SZRGE v MIAC

[2013] FMCA 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRGE v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 18

MIGRATION – Review of recommendation of Independent Merits Reviewer – whether the reviewer fell into error in relation to the assessment of the applicant’s credibility – whether apprehension of bias – whether reviewer failed to address, or inadequately addressed, a claim made by the application – no error – application dismissed.

Migration Act 1958 (Cth), ss. 476, 477

Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14
SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SZQRC v Minister for Immigration and Citizenship [2012] FCA 851
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
Shah v Minister for Immigration and Multicultural Affairs [2000] FCA 489
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4; (1997) 190 CLR 225
Applicant S v Minister for Immigration & Multicultural Affairs & Anor [2004] HCA 25; (2004) 217 CLR 387
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389

Applicant: SZRGE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: RUTH LAYTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 560 of 2012

Judgment of: Nicholls FM

Hearing date: 20 August 2012 and 6 December 2012

Date of Last Submission: 6 December 2012

Delivered at: Sydney

Delivered on: 22 January 2013

REPRESENTATION

Counsel for the Applicant: Mr D Joyce

Solicitors for the Applicant: Michael Jones, Solicitor

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application made on 13 March 2012, amended on 8 August 2012 and further amended on 15 November 2012, is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 560 of 2012

SZRGE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

RUTH LAYTON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 13 March 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 8 August 2012 and further amended on 15 November 2012, seeking review of the recommendation to the respondent Minister by the second respondent, Ms Ruth Layton in her capacity as Independent Merits Reviewer (“the reviewer”), that the applicant not be recognised as a person to whom Australia owes protection obligations under the Refugees Convention[1].

   [1]United Nations Convention Relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees   Convention  ”).

2. The application to the Court, as amended and further amended, also seeks injunctive relief, and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14 (“M61/M69”).

Background

1. The applicant is a citizen of Iran (see Court Book – “CB” – CB 2). He arrived at Christmas Island by boat on 21 December 2010 (CB 60).

Refugee Status Assessment

1. On 14 February 2011, the applicant requested that his claims to protection be assessed under the Refugee Status Assessment (“RSA”) process established by the Minister to accommodate requests for asylum from persons who arrive by boat and without authority (M61/M69) (CB 11 to CB 50). Attached to that request was a “ReStatement”, signed on 14 February 2011, in which the applicant set out his claims to protection (CB 25 to CB 28):

   1)He feared harm if he were to return to Iran on the basis of his political opinion and imputed political opinion ([3] at CB 25).

   2)The applicant claimed that, in mid-August 2009, he attended his local mosque to vote in the elections (though I note that, in his record of interview with the Immigration Advice and Application Assistance Scheme (“IAAAS”), it is indicated that the elections were in 2010 (CB 42)). While there he saw “…2 or 3 Basijis were attacking a young man” ([6] at CB 25). He attempted to intervene and was punched and kicked by the Basiji who then took and destroyed his national identity card. They also saw his election ballot paper which indicated he was voting for “Musavi” (leader of a political party opposed to the government, the Green Path of Hope). He was then handcuffed and taken to their headquarters ([5] at CB 25 to [7] at CB 26).

   3)The applicant was held at the headquarters for 27 days and was “bashed” on several occasions. He was accused of being a supporter of the opposition “Green Party”, and told that he was “anti-government” ([8] at CB 26).

   4)After 27 days he was taken to Wakilabad and held for a further four months ([9] at CB 26). After that time he was released and told that if he were seen in “suspicious places” again he would be imprisoned. He was also made to sign a statement indicating that he was not in the “Green Party” ([10] at CB 26).

   5)After his release from prison, he was told by co-workers that, while he had been imprisoned, the Basiji had attended at his workplace asking questions about him ([11] at CB 26). He was also “constantly harassed” by the Basiji who would stop him on his way home from work nightly, usually for “a couple of hours” ([12] at CB 26). When they were not busy, they would swear and otherwise verbally abuse him ([13] at CB 26).

   6)After months of being targeted in this way, he decided he had to flee Iran, and he began to make arrangements to leave in August 2010 ([14] at CB 27). He bribed someone in order to get a new national identity card and passport ([15] at CB 27).

   7)He further claimed that, for a month after he left Iran, the Basiji went to his house looking for him ([18] at CB 27).

