SZRBQ v Minister for Immigration
[2013] FMCA 12
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBQ v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 12 |
| MIGRATION – Review of recommendation by Independent Protection Assessor – whether assessor failed to address an integer of the applicant’s claim – whether the assessor made a finding that was irrational, illogical, unreasonable or not open on the evidence – no error – application dismissed. |
| Migration Act 1958 (Cth), s.476 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). Marincola, J 1954 (further revised edition 2003), Herodotus: The Histories, Penguin Classics, Penguin Books, London at 462 – 463. |
| Applicant: | SZRBQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | KERRY BOLAND, IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 95 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 1 November 2012 |
| Date of Last Submission: | 1 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms B Tronson |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the Respondents: | Mr HPT Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 16 January 2012, and amended on 4 April 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 95 of 2012
| SZRBQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| KERRY BOLAND, IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 16 January 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 4 April 2012, seeking a declaration that Ms Kerry Boland, in her capacity as Independent Protection Assessor (“the assessor”), made error in her recommendation to the Minister for Immigration and Citizenship (“the Minister”) that the applicant not be recognised as a person to whom Australia has protection obligations pursuant to the 1951 Convention relating to the Status of Refugees (“the Refugees Convention”), as amended by the 1967 Protocol relating to the Status of Refugees[1].
[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).
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; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14.
Background
The following background can be relevantly ascertained from the two volumes of the Court Book (“1CB” and “2CB”) put before the Court.
The applicant is a citizen of Iran, and of Islamic faith (1CB 11, 1CB 38.5 and 1CB 55). He arrived at Christmas Island on 12 February 2011 and was said to be an “unauthorised boat arrival” (1CB 94). On 6 March 2011 the applicant sought an evaluation of his claims to require protection in Australia (1CB 35 to 1CB 69). An officer of the Minister’s department determined that she could not be satisfied that the applicant was such a person (1CB 90 to 1CB 102).
The applicant sought further assessment and was interviewed by the assessor on 12 August 2011 ([22] at 1CB 114). On 10 October 2011, the assessor recommended to the Minister that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention (1CB 110 to 1CB 124).
The applicant’s claims to protection, as they were ultimately presented to the assessor, were that he faced persecution from the Iranian authorities (in particular, the paramilitary Basij) because of:
1)His relationship with a Christian girl and his “visits” to her church.
2)His suspected conversion to Christianity.
3)As a returnee from a Western country where he had sought asylum.
The assessor did not accept that the applicant was a credible witness. She rejected the factual basis for his claim to fear harm because of an association with a Christian girl ([43] at 1CB 121 to [46] at 1CB 123). The assessor also found that the applicant had departed Iran legally with his own passport ([47] at 1CB 123). Further, that there was no evidence to support the claim that he would be persecuted ‘solely’ because of his application for asylum in a Western country ([48] at 1CB 132 to 1CB 124).
Before the Court
At the hearing Ms B Tronson of counsel appeared for the applicant. Mr HPT Bevan of counsel appeared for the respondent Minister. The affidavit of Ms Sue Archer of 19 March 2012 was read into evidence, with no objection. It annexed a transcript (“T”) of the interview with the assessor.
The grounds of the amended application are in the following terms:
“1. The second respondent failed to make a recommendation according to law by failing to address an integer of the applicant’s claim.
Particulars
(a) The applicant claimed he had a well-founded fear of persecution from the Iranian authorities (including the Basij) because he could be suspected of converting to Christianity on the basis he had met with his girlfriend on the church grounds of her Armenian Church.
(b) The second respondent did not make a finding as to whether or not the applicant met with his girlfriend on the church grounds of her Armenian Church.
(c) The second respondent did not make a finding as to whether or not the applicant could be suspected of converting to Christianity on the basis he had met with his girlfriend on the church grounds of her Armenian Church.
(d) Accordingly, the second respondent failed to address an integer of the applicant’s claim as outline in paragraph (a) above.
2. The second respondent failed to make a recommendation according to law by making a finding that was:
(a) illogical or irrational; and/or
(b) so unreasonable no reasonable independent protection assessor could have made it; and/or
(c) not open on the evidence available to the second respondent.
