SZQZV v Minister for Immigration & Anor
[2012] FMCA 472
•31 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 472 |
| MIGRATION – Review of report and recommendation of an Independent Merits Reviewer in respect of an offshore entry person – applicant alleging persecution in Iran as a stateless Faili Kurd – applicant disbelieved in part and his genuine fears found not to be well-founded – whether the Reviewer made findings based on no evidence, failed to consider integers of the applicant’s claims, took into account irrelevant considerations, applied an incorrect legal test or engaged in unreasonable reasoning considered. |
| Migration Act 1958 (Cth), ss.36, 91R |
| Appellant S395/2002 v Minister for Immigration [2003] HCA 71 Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1 SFGB v Minister for Immigration [2003] FCAFC 231 SZQGA v Minister for Immigration [2012] FCA 593 VBAO v Minister for Immigration [2004] FMCA 268 |
| Applicant: | SZQZV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2995 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 5 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Jewell |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed on 28 March 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2995 of 2011
| SZQZV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for an order restraining the first respondent (“the Minister”) from relying upon a report and recommendation by the second respondent (“the Reviewer”). The report is dated 1 November 2011 and was notified to the applicant by letter dated 3 November 2011.
The application before the Court inappropriately seeks other relief in the form of an order in the nature of certiorari quashing the “decision” of the “decision maker” and a writ of mandamus directed to the “Tribunal” or the Minister. However, as was made plain by the Full Federal Court in SZQDZ v Minister for Immigration[1] the Reviewer has not made a “decision” which could be quashed by certiorari. The only decision which the Court could hypothetically quash is a future decision of the Minister which has not been made. Neither the Minister nor the Reviewer is under any duty under the Migration Act 1958 (Cth) (“the Migration Act”) amenable to enforcement by mandamus. In other proceedings in respect of reports and recommendations in relation to the protection claims of offshore entry persons, relief has been sought in the form of a declaration as well as an injunction. The present application, in addition to the relief expressly claimed, seeks such further orders as the Court deems fit, which might include a declaration.
[1] (2012) 286 ALR 331.
The following statement of background facts is derived from the submissions of the parties.
The applicant arrived at Christmas Island by boat on 18 August 2010[2].
[2] court book (“CB”) 90.
On 24 October 2010 the applicant made a statutory declaration[3]. In that declaration he claimed:
a)he is a Kurdish Faili[4] man born in Iran. His family has Iraqi origins;
b)when he was seven months old, his father died in combat during the Iran-Iraq war;
c)he is not a citizen of Iran, but was issued with an identity card, known as a “white card”;
d)as a stateless person in Iran, he does not have the right to access education, obtain health insurance, work, marry or buy property;
e)he is subject to social and racial discrimination in Iran. In particular, he has been threatened and harassed by the Basij paramilitary. The Basij demanded bribes and, if the applicant could not produce any identification, would accuse him of stealing or being a spy;
f)he fears that if he returns to either Iran or Iraq he will be harassed, abused and arrested.
[3] CB 55-57.
[4] The parties’ representatives were unable to tell me what are the attributes of Faili Kurds which distinguish them from other Kurds. They may be attributes of religion, ethnicity, language, political opinion, statelessness or even simply an historical association with Iran.
In his reasons dated 14 April 2011 the Refugee Status Assessment Officer (“RSA Officer”) found that the applicant did not satisfy the criteria of a refugee[5].
[5] CB 90-104.
The applicant made a request for review of the RSA Officer’s assessment on 27 April 2011[6].
[6] CB 105-109.
The applicant’s legal advisor made a written submission in support of the applicant’s claim[7]. That submission restated the applicant’s claims and added that the applicant feared that, if returned to Iran, he would be treated as a spy and a traitor because he has sought asylum in a western country[8].
[7] CB 110-153.
[8] CB 111.
The applicant attended an interview with the Reviewer on 13 July 2011[9]. During the interview the applicant claimed that, on occasions, he had been detained by the Basij for one or two nights[10].
[9] CB 160 at [26].
[10] CB 162 at [38].
The Reviewer’s report and recommendation
The Reviewer accepted that the applicant is neither a citizen of Iran nor Iraq and is therefore stateless[11]. Consistently with Article 1A(2) of the Refugees Convention, the applicant’s claims were assessed with reference to Iran as this was his country of former habitual residence[12].
[11] CB 167-170.
[12] CB169-170 at [67]-[68].
The Reviewer accepted that the applicant had faced discrimination in Iran as a Faili Kurd. However, as the applicant had been able to operate a business in Iran, the Reviewer found the discrimination did not constitute serious harm within the meaning of s.91R of the Migration Act[13].
[13] CB 171 at [76].
The Reviewer did not accept that the applicant had been detained by the Basij. The Reviewer found that the applicant had exaggerated the extent of his encounters with the Basij[14].