   8)He fears that he would be “fined, imprisoned, beaten and tortured” if he were to return to Iran. He claimed that the government would not be able to protect him ([17] at CB 27).

2. On 25 May 2011 the applicant was notified that an officer of the Department of Immigration (“the officer”) had determined that he was not a refugee as defined by the Refugees Convention (CB 51 to CB 71).

3. The officer found that significant omissions from the applicant’s “entry” (on arrival) interview of his claims to protection adversely reflected upon the applicant’s credibility (CB 68). The officer did not find the applicant’s explanation for his failure to mention, during that interview, his being detained and beaten in the context of his reasons for leaving Iran to be plausible (CB 68). The officer further found that the applicant’s account did not correlate with country information also before him (CB 70). The officer also considered that the applicant did not have a political profile such as to render him of interest to the Basij (CB 70 to CB 71). As a result, the officer did not accept the applicant’s claims. While the officer accepted that the applicant may have been “harassed” by the Basij on “some occasions”, he did not consider that this amounted to serious harm for the purposes of the Act (CB 71).

The Reviewer

1. On 15 June 2011, the applicant’s representative submitted his request for Independent Merits Review (CB 72 to CB 77). Written submissions were provided by his representative on 5 August 2011 (CB 80 to CB 89).

2. These submissions expanded the applicant’s claims to incorporate claims on the basis of his Shia religion and his membership of a particular social group being “returnees” (to Iran), or his membership of a particular social group being “Western returnees” (CB 81), or membership of a social group being “young men/imputed students involved in anti government protest activities, namely the support of opposition leader Mousavi” (CB 85).

3. Further written submissions were provided after the hearing, on 24 October 2011 (CB 97 to CB 128).

4. The applicant was interviewed by the reviewer on 5 August 2011 (see further below).

5. On 27 October 2011, a staff member of the Independent Protection Assessment Office wrote to the applicant’s representatives, seeking comment or response to a number of questions put by the reviewer (CB 130 to CB 131). (I note in this regard that the letter itself is dated 19 December 2011 – see CB 130, although the email was sent on 27 October 2011 – see CB 129) The applicant’s representative replied with further written submissions on 31 October 2011 (CB 132 to CB 134) and 1 November 2011 (CB 135 to CB 137). Further submission was sought from the applicant’s representative on or about 2 November 2011 (CB 138) and 2 December 2011(CB 140). Further submissions were provided by the applicant’s representative in response on 9 November 2011 (CB 139), 12 December 2011 (CB 141 to CB 142) and 15 December 2011 (CB 145 to CB 146).

6. On 17 January 2012, the reviewer recommended that the applicant not be recognised as a person to whom Australia owes protection obligations (CB 149 to CB 186). The reviewer’s “Findings and Reasons” were set out under that heading at [85] at CB 171 to [134] at CB 185 of her statement of reasons.

7. The reviewer regarded as “plausible” the applicant’s claims that he was targeted for an imputed political opinion if he were linked to being a “Green Movement” supporter, and that the Basij tore up his identity documents, beat and detained him and harassed him, and “possible” that he may have been detained for longer than a few days ([90] at CB 173). However she noted that the question remained whether such claims were otherwise “credible” ([91] at CB 173).

8. In this regard, the reviewer noted the delay in the applicant making his “substantive” claims ([86] at CB 171 to CB 171, [94] at CB 173), and found that the explanation provided by him for this delay did not sufficiently, nor credibly, explain the applicant’s failure to raise his claims at an earlier stage ([95] at CB 174 to [105] at CB 177 and [111] at CB 180 to CB 181). The reviewer also noted inconsistencies in the applicant’s evidence ([86] at CB 171, [106] at CB 177 to [107] at CB 179 and [109] at CB 179 to CB 180) and the lack of supporting evidence from his family or employer ([108] at CB 179 to [109] at CB 180). As a result of these findings, the reviewer determined the applicant’s claims were not credible ([113] at CB 181), and that he was not of any adverse interest to the Iranian authorities ([113] to [114] at CB 181 and [116] at CB 182).

