SZRBV v Minister for Immigration
[2012] FMCA 1235
•20 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1235 |
| MIGRATION – Application to review decision of Independent Merits Reviewer – whether lack of procedural fairness in relation to issues raised with applicant or in findings – whether apprehended bias in light of treatment of applicant’s evidence where similar language and findings in other decisions of the reviewer in relation to similar claims – whether reviewer bound to address or take into account reasons of the Refugee Status Assessor. |
| Migration Act 1958 (Cth) ss.36, 46A, 91R, 195A |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Kioa and Others v West and Another (1985) 159 CLR 550; [1985] HCA 81 Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 MZYPA v Minister for Immigration and Citizenship [2012] FCA 581 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 |
| Applicant: | SZRBV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | C PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 118 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 3 August 2012 |
| Date of Last Submission: | 5 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughes |
| Solicitors for the Applicant: | King & Wood Mallesons |
| Counsel for the Respondents: | Mr Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 118 of 2012
| SZRBV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| C. PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant seeks a declaration that a recommendation of an independent merits reviewer (the IMR or the reviewer) dated 14 December 2011 was not made in accordance with law and an injunction restraining the first respondent from relying upon the recommendation. The reviewer recommended that the applicant not be recognised as a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The applicant sought review by application filed in this Court on 18 January 2012. He now relies on an amended application filed in Court on 3 August 2012.
The applicant, who claimed to be a stateless Faili Kurd of Iraqi descent who had lived all his life in Iran, arrived at Christmas Island in November 2010. On 12 December 2010 he was interviewed by an officer of the Department. A transcript of the entry interview is in evidence before the court as Annexure A to the affidavit of Amelia Louise Margaret Avery-Williams affirmed on 2 May 2012.
In that interview the applicant claimed that he had been born in Iran but that he was a stateless Faili Kurd. He claimed that his father had been killed in the Iraq-Iran war and that his mother lived in Iran, although she had been born in Iraq. The applicant claimed he left Iran because there was a “lack of freedom”. He claimed he did not have any documents and that he could not “prosper”, continue his studies and/or work in Iran or obtain public health benefits without identity papers. He claimed to fear that if he applied to the authorities for such documents he might be arrested, imprisoned and possibly deported to Iraq. In response to a question about whether any specific incidents had made him leave Iran, he responded that he had not had “any troubles so far”, but that if they arrested him he would be in trouble and there would be “negative consequences”. He gave evidence that he had never been arrested or detained by the police or by a security organisation.
On 22 January 2011 the applicant made a request for a refugee status assessment (RSA). He provided further information, including a statutory declaration in which he repeated his claim to be a stateless Faili Kurd who was “denied freedom and [his] basic human rights on a daily basis”. He also claimed that he had been “subjected to arbitrary arrest and detention by the authorities such as the police and Basij and harassed to provide non existent identity documents”. He claimed that due to his statelessness he had no access to accommodation, sporting facilities, education, insurance and health care and had no guaranteed legal rights. He also claimed that the Iranian authorities had banned the use of traditional clothes for the Faili Kurds in his village and that he could not “enjoy” his life with his family because they were “targeted and questioned by the authorities”. He claimed he was not eligible to register his marriage so he and his wife were “vulnerable to accusations and abuse”. He claimed to fear that if he returned to Iran he would be mistreated by the authorities because he left Iran illegally and was a stateless Faili Kurd.
The applicant was interviewed by the officer conducting the RSA on 25 January 2011. The transcript of the RSA interview is also in evidence before the court as Annexure B to Ms Avery-Williams’ affidavit.
On 15 March 2011 the RSA determined that the applicant was not a refugee within the meaning of the Refugees Convention. In the absence of evidence to the contrary the RSA accepted for the purposes of the assessment that the applicant was a stateless Faili Kurd who was born and usually resident in Iran. However the RSA did not accept that the applicant had suffered or would suffer mistreatment amounting to persecution for any Convention reason if he were to return to Iran.
On 29 April 2011 the applicant sought review of the RSA assessment by the IMR. His adviser provided a detailed written submission in support of his claims and also copies of his Australian medical records. He attended an interview with the reviewer on 5 October 2011. A transcript of the interview is in evidence as Annexure C to the affidavit of Ms Avery-Williams.
On 29 November 2011 an officer of the Department sent an email to the applicant's representatives on behalf of the reviewer inviting them to make further written submissions and suggesting that they may wish to address some 16 listed questions or issues. The letter also gave the applicant the opportunity to provide comments on certain items of information (copies of which were provided) within seven days.
By email of 1 December 2011 the advisers confirmed that they had contacted their client who had provided answers to the reviewer's queries. The applicant’s adviser did not provide any further response or submissions to the IMR.
On 14 December 2011 the reviewer found that the applicant did not meet the criterion for a protection visa in s.36(2) of the Migration Act 1958 (Cth) and recommended that he not be recognised as a person to whom Australia has protection obligations under the Refugees Convention as amended by the Protocol Relating to the Status of Refugees.
The IMR reasons
In his statement of reasons the reviewer set out the claims made by the applicant at various times and referred to the evidence before him and to country information about various issues. In his findings and reasons the IMR summarised the applicant's claims to be a Faili Kurd born near Ilam in Iran whose parents had been born in Iraq and expelled to Iran in or about 1980 and were neither Iranian nor Iraqi nationals. The reviewer recorded that the applicant claimed that he did not have a nationality, that he was stateless and that he had no right to enter and reside in Iran, Iraq or any other country. He claimed to fear persecution in Iran for several reasons, including as a stateless Faili Kurd; as a stateless Faili Kurd with no identity documents who had suffered discrimination in the past and faced future discrimination in a number of respects; and on the basis that he had suffered harm in the past, in particular on one occasion where the Basij held him for a day when he was walking with his wife, and on another when he was insulted for wearing improper clothes but let go “when they found out nothing against him”. He claimed the wearing of traditional Kurdish clothes was banned and that those who defied the ban were “subject to humiliation”. He also claimed that as a stateless Faili Kurd who left Iran illegally he feared reprisals from the authorities on the basis that he would be considered a spy, tortured and harmed in Iran and might be deported to Iraq. He claimed that since he had been in Australia members of the Basij and “intelligence bodies” had been to his home on several occasions and had questioned his wife about his whereabouts.
The reviewer acknowledged that it had been claimed that the applicant had a well-founded fear of persecution for reasons of his race (Faili Kurd ethnicity), his membership of a particular social group (stateless and undocumented persons), and his imputed political opinion (of spy, separatist, pro-Western). The applicant also claimed that he would be “considered a spy and a traitor for having travelled overseas and for seeking protection in a western country”.
The reviewer stated that the identity of the claimant was a “significant issue”. He had regard to the fact that, notwithstanding the applicant’s claims about his residence, schooling, work and family in Iran, and that he had held a passport in another name that enabled him to leave the country, he had provided no documentation that established his status in Iran or his parents' status in Iraq. However, having regard to all the applicant's evidence, for the purposes of the decision the reviewer proceeded on the basis that his identity was as claimed, despite the absence of relevant documentary evidence.
In light of medical records ostensibly showing the applicant’s medical condition during his detention, the reviewer addressed the applicant's ability to give evidence at the IMR interview. The reviewer noted that there was no suggestion that the ability of the applicant to give evidence at his interview “had been impeded”. He had regard to the conduct of the interview and the applicant's apparent understanding and coherent answers. The reviewer found that he did not have any concerns that the applicant had been “unable to provide evidence and tell his story for any reason”.
The reviewer accepted the applicant’s claims that he was a Faili Kurd and a Shia Muslim and found it “plausible” that he was from and had lived in Ilam, Iran all his life where his wife, child and extended family continued to reside (based on the “significant Faili Kurd population in Iran” in general and in Ilam in particular).
However the IMR did not accept that the applicant’s ethnicity meant that he was a stateless and undocumented non-citizen of Iran as he claimed. The IMR rejected his claims in this respect for a number of reasons.
The IMR accepted that the applicant’s claims that he had been born in Iran to Iraqi-born Faili Kurds who had been expelled from Iraq and that he was not an Iraqi national were consistent with country information about the departure of Faili Kurds from Iraq and Iraqi laws nullifying Iraqi citizenship/nationality for Iraqis of Persian origin. In relation to Iran, the IMR accepted that there were Faili Kurds of Iraqi origin who were registered with the Iranian government and held Amayesh (refugee registration) cards and that there were others who were not registered and did not hold such cards. However the IMR had regard to information from the Office of the United Nations High Commissioner for Refugees (UNHCR) in relation to the number of such people and to Department of Foreign Affairs and Trade (DFAT) advice that it was “probable” that “the majority of Faili Kurd refugees in Iran [were] registered and [had] Amayesh cards”. The reviewer accepted the advice from UNHCR and DFAT and concluded that “the number of registered and unregistered Faili Kurd refugees remaining in Iran [was] now low”. He found that the “overwhelming number” of Faili Kurds in Iran were Iranian nationals. While the reviewer acknowledged that this did not exclude the applicant's claim to be an undocumented Faili Kurd refugee, he rejected the proposition that a Faili Kurd in Iran was “by that fact itself” a refugee.