[14] CB 171 at [75].
The Reviewer also rejected the applicant’s claim that he would be treated as a traitor and a spy upon return to Iran. The Reviewer found that the applicant did not have a political profile and, as a result, would not be perceived as an opponent of the government if he returned to Iran[15].
[15] CB 174 at [91].
The Reviewer concluded the applicant did not meet the criterion for protection in s.36(2) of the Migration Act and recommended that the Minister should not recognise the applicant as a person to whom Australia owed protection obligations[16].
[16] CB 156.
The judicial review application
These proceedings began with a judicial review application filed on 23 December 2011. The applicant now relies upon an amended application filed on 28 March 2012. That application contains the following grounds and particulars:
Findings of fact not open on the evidence
1. In recommending to the first respondent that the applicant was not a person to whom Australia owed protection obligations, the second respondent in the written decision dated 1 November 2011 (Decision) erred in making findings not open on the evidence.
Particulars
a) [73 and 75] of the Decision. 22.19-23.1 of the RSA Transcript. 12.13-16 of the IMR Transcript;
b) [79] of the Decision; and
c) [76] of the Decision. 16.2-8 of the IMR Transcript.
Failure to consider integers of claim
2. In recommending to the first respondent that the applicant was not a person to whom Australia owed protection obligations, the second respondent erred in failing to consider integers of the applicant’s claim.
Particulars
a) 14.2 of the IMR Transcript;
b) 13.12-16 of the IMR Transcript; and
c) failing to consider whether the applicant belonged to the broader particular social group of undocumented people living in Iran whose members are targeted by the Basij;
Taking into account irrelevant considerations
3. The second respondent made an error of law in relying on country information that was not relevant to non-Iranian asylum seekers to make findings relating to the treatment of non-Iranian asylum seekers who return to Iran.
Particulars
The second respondent relied on the contents of RRT Research Response IRN37255 when this report only related to Iranian refugees and Iranian asylum seekers. The second respondent relied on the contents of the Amnesty International Report titled ‘From Protest to Prison: Iran one year after the election’ when the relevant section of the report only related to Iranian citizens who have left Iran.
Applying the incorrect legal test
4. In recommending to the first respondent that the applicant was not a person to whom Australia owed protection obligations, the second respondent made an error of law in applying the incorrect test.
Particulars
a) [79] of the Decision – the ‘real chance’ test;
b) [80] of the Decision – threats to the applicant’s liberty; and
c) [75 and 79] of the Decision – whether the applicant’s behaviour was a voluntary choice or motivated by fear of persecution.
Unreasonable reasoning
5. In recommending to the first respondent that the applicant was not a person to whom Australia owed protection obligations, the second respondent erred in applying unreasonable reasoning.
Particulars
[75,76 and 79] of the Decision.
I have before me as evidence the court book filed on 6 March 2012 as well as two affidavits by Christopher Scott Neilsen made on 18 April 2012 and 21 May 2012. In his first affidavit, Mr Neilsen introduces a transcript of an interview conducted with the applicant by the Reviewer on 13 July 2011[17]. Also attached to that affidavit is a transcript of the RSA interview conducted on 27 October 2010. In his second affidavit, Mr Neilsen introduces documents apparently before the Reviewer additional to those included in the court book.
[17] According to the transcript the interview took place on 30 July 2011 but nothing turns on that.
The applicant contends that the Reviewer erred at law by making findings of facts not open on the evidence, by failing to consider integers of his claims, by taking into account irrelevant considerations and by applying the incorrect legal test in respect of certain elements of the applicant’s claims. In that connection, the applicant’s assertion that the Reviewer failed to apply the “real chance test” of persecution under the Refugees Convention was not pressed. Finally, the applicant asserts that the Reviewer engaged in “unreasonable reasoning” in relation to the applicant’s claimed fear should he fail to carry an identification card known as a “white card” in Iran.
The Minister denies that the Reviewer erred in any of these asserted respects.
Consideration
The Court has jurisdiction to deal with the application[18].
[18] SZQGA v Minister for Immigration [2012] FCA 593
Ground 1 – did the Reviewer make findings of fact not open on the evidence?
In Ground 1 the applicant identifies three findings of fact that are said to give rise to a jurisdictional error[19]. Those findings are the applicant’s:
a)frequency of the confrontations with the Basij;
b)threatened deportation; and
c)financial issues in Iran.
[19]see Craig v South Australia (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179.
Each of these matters are considered separately below. However, I accept one general point raised by counsel for the Minister about the no evidence ground of review. The making of a factual finding which is not supported by any evidence is not a jurisdictional error unless the fact in question is an essential pre-condition to jurisdiction (i.e. a jurisdictional fact)[20]. However, I prefer not to speak of jurisdictional error in relation to a Reviewer’s report and recommendation. A Reviewer does not exercise any defined jurisdiction other than to prepare a report and recommendation for possible future consideration by the Minister. The Minister is in no way bound by the report and may choose not to consider it. The relevant jurisdiction under the Migration Act is that of the Minister, not the Reviewer. I prefer to address claims of legal error in relation to issues central to the report and recommendation in those terms.