9. Having regard to country information and the evidence before her, the reviewer accepted that, should the applicant return to Iran, “there is a chance” he would be known to have sought asylum in Australia ([124] at CB 183). In this regard, the reviewer noted submissions filed on behalf of the applicant and country information as to the treatment of returnees to Iran ([125] at CB 183, [128] at CB 184). The reviewer noted that any such treatment would be as part of the operation of a law of general application ([126] at CB 183 to CB 184). In light of the reviewer’s findings as to the applicant’s substantive claims, she was satisfied that any potential harm suffered by the applicant on return would be limited to “questioning and perhaps a fine” as a result of laws of general application. But he would not be identified for “systematic and discriminatory treatment for Convention reason/s” ([128] at CB 184 to [131] at CB 185).

10. The reviewer concluded that the applicant would not face a “real chance of persecution” if he were to return to Iran in the reasonably foreseeable future ([133] to [134] at CB 185), and that the applicant did not have a “well-founded fear of harm” if he were to return ([134] at CB 185). As a result, he was not a person to whom Australia owed protection obligations under the Refugees Convention (135] at CB 185). She then made a recommendation to that effect ([137] at CB 186).

Before the Court

1. Before the Court, Mr D Joyce of counsel appeared for the applicant. Mr HPT Bevan of counsel appeared for the first respondent.

2. Despite consent orders made at the first Court date granting leave to the applicant to file an amended application by 7 May 2012, an amended application was filed on 8 August 2012. At the hearing, the applicant sought leave to rely on a further amended application presented on 15 November 2012 (leave was granted).

3. In addition to the Court Book, the Court had before it written submissions filed by both the applicant and the respondent. The applicant had filed the affidavit of Michael Terence Jones, solicitor,  affirmed on 8 August 2012, which purportedly annexed a transcript of the interview. That affidavit was not pressed. The affidavit of Maria Teixeira-Alves of 5 December 2012, annexing a complete transcript (“T”) of the interview was taken into evidence (no objection).

4. The grounds as set out in that further amended application are as follows:

   “1. The second respondent fell into jurisdictional error in relation to assessment of the credibility of the applicant that formed the basis of her recommendation to the Minister.

   Particulars

   The Reviewer’s exclusive focus on credibility frames her approach to the review process and ultimately leads to her mistaken conclusion that whilst plausible the applicant’s claims are not credible. That is manifested in the inconsistency between the finding of plausibility at CB 180 [110] and non-credibility at CB 181 [113]. In this critical section the reviewer omits to refer at all to the applicant’s physical evidence of torture. It is a jurisdictional error as it is ultimately determinative of and critical to the negative decision made. This error is compounded by the Reviewer’s reliance upon and misreading of paragraphs 203-204 of the UNHCR Handbook: CB 172 [88], CB 173 [91].

   2. The second respondent failed to observe the requirements of procedural fairness by appearing to be biased, in comments made during the IMR interview, against the applicant as one of a number of persons who come to Australia with the assistance of smugglers and who put forward false claims in order that they might be granted the relevant protections.

   Particulars

   In the IMR interview at p 39, lines 20-21, the Reviewer refers to the applicant’s difficult and dangerous journey to seek asylum in this country as ‘this wild goose chase’. And further remarks, ‘And he spent a lot of money doing it, which could have bought a car or something.’ The Reviewer states in the IMR interview at p 34, lines 40-41: “you could have at least though of something that was convention related to warrant the US$20,000’ and further on p 35 at lines 10-13 in the context of the applicant’s claim that he was advised by those on the boat not to initially mention what had happened to him: ‘you know, I mean, you didn’t get a very good people smuggler, because at least they will give you a – they will see you a story at the same time, usually.’ These passages and the critical passage at p 37, lines 38 to 45, indicate that a fair-minded lay observer might reasonably apprehend that the Reviewer might not bring an impartial mind to the resolution of the question before her, namely the determination of the applicant’s claim.

   3. The second respondent committed jurisdictional error by failing to address, or inadequately addressing, one of the claimed bases for the applicant’s fear of persecution.

   Particulars

   The applicant makes a particular social group claim relating to his treatment and targeting by the Basiji which is not dealt with at all in the conclusions reached (CB 185 [134] – [135]). This unexpressed claim arises especially at IMR interview pp 11-23 and p 29 at lines 1-3 and is apparent (though not dealt with – see CB 184-185 at [115]-[134]) in the decision itself at CB 166 [72]: ‘his evidence indicated that even if he was detained, this was for thwarting the local Basij in attacking a young man at the polling booth rather than for his political opinion’ (cf CB 171 [85]).