Particulars
(a)The second respondent found there was ‘no evidence’ to support the claim that the applicant would be persecuted for having sought asylum and for having been in a western country.
(b) In her consideration of country information, the second respondent referred to the UK Home Office COI Report Iran published June 2011 (COI 2011 Report).
(c) The COI 2011 Report contained specific evidence which supports the claim referred to in paragraph (a) above, being a reference to an Amnesty International report from 6 May 2011 (cited at [31.24] of the CO1 2011 Report).
3. The second respondent failed to make a recommendation according to law by making a finding in relation to a jurisdictional fact that was:
(a) illogical or irrational; and/or
(b) so unreasonable no reasonable independent protection assessor could have made it; and/or
(c) not open on the evidence available to the second respondent.
Particulars
(a) The second respondent found the applicant had no genuine interest in converting to Christianity.
(b) The second respondent found the applicant did not attend Church services at an Armenian Church in Tehran.
(c) The second respondent found the applicant was not a credible witness.
(d) Each of the findings in (a), (b) and (c) above was a critical step in finding that the applicant would not be persecuted for reason of his religion, imputed political opinion, or for issues arising out of his relationship with an Iranian Christian girl.
(e) Each of the findings in (a), (b) and (c) above was based substantially on the second respondent’s construction of the applicant’s description of services at the Armenian Church in Tehran.
(f) In the premises, the second respondent’s construction of the applicant’s description of services at the Armenian Church was a critical step in the second respondent’s review.
(g) In the premises, the content of the applicant’s description of the services at the Armenian Church in Tehran is a jurisdictional fact.
(h) The second respondent misconstrued the applicant’s description of services at the Armenian Church in Tehran, and this misconstruction was an error of fact in relation to a jurisdictional fact.
(i) In the premises, the second respondent’s error of fact infected the second respondent’s duty to examine and deal with all the claims for asylum made by the appellant.”
Ground One
The applicant’s attack in ground one on the assessor’s statement of reasons appears to be as follows. The applicant claimed that he was in love with a Christian girl. After meeting her, first, in the street, he met her once a week on Sundays at a Christian Church where he said he attended services. He claimed to fear harm from the Basij whom he said were aware of his visits, and because he would be perceived to have gone to the church to worship. As a Muslim, his worship at a Christian Church would be seen as an act of apostasy.
The applicant now initially submits that the assessor’s relevant reasoning and findings (as set out in the statement of reasons at [43] at 1CB 121 to [46] at 1CB 123) at first glance appear to have dealt with the applicant’s claim.
However, the applicant contends that the assessor’s reasons are “disturbingly Delphic” (with reference to MZYPW v Minister for Immigration & Citizenship & Anor [2012] FCAFC 99 (“MZYPW”) at [22] per Flick and Jagot JJ) and that the assessor has not made all the relevant findings such as to deal with all aspects of the applicant’s claims.
The applicant concedes that the assessor made some relevant findings, but argued that the assessor made no finding as to whether the applicant met the Christian girl on the church grounds, or whether the applicant would be suspected of converting to Christianity on the basis that he met her on church grounds.
The importance of this failure by the assessor was explained on the basis that the church in question was surrounded by a wall, with entry through a gate opening on to the street. The applicant could be seen knocking on the door to gain entry and would be seen there with his girlfriend who is known to be a Christian.
Plainly, a failure to deal with a claim, or claims expressly made or that “clearly arise” from the material before the decision-maker, leads to jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60] per Black CJ, French and Selway JJ and Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389).
The applicant’s reliance on MZYPW is apparently to draw on, and seek to apply, the proposition that statements of reasons dealing with matters of this type (that is, recommendations to the Minister about whether a person should be given protection as a refugee in Australia) must be sufficiently clear and coherent in presentation such that is could be said that the claims made by the applicant, and all aspects of those claims, were addressed.
The applicant argues that while Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at [30], with the reference there to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280) directs that such reasons should not be read “…minutely and finely with an eye keenly attuned to the perception of error”, in the current case the assessor (at [43] at 1CB 121 to [46] at 1CB 123 of her reasons) did not present the Minister with a coherent presentation of her reasoning, and thereby led to the similar difficulty identified in MZYPW.