The reviewer considered the applicant’s claim that he was an “unregistered” Faili Kurd refugee in Iran as his parents were unregistered refugees. He claimed his parents had approached the Iranian authorities, but that they had not been given Amayesh cards or other identification, and also that he had unsuccessfully sought to get an Iranian National ID card. However the reviewer rejected the claim that the applicant was “a non-citizen of Iran, undocumented and stateless”, for what he described as “the reasons that follow”. The reviewer continued:
When the claimant was asked where his paternal and maternal grandparents had been born, where they lived, and where they died, he indicated he is not sure and only knows they passed away whilst in Iran. However, his grandparents (sic) (and in particular the circumstances of his father's father) would have been not only significant family history, but also an important element in the claimed efforts of his father (before he died) and mother to get documentation in Iran. Additionally, when asked where his parents had been born and lived he merely indicates Iraq. Similarly, the parents' residence in Iraq would have been not only significant family history, but also an important element in the claimed efforts of the parents to get documentation in Iran.
In sum, his antecedents is a significant element of his narrative that he is stateless and undocumented having been born to stateless parents who had themselves been born in Iraq. His vague evidence and claimed lack of knowledge of anything about his grandparents other than that they died in Iran, and his lack of detail about the parents' birth and where they lived in Iraq, leads me to consider he is being evasive and causes me serious concern.
The reviewer then addressed the applicant’s submission that as a stateless Faili Kurd he had been deprived of basic human rights, harassed and persecuted by the authorities, subject to arbitrary arrest and detention by the police and Basij, frequently harassed to provide identity documents that he did not possess and also subjected to arrest and torture. However the reviewer found that:
…whilst I have serious concerns with the claimant's narrative about being stateless, his evidence that I do accept leads me to consider that he and his family did not, and do not suffer the deprived, harassed and persecuted life in Iran claimed. His evidence leads me to consider that whilst he lived in Iran he had no difficulties in showing his Iranian heritage and nationality.
The reviewer explained that his “serious concerns” with the applicant's claims “stemmed from his changeable evidence” and the explanations he had given for the alterations (which the reviewer detailed). In particular, the reviewer had regard to the difference between the applicant’s initial claim in his first interview that he had not had “any trouble so far”, that the authorities had “no impact on his day-to-day life” and that he had never been arrested or detained, and his later general claims that he had been harassed to provide identity documents and that he and his family had been “targeted and questioned by the authorities” and also his specific claims about harassment, arrest and detention by the Basij. The reviewer rejected the applicant’s explanation that he had initially “omitted all mention of the general harassment” as well as the specific claims because he thought such omission would assist his case, particularly as he now claimed that it was the “constant harassment” that had led him to depart to Iran and leave behind his wife and child. The IMR found that the applicant’s explanation suggested that he would say “whatever he [thought would] assist his case”. The reviewer did not consider that the problems with the applicant's evidence were explained by the medical evidence or otherwise.
The reviewer also had regard to the fact that, despite the applicant's general claims of harassment (that he was harassed and persecuted by the authorities for being a Faili Kurd, that he was stateless with no documents, that he had once paid money to people to be left alone and that the “relentless harassment” made him feel unsafe, uncomfortable and unable to stay), he had given only two specific examples of harassment, both at the hands of the Basij. These claims were that he was once detained for a day when he was seen walking with his wife and that on another occasion he was “insulted” for wearing improper clothes. The reviewer observed that both incidents ostensibly came about because of the applicant's public conduct, that they were “short-lived”, that they involved the Basij and not the Iranian authorities, and that the applicant was “let go without any particular consequences”. The reviewer accepted that the applicant was harassed by the Basiji and detained for a day because he had no documentation. However he had regard to country information that the Basiji “consider[ed] themselves Islamic moral guardians” and that they “harassed all Iranians over perceived moral issues”. The IMR did not accept that the Basiji’s actions showed that the applicant was targeted for any reason other than that he was walking with a woman in public. The reviewer concluded that the applicant was not targeted and then detained because of his ethnicity. In addition, the IMR found that the applicant’s “subsequent short detention and release without consequences” led him to conclude that the applicant had “relevant documents … that satisfied the Basiji of his identity and his marriage” and that there were no further concerns.
Furthermore, the reviewer did not consider that insults and harassment for wearing traditional Kurdish clothing (which had not been shown to be banned in the applicant’s province) constituted serious harm within s.91R(2) of the Migration Act for a Convention reason. The IMR also had regard to the fact that the applicant was let go on this occasion when the Basiji “found out nothing against him”. This also led the reviewer to conclude that the applicant had relevant documents that satisfied the Basiji of his identity.
In addition, insofar as the applicant claimed that harassment, ill-treatment and persecution “naturally flow[ed] from being a stateless/undocumented Faili Kurd refugee”, the reviewer found that the applicant’s “scant claims” of specific harassment, ill-treatment and persecution led him to consider that the applicant was not a stateless/undocumented Faili Kurd refugee as claimed.
The reviewer also considered, but rejected, the applicant's claims to lack education and employment opportunities in light of his own evidence in that respect. He found on the applicant’s evidence that his family were “well settled” in Ilam and that they appeared to live there “without difficulty”, supporting themselves through work. The reviewer addressed the claim that the family’s marriages could not be registered, but had regard to the applicant’s evidence that his mother had remarried in Ilam and that his sister was married. The IMR found that the applicant’s close family members had not been prevented from marrying and that the applicant “had not claimed, despite ample opportunity, that they faced any difficulties after their marriages”.
The reviewer also had regard to the “significant sum” the applicant had been able to gather from his savings and family savings to finance his travel to Australia. The IMR found that the applicant’s ability to save such a sum while also supporting a wife and child did not support the claim that he or his family lacked access to work and comparable wages for the reasons he claimed.
The reviewer considered the applicant's explanation for the ease of his departure from Iran through the international airport in light of country information in relation to the difficulties of departing on a forged and false Iranian passport. The reviewer detailed the evidence given by the applicant in this respect. The applicant’s evidence (including that his passport was “original”) and his late and vague claims of bribery of airport officials led the reviewer to conclude that the applicant departed Iran without incident because the passport was in fact his own. Contrary to the applicant’s suggestion that the smuggler had made arrangements at the airport, the reviewer concluded that no such arrangements were made because none were necessary.
The reviewer continued:
In sum, I accept the claimant is a Faili Kurd. However, I do not accept that his ethnicity therefore means he is stateless or undocumented or a displaced/stateless Iraqi or a child born to displaced/stateless parents from Iraq. Country information shows the large majority of Faili Kurds in Iran are Iranian nationals. I accept the claimant resided in Iran. But when I consider his claims concerning his life in Ilam city, and the circumstances of his family, and in light of the foregoing, I conclude he did not reside in Iran as a non-citizen and/or was not undocumented and/or stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation. I accept that the claimant and his family never held Amayesh cards, but conclude this is because they were not non-citizens/stateless/ refugees/undocumented in Iran and they had no need to hold Amayesh cards. I conclude the claimant never sought an Amayesh card because he had no need to. I do not accept the claimant or any of his family have been unable to access appropriate public services and benefits in Iran.
In these circumstances the reviewer did not assess whether the applicant had or was able to seek and obtain Iraqi nationality.
The reviewer went on to consider whether the applicant had a well-founded fear of persecution in Iran due to his ethnicity as a Faili Kurd. While the reviewer acknowledged that Faili Kurds who were non-citizens of Iran experienced “adverse treatment”, he did not accept that the applicant was a stateless and/or undocumented non-citizen in Iran. Having regard to the applicant’s claims about his situation in Iran that were accepted, as well as country information, the IMR did not accept that as a Faili Kurd the applicant “would be denied basic rights, including the capacity to subsist in Iran” in the reasonably foreseeable future. Nor did the IMR accept that the applicant would be harassed because he would be imputed to be non-Iranian or Iraqi.
The IMR acknowledged that the applicant had once stated that he had problems because of his religion. In light of his failure to provide any examples of harm as a result of his religion and the fact that the applicant’s religion was the dominant religion in Iran, on the material before him the reviewer did not accept that the applicant would face serious harm amounting to persecution for reasons of his religion in Iran.
The reviewer considered the applicant's claim to fear returning to Iran having regard to his claim to have departed using a false passport and how the Iranian authorities would view his travel to Australia. However the reviewer found that as the applicant was an Iranian national he had no need to organise a false passport to depart Iran and that he did not depart Iran using a passport that was not his own. The reviewer accepted that “any attempt to involuntarily return the [applicant] as a failed asylum seeker to Iran would require consultation with Iranian authorities”, but also had regard to country information that showed that “a returnee who had left Iran illegally and applied for asylum overseas would likely merely be detained, questioned and fined on their return, and perhaps monitored”. The reviewer did not accept that such treatment rose to the level of serious harm in s.91R(2) for a Convention reason or that the applicant departed Iran illegally. The reviewer did accept that the applicant used a people smuggler to come to Australia, but found that this did not show that he was stateless. The IMR did not accept that this would cause the applicant “difficulties on return to Iran”.
Based on country information, the reviewer did not accept that “the mere fact of being a Faili Kurd mean[t] that [the applicant] ha[d] an imputed anti-regime political opinion”. In light of the applicant’s particular claims the IMR found that he had no political profile and that there was nothing in his profile that would lead him to face a real chance of serious harm in Iran because of any Convention ground in the reasonably foreseeable future.
While the reviewer accepted that persons with a high profile or a political profile might face difficulties on return to Iran, he found that the applicant had no political profile in Iran, that he had not undertaken any political activities in or outside Iran and that he would not seek to undertake any political activities in Iran. There was said to be nothing in the applicant’s profile, his past employment as a labourer in Ilam or in his family profile to suggest that “he would be of adverse interest to the Iranian authorities or considered a spy on his return”. The reviewer did not accept that “the mere fact” of having been a failed asylum seeker in Australia would cause the applicant to be persecuted on his return to Iran. He found that the applicant did not have in Iran, and would not have on return, an imputed political opinion arising from his claims to be an undocumented Faili Kurd, stateless or the son of displaced/stateless Iraqi refugees. The reviewer reiterated that he did not accept these claims.