Frequency of confrontations with the Basij
[20] Minister for Immigration v SGLB (2004) 207 ALR 12 at [39], SZAPC v Minister for Immigration [2005] FCA 995 at [47] per Madgwick J.
In her report the Reviewer said[21]:
[21] CB 170-171 at [73] and [75].
In his statutory declaration the claimant stated that he had been stopped and harassed by the Basij many times. They would always ask him for ID and would only let him go after he paid them a bribe. If he did not have any ID they would accuse him of stealing and being a spy. If he showed them the white card, “they would let me go. But not without abusing me in some way first.” In his RSA interview the claimant stated that the Basij would stop him and threaten him and he had to bribe them. They did this at checkpoints that they moved randomly. They would ask him where he was going and find fault with what he was wearing. They looked for an excuse to give him a hard time. He would pay them whatever he had and they would let him go. This occurred [once] a year, once every two years. He was asked if there was anything else he wanted to say about the Basij and he said, “no”.
…
In his IMR interview he also stated that the confrontations with the Basij occurred on a monthly basis and that on one occasion they beat him and sometimes they detained him for one or two days. … The [Reviewer] also does not accept that these incidents with the Basij occurred on a monthly basis or he would have mentioned this at previous stages…
Regarding the confrontations with the Basij, the applicant at the RSA interview said[22]:
Interviewer: Ok. Yeah right. How often you say, can you give an indication on how often it happens, once a year or is it once every 2 years?
Applicant:Different occasions you know like holidays, different occasions, just, at checkpoints.
[22] Affidavit of Christopher Scott Nielsen dated 18 April 2012 pages 30.50-51 and 31.1-2.
Regarding the frequency of the confrontations with the Basij, the applicant at the IMR interview said[23]:
Reviewer:How frequently were you, did the Basij harass you?
Applicant: Whenever you see them or they catch you.
Reviewer:But in your case, was that like every week, every month, only a couple of times a year? Is there some rough idea?
[23] Affidavit of Christopher Scott Nielsen dated 18 April 2012 page 11.4-8.
Applicant: Maybe once a month
The applicant asserts that the Reviewer made the following findings based on no evidence[24]:
a)The Reviewer did not accept that these incidents with the Basij occurred on a monthly basis or he would have mentioned them at previous stages.
b)The Reviewer found that the applicant had exaggerated his account of the frequency and severity of his encounters with the Basij.
[24] CB 171 at [73].
The applicant further asserts that, in making the finding at [25.a) above the Reviewer misquoted and misunderstood the evidence given by the applicant at the RSA.
Further, the applicant contends that, contrary to the finding at [25.b) above, the applicant’s recollection of the frequency of the confrontations with the Basij was consistent throughout. At both the IMR and RSA interviews, the interviewer suggests the frequency of the confrontations. At the IMR interview, the applicant indicates a qualified acceptance of the suggested “monthly” but does not positively assert the confrontations were monthly as found by the Reviewer. The Reviewer’s conclusions are said to be inconsistent with her summation of the evidence in her report[25].
[25] CB 162 at [38].
In respect of the first finding, in my view, whether or not the incidents with the Basij occurred on a monthly basis was not central to the Reviewer’s report and recommendation. Therefore, it is irrelevant whether there was evidence to support the finding. In any event, the Reviewer’s conclusion was in my view open to her on the material before her; prior to his interview with the Reviewer, the applicant had never asserted the incidents occurred on a monthly basis. There was therefore an evidentiary foundation for the finding.
In respect of the second finding, no question of no evidence arises. The Reviewer’s conclusion that the applicant’s claim was not credible was not a finding of primary fact which required an evidentiary basis. Rather it was a conclusion based on an assessment of the applicant’s credit. By analogy with decisions of a review Tribunal, findings on credit are a matter for the Reviewer[26].
[26] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
I reject the suggestion in the applicant’s submissions that the tenor of the questions put by the Reviewer potentially raises a denial of procedural fairness. The applicant had a reasonable opportunity to give his own recollection of the events.
Threatened deportation
The Reviewer made the finding: “[t]he claimant has not been threatened with deportation in the past”[27].
[27] CB 172 at [79].
In neither the IMR interview transcript nor the RSA interview transcript does either the RSA assessor or the Reviewer ask the applicant whether he has been threatened with deportation. The applicant made no claim that he was or was not threatened with deportation.
The applicant contends that, in the absence of any evidence, the Reviewer’s finding at [30] above was not open to be made on the facts.
