SZRDW v Minister for Immigration - [2012] FMCA 545

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDW v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 545

MIGRATION – Persecution – review of recommendation made by independent protection assessor (“Assessor”) that the applicant not be recognised as a person to whom Australia has protection obligations.

ADMINISTRATIVE LAW – Allegation that the Assessor failed to consider evidence, made a finding not open on the evidence, took an irrelevant consideration into account, made a factual finding which was illogical, failed to consider a claim and failed to provide information adverse to the applicant’s claim.

Migration Act 1958, ss.36, 46A,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
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZRDW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

HEATHER KING IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number:

SYG 319 of 2012

Judgment of:

Cameron FM

Hearing date:

31 May 2012

Date of Last Submission:

31 May 2012

Delivered at:

Sydney

Delivered on:

29 June 2012

REPRESENTATION

Counsel for the Applicant:

Mr J. King

Solicitors for the Applicant:

Fragomen

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 319 of 2012

SZRDW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HEATHER KING IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Iran who arrived at Christmas Island by boat on 8 April 2011. He lodged an application for a Protection Obligations Evaluation (“POE”) dated 22 May 2011 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 8 August 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he was not satisfied that the applicant was a person to whom Australia has protection obligations. In a subsequent Independent Protection Assessment (“IPA”) that decision was reviewed by the second respondent (“Assessor”) who, on 9 January 2012, 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 POE assessment and subsequent IPA.
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 Assessor: 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 Assessor’s recommendation. He seeks a declaration that the Assessor’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 Assessor’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 Assessor was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 9 of those reasons and are relevantly summarised below.

Entry interview

The applicant made the following claims during his entry interview on 20 April 2011:
a)he married in 1999 and divorced in 2009. He had one daughter from this marriage, born in 2004;
b)he was a mechanic in Iran;
c)after his marriage he learned that one of his wife’s brothers was a member of the Basij while another was a member of the Ettalaat. They made trouble for him because he spoke out against the Iranian regime;
d)one night he was stopped by men on a motorcycle and beaten. He recognised the perpetrators as friends of his wife’s family;
e)in January 2009 he returned from a business trip to Esfahan and discovered that his wife and daughter were not at home. When he contacted his wife, she told him not to call anymore. The next morning he was arrested for abandoning his family and taken to Hamadan prison where he was detained for ninety days. During this time he refused to sign divorce papers;
f)he returned to his wife after he was released from prison but they divorced later that year. He was given sole custody of their daughter;
g)on 15 June 2009 he attended a post-election protest and was injured when he and three others were pushed into a car by some agents. When the car stopped he managed to escape and go home. He told his wife that he had been injured at work and later that night returned to the protest;
h)following his divorce, his home was raided by his brothers-in-law. They told him that this was “only the beginning”;
i)one day his neighbour told him that some men had put magazines in his car. He searched his car and found magazines of the Iranian king which he destroyed. Later, when driving his car, he was stopped and searched by plain clothes police officers;
j)on 13 February 2011, during a protest at Hamadan university, he was approached by a number of people including his wife’s cousin and one of his brothers-in-law. They attempted to handcuff him but he fought back, punching, kicking and head-butting his brother-in-law who fell on the roadside and hit his head. The applicant then escaped to a friend’s place. His mother’s house was raided later that night and patrols were set up outside it. His siblings’ houses were raided later; and
k)he left Iran because of the problems he experienced with his brothers-in-law. His life was in danger.

POE application

In support of his POE application the applicant provided a statement of claims which was generally consistent with the information he had provided in his entry interview. However, in relation to the protest in February 2011, the applicant claimed that although he had wanted to hit his brother-in-law he was stopped by members of the Basij.
At his POE interview on 25 May 2011 the applicant made the following additional claims:
a)he had been in dispute with his wife’s family since 2002;
b)while he was in prison, his brother-in-law tried to make him sign divorce papers;
c)he injured his foot at the June 2009 demonstration;
d)he believed that his brother-in-law approached him at the February 2011 demonstration because of the family conflict. When his brother-in-law tried to handcuff him he head-butted him and, by wriggling out of his coat, was able to escape from the two Basij who were holding him; and
e)he was in fear of his life prior to 2011 but could not leave Iran because his mother was sick and he had to care for his daughter.
The applicant’s advisers submitted that the applicant feared persecution in Iran on the Convention grounds of imputed political opinion, as he was actively involved in demonstrations and protests against the government, and membership of a particular social group, being failed asylum seekers.

