SZRBZ v Minister for Immigration
[2012] FMCA 537
•27 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 537 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Legitimate expectation – departure from findings of previous decision-maker on similar evidence – procedural fairness. |
| Migration Act 1958, ss.36, 46A, 91R, 195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Navarrete v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1723 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | SZRBZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 129 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 June 2012 |
| Date of Last Submission: | 12 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Ower |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the First Respondent: | Ms R. Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 129 of 2012
| SZRBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 18 August 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 19 September 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 11 February 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 14 October 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It can be presumed that the applicant was in detention at the time of the RSA assessment and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 7 of those reasons.
RSA application
In a statutory declaration declared on 19 September 2010 in support of his application for an RSA and at his RSA interview, the applicant made the following claims:
a)in May 2012, three months before his departure from Iran, a friend gave him a copy of a CD because he was known for copying and selling CDs for extra income. The CD contained explosive footage of people being killed and injured during the Ashura demonstrations. He was devastated by what he saw and, as average people in Iran were not aware of the government’s action in killing and attacking people, he decided to sell copies of the CD to show people what was happening. He also sold the CDs for additional income. He copied and sold one hundred copies of the CD to his closest friends and their trusted friends;
b)three days before he travelled to Australia a friend who worked for the intelligence agency told him that the authorities were looking for the person distributing the CDs. His friend did not know that he, the applicant, was the person copying and distributing them. A day later the authorities came to the area where he lived asking about the CDs. He decided it was too dangerous to stay and decided to leave Iran; and
c)he feared being identified as the person who had copied and distributed the CDs. If he was identified, he would be executed.
Proceedings before the Reviewer
The applicant was interviewed by the Reviewer on 21 June 2011 at which point he made the following additional claims:
a)he had not copied the CD to earn extra money but to show the reality of the situation in Iran. The applicant then said that originally he had copied the CD to make money but that later it was for political reasons;
b)he had purchased fifty CDs wholesale in a big bag. The applicant then said that he had bought one hundred CDs but then further said that he had bought two separate bags of fifty CDs so as to not raise suspicion;
c)his mother told him that some people in plain clothes with weapons and handcuffs had visited his home after he left Iran. After this visit, his mother threw away the five or six CDs that he had left in the house. The authorities must have had an idea that he was the person distributing the CDs because they had been to his house three times since he left Iran, although they did not enter the house or obtain evidence linking him to the CDs;
d)he had not attended any demonstrations after receiving the CD because he was worried; and
e)he was able to leave Iran quickly because he had not yet become of specific interest to the authorities.
In a submission dated 7 July 2011 the applicant’s advisers submitted that the applicant would face harm in Iran as a failed asylum seeker. The advisers referred to an October 2010 Refugee Review Tribunal (“RRT”) decision in which the RRT found that, based on country information, the claimant in that case would face serious harm in Iran on the basis of an imputed political opinion resulting from seeking asylum in Australia. The advisers submitted that the applicant would face a similar risk of persecution if he returned to Iran.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)the Reviewer accepted that the applicant generally copied and sold CDs to produce additional income but found that he did not copy and distribute a CD containing explosive images from post-election demonstrations or the Ashura Day demonstrations. The Reviewer found that there were inconsistencies in the applicant’s evidence about whether his primary reason for distributing the CD was financial or political. In addition, the applicant’s evidence concerning whether he had bought two separate packets of fifty blank CDs to avoid suspicion or whether he had bought a bag of one hundred blank CDs was inconsistent. The Reviewer found the inconsistencies to be significant and an indication that the applicant might have been making up answers as issues were raised rather than recalling facts regarding an actual event. The Reviewer thus found the applicant’s claims lacking in credibility;
b)based on her finding that the applicant’s evidence lacked credibility and contained fundamental inconsistencies, the Reviewer found that the authorities had not gone to his local area in search of a person distributing CDs containing images of post-election demonstrations or the Ashura Day demonstrations. The Reviewer further found that the authorities had not gone to the applicant’s house in search of such a CD. The Reviewer found that the applicant did not have a well-founded fear of persecution based on his actual or imputed political opinion;
c)having regard to the applicant’s advisers’ submission about the RRT decision 1001288 [2010] RRTA 912 (22 October 2010) which concluded that, despite all other claims being rejected, an applicant could have a well-founded fear of serious harm in Iran on the basis of being a returnee from the West and/or a failed asylum seeker, the Reviewer found that RRT decisions were not legally binding on her and that it was her task to assess the information for herself. The Reviewer therefore considered the country information in the RRT decision and found that returnees did not face a real chance of serious harm based solely on their status as returnees or failed asylum seekers returning to Iran from the West. Rather, the Reviewer found that the country information supported a finding that some people who had applied for asylum overseas and returned to Iran had faced varying degrees of ill treatment but for specific reasons, such as conversion to Christianity, participation in anti-government activities in Iran or abroad, illegal possession of a satellite dish or being from a politically active family. As she had found that these circumstances did not apply to the applicant, the Reviewer found that he did not face a real chance of persecution from the Iranian authorities as a returnee from a Western country or as a failed asylum seeker.