I do not agree that the reviewers reasons at [43] – [46] are Delphic, let alone disturbingly so. Given what their Honours said in MZYPW, the meaning ascribed to “Delphic” (Shorter Oxford Dictionary – “Of or relating to Delphi, a town of Phocis in Ancient Greece, esp. as the site of a sanctuary and oracle of Apollo; resembling or characteristic of the oracle of Delphi; (of an utterance etc.) obscure, ambiguous, enigmatic”) the reasons are not obscure, ambiguous or even enigmatic. Importantly, beyond assertion, the applicant did not reveal how this can be said to be the case.
In my view, any obscurity or ambiguity arises from the applicant’s own various, and inconsistent, evidence given at interviews with immigration officials and, ultimately, the assessor. The transcript of the interview put before the Court on the applicant’s instruction, reveals the culmination of the revelation of this characteristic of the applicant’s claims and evidence (see in particular at T13 to T17 and, in particular, T15, line 37 to T16, line 44).
Having regard to all of the material before the Court the applicant’s claim to fear persecutory harm on return to Iran arose primarily out of his claimed relationship with an Armenian Christian girl. The fear was said to emanate from the Iranian authorities (in context, the Basij) and the perception, or suspicion, of converting to Christianity. The assessor plainly understood this ([42] at 1CB 121).
The specific complaint before the Court is that the suspicion of conversion to Christianity arose from the applicant meeting with his girlfriend on the grounds of her church. The assessor’s failure to make a finding as to whether or not he met her in the church grounds, and the failure to make a finding as to whether or not he could be suspected of conversion because of these meetings, was said to be a failure to deal with an integer of the applicant’s claims.
It is here that the character of the applicant’s evidence to the various officials and the assessor became particularly problematic for him. When he was interviewed on arrival the applicant relevantly stated that he and his girlfriend saw each other (“meet up”) on the street (1CB 30). No mention was made of any church or meeting at church.
The applicant’s representatives made submissions on March 2011 and relevantly said that the applicant would be “accused of converting to Christianity as he was going to the church and associated with Christians prior to leaving Iran” (1CB 86.8).
Before the departmental officer, the applicant was reported to have said (1CB 98.1):
“The claimant states he and his girlfriend were never stopped or questioned because they decided to meet at her church in [K] Street on the eastern side of Tehran. He claims that since the restrictions were brought in they have met in the church compound, never in the church building and never at a church service.”
That is the applicant and his girlfriend met at the church, but he did not go inside. However, before the assessor, the applicant claimed that he went to church with his girlfriend, attended services, and that he was fearful of being accused of converting to Christianity.
It must be said that, in the circumstances, it is difficult to see how the applicant can now assert that the assessor did not squarely deal with his particular claim to fear persecutory harm and each integer of that claim.
As set out above at [21], the integer not addressed is said to be whether or not the applicant met his girlfriend in the church grounds. Any plain reading of [43] at 1CB 121 to [46] at 1CB 123, and in particular [44] at 1CB 122 to [45] at 1CB 123, shows that the assessor understood that the applicant, ultimately, claimed that he went with his girlfriend to the church grounds. The assessor also understood that the applicant also gave various conflicting, or inconsistent, accounts as to where he actually met his girlfriend (see [44] at 1CB 122).
There are two things that can be said here. These conflicting accounts clearly contributed to the assessor’s finding that the applicant was not a credible witness, and that his factual account was, therefore, subject to concerns (see, in particular, [42] at 1CB 121).
Second, it must be remembered, the claim to fear persecutory harm was said to be that the applicant feared that the authorities, through the Basij, would come to know that he had met his girlfriend in, at, or around, her church, and would impute apostasy, or possible conversion to Christianity to him.
The assessor made clear findings rejecting each of these elements relevant to this claim. Further, the assessor rejected the applicant’s explanations for the inconsistencies in his various accounts. The assessor rejected the claim that he would have to convert in order to marry his girlfriend. She noted that no proposal had been made and he had never met the girlfriend’s parents. The assessor also found that the applicant had never been questioned, or even approached, by the authorities. Noting that, on his own evidence, his relationship with this girl was of about two years duration.
Importantly, and directly relevant to the claim to fear harm from the authorities because of the relationship, the assessor rejected that the Basij had any interest in the applicant (the assessor’s relevant reasoning is at [45] at 1CB 122).
