SZQZT v Minister for Immigration
[2012] FMCA 640
•1 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 640 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Allegations that the Reviewer misconstrued the test of serious harm in s.91R of the Migration Act 1958, misapplied the test of serious harm, failed to consider a claim and made a finding which was unreasonable and not open on the evidence. WORDS & PHRASES – “denial of capacity to earn a livelihood” – whether restricted to legal capacity. PRACTICE & PROCEDURE – Leave to rely on unpleaded allegation of bias refused – communication with Federal Magistrate’s chambers after decision reserved. |
| Migration Act 1958, ss.36, 46A, 91R, 195A Acts Interpretation Act 1901, s.15AB |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 R v L (1994) 49 FCR 534 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Applicant WAEE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2003) 75 ALD 630 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221 |
| Applicant: | SZQZT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | GRAHAM BARTER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2993 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 July 2012 |
| Date of Last Submission: | 12 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms J. Wilcsek |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Declare that, in recommending to the first respondent that the applicant be not recognised as a person to whom Australia has protection obligations, the second respondent made an error of law, in that the second respondent failed to observe the requirements of procedural fairness.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2993 of 2011
| SZQZT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| GRAHAM BARTER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 3 September 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 13 November 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 30 March 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 25 November 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA assessment and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation is affected by legal error and an injunction restraining the Minister from relying on that recommendation. He also seeks mandamus but that relief is not available in the present proceedings given the nature of the administrative action being reviewed: Plaintiff M61 at 358 [99]. In order to succeed the applicant must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, there will be a declaration to the effect that, in recommending to the Minister that the applicant not be recognised as a person to whom Australia has protection obligations, the Reviewer made an error of law by not observing the requirements of procedural fairness. The error arose out of the Reviewer’s failure to consider two of the applicant’s claims, or two integers of the applicant’s claim, to fear persecution in Iran.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 7 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 18 September 2010:
a)he was born in Ilam province in Iran and had lived there all his life but regarded himself as stateless;
b)he had not been harmed in Iran but could not study there, marry, be conscripted or work because, as a Faili Kurd, he did not have a birth certificate;
c)his father was born in Iran but had lived in Iraq with his mother who was born in Iraq. They were expelled twice from Iraq and told they were Iranian. In Iran, his parents did not have Iranian residency documents because they were told they were Iraqi;
d)his brother lives in Perth and told him to come to Australia because he could “get an identity here”. He wanted to be with his brother and in a place where he could study; and
e)he did not want to return to Iran because he had nothing to go back to. He would be discriminated against and did not know what the authorities would do to him if he returned.
RSA application
In a statutory declaration declared on 13 November 2010 in support of his application for an RSA, the applicant made the following additional claims:
a)when he was younger, the Basij might have asked for identification from his father and brother whilst they were working on a farm. They had paid bribes to the Basij in order to be released and this continued on a regular basis;
b)no member of his family had a green or white card issued by the Iranian government. He was not a citizen of Iran and had no right of entry or residence in any other country;
c)he was not allowed to own property in Iran and it was hard for him to secure a government job. He was forced to work in the private sector where he was not paid proper wages;
d)stateless Faili Kurds were denied access to public hospitals and forced to pay large amounts of money for private treatment. They were constantly abused by local Iranian citizens;
e)he decided to leave Iran because of his lack of identity. He could no longer face the denial of his basic rights and entitlements; and
f)he would probably be detained and killed by the Basij, Sepah and Etalaat, which were arms of the Iranian government. He would not be protected because he did not have identification. There was nowhere safe for him in Iran.
Proceedings before the Reviewer
In a submission dated 24 August 2011, the applicant’s agent submitted that the applicant’s brother had been granted a protection visa in November 2009 and that his circumstances as a stateless Faili Kurd were largely identical to those of the applicant. It was further submitted that the cumulative effect of the interference with the applicant’s right to an identity, his right to work and the threat of race-based abuse amounted to serious harm within the meaning of s.91R(2) of the Act.