Proceedings in this Court
In his further amended application the applicant alleged:
1.The Second Respondent failed to afford the Applicant procedural fairness.
Particulars
a. There was a legitimate expectation that the Second Respondent would construe the country information concerning failed asylum seekers returning to Iran in the same way that the Refugee Review Tribunal had previously. In departing from that approach without notice to the Applicant, the Second Respondent denied him the opportunity to adduce further evidence or make further submissions on point.
b. The Second Respondent misconstrued and misapplied the Country information.
c. The second respondent made adverse credibility findings on the basis of the Applicant’s evidence at the hearing concerning whether he bought the CDs in one bag of 100 or 2 bags of 50. By not alerting the Applicant to the importance to which she regarded any inconsistencies surrounding this evidence and the impact it may have upon his credibility, the Second Respondent fell into jurisdictional error.
2.The Second Respondent failed to consider a relevant consideration or address a critical aspect of the Applicant’s claim.
Particulars
The Second Respondent failed to consider the entirety of Country Advice on Iran contained in RRT Advice JRN37255 dated 19 August 2010.
3.The Second Respondent fell into jurisdictional error by failing to make any finding as to whether the Applicant’s status as a failed asylum seeker meant that he had a well-founded fear of persecution in Iran because of an imputed political opinion.
Particulars
The Second Respondent considered (without deciding) whether failed asylum seekers from Iran were imputed with anti-government or anti-Islamic Republic political views because of an application for protection abroad (see paragraph 48 of the Independent Merits Review Statement of Reasons) but made no finding as to whether the Applicant would be imputed with such a political opinion because of his application for asylum.
Failure to afford procedural fairness
Particular (a)
The applicant submitted that his claim based upon his status as a returned asylum seeker was first raised by his advisers in their submissions to the Reviewer dated 7 July 2011 where, in particular, the RRT decision 1001288 [2010] RRTA 912 was cited. In this connection, the applicant submitted:
After noting that she was not “bound” by decisions of the RRT, the IMR purportedly “considered” the source material upon which this decision was based and construed it more restrictively. The IMR gave no indication that it would construe this information in such a restrictive manner. Given that the decision of the RRT upon which the Applicant relied did not take a restrictive view, it was a denial of procedural fairness for the IMR to make its recommendation without providing the Applicant with an opportunity to comment upon the IMR’s likely divergence in construction.
The applicant went on to say that he had had a legitimate expectation that the Reviewer would construe the country information which had been before the RRT in the same way as the RRT had. He submitted that had the Reviewer intended to construe that information differently, or rely on other information, she should have notified him of this possibility and given him the opportunity to make further submissions and adduce further evidence.
To cast the applicant’s rights before the Reviewer in terms of legitimate expectation is to mischaracterise them. The applicant had a right to procedural fairness, not a right to have his unprompted subjective expectations satisfied. It can be that a decision-maker such as the Reviewer indicates to an applicant that a certain step will not be taken until the applicant has had an opportunity to take a step of his or her own, such as to put further submissions or evidence before the Reviewer, and that failure to act as foreshadowed can amount to a denial of procedural fairness. In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ said:
… what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. (at 12-13 [34]) (reference omitted)
The Chief Justice gave an example:
A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. … (at 13-14 [37]) (references omitted)
See also McHugh and Gummow JJ at 27-28 [81]-[83]; Hayne J at 38-39 [121]-[122] and Callinan J at 45-46 [140].
The applicant did not suggest that the Reviewer gave him any reason to believe that she would reach the same conclusion as the RRT had on the question whether a failed asylum seeker returning to Iran would face persecution there on that basis, such that if she had been contemplating reaching a conclusion different from the RRT’s she was obliged to put him on notice of this so that he might advance further evidence and submissions. Consequently, the applicant was not denied procedural fairness on the basis that an expectation of the sort discussed in Lam had been disappointed. Absent an expectation of that sort, what the applicant could legitimately expect of the Reviewer was procedural fairness, an obligation which, for the following reasons, did not oblige the Reviewer to alert the applicant to the possibility that she would draw from the relevant evidence a conclusion different from the one reached by the RRT.