The reviewer concluded that if the applicant returned to Iran in the reasonably foreseeable future there was not a real chance he would face serious harm amounting to persecution for a Convention reason.
The reviewer did not accept that the Basiji and Iranian authorities had developed an “adverse interest” in the applicant since he left Iran. He found that they had no interest in the applicant prior to that time and no current adverse interest in him and rejected the claim that they had been to his home and questioned his wife as “a late fabrication”.
The reviewer concluded that the applicant was a Faili Kurd, but that he was not stateless and/or undocumented and that he was not born to stateless/displaced Iraqi refugees. Rather, the reviewer found that the applicant was an Iranian national with a right to enter and reside in Iran. The IMR rejected the applicant’s claims about past discrimination and persecution and did not accept that he faced persecution on the Convention ground of nationality or as a member of a particular social group “consisting of nationality or those lacking a nationality” (such as undocumented refugees of Iraqi nationality).
Finally, the reviewer found that having regard to the parts of the evidence of the applicant that he accepted, he had not suffered serious harm in Iran for any of the reasons he claimed. There was said to be “no real chance” that the applicant would be imputed with a political opinion supporting Kurdish separatism and/or the Iraqi government or that he would be accused of spying in the reasonably foreseeable future. The IMR did not accept that the applicant would be imputed with a political opinion as a returned failed asylum seeker from the West. After considering cumulatively the applicant’s past circumstances in Iran, his future circumstances if he returned to Iran and country information, the reviewer found that there was not a real chance that the applicant would suffer persecution for any Convention reason in the reasonably foreseeable future.
The applicant’s answers to post-interview questions and procedural fairness
The first ground in the amended application is that the IMR failed to accord the applicant procedural fairness in three ways, each of which relates to the fact that in a post-IMR interview email dated 29 November 2011 sent to the applicant’s solicitor on behalf of the IMR, the first two questions (referred to for convenience as “the questions”) asked were as follows:
1. Where were [the Applicant's] paternal and maternal grandparents born (ie village, province, country)? Where did they live, and where did they die?
2. Where were [the Applicant's] father and mother born, and where did they live?
The applicant’s response through his adviser was as follows:
1. The Applicant is not sure where his maternal and paternal grandparents were born. He knows that they all passed away whilst in Iran.
2. The Applicant parents were born in Iraq, the (sic) spent their childhood there and were deported to Iran with their families in 1980 during the Saddam Hussein regime.
The first way in which the reviewer was alleged to have failed to accord the applicant procedural fairness is that he is said to have:
(i) considered that the Applicant's account, that he did not know the details of the province or village in Iraq where his grandparents were born, lived and died and/or the province or village in Iraq where his parents were born and lived, was important to the Second Respondent's decision and may be open to doubt,
but:
(ii) did not ask the Applicant to expand on this aspect of his account and explain why his account should be accepted.
There are six particulars to this aspect of ground one (referred to as “failure to ask the applicant to elaborate”). The first particular refers to the fact that the applicant was asked the questions for the first time in the email of 29 November 2011. The second particular sets out the adviser's response of 1 December 2011.
The particulars continue:
(iii) The Second Respondent found that knowledge of the province or village where the Applicant's grandparents were born, lived and died and the province or village where the Applicant's parents were born and lived would have been significant family history and an important element in the claimed efforts of his parents to get documentation in Iran [page 31, para 75 (the second time it appears) IMR Decision].
(iv) The Second Respondent reasoned that the Applicant's lack of knowledge of anything about his grandparents other than that they died in Iran and his lack of detail about his parents' birth and where they lived in Iraq led the Second Respondent to draw an adverse inference against the Applicant that he was being evasive and caused him "serious concern" [page 32, para 76, (the second time it appears) IMR Decision]. This formed part of the Second Respondent's reasons for rejecting the Applicant's claim to be stateless or undocumented [para 91, IMR Decision].
(v) The Applicant was not given an opportunity to explain why he did not give evidence, or make submissions, concerning where his grandparents were born and lived, or in which province or village in Iraq his parents were born and lived, in circumstances where there was a reasonable explanation being the Applicant's family circumstances.
(vi) Accordingly, the Second Respondent failed to afford the applicant procedural fairness: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 81 ALJR 515 at [47].
Secondly, it was claimed in the amended application that the reviewer failed to accord the applicant procedural fairness in that he:
(b) … failed to inform the Applicant that his inability to particularise in which province or village in Iraq his grandparents were born, lived and died and/or which province or village in Iraq his parents were born and lived was a matter material to his claim to be stateless or undocumented or that a response which was not sufficiently detailed would lead to the drawing of an adverse inference.
The particulars to this part of ground one (referred to as “failure to advise about materiality and adverse inference to be drawn”) repeat the particulars in paragraphs 1(a)(i) to 1(a)(iv) and add:
(ii) The Second Respondent did not inform the Applicant at any time that it may be unable to make a finding that the Applicant was stateless or undocumented without the provision of details concerning in which province or village in Iraq his grandparents were born or lived or died or in which province or village in Iraq his parents were born and lived.
(iii) The Second Respondent did not inform the Applicant at any time that an adverse inference may be made against him if the Applicant was unable to provide details concerning in which province or village in Iraq his grandparents were born, lived or died or in which province or village in Iraq his parents were born and lived.
(iv) The Second Respondent failed to inform the Applicant that a response which was not sufficiently detailed would lead to the drawing of an adverse inference.
(v) If the Applicant had been informed that a response which was not sufficiently detailed would lead to the drawing of an adverse inference, he could have sought more detailed answers from his mother who still lives in Iraq.
The third way in which the reviewer was said to have failed to accord the applicant procedural fairness is as follows:
(c) [T]he Second Respondent made a finding without first informing the Applicant and giving him an opportunity to comment, namely that a significant element of the applicant's family history that would be known to the Applicant was where his parents and grandparents were born, lived and died.
In respect of this part of ground one (referred to as “failure to give the applicant an opportunity to comment on a finding”) the applicant repeated the particulars in relation to the first aspect of ground one.
As pleaded, this ground involves an assertion that the reviewer had to:
a)ask the applicant to expand on his responses to the questions and explain why his account should be accepted; and/or
b)inform the applicant that an insufficiently detailed response to the questions was material to his claim to be stateless and would lead to the drawing of an adverse inference; and/or
c)inform the applicant and give him an opportunity to comment on the potential finding that a significant element of his family history that would be known to him was where his parents and grandparents were born, lived and died.
It was contended that the lack of procedural fairness that resulted in these circumstances could be viewed in a number of ways (as suggested in the alternative bases on which ground one was put), but that it was plain that the reviewer's conduct was procedurally unfair.
The reviewer was said to have drawn an adverse inference based on the answers to these questions in finding that knowledge of where the applicant's grandparents (and in particular his father's father) had lived and died would have been significant family history and an important element in the efforts of the applicant's parents to get documentation in Iran and in making a similar finding in relation to the applicant’s knowledge of his parents' residence in Iraq.
It was also submitted that these circumstances had led the reviewer to find that the applicant was evasive and that this caused the reviewer "serious concern". Such serious concern was said to be one of the reasons why the reviewer found that the applicant had not resided in Iran as an undocumented non-citizen. The applicant submitted that this was made plain by the finding in paragraph [91] of the reviewer's decision that
[W]hen I consider his claims concerning his life in Ilam City, and the circumstances of his family, and in light of the foregoing, I conclude he did not reside in Iran as a non-citizen and/or was not undocumented and/or stateless. [Emphasis added].
The post-interview email was said to be the first time the applicant was asked for the information referred to in questions one and two. It was suggested that it was “significant” that the email was sent nearly two months after the interview. This was said to mean that “any relevant context” from the interview had likely “faded” from the applicant's mind.
It was submitted that it was procedurally unfair of the reviewer to use the applicant’s inability to answer these questions in deciding against his claims without giving him an opportunity to explain why he could not do so.
Reliance was placed on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 and Kioa and Others v West and Another (1985) 159 CLR 550 at 628 - 629; [1985] HCA 81. It was submitted that the facts in this case were similar to those in SZBEL in which Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated (at [43] – [44]) as follows:
Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues.
…
The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
Reliance was also placed on the remarks in Kioa v West (applied by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 (at [30])) that:
The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
Counsel for the applicant submitted that it was not obvious and that there was nothing that brought to the applicant's attention the possibility that his inability to answer the questions or to give detailed answers about his parents and grandparents would, of itself, lead to an adverse inference. The applicant contended that it was apparent from the transcript of the IMR interview that the issue of the relevance of the antecedents did not arise in the interview. It was also said that it was not apparent from the written questions where such questions were leading. In particular it was said not to be apparent that if the applicant could not give an answer he would be found to be evasive. The applicant submitted that it was important that there was no context to the questions in issue, and that at the interview the reviewer had not asked the applicant a lot of questions about his parents or in any way indicated that his antecedents were important, or put to him that it was curious that he did not know these things and that this suggested that he was being evasive.
The applicant submitted that the reviewer made a finding on the assumption that his antecedents were important to the applicant’s claims and that he would have known them had his claims been genuine. It was contended that as such an assumption (or the significance of the applicant’s lack of knowledge in this respect) was not obvious and was never put to the applicant he was denied procedural fairness.
It was submitted that once procedural fairness was established, there was no further requirement to demonstrate that had a proper procedure been followed a different outcome would have occurred (SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 at [83]). However the reviewer’s failure was also said to be critical, because there was evidence (in the applicant’s affidavit of 2 May 2012) of the arguments the applicant would have made if he had been given the opportunity to address these issues, so it could be said the applicant was denied an opportunity to make submissions that may have allayed the IMR’s concerns, and because the IMR made a credibility finding based in part on the IMR’s view that the applicant had been evasive and vague in his responses.