The assessor dealt with the claim, and its constituent elements, as ultimately presented by the applicant. In this consideration, she did take into account his claim to have met the girlfriend in the church. That aspect of his evidence was, given its inconsistency with other evidence he gave, not sufficient to lead the assessor to find for him.
In essence, when plain regard is had to the assessor’s reasoning, the applicant’s complaint seeks to challenge the assessor’s findings as to the rejection of the applicant’s claim to fear persecutory harm from the Basij, and Iranian authorities, because of his claimed relationship with a Christian girl.
What the applicant now describes as “Delphic”[2] is simply his inability to understand, or his unwillingness to accept, that the assessor rejected the basis for his claimed fear because of the very matter, or integer, in respect of which he said the assessor should have made a specific finding. That is, that he met his girlfriend at the church. This was an element in the rejection of the credibility of his claim as a whole. It can hardly be said in these circumstances that the assessor failed to deal with it.
[2] It does not require a Themistocles to decipher the assessor’s utterances here. See Marincola, J 1954 (further revised edition 2003), Herodotus: The Histories, Penguin Classics, Penguin Books, London at 462 – 463. Battle of Salamis v Persians 391BC, the Athenian “wooden walls” and the Oracle at Delphi.
In a real sense, where the applicant actually met his girlfriend is neither here nor there, given that the assessor rejected (for reasons open to her on what was before her) the applicant’s claim that he would be seen as an apostate or a possible convertee to Christianity because of his relationship with her. His evidence that he met her at, or in, or near, the church was addressed. Ground one therefore is not made out.
Ground Two
Ground two asserts that the assessor made an illogical or irrational finding, or made a finding that was so unreasonable that no reasonable assessor could have made it, or it was not open to be made on the evidence before the assessor.
That finding was said to be ([48] at 1CB 124):
“…I have considered the possibility that the claimant would be persecuted based solely on having sought asylum and having been in a western country and I am satisfied there is no evidence to support this conclusion.”
The ground, by way of particulars, asserts that, contrary to the finding that there was no evidence in this regard, the assessor elsewhere referred to the “UK Home Office COI Report – Iran published June 2011” (see also below at [52]) which did contain evidence to support the claim that the applicant would be persecuted for having sought asylum and for having been in a Western country.
In submissions, both written and then oral, the ground appeared to take an additional, or different, dimension. The impugned error was variously described as a failure to consider relevant evidence, or a relevant consideration, or a failure to consider the applicant’s claim. Further, that the erroneous finding “sidestepped” the assessor’s obligation to consider “the issue” before her.
It must be said that it is becoming increasingly common in matters of this type for applicants with legal representation to allege legal error on a particular basis (or, as in this case, a number of bases) and then to attempt to explain the complaint in submissions, or perhaps expand the complaint, to other alleged errors of law.
No attempt of substance was made in submissions to address the complaint initially pleaded of illogicality or irrationality or unreasonableness. This can best be exemplified with the observation that while passing reference was made to Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) per Crennan and Bell JJ, it was not directly for the purpose of supporting any of these three contentions.
Further, if the attack was to be in relation to illogicality, irrationality or unreasonableness, no attempt was made to explain the relevant distinction between irrationality, illogicality or unreasonableness in a decision, as opposed to some anterior findings in the decision (Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [20] per North and Lander JJ and SZQYU v Minister for Immigration & Anor& SZQYV v Minister for Immigration & Anor [2012] FMCA 1114 at [39] per Cameron FM).
Ultimately, and at best for the applicant, I understood the attack in ground two to be that the assessor was in error in finding that there was no evidence to support the applicant’s claim that he was at risk of persecution as a returnee from a Western country because there was such evidence before the assessor.
Further, that the issue, or matter, about which the assessor made that finding was either a jurisdictional fact or “central to the assessor’s report” (with reference to SZQZV v Minister for Immigration & Anor [2012] FMCA 472, and SZMDS at [119]), or “sidestepped” this obligation to consider this issue (MZYPW).
It appears that in this sense the complaint of “sidestepping” and the like, therefore, can also be understood as a complaint of a failure to consider the evidence. The assessor is said to have ignored, or overlooked, a matter being a relevant consideration, leading ultimately to rejection of the applicant’s claims in this regard.