Proceedings before the Assessor

In pre-interview submissions dated 31 October 2011 the applicant’s advisers submitted, amongst other things, that around 2001/2002 the applicant and “other like-minded individuals” began meeting at the applicant’s workshop where they would discuss the oppression of the Iranian people and their disapproval of the regime. It was submitted that the applicant’s wife alerted the Basij to these meetings and that from 2001 to 2011 the applicant became the subject of their unwanted adverse attention, including threats of harm and threats to close down his shop. The applicant’s advisers also submitted that while the applicant might have come to the attention of the Basij because of a family dispute, the persecution he had suffered in the past had been because he had been imputed with an anti-regime political opinion.
At his interview with the Assessor on 1 November 2011 the applicant was assisted by his migration agent who was also a solicitor. At that interview the applicant made the following additional claims:
a)his wife agreed to give him custody of their daughter because of his political views. It was “about political issues and his life being in danger”;
b)prior to 2001 the meetings at his workshop were attended mostly by members of Narcotics Anonymous and university students. Then in 2001 there was “a fight” between university students and the government following which they were able to have “more activity”;
c)because they feared the Sepah, the Basij and the regime, the meetings and the group did not have a name. There were seventy or eighty of these unnamed groups and a leader for every twenty members. He was a leader of one of those groups. The meetings were usually organised by the city shop keepers and were held irregularly. The purpose of the meetings was to inform people of the cruelty of the regime, to get more members, to “get into the system” and to make addicted people aware of the country’s situation;
d)his wife knew of the meetings but not of their location. He held some meetings at his workshop but the Basij found out and came to the workshop to threaten and harass him. This happened two or three times before 2001 and four or five times after 2001. He was not seriously harmed during those raids;
e)he did not mention the meetings in his earlier interviews because his lawyer did not allow him time to explain completely. Also, he was never asked;
f)he was told that he was being imprisoned for failing to support his wife financially; and
g)he left Iran on a genuine passport but had to pay a bribe because his name was on a black list at the airport as a result of his participation in demonstrations.

Assessor’s findings and reasons

After discussing the claims made by the applicant and the evidence before her, the Assessor 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 Assessor consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
The Assessor did not accept that the applicant was awarded custody of his daughter in 2009 when she was five years old because:
a)article 1169 of the Iranian Civil Code specified that a daughter would remain in the custody of her mother until the age of seven;
b)according to an essay entitled “Family Law in Iran” by Sen McGlinn of the University of Leiden, the civil code rules applied in allocating custody after divorce. They provided that child maintenance [ie custody] was a male preserve except in the case of a boy under two or a girl under seven, in which case the mother had priority;
c)the applicant could not explain why the Iranian court had awarded him custody; could not sufficiently explain why his ex-wife would acquiesce to this arrangement other than repeatedly stating that she thought that his life was in danger because of his political views; could not explain why his ex-wife would consider their daughter safe in his care if his own life was in danger; and did not reiterate his claim made at the entry interview that his ex-wife had agreed to him having custody on the condition that they divorce, or the reason cited in the advisers’ submission – that neither party wanted the child to grow up under the influence of the brothers-in-law; and
d)in the Assessor’s opinion, it was implausible that the applicant would be awarded custody of a female child some months after completing a prison sentence for abandoning his family and in the context of a hostile family situation.
The Assessor found that while her conclusion on the custody question had no real effect on the applicant’s claims to fear persecution in Iran, it nevertheless undermined his credibility in relation to those claims.
The Assessor accepted that the applicant had a brother-in-law who was a member of the Basij and another who was member of the Ettalaat. She also accepted that the latter was involved in the applicant’s incarceration at Hamadan prison and used the opportunity it presented to solicit a divorce. However, the Assessor did not accept that the applicant’s incarceration was orchestrated by his brother-in-law for political reasons. She noted, and accepted, that there had been a long standing history of personal tension between the applicant and his wife’s family and that his brothers-in-law in particular wanted him out of the family. Taking this into account and given the applicant’s evidence that he was informed by the authorities that he was imprisoned for abandoning his family, the Assessor concluded that the applicant was incarcerated solely for family reasons.
The Assessor found that the applicant’s brothers-in-law were motivated to harass him solely for personal family reasons because they were dissatisfied with him as a husband for their sister. Consequently, she did not accept that their harassment of him, including the planting of anti-regime magazines in his car or the raid on his house after the divorce, was in any way politically motivated.
The Assessor did not accept that the applicant had been stopped and beaten by the Basij because:
a)he had provided inconsistent information about the event;
b)his recall of the event at interview was hesitant. He required prompting to recall previous evidence and did not appear to be speaking from lived experience; and
c)country information indicated that if his claim that his brothers in-law were orchestrating to silence him for political reasons was true, then his experience of harm by the Basij and the Ettalaat would have been more extreme.
The Assessor accepted that the applicant had participated in a demonstration in June 2009 and that he returned to the demonstration after being injured earlier in the day. However, the Assessor did not accept that he was arrested by and escaped from the Basij as he claimed, noting that:
a)there were inconsistencies in his evidence, in particular, about whether or not he had told his wife what had happened and how he had injured his foot;
b)the applicant appeared to be improvising and his responses were unconvincing; and
c)the Assessor found it implausible that the applicant was selectively arrested and that he had managed to escape from a car with an injured foot while having a member of the Basij beside him.
The Assessor also accepted that the applicant attended the protest in Hamadan in February 2011 but did not accept that he came to the attention of the Basij as a political dissident, noting that:
a)the applicant provided elaborate and detailed evidence at his entry interview that he punched, kicked and head-butted his brother-in-law who then fell and hit his head on the roadside. The information which he subsequently provided with his POE application was completely contradictory, namely, that he wanted to hit his brother-in-law but was stopped by the Basij from doing so. In the Assessor’s opinion, this was not a minor inconsistency that could be attributed to misinterpretation or miscommunication;
b)the applicant’s claim that he was able to escape while being held and assaulted by three people was not plausible; and
c)he seemed to be improvising rather than speaking from lived experience.
The Assessor did not accept that the applicant held political meetings in his workshop or that he was the leader of an unnamed group that had been meeting since before 2001 to discuss anti-regime matters. The Assessor noted the following in this connection:
a)the applicant was unable to specify how the group identified itself or to articulate a meaningful purpose for its meetings;
b)in the Assessor’s opinion, it did not make sense that such a defined arrangement would not have a name, even an informal one, or a purpose other than to recruit more members;
c)the applicant was not able to speak to the Narcotics Anonymous connection;
d)the applicant did not mention these meetings in his entry interview, statement or POE assessment and was unable to provide a discernible reason for not doing so;
e)the applicant was evasive, gave rambling answers to questions at interview and responded to questions in a dubious manner; and
f)the applicant never enunciated a connection between his claimed participation in political protests and his activity as a leader of an unnamed politically-based group.
In light of these findings, the Assessor did not accept that the applicant was persecuted in Iran because of his political opinion or that he faced a real chance of persecution in Iran because of his profile as a political activist or dissident.
Finally, the Assessor did not accept that the applicant faced a real chance of persecution in Iran as a failed asylum seeker, noting that:
a)he left Iran on a legal passport;
b)there was information that returnees who had been critical of the Iranian regime while overseas or who were political activists or had outstanding legal issues might be interrogated, detained or mistreated upon returning to Iran. However, the applicant did not fit any of these profiles; and
c)there was no information that being a failed asylum seeker resulted in persecution.

