SZRHE v Minister for Immigration

[2013] FCCA 1025

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRHE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1025

Catchwords:
MIGRATION – Application for review of decision of Independent Merits Reviewer – whether denial of procedural fairness or irrationality constituting reviewable error. 

Legislation:  

Migration Act 1958 (Cth), s.477

Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21

Minister for Immigration and Citizenship v Maman and Another (2012) 200 FCR 30; [2012] FCAFC 13

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZOCT and Another (2010) 189 FCR 577; [2010] FCAFC 159
NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; [2005] HCA 77
Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6

Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58

SZQDZ and Others v Minister for Immigration and Citizenship and Another (2012) 200 FCR 207; [2012] FCAFC 26

Applicant: SZRHE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: SYG 1957 of 2012

Judgment of: Judge Barnes

Hearing date: 18 June 2013

Delivered at: Sydney

Delivered on: 15 August 2013

REPRESENTATION

Counsel for the Applicant: Mr B Pierce

Solicitors for the Applicant: Shine Lawyers Limited

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1957 of 2012

SZRHE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review in relation to a recommendation of 13 June 2011 made by the Second Respondent in his capacity as an Independent Merits Reviewer (the Reviewer) that the Applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

2. The Applicant, a citizen of Iran, arrived in Australia on 5 January 2010 as an offshore entry person within the meaning of the Migration Act 1958 (Cth) (the Act). In his entry interview conducted on 24 January 2010 he claimed that on the morning of 30 July 2009, 40 days after the death of Neda Agha Soltan, a student who had been killed in a demonstration, he and five friends had attended a ceremony at her grave. He claimed that he was injured by revolutionary guards who had started attacking people, that his cousin was arrested and that the revolutionary guards later came looking for him at his home and that he feared for his life. He sought a Refugee Status Assessment (RSA).

3. In a statutory declaration sworn on 26 February 2010 the Applicant claimed that with his two cousins and a friend he participated in what he described as a “large procession of 4 or 5000 people” organised for the 40^th day after Ms Soltan’s funeral.  He claimed that once they were in the cemetery (in Tehran) the Basiji, Sepah and anti-riot police forces encircled them and told them to disperse and subsequently moved in and began to hit and kick people and fired shots.  He claimed that many people were arrested, that his cousin was beaten up and detained and that when he and another cousin attempted to intervene, he was punched in the face and hit on his head.

4. The Applicant claimed that three days after the procession he left Tehran to return to his village, but that his mother told him that his other cousin and friend had been arrested and that the police had visited his parents' home and advised that he was to report to the police station immediately on return.  The Applicant claimed that he remained in hiding until he was able to arrange his departure from Iran.  He claimed to fear that if he returned to Iran he would be arrested and could be killed by the paramilitary or the police. 

5. The Applicant elaborated on his claims in an interview with the Assessor.  He was recorded as claiming that he and four others had travelled to Tehran overnight from the town of Ahvaz to attend the memorial on 30 July 2009 and that he feared “being arrested as he participated at the memorial service – which turned out to be a violent protest between the participants and the authorities”. 

6. On 9 April 2010 an officer of the Department made an assessment that the Applicant did not meet the definition of refugee within the Refugees Convention.  The Assessor found that the Applicant’s account of events of the day he allegedly attended the memorial service to be “scant, vague and unconvincing” and did not accept that he was involved as claimed. 

7. The Applicant sought independent merits review (IMR) of that assessment.  He provided a further statutory declaration of 7 June 2010 in which he referred to participating in a “memorial service” for Ms Soltan.  He claimed he arrived at the service at about 9 am, that from about 10 am “more and more people arrived and then the authorities tried to disperse everyone and began to use force”, injuring him and arresting his cousin.  His adviser provided written submissions and the Applicant attended an interview. 

8. In a report dated 1 October 2010 the first independent merits reviewer recommended that the Applicant not be recognised as a person to whom Australia had protection obligations.  In essence, the first reviewer did not find the Applicant to be a satisfactory or credible witness.  He found his account of events of 30 July 2009 to be “shallow and inaccurate” in several respects and was not satisfied that he had the involvement he claimed in the memorial ceremony on 30 July 2009 or that the Iranian authorities had ever had any adverse interest in the Applicant for the reasons he claimed.  The first reviewer also rejected any claim based on the fact that the Applicant would be a failed asylum seeker returning to Iran. 

