iraq and 3 million in Iran. So my point with that is that the vast majority of Faili Kurds in Iran are in fact Iranian nationals.”
It was the applicant’s submission that what the reviewer put to the applicant was “plainly inaccurate” and, as the applicant had no means of knowing during the interview that the information put to him was “incorrect”, the applicant was denied the opportunity to “properly respond” to the information. As a result, the applicant was denied procedural fairness.
In support of this complaint, the applicant referred the Court to the judgment of Lander J in Minister for Immigration & Multicultural & Indigenous Affairs v Applicant M1031/03 [2005] FCA 388 (“Applicant M1031/03”) at [59] – [62]. That case was said to be cited subsequently, with approval, by Barnes FM in SZQESv Minister for Immigration & Anor [2011] FMCA 876 (“SZQES”) and Turner FM in SZIAQ v Minister for Immigration & Anor [2007] FMCA 2021 (“SZIAQ”). In particular, that the principle drawn from that case was that the reviewer was required to put the country information to the applicant, for comment, in a “balanced” fashion. It was the applicant’s contention that, in the current case, the reviewer had not done so as the reviewer had misled the applicant as to the nature of the information.
The applicant’s second complaint was that there was no information available to the reviewer to support the proposition put by him to the applicant. That is, that “the great majority of Faili Kurds in Iran are in fact Iranian nationals”. In his statement of reasons, the reviewer referred to “country information” which “shows the large majority of Faili Kurds in Iran are Iranian nationals” ([199] at CB 193). That statement is made with reference to “‘Faili Kurds in Iran’” which, in context, is a reference to the various pieces of country information referred to at [128] (at CB 169) to [135] (at CB 171) of the statement of reasons. It was the applicant’s submission that none of those various pieces of country information stated that “… the great majority of Faili Kurds in Iran are Iranian nationals”. Nor, in the applicant’s submission, was that conclusion open on the country information available to the reviewer.
It was the applicant’s contention that, in the absence of evidence and given the reviewer’s reliance on this “so-called fact” in founding his recommendation and, specifically, his finding that the applicant was not “stateless or undocumented or a displaced/stateless Iraqi” ([199] at CB 193), that finding, and the reviewer’s recommendation, were brought into error.
In response, the Minister submitted that the reviewer’s finding that the applicant was not “stateless or undocumented or a displaced/stateless Iraqi” was properly based not only on the impugned country information, but also the applicant’s evidence and “in light of the foregoing”, being, amongst other things, the reviewer’s adverse credibility finding ([198] at CB 192 to CB 193).
In answer to the applicant’s first complaint, that the reviewer misrepresented the information to the applicant, the respondent submitted that this complaint could not be made out when regard was had to the transcript of the interview. In particular, at T 28, the reviewer accurately set out the substance of the information. That is reflected in the reviewer’s statement of reasons at [97] (at CB 163) to [99] (at CB 164).
In response to the applicant’s complaint that the reviewer should have referred specifically to the document or its “substance” ([19] – [20] of the applicant’s written submissions), the respondent submitted that it was not clear what the “substance” to which the applicant now refers is. Nor was it apparent that the information in the document was adverse to the applicant’s claims, particularly given that the applicant’s own evidence regarding Faili Kurds of Iraqi origin reflected the country information (with reference to T28 and [99] at CB 164).
In respect of the applicant’s second complaint under this ground, the respondent Minister submitted that the country information cited by the reviewer showed that (at [13] of the respondent’s written submissions):
“(a) Faili Kurds live on both sides of the Iran-Iraq border;
(b) Faili Kurds on the Iranian side live in Iran in the provinces of Kirmashan and Ilam and southward (although they are not called “Faylee Kurds”);
(c) there are 2.5 million Faili Kurds in Iraq and 3 million Faili Kurds in Iran;
(d) about ‘half a million’ Faili Kurds were expelled from Iraq in 1980;
(e) the number of Faili Kurds of Iraqi origin in Iran who are registered was described as ‘low’, with the UNHCR giving an estimate of ‘7,000’ in 2008/2009;
(f) the number of Faili Kurds of Iraqi origin in Iran who are unregistered is not ‘precisely known’, with DFAT giving a figure of ‘a further 4,000 unregistered Iraqi refugees’.”
[Footnotes and emphasis omitted].
In light of that information and “… given the relative figures (3 million Faili Kurds in Iran and the comparatively low numbers of Faili Kurds of Iraqi origin in Iran, whether registered or unregistered)” ([14] of the Minister’s written submissions – emphasis in the original), the Minister submitted that the reviewer’s description of the country information was open to him on the material available. That is, that he was drawing from the country information and concluding that the vast majority of Faili Kurds in Iran are in fact Iranian nationals.
Although not conceded, the Minister submitted that, even if the reviewer did make an error, it would be an error as to a finding of fact, or an error in reasoning in finding a fact, neither of which are jurisdictional errors.
Ground One: Consideration
There is, of course, a distinction between examining findings of fact for the purpose of challenging them and considering such findings for the purpose of determining whether they were reasonably open to the relevant decision maker to make on what was before him or her. Sometimes the line between the two is blurred by applicants in matters of this type.