Particular issue was taken with the fact that the applicant was not given an opportunity to explain why he did not have such knowledge or to make submissions about why no adverse inference should be drawn, as well as with the view that the reviewer made a finding without giving the applicant the opportunity to comment on the fact that knowledge of where his grandparents were born, lived and died would have been significant family history and an important element in the efforts of his father and mother to get documentation in Iran. It was submitted that while the applicant may have been aware that the issue of whether he was stateless was a live issue he was not aware and it was not obvious that the reviewer was going to make findings of evasiveness and vagueness and adverse credibility findings based on his “innocuous answers to innocuous questions”.
The respondent acknowledged that the common rules of procedural fairness required the reviewer to identify to the applicant any critical issue that was not apparent from the nature of the proceedings and to advise him of any adverse conclusion that would not obviously be open on the known material (see Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594 at 599; [2011] HCA 1 per French CJ and Kiefel J and cases cited therein and Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41).
However the respondent submitted that the reviewer complied with such obligations in circumstances where the question of the applicant’s statelessness or his family’s undocumented status as an integer of his claims and the issue to which his antecedents related were drawn to his attention in the IMR interview and that the natural justice email of 29 November 2011 also clearly put him on notice that his claim to be stateless or undocumented was in issue. It was submitted in the alternative that the issue that was the subject of the IMR’s finding at paragraph [76] about details of the place of birth of the applicant’s parents and grandparents was not critical to the reviewer’s recommendation.
The various ways in which ground one is presented are premised, in some respects, on the assumption that the relevance of the applicant’s antecedents to his claimed statelessness (including his family’s undocumented status in Iran) as an integer of his claims to fear Convention-related persecution at the hands of the Iranian authorities was not apparent or obvious from the nature of the proceedings or was not sufficiently drawn to the applicant’s attention, including during the IMR interview. That is so notwithstanding that this ground also focuses on the use made of the applicant’s answers to the first two questions in the email of 29 November 2011 on the basis that the IMR failed to give him sufficient opportunity to address a determinative issue and/or failed to advise of an adverse conclusion not obviously open on the known material.
First, as the first respondent submitted, notwithstanding that the RSA accepted that the applicant was stateless, when regard is had to the transcript of the IMR interview, it is apparent that the critical issue of whether the applicant was a stateless or undocumented person was sufficiently apparent to the applicant, both from what was put to him by the reviewer in the course of the interview and from the matters he raised.
Thus, at page 3 of the transcript the interviewer stated:
[Reviewer]: Right. Thank you sir.
Now, when I looked at the … your previous interviews and statement and so on, I did wonder whether that all showed that you were an Iranian national in fact.
[Applicant]: As I said to my first IMR reviewer, when I came to Australia I was scared to tell all things about the Government in Iran because I was scared about my family’s safety in Iran. And I met the client there. All the clients there they told me don’t speak too much when you go to interviews. Just say a little bit. So that’s why I feel not safe. [Emphasis added].
Further, at pages 4 – 5 of the interview the following exchange occurred:
[Reviewer]: Alright, sir, but I suppose it does seem to me that those two incidents involved, if I accept them, one that you were wearing traditional dress and two, you were walking with a woman and that attracted the Basij’s attention. Neither of those incidents show that you didn’t hold documents.
And the other thing …
[Applicant]: But I mentioned that before, I said, they asked me for the document to show and prove who is this woman with me and I told you I had no ID to show them and to prove them that boy is my son.”
[Reviewer]: Alright, but the other thing was that you said that you were held for a day and then released and on the second occasion you weren’t held because they could find nothing about you, nothing wrong. If … That does suggest that you had some other means for establishing to them your identity and the fact that you were an Iranian. [Emphasis added].
[Applicant]: They did this to me and they know very well, they pretty sure this is my wife. They just want to hurting me, they just want to broke my personality and that detention when they put me, sorry, the jail – nobody can visit me, like my mother or my wife or someone else, to help me, they just want to do something to hurt me and then say okay go. You finish with him.
[Reviewer]:
I suppose that is my concern, sir, if you had no documents they wouldn’t have just let you go after such a short time.
…
[Reviewer] (having put country information to the applicant): So what I take out of that information is that there are a very large number of Faili Kurds in Iran but now there are very low numbers of Faili Kurds who are displaced Iraqis with no documents. [Emphasis added].
The applicant’s statelessness claim was pursued further at page 6 of the transcript of the interview as follows:
[Reviewer]: Now, sir, you have previously given a phone number for your mother and that does suggest if she has a phone number in the family that she is an Iranian. [Emphasis added].
[Applicant]: The house we live there was renting, is rented house and the phone number belongs to the owner.”
[Reviewer]: But even in Iran wouldn’t the phone account have to be under the name of the person who was who had the phone account?”
[Applicant]: They have been living in, the bill of the electrician, the bill of the water and the bill of the telephone belong to the owner of the house not of the people they rented the place it’s all under his name.”
[Reviewer]: Alright well, sir, that doesn’t seem likely that phone account would be under a landlord’s name and so the landlord would be liable for all of the phone calls if they weren’t paid. [Emphasis added].
Furthermore, at page 7 of the transcript the following exchange occurred:
[Reviewer] (having discussed the applicant’s claim to have left Iran with false identity papers and his and his family’s ability to earn money in Iran): I also note that whilst you say you and your entire family have no documents and in that way are in Iran illegally nonetheless nothing has happened to your family, they’ve been able to live in Ilam city, work, marry and so on without difficulties. That doesn’t suggest to me that none of your family hold documents.
[Applicant]: As I said before, my family, they all with no documents and they tried to apply for the documents unsuccessful and they stop it just leave it, with no documents. Yeah we applied to the Iranian government to have an ID and they said you can’t have any Iranian ID because you are Iraqi ad we don’t strongly apply because if we do something wrong they will deport us to Iran easy. To Iraq, sorry. [Emphasis added].
Finally, at page 8 of the transcript the reviewer put to the applicant:
[Reviewer]: Now I would have to decide what bits of your story I accept. I would also have to decide whether I believe that you left Iran on a false passport illegally. [Emphasis added].
As the first respondent submitted, in light of these exchanges the applicant could not have been under any misapprehension about whether his claim to be stateless or undocumented in Iran was a live issue before the reviewer. The reviewer returned to this issue on a number of occasions and raised with the applicant his concerns about this aspect of his claim (see SZBEL v Minister for Immigration and Multicultural Affairs at [43] and [47]). Furthermore, at the start of the hearing the applicant had put his alleged statelessness in issue by claiming that he was a Faili Kurd and stating that “as you know, Kurdish Failis are stateless”. He went on to say that he was not “accept[ed]” as an Iranian and that Faili Kurds had been in Iran for a long time without any ID.
Moreover he claimed that his parents had tried to apply for Iranian documentation both in the RSA interview (transcript page 6) and in the IMR interview (when he claimed he had applied three or four times (transcript page 2) and also that his parents had applied (transcript page 7)).
Moreover, in addition to the issues raised at the IMR interview, insofar as there is a natural justice issue in relation to putting the applicant on notice that his claim to be stateless or undocumented was in issue, the email of 29 November 2011, when seen in the context of the claims made by the applicant and what occurred at the IMR interview (notwithstanding the time that had passed since the interview), clearly alerted the applicant to the critical nature of this issue and to the relevance of antecedents to Iranian nationality. The relevance of the questions raised in the email should be seen in that context.
The email of 29 November 2011 was sent to the applicant’s solicitor/adviser inviting any further written submissions, in particular, inviting the adviser to address some 16 issues. It is apparent that the matters raised in various paragraphs of this email address issues of relevance and concern to the reviewer’s decision, including the factual issues addressed in the first two questions.
The fact that the email was putting the applicant on notice that his claim to be stateless or undocumented was in issue and of matters of concern to the reviewer is reinforced by the other matters raised in that email, including country information about the low number of registered and unregistered Faili Kurd refugees in Iran, aspects of the applicant’s evidence that did not support his claims about discrimination and mistreatment and the fact that inconsistencies in his claims about past events might, as the email put it, “raise concerns with his later claims of harassment and being held by Basiji, and his general claims of being harassed and persecuted because he is a Faili Kurd and/or stateless/undocumented and/or an imputed Iraqi”.
Other questions in the email put to the applicant for comment that the harassment he complained of did not amount to the level of serious harm in s.91R(2) of the Migration Act for a Convention reason, and that aspects of his claims might show that he was “targeted” for reasons other than his ethnicity.
Of particular relevance to questions one and two and in relation to whether any opportunity for elaboration was necessary or whether the conclusion drawn about the applicant’s responses would be obviously open on the known material, is the fact that in items 11 and 12 country information that showed that Iranian nationality descended through fathers to their children, and that if grandfathers were Iranians, this meant their children were also Iranian nationals was put to the applicant for comment as well as information that if the applicant and his family were Iranian nationals, they had no need to organise Amayesh cards. Moreover, item 13 put to the applicant that if he and his family were Iranian nationals, they did not and would not face harm by the Iranian authorities, Basij or other pro-government agents because of statelessness, being imputed Iraqis or being undocumented. Given the nature of the applicant’s claims to be stateless and undocumented and that his parents were also stateless and undocumented, the relevance of questions one and two to the issues to be determined by the reviewer was clear.
In addition, the email put to the applicant that country information suggested that Faili Kurd ethnicity and/or Shia religion, without other circumstances, would not lead him to face serious harm amounting to persecution for a Convention reason or to be considered a spy on return to Iran.