Further, the applicant contends that the threat of deportation is not an instance of persecution under s.91R(2) of the Migration Act and so is irrelevant in circumstances where the applicant did not make such a claim and the country information referred to by the Reviewer does not suggest that the applicant would be threatened with deportation.
The answer to the applicant’s complaint is that, whether or not the applicant had been threatened with deportation was not central to the Reviewer’s report and recommendation. No material error is demonstrated, therefore, even if there was no evidence to support the Reviewer’s finding. In any event, I accept the Minister’s contention that the state of the evidence allowed the Reviewer to draw the inference that no threat had been made. The applicant had not given any evidence that he had been threatened with deportation and it would be expected that he would raise the point if such a threat had occurred.
I reject any further suggestion that there was a denial of procedural fairness for the same reason as at [30] above.
Financial issues in Iran
The Reviewer made the following findings: [28]
a)“[h]e acknowledged that he had no financial issues in Iran.”
b)“He was able to conduct his own business albeit in limited circumstances and earn a living.”
[28] CB 171 at [76]+.
The applicant gave the following evidence at the IMR interview[29]:
Reviewer:Also in your arrival interview when you were asked one of the reasons why you left Iran, you said that he economy was bad and you were forced to close your shop down and could not make a living. Where as I get the impression today you are saying that your partner was still going when you left the shop[30].
Applicant:I worked with him but I am not a partner anymore, I took my share so I close down my own business.
Reviewer:But why did you close down your business?
Applicant:Because we lost money
[29] Affidavit of Christopher Nielsen dated 18 April 2012 page 13.26-34.
[30] referring to IMR transcript at 9.14-15.
In relation to the finding of the Reviewer at [37.a)], from the IMR interview transcript, the applicant contends that it cannot be said that the applicant acknowledged that he had no financial issues. The applicant’s answer is a positive statement that he faced financial difficulties in Iran. The applicant contends that it was not open for the Reviewer to make a finding of fact that there were no financial issues faced by the applicant in Iran.
In relation to the finding of the Reviewer at [37.b)], the Reviewer looks to the history of the applicant running a business in Iran, but gives no weight to the present state of affairs; that is, that the applicant was forced to close down his business as a result of losing money.
Again, whether or not the applicant had financial difficulties in Iran was not a question upon which the Reviewer’s report and recommendation depended.
In any event, viewed in its proper context, the Reviewer’s findings about the applicant’s financial circumstances went to the issue of whether the discrimination faced by the applicant affected his capacity to subsist[31]. It was open for the Reviewer to reach this finding in circumstances where the applicant gave evidence that he had operated a business for twelve years and also earned income selling artwork[32].
[31] CB 171 at [76].
[32] CB 161 at [32].
Ground 2 – did the Reviewer fail to consider an integer of the applicant’s claim?
Plaintiff M61/2001E v Commonwealth[33] has confirmed that a failure “to address one of the claimed bases of [an applicant’s] fear of persecution” constitutes “a denial of procedural fairness” and thus, reviewable error.
[33] (2010) 85 ALJR 133 at [90].
In Ground 2 the applicant asserts three failures to consider integers of his claims. The failures which are said to give rise to error [34] are a failure to consider:
a)the confrontation with the Basij in the presence of the applicant’s wife;
b)the inability of the applicant to return to Iran;
c)whether the applicant belonged to the broader particular social group of undocumented people living in Iran whose members are targeted by the Basij.
Confrontation with Basij whilst accompanied by his wife
[34] An inference of error by reason of a failure to consider a legally relevant matter may be drawn from the omission of discussion of a significant or essential issue raised by s.36(2) of the Migration Act, (cf. Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [10], [34]-[35], [68]-[69], [75].
In the broader context of evidence of confrontations with the Basij, the applicant said: “… I took my wife out only on two occasions because once I remember I took her out we went out and we were harassed and beaten I couldn’t do anything about it, I could not complain”[35].
[35] Affidavit of Christopher Scott Nielsen dated 18 April 2012 page 12.6-11.
The Reviewer’s recommendation turned on the severity of the harm faced by the applicant perpetrated by the Basij. The Reviewer made an adverse finding on the evidence of confrontations with the Basij[36]. The Reviewer based that adverse finding on perceived inconsistencies across the applicant’s accounts of the confrontations. The applicant contends that the Reviewer failed to consider the incident when the applicant was accompanied by his wife, and thus the Reviewer failed to consider an integer of his claim. This is said to affect the substantive reasoning of the Reviewer and establish an error of law.
[36] CB 171 at [75].
There is no doubt that the Reviewer considered the applicant’s claim to have been harassed and beaten by the Basij[37]. The only question therefore is whether any error arises by reason of the Reviewer’s failure to specifically mention the applicant’s evidence that his wife was present during one of these incidents of mistreatment.
[37] CB 171 at [75].