   The claim which was not addressed was in relation to the applicant’s membership of a particular social group, namely ‘those Iranians identified as dissidents by the Basiji and thereby targeted for persecution by the Basiji’.”

5. The application to the Court also included an application for an extension of time pursuant to s.477 of the Act. Having regard to SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 (“SZQDZ”), it is clear that no such extension of time is required for the current proceedings. Further, the further amended application made no request for an extension of time and, in written submissions, the applicant acknowledged that, in light of SZQDZ, no such extension was required.

Consideration

Ground Two

1. Before the Court the applicant described ground two as his “principal ground”. In short, the ground alleges an apprehension that the reviewer was biased. This was said to be revealed by comments made by the reviewer during the interview with the applicant.

2. The comments were said to be:

   1)T34, lines 35 – 41, noting that the applicant particularly relied on lines 40 – 41:

   “[Reviewer]: Dear man. I don’t know what to say except you’ve paid US$20,000, and even if you thought, ‘Gosh, I better not say anything about political opinion because they’ve told me I won’t be able to go back,’ you could have – if you were going to lie anyway and say – if you were going to not tell the truth, as in, you know, ‘This is the real reason I left,’ and you were going to make up a story – ‘I left because of unemployment’ – you could have at least though of something that was convention related to warrant the US$20,000.”

   2)T35, lines 10 – 14:

   “[Reviewer]: My glasses …… somewhere. You know, I mean, you didn’t get a very good smuggler, because at least they will give you a – they will see you a story at the same time, usually. It’s not a good thing. It’s not a nice thing. But you know, if you haven’t got one, they will usually sell you one. But you really - - - ”

   3)

   T39, lines 17 – 21, noting that the applicant relied on

   
   

   lines 20 –21:

   “[Reviewer]: But your client is obviously a very pleasant man who’s, you know, highly upset and highly upset not least of all, I suspect, because his wife isn’t talking to him, which is horrible, really. And that could be ……including she is fed up he has come on this wild goose chase. You don’t know how to interpret ‘wild goose chase’?”

   4)

   T39, lines 25 – 32, noting that the applicant relied on

   
   

   lines 31 – 32:

   “[Reviewer]: Well, no, I’m sorry. I mean, it’s true. There’s a lot of reasons why she could be upset with him. She wants him home to look after the kids. And it takes a lot of money doing it.

   THE INTERPRETER: Pardon?

   [Reviewer]: And he spent a lot of money doing it, which could have bought a car or something.”

1. It is the case that certain comments made by the reviewer at the interview do provide a probative basis for the applicant to make his charge. These comments, as exemplified by what is set out above, can be said to be “smart” (“could have bought a car” – T39, line 31), hard and, in a sense, patronising (“Dear man…” – T34, line 35). Some of the questioning was certainly vigorous, confronting and challenging.

2. However, these elements are not such as to make out an apprehension of bias. It is well to be reminded of what the test requires given that such allegations are a serious attack on the integrity of the decision-maker (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [127] per Kirby J):

   “…it is clear law that such allegations will only be upheld by a court where the accusations are distinctly made and clearly proved. In short, the accusation of such bias must be ‘firmly established’.”

   [Footnotes omitted.]

   (see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)).

3. The test requires an informed fair-minded lay observer. It postulates “possibility” not probability (“might…apprehend” in SZQRC v Minister for Immigration and Citizenship [2012] FCA 851 (“SZQRC”) at [36] per Griffiths J). Nevertheless, that apprehension needs to be reasonable. The focus of the apprehension is that the reviewer might not have brought an impartial mind to the proceedings before her and to the making of the recommendation required of her.

4. In sum therefore, as is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ:

   “Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge... the governing principle is that, subject to qualifications relating to waiver... or necessity..., a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”

   [Emphasis added in SZQRC at [32] per Griffiths J.]

5. There is no dispute between the parties that “the same test applied to non-judicial decision-makers” (SZQRC at [33] per Griffiths J and Ex parte H at [5] per Gleeson CJ, Gaudron and Gummow JJ).