The email attached country information referred to therein and stated that “therefore” the adviser was invited to make further written submissions. In so doing it gave the applicant the opportunity to elaborate on, go beyond or explain his answers to any of the listed questions. The email stated that if the adviser wanted to provide any further comments on the above stated information and material, he should do so within seven days. The adviser was also given the opportunity to contact the writer if he had any queries or required further information.
The country information attached included a summary of DFAT and UNHCR information about registered and unregistered Faili Kurds living in Iran and also information about Iranian ID cards and eligibility for Iranian citizenship based, in particular, on family links to Iran and antecedents. The applicant’s claim to be stateless or undocumented and the relevance of his antecedents was clearly raised with him in the email from the IMR. It is not to the point that he may not, having regard to the briefness of his responses, have appreciated the significance of the extent and nature of his responses to those questions. He was given adequate opportunity to respond and to make further written submissions, as well as to comment on the information and matters in the listed items. In the context of the IMR review it was clear that the matters raised in the email were matters of concern to the reviewer. Although the second question did not contain as much detail as the first question, it must be seen in the context of the earlier question and the subsequent explanation in other items of the email of the relevance of antecedents to Iranian nationality. The email was sufficient to put the applicant on notice that his claim to be stateless or undocumented was a critical issue and of the relevance of his antecedents to that issue. Having regard to the circumstances and manner in which these questions and this information was put to the applicant, the critical issue was sufficiently raised with the applicant by the IMR.
In these circumstances the reviewer was entitled to assume that the applicant appreciated that the information in the email was adverse to his claim to be stateless or undocumented (see SZRPA v Minister for Immigration & Anor [2012] FMCA 91 at [26] per Cameron FM). The connection between the applicant’s antecedents and his claim to be stateless was clear from the nature of the applicant’s claims and the information provided. It cannot be said that the reviewer reached an adverse conclusion not obviously open on the known material in this respect.
The information in question was provided to the applicant in a way that was comprehensible. The email gave the applicant the opportunity to make submissions or to give further evidence in response. Procedural fairness did not require the reviewer to take further steps to ensure that the applicant understood why these particular items of information or questions were relevant to the review, either at that stage or after receipt of his responses. The applicant had claimed to the RSA that his parents were stateless and were neither Iraqi nationals nor Iranian nationals. It was on this basis that he claimed that he was stateless. He claimed his parents had applied for Iranian documentation and that he had also done so. His antecedents and family connections to Iran would have been relevant to any such application. The applicant gave evidence at the IMR interview that he and his parents had not been given any identity papers by the Iranian authorities because they were thought to be Iraqi nationals. The applicant was sufficiently put on notice of the issues critical to the reviewer’s decision and the relevance of his antecedents to his claim to be stateless (see Kioa v West at 557 per Mason J and Alphaone at 591-592). He had the opportunity to put information and submissions to the reviewer and to address issues of concern. The IMR was not obliged to ask him to expand on his responses or explain why his account should be accepted (see generally Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60). As Gummow and Heydon JJ stated in Applicant S154/2002 (at [58]), albeit in relation to the Refugee Review Tribunal, the IMR is “not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on”.
Insofar as this ground involves a contention that the reviewer was obliged to tell the applicant that the material he had put forward (including his response to the email) was not sufficiently detailed and invite him to improve upon it, as Edmonds J stated in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 (at [29]), this is not a requirement of procedural fairness (also see Kioa v West at 587; Alphaone at 591; and Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 76 ALJR 966; [2002] HCA 30 at [265] – [266] per Hayne J).
I am satisfied that the adverse conclusion drawn by the reviewer at paragraph [76] of the decision, as set out a above at [19], that his antecedents would have been not only significant family history but also an important element in the claimed efforts of his parents to get documentation, was one which was “obviously … open on the known material” in the sense considered in Alphaone. The known material clearly included the information provided by the applicant as well as the information provided to the applicant with the email of 29 November 2011 and the applicant’s response to the email. Relevantly, the applicant made claims about past attempts to get documentation. Included in the information provided to the applicant in the email was information about Iranian citizenship and the Civil Code of Iran dealing with nationality. This reinforced the significance of the issues raised in questions one and two (his antecedents) to his claims to be stateless and undocumented. It was obviously open to the IMR to have regard to the applicant’s limited knowledge of matters of significant family history that would have been important to his parents’ claimed efforts to get documentation. Given the obvious materiality of such matters, having regard to the known material and the extent and nature of the applicant’s responses, the IMR was not obliged to inform the applicant that his vague evidence, claimed lack of knowledge about his grandparents and lack of detail about his parents’ birth and where they lived in Iraq may lead to the drawing of an inference that he was being evasive and that it would be one of the matters taken into account in rejecting his claim to be undocumented and stateless. Such an adverse conclusion was also obviously open on the known material.
The reviewer was not obliged to put to the applicant his reasoning that the applicant’s family history would have been important to the efforts that he claimed his parents made to obtain documentation or the conclusion that (given that his antecedents were a significant part of his narrative) his vague evidence and claimed lack of knowledge and lack of detail about his antecedents would lead the reviewer to consider that the applicant was being evasive and would cause him “serious concern”.
Procedural fairness did not oblige the IMR to inform the applicant that an adverse inference may be drawn from an insufficiently detailed response to these questions or to give him an opportunity to comment on the IMR’s proposed finding as contended for by the applicant (see Alphaone at 591-592).
Insofar as it was submitted that the reviewer was required to alert the applicant in advance of drawing an adverse inference that was obviously open on the known material, or making the finding in question, that would be tantamount to requiring the reviewer to expose his thought processes or provisional views for comment. Procedural fairness does not require a reviewer to proceed in that way (see Alphaone at 592 and SZBEL at [48]).
As the first respondent submitted, no lack of procedural fairness has been established on any of the bases contended for in ground one.
For the sake of completeness I note that I do not accept the first respondent’s submission in the alternative that details of the place of birth of the applicant’s parents and grandparents were not critical to the reviewer’s recommendation because his finding that the applicant was not stateless or undocumented was supported on other independent bases. Such an approach is not consistent with the reviewer’s reasons.
The reviewer clearly provided a number of reasons for rejection of the applicant’s claim to be a non-citizen of Iran and stateless, including the IMR’s concern about the applicant’s vague evidence and lack of knowledge and detail about antecedents relevant to his claims. In that respect, the reviewer recorded (at paragraph [74] of the decision) the applicant’s claim that he had been an unregistered Faili Kurd refugee in Iran as he had been born to parents who had been unregistered refugees, that his father and mother had approached the Iranian authorities but had not been given Amayesh cards or other identification and that he had unsuccessfully sought to get an Iranian national ID card. The applicant’s claims about his parents’ situation revealed his awareness of the relevance of his antecedents to his claims to be stateless and/or undocumented. The reviewer then stated:
However, I reject the claim that he is a non-citizen of Iran, undocumented and stateless, for the reasons that follow. [Emphasis added].
Included in those reasons were the concerns expressed by the reviewer that the applicant’s vague evidence and claimed lack of knowledge and detail about his antecedents led him to consider that the applicant was being evasive. This was one of the factors that led to the reviewer’s ultimate finding that, although he accepted that the applicant was a Faili Kurd, he did not accept that he was stateless or undocumented or a displaced/stateless Iraqi, or a child born to displaced/stateless parents from Iraq.
However, while I am of the view that the issue about the applicant’s antecedents was critical to the reviewer’s reasons, it has not been established that the reviewer failed to accord the applicant procedural fairness in any of the ways contended for in the amended application.
Ground one is not made out.
Apprehended bias
The next ground in the amended application (ground 1A) is that:
The IMR decision was not made in accordance with law and was contrary to the rules of procedural fairness because critical findings (including credibility findings) made by the Second Respondent in respect of the Applicant are the same or substantially identical to other findings made by the Second Respondent in respect of other refugee claimants, giving rise to a reasonable apprehension of bias.
Particulars were said to be provided in the written submissions of 19 July 2012. The applicant submitted that the reviewer had made other recommendations to the Minister that contained “substantial passages” that were the same or very similar to the findings and reasons in the present case. Each of the decisions in question related to a person claiming to be a stateless Faili Kurd. The applicant relied on copies of three other decisions of the reviewer tendered in evidence and, in particular, on a table annexed to the written submissions containing a highlighted comparison between the decision in this case dated 14 December 2011 and decisions by the same reviewer dated 14 February 2011, 4 November 2011 and 5 January 2012.
The applicant acknowledged that, as French J had stated in WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209; [2003] FCA 1293 (at [52]), “the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases” is not “necessarily indicative” of jurisdictional error. It was pointed out that his Honour went on to state (at [52]) that in relation to “findings of credibility in the particular case” the decision-maker “should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required … to review.” French J expressed the view that the use of common form text by the decision-maker (in that instance, the Refugee Review Tribunal) for the purpose of findings of credibility in respect of a particular applicant was not “desirable”. The applicant submitted that in this case the IMR did not simply use similar language in respect of country information, but expressed key findings, including credibility findings, about matters that related only to the applicant in almost identical language.
The applicant submitted that in this case the extent of the similarity between the decisions could be demonstrated by reference to the issues that underpinned ground one. It was contended that, contrary to the IMR finding, the applicant in this case was not vague, whereas other applicants were, and that he was not evasive, whereas other applicants were. Counsel for the applicant submitted that all the applicant did was to answer what were said to be two fairly “innocuous” questions about his family but that he “wound up” with a credibility finding against him. It was contended that a reasonable person viewing these four decisions (and the highlighted similarities) would form the view that the reviewer’s mind was set against the applicant when he arrived at what was said to be a “very surprising” credibility finding from two “very innocent” questions.