9. On 11 November 2010 the High Court handed down its judgment in Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319; [2010] HCA 41. As a result, a further independent merits reviewer (the Reviewer) was appointed to review the merits of the Applicant's application for recognition as a refugee. It is that second review that is the subject of these proceedings.

10. The Applicant's adviser provided a further written submission to the Reviewer and the Applicant attended a further interview. 

The Reviewer’s reasons

1. In his report dated 13 June 2011 the Reviewer recommended that the Applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.

2. In his statement of reasons the Reviewer outlined the claims made by the Applicant at various times, including in his arrival interview, his RSA interview and the two IMR interviews, as well as in writing and in submissions from his representatives. 

3. The Reviewer stated that he had taken into account country information referred to in the reports of the RSA assessor, and the first IMR reviewer and in submissions from the Applicant's advisers as well as other country information referred to in the statement of reasons.

4. In his findings and reasons the Reviewer found that the Applicant had concocted his claims and that they were not credible.  The Reviewer set out reasons for this conclusion, including the fact that “[the Applicant's] story has changed over time and not only in small ways” (at [55]).  The Reviewer gave three examples of his concerns in this respect.  First was the fact that in the Applicant’s first statement (the statutory declaration sworn by him on 26 February 2010) the Applicant had made no reference to returning from Tehran to Ahvaz (as he later claimed) but had said that after a call to his mother on his way back to his home village he had gone to Masjid Soliman.  The Reviewer addressed the Applicant’s explanation that the interpreter who translated his first statutory declaration was Kurdish and had only summarised what he had said, but had regard to the fact that the claim was made in a statutory declaration which, according to a signed statement on file, had been read back to the Applicant by an interpreter qualified in the Farsi language.

5. Secondly, the Reviewer referred (at [56]) to the fact that prior to the first review the Applicant’s advisers had claimed in written submissions that he had “discovered from pamphlets distributed in the student quarters that there was going to be a commemorative memorial for the death of Neda and others martyred during the protests”, but such a claim had not been made before or since to explain the Applicant’s decision to attend the cemetery.  The Reviewer also observed that it was “hard to see to what student quarters he might have been referring” to as the Applicant was working seven days a week and was not a student. 

6. Thirdly, the Reviewer had regard (at [57]) to a change in the Applicant’s evidence about his and his friends’ participation in other demonstrations.  In particular, while the Applicant and his adviser had on occasion claimed that the Applicant had participated in other demonstrations in Ahvaz, in his RSA interview the Applicant had made a statement to the contrary (stating that 30 July 2009 was the first time he had done so).  In addition he had told the Reviewer that he had not previously been involved in politics.  Moreover, while the Applicant told the Reviewer that he did not know whether his friends had participated in other demonstrations, he had told the RSA interviewer that they had done so.

7. In addition to expressing concern about changes in the Applicant’s story, the Reviewer stated at [58] – [59]:

   … the claimant's vagueness and general ignorance about the cemetery and the event planned to take place there causes me not to believe that he was there.  His initial Statutory Declaration referred to "a procession".  There was no procession.  Even if he had left Ahvaz knowing nothing, travelling for 10 to 12 hours with 3 university students, he would have learned a lot on the way.  While in the cemetery, even if for only 2-3 hours, he would have learned more.  He would have learned at least how far it was from Central Tehran.  He would have learned that the area where Neda [the dead student] was buried was also the site of graves of other young people killed during the post-election disturbances.  He would have learned that the ceremony was planned for 4pm and that he and his friends had arrived far too early.

   All this and the absence of any reporting of major clashes between the security forces and the public in the time that the claimant claims that he and his friends were there causes me not to accept the description offered by the claimant of the events leading to his being injured.  Neither do I accept as truthful the claimant's evidence regarding what followed.