6. While the apprehension of bias is a serious charge, the test postulates, nonetheless, what Mr Bevan correctly described as the “double might” (“might…apprehend”, “might not bring…”). Plainly, there is a distinction with actual bias.

7. As against this, the applicant asserts that the lack of impartiality on the part of the reviewer is made apparent by the statements made by the reviewer in the interview, as set out above, which the applicant also described as being insulting to him and to others who have sought the assistance of “smugglers” to come to Australia. That is, that such comments are unfair and seek to ridicule his claims to protection.

8. Far more pointedly the strongest of the applicant’s charges, as against the relevant test, is that the reviewer’s various comments revealed a view of asylum seekers who arrive by boat with the aid of “smugglers” and that that view is indicative of a lack of impartiality.

9. On balance, I do not agree. The applicant invited the Court to read and the entire transcript of the interview. I have done so. That invitation was put in answer to what the applicant described as various “disclaimers” made by the reviewer during the course of the interview. Those “disclaimers” were that she had come to the proceedings with an open mind. In other words, the applicant says that, in spite of the disclaimers, the totality of the transcript, and the context of the whole of the interview, including the various impugned statements, reveals the necessary apprehension for this ground to succeed.

10. In this regard, it is important to note that the interview, with breaks, was of some four and a half hours duration (it commenced at 3.25pm – T2, lines 5 and concluded at 7.55pm – T60, line 29). The audio of the interview has been reproduced as some 60 typed pages.

11. When read in this context, the first of the impugned statements does not occur until at least after the half way mark of the interview (T34). While it is difficult to judge actual time, the impugned statements appear concentrated in the period immediately following T34 and “end” at T39. On any plain reading of the entire interview, while the reviewer’s “individual” style (best described as blunt) is apparent, the statements that the applicant bases his current complaint on are essentially concentrated in one part of the interview.

12. It is here that context, albeit the immediate context, is important. What preceded these statements, and the applicant’s responses, when read reasonably by the fair-minded lay observer, are explained as an expression of frustration by the reviewer with the applicant’s inability to provide credible explanations for the adverse matters put to him. It is true that a more “professional” and “controlled” approach by the reviewer may be preferred. However, it is here that the nature and character of the relevant test is important. The test is one, ultimately, of the apprehension of not bringing an impartial mind. It is not necessarily whether the reviewer conducted an interview where, in part, she displayed her exasperation and frustration, even where that might be described, in part, as rude.

13. This particular part of the interview was preceded by the reviewer seeking to explore with the applicant the inconsistency between his subsequent claims with his claim on arrival in Australia that he “had left [Iran] because of unemployment. No jobs and no money…” (T32, lines 1 – 2). This was contrasted with his later account of past harm in Iran.

14. The applicant’s explanation was that he had listened to his “boat mates” and (T32, lines 34 – 39):

    “THE INTERPRETER: I was told by my boat mates that we are singles and it wouldn’t matter to us. So if we just give them – what are they called – cases and issues – it wouldn’t be any difficult for us. Because even if it takes, like, 10 years, the regime would be changed when we want to go back to Iran. But you that want to go back quickly to Iran or to get your family to come here, you would get into a lot of trouble if you give any political cases.”

15. It is in this context that the reviewer put to the applicant the lack of credibility in this explanation (T32, lines 41 – 43):

    “[Reviewer]: Well, I guess they’re experts, aren’t  they. I mean, you paid a smuggler a whole heap of money to get you across, and then you decide not to – if it is your real story – to tell your real story. It doesn’t make sense, does it?”

16. The applicant then embarked on what, it must be said, appeared to be some attempt to attack the competence of his “IAAAS agent” (the representative who initially assisted him), particularly on the issue of whether he had told medical personnel (on arrival) of his subsequent claimed detention in Iran. The applicant claimed that the absence of any such reference in the relevant medical reports was contrary to what his agent had told him.

17. This is the context in which the reviewer then, granted infelicitously, made reference to smugglers and the like. The point made by the reviewer to the applicant was that his account (that is, that he was told not to say anything about his claimed political opinion on arrival because he may have to go back to Iran) was not credible. As the reviewer told the applicant, if he was going to lie (this admission is implicit as to what the applicant says he omitted from his initial “on arrival” interview) then he should have come up with a better story. The reviewer’s point was colourfully put. However, it does not betray, in context, some preset mind. It is in fact, in my view, an expression of frustration with the applicant’s unsatisfactory evidence, underlying the issue of credibility.