The applicant was interviewed by the Reviewer on 30 August 2011 at which point he made the following additional claims:
a)he had been allowed to attend a Shia mosque in his village and had studied there. There were no Basij in his village;
b)his family had been through some difficult times but they had always managed to get by;
c)Faili Kurds were discriminated against generally in Iran. He could not obtain a passport and had been unable to travel to Mecca as he wished;
d)he was paid less than other people and had no insurance;
e)he could not register a marriage without a birth certificate and he was concerned that even if he had an informal marriage, his children would be called illegitimate and would be as miserable as he had been;
f)if he returned to Iran he would be interrogated and “adverse conclusions as to his character” would be drawn. He would be imputed with adverse political opinions because he had fled the country; and
g)the cause of his problems was his lack of documentation but this could not be separated from his race.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before him, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)the Reviewer accepted that the applicant would suffer various social and economic deprivations if he returned to Iran and that he was genuinely concerned about these deprivations. However, the Reviewer was not satisfied that the applicant had any fear for his ability to subsist in Iran as a result of those deprivations or for any other reason. The Reviewer noted that the applicant and his family had been able to subsist in Iran without citizenship in the past, albeit precariously, and there was no evidence to suggest that the situation would not continue in the same way for the reasonably foreseeable future. The Reviewer thus found that whilst the deprivations were distressing to the applicant, particularly considered cumulatively, they did not amount to serious harm in accordance with s.91R of the Act;
b)the Reviewer noted that the applicant had not expressed any fear of physical or verbal abuse from the Basij or other like groups because of his race and lack of identification papers as he had had no such experience in the past. Based on country information, the Reviewer accepted that there was a real chance that the applicant would be questioned periodically and detained for short periods by the police and Basij if he returned to Iran. However, the Reviewer did not accept that the frequency or length of detention or the treatment the applicant would receive whilst in detention would involve serious harm. The Reviewer further found that even if the questioning, detention and abuse were to amount to serious harm, it would not be for a Convention reason. The Reviewer referred to country information indicating that state and de facto state authorities stopped and questioned people indiscriminately and detained those suspected of being involved in illegal or immoral activity or otherwise presenting a threat to state security. The Reviewer further noted that whilst an inability to produce identification documents would attract further enquiries, this would be pursuant to ordinary laws for maintaining state security rather than for discriminatory reasons. The Reviewer also noted that the applicant had not opposed Islam or the state of Iran in any sense or been accused or suspected of such behaviour. The Reviewer thus did not accept that the level of abuse the applicant would suffer in the reasonably foreseeable future if he returned to Iran would escalate to such a level as to involve serious harm; and
c)the Reviewer found that the applicant’s claim that he might possibly be identified as a traitor and a terrorist on his return to Iran was speculative. The Reviewer noted that the applicant had not engaged in any past activity which might raise suspicions that he was a traitor or a terrorist and that absent past activity there was nothing to suggest that his absence from Iran alone would raise such suspicions with the authorities or the Basij. The Reviewer found that the applicant might have difficulty re-entering Iran having left illegally and with no identification paper but that this would be as a result of migration laws of general application rather than for a Convention reason. The Reviewer thus did not accept that there was a real chance that the applicant would suffer serious harm amounting to persecution for a Convention reason if he returned to Iran.
Proceedings in this Court
Ground 1
In the first ground of his amended application the applicant alleged:
1.The Independent Protection Assessment Reviewer (“IPAR”) found that the applicant would suffer “discrimination which will result in significant physical and psychological hardship by Australian standards albeit not of such a degree that it would in my opinion amount to persecution but failed to give any reasons for this”. The court should infer that no reasons were given because there were no good reasons.
This allegation was particularised by reference to p.170 of the Court Book which was exhibit A.