8. The Reviewer also had regard to inconsistencies in the Applicant’s claims about the invitation to go to Tehran, in particular the fact that in his second IMR interview the Applicant had claimed for the first time that it was his work colleagues who suggested he accompany them to Tehran, but had later reverted to his earlier claim that it was his cousins and friends who had extended an invitation to him to accompany them.  The Reviewer found it “unbelievable” that the Applicant (who claimed he heard about the event the day before it occurred) could leave his job for four days with as little notice as he claimed, or that he could get a friend to leave his own job to stand in for him for four days on almost no notice. 

9. In addition, the Reviewer found it “inconceivable that, on the one hand, on return to Ahvaz, [the Applicant] should avoid going to his usual home there, because of what he had learned from his mother [about the authorities arresting his friends and coming to his home,] but at the same time, plan to return to work, as he claimed”.

10. The Reviewer did not accept the Applicant’s claim in his initial statutory declaration that the Applicant's boss had told the other workers to inform the police if the Applicant appeared, having regard to the fact that in another statement the Applicant had said that his boss was his uncle and that he had given him permission to go to the commemoration.

11. The Reviewer concluded that he did not accept that the Applicant had attended the commemoration in Tehran of the death of Neda Agha-Soltan, that he was injured there, that those accompanying him were subsequently arrested or that the Iranian authorities had asked him to attend a police station or were looking for him for any reason related to opposition to the regime.  Nor did he accept that the Applicant had participated in any other demonstrations.

12. The Reviewer considered, but did not accept, a claim that the Applicant would be at risk of persecution in Iran as a failed asylum seeker or illegal emigrant.  The Reviewer had regard to country information in finding that what may await a person in the Applicant's situation in Iran did not amount to persecution.  While the Reviewer acknowledged that illegal exit may add to the difficulties a person would face on return if he or she had attracted the adverse attention of the authorities for another reason, he did not accept that the Applicant had attracted the attention of the authorities for any other reason.  The Reviewer did not accept that the Applicant had a well-founded fear of persecution for reason of an imputed political opinion arising from the circumstances of his departure.  Indeed, “given the lengths to which [the Applicant was said to have] gone to concoct a story to support his protection claims”, the Reviewer did not accept that he had left Iran illegally.

13. The Reviewer concluded that he did not accept that the Applicant had a well-founded fear of persecution in Iran for reason of his real or imputed political opinion or for any other Convention reason. 

These Proceedings

1. The Applicant sought judicial review in relation to the second reviewer’s recommendation of 13 June 2011 by application filed in this Court on 11 September 2012. The time limit in s.477(1) of the Migration Act does not apply to applications for judicial review of decisions of this nature (SZQDZ and Others v Minister for Immigration and Citizenship and Another (2012) 200 FCR 207; [2012] FCAFC 26).

2. The Applicant now relies on an amended application filed on 27 March 2013.  These are three grounds in the Amended Application.  However in oral submissions counsel for the Applicant informed the Court that particulars (i) and (ii) to ground 1(b) were not pressed, that ground 2 was not pressed and that particulars (a), (b), (c), (f) and (g) to ground 3 were not pressed.  The grounds maintained by the Applicant are as follows:

   1. That the second respondent (“the reviewer”), in his capacity as Independent Merits Reviewer denied the applicant procedural fairness

   a. In not putting to the applicant that his account was inconsistent with independent country information which he later relied upon in his review:

   Particulars

   i. At paragraph 51 and 52 and 59 of the Review the Reviewer indicates country information that he has taken into account in relation to his review. 

   ii. In the interview of 24 March 2011 the Accused through his representative is told not to “worry” about the previous decision in terms of the Applicant not being at the demonstration in the afternoon and that the Reviewer has a “theory” in reference to the Applicant clearly not being there for the main event. 

   b. In not challenging the applicant in relation to matters he later took into account against him

   Particulars

   iii. In the interview of 24 March 2011 the Accused through his representative is told not to “worry” about the previous decision and that the Reviewer has a “theory” in reference to the Applicant clearly not being there for the main event.

   3. That the second Respondent (“the Reviewer”), in his capacity of Independent Merits Reviewer failed to exercise the jurisdiction of the review by constructively failing to assess the Applicants credibility rationally. 