First, it is important to note, as the Minister submits, that the reviewer’s finding that the applicant’s ethnicity was as a Faili Kurd, did not mean, on its own and consequently, that he was stateless and undocumented in Iran or a displaced Iraqi. The applicant’s own evidence was a factor in this finding, as is made quite clear in the statement of reasons (see [199] at CB 193). This is plainly informed by the reviewer’s findings (essentially at [198] at CB 192 to CB 193) based on the applicant’s own evidence of his personal circumstances and those of his family and, in context of the reviewer’s “serious concerns” about the applicant’s credibility.
All those findings were reasonably open to the reviewer on what was before him. No legal error is apparent here.
At [199] (at CB 193), the reviewer made specific reference to country information which he said “…shows the large majority of Faili Kurds in Iran are Iranian nationals”. The footnote to this proposition refers to the heading elsewhere in the statement of reasons of: “Faili Kurds in Iran”. In context, that is the information referred to at [128] at CB 169 to [135] at CB 171.
It is the case that the actual words used by the reviewer in the impugned part of his statement of record are not to be found in those precise terms in the country information he relied upon. However, the role of the reviewer is to chose, analyse, consider and weigh the country information considered to be relevant to the disposition of the case before him, to do so in light of other evidence before him and to make findings based on this evidence to support the conclusion reached by him.
Any direct “parroting” of the country information, while not necessarily revealing legal error in itself, may give rise to the concern that a reviewer has not properly considered the material. That is not the situation in this case.
The reviewer’s relevant finding was that being a Faili Kurd (“ethnicity”) on its own does not necessarily translate into being stateless or undocumented in Iran or a displaced Iraqi. While a different reviewer may have come to a different view of the country information, there was sufficient in the material before this reviewer to form the probative basis for the finding.
There was certainly evidence to support an opposing view:
1)The number of Faili Kurd refugees in Iran who held Amayesh cards in Iran is low ([132] – [133] at CB 170).
2)The number of unregistered Faili Kurds may be “significant” ([135] at CB 171).
However, there was also evidence to support the view taken by the reviewer:
1)The number of “unregistered” Faili Kurds was not “precisely” known ([134] at CB 171). Plainly this allows for the view that, at least some are registered.
2)It is “not possible to estimate the number of unregistered Faili Kurds” (DFAT, 16 March 2011 – [135] at CB 171), again allowing that some are “legal”.
3)48,000 Iraqi refugees were registered with Iranian authorities (in context, in 2010), 4,000 were unregistered and could not be issued with documents ([134] at CB 171).
4)While one source reported a “significant” number unregistered, another DFAT source “disagreed” ([135] at CB 171).
5)A DFAT report surmised that it was probable that the majority of Faili Kurd refugees in Iran are registered and have “Amayesh cards” ([135] at CB 171).
What must also be emphasised is that the reviewer found that the applicant was not a witness of credit. For reasons he gave, this assessment was open to the reviewer. However its relevance to the disposition of ground one is that it is an important element that “tipped” the reviewer toward finding that, contrary to the applicant’s assertions, the applicant was not undocumented and the like.
This finding is also supported by the circumstances otherwise presented by the applicant (“…that of the claimant’s evidence that I do accept…” – [199] at CB 193). For example, the applicant lived in Tehran from when he was a child “without great difficulty” ([188] at CB 189). Further, and for example, “their (the applicant’s family) long residence in Tehran suggests the family had a legal basis for remaining there” ([189] at CB 189). The analysis at [189] (at CB 189) with reference to the applicant’s family’s living situation is also an element in the reviewer’s finding that the applicant was not stateless or undocumented.
The complaint that the reviewer “misrepresented” the country information to the applicant cannot be sustained when regard is had to the transcript of the interview provided by the applicant to the Court now (see, for example, at T28 and compare with country information as reported by the reviewer in his statement of reasons).
Before the Court the applicant submitted a (large) bundle of documents being various country information reports (AE2). His counsel invited the Court to read this material and that, in that event, the Court would find that there was nothing to support the reviewer’s conclusion. Here again, the information does not contain a statement in the exact impugned terms, as best as can be ascertained, by the reviewer.
The evaluation of this material, while probative of a contrary view is also probative of the reviewer’s conclusion. Such are the vagaries of country information reporting, and the “chance” allocation of the applicant’s case to the reviewer who took a particular view, as opposed to another reviewer who may have taken a different view.
Whatever the case, it is not for the Court to conduct any such evaluation and to then substitute its own findings. In saying this, I note that the applicant did not specifically ask the Court to do this but, given the variable nature of the country information, that is the implication in his submission.
In submissions the applicant also emphasised that the reviewer relied on, but did not put to him, Department of Immigration and Citizenship (“DIAC”) Country Information Service 2011, Response to IRN 11487: Iran – Faili Kurds, (sourced from DFAT advice of 16 March 2011) 27 April 2011 (annexure “A” to the applicant’s written submissions). This underpinned the one main thrust of the applicant’s complaint before the Court. That is, that the reviewer found that “the majority of Faili Kurds in Iran are Iranian nationals” (see [199] at CB 193).