The allegation that the Reviewer did not give any reasons for the quoted statement fails to acknowledge that the passage in question opened with the words:
It is clear from my findings above that …
Those findings have been summarized above at [12], including the Reviewer’s finding that while the deprivations suffered by the applicant in Iran distressed him, neither individually nor cumulatively did they amount to serious harm as understood by s.91R of the Act. Consequently, on the facts, the allegation is not made out.
Ground 2
In the second ground of his amended application the applicant alleged:
2.In finding that that the economic and social discrimination against the applicant cumulatively fell short of persecution the IPAR misconstrued the test of “serious harm” in section 91R of the Migration Act
That allegation was particularised as follows:
The IPAR failed to particularise the standard he applied.
The IPAR failed to apply or consider the standard of deprivation of “basic needs”.
The IPAR failed to apply or consider the standard of intolerability or oppression.
The IPAR failed to consider the standard of ‘fundamental rights’.
The IPAR distracted attention from this task by using an undefined term “hardship by Australian standards” to gloss over the denial of access to basic needs. (p170 courtbook)
The IPAR introduced a requirement that capacity to subsist be threatened “in the reasonably foreseeable future”: page Courtbook.
Section 91R of the Act relevantly provides:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
Section 91R(2) sets out a list of circumstances which will amount to serious harm and which the Reviewer was obliged to consider in the context of the applicant’s allegations. He did so. In paras.71-76 of his reasons the Reviewer considered the matters set out at s.91R(2)(d), (e) and (f) and at paras.77-80 he considered the matters set out at s.91R(2)(a), (b) and (c).
However, as recognised by the Reviewer at para.59 of his reasons, the list of circumstances set out in s.91R(2) is not exhaustive and so other circumstances may also be found to amount to serious harm in particular cases. Apart from the matters listed in s.91R(2), s.91R does not impose or imply the relevance of any particular standard or test by which a decision-maker is to arrive at a conclusion that any given circumstance amounts to serious harm. Specifically, it does not imply that any of the tests or criteria propounded by the applicant in the particulars of this allegation should be applied by a decision-maker when reaching a conclusion as to whether an applicant faces a risk of serious harm.
The essence of the applicant’s submissions was that if the Reviewer had approached the test of what amounts to serious harm differently from the way he did, he would have found that the applicant’s claim to fear persecution involving serious harm was well-founded. As there is no basis to find that considerations which the applicant has identified must be taken into account when considering whether persecution involves serious harm, in substance this allegation is no more than an impermissible challenge to the Reviewer’s factual conclusions.
Related to this argument was a further one made in addresses at the hearing in these proceedings, that the cumulative effect of all the deprivations suffered by the applicant in Iran, and which he would presumably suffer again were he to return, amounted to serious harm for the purposes of s.91R(1). In this regard, the applicant argued that the Reviewer had, when determining whether the persecution he claimed to fear met the test of “serious harm”, taken into account only the matters referred to in s.91R(2) and had not considered the cumulative effect of the deprivations he claimed to fear upon return to Iran.
As noted already, the Reviewer recognised that s.91R(2) does not provide an exhaustive list of the matters to be considered when deciding whether persecution would involve serious harm. Further, in his “Findings and Reasons”, the Reviewer set out the various deprivations cited by the applicant and noted the latter’s submissions that such treatment constituted “persecution on cumulative grounds”. Significantly, that quotation of the applicant’s submissions was immediately followed by a discussion of s.91R(1). It is apparent that the Reviewer understood the argument that was being advanced and the law which was relevant to the issue. Following further discussion of the question the Reviewer went on to reach a conclusion which, contrary to the applicant’s submissions, does not disclose error:
I accept that all the above deprivations are distressing to the claimant individually and more so when considered cumulatively but, having regard to the guidance provided by s.91R(2), I do not accept that those deprivations individually, collectively or cumulatively amount to serious harm in accordance with s.91R(1)(b) of the Act.