Hence it was submitted that a fair-minded person might reasonably apprehend that the reviewer did not bring an impartial mind to the determination of the applicant’s claims in the sense considered in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [70] – [71]. Rather it was contended that a fair-minded person would apprehend that the reviewer had a predisposition to find that what was said to be the applicant’s “simple and responsive answer” to the questions about his parents and grandparents was a cause for “serious concern” (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [20]).
In oral submissions, reliance was also placed on other aspects of the decisions of the reviewer, in particular the fact that his conclusions about each applicant were said to be almost word for word. This similarity was said to raise the concerns expressed by Raphael FM in SZQHI v Minister for Immigration & Anor [2012] FMCA 72. It was submitted that the decision on the facts in the applicant’s case was identical to the conclusions in decisions in relation to the other applicants even though the facts were different. Beyond this, it was submitted that when regard was had to the findings and reasons generally in the decisions in question, it could be seen that there was an overall impression of similarity so strong that it gave rise to a reasonable apprehension of bias.
The applicant submitted that the present case fell outside the scope of legitimate template decision-making identified by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45, in which it was found (at [46]) that “the trial judge was in error in finding that the reviewer’s use of a template to express his reasons for rejecting the generic claims of the applicant and the other nine claimants would give rise to an apprehension of bias”. The applicant submitted that the reasoning in SZQHH depended on the fact that the template decision related to a “generic claim” that “did not depend on the individual circumstances” (at [46]), whereas in this instance the template decision related not to a generic factual claim common to a class of applicants, but to an issue of individual credit that was said to be “inextricably dependent” upon the individual circumstances of the one applicant.
At the hearing reliance was also placed on the decision of Raphael FM at first instance in SZQHI in which his Honour had said (at [23]) of a paragraph of a decision of the Refugee Review Tribunal dealing with the applicant’s particular claims:
That paragraph has been shown in the analysis to be very similar to paragraphs in other decisions where only the different factual circumstances have been inserted. In other words the decision upon those facts is in all cases identical even though the facts are different. That to my mind does raise the apprehension that the Reviewer has not brought an impartial mind to the process (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27], NADH of 2001 v Minister for Immigration [2004] FCAFC 328; (2005) 214 ALR 264) and raises the apprehension that he wishes to fit this applicant into the template he has previously prepared. That this may not be the case is not to the point. As the Full Bench said in Chu:
“One of the circumstances for the court to take into account is that the decision making process is not held in public – a factor that may increase the likelihood of apprehension.” [At 338C]
While my judgment in this case was reserved, the Full Court of the Federal Court delivered judgment in Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160. The parties in this case were given the opportunity to make further submissions.
In SZQHI the Full Court (Marshall, Nicholas and Yates JJ) allowed an appeal from the decision of Raphael FM. However the applicant submitted that the Full Court decision did not undermine his submissions given that the respondent in SZQHI was said to have conceded he could not succeed unless the Full Court did not follow its earlier decision in SZQHH, whereas in this case the applicant had submitted that SZQHH was distinguishable and did not simply rely on the reviewer’s use of the same material or a pro forma structure or language as used in other recommendations to establish an apprehension of bias.
Rather, reliance was also placed on the similarity of the adverse credibility findings said to have been made because of the applicants’ inability to provide sufficient detail about their antecedents in circumstances where the reviewer did not ask the applicant in this case any questions about his family history, other than what was said to be “a single oblique question” in the post-interview email. In contrast, the family history of the other applicants was said to have been addressed in depth at interview.
There was said to have been an “unexplained leap of reasoning” between the applicant’s “simple answer to a simple question” and what was said to be a strong credibility finding based on that answer alone. Hence there was said to be a reasonable apprehension that the “leap” was due to a prejudgment of the applicant based on the reviewer’s conclusions about the credibility of the other applicants (see SZQHI at [40] – [41] per Nicholas J).
As pleaded, ground 1A appears to raise an issue about the use of a common template. However it is necessary to consider the arguments in that respect together with the contentions based on the relevance of the applicant’s evidence about his family history and the reviewer’s credibility findings.
An initial question arises as to how a decision which post-dated the decision in issue in this case can be said to demonstrate an apprehension of bias in relation to an earlier decision. The applicant relied on the fact that the IMR interview for the decision of 5 January 2012 took place before the decision in this case. Even if it may be open to have regard to what occurred at an interview prior to the decision in question, I am not persuaded that the language or reasoning in the findings and reasons of a subsequent decision is of assistance in determining whether at the time of the recommendation of 14 December 2011 a fair-minded and informed person might reasonably apprehend that the reviewer did not bring an impartial mind to his determination of the applicant’s claims.
In any event, even if I am wrong and it is appropriate to have regard to the language and reasoning adopted by the reviewer in the subsequent decision of 5 January 2012, as well as in two earlier decisions of the reviewer, in determining whether an apprehension of bias is established in relation to the decision of 14 December 2011, I am not satisfied on the evidence before the Court that a fair-minded, reasonable lay observer properly informed as to the nature of the proceedings and the role of the reviewer might reasonably apprehend that the reviewer did not bring an impartial mind to the determination of the applicant’s claims (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17; Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28; WAFK; SZQHH; and SZQHI at [37] – [41]).
There are undoubted similarities in the structure and language of the decisions of the reviewer before the Court in these proceedings. However in this case, as in the other cases relied on, the applicant claimed to fear persecution on the basis of being stateless or undocumented in Iran, of Faili Kurd ethnicity, and as a failed asylum seeker returning to Iran. Each applicant raised similar generic claims and proffered similar evidence in addition to raising issues about specific events in their past.
It is not in dispute that it is necessary to establish that there is more than a use of common form text in order to give rise to an apprehension of bias. That is particularly so having regard to the nature of the review undertaken by the IMR. In SZQHH Rares and Jagot JJ considered the circumstances in which an apprehension of bias would be established in relation to the decision of an IMR. Relevantly, having regard to the applicant’s contentions about the reviewer’s conclusions about each applicant’s antecedents in circumstances where each applicant claimed to be a stateless or undocumented Faili Kurd, their Honours pointed out (at [38]) that “[t]he mere fact that [the] decision-maker ha[d] previously expressed a view on the same or a similar subject does not, of itself, give rise to an apprehension that he or she [would] not bring a fair and impartial mind to the new decision to be made”. As their Honours indicated, a decision-maker in the position of a reviewer will frequently have to decide the same issues raised by different persons in separate applications, including when a number of persons make generic claims. Their Honours stated (at [38]):
A decision-maker must have a fair and unprejudiced mind when he or she comes to decide a question including one concerning a generic claim that he or she has addressed on another occasion. However, that does not mean that he or she must have a blank or empty mind on the topic.
In SZQHH Rares and Jagot JJ referred (at [39] – [40]) to the observation in Jia Legeng that the concept of apprehended bias must “accommodate” the decision-making environment, including a recognition that a specialised Tribunal would bring to the task of deciding an individual application “a great deal of information and ideas … accumulated or formed in the course of deciding other applications” (see Jia Legeng at [179] – [192] per Hayne J). Relevantly, their Honours described (at [41]) the approach of Hayne J in Jia Legeng as follows:
Hayne J elaborated by explaining that at least four distinct elements require consideration in examining an assertion that a decision-maker has prejudged or will prejudge, or that there was a real likelihood that a reasonable observer might reach such a conclusion. He said that the assertion of apprehended bias contains contentions that, first, the decision-maker has an opinion on a relevant aspect of a matter in issue in the particular case, secondly, that he or she will apply that opinion to the matter in the case and, thirdly, he or she (Jia Legeng at [185]-[186]):
“ … will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. [Emphasis added].
As Hayne J pointed out in Jia Legeng, allegations of both actual and apprehended bias can fail at this step (at [185] – [186]). Charles J stated in R v London County Council; Ex parte Empire Theatre (1894) 71 LT 638 at 639:
“…preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.” (Emphasis added.)
In Jia Legeng Hayne J concluded at (at [192]):
Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly.
In SZQHH Rares and Jagot JJ expressed the view at [42] that:
…the way in which a decision-maker may properly go about his or her task and what kind or degree of neutrality, if any, is to be expected of him or her will be relevant considerations in evaluating how and in what way the rules relating to apprehension of bias will be applied in a particular situation.
In SZQHH, as in SZQHI and in this case, there were similarities in language and approach in a number of decisions of the reviewer in question, in particular in relation to the consideration of whether there was a fear of persecution by reason of those claims of each of the applicants that the reviewer accepted (in this case that they were Faili Kurds and Shia Muslims). In this respect it is relevant to have regard to the role of the IMR. As Rares and Jagot JJ stated in SZQHH (at [43] – [44]):
Here, a reviewer had the function of making an assessment that may, but need not, be considered by the Minister for the purpose of exercising the power, under s 46A, of permitting the applicant to apply for a protection visa. The Minister’s Department’s guidelines for reviewers requires each reviewer to consider each claim afresh, refer to current and reliable country information available from two nominated sources that are also available to the Migration and Refugee Review Tribunals, and to cite individually in his or her report all such information that the reviewer considered. The reviewer is also required, so far as possible, to conduct an in-person interview with each applicant. As Hayne J recognised, a person in the position of a reviewer will be expected to build up some understanding of the country information applicable to situations of various classes of persons in areas of the world from which applications for refugee status emanate.
If claims or applications made by a number of persons involve common features, a decision-maker who must determine all of those individuals’ claims or applications at about the same time ordinarily will work out his or her findings about the common aspects and apply those consistently in each individual case.