The complaint is that there was no evidence to support this proposition. I understood this to be distinct from the complaint above which, in essence, dealt with the “insufficiency” of evidence, even though expressed implicitly as a “no evidence” attack. The other limb of this attack, again was that the reviewer misrepresented the situation to the applicant thus engaging such authorities as Applicant M1031/03, SZQES and SZIAQ.
It is important to note the reviewer’s actual findings, in context, here:
1)At [199] at CB 193:
“I accept the claimant is a Faili Kurd. However, I do not accept that his ethnicity therefore means he is stateless or undocumented or a displaced/stateless Iraqi. Country information shows the large majority of Faili Kurds in Iran are Iranian nationals. Based upon country information and that of the claimant’s evidence that I do accept, and in the light of the foregoing, I accept the claimant resided in Iran but do not accept that he resided there as a non-citizen and/or undocumented and/or stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation.”
[Footnotes omitted. Emphasis added.]
2)At [208] at CB 195:
“I find that the claimant is not stateless and/or an undocumented Faili Kurd. I find that he was not born to stateless/displaced Iraqi refugees. I find that he has a right to enter and reside in Iran. I reject his claims that he faces discrimination and persecution in Iran on the basis of being a stateless and/or undocumented Faili Kurd born to parents from Iraq however described. I do not accept he faces persecution on the Convention ground of nationality, or as a member of a particular social group consisting of nationality or those lacking a nationality (such as undocumented refugees of Iraqi origin).”
[Emphasis added.]
[Noting also [198] at CB 193 dealing with the matters set out above.]
The Minister’s response was most illuminating. First, he reminded the Court that the determination of such complaints are not be dealt with in the abstract. What the reviewer did, how he reasoned and what he drew upon, must relate to the applicant’s claims as ultimately presented.
In this regard, relevant to this ground, the applicant’s claims to fear persecutory harm were understood by the reviewer to be ([173] at CB 185 to [175] at CB 186):
“[173] …
●He is ethnically a Faili Kurd, born in Iran to parents who had been born in Iraq but were stateless, and who had travelled to Iran in or about 1980. Accordingly, he is not an Iranian national and, in all the circumstances, is stateless. He has no right to enter and reside in Iran (or Iraq).
● As a Faili Kurd in Iran, born to parents from Iraq, stateless and with no identity documents, he suffered discrimination in the past and would face discrimination in the future. The discrimination largely concerns lack of access to: education, work, comparable wages, insurance, a bank account, public medical care and subsidisation, freedom of movement within the country, property ownership/rental, marriage registration and recourse to the law.
● He fears the police who ask for ID, harass and beat him, and say he should go back to Iraq (statement of 11 February 2011).
● He suffered discrimination and harm in the past: when he worked in Tehran’s bazaar his trolley was confiscated many times by Tehran council agents (interview on 24 November 2010); occasionally the police/authorities picked on him and maybe beat him but nothing serious (interview on 24 November 2010); the police would verbally abuse him, and ‘several times’ or ‘often’ the police beat him (statement of 11 February 2011); one time the police pushed over his trolley and did not permit him to reload the boxes and beat him (statement of 11 February 2011); the police confiscated his trolley every couple of month, 6-8 times, many times (interview on 16 February 2011); he was harassed because of his work and lack of documents (interview on 16 February 2011).
● A submission dated 14 September 2011 indicated the claimant now states the reference to ‘police’ in his statement of 11 February 2011 should have been references to the ‘Basij’. Most times it was in fact the Basiji who harassed him. It also indicated in addition to other claims, the claimant had suffered ‘arbitrary arrest, detention and beating’.
●At my interview on 20 September 2011 he stated the Basiji beat him and took his trolley many times. Later he stated his trolley was confiscated 2 or 3 times by the council. When I pointed out concerns with his changeable evidence, he stated the police, the council, they are all connected.
● The claimant’s mother has been unable to have heart surgery as it costs too much.
● He fears that if he returns to Iran he will be detained, imprisoned, tortured and killed. He may be accused of being a spy and against the government, because he is stateless and does not hold travel documents (statement of 11 February 2011) or because he has no documents (interview on 16 February 2011).
● He fears to return to Iran because he departed on a photo-substituted/false passport.
[174] Submissions argue the claimant faces serious harm in Iran because of: his ethnicity (Faili Kurd); imputed nationality (imputed to be Iraqi or non-Iranian); membership of a particular social group (such as undocumented Faili Kurds, undocumented refugees of Iraqi origin, returned asylum seekers from the West), and his political opinion (returned failed asylum seekers from the West).
[175] I have considered cumulatively all of his claims to be a refugee.”
There was no dispute before the Court by the applicant that this was an accurate summary of his claims.
The reviewer accepted some of the applicant’s claims. For example, that the applicant was a Faili Kurd and his family had lived in Tehran for some time.