18. This point is squarely illustrated by what the reviewer subsequently put to the applicant (T37, lines 16 to 30):

    “[Reviewer]: I don’t know, and I understand your difficulty, but your difficulties start – you need to accept responsibility for the fact that there are two parts to your case. The first part is that in your entry interview, which was the opportunity to say why you came, you said, ‘I came because of unemployment and financial difficulties.’ And then you make a claim and you say, ‘Look, it’s okay because I told the, you know, mental health assessment person all about this,’ and your agent gets the mental health assessment, and yay if it had been, ‘Yes, yes, he told me he had been jailed and so on.’ But it doesn’t. It says, ‘He feels his life would be brighter in Australia.’”

19. Before this Court, the applicant’s submissions appear not to have understood what the reviewer was putting to him. That is, that responsibility for the rejection of his claims to protection rests with him. Rather than relying on “mates” or “smugglers”, he should have given the account of relevant events in Iran that he subsequently gave, at the first opportunity. It was as much his inability to satisfactorily explain this omission, as the omission itself, that the reviewer was seeking to emphasise to him. This was not so much a “testing” of the evidence as the reviewer’s reasoning and commentary of what she thought of the applicant’s evidence. No apprehension of bias is made out in these circumstances

20. Before the Court the applicant sought to argue that, before the reviewer, he was troubled and was seeking to object to the reviewer’s statements. The applicant refers to T37, lines 13 – 14:

    “THE INTERPRETER: Well, the – I have to make my point. How can I prove it to you?”

21. In context, I do not accept this. Plainly the applicant’s statement in this part of the interview was directed to a very specific point made by the reviewer. This was that she was going to decline the applicant’s invitation that she telephone the Basij to verify his claims of past harm at their hands.

22. The applicant asked the reviewer, possibly rhetorically, how he could “prove” his subsequently made claims of harm at the hands of the Basij. In context, this is a disingenuous expression consistent with his inability to provide a credible explanation for the inconsistency in his account of why he left Iran. It is not some expression of concern at the reviewer’s statements. In this sense, the current case is distinguished from VFAB on which the applicant relies.

23. This is not a case as was found in Ex parte H (see at [32] per Gleeson CJ, Gaudron and Gummow JJ) where “constant interruptions” and “constant challenges” to his evidence, or that a “preconceived view” of the evidence, is evident on the material before the Court. The reviewer’s reference to smugglers and the like was plainly in response to the applicant’s lack of explanation and the lack of credibility of his evidence. It may be that the reviewer exhibited a range of characteristics as referred to above (see at [24] above), but the test for the apprehension of bias is not made out. In all, ground two does not reveal legal error.

Ground One

1. In ground one the applicant asserts that the reviewer fell into jurisdictional error in relation to the assessment of the applicant’s credibility. In particular, this was explained as the inconsistency in the reviewer’s finding that the applicant’s account of events in Iran was plausible, but that it was not credible.

2. It must be said that, before the Court, the applicant failed to satisfactorily explain the exact legal nature of the error asserted. The utterance of such phrases as a “denial of procedural fairness”, “asked the wrong question” and the like, without actual reference to the reviewer’s record, is obviously insufficient to make out a case.

3. It is not for the Court to make out the applicant’s claim for him. However, for the sake of completeness, I have attempted, where possible, to see if the necessary links can be made.

4. First, beyond what is asserted in ground two, no assertion of failure of procedural fairness is evident in the material before the Court in the sense of being linked to, let along arising from, that material.

5. Second, the main thrust of the applicant’s attack in this ground was explained before the Court as being that the reviewer’s error can be seen in the inconsistency between her finding that the applicant’s account of past events was plausible, but not credible.

6. The applicant relies on the “United Nations High Commissioner for Refugees (“UNHCR”) Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees” (Geneva, 1992) (“the Handbook”) and, in particular [203] – [204] of the Handbook, for the proposition that in coming to this conclusion the reviewer misunderstood what is set out there.

7. There is, at least, one complete answer to this charge. That is, what is set out in the Handbook is a guide, albeit even a useful one, to the process of refugee assessment. However, it does not have the force of domestic law (Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 and Shah v Minister for Immigration and Multicultural Affairs [2000] FCA 489).