The inference that the Reviewer failed to consider an integer of the applicant’s claim should not be drawn lightly[38]. In this case, the mere failure of the Reviewer to mention in her reasons a peripheral fact concerning the alleged mistreatment does not give rise to the inference that the applicant’s evidence was not considered[39].
[38] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68] per curiam.
[39] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46] per curiam.
In any event, it is necessary to distinguish between evidence and an integer of a claim. In this case, whether or not the applicant’s wife was present during an incident of harassment was irrelevant to the question of whether the applicant has a well-founded fear of persecution. It was not part of the applicant’s claims that he was humiliated as a husband, or protector, or as a male. In this sense, the presence of the applicant’s wife was evidentiary detail rather than an integer of the claim. Even if the Reviewer did overlook the presence of the applicant’s wife during an incident of harassment, this would only amount to a failure to have regard to evidence. Such a failure does not amount to jurisdictional error in the case of a tribunal[40], and by analogy should not be accepted as a material legal error by a Reviewer.
Inability for the applicant to return to Iran
[40] Minister for Immigration v SZNPG [2010] FCAFC 51 at [28] per North and Lander JJ.
The Reviewer questioned the applicant about his capacity to return to Iran[41]. The applicant raised claims of:
a)imputed political opinion; and
b)an inability to return because he is a Faili Kurd.
[41] Affidavit of Christopher Scott Nielsen dated 18 April 2012 page 11.17-12.3 and 13.38.
The Reviewer considered the applicant’s imputed political opinion. The applicant asserts, however, that the Reviewer did not consider his ability to legally re-enter Iran.
The right of re-entry in circumstances such as those raised by the applicant has been considered previously. Where such a claim is specifically raised and not considered, a reviewer will have fallen into legal error.[42]
[42] DZAAN v Minister for Immigration & Anor [2012] FMCA 37. A Faili Kurd claimed that the Reviewer had an obligation to consider the fact that the applicant could not re-enter Iran. This was not a claim specifically raised by the applicant, but it was argued that the Reviewer should have relied on country information, which was to this effect and was available to her (but not cited in the reasons). In that case the error was not enlivened because the applicant did not specifically make the claim.
In the present case, the contention that the Reviewer erred by failing to consider the applicant’s claim that he was unable to return to Iran is, for two reasons, misconceived.
First, the Reviewer had no obligation to consider a claim that was not articulated by the applicant and that was not clearly raised on the available material[43]. In this case, the applicant did not make any claim based on his inability to return to Iran. On the contrary, the applicant advanced a claim that he would be harmed upon his return[44]. Nor do I accept that such a claim was clearly raised by the material before the Reviewer.
[43] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68] per curiam.
[44] CB 111.
Secondly, and in any event, the Reviewer did consider the applicant’s practical inability to return to Iran. The Reviewer expressly referred to the restrictions on non-citizens returning to Iran[45]. The Reviewer also found that the inability to return to the last country of habitual residence does not, of itself, demonstrate refugee status[46].
Failing to consider whether the applicant belonged to the broader particular social group of undocumented people living in Iran whose membership are targeted by the Basij
[45] CB 165 at [53].
[46] CB 173 at [84].
The applicant asserts that the incorrect assessment of the ambit of a social group gives rise to a failure to consider an integer of his claims[47]. He submits that once his claims and the country information were before her, it was incumbent on the Reviewer to address whether the applicant belonged to a more general group of undocumented people living in Iran. Relevant to this report was that the Reviewer in this case had implicitly accepted that the members of this group were targeted by the Basij by reason of their attribute of lacking registration documents and that this was itself a particular social group by reason of that shared attribute. The failure of the Reviewer to then assess the applicant’s claims against this particular social group is said to have resulted in legal error.
[47] SZPZI v Minister for Immigration & Anor [2011] FMCA 530 per Federal Magistrate Smith at [50] and [52]–[54] considering Faili Kurds in Iran.
The applicant contends that, in her report, the Reviewer accepts country information[48] and elements of the applicant’s claim[49] that suggest that the applicant was persecuted not only by reason of him being a Faili Kurd, but rather due to his membership of a particular social group that were persecuted due to their common attribute of lacking registration documents.
[48] CB 163-165 at [46]-[54].
[49] CB 170-171 at [71]-[74].
In her report the Reviewer defines the ambit of the social group as “Faili Kurd”[50].
[50] CB 171 to 173 at [78], [80] and [81]-[84].
In Appellant S395/2002 v Minister for Immigration[51], McHugh and Kirby JJ state at [31]:
Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group.
[51] [2003] HCA 71.
The applicant also claims that the Reviewer failed to afford the applicant procedural fairness because she did not consider whether the applicant was part of a broader social group constituted by undocumented persons who are targeted by the Basij.