Proceedings in this Court

In his amended application the applicant alleged:
1.The Assessor failed to make the Recommendation in accordance with the law by ignoring relevant material, making an erroneous finding or reaching a mistaken conclusion that was not open on the evidence.
2.The Assessor failed to give proper, genuine and realistic consideration to the applicant’s claim to fear persecution by reason of being a member of the particular social group of failed asylum seekers, or failed to respond to a substantial, clearly articulated argument to that effect relying on established facts.
3.The Assessor failed to put before the applicant material (or substance thereof) that the Assessor knew of and considered may bear upon whether to accept the applicant’s claims.

Failure to consider evidence; making finding not open on the evidence

The first ground of the amended application was particularised as follows:
i. The applicant claimed that:
i.he married in 1999 and divorced in 2009 (Recommendation, [12]);
ii.he had been given sole custody of the one daughter from this union who was born in 2004 (Recommendation, [12]);
iii.the mother of this daughter had remarried (Recommendation, [28]).
ii.Relevant to the applicant’s claim to have sole custody over his daughter, the Assessor had The Civil Code of the Islamic Republic of Iran (“Civil Code”) before her (Recommendation, [51]).
iii.Under Article 1169 of the Civil Code a daughter will remain in the custody of her mother until she is aged 7 years. Based (in part) on this Article, the Assessor rejected the applicant’s claim to have sole custody over his daughter (Recommendation, [58]).
iv.The Assessor found that this conclusion undermines the applicant’s credibility in relation to his claim to fear persecution in Iran for a Convention reason (Recommendation, [60]).
v.In making this finding the Assessor ignored Article 1170 of the Civil Code (or made an error or reached a mistaken conclusion that was not open on the evidence). This is because under Article 1170, if a mother remarries custody will devolve on the father.
vi.In making this finding the Assessor had regard to an irrelevant consideration being a misapprehension of the application of Iranian law to the applicant.
The applicant argued that the Assessor’s adverse assessment of his credibility arising out of what the Assessor considered to be his unsatisfactory evidence concerning why he, rather than his former wife, had custody of his daughter was based on a misconception. That misconception was said to be an understanding of the relevant operation of the Iranian Civil Code based only on what it provided in its article 1169, uninformed by an awareness of the content and significance of what it provided in its article 1170. Article 1169 of the Iranian Civil Code, a translated copy of which was annexed to the affidavit of Farid Varess affirmed 17 April 2012, provided that:
A mother has preference over others for two years from the birth of her child for the custody of the child and after the lapse of this period custody will devolve on the father expect [sic] in the case of a daughter who will remain under the custody of the mother till 7 years.
Article 1170 of the code provided:
If the mother becomes insane or marriage [sic] another man during her period of custody, the custody will devolve on the father.