8. Therefore, even if some “error” occurred here, it does not, on its own, reveal legal error such as to assist the applicant.

9. In any event, no such error is apparent. It is the case that the reviewer did look to extraneous international material to draw inspiration as to how to deal with the question of credibility. Why she did so, and why she did not look for direction from the ample domestic Australian law available to her, remains unexplained.

10. The applicant says that the reviewer’s error was to “place” plausibility in contrast to credibility, whereas the Handbook places plausibility as a part of the process of determining credibility and, ultimately, giving the applicant the benefit of the doubt.

11. What must first be understood is that the latest version of the Handbook was last edited over 20 years ago. In my view, its relevance to refugee determination has diminished with the passing of time, given that the Handbook’s focus is on issues of generality and in a context no longer relevant to the current world circumstances and the needs, characteristics and profile of those seeking asylum today. Simply, the world of post-WWII Europe is very different to the world now. If for no other reason than that, Australian case law precedent, and legislation, is a far better basis for inspiration as to how to approach such questions, rather than the Handbook.

12. While it must be said, from the number of decision records presented to the Courts, the emphasis on the distinction between plausibility and credibility given by the reviewer is not representative of the usual, or orthodox, approach employed by relevant decision-makers in these matters.

13. But, it is not a distinction which, in the circumstances of this case, has led to relevant legal error. Whether the distinction is open on what is set out in the Handbook is neither here nor there. At best, what is set out at [204] of the Handbook is unclear in this regard. But what is clear is that the focus in that paragraph (as with [203] of the Handbook) is, as the relevant heading plainly states, on the question of the “benefit of the doubt”. That is that, after the question of credibility has been settled (whether plausibility is a part of this, or separate) then, in certain circumstances, it may be appropriate to give the applicant the “benefit of the doubt” in relation to matters where there is a “lack of evidence” to support his claims.

14. Here again, recourse to Australian law is far more helpful than what is set out at [203] – [204] of the Handbook. For example, the reviewer may have gained greater, and certainly more relevant and helpful, direction from what was said by the High Court in cases such as Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”), than from the Handbook. However, what the reviewer relevantly sets out as her understanding of this part of the Handbook is not inconsistent with the contents of the Handbook (see at [88] at CB 172).

15. In any event, the reviewer’s focus in this case was not on the question of the benefit of the doubt. The analysis did not get to, nor in light of what is set out below, need to get to, the point where such consideration was necessary (see Guo and what is colloquially referred to as the “What if I am wrong?” test). The reviewer was, ultimately, presented by the applicant with an account of claimed events in Iran. She considered those claims as against country information, particularly in relation to the presidential election in June 2009, demonstrations, and the increased repression by the Iranian authorities ([89] at CB 172). In light of this, the reviewer found, given the prevailing circumstances in Iran at the relevant times, that the applicant’s claims were plausible as a general proposition. That is, they could have occurred as the applicant stated ([90] at CB 173).

16. However, there is no error, or inconsistency, in the reviewer also finding that, when regard was had to the applicant’s individual circumstances, the inconsistencies in his various accounts, and the lack of satisfactory explanation for the inconsistencies, then his account, while possibly plausible in a general sense, was not credible in his individual circumstances, and as he presented it.

17. Third, the applicant also attacks the reviewer’s approach by arguing that the applicant provided credible evidence that he had been detained and tortured by the Basij. He says that the reviewer however called into question his credibility because there was no reference to these claims in his initial interviews on arrival in Australia (including his medical interview).

18. On its own, this is nothing more than an attack on the finding of credibility made by the reviewer. Such findings, of course, are for the reviewer to make (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The applicant’s complaint crosses the line into impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

19. In any event, it should be noted that the reviewer’s relevant finding here was not just based on the applicant’s failure to make claims at the earlier opportunity. Rather, for example, the applicant provided contrary explanations, including that his reasons for leaving Iran were economic. This was coupled with further inconsistencies in his evidence and further unsatisfactory explanations for those inconsistencies.

20. Fourth, this complaint is also pressed as a challenge to the reviewer’s claimed approach to have relied on her own unsupported assumptions about the likely mental state of someone who had been tortured in the way the applicant claimed (with reference to T36, lines 28 – 45, T37, lines 13 – 25 and T59, lines 8 – 18).