The first answer to this asserted error is that the applicant did not articulate a claim based on his membership of a social group defined as undocumented people living in Iran who are targeted by the Basij. Rather, his claim was expressly based on the claim to be a stateless Faili Kurd. Nor was a claim to be part of a separate social group consisting of undocumented persons clearly raised on the material before the Tribunal. In these circumstances, the Reviewer was under no obligation to consider this issue[52].
[52] NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at [68] per curiam; cf. SZPZI v Minister for Immigration [2011] FMCA 530 at [50].
Secondly, as I have already noted, the requirement that the Reviewer consider the claims made by the applicant is an element of the obligation of procedural fairness[53].Characterising the social group as “an undocumented non-citizen” rather than a stateless Faili Kurd could have no bearing on the outcome of the review. If the applicant was found not to be at risk as a stateless Faili Kurd without a white card, it is impossible to suggest he was at risk as an undocumented non-citizen. Accordingly, there has been no breach of procedural fairness because there has been no actual unfairness and no practical injustice[54].
[53] Plaintiff M61/2010E (2010) 243 CLR 319 at [91].
[54] Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1 at [34]-[38] per Gleeson CJ.
Ground 3 – did the Reviewer rely upon irrelevant material?
The applicant claimed that he would have an imputed political opinion for seeking and being refused asylum abroad[55]. In Craig v South Australia[56] the High Court held that relying on irrelevant material gave rise to an error of law. Further, where a conclusion is not supported by evidence for a critical fact upon which the Reviewer relied, a reviewer will fall into error[57].
[55] Affidavit of Christopher Scott Nielsen dated 18 April 2012 page 11.17 – 12.3.
[56] op cit at [20] above.
[57] SFGB v Minister for Immigration [2003] FCAFC 231 at [19].
In considering this claim the applicant contends that the Reviewer relied on three irrelevant documents[58]:
a)Refugee Review Tribunal Research Response IRN37255;
b)Amnesty International Report From Protest to Prison: Iran one year after the election; and
c)DFAT report titled “Response to CIS Request No. IRN11072; Return of failed asylum seekers”[59].
[58] constituting country information.
[59] CB 173 at [86].
The Reviewer stated[60]:
From information [including the Country Information] set out above the reviewer concludes it depends on the political profile of the person who has travelled to the West and is a failed asylum seeker, as to whether they face the risk of harm on their return to Iran. This view is supported by the country information referred to in the RSA officer’s decision.
[60] CB 174 at [90].
The country information is said to be only pertinent to Iranian citizens returning from seeking asylum abroad and not germane to the applicant, a stateless Faili Kurd.
The applicant submits that the country information does not support the Reviewer’s findings. Further, it is said to contradict those findings; Faili Kurds who leave Iran will not normally be allowed to return[61].
[61] Affidavit of Christopher Scott Nielsen dated 21 May 2012 at page 81, paragraph ‘R7’.
Further, the applicant claims that the Reviewer put the country information to the applicant incorrectly. At the IMR interview she stated[62]:
Reviewer: The country information available seems to indicate that people who have no profile or who’ve not been involved in any anti-regime activities when they go back maybe questioned but then released soon after that. (emphasis added)
[62] Affidavit of Christopher Scott Nielsen dated 18 April 2012 page 11.36.
Thus the Reviewer is said to have had regard to an irrelevant consideration.
I accept that the country information, to which the Reviewer referred, refers to Iranian citizens and not stateless Faili Kurds. Nevertheless, there are several reasons why this ground of review has no merit.
First, the choice of country information is a matter for the Reviewer[63].
[63] NAHI v Minister for Immigration [2004] FCAFC 10 at [13] per curiam.
Secondly, one of the references which the applicant now claims is irrelevant was in fact relied on by the applicant in his submission to the Reviewer[64]. Having relied on the information, the applicant cannot now claim that it is irrelevant.
[64] CB 111.
Thirdly, the applicant suggests that the material in question was relevant only to Iranian citizens who are returned to Iran. However, there is nothing to indicate that this is the case. The information in question was relevant to failed asylum seekers returning to Iran. This could include both citizens and non-citizens alike.
Fourthly, there is nothing to indicate that the Migration Act expressly or impliedly prohibited the Reviewer from taking the country information into account[65].
[65] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Fifthly, it was open to the Reviewer to have regard to the treatment of Iranian citizens returned to Iran after making failed claims for asylum in Western countries in order to assess the treatment of non-citizens returned to Iran in the same circumstances.
Finally, even if the information was not relevant to the applicant’s circumstances, he was not prejudiced by the Reviewer’s use of it. If as appears from the country information, the applicant would be refused entry to Iran, there would be no opportunity for the Iranian authorities to harm him.
Ground 4 – did the Reviewer fail to apply the correct legal test to the applicant’s claims?
As Craig v South Australia[66] makes plain, a failure to apply the correct legal test is an error of law. The applicant contends that the Reviewer applied the incorrect legal test to:
a)whether the detention of the applicant was a threat to the applicant’s liberty; and
b)whether the applicant’s behaviour was a voluntary choice or motivated by fear.