The impugned finding arising from the reviewer’s understanding of the country information and the applicant’s own evidence is mirrored by what the reviewer told the applicant at the hearing (T28.4):
“The information I have is that the great majority of Faili Kurds in Iran are in fact Iranian nationals…”
This must be seen in the context of the country information (already referred to above) and the reviewer’s analysis of that information. The reviewer’s thinking in this regard can be traced by what he subsequently told the applicant at the interview.
In essence, and relevantly, this was that the United Nations High Commission for Refugees (“UNHCR”) said, in 2008, there were 7,000 “registered” Faili Kurd refugees remaining in Iran. This number was augmented, in a report from DFAT, that there were a further 4,000 unregistered Iranian refugees who could not be given documentation. Some of these would be Faili Kurds.
The reviewer then referred to other information before him that the “overall” population of Faili Kurds is about 2.5 million in Iran and 3 million in Iraq. This comparative analysis (with the figures above) formed the basis for the reviewer’s impugned finding.
Plainly, there was no express statement in the country information, as reported and recorded by the reviewer, that the majority of Faili Kurds in Iran are Iranian nationals. But, as set out above, the reviewer came to this conclusion, as he was entitled to do and as was reasonably open to him on what was before him.
The charge that there was no evidence to support the finding is not made out. When regard is had to each of the pieces of information set out above (at [68] – [69]) and referred to by the reviewer, and their focus, it cannot be said that the reviewer misrepresented what each said, or that he otherwise misled the applicant. That there may have been other information that may have supported a different view does not reveal legal error. The charge that the reviewer did not give to the applicant information on which his finding was made cannot be made out.
This can also be seen with reference to the transcript of the interview. The applicant clearly understood what the reviewer was saying when he responded (T28.5):
“[Applicant]: They probably have identification document from Iraq and they probably have properties and land and because of the property and the land they could receive identification document and since then they have all these identification document. We have two types of Kurdish Faili people. We have the Kurdish people that they have ID’s and we have the ones that are stateless they don’t have any ID’s.”
What follows is further reference by the reviewer to other country information (T28.6):
“Reviewer: And the information I have suggests that the stateless Faili Kurds are a very small number now.”
The applicant’s reply to that is recorded as (T28.7):
“[Applicant]: There are some people that have ID’s as I said. There are some people that they have got green cards, some have white cards, but we have neither of them and I don’t even know what they look like.”
The importance of the reviewer’s subsequent analysis of the applicant’s own personal circumstances in all of this, as referred to above, is plainly seen with what the reviewer then said (T28.8):
“Reviewer: And indeed sir that’s why I have been asking a lot of questions of you and your life in Iran and the life of your family members.”
Further, as also referred to above, the applicant also understood that what was at issue was the credibility of his account, particularly in relation to the question of documentation (T28.9):
“[Applicant]: What I am telling you is the truth. As I said before on the ? he doesn’t have any identification document but I am pretty sure that they have the green and white but we see neither of them.”
As can be seen at the foot of T28 and the following pages of the transcript, in the above context, the reviewer then turned to explore with the applicant his, and his family’s, specific circumstances.
On the question of nationality, that is specifically also as the applicant’s circumstances presented, the reviewer reasoned ([187] at CB 189):
“Iranian nationality laws show that Iranian nationality descends through fathers. The claimant states his paternal grandfather came from Iran and went to Iraq for work. Indeed, he states all of his grandparents came from Iran. Importantly, this family antecedent suggests the paternal grandfather was an Iranian national, the father was therefore an Iranian national, and so the claimant is an Iranian national by descent…”
[Emphasis in original.]
This is an important part of the reviewer’s reasoning. Whatever the situation generally for Faili Kurds in Iran who have been expelled from Iraq, in the applicant’s particular circumstances (including that his paternal grandfather was an Iranian national and his other relatives live in Iran), it was open to the reviewer to find, on the applicant’s evidence that he was an Iranian national. The country information relied on here was probative of the descent of Iranian citizenship (see in particular [148] at CB 176). The exchange at the interview and the relevant parts of the record relating to the applicant’s family’s long term residence in Iran are all part of the context that support the reviewer’s relevant finding.
In submissions, the applicant also complained that the reviewer failed to put a specific document to him, or the substance of the document (DIAC country information – see [19] of the applicant’s written submissions). That submission does not assist the applicant.
Procedural fairness may require, in some circumstances, that an actual document, or the actual text of a document, be put to the applicant. But this is not one of those cases. The overarching procedural fairness principle here is that the applicant knows the substance of the case against him, and be given the opportunity to respond or comment. That this is so where the information is credible, relevant and significant to the recommendation (Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550 at 639 – in the current circumstances, it is not necessary to distinguish between a “decision” and a “recommendation”).
In the current case the matter of documentation and the applicant’s status in Iran was plainly an “important plank” (with reference to Minister for Immigration & Multicultural & Indigenous Affairs v Applicants S194 of 2002 [2003] FCAFC 273 at [17]) in the reviewer’s reasoning. The information on which the reviewer relied in relation to that issue was exposed to the applicant and he was given the opportunity to respond in a meaningful way (see WAFV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 240 and as set out above at [72] – [76] above). The substance of the information put to the applicant was sufficient to allow him to know the case against him and to respond. Further, the applicant responded.