   See particulars of Ground Two above

   The only particulars now relied on in relation to Ground 3 are as follows:

   d. At paragraph 57 of the Review the Reviewer makes an illogical distinction between a “procession” and a demonstration. 

   e. At paragraph 57 of the Review the Reviewer makes an irrational finding that because the Applicant had been in a cemetery in Tehran for 2-3 hours he would have learnt how far it was to central Tehran (in circumstances where the Applicant was not from Tehran and did not go through central Tehran)

3. In support of his application the Applicant relies on an affidavit affirmed by Emma Marie Stephens on 4 June 2013 annexing a one and a half page extract of a portion of the transcript of the interview conducted by the second Reviewer on 24 March 2011.  In addition, the Applicant tendered a three minute portion of a compact disc containing a recording of the same part of the interview of 24 March 2011.  This part of the interview occurred three hours and twenty two minutes into the recording of the interview.  While Ms Stephens referred in her affidavit to the fact that her transcription started from what was page 57 in an earlier transcript of the interview annexed to an affidavit affirmed by her on 26 April 2013, counsel for the Applicant did not rely on any part of that earlier transcript in these proceedings.

Procedural fairness

1. Ground one in the amended application is that the Reviewer denied the Applicant procedural fairness “[i]n not putting to [him] that his account [of events on 30 July 2009] was inconsistent with independent country information” and is “not challenging [him] in relation to matters he later took into account against him” in his reasons for decision. 

2. There are two aspects to this ground.  It is not clear from the manner in which the ground is drafted whether they are relied upon as alternatives or in a cumulative sense.  I have considered whether any lack of procedural fairness amounting to reviewable error is established on either or both of the bases contended for in ground one. 

3. In support of this ground, the Applicant relied on the portion of the transcript of the Reviewer’s interview with the Applicant of 24 March 2011 in both its written and recorded form as described above in [27].

4. It is convenient to set out the part of the transcript of the Reviewer’s interview with the Applicant of 24 March 2011 annexed to the affidavit of Ms Stevens affirmed on 4 June 2013 in its entirety.  The Reviewer was described in the transcript as “Mem”.

   App:   yes, please

   Int:   yes Ok

   App's Lawyer:  Would I be able to say something.  Am I able to have a little break, a natural justice break with him just for 5 minutes just to clarify a few things?

   Mem:   Yeah.  That's all right

   App's Lawyer:   Is that ok.  I have read the reviewers decision in the IMR and there seems to be a lot of focus on reports and blogs and things on the events of 16 July and ...

   Mem:   Can I stop you there?  I've got another theory about this.  So don't worry about previous decisions. 

   App's Lawyer:   Ok.  Good. 

   Mem:   all right, I mean he clearly wasn't there for the main event.  The main event occurred hours after he left.  And therefore I am going to have to assess his claims against him essentially being a marginal participant in what eventually happened because of the real basiji charge on the demonstrators and the tear gas etc all occurred after 4 clock in the afternoon and he was long gone by then.

   So the question of credibility, the adverse finding of credibility in the past is because he didn't mention the tear gas and he didn't mention this and he didn't mention that.  To me it is clear that he wasn't there and that is why, but the question that I have to address, is do I accept what he did say, what he has said about when and where he was and what happened and that is a separate issue and these blogs and so on all refer to the late afternoon events when he wasn't there and he doesn't claim to have been there. 

   App's Lawyer:   That's right his story has been consistent.

   Mem:   So it's a different situation. 

   App's Lawyer:   Ok 

   Mem:   Let me just clarify that.  I am not foreshadowing a decision but clearly we are talking about two different time spaces.  One in the morning and one in the late afternoon.  One late morning, one late afternoon.  Different situation.  And that's what I will have to look at, but if you want a break that is fine.  I will pause the ...

   App's Lawyer:   If you would;  just very briefly. 

   Mem:   yes Ok I have another interview at 2 O'clock.

   App's Lawyer:   Yes, me too.

   Mem:   Lucky you.  Except, you can just have the chance to sit and listen. 

   Mem:   alright we are starting again, heading into the straight. 

   App's Lawyer:   Heading into the straight preferably. 