[66]op cit [20] above.
Threat to liberty
The Reviewer accepted that the applicant was stopped in the street and extorted[67]. The Reviewer concluded that, because the applicant was not imprisoned the applicant’s liberty was not threatened.
[67] CB 171 at [75].
In the report the Reviewer makes the following finding regarding the applicant’s liberty[68]:
The claimant has never been imprisoned or threatened with death for reasons of being a Faili Kurd …and the reviewer finds that, based on his past experiences and the country information set out above, that there is no real chance that the claimant would be imprisoned or be killed or seriously threatened with death, or otherwise be seriously harmed on account of being a Faili Kurd and that his fear of persecution is not well founded.
[68] CB 172 at [80].
The applicant submits that the requirement for the applicant to be imprisoned for his liberty to be threatened is incorrect. He contends that the Reviewer should have given effect to the test as articulated in this Court[69]:
In my opinion, a threat falls within the meaning and contemplation of section 91R(2)(a) if the words spoken or written, or the actions taken, could fairly engender in the mind of a reasonable person a reasonable apprehension that his or her life or liberty is genuinely at risk.
[69] VBAO v Minister for Immigration [2004] FMCA 268 per Walters FM at [33].
The applicant submits that if the Reviewer had correctly applied the test, the Reviewer would have concluded that the incidents with the Basij constituted threats to the applicant’s liberty.
The applicant does not press an earlier contention that the Reviewer erred in her application of the “real chance test”. The Reviewer found that the applicant was not at risk of serious harm despite the fact that his identity card had expired. She reached this conclusion by reference to the applicant’s previous experiences and country information which indicated that authorities in Iran show considerable tolerance to Iraqi refugees[70]. In reaching the conclusion that the applicant was not at risk of serious harm, the Reviewer correctly assessed whether the applicant had a well founded fear of persecution by reference to whether there was a real chance the applicant would be harmed[71]. In my view, the applicant has not demonstrated any legal error. If the applicant’s real complaint is that the Reviewer did not reach the correct decision on the merits, then the short answer is that that is beyond the scope of this proceeding.
[70] CB 172 at [79].
[71] Minister for Immigration v Guo (1997) 191 CLR 559.
There is a question whether the Reviewer misapplied the definition of “serious harm” in s.91R(2) of the Migration Act. The Reviewer accepted that the Basij had stopped the applicant in the street and extorted money from him. However, the Reviewer also found that the applicant had exaggerated the frequency and the severity of his mistreatment by the Basij. The applicant claims that the accepted extortion must constitute a threat to the applicant’s liberty and thus serious harm within the meaning of s.91R(2). However, there was no evidence that the extortion was accompanied by threats to the applicant’s liberty. It was open to the Reviewer to find that the applicant’s treatment was not serious harm within the meaning of s.91R, particularly in circumstances where the Reviewer made adverse credit findings in respect of this aspect of the applicant’s evidence.
Behaviour motivated by fear
In her report the Reviewer considered the fact that the applicant produced his white card to the Basij. The Reviewer concluded relevantly that the applicant was not persecuted in Iran and would not face persecution in the future if returned to Iran on the proviso the applicant continues to produce his white card[72].
[72] CB 171 at [75] and [79].
The compulsion to produce the white card is said to be indicative of persecution. In Appellant S395/2002 v Minister for Immigration[73] the High Court held that where an applicant would act in a way which would not attract persecution, decision makers must ask whether this is a voluntary choice on the part of the applicant or is motivated by fear of persecution[74].
[73] (2003) 216 CLR 473.
[74] Appellant S395/2002 v Minister for Immigration [2003] HCA 71 and Applicant NABD of 2002v Minister for Immigration [2005] HCA 29. In Appellant S395, the Court held that persecution can be made out where an Applicant must act discreetly to avoid the possibility of harm. In NABD v Minister for Immigration, the Court held that it was not persecution where the applicant behaved that way as a choice rather than in fearing adverse consequences. It was also noted that the applicant was not required to take steps to avoid persecution.
The applicant submits that the Reviewer failed to consider whether the applicant produced the white card and paid extortion moneys voluntarily, or because he feared persecution in the event that he could not comply with the Basij’s demand.
Given the Reviewer’s conclusion about the confrontations with the Basij, the applicant contends that failure to conclude that the behaviour was motivated by fear is an error of law.
The applicant’s contention is certainly arguable but, on balance, I reject it. The alleged modification in this case was the applicant having to carry and produce his identity card. The Reviewer was required to (and did) consider the applicant’s case by reference to his actual circumstances, rather than by reference to what steps he could reasonably take to avoid harm[75]. Specifically, the Reviewer had regard to the fact that the applicant had in the past produced his identity card to the Basij[76]. There was no evidence to suggest that the applicant would not do the same in the future. Further, it is not, in my view, tenable to suggest that a requirement merely to produce identification is itself a form of persecution (cf. a requirement that homosexuals live discreetly).