The applicant submitted that the approach taken by the Reviewer was not only different from the one taken by the RRT but was one which could not have been reasonably expected. He also submitted that by interpreting the information which had been before the RRT in a manner different to the way the RRT had interpreted it, the Reviewer raised a new and unexpected issue of the sort discussed in Navarrete v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1723. There, available material was dealt with in a way which so distorted its true substance that a new issue was introduced. Allsop J considered that the treatment of the material in question, which was adverse to the person to be affected by the administrative decision, was such:
… as to raise important and adverse factual matters beyond those which someone in the position of the applicant could reasonably have anticipated as likely to arise from the material that he understood to be before the Minister in the known statutory context. Another way of expressing the reason for my view is to adopt the words of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591–2 and say that the material put to the Minister for consideration contained adverse conclusions, in effect by way of Departmental recommendation, that were not obviously open on the known material in the known context of the statute and decision in question. (at [3])
The applicant’s argument appears to pre-suppose that the country information considered in 1001288 [2010] RRTA 912 was so powerful that it incontrovertibly demonstrated that a failed asylum seeker returning to Iran would be entitled, as such, to have a well-founded fear of persecution there and that the decision reached by the RRT was the only one open on the information in question. Logically, that is the only basis on which it could be concluded that any departure from the conclusion reached by the RRT in that case was not obviously open on the known material or had become a new issue. However, consideration of the information cited by the RRT discloses that the conclusion it reached was not the only one open. In those circumstances and particularly given that with one exception the information cited by the RRT did not actually say that failed asylum seekers returning to Iran faced persecution of the sort referred to in s.91R of the Act on that account, the conclusion reached by the Reviewer was not one which was not obviously open on the known material. Further, and for the same reasons, the Reviewer’s relevant reasoning and conclusion did not introduce a new issue or matter which procedural fairness required be identified to the applicant.
Moreover, to suggest that a later decision-maker in one case has to give notice of an intention to make a factual finding which is different from the factual finding of an earlier decision-maker in a different case mistakes the law. First, a decision-maker is not obliged to canvass his or her thinking on an issue with the person to be affected by the decision which is to be made: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 166 [48]-[49]. Secondly, such a suggestion runs the risk of turning the second decision-maker into something like a rubber stamp. As Allsop J said in Navarrete’s case, albeit in a different context:
If the Minister gave no consideration to the terms of the draft, for instance because the author was known to be reliable and she was prepared to sign a memorandum from that person without giving it consideration, it might be said that there was jurisdictional error for the failure by the Minister to make the decision personally. (at [40])
In this case, the applicant was entitled to expect that the Reviewer would bring her own mind to the review and not simply adopt another’s conclusions. Had she not done this then he would have had cause to complain. However, the fact that the Reviewer did what the law required of her, by bringing an independent mind to the review, gives no cause for complaint.
The applicant further submitted that had the Reviewer foreshadowed that she intended to reach a conclusion on his claim to fear persecution by reason of being a failed asylum seeker which was different from the one the RRT reached in a similar situation in 1001288 [2012] RRTA 912, he would have adduced additional evidence or made further submissions which would have invalidated the conclusion reached by the Reviewer in para.58 of her reasons, namely:
Overall the reviewer finds that returnees do not face a real chance of serious harm in the foreseeable future based solely on their status as returnees and/or failed asylum seekers returning to Iran from the West. Instead, the reviewer finds that the country of origin information supports a finding that some people who have applied for asylum overseas and then returned to Iran have faced varying degrees of ill treatment but for very specific reasons, such as conversion to Christianity, or if they have participated in anti-government activities in Iran or abroad, and/or illegally possessed a satellite dish and/or if they are from a politically actively family.
However, as the Reviewer had no obligation to disclose her thought processes to the applicant, this argument does not demonstrate any relevant denial of procedural fairness to him.
The applicant also submitted that the actual conclusion which the Reviewer reached was one which was not obviously open on the known material. If this were so, then procedural fairness would have required her to put the applicant on notice of this so that he might adduce additional evidence and make further submissions. However, I find that the conclusion reached by the Reviewer was open to her on the evidence contained in the independent country information she cited and is not, in my view, properly characterised as not having been obviously so. Consequently, the fact that the Reviewer reached the conclusion in question generated no antecedent procedural fairness obligation of the sort propounded by the applicant.
Particular (b)
The applicant submitted that the unfairness of the Reviewer’s approach was reinforced by the fact that the country information which his advisers had placed before her was strongly supportive of the proposition that failed asylum seekers from Iran would be likely to face persecution upon return.