Given the Reviewer’s other comments, his reference to the guidance provided by s.91R(2) should not be understood to mean that s.91R(2) provided the only criteria by which “serious harm” was to be identified. Rather, the reference should be understood to reflect the fact that the examples provided in s.91R(2) would assist to identify serious harm which took other forms. Again, the applicant’s submissions appear to be an invitation to review a factual conclusion of the Reviewer.
Additionally, the implied assertion that the Reviewer should have particularised the standard he applied when deciding whether the harm the applicant claimed to fear in Iran was serious harm for the purposes of the Act has no basis in law. The failure to articulate such a thing does not, on its own, amount to error.
The applicant also submitted that the notion of “fundamental rights” which he said underpinned the Convention and the Universal Declaration of Human Rights should inform the Court’s interpretation of the word “persecution” where that appears in the Convention. In this regard, s.36(2)(a) of the Act provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …
However, whether conduct amounts to persecution and whether it amounts to serious harm are two different questions. Conduct may be persecutory and yet not be productive of serious harm. Indeed, it is only after conduct is identified as persecutory that it is necessary, by virtue of s.91R, to consider whether it also involves serious harm. It is a two step process involving different criteria. For these reasons, applicant’s submissions concerning the proper definition of “persecution” are not relevant to the present allegation that the serious harm test in s.91R was misapplied by the Reviewer.
Further in this connection, it was submitted that the Parliament “did not intend to exclude fundamental rights from the phrase ‘serious harm’ ”. However, resort to what is said to be the purpose of a statutory provision should only be had in circumstances where more than one interpretation of a provision is open: R v L (1994) 49 FCR 534. Additionally, it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 [33]. Indeed, “it is not unduly pedantic to begin with the assumption that words mean what they say”: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304http://legalonline.thomson.com.au/subscribed/document/cases/lawreports/CLR/volumes/147/pages/297/document.pdf?sessionId=54ea0cdf0ade6d32772c0ca8dc0cf499 per Gibbs CJ.
The words of s.91R are not ambiguous or unclear. It is not necessary to refer to extrinsic materials for any of the reasons referred to in s.15AB of the Acts Interpretation Act 1901. The section means what it says, namely, that a person will meet the criteria for the grant of a protection visa when, relevantly, the persecution they fear involves serious harm to them, such as that set out in s.91R(2). There is no need to resort to the extrinsic material referred to by the applicant in order to construe the section and the arguments based on those sources are rejected.
Ground 3
In the third ground of his amended application the applicant alleged:
3.It was not open on the evidence to find that the discrimination against the applicant did not cumulatively amount to serious harm. Alternatively the finding was so unreasonable as to amount to jurisdictional error.
The allegation that the Reviewer’s finding was not open on the evidence and was unreasonable is tautological: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 648-650 [132]-[135] per Crennan and Bell JJ. In broad terms the question is whether there was only one finding open on the evidence and the Reviewer did not make it. The applicant has not demonstrated that this was the case. Although a different reviewer might arguably have reached a different conclusion on whether the discrimination faced by the applicant amounted to serious harm for the purposes of s.91R, that was not the only conclusion open. In those circumstances, the third ground is not made out.
Ground 4
In the fourth ground of his amended application the applicant alleged:
4.The IPAR erred in failing to find a real chance of serious harm under S91R(2)(a).
That allegation was particularised as follows:
The IPAR found that that [sic] is a real chance that the applicant will be questioned periodically by the Bassij and detained for short periods: page 168
The IPAR accepted that the applicant had no documents (and so was susceptible to extortion and detention by the Bassij) because he is a Faili Kurd.
The fourth ground of the amended application alleges that the Reviewer should have found that the particularised circumstances proved that the applicant faced serious harm if he returned to Iran. To the extent that this is an allegation that the Reviewer made a finding of fact which was incorrect, it fails to raise a matter which may properly be considered in judicial review proceedings such as these. To the extent that this ground alleges that the Reviewer’s findings manifested legal error, it raises no issues which were not also raised by the third allegation in the amended application and for the reasons given in connection with that ground, such allegation also fails.