Whatever way the applicant seeks to characterise this complaint, it fails for essentially two reasons put forward by the Minister. First, the applicant has misunderstood, or misrepresented, the assessor’s actual reasoning. Second, the assessor did not fail to consider relevant evidence, relevant material, or, for that matter, a claim made.
The impugned part of the assessor’s reasoning is reproduced at [37] above. I can only agree with the Minister that it is important to pay proper regard to the assessor’s actual reasons for rejecting the applicant’s claim to have a well-founded fear of persecution as a returnee from a Western country. Further, that it is inappropriate to pick out one sentence of an entire statement of reasons, and assert error, without having regard to the entirety of the reasoning. Such an approach can lead to misunderstanding the assessor’s analysis. In any event, even that one sentence has not been properly read by the applicant.
The entirety of the reasoning is relation to the “returnee” and failed asylum seeker issue is at [48] (at 1CB 123 to 1CB 124):
“I have considered the claimant’s evidence that the Iranian authorities will know he had been to a western country and sought asylum and the agent’s submissions that he will may be arrested because of his membership of a particular social group (PSG) ‘asylum seekers in Australia’. The claimant’s profile and the country information do not support this claim. Having regard to the country information referred to in the agent’s submission, I accept that there have been reports of the Iranian Diaspora being harassed and intimidated especially in 2009 following the presidential election. This information however, does not support the conclusion made by the agent that there is targeted persecution of failed asylum seekers simply because they have failed in their application for protection in another country. I have considered the possibility that the claimant would be persecuted based solely on having sought asylum and having been in a western country and I am satisfied that there is no evidence to support this conclusion…”
[Emphasis added.]
Clearly, the assessor considered the claim made by the applicant that he would be at risk because he was a returnee from a Western country and had sought asylum. This was a claim expressly advanced by the applicant’s representative.
The assessor said that she had regard to the country information referred to in the representative’s submissions, but found that the information, referred to by the representative, did not support the proposition that there was targeting of failed asylum seekers on return “simply” because they failed in this application in another country.
The impugned sentence contains the word “solely”. In context, the assessor, in the impugned sentence, turned to consider the possibility that the applicant would be persecuted only (“solely”) on the basis of having sought asylum, and having been in a Western country.
She said there was no evidence to support this proposition. The applicant directs attention to the “UK Home Office – Border Agency report of 2011” (see 2CB 780 to 2CB 923). He says that paragraphs [31.24] and [31.25] provide evidence in support of the applicant’s contention. They do not.
Paragraph 31.24 deals with another person of interest to Amnesty International who had returned to Iran from a Western country (France) where he had sought asylum. That person was described as a “student activist” who had participated in demonstrations against the Iranian government in Iran. He also took part in demonstrations against the Iranian government in France.
It is here that the use of the word “solely” is important. The assessor was plainly saying (at [48] at 1CB 123 to 1CB 124) that there was no evidence that the applicant would be persecuted “solely” because he returned from a Western country and having sought asylum. The person referred to at [31.24] plainly faced the prospect of persecutory harm for a number of other critical factors which, even on his own evidence, are not relevant to the applicant’s circumstances.
At [31.25] (2CB 899) there is a reference to another returnee who it was claimed had been arrested on return to Iran. Here, again, there are distinguishing features with the applicant’s circumstances that take the basis for that person’s claims to fear persecution beyond being “just” a failed asylum seeker and returnee. Significantly, he was said to be a member of the Kurdish minority in Iran (itself a basis for persecutory harm as often claimed by Kurdish asylum seekers in Australia).
There is also a reference in that paragraph to an article written by a former Iranian Supreme Court judge. Again, the report of that article does not provide support for the applicant’s argument now.
The article did not (at least as referred to in the report at [31.25]) focus on the difficulties faced by failed asylum seeker returnees solely for being failed asylum seeker returnees. The basis for returnees becoming of interest to the authorities was said to be where “alleged violations of Iranian law [had been] committed outside Iran”, making up accounts of alleged persecution, or seeking asylum on the pretext of supporting the opposition. All these put this evidence beyond the scope of the fear of persecution “solely” because of being a failed asylum seeker returnee from a Western country.