This submission does no more than invite the Court to reach a factual conclusion different from the Reviewer’s. As long as the relevant decision of the Reviewer was open on the evidence, as it was here, the circumstance that the Reviewer may not have been convinced by evidence which the applicant characterises as strongly supportive of his arguments does not lead to a conclusion that the decision was affected by legal error. The applicant himself conceded in his written submissions that the Reviewer was not obliged to accept one piece of country information over another but, in the absence of an allegation of bias, his further submission that a fair reading of the RRT decision contradicted the Reviewer’s reasoning is, in reality, no more than a complaint that the Reviewer should have made a different finding, not that the finding which was reached was legally erroneous.
Particular (c)
This particular refers to the fact that one of the foundations of the Reviewer’s adverse credit finding was what the applicant described as the “apparent” inconsistency in whether he had bought blank CDs in lots of fifty or one hundred and the Reviewer’s conclusion that this discrepancy was “significant in the circumstances”.
Paragraph 37 of the applicant’s record of interview with the RSA assessor, which was reproduced in the Court Book which was part of exhibit 1, records that the applicant had made a hundred copies of the CD in question and, to do this, had bought two lots of fifty CDs. He is recorded as having said:
Once I sold out, I bought another lot of 50 CD’s [sic] to copy to, I only bought 2 lots of 50 CD’s [sic] as I did not want to get attention from the authorities.
The transcript of the applicant’s interview with the Reviewer, which was annexed to the affidavit of Marianne Elizabeth Larkins sworn 3 April 2012, records that at one point he said that he bought a bag of one hundred CDs but, after the inconsistency in his evidence was pointed out to him, he then went on to say that he had bought two lots of fifty CDs.
The applicant submitted that the Reviewer had erred by failing to alert him to the fact that she considered this inconsistency to be significant. He submitted that he should have been given an opportunity to comment “upon what the IMR saw as a significant inconsistency that formed one of the main reasons for rejecting the Applicant’s evidence”. He also said that, in fact, there had been no inconsistency but that, if there had been, it was not a significant one.
I reject the submission that there was no inconsistency. It is apparent from a comparison of what the applicant told the RSA assessor and the Reviewer that there was indeed an inconsistency. Consequently, it could not be said that a finding of inconsistency was not a conclusion reasonably open on the known material. Moreover, the fact that the Reviewer had identified an inconsistency should have been sufficiently plain to the applicant given that, as p.5 of the transcript of the applicant’s interview with the Reviewer records, the applicant agreed with the Reviewer that he had bought two lots of fifty CDs then, as recorded at p.11, said he bought a bag of one hundred and then, as recorded at pp.11 and 12 of the transcript, the inconsistency was squarely put to him. That the inconsistency was also relevant was indicated when the Reviewer said to the applicant, as recorded at p.25 of the transcript:
The issue I think here, the consequences if this has occurred are accepted. That if [sic] this, if the Claimant has made and sold this CD and it’s known to the authorities, its [sic] accepted that the Claimant is not, is going to be … have a well-founded fear of serious harm if he is returned to Iran. The issue here is whether or not this did occur and that can turn, and does turn, on those smaller issues of how you did it, why you did it, when you did it, when they found out you did it.
The applicant’s substantive submission was that the degree of significance which the Reviewer attached to this inconsistency was not disclosed to him. Notwithstanding that the inconsistency had been the subject of questioning by the Reviewer and that the Reviewer told him that her decision on whether the claimed events in Iran “can turn, and does turn” on the credibility of the various elements of his account, the applicant submitted that she should also have told him the weight she intended to attribute to this detail, and by implication, other factual matters. This is not correct. The Reviewer had no obligation to do this: SZBEL at 166 [48]-[49]. The applicant was aware not only that the Reviewer had identified an inconsistency in his evidence but also that the detail of his claims concerning the production of the CDs would be relevant to determining the credibility of his account. The Reviewer was under no obligation to go further and canvass her likely thought processes or the significance which she might give to any particular item or items of the evidence.
For these reasons, the first ground of the further amended application is not made out.
Failure to consider relevant consideration
Notwithstanding the way this obligation was expressed, rather than alleging that the Reviewer had failed to take account of a mandatory consideration of the sort discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, in fact what the applicant was alleging in the second ground of the further amended application was that the Reviewer had failed to consider relevant evidence. In this connection, if the Reviewer ignored material which may have had a bearing on the outcome of the review then she would have failed to conduct the review by the correct legal principles.