   [Both are laughing]

   Mem:   Yes, Tell me about what you would like to tell me or what I need to know?

1. At the request of counsel for the Applicant, the recording of the relevant portion of the interview was played in court.  It is not in dispute that the transcript of that part of the interview annexed to the affidavit of Ms Stephens is incomplete, insofar as at several points the Applicant's adviser agreed with propositions put by the Reviewer.  In particular, it is apparent that after the Reviewer stated that the Applicant “clearly wasn't there for the main event”, his lawyer responded “Yes” and that after the Reviewer referred to the fact that the “blogs and so on” all referred to the “late afternoon events”, the Applicant's lawyer responded “Quite”. 

2. The Applicant submitted that the substance of this exchange was that the Reviewer indicated that he would not hold the country information that the event of 30 July 2009 occurred in the afternoon against the Applicant and would set this to one side in assessing the credibility of the Applicant’s claim to have been at the cemetery.  This was said to amount to an indication by the Reviewer that he would not take any country information into account against the Applicant in assessing the credibility of his claim to have been at the cemetery on the basis that the information did not support the Applicant’s claim that he was at the cemetery in the morning. 

3. However it was contended that in his reasons for decision the Reviewer had in fact used country information in a way that he said he would not, against the legitimate expectation of the Applicant in the sense considered in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21. It was submitted that the Reviewer had used country information against the Applicant at paragraphs [51], [52] and [59] of his reasons in relation to both the time and nature of the event at the cemetery on 30 July 2009. Under the heading “Country Information” (in paragraphs [51] and [52]) the Reviewer stated that he had taken into account country information previously considered and submitted by the Applicant’s advisers and referred to the “detailed accounts of the scene at the cemetery contained in the report of the first reviewer”.  In addition, the Reviewer reproduced a BBC report on events at the cemetery, in particular in relation to police action in the late afternoon of 30 July 2009 to disperse the crowd. 

4. The Applicant submitted that the Reviewer had taken into account against him the lack of country information about major clashes in the early period of the day.  At the hearing counsel for the Applicant indicated that the independent country information which the Reviewer was said to have relied upon in his review, contrary to what he was said to have indicated in the hearing, was independent country information reproduced in the reasons for decision of the first independent merits reviewer.  This information consisted of a comment at the end of a guardian.co.uk news blog as follows:

   9.00AM Tehran time.  Regular army in riot gear have positioned themselves in Beheshte Zahra cemetery.  Basij in Khaki fatigue riding on red motorcycles, helicopters hovering above.  Some people are arriving at Behshte Zahra and mostly asking for directions to section 257 of the cemetery.  Others tell them to just follow where the helicopters are circling ...

5. It was submitted that the Reviewer had used this independent country information in paragraph [59] of his reasons, notwithstanding that the Reviewer in fact referred to "the absence of any reporting of major clashes between the security forces and the public in the time that the claimant claims that he and his friends were there" (emphasis added). 

6. It was also contended that the Reviewer should have made it clear to the Applicant at the interview that there was a possibility that he would take the country information into account in this way, but that his comments in the part of the transcript relied upon suggested that he was willing to accept as clear the “theory” that the Applicant was not at the cemetery for the later events for all purposes in judging his credit.

7. The Applicant submitted generally that if a breach of natural justice was established it could not be overcome even if the Reviewer’s findings were otherwise justified (see Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; [2005] HCA 77 at [10] per Gleeson CJ, [71] per Kirby J and [136] per Hayne J and Minister for Immigration and Citizenship v Maman and Another (2012) 200 FCR 30; [2012] FCAFC 13 at [44]).

8. In support of these propositions counsel for the Applicant submitted that it was relevant that in the Refugee Status Assessment the Assessor had taken into account independent country information in relation to events at the cemetery on 30 July 2009 in finding, in light of evidence about the number of people at the cemetery and the presence of security officers, that the Applicant (who had arrived at the cemetery at 9 am) would not have been able to make his way through the crowd to Ms Soltan’s grave.  This was said to amount to a finding that the Applicant essentially arrived “too late”. 