Finding not open on the evidence

The applicant submitted that as his ex-wife had remarried shortly after their divorce, it followed that under the Iranian Civil Code, specifically article 1170, she had no right to custody of their daughter. The implication of this submission was that it was not open to the Assessor to reject the applicant’s claim to have had custody of his daughter or to make an adverse finding on his credit based on that conclusion.
The transcript of the applicant’s interview with the Assessor was annexed to Mr Varess’s affidavit. It records that, despite being asked several questions by the Assessor concerning the custody of his daughter, the applicant made no reference to having had a legal entitlement to custody because his former wife had remarried. In fact, he gave an answer which, rather than suggesting reliance on a statutory right, suggested a demand acceded to by his wife. At p.75 of the transcript he is recorded as saying that he had custody of his daughter:
… because of my political views and also I insisted my wife to have my daughter with me because he didn’t want his daughter getting caught with any political views that was amongst his wife’s family.
In circumstances where the applicant was assisted in the IPA process by a professional adviser but made no express or implicit claim to have had a legal entitlement to custody of his daughter, whether pursuant to article 1170 or some other Iranian law, there can be no complaint that the Assessor did not consider such a claim or rely on evidence which the applicant did not press her to consider on the basis that it supported that claim. In this regard, it is worth noting what Gleeson CJ said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1] in the context of the Refugee Review Tribunal (“RRT”):
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process. (reference omitted)
The Assessor did not err by not basing her decision on a provision on which the applicant placed no reliance.
Further, the fact that there might be evidence, such as article 1170, on which a decision contrary to the one arrived at by the Assessor might have been reached provides no basis to conclude that there was no evidence for the conclusion which was, in fact, reached. In this case, the relevant decision of the Assessor, that she did not accept that the Iranian courts would have awarded the applicant custody of his daughter in 2009 when she was five years of age or that his former wife would have willingly agreed to such an arrangement, was based on the following factors as set out by the Minister in his written submissions:
(a)Article 1169 of the Civil Code, which appears to entitle the mother to custody until a daughter reached 7 years of age;
(b)Academic commentary confirming this effect of Article 1169 of the Code;
(c)the absence of satisfactory explanation and evasive and contradictory statements by the Applicant as to why a court would award him custody or his wife would agree to such an arrangement;
(d)the implausibility of an Iranian court awarding custody to the Applicant following his imprisonment for child abandonment or the Applicant’s wife agreeing to the same.
Consequently, even if reliance on article 1169 was misplaced because in the circumstances article 1170 applied, there was nevertheless sufficient evidence for the Assessor to be entitled, in law, to reach the relevant conclusion and to draw from it an adverse inference as to the applicant’s credibility.