The applicant has pointed to no other evidence to support the claims in ground two. No matter how this complaint is framed, it does not reveal legal error on the part of the assessor.
Ground Three
Ground three also asserts the wide range of error referred to in ground two above. That is illogicality, irrationality, unreasonableness, and the assertion that the recommendation was not open on the evidence. Further, it must be said that the particulars do little to explain the exact legal error from the range available as stated in the ground.
In essence, I understood the particulars to put forward the proposition that the assessor made three findings, in context, presumably relevant now to this ground. They are that the assessor found that the applicant had no genuine interest in converting to Christianity, that he did not attend services at his girlfriend’s church, and that he was not a credible witness.
The assertion is that each of these findings was a “critical step” leading to the finding that the applicant would not be persecuted for reason of religion, imputed political opinion, or because of his relationship with a Christian girl.
The particulars contend that each of the initial findings was based on the assessor’s “construction” of the applicant’s description of services at the Armenian Christian Church. This “construction” was also said to be a “critical step” in the review. The “argument” appears to be that the content of the applicant’s description of the church service is a jurisdictional fact. This construction was a misconstruction of the applicant’s evidence and this was an error of fact in relation to a jurisdictional fact. This was said to infect the assessor’s “duty to examine and deal with the applicant’s claims”.
In my view, this can best be described as an interesting way of expressing disagreement with the assessor’s findings.
The submissions before the Court did little to assist the explanation of the argument’s connection to specifically what legal error was being alleged. The submissions explained the complaint as being that the assessor’s “characterisation” of the evidence was “wrong”.
In the assessor’s summary of the relevant evidence at the interview with the applicant she records that the applicant said ([24] at 1CB 115):
“…The guy was talking about Jesus Christ and how he revealed to Mary that she would have a baby…”
[I note that the reference to “guy” was never explained – see further below at [66] with reference to T13, lines 10-50. It is possible it was a reference to a Christian priest.]
From the transcript of the interview, the relevant evidence is (T13, lines 10– 50):
“ASSESSOR: And when you went into the church what was the service? Can you describe the service to me?
CLAIMANT (INTERPRETER): Just we were sitting and the guy was coming and talking and also there was praying.
ASSESSOR: When you say you went to the church once a week on Sundays, how many Sundays just approximately did you go to the church?
INTERPRETER: He said that he doesn’t know and he gives an example that he’s going to church now also here when he’s here, but he doesn’t know how many times he has gone to church.
ASSESSOR: Now when you say you went into the church and you sit there and the guy was talking and there was praying, can you just be a little bit more specific about the church service?
CLAIMANT (INTERPRETER): How specific? What do you mean?
ASSESSOR: When you say the guy was talking and there was praying, what was he talking about? What did he say to the people in the church?
INTERPRETER: I couldn’t get it so I want him to explain it again.
ASSESSOR: I’ll ask the question again. The question is when you went into the church and you said the guy was talking, who do you mean the guy was talking? Which guy was talking and what was he saying?
INTERPRETER: He says that there was talking about Jesus Christ, that when the mother of Jesus Christ, God, revealed to her himself and say that you’ll have a baby, Miriam or Mary, she said okay I don’t have a husband, how can I have a boy or a baby. And then he wants to continue.
ASSESSOR: Continue
CLAIMAINT (INTERPRETER): I don’t remember much he says they were talking about these things.
ASSESSOR: So if you went to the church once a week on Sundays and the service lasted one and a half hours and you said the guy was talking, what else did he say?”
First, as set out above, and in relation to ground two, this ground also suffers from poor definition of the actual legal error and, separately, a misconstruction of the assessor’s actual findings (see further below).
Second, I cannot see how this particular content of the applicant’s evidence can be said to be, or involve, a jurisdictional fact. The claimed “centrality” of the assessor’s findings to the assessor’s conclusion, and recommendation, does not, simply for that reason, raise this piece of evidence, even if it has been misconstrued, to fit the description of a jurisdictional fact. As the Minister submits, if there is such a jurisdictional fact, in the circumstance of this case it is to be derived from the assessor’s state of satisfaction as to whether the applicant is a person who is owed protection by Australia.