In all, ground one is not made out.
Grounds Two and Three: Submissions
Grounds two and three of the further amended application reflect the applicant’s third general complaint before the Court. That is, that the reviewer denied the applicant procedural fairness when he made findings without any evidence or, in the alternate, made findings by making inferences from evidence that were not open to him as a matter of law concerning Iranian nationality. This has been, in part, addressed above in respect of ground one.
Before the Court, the specific error was said to have been committed by the reviewer in relation to his finding that the applicant was an Iranian national. I note that that “finding” was “implied” by the reviewer’s findings that the applicant was not a stateless Faili Kurd and was not undocumented ([198] at CB 193), yet he had “a right to enter and reside in Iran and would not risk deportation” ([199] at CB 193 and [208] at CB 195).
This finding was said to have been reached on the basis that ([31] of the applicant’s written submissions):
“a. the large majority of Faili Kurds in Iran are Iranian nationals;
b. the Applicant did not know where in Iraq his parents were born;
c. the Applicant did not know who sponsored his parents when they left the refugee camp;
d. Iraqi refugees who left camps at the relevant time were generally given Amayesh cards;
e. pursuant to Iranian nationality laws Iranian nationality descents through fathers;
f. all of the Applicant’s grandparents came from Iran;
g. the family had resided for a long time in Tehran;
h. the family was able to rent a home villa in Tehran;
i. that the Applicant had never been arrested or detained;
j. the Applicant had not come to the adverse attention of the Iranian authorities or Basiji in Ilam province or whilst travelling in Ilam province;
k. the Applicant had a ‘significant number’ of relatives residing and working in Ilam province;
l. the Applicant was able to gather a significant sum in order to travel to Christmas Island;
m. the Applicant departed Iman Khomeini International Airport without difficulty.”
[Footnotes omitted.]
The applicant submitted that there was no “direct evidence” to support the reviewer’s finding that the applicant was an Iranian national. Rather, that the reviewer had relied on “circumstantial” evidence and had “preferred” an explanation that the applicant was an Iranian national over the applicant’s claims that he was a stateless undocumented Faili Kurd. That was said to be “despite the fact” that the RSA had not found the applicant to be an Iranian national ([33] of the applicant’s written submissions).
Further, that the evidence set out at [86] above, while providing a basis for the reviewer to conclude that the applicant was from Iran, did not provide a basis for the reviewer to find that the applicant was a citizen of Iran. It was the applicant’s submission that being of Iranian origin was a different proposition to being an Iranian citizen and, in finding the latter, the reviewer went “too far” and did so without any evidence.
Further, the applicant submitted that, while the reviewer drew on the matters set out at [86] above, specifically matters (b) to (m), the reviewer’s inferred finding of nationality was “fundamentally premised” on country information that shows that “the large majority of Faili Kurds in Iran are Iranian nationals”. That is, the impugned country information the subject of ground one. The reviewer’s alleged reliance on that country information was said to be revealed by [199] (at CB 193) of his statement of reasons:
“I accept the claimant is a Faili Kurd. However, I do not accept that his ethnicity therefore means he is stateless or undocumented or a displaced/stateless Iraqi. Country information shows the large majority of Faili Kurds in Iran are Iranian nationals. Based upon country information and that of the claimant’s evidence that I do accept, and in light of the foregoing, I accept the claimant resided in Iran but do not accept that he resided there as a non-citizen and/or undocumented and/or stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation.”
[Emphasis added as per [34] of the applicant’s written submissions.]
In support of this complaint, the applicant referred the Court to Re Pochi and Minister for Immigration & Ethnic Affairs (1980) 44 FLR 41; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Further, the applicant relied on the “discussion” per Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal & Ors (1986) 70 ALR 147 at 150.7 and the “comments” of Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; 162 ALR 577 at [138].
In response, the Minister submitted that the reviewer’s statement of reasons, and indeed the applicant’s submissions as set out above at [89], revealed that there was a plethora of evidence to support the reviewer’s finding in this regard. In light of that, and given the applicant’s complaint that the reviewer relied on “circumstantial evidence” and “preferred” that evidence to the applicant’s own account, the respondent submitted that the ground sought impermissible merits review. That is, the choice and weight to be assigned to evidence is a matter for the decision maker. Further, the Minister noted that there was no “positive finding” of nationality. Rather, the “positive finding” was that the applicant had the right to enter and reside in Iran.
Further, to the extent that the ground contends that the reviewer’s finding was based on country information which provided that the majority of Faili Kurds in Iran are Iranian nationals, the Minister submitted that that must fail for the reasons provided in relation to ground one.
I note that before the Court the applicant’s complaint was only framed in terms of the reviewer’s “inferred” finding that the applicant was an Iranian national. The applicant did not specifically refer to, nor address, the complaint put forward in “old” ground four (of the amended application), now ground three (of the further amended application). That is, that there was no evidence before the reviewer, or the reviewer made inferences from evidence that were not open to him as a matter of law, that the applicant had departed Iran using a genuine Iranian passport.