Irrelevant consideration

As noted earlier, the applicant submitted that the Assessor’s credibility finding was based on a misapprehension of the Iranian Civil Code, namely an understanding of the code uninformed by an awareness of the content and significance of article 1170.
He submitted that this misapprehension:
… might also be characterised as taking account of an irrelevant consideration, in the sense that a misapprehension of the application of Iranian law to the applicant is “too insignificant and remote from the central question to be relevant”: see Kayikci v Minister for Immigration and Citizenship [2009] FCA 92 at [32] (Tamberlin J).
The meaning of this statement is obscure but it appears to be to the effect that the application of an incorrect interpretation of the Iranian Civil Code amounted to taking an irrelevant consideration into account. If so, for two reasons it misunderstands the law. First, the applicant’s submissions referred to the Assessor having misunderstood the law. The content and meaning of the Iranian Civil Code is, in Australian courts, not a matter of law but a matter of fact on which evidence may be adduced. Consequently, any misunderstanding of the Iranian Civil Code under which the Assessor may have laboured did not amount to an error of law but of fact.
Secondly, being a matter of fact relevant to the issues which the Assessor had to decide rather than a matter which she had to consider or exclude from her consideration, the content and meaning of the Iranian Civil Code was not a “consideration” in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; Abebe v Commonwealth (1999) 197 CLR 510 or Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
Nevertheless, I am not of the view that the Assessor was unaware of article 1170 or misunderstood the relevant operation of the Iranian Civil Code. Article 1170 did, after all, immediately follow article 1169 and it is likely, given the layout of the Iranian Civil Code as annexed to the affidavit of Mr Varess, that the Assessor was aware of it. I infer such an awareness from the Assessor’s several questions of the applicant, recorded at pp.75-77 of the transcript of their interview, which were directed to the chronology of events surrounding the applicant’s separation from his former wife, her remarriage and his custody of their daughter. These questions can be understood to have been the Assessor’s attempts to elicit from the applicant any claim to reliance on article 1170.
In an argument raised for the first time at the hearing of the present application, the applicant submitted that he and the Assessor had been at cross purposes during the latter’s questions concerning that chronology, which he characterised as “a speculative timeline”, and that this led him to give unresponsive answers. He submitted that these unresponsive answers contributed to the Assessor’s adverse view of his credibility. However, the significance of the applicant’s answers to the Assessor’s questions concerning the chronology of his separation from his former wife, her remarriage and his custody of their daughter was not that they were unresponsive to the thrust of the questioning but that they were silent on any claim to reliance on article 1170 or on some similar right.
The Assessor’s finding on the credibility of the applicant’s claim to have had custody of his daughter was not based on the chronology as such but on the applicant’s failure to allege that his claimed custody had anything to do with his wife’s remarriage. The difficulty which the applicant’s answers posed for him was not that they were unresponsive to the questions posed by the Assessor but that they contained no claim to a legal entitlement to custody of his daughter with the result that his allegation to have had such custody was tested against article 1169, not against article 1170. Tested against article 1169, it was found not to be credible.

Illogicality

The applicant made a further submission based on his assertion that the Assessor had required him to explain, in a manner consistent with her misapprehension of the Iranian Civil Code, how he came to have custody of his daughter. He said that it was irrational, illogical or unreasonable for the Assessor to have concluded that his answers to her questions were not credible when those questions were based on a misapprehension of the content and meaning of the relevant Iranian law.
All the applicant identified by this submission was the fact that, in response to the Assessor’s questions, he had made no mention of the fact that he had a statutory right to the custody of his daughter displacing his former wife’s rights under article 1169 or that his custody of his daughter came about as a result of that right. Given that the applicant had made no such claim, it was open to the Assessor to conclude, given the terms of article 1169 which she expressly put to the applicant during their interview, that his evidence that he had had custody of his daughter was not credible.
In his oral submissions at the hearing of this application the applicant raised a further ground which had not been foreshadowed in his application or in his written submissions, namely that although the Assessor’s conclusion was that a court had not awarded him custody of his daughter, he had never claimed this and thus the Assessor’s conclusion that a court had been involved was illogical. It does seem that the Assessor’s statement that a court decided the custody question was an assumption for which there was no explicit evidence. Nevertheless, her conclusion concerning the applicant’s credibility did not turn on custody having been decided by a court but on the fact that, when all the relevant circumstances were considered, it was implausible that the applicant had actually had custody of his daughter. The Assessor expressed this in terms both of the likely decision of a court and the attitude of the applicant’s former wife. Regardless of whether it was a court or the applicant’s former wife who was decisive in determining the custody issue, the Assessor’s conclusion that it was unlikely that either of them would have agreed to the applicant having custody of his daughter was open on the evidence.
In any event, the relevant question is not whether the Assessor’s finding on the facts was illogical but whether it was open. In the context of an IPA, illogicality in the relevant sense concerns the Assessor’s ultimate conclusion on the applicant’s claim to be a refugee, not intermediate findings anterior to that ultimate conclusion: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 as explained in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58. For this reason, even if one might not approve of an Assessor’s logic in finding a particular fact, that would not, on its own, amount to legal error or a basis to grant relief.