Third, the applicant’s reliance on Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, and in particular at 88 – 89 per Gleeson CJ, is, with respect, misplaced. In my respectful view, the important issue before the High Court there is made clear (at 88) :
“The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the Tribunal, there was a denial of procedural fairness and, if so, whether the consequence is that prohibition should go under s 75(v) of the Constitution.”
In the current case, there was no denial of procedural fairness. The assessor wrote to the applicant’s representative after the interview at which the impugned statement of what was said, at the interview, was put to the applicant for comment (1CB 104):
“…The additional information on which you are invited to comment follows:
● According to the taped recording of your Protection Obligations Evaluation (POE) interview you said ‘I meet my girlfriend at the church. I did not attend church services; I did not go inside the church building’. In your Independent Protection Assessment (IPA) last Friday you said ‘I was going to church with my girl friend. … I went once a week on Sundays and the service lasted for one and half hours. I would sit there and the guy was talking and there was praying. The guy was talking about Jesus Christ and how he revealed to Mary that she would have a baby… The service was in the Armenian language’.
This information is relevant because it would suggest that you have not presented credible information about attending church services at the Armenian church with your girl friend in Tehran.
…”
Importantly, as this extract shows, the assessor’s focus was not necessarily on what was said in the church, but the inconsistency between the applicant’s evidence at the interview with the departmental officer, and then the assessor. In the first, he said he did not go inside the church. Before the assessor, he said he went inside and heard what was said.
The representative’s answer to the invitation to comment takes no issue with the impugned statement as such (see the answer at 1CB 160 to 1CB 107). In fact, the representative’s answer is, in a sense properly, focused on the critical issue in the disposition of the applicant’s claim. That is, the inconsistency of the accounts as to where he met his girlfriend (inside or outside the church).
This is the issue which the applicant appears now to have forgotten before the Court. The applicant made no claim to fear persecutory harm because he was seeking to actually convert to Christianity per se. That implication, if not assertion, in the applicant’s particulars, and argument now, is not supported by the material before the Court.
The applicant’s claims to fear persecutory harm (other than for reason of being a returnee) were said to arise from the claimed perception of the authorities arising from his relationship with a Christian girl, and that he would have been seen attending the Christian Church. It was from this that the suspicion would, or could, arise that he was seeking to convert to Christianity.
The assessor made no finding based on the impugned “misconstruction” of the applicant’s evidence relating to what was allegedly said in the church. No mention is made of this in her subsequent analysis. The applicant’s claims to fear persecution arising from his relationship with the Christian girl did not turn on what he heard the “guy” talking about in the Armenian Church.
As set out above, the applicant’s claim in this regard was rejected because of the various inconsistencies in his evidence and other difficulties with the applicant’s claimed factual account. Whether Jesus Christ foretold of his own coming to his mother, or not, or more pointedly, whether the applicant said this is what the “guy” in the church said, or even if he did not say this, played no part in the assessor’s reasoning (see at [43] at 1CB 121 to [46] at 1CB 123). The content of the church service, while explored at the interview or, as revealed above (see as set out at [66] above), attempted to be explored, played no part in the ultimate analysis.
The applicant’s submission before the Court that the assessor’s adverse credibility finding was influenced by this matter is not made out when regard is had to the assessor’s actual reasoning. The assertion that the assessor could not put this out of her mind is fanciful supposition, even at best. Plainly, she did put it out of her mind. None of the assessor’s analysis in rejecting the applicant’s claims can be said, even inferentially, to derive from the impugned statement.
To the extent that the ground, initially at least, sought to propose illogicality or irrationality in the assessor’s reasoning, this must also be rejected. I agree with the Minister that there is nothing in the assessor’s reasons to suggest that the recommendation that the applicant is not a person to whom Australia owed protection obligations is one which no rational or logical assessor could arrive on the same evidence (SZMDS). As for the remainder, it does not reveal legal error.
Conclusion
None of the three grounds pleaded in the amended application, nor as explained in submissions before the Court, has made out jurisdictional, or even other legal, error on the part of the assessor. In the circumstances, it is appropriate that the application to the Court, as amended, be dismissed. I will make an order accordingly.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 22 January 2013
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
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