The IMR’s conclusion in this case was as follows:
I find that the [plaintiff] is a Faili Kurd but is not stateless and/or an undocumented Faili Kurd. I find he was not born to stateless/displaced Iraqi refugees. On the material before me, I find that he is an Iranian national and has a right to enter and reside in Iran. I reject his claims that he faces discrimination and persecution in Iran on the basis of being a stateless and/or undocumented Faili Kurd born to parents from Iraq however described. I do not accept he faces persecution on the Convention ground of nationality, or as a member of a particular social group consisting of nationality or those lacking a nationality (such as undocumented refugees of Iraqi origin).
On the basis of his claims that I do accept, I conclude he did not suffer serious harm in Iran for any of the reasons he has given, whether for being a Faili Kurd, or as a perceived Iraqi. He did not undertake any political activities in Iran and did not have any particular profile in the Kurdish community in Ilam city where he lived: he has no social or political profile in Iran at all. Accordingly, I do not accept there is a real chance in the reasonably foreseeable future that he will be imputed with a political opinion regarding support for Kurdish separatism and/or support of the Iraqi Government, or accused of spying. I do not accept that he will be imputed with a political opinion as a returned failed asylum seeker from the West.
After considering cumulatively, his past circumstances in Iran and his future circumstances if he returns, together with country information about Iran, I find that in Iran there is not a real chance in the reasonably foreseeable future that he will suffer serious harm amounting to persecution for reasons of his race, political opinion (real or imputed), or membership of a political social group, or for any other Convention reason.
In the decision dated 4 November 2011, the reviewer expressed his conclusions in relation to an applicant who made similar generic claims as follows. :
I find that the claimant is not stateless and/or an undocumented Faili Kurd. I find that he was not born to stateless/displaced Iraqi refugees. I find that he has a right to enter and reside in Iran. I reject his claims that he faces discrimination and persecution in Iran on the basis of being a stateless and/or undocumented Faili Kurd born to parents from Iraq however described. I do not accept he faces persecution on the Convention ground of nationality, or as a member of a particular social group consisting of nationality or those lacking a nationality (such as undocumented refugees of Iraqi origin).
On the basis of his claims that I do accept, I conclude he did not suffer serious harm in Iran for any reason, whether for being a Faili Kurd, or as he was perceived to be an Iraqi. He did not undertake any political activities in Iran and did not have any particular profile in the Kurdish community in Ilam province or Tehran. Accordingly, I do not accept that he [would] be imputed with a political opinion regarding support for Kurdish separatism and/or support of the Iraqi government, or accused of spying. I do not accept that he will be imputed with a political opinion as a returned failed asylum seeker from the West. He has not made any claims that he fears persecution in Iran for reasons of his religion. I find that in Iran there is not a real chance in the reasonably foreseeable future that he will suffer serious harm amounting to persecution for reasons of his race, political opinion (real or imputed), or membership of a particular social group, or for any other Convention reason.
In the decision of 5 January 2012 the conclusion of the IMR was as follows:
I find the claimant is a Faili Kurd but find he is not stateless and/or undocumented. On the material before me, I find he is an Iranian national and has a right to enter and reside in Iran. I reject his claims that he faces discrimination and persecution in Iran on the basis of being a stateless and/or undocumented Faili Kurd born to parents from Iraq however described. I do not accept he faces persecution on the Convention ground of nationality, or as a member of a particular social group consisting of nationality of those lacking a nationality (such as undocumented refugees of Iraqi origin).
I find the claimant did not suffer discrimination or serious harm amounting to persecution in Iran for any of the reasons he has given. He did not undertake any political activities in Iran and did not have any particular profile in the Kurdish community in Ilam province where he lived. He has no social or political profile in Iran that would cause him to come to the adverse attention of the Iranian authorities, Basij or other pro-government agents. Accordingly, I do not accept there is a real chance in the reasonably foreseeable future that he will be imputed with a political opinion regarding support for Kurdish separatism and/or support of the Iraqi government, or accused of spying. I do not accept that he will be imputed with a political opinion as a returned failed asylum seeker from the West or considered a traitor.
After considering cumulatively, his past circumstances in Iran and his reasonably foreseeable future circumstances if he returns, together with country information about Iran, I find that in Iran there is not a real chance in the reasonably foreseeable future that he will suffer serious harm amounting to persecution for reasons of his race, political opinion (real or imputed), or membership of a particular social group, or for any other Convention reason.
The difference in the form of the conclusion in the reviewer’s reasons of 14 February 2011 (another of the decisions relied on in support of this ground) is notable. In that decision the reviewer concluded:
I do not accept that the male claimant’s ethnicity means that in Iran in the reasonably foreseeable future, he faces a real chance of serious harm amounting to persecution by government authorities or non-State agents. Nor do I accept that his particular and individual claims show that he faces a real chance of serious harm amounting to persecution.
In sum, I conclude there is not a real chance that the claimant will face serious harm in the reasonably foreseeable future, either in his home area in Iran on in travelling to that area upon his return, amounting to persecution for any Convention reason.
In the light of my findings I have not assessed the claimant against Iraq.
Given the nature of and substantial similarities in each of the applicant’s claims the use of common language and structure in the conclusion is not indicative of apprehended bias, either of itself or taken together with the other matters relied on by the applicant.
In all the circumstances, the use of language that was similar and in some cases identical and the reference to similar concepts such as “serious concerns” and the similar findings in circumstances where the antecedents issue was raised in writing rather than at an interview, is not such as to establish an apprehension of bias from the perspective of the appropriately informed, reasonable and fair-minded observer, who would be mindful that each applicant had such claims assessed in the course of the reviewer’s consideration of his and the other applicants’ generic or substantially identical claims and would expect that the reviewer would evaluate each such claim and country information for each of the applicants in question and decide the generic claims “generically; that is to say consistently and fairly” (per Rares and Jagot JJ at [47] in SZQHH). As their Honours stated:
The fair-minded observer would not think that the reviewer would fail to continue to bring a fair and unprejudiced mind to deciding each particular application, merely because he dealt with the later generic claims as he had already done in the absence of fresh material bearing on the generic claims being brought to the reviewer’s notice between his earlier and later decisions on the other claimants’ generic claims.
Ground 1A is not made out.
No evidence
Ground two in the amended application is as follows:
The IMR decision was not made in accordance with law and was contrary to the rules of procedural fairness because, in finding that the Applicant was not “stateless or undocumented or a displaced/stateless Iraqi or a child born to displaced/stateless parents from Iraq”, the Second Respondent formed an adverse inference against the Applicant which was not available on the evidence based on the fact that the applicant failed to answer a question that was not asked.
Particulars
(a) the Applicant repeats the particulars at paragraphs 1(a)(i) to 1(a)(iv) above.
(b) The Second Respondent concluded that the Applicant’s lack of detail about the parent’s birth and where they lived in Iraq led the Second Respondent to draw an adverse inference against the Applicant and consider he was being evasive and caused him “serious concern” …
(c) However, unlike the question put to the Applicant in the email referred to in paragraph 2(a)(i) above, concerning his grandparents, the Applicant was not asked for specific details concerning the village or province in Iraq where his parents were born or lived.
(d) The Applicant thought that he had sufficiently answered the question that was put to him.
(e) Therefore it was not open to the Second Respondent to find that the Applicant’s answer to his questions about his parents were evasive.
This ground relies in part on the particulars to ground one in relation to the first and second questions asked in the email of 29 November 2011, and the applicant’s responses and the reviewer’s findings about the applicant’s lack of knowledge about his grandparents and parents. In essence, it was contended that it was procedurally unfair for the reviewer to draw an adverse inference in relation to the lack of detail about the applicant’s parents’ birth and where they lived in Iraq based on his failure to answer what was said to be a question that was not asked.
This submission was put on the basis that there was a distinction between the language of questions one and two. Question one was: “Where were [the Applicant’s] paternal and maternal grandparents born”(ie village, province, country)? Where did they live, and where did they die?” whereas question two was : “Where were [the Applicant’s] father and mother born, and where did they live?”.
Reliance was placed on the fact that the second question did not seek specifics, including the village and province. It was submitted that it was procedurally unfair to draw adverse conclusions from a failure to answer a question that was not asked.
However the immediately preceding question explained that in asking where the applicant’s grandparents were born what was meant was the village, province and country. The information that the applicant had provided in relation to his parents’ place of birth in support of his request for a refugee status assessment consisted of their country of birth. In all the circumstances, on a fair reading of question two of the email in context, it was clear that question one had given meaning to the information requested in relation to where the applicant’s relatives were born. It was unnecessary as a matter of procedural fairness for the concepts of village, province and country to be repeated in question two. It has not been established that the reviewer committed a breach of the common rules of procedural fairness in the way he dealt with the applicant’s answers to these questions as contended for in ground two of the amended application.
Ground two is not made out.
The reasons of the RSA
Ground three in the amended application is as follows:
The IMR decision was not made in accordance with law and was contrary to the rules of procedural fairness because, in making findings inconsistent with the decision of the Delegate under review, the Second Respondent was bound by law and the rules of procedural fairness, to address the reasons of the Delegate and give reasons why they were not followed.
Particulars
i. In a decision record sent under cover of letter dated 15 March 2011, a delegate of the Minister found that:
a. the applicant is a stateless Faili Kurd (at pages 2 and 8 of the decision record); and
b. the harm feared by the applicant involves serious harm and systematic and discriminatory conduct which amounts to persecution.
ii. In the IMR Decision, the Second Respondent made contrary findings but did not consider the Delegates reasons or give reasons why they were not followed.