Failure to consider claim

The second ground of the amended application was particularised as follows:
a.The applicant claimed that there was a real chance he would be persecuted upon his return to Iran as a failed asylum seeker because of an imputed political opinion and his membership of the particular social group of failed asylum seekers (Statement dated 22 May 2011 at [28]; Submission dated 31 October 2011 at [62]-[63]; Recommendation at [25]).
b.The Assessor held that there was no evidence that being a failed asylum seeker “results in” persecution on return to Iran (Recommendation at [82]).
c.The Assessor ought to have considered whether there was a “real chance” that:
i.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;
ii.the identity of the applicant would become known to Iranian immigration officials by reason of his need to apply for a new travel document or otherwise by the manner of his return to Iran; and
iii.the applicant would be persecuted on return to Iran as a failed asylum seeker (1001288 [2010] RRTA 912 at [143]-[146]).
d.The evidence before the Assessor was incapable of excluding a “real chance” of persecution.
The thrust of the applicant’s second allegation was that the Assessor had failed to consider not only his claim to fear persecution as a failed asylum seeker, and thus also as a person imputed to have a political opinion opposed to that of the Iranian government, but also the evidence before her that the Iranian authorities would come to know that he was a failed asylum seeker.
The applicant further alleged that the Assessor had failed to apply the correct test by not considering whether he faced a real chance of persecution and did so in circumstances where the evidence was incapable of excluding the existence of such a chance.
In his written submissions the applicant did not really address his allegation that the Assessor had failed to consider his claim as a failed asylum seeker. Instead, he said that the Assessor had failed to consider his claim based on the RRT decision 1001288 [2010] RRTA 912; that, to the extent that it relied on the RRT’s decision, his claim as a failed asylum seeker had not been considered; and that “[t]he failure to consider that claim was a constructive failure to exercise jurisdiction”. When pressed at the hearing he submitted that the Assessor’s asserted failure to consider the RRT decision indicated that she had failed to consider what was said to be his claim to fear persecution by reason that he did not have a travel document.
In his written submissions the applicant referred to the Assessor’s statement at para.82 of her reasons:
I do not accept that there is any information that being a failed asylum seeker in [sic] results in persecution on return to Iran …
and said that in that statement she made two mistakes, namely:
(a)There was in fact information to the effect stated, being the decision and reasoning adopted by the Refugee Review Tribunal in 1001288 [2010] RRTA 912 at [143]-[146] per Member Lennon. …
(b)The correct legal question for the assessor was not whether being a failed asylum seeker “results in persecution”, but whether there was a “real chance” that the applicant might be persecuted for that reason upon his return to Iran.
The applicant submitted that he had put to the POE officer and to the Assessor that they should consider that, because he did not have a travel document, he would face a real chance of persecution if he returned to Iran. He said that he had mentioned the RRT’s decision 1001288 [2010] RRTA 912 in a written submission provided to the POE officer and that this amounted to a submission that when considering this aspect of his claims the Assessor ought to take the RRT’s reasoning into account. The RRT relevantly concluded in 1001288 [2010] RRTA 912 that, in Iran, a failed asylum seeker would be imputed with an anti-government political opinion and that the applicant in that case would come to be identified by the Iranian authorities as being a failed asylum seeker. It concluded on that basis that that applicant had a well-founded fear of Convention-based persecution in Iran.
Although no allegation to this effect was made in the amended application, in his written submissions the applicant implicitly argued in the alternative that he had been denied procedural fairness on the basis that if the Assessor had actually considered the RRT’s decision and, having considered it, decided to depart from it, fairness would have required her to raise that matter with him.
The first issue to address is whether the Assessor considered the applicant’s claim to fear persecution as a failed asylum seeker and whether she did so by reference to the correct test. As to the former element, the written submissions which the applicant’s advisers made to the POE officer said that:
… it is likely that all persons perceived to be a [sic] opponents of the regime are currently subject to more intense scrutiny and to harsher penalties than they would otherwise have been during the presidency of Mohammed Khatami.
The advisers also referred to the RRT decision, relevantly saying:
It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto [sic] Iranian authorities. It is also likely that these details will be known to Iranian Immigration security officials at Imam Khomeini International Airport in Teheran, the main international gateway into Iran.
Refugee Review Tribunal of Australia. 1001288 [2010] RRTA 912 (22 October 2010).
The submission to the POE officer referred twice more to the RRT decision but only as a general reference unrelated to any particular argument.
In her summary of the claims and evidence before her, the Assessor referred in the following terms to the written submissions made to the POE officer:
The claimant’s advisor submitted that the claimant fears persecution on the convention grounds of imputed political opinion as he was actively involved in demonstrations and protests against the government, and membership of the particular social group, as a failed asylum seeker returning to Iran.
The advisor submitted that the claimant fears persecution at the hands of the Iranian government and security forces including the Basij in the form of arrest, detention and torture. He provided references to country information to support the claims.