Grounds Two and Three: Consideration
First, to the extent that the applicant sought to draw some distinction between the concepts of “nationality” and “citizenship”, that is dealt with below in ground four.
Second, the applicant’s submissions are that the reviewer found the applicant was an Iranian national. That implication arose from the reviewer’s findings that the applicant was not a stateless Faili Kurd and was not undocumented. That implied finding was said to be made in error. This submission proceeds from the complaint largely exposed above concerning the reviewer’s approach to the situation of Faili Kurds in Iran.
However, that appears to ignore what the reviewer actually found at [187] (at CB 189). That is, that the applicant, for the reasons set out there, was an Iranian citizen by descent. This was not an “implied” finding. It was an actual finding.
Third, the reviewer was not bound by any finding made by the Departmental officer at the “RSA”. Any suggestion to the contrary in the applicant’s submissions (at [33] of the applicant’s written submissions) cannot be accepted. In any event, the applicant has made no attempt beyond the implication in his written submissions to support any such proposition.
The complaints as they ultimately emerged in submissions from ground two and three of the further amended application appear to be as follows. There was no evidence before the reviewer, or in the alternative inferences he made were not open to him, in relation to two sets of findings.
The first was that the applicant had a right to enter and reside in Iran and would not risk deportation. That was, in particular, with obvious reference to the last sentence at [199] (at CB 193) and the second sentence to that effect at [208] (at CB 195) (see above).
The second was that the applicant had departed Iran using a genuine Iranian passport. This was with reference to [204] (at CB 194):
“In the present case, the claimant claims that he left Iran illegally. He claims that the Iranian passport he used had been photo-substituted or at the least was fake. A non-citizen would not be entitled to an Iranian passport. However, in light of the foregoing I do not accept that he organised a false passport, when he would have had no need. Additionally, the passport he travelled on would have been vetted at the airport when he departed Iran (at my interview I summarise the security checks a Imam Khomeini International airport – see ‘Departure from Tehran airport above). At the RSA interview on 16 February 2011 he claimed his brother and the smuggler were with him to pass them through the checks, but this did not explain why his brother whom he claims is also a stateless refugee would have been of any assistance in getting the claimant past security checks. The claimant’s departure without difficulty reinforces my conclusion that he departed using a genuine Iranian passport.”
A number of points need to be emphasised here. First, much of the applicant’s attack here is common to, and emanates from, matters agitated in relation to ground one. To that extent, what is said above in regard to ground one stands in answer also to the applicant’s second and third grounds.
Second, those parts of the applicant’s submissions that sought to challenge the reviewer’s findings as to the credibility of parts of the applicant’s account must be rejected as a basis for revealing legal error. The reviewer is not bound to uncritically accept the applicant’s account of past events (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J). Findings as to credibility are findings of fact within the exercise of the task given to the reviewer by the Minister to make a recommendation to him as to the applicant’s call on Australia’s protection obligations (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
In the circumstances, and as largely already set out above in relation to ground one, the complaints by the applicant now that the reviewer relied on “circumstantial” evidence, or “preferred” certain evidence over other evidence, can only be, as the Minister correctly submits, entreaties to the Court to indulge in impermissible merits review. The Court cannot do that (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). As a basis for asserting legal error therefore these submissions do not assist the applicant.
The finding that the applicant had a right to enter and reside in Iran and not risk deportation was a conclusion open to the reviewer on what was before him. As set out in ground one, the reviewer was entitled to take the view of country information before him, and had evidence probative of the finding, that the applicant, simply as a Faili Kurd, was not necessarily a person who did not have documentation or was not an Iranian national. The finding that he was an Iranian national proceeded from not only the analysis derived from country information, but also the applicant’s personal circumstances (and those of his family) as presented. This included the reviewer’s finding of nationality by descent.
The finding that the applicant had departed Iran using a genuine Iranian passport, again, emerged from the reviewer’s analysis of the evidence and the information before him. The finding at [204] (at CB 194) essentially has its origins in the analysis relevant to ground one (see above). However, it is reinforced by the reviewer’s finding that, in light of what would have happened at Tehran airport, and the applicant’s departure, on his own evidence, without difficulty, he had left Iran lawfully. That is, that must have been, in the circumstances, with a genuine Iranian passport.
In all, grounds two and three are not made out.
Ground Four: Submissions
The applicant’s fourth ground, particularised for the first time after the hearing in the further amended application, alleged that the reviewer applied an incorrect test to the question of whether the applicant was stateless. That is, that the reviewer equated a right to obtain citizenship with nationality.
The applicant referred the Court to the reviewer’s statement of reasons at [147] – [148] (at CB 175 to CB 176), [187] (at CB 189), [198] – [201] (at CB 193) and [208] (at CB 195) in support of this assertion. That is, that the reviewer implicitly found the applicant to be a national of Iran and in making that finding did not consider that although the applicant had characteristics that indicated that he was a citizen of Iran, Iran did not consider him a citizen and/or he was unable to prove his citizenship. That is, that although the applicant had “legitimate claims to citizenship” he could not prove his citizenship because he did not have any identity papers and, in essence, was therefore “de facto” stateless.