Ground 5
In the fifth ground of his amended application the applicant alleged:
5.The IPAR failed to consider the applicant’s submission that the phrase ‘denial of capacity to earn a livelihood of any kind” in section 91R(f) refers to a “legal” capacity.
This allegation was particularised by reference to an argument made in the applicant’s advisers’ written submissions to the Reviewer of 24 August 2011. Relevantly, those submissions were:
Section 91R(2) provides that instances of ‘serious harm’ for the purpose of assessing persecution include:
· significant economic hardship that threatens the person’s capacity to subsist;
· denial of access to basic services, where the denial threatens the person’s capacity to subsist;
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
We submit that the capacity to earn a livelihood in these cases must be read as a legal capacity, notwithstanding that Faili Kurds may, through lack of choice, work illegally in Iran. Even where Iranian authorities could be found to be inconsistently tolerating the illegal employment of Iraqi refugees, this still restricts their capacity to earn a livelihood and threatens their capacity to subsist in Iran. Moreover, in light of the following information, they are always vulnerable to arrest for working illegally and consequent detention and deportation.
Although no explicit reference is made to this submission in the Reviewer’s findings and reasons, it was sufficiently referred to in the summary of the material before him for me to be satisfied that it was not overlooked, at least when the Reviewer was summarizing the evidence. Given the nature of the argument, the fact that no discussion of it appears in the Reviewer’s findings and reasons could suggest that it may have been overlooked at that stage. However, I am not prepared to draw that inference. The Reviewer’s findings and reasons make it plain that he was aware of the applicant’s complaint that he could not obtain better or more secure employment in Iran, albeit that the entirety of the issue was summarized in fewer than thirty words, many of which were said in one place only to be repeated in another.
The Reviewer went on to conclude that he was not satisfied that the applicant had any fear of his ability to subsist in Iran. Importantly, that was the relevant test. The test which the applicant’s advisers propounded finds no support in the Act, which was plainly the Reviewer’s touchstone when making the relevant finding. Consequently, I accept the Minister’s submission that the submission was not accepted by the Reviewer, although this was only implicit.
However, even if the Reviewer had overlooked the argument in question this would not support a finding that his decision was not conducted by the correct legal principle correctly applied. The test propounded by the applicant’s advisers was incorrect. The relevant test imposed by s.91R is one which turns on the threat to a person’s ability to subsist by reason of a denial of capacity to earn a livelihood. The test is not limited to a denial of “legal” capacity to earn a living; it comprehends all sorts of circumstances which might produce this outcome. Had the Reviewer applied the test propounded by the applicant’s advisers he would have erred. If he failed to consider it as the applicant alleges and thereby did not apply it, he saved himself from falling into error. Consequently, any failure of the Reviewer in this regard could not amount to practical injustice to the applicant. For that reason, even if the Reviewer had acted as the applicant alleges, it would not justify granting the applicant the relief he seeks.
Ground 6
In the sixth ground of his amended application the applicant alleged:
6.The IPAR failed to consider evidence that the Iranian government has been gradually introducing measures to target illegal workers and their employers and that growing unemployment in recent years has increased the government’s motivation in this regard.
That allegation was particularised by reference to the applicant’s advisers’ written submissions to the Reviewer of 24 August 2011. Relevantly those submissions said:
Available country information suggests that the Iranian authorities are now putting in place policies seeking to impose more serious restrictions on the rights of refugees, including Iraqi refugees. This includes more restrictions on their ability to earn a livelihood by working illegally in this country. An article in the International Journal of Multicultural Societies referred to evidence that the Iranian government has intensified monitoring of the employment of illegal workers and has been imposing harsher penalties on employers found to be employing those workers. The motive behind such policies was seen to be a means of placing pressure on refugees to leave Iran. The article reported …
The fact that a particular submission is not specifically referred to in a Reviewer’s findings and reasons does not necessarily mean that the Reviewer has not considered it: Applicant WAEE v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2003) 75 ALD 630 at 641 [46]. However, this particular aspect of the applicant’s claims does not fall into that category. The Reviewer’s analysis of the deprivation which he accepted had been and probably would be suffered by the applicant if he returned to Iran was based on events in the past. What was implicit in the Reviewer’s reasons was that past events would be repeated. However, the submission to which the applicant refers in this ground of the amended application is concerned with a deterioration in the circumstances of refugees in Iran. Rather than engaging with this claim of changing circumstances, the Reviewer’s statement in para.75 of his reasons:
On his evidence the claimant and his family have been able to subsist in Ilam without citizenship, albeit precariously, in the past and there is no evidence to suggest that situation will not continue in the same way for the reasonably foreseeable future.