Later, at para.82 in that part of her Statement of Reasons under the heading “Findings and Reasons”, the Assessor said:
I note that the claimant’s advisor has made claim that the claimant faces more than a remote chance of persecution in Iran on the basis of being a failed asylum seeker. … I have examined relevant country information in regard to the treatment of returnees and failed asylum seekers. … I do not accept that there is any information that being a failed asylum seeker in [sic] results in persecution on return to Iran.
Although these comments were quite brief, they nevertheless demonstrate that the Assessor considered the claim based on the applicant’s status as a failed asylum seeker. Moreover, they were a basis for the Assessor’s subsequent conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason in Iran.
That latter finding is not unrelated to the applicant’s subsidiary and related assertions that the evidence before the Assessor was incapable of excluding a “real chance” of persecution and that when the Assessor said at para.82 of her reasons:
I do not accept that there is any information that being a failed asylum seeker in [sic] results in persecution on return to Iran …
she asked herself the wrong question by not testing the evidence against the “real chance test”. The first proposition, that the evidence before the Assessor was incapable of excluding “a real chance” of persecution, misstates the nature of the Assessor’s task, which was not to include or exclude possibilities or to make findings beyond reasonable doubt. Her task was to consider the evidence before her and, on balance, decide whether, in her view, the applicant met the criteria for the grant of a protection visa. She did not have to exclude the possibilities that the applicant faced a real chance of persecution or that he had a well-founded fear of persecution for a Convention reason; it was for him to satisfy her that he did.
As to the proposition that the Assessor did not apply the correct test, the fact that she did not, in the sentence in question, recite the “real chance” test found in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 does not demonstrate that she erred. As was said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559:
Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error. (at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)
As noted earlier, the Assessor’s ultimate conclusion was expressed in terms of well-founded fear, which was the test which she was bound to apply.
Further in this regard, the applicant’s submission concerning the absence from the statement quoted from para.82 of the Assessor’s reasons of a reference to the “real chance” test confused the latter’s intermediate finding of fact, namely that there was no evidence that failed asylum seekers risked persecution in Iran, with her ultimate finding that the applicant did not have a well-founded fear of persecution for a Convention reason.
For these reasons I find that the Assessor did not consider the relevant aspect of the applicant’s claim by reference to an incorrect test.
The second issue to address is what the applicant characterised as his claim to fear persecution because he did not have a travel document. In my view there was no such claim made to the POE officer or to the Assessor. This assertion confused two matters, one being the relevant basis of the applicant’s claim to fear persecution, ie his status as a failed asylum seeker, the second being a fact which might lead to his status being discovered by the Iranian authorities, ie his lack of a travel document. It was never suggested that the lack of a travel document might itself be the reason for persecution. The significance of the lack of a travel document lay in the fact that it might indicate to the Iranian authorities that the undocumented person was a failed asylum seeker. Consequently, there was no claim of the nature propounded by the applicant which the Assessor was required to consider.
The third issue to address is whether the Assessor failed to consider the RRT decision and thus whether she was mistaken when she said:
I do not accept that there is any information that being a failed asylum seeker in [sic] results in persecution on return to Iran …
This allegation raises two subsidiary questions. The first is not whether the Assessor was mistaken, because a simple factual error does not amount to an error of law, but whether it was open to the Assessor to find that there was no information before her that being a failed asylum seeker resulted in persecution on return to Iran. The second is whether, on the assumption that the RRT decision contained such information, the Assessor had considered what that decision said. As to the first of the subsidiary questions, none of the information cited by the RRT said, in terms, that failed asylum seekers faced persecution in Iran. However, one of the documents referred to, published by the Immigration and Refugee Board of Canada and entitled
The repatriation of failed refugee claimants to Iran, including reports of claimants being detained, mistreated and tortured upon removal from Canada on the basis they made refugee claims in Canada; whether the Iranian government would be able to recognize that a returnee had made a refugee claim in Canada; the process by which failed refugee claimants are removed by Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) (2003 – 2005 , 7 December ),
referred to a person having died after receiving one hundred lashes in prison. It can be assumed from the title of that report that the person who died was a failed asylum seeker, although the RRT’s reference to it did not make this explicit. On the assumption that the Assessor had had regard to the RRT decision, her statement that she did not accept that there was any information (before her) that being a failed asylum seeker resulted in persecution on return to Iran should be relevantly understood to reflect a conclusion that the Canadian report did not, in the terms employed by the RRT, actually say that being a failed asylum seeker had that consequence. As already noted, the other information before the RRT did not say as much either.
In those circumstances, it was open to the Assessor to say, in effect, that there was no evidence before her that being a failed asylum seeker resulted in persecution in Iran.
As to the second subsidiary question, if the Assessor failed to consider evidence which might have had a bearing on the outcome of the IPA, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his IPA, then that would amount to a failure to conduct the IPA by reference to the correct legal principles correctly applied: Minister for Aboriginal Affairs v Peko-Wallsend per Gibbs CJ at 30 and 31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf at 351 [82]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72].
It is true that the Assessor made no express reference to the RRT decision in her reasons but there was no need for her to refer to it. As already observed, the information cited in the RRT decision did not go so far as to say that returnees to Iran faced persecution, as that term is defined by the Act, on the basis that they were failed asylum seekers. However, if it was open to the RRT to find that the information it cited supported such a conclusion, it was at least equally open to the Assessor to conclude that it did not, which I find she did. For this reason, the country information which the RRT cited was of no relevance to the applicant’s claim to fear persecution as a failed asylum seeker. Once the Assessor found that the other evidence before her also did not support that proposition, which is the burden of her statement that there was no information before her to the effect that being a failed asylum seeker resulted in persecution in Iran, the RRT decision had no importance at all. This was because the only other issue it relevantly addressed was the risk that a person might come to the attention of the Iranian authorities as a failed asylum seeker. As the Assessor found that there was no evidence before her that being a failed asylum seeker supported a well-founded fear of persecution in Iran, the fact that the Iranian authorities might know that a person had that history was of no importance to the IPA and thus there was no need to cite the RRT’s decision or its finding to that effect.
In circumstances where there was no obligation to refer expressly to the decision in question, the lack of such a reference does not necessarily demonstrate that it was not considered: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [46]-[47]. It is important to acknowledge this because I infer from other parts of her reasons that the Assessor did consider the RRT decision. In this regard I have regard to what the Assessor said in para.82 of her reasons as quoted above at [54], to her reference to the advisers’ submission to the POE officer at para.17 of her reasons, quoted above at [53], and to her statement at para.46 of her reasons that she had had regard to material submitted by the applicant and his advisers.
Finally, although it was not supported by the amended application or mentioned in the applicant’s addresses, as I have found that the Assessor did have regard to the RRT decision 1001288 [2010] RRTA 912, it is necessary to consider the alternative allegation made in the applicant’s written submissions that he was denied procedural fairness because the Assessor did not alert him to her intention to reach a finding different from the one reached by the RRT on similar facts. In the absence of an elaboration of the argument, its basis remains speculative but I assume that the applicant implied that the Assessor’s different conclusion was one which was not obviously open on the known material. However, a departure from the RRT’s decision could only be considered to be a conclusion not obviously open on the known material if it could be said that the information considered by the RRT demonstrated incontrovertibly 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. For the reasons already given above at [62] and [65], the RRT’s decision was not the only one open on the relevant evidence. Consequently, the Assessor’s different conclusion was not one which was not obviously open on the known material or one which procedural fairness obliged her to bring to the applicant’s attention before completing the assessment.