As a result of this, the reviewer was said to have failed to ask himself whether Iran considered the applicant to be a national, both under the operation of its laws and as a matter of fact. By failing to turn his mind to this consideration, the applicant submitted that the reviewer asked himself the wrong question as to what constituted a stateless person and, in so doing, committed jurisdictional error. (The applicant relies on Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (“Craig”) at 179 and, for example, Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (“Yusuf”).)
In supplementary written submissions in reply, the Minister submitted that the ground was misconceived as the “wrong test” which was specified in the ground did not concern the statutory criterion for the grant of a protection visa. That is, whether the applicant had a well-founded fear of persecution for a Refugees Convention reason (s.36(2)(a) of the Act). It was the Minister’s submission that that was the task that reviewer was charged with and which the reviewer properly undertook. I understood the submission, although not explained as such, to be made in the context that while the applicant was not an applicant for a protection visa, in essence, the question that the Minister asked reviewer to answer was whether he should “lift the bar” so that the applicant could make such an application (see further below at [118]).
Even if the ground was properly construed, and thus available to the applicant, the Minister submitted that the ground simply sought impermissible merits review. In the Minister’s submission, the reviewer rejected, as a matter of fact, that the applicant was a stateless Faili Kurd. That is, the reviewer rejected the foundation of the applicant’s claims to have a well-founded fear of persecution in Iran for a Refugees Convention reason. That rejection was said not to be based on any understanding of what constitutes a stateless person. Further, that the reviewer did not equate a right to reside in Iran (or a right to obtain citizenship or a legitimate claim to citizenship) with nationality.
Ground Four: Consideration
It must be said that the applicant’s submissions in support of this ground are both confused (as to the law and relevant facts as found by the reviewer) and confusing. The latter can be seen with the assertion that nationality and citizenship are often used “synonymously” (at [7](b) of the applicant’s further written submissions), yet the applicant appears to criticise the reviewer for equating a claim to citizenship with nationality ([13] of the further written submissions)
What it appears is really meant here is that, whether the word “nationality” or “citizenship” is used, the reviewer’s error was to equate the right to citizenship, or a claim of nationality, with the actual conferral and acceptance of citizenship, or the actual exercise of a right to nationality. For example, a right that may accrue by descent (as referred to by the reviewer).
For the sake of clarity, I note that the Refugees Convention itself does not talk of citizenship, it speaks of nationality (see Art.1A(2) for example). However, as is explained in the UNHCR Handbook[2] at [87]:
[2] “United Nations High Commissioner for Refugees (“UNHCR”) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees” (Geneva, 1992)
“(4) ‘is outside the country of his nationality’
(a) General analysis
[87] In this context, ‘nationality’ refers to ‘citizenship’. The phrase ‘is outside the country of his nationality’ relates to persons who have a nationality, as distinct from stateless persons. In the majority of cases, refugees retain the nationality of their country of origin.”
The applicant’s argument in this ground relied on his claim before the reviewer that, amongst other things, he was stateless. His emphasis on this in submissions is therefore well founded.
However, it is unclear how matters drawn from a UNHCR report on statelessness and its meaning can assist in supporting the thrust of the ground that the reviewer fell into legal error by asking the wrong question (with the reliance on Craig and Yusuf in the applicant’s further written submissions at [15] and [16] respectively) or applying the wrong test, as is actually pleaded in the ground.
The right questions, or “correct” test, were said by the applicant to be whether the applicant was a stateless Faili Kurd previously resident in Iran and, if he was such a person, whether he met the definition of “refugee” under the Refugees Convention ([12] of the applicant’s further written submissions).
This argument fails for two separate reasons, both advanced by the Minister in his supplementary written submissions in reply.
First, the task given to the reviewer by the Minister, and which the reviewer addressed, was whether the applicant met the criterion for a protection visa as set out in s.36(2) of the Act (see CB 147). That is, in context, to be understood that the applicant was not entitled, given the circumstances of his arrival on Australia’s shores, to apply for a protection visa (see generally M61/M69 at [88] – [89] and Darabi v Minister for Immigration & Anor [2011] FMCA 371 at [21] – [23]). The scheme created by the Minister is for the reviewer to recommend to the Minister if the applicant meets the definition and engages Australia’s protection interest. In this, the relevant question is whether the applicant has a well-founded fear of persecution for a Refugees Convention reason.
As the Minister submits, the applicant in this case has confused fact finding in light of the evidence and claims presented, with the application of the proper test required as a result of the task given to the reviewer.
The quote, as relied on by the Minister, from Yusuf, and the reference there to Craig, makes that, in my respectful view, clear (the Minister’s supplementary written submissions in reply at [7]):
“…’Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
[Footnotes omitted. Emphasis per the respondent’s supplementary written submissions in reply.]
There is no argument by the applicant now that the reviewer failed to pose and answer the proper question in that sense. Therefore the ground as stated, and presented, is, as the Minister submits, misconceived and does not reveal legal error.