21. It was not explained why the applicant relied on the transcript here rather than the actual findings made by the reviewer. It may be explained by the fact that, in her decision, the reviewer did not rely on any expectation that the applicant should have suffered from

    
    

    post-traumatic stress disorder if his claims to maltreatment in Iran were true. As the Minister submits, the reviewer did not act on her own “unsupported assumptions” with respect to the applicant’s mental state (see [37] of the Minister’s written submissions and [101] at CB 175 to [103] at CB 176).

22. Fifth, to the extent that the applicant alleges, or at best makes reference to, the reviewer asking the wrong question, the question which the Minister charged the reviewer to answer was whether the applicant was a person to whom Australia owed protection obligations. Central to this was whether the applicant had a well-founded fear of persecution if he were to return to Iran (Craig v South Australia (1995) 184 CLR 163 at 179 and, for example, Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ). That was the question the reviewer posed (at [3] at CB 150, [114] at CB 181) and answered ([135] at CB 185).

1. Ground one is not made out.

Ground Three

1. In ground three the applicant alleges that the reviewer committed jurisdictional error by failing to address, or inadequately addressing, one of the bases on which the applicant claimed to fear harm. When read in conjunction with the applicant’s written submissions, the claim that was said to be overlooked was a claim clearly arising on the material before the reviewer. That is, that the applicant was a member of a particular social group comprising of “… those Iranians targeted for persecution by the Basiji and thereby identified as dissidents”.

2. The Minister’s position was that no such claim arose on the material before the reviewer. Further, that no such claim in relation to a particular social group could arise because the formulation of that social group was fundamentally flawed. That flaw was said to be that the definition of the social group included a shared vulnerability to persecution which was said to be inconsistent with the principles established in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”).

3. There are two answers to the applicant’s complaint. First, the applicant asserts a claim arising from the circumstances presented. Namely, Iranians identified as dissidents by the Basij. The factual substratum for this claim can only be seen as being the applicant’s claim that he was identified and targeted by the Basij because of the incident at the mosque in 2009. His subsequently claimed serious harm emanated from this.

4. The difficulty for the applicant now is that the reviewer rejected the credibility of the applicant’s account of this event (see [113] at CB 181). She found that this did not occur. In this light, no unexpressed claim relating to the events at the mosque survived to require further consideration by the reviewer.

5. Second, the applicant made no real attempt before the Court to explain how his formulation of the particular social group he now asserts to be a part of survives in light of what was said by the High Court to “disqualify” such a group. Namely, the vulnerability to persecution. In the current case, this is a part of the definition of the proposed group. It is therefore inconsistent with what the High Court said in Applicant A.

6. Third, the applicant did not point to any evidence before the reviewer that the persons whom he now seeks to identify as comprising that particular social group, as that concept is relevantly understood, actually exist or can be identified as a social group, let alone a particular social group (Applicant S v Minister for Immigration & Multicultural Affairs & Anor [2004] HCA 25; (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ).

7. Before the Court, the applicant argued that it is not the feared persecution that defines the group, but rather the perception of identification as a dissident by the Basij. He relied on McHugh J in Applicant A, at 264, for the proposition that: “… while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.”

8. The difficulty here for the applicant is that while the actions of the persecutors may result in the consequences set out immediately above, there is still a need for that connection to be revealed in the circumstances or material presented and not in some abstract argument formulated now by the applicant’s legal advisers. Beyond mere assertion, the applicant has not pointed to where such action by the Basij actually serves to identify, or cause the creation of, such a group.

9. The applicant has failed to point to where, on the material before the reviewer, such a claim arose. Noting that, for the applicant’s ground to have substance, let alone be made out, the requirement is that such a claim must clearly arise on the circumstances presented if it is not expressly stated (NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No.2)”) at [60] per the Court and Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389). Further, as the Minister reminded the Court, the Full Federal Court has made clear that a conclusion that a claim clearly arises is “not to be lightly made” (NABE (No.2) at [68]).

10. Ground three is not made out.

Conclusion

1. None of the three grounds of the further amended application have been made out. In those circumstances, it is appropriate that the application, as amended, and further amended, be dismissed. I will make an order accordingly.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 22 January 2013