Failure to provide adverse information to the applicant

The third ground of the application was particularised as follows:
a.the applicant claimed a fear of persecution as a failed asylum seeker;
b.in rejecting the applicant’s claims in this regard, the Assessor relied upon information in the UK Home Office’s 2010 Country of Origin Information Report: Iran to the effect that:
i.some failed asylum seekers have been able to return to Iran without any problems (“Part 1”); and
ii.persecution of failed asylum seekers is limited to incidents involving persons with prior political profiles or active campaigners (“Part 2”).
c.the Assessor failed to put Part 2 (or the substance therefore) before the applicant and/or failed to put to the applicant that Part 2 (or the substance thereof) would be relied on in respect of the Assessor’s findings that the applicant does not face a real chance of persecution on return to Iran as a failed asylum seeker.
d.the Assessor otherwise failed to put before the applicant material (or substance thereof) that the Assessor knew of and considered may bear upon whether to accept the applicant’s claims, or otherwise failed to put [sic] the applicant matters that were credible, significant and relevant to the Recommendation.
At para.52 of her reasons the Assessor referred to the 2010 UK Home Office Country of Information Report which said, amongst other things, that Britain was “aware of incidents where persons with prior political profiles or who have actively campaigned against the regime have faced difficulties” and went on to conclude at para.82 of her decision:
I accept that there is information that returnees who have been critical of the Iranian regime while overseas, those that have been political activists, and those with outstanding legal issues, may be interrogated, detained or mistreated upon return. … I do not accept that the claimant fits any of the profiles mentioned …
The applicant submitted that relevantly his claim had been to fear persecution on the basis that he would be a failed asylum seeker and that the Assessor had rejected this because he did not fall into any of the categories of failed asylum seekers identified by the British Home Office report as likely to face persecution upon return to Iran. The applicant submitted that because the British Home Office information on which he said the Assessor had relied to reach her decision quoted above at [69] was adverse to his claim based on his status as a failed asylum seeker, it should have been provided to him but was not.
This submission misunderstands the Assessor’s reasons. Those reasons, properly understood, state that the Assessor did not accept that being a failed asylum seeker would, without more, result in persecution on return to Iran. The fact that the Assessor then went on to identify categories of person who might face persecution, none of which included the applicant, did not invalidate that decision or cause the Assessor to have an obligation to provide him with the information from the Home Office report concerning those categories of person. The information was not adverse to the applicant’s case so the Assessor had no obligation to provide it to him.

Conclusion

The applicant has not demonstrated that the Assessor’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 seventy-three (73) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 29 June 2012