The applicant’s ground can also be rejected on a factual basis. The applicant says the reviewer was required to determine whether the applicant was a stateless Faili Kurd previously resident in Iran. There is no dispute as to the latter. That is, his residency in Iran. In answering the question as to whether he was a stateless Faili Kurd, the applicant asserts that the reviewer fell into error in equating a right to reside in Iran, or obtain Iranian citizenship, with nationality.
Second that the reviewer confused a right to citizenship with actual acquisition, or recognition, of citizenship. The reviewer’s failure to pursue this question (“needed to assure himself”) meant he fell into error.
As the Minister submits, even at its best, this is a request for impermissible merits review. This ground simply seeks to restate, albeit with a somewhat different subject, the attack pursued in relation to the three other grounds.
As set out above, the reviewer’s summary of the applicant’s claim to fear persecutory harm was not challenged by the applicant before the Court (see [173] at CB 185 to CB 186 of the reviewer’s statement of reasons and [63] – [64] above).
What the applicant, again, fails to appreciate, ignores or simply chooses not to accept, is that the reviewer rejected, as a finding of fact, the applicant’s claim to be a stateless Faili Kurd who is undocumented in Iran. That reasoning is set out above. The reviewer’s finding was open to him on what was before him.
A specific additional element to the attack is the reference to the reviewer’s consideration of Iranian nationality and the synonymous citizenship laws. But I do not apprehend the applicant to take issue with the reviewer’s understanding of these laws or their expression, relevantly, in his analysis at [187] (at CB 189) (see also [64] above).
Rather, the attack is said to be that the reviewer equated a right to citizenship, or rather to acquire citizenship, with nationality. In the sense that there is a distinction between the right to citizenship and actual acquisition of it. Implicit in this is the applicant’s argument that, even if the applicant had a right to citizenship, the inability of his family to provide documents to “prove” or establish this right, meant that he was, and remained, undocumented and therefore stateless.
As set out above in relation to ground one, the attack now is no different to the applicant’s own response to the reviewer as to the lack of evidentiary documentation (see [187] at CB 189 and the applicant’s responses at the interview as set out at [72], [74] and [76] above)
This illustrates, classically, that what the applicant complains about now is the reviewer’s rejection of his response, or arguments, to him. For reasons already referred to above, this does not reveal legal error. The reviewer does not have to accept the applicant’s explanations.
It is not necessary to repeat again the reviewer’s relevant reasoning here. However the Minister’s oral submissions, as reproduced in writing, are of note in addition to what is set out above (see [23] – [24] of the Minister’s supplementary written submissions in reply):
“[23] The Reviewer then carefully considered the Applicant’s evidence and, while the First Respondent relied upon the entirety of the Reviewer’s reasons, the following aspects are highlighted (as they were previously during address):
● the Applicant’s family’s ‘long residence in Tehran suggests the family had a legal basis for residing there’;
● the Applicant occasionally came to the adverse attention of the Tehran city council ‘but only for reason of his unlicenced [sic] work at the bazaar’ and did not come to the adverse attention of ‘the police, Basiji or any Iranian authorities for reason of being stateless, undocumented, an imputed Iraqi or a Faili Kurd or any combination of those’.
● the Applicant’s claim that he wore Kurdish pants ‘is not credible if [he] was in fact seeking to keep a low profile because he was undocumented/stateless or had a subjective fear of being identified as a Faili Kurd’.
● the fact that the Applicant ‘had never been arrested or detained’ shows ‘he had some other basis for demonstrating his right to travel around and live in Tehran’.
● the ‘scant claims of harassment and harm in Ilam province’ ‘he had a legal right to live there and to work as a farmer and that he did not live in Iran as a non-citizen’;
● the ‘significant number of relatives residing and working in Ilam province also strongly suggests that other relatives have a legal right to work in Iran and do not live in Iran as non-citizens’;
● each of the matters identified by the Reviewer at CB 193 [197].
[24] It was against that background that the Reviewer found that the Applicant ‘is not a witness of truth’. In reciting his factual findings, for instance, the Reviewer rejected the underlying basis of the Applicant’s claims: ‘In the light of the foregoing, I do not accept the claimant’s parents were born in Iraq and expelled to Iran. I do not accept they were non-citizens in Iran, or undocumented or displaced and stateless Iraqi refugees’…See further: ‘I accept that the claimant and his family never held Amayesh cards, but conclude this is because they were non-citizens/stateless/refugees/undocumented in Iran: they had no need to hold Amayesh cards’.
[Footnotes omitted.]
The reviewer’s factual findings, and the conclusion derived from them, were all reasonably open to the reviewer on what was before him. The applicant plainly has a different view as to the elements, both generally and as arising from his particular circumstances, as to what constitutes a “stateless person”. However, his disagreement with the reviewer, expressed in this way, misunderstands that the reviewer was not required to consider the applicant’s claims as against some abstract concept of what constitutes a stateless person. Rather, the reviewer was required to address the applicant’s own claims that he was stateless in the circumstances presented. For the reasons that were open to him, the reviewer rejected that claim. No legal error is revealed in ground four.
Conclusion
None of the grounds of the applicant’s further amended application have been made out. In those circumstances, the application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 30 January 2013
22
0