Although in his written submissions the applicant submitted that the Reviewer failed to have regard to the RRT Country Advice IRN37255 which was quoted extensively in 1001288 [2010] RRTA 912, the Reviewer expressly stated in para.57 of her decision that she had “carefully considered the agent’s submission, including the RRT decision, 1001288 [2010] RRTA 912” and then went on to record that she had also considered the source material on which the RRT decision had been based. No proper basis to disbelieve the Reviewer’s express statements has been advanced. In the circumstances, I do not accept the submission that the Reviewer failed to have regard to what was said in the RRT Country Advice even if she principally relied on the primary sources on which that advice had been based, rather than on the advice itself.
Additionally, at the hearing of this application the applicant expanded on this allegation and submitted that the Reviewer had failed to consider his claim that he feared persecution in Iran on the basis that, as a failed asylum seeker, he would be imputed to have political views opposed to the Iranian government’s. This submission was really an elaboration on the third ground of the application and will be dealt with as part of the consideration of that allegation.
Failure to make finding
The applicant submitted that it was apparent from the post-interview submissions lodged by his advisers that his claim for protection based on being a failed asylum seeker was not limited to his membership of the particular social group of failed asylum seekers but also included the political dimension of being perceived as anti-government. In their letter of 7 July 2011 the applicant’s advisers had submitted:
The risk our Clients will face serious harm at the hands of the Iranian authorities on the basis of their actual or perceived anti-government views will now be further heightened given that they have travelled to Australia and applied for asylum.
…
We note that our Clients would face a similar if not heightened risk on return to Iran then [sic] was faced by the claimant I [sic] this RRT decision after applying for asylum in [sic] on the basis of our Client’s previous political activities in Iran.
As a result, even if you should disregard the claims of past persecution raised by our Clients, the information and reasoning as provided in the above RRT decision shows that you cannot exclude the real possibility that our Clients would be targeted now on the basis of being perceived to be anti-government as result of travelling to and seeking asylum in Australia.
The applicant submitted that the Reviewer made no specific finding on whether he would be imputed to have an anti-government stance but instead found that he did not fall within one of the specific categories of asylum seeker to which certain country information cited by the Reviewer applied. However, contrary to the applicant’s submissions, in para.48 of her reasons the Reviewer did deal with the issue of imputed political opinion. In that paragraph she said:
It remains uncertain as to whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad. What is certain is that at least some returnees from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, ranging from monitoring, interrogation, and detention. There are reliable reports that some returnees from Canada have been physically harmed and there is at least one report of a returnee dying following physical harm upon return.
She then went on to express her conclusions on this issue in para.58 of her reasons, which is relevantly quoted above at [21].
The fact that in para.48, which was in that part of the Reviewer’s reasons summarising the evidence before her, the Reviewer quoted, with attribution, part of the RRT country advice document dealing with the situation of failed asylum seekers returning to Iran does not invalidate her subsequent, articulated reasoning. Nor does it suggest, as the applicant submitted, that the Reviewer did not consider the material which had been placed before her or that his claim to fear being imputed with an oppositional political opinion was overlooked. Rather, it demonstrates an awareness of the issue. The fact that this awareness found its expression in a pertinent quotation is of no significance.
Additionally, the Reviewer’s failure in that part of her reasons under the heading “Findings and Reasons” to make a specific finding on the claim to fear persecution on the basis of an imputed political opinion does not necessarily mean that she did not consider it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46]-[47]. Having first expressly referred to the RRT decision 1001288 [2010] 912 and to the advisers’ submissions which dealt with that question, the Reviewer’s statement in para.58 that:
Overall the reviewer finds that returnees do not face a real chance of serious harm in the foreseeable future based solely on their status as returnees and/or failed asylum seekers returning to Iran from the West
should be understood to amount to a rejection of all aspects of the applicant’s claim to fear persecution based on his status as a failed asylum seeker.
In this regard, to suggest that the feared imputation of an anti-government political view could be separated from the claim based on membership of the particular social group of failed asylum seekers is to erect a false dichotomy. The applicant’s claim was that because he was a member of that group he would be imputed with anti-government views which, in turn, would lead to a real chance that he would be persecuted for political reasons. Consequently, when the Reviewer rejected his claim to fear persecution as a failed asylum seeker she necessarily, although not expressly, rejected the related assertion that he faced a real chance of persecution for a political opinion which he would be imputed to hold. The fact that the Reviewer went on to identify classes of returnees who might face persecution does not suggest otherwise because the possible persecution of those persons was found to arise not from their status as failed asylum seekers but from other characteristics particular to them, namely participation in anti-government activities in Iran or abroad, illegal possession of a satellite dish or membership of a politically active family. The applicant was found not to exhibit such characteristics.
For these reasons, the third ground of the further amended application, together with the related argument which was associated with the second ground, is not made out.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 27 June 2012
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