In submissions, counsel for the applicant addressed ground three together with ground four. Hence it is convenient to proceed on that basis. Ground four is as follows:
The IMR decision was not made in accordance with law and was contrary to the rules of procedural fairness because it failed to take into account a relevant consideration, namely that the a (sic) delegate of the Minister had come to conclusions opposite to those found by the Second Respondent.
These grounds require some consideration of the decision of the RSA. In an assessment dated 15 March 2011 the RSA had given the applicant “the benefit of the doubt” and accepted that he was stateless for the purposes of the assessment in the absence of evidence to the contrary. The RSA had regard to the fact that he spoke Kurdish (the language spoken by Faili Kurds), and found that his answers to questions about his life experiences as a stateless Faili Kurd born and raised in Iran were generally consistent with country information on the situation of Faili Kurds in Iran.
On that basis the RSA accepted that life for the applicant “may have been difficult”, that a “lifetime in limbo concerning citizenship” was “less than desirable”, that for many there were “few opportunities other than subsistence” and that the applicant (as a stateless Faili Kurd) was not in possession of the same range of civil and political rights as Iranian citizens. The RSA accepted that the denial of human rights and torture that the applicant claimed to fear involved serious harm and systematic and discriminatory conduct amounting to persecution. However the RSA did not consider that the applicant had suffered or would suffer an absence of rights or benefits or mistreatment amounting to persecution for any Convention reason if he returned to Iran.
The applicant submitted that in the context of an independent merits review there was an obligation on the reviewer to give reasons why the reviewer did not accept the RSA’s findings that the applicant was a stateless Faili Kurd and that a claimed fear of torture by the Iranian authorities as a stateless Faili Kurd who had left Iran illegally was a fear of conduct which would amount to persecution.
It has not been established that the reviewer fell into error in the manner contended for in ground three or ground four of the amended application.
First the reviewer was not required by procedural fairness to give reasons why he did not follow the findings of the Departmental officer who made the RSA. It is well-established that, as a general rule, a decision-maker is not required to give reasons (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; [1986] HCA 7), albeit that is not to say that where reasons are given it may not be possible to infer what matters were or were not taken into account in the reasoning process of a decision-maker (see Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248, Hu v Minister for Immigration & Multicultural Affairs [2004] FCAFC 63, Vishnumolakala v Minister for Immigration and Multicultural Affairs (No 2) [2007] FCA 594; SZMNF & Ors v Minister for Immigration & Anor [2008] FMCA 983).
However, even if the reasons for decision given by the reviewer in this case are such that it can be inferred that they represent the reasoning process of the reviewer, this does not mean that the reviewer was under an obligation as a matter of procedural fairness to address the reasons of the delegate and give reasons why they were not followed.
Rather, the reviewer was required, in accordance with procedural fairness, to consider the applicant’s claims for protection whether expressly articulated or arising clearly or squarely on the material before the reviewer (see Plaintiff M61/2010E at [90]; and MZYPA v Minister for Immigration and Citizenship [2012] FCA 581 at [13] per Bromberg J).
It is clear that the reviewer did consider the applicant’s claims for protection and set out his findings thereon in his statement of reasons. Thus the applicant’s claim to be stateless or undocumented, which had been made to the RSA officer during the interview and arose on the material before the reviewer, was noted and considered by the reviewer, who also referred to particular aspects of the applicant’s evidence given during earlier interviews. The applicant’s evidence in his entry interview and before the RSA, and other material before the RSA formed the basis for the RSA officer’s findings (including the acceptance for the purposes of the review that the applicant was stateless). That material was also considered by the reviewer. The reviewer’s task was, as submitted by the first respondent (and as recognised in the Guidelines for Independent Merits Reviewer dated 11 July 2011) to consider the applicant’s claims for protection “afresh” so as to make a recommendation to the Minister to assist the Minister in his consideration of whether he should exercise his non-compellable powers under s.46A and s.195A of the Migration Act. The reviewer carried out this task. The reviewer was not obliged by the rules of procedural fairness to address the reasons of the RSA and/or to give reasons why the RSA findings that were favourable to the applicant were not followed.
Moreover, the RSA officer’s findings were not mandatory relevant considerations as understood in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40. They were not integers of the applicant’s claims (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802).
In Peko-Wallsend the Aboriginal Land Commissioner had made a recommendation to the relevant Minister that certain lands ought to be granted to Aboriginal claimants. A provision of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) provided that on a traditional land claim application by or on behalf of Aboriginals for an area of land, the Commissioner was required to ascertain whether the applicants were the traditional owners of that land and report his findings to the Minister. If the Commissioner found that the applicants were the traditional owners he was required to make a recommendation to the Minister for the granting of land to a land trust for the benefit of the Aboriginal owners. Under the Land Rights Act the Commissioner was also required to include in his report comments on the detriment to persons or communities that might result if a claim were successful. It was in those circumstances that Mason J held that although the Land Rights Act did not expressly state that the relevant Minister was bound to take into account the Commissioner’s comments on the matters of detriment referred to in the Act in exercising his power under another provision of the Act to decide whether to grant the application, such a finding was “necessarily implied” in the Land Rights Act having regard to its “subject, scope and purpose” (at [44]).
However in this case there is nothing in the Migration Act or in the Guidelines for Independent Merits Reviewers (which are in evidence before the Court) to establish that findings made in an RSA are mandatory considerations in the Peko-Wallsend sense. Nor am I otherwise satisfied that in the particular circumstances of an independent merits review the reviewer is bound under rules of procedural fairness to address the reasons of the RSA and give reasons why they are not followed.
There is nothing in the Migration Act, whether expressed or implied, that requires independent merits reviewers to consider findings of RSA officers. The procedure of the IMR is not regulated by the Act. Rather it is part of an administrative process (see Plaintiff M61 at [38] – [52] and [73]). As Rares and Jagot JJ stated in SZQHH (at [4] – [5]):
The applicant arrived at Christmas Island by boat in February 2011. He is a citizen of Afghanistan. He was an “off-shore entry person” and “unlawful non-citizen” for the purposes of the Migration Act 1958 (Cth) (the Migration Act) because he arrived without a visa or other legal right to enter Australia at an excised off-shore place, Christmas Island. An unlawful non-citizen cannot make a valid application for a visa by force of s 46A(1). The applicant asserted that Australia had protection obligations to him as a refugee that would entitle him to a protection visa under s 36(2) of the Migration Act, were he permitted to apply for a visa. The Minister has a power to permit a person in the applicant’s position to apply for a visa (s 46A(2)). However, that power may only be exercised by the Minister personally and he has no duty to consider any request by a person that he do so (ss 46A(3) and (7)).
The Minister decided to consider exercising his power under s 46A(2) to lift the bar preventing the applicant from applying for a visa. The Minister’s Department had established an administrative process for the purpose of informing the Minister of matters that were relevant to the decision whether to exercise his statutory power in favour of an off-shore entry person who requested him to do so. The reviewer’s assessment and recommendation…were part of a process conducted under those administrative arrangements. That process was described in detail by the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at 342-345 [38]- [52], 351-352 [73].
Moreover the Guidelines for Independent Merits Reviewers do not give rise to such an obligation. In MZYPW v Minister for Immigration and Citizenship and Another (2012) 289 ALR 541; [2012] FCAFC 99, in the context of considering an argument about whether the findings and reasons of a reviewer satisfied the requirements in cl.12 of the Guidelines and whether such failure would constitute reviewable error, Flick and Jagot JJ pointed out (at [12]) that a failure to provide reasons “may not vitiate a decision for jurisdictional error absent some statutory requirement requiring the provision of reasons”. Moreover, their Honours stated at [21]:
In the present proceeding, it would be most unlikely that a failure on the part of the Independent Merits Reviewer to comply with Clause 12 could vitiate a decision of the Minister for jurisdictional error. The Guidelines are expressed at the outset to be non-binding and the entire scheme is an administrative construction rather than a statutory process. But the remedy for a failure to comply with that requirement need not presently be explored. The consequences of a failure to comply with Clause 12 was not the subject of submissions.
Notwithstanding that such guidelines appear on their face to be in mandatory terms, state that the reviewer’s report “must” address and include certain things, and impose “laudable requirements” (MZYPW at [13]), they are expressed to be non-binding guidelines.
In any event, even if a failure to comply with the Guidelines could constitute a jurisdictional error notwithstanding the absence of any statutory requirement for the provision of reasons and the nature of the Guidelines as non-binding administrative guidelines, I am not satisfied that the Guidelines oblige an independent merits reviewer to consider or comment on the factual findings of an RSA.
The Guidelines provide (at paragraph 3.5) for all relevant material to be provided to the reviewer, including a copy of the RSA decision and the notification letter, on the basis that this will enable the reviewer to prepare for the interview and identify issues that may need further clarification before travelling to Christmas Island or alternate immigration detention facilities.
Importantly, paragraph 4.1 of the Guidelines, which deals with the role of the reviewer, requires a reviewer to “consider afresh all claims for protection as they relate to the Refugees Convention, taking into account all available information including up-to-date country information” (emphasis added).This paragraph indicates that the reviewer is required to take into account all information available to the RSA officer in reaching the unfavourable assessment, as well as all information provided by or on behalf of the applicant and any additional information the reviewer may consider relevant. It is, however, clear that the reviewer is to consider the claims “afresh”. A review is not in the nature of an appeal or otherwise such that a reviewer is required, having regard to the context in which the review is conducted, its subject matter and the scope and purpose of the Migration Act and the Guidelines, to address the reasons for the RSA officer’s adverse conclusion in the manner contended for by the applicant.
Grounds three and four are not made out.
As none of the grounds relied on by the applicant are made out the application must be dismissed.
I certify that the preceding one-hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 20 December 2012
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