[75] Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473.
[76] CB 172 at [79].
Ground 5 - did the Reviewer engage in “unreasonable reasoning”?
The Reviewer found[77]:
If not carrying a white card resulted in detention and beating the claimant would be unlikely to forget to carry it, which reinforces the Reviewer’s view that he was not ill-treated in this way.
[77] CB 171 at [75].
The Reviewer’s reasoning is said to be illogical and a material legal error[78]. The Reviewer’s error of logic is said to be the fallacy of false cause. The fallacy is that the likelihood of forgetting the white card is dependent on the severity of being punished by the Basij. The applicant contends that it was incumbent on the Reviewer to consider what would happen if the applicant forgot his white card. Thus, it was not open to the Reviewer to conclude the applicant was not ill-treated by the Basij.
[78] see Minister for Immigration v SZMDS [2010] HCA 16.
Unreasonableness in the sense contended for by the applicant will only be demonstrated where the approach taken by the Reviewer is one that no reasonable person could adopt. Further, not every lapse in logic gives rise to reviewable error[79].
[79] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ.
In this case the Tribunal’s reasoning does not approach the threshold of unreasonableness. It is not illogical to conclude that a person would take care to avoid mistakes which may have serious consequences.
Nevertheless, in my view, the Reviewer’s reasoning, while falling short of being unreasonable in any relevant legal sense, presents some difficulty in the assessment of the future risk of harm the applicant faces in Iran. The Reviewer referred at [49][80] to information from the Australian Department of Foreign Affairs and Trade concerning Iranian residency cards:
On 18 March 2010, DFAT[81] provided some general information on green and white residency cards:
Does the post have further information regarding the issue of white and green cards to Faili Kurds and the rights that owning such cards confer?
… r.8. Green and White Residency Cards. Green cards were issued to Iraqi refugees until the end of 2001. From 2002 onwards, green cards were replaced by white cards and green cards were no longer considered valid. Green cards could be exchanged for white cards for a fee of approximately IRR 40,000 (USD 4). White cards expire annually, but can be renewed for IRR 40,000. If a holder fails to renew a card before it expires, then it is not possible to have it replaced. Those without valid cards risk deportation, although in practice Iranian authorities show considerable tolerance towards Iraqi refugees.
[80] CB 164.
[81] DIAC Country Information Service 2010, Country Information Report No. 10/13 – Iran: Faili Kurds, (Sourced from DFAT advice of 18 March 2010), 19 March.
The applicant had asserted that he faced physical harm at the hands of the Basij if he was unable to produce his expired residency card. The Reviewer reasoned that the applicant would always carry his card because of the consequences of not doing so in terms of that risk of physical harm.
The Reviewer reasoned at [79] of her report[82]:
The reviewer is of the view that there is no reason why the claimant would be treated more harshly in the reasonably foreseeable future for reasons of being a Faili Kurd than he has been in the past. The claimant has skills in carpentry and running a business. He has the support of his mother who has been able to obtain an Iranian birth certificate and access the rights of an Iranian citizen. Although his white card has expired, it actually expired in 2008 and the claimant stated that he was still able to use it as if it was valid, until he left in July 2010. He was able to produce it to the Basij during spot checks and the reviewer can see no reason why he could not continue to produce his white card in these circumstances. The claimant has not been threatened with deportation in the past. The country information specifically quoted in the RSA officer’s decision indicates that those without white cards in theory face deportation but in practice the Iranian authorities show considerable tolerance towards Iraqi refugees. The reviewer finds that there is no real chance that the claimant, in the reasonably foreseeable future, would be deported by the Iranian authorities.
[82] CB 171-172.
The difficulty with this aspect of the Reviewer’s reasoning is that she did not consider the practical consequences of the applicant being unable to replace his expired white card. While the applicant might take care to carry the white card with him because of the risk of physical abuse at the hands of the Basij if he did not do so, if he lost the card, or if it was stolen or if, over time, it simply wore out and became unusable then it would logically seem reasonably likely that the applicant would face difficulties. The Reviewer did not consider the risk that the applicant might lose or have his card stolen or that it might wear out. However, the Reviewer was only required to look at the reasonably foreseeable future. As time passed, the risk of the applicant losing or having his card stolen or it wearing out would increase. It was, in my view, implicit in the Reviewer’s reasoning that in the reasonably foreseeable future the applicant would take care to protect his white card because of the importance of it. While the Reviewer’s reasoning is debatable, the applicant has, in my view, failed to establish legal error in that reasoning.
Conclusion
The applicant has failed to demonstrate legal error in the report of the Reviewer. Accordingly, I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 31 July 2012
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