appears to ignore it. To say that there was no evidence to suggest that the situation suffered by the applicant in the past would not continue in the same way in future, without in some way dealing with the evidence of deteriorating conditions proffered in the applicant’s adviser’s submissions, satisfies me that that evidence and the claim it supported were not taken into account.
The Reviewer’s failure to take into account a claim which was relevant to his consideration of whether s.91R(2)(f) applied to the applicant’s circumstances was a denial of procedural fairness and an error of the sort for which relief can be granted: Plaintiff M61 at 356 [90]; Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394 [24], 408 [95].
Ground 7
In the seventh ground of his amended application the applicant alleged:
7.The IPAR failed to consider the applicant’s submission that he risks forced deportation to Iraq if he is returned to Iran.
In their submissions to the Reviewer of 24 August 2011 the applicant’s advisers said that the applicant risked deportation from Iran to Iraq because he did not have an Iranian refugee registration card and that this ought to be sufficient to engage Australia’s protection obligations. Although in his discussion of the country against which the applicant’s claims were to be tested the Reviewer stated that there was no evidence to suggest that the applicant had a right of legal entry to any country and thus that Iran was the relevant country of reference, contrary to the Minister’s submissions that does not amount to consideration of the applicant’s claim concerning deportation to Iraq. By failing to consider that claim the Reviewer also fell into error.
Allegation of bias
In his written submissions the applicant alleged that the conduct referred to in the first ground of the application would support a finding of apprehended bias. In addresses it appeared to be suggested that a finding of actual bias might be open. However, the allegation was not clearly pleaded and particularised in the amended application as it should have been: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69] per Gleeson CJ and Gummow J. Given the allegation’s seriousness and the fact that for some time prior to the hearing of this application the applicant was legally represented, this is a significant failure. In the circumstances, I conclude that the applicant’s failure to raise this matter in the appropriate way means that to entertain the allegation beyond refusing leave to rely on it would be to deny the first respondent procedural fairness. Consequently, the applicant is refused leave to rely on an allegation of bias on the Reviewer’s part.
One further matter
After judgment in these proceedings was reserved, counsel for the applicant sent two emails to my chambers, one attaching “Additional Supplementary Submissions” and the other attaching pages from the Australian Concise Oxford Dictionary. Although copies of these emails appear to have been sent to the counsel and solicitors for the Minister, they appear not to have been sent with the prior agreement of the Minister’s representatives. Attempts to place material before the Court in this way are quite inappropriate: John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221; Federal Magistrates Court of Australia Notice to Litigants and Legal Practitioners Communicating with Federal Magistrates Chambers:
As no leave to file the documents had been sought or given they were rejected when an attempt was made to file them in the Court’s registry. No subsequent application for leave to rely on the additional documents having been made, they have not been taken into account in reaching the decision in these proceedings.
Conclusion
The Reviewer denied the applicant procedural fairness by reason of his failure to consider two of the applicant’s claims to fear persecution, or two integers of the applicant’s claim to fear persecution, in Iran.
It can be accepted that the Minister will act on a declaration to this effect and will arrange for a further review of the applicant’s claim to be performed. On that basis, it is unnecessary to grant the injunctive relief which the applicant seeks.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 1 August 2012
10
2