9. In contrast, the first reviewer was said to have found that while the Applicant claimed that the attempts by the authorities to disperse the mourners occurred some time between 10.30 am and midday that day, independent country information placed police action at the cemetery late in the afternoon.  The first reviewer was said to have had regard to such independent country information as indicating that the Applicant had arrived too early for the reported events in the course of reaching an adverse credibility finding. 

10. In light of this background the Applicant submitted that given what was said to have been conveyed during the part of the interview set out above, the second Reviewer erred in taking into account independent country information in relation to the fact that the police action occurred in the afternoon.  Reference was also made to paragraph [58] of the Reviewer's decision (set out above at [17]) in which the Reviewer had regard to the Applicant’s lack of knowledge about the cemetery and the planned event (despite the time he claimed he was en route to and in the cemetery), including the fact that “the ceremony was planned for 4 pm and that he and his friends had arrived [at the cemetery] far too early”. 

11. It was submitted that in so concluding the Reviewer had (contrary to what he said at the interview) had regard to independent country information about events at the cemetery in assessing the Applicant’s credibility in relation to whether he had attended the cemetery that day as claimed. 

12. In essence, the Applicant submitted that he was denied procedural fairness because the Reviewer had effectively indicated in the interview that he did not have to address any of the independent country information before the Reviewer in relation to the issue of whether he was in fact at the cemetery.  It was contended that the circumstances in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 could be distinguished, because in this case the information was used against the Applicant. It was said that an enquiry as to whether the Applicant would have been able to answer the independent country information was not necessary because the Reviewer had not undertaken the review as required.

13. As the First Respondent submitted, this ground requires consideration of whether what the Reviewer said at the interview was as suggested for the Applicant; if so, whether the Reviewer used country information in a manner contrary to what was said at the interview; and, if so, whether that amounted to a denial of procedural fairness in the manner in which the Reviewer conducted his review.

14. The First Respondent submitted that the evidence did not support any finding that the Reviewer told the Applicant that he was not going to rely on any country information about events on 30 July 2009 in assessing the credibility of the Applicant’s claims about that day and that even if there had been a failure by the Reviewer to adhere to or act consistently with a representation there was no evidence of any detriment suffered by the Applicant such as to establish a lack of procedural fairness in the sense considered in Lam at [34] per Gleeson CJ and at [83] per Gummow and McHugh JJ. 

15. Underlying this ground is the contention that at the interview of 24 March 2011 what the Reviewer said made it unfair for him to rely on any country information in relation to the events of 30 July 2009. 

16. A proper understanding of what was said in the three minute part of the interview in issue requires consideration of the claims made by the Applicant about the events of 30 July 2009 and the decisions of the Assessor and first reviewer in that respect, as the discussion in this part of the interview clearly related to such claims.

17. The Applicant's asserted fear of persecution was based on his claim that on the morning of 30 July 2009 he went to the cemetery in Tehran where Neda Agha-Soltan (a student killed in an earlier demonstration) was buried to attend a ceremony.  He relied on what he claimed happened to him on that date and thereafter.  In essence, the Applicant claimed that while he was there the authorities took action at the cemetery, that they had arrested those who accompanied him and that they were looking for him. 

18. However, as emerged over time, there was an issue as to the time of and reason for the Applicant’s attendance at the cemetery compared to the time and nature of the planned ceremony and when the action by the authorities against attendees occurred. 

19. In his entry interview of 24 January 2010 the Applicant had claimed that on the morning of 30 July 2009 he and his friends went to “a ceremony for a funeral” of Ms Soltan that was held 40 days after her death.  He claimed he went to the graveside ceremony in the morning of 30 July 2009.  He claimed he and his friends went “to Neda’s grave at 9.30 – 10.00 am”, that they “joined the other people” and were there for about two and a half hours.  He claimed that the number of people increased during this time, that guards told people to disperse and then started attacking people, injuring him and arresting his cousin.

20. However in his Statutory Declaration of 26 February 2010 provided in connection with his request for a Refugee Status Assessment, the Applicant claimed that during the 40-day mourning period after Ms Soltan’s funeral “a large procession of 4 or 5,000 people was organised on the 30th of July 2009” in which he participated together with two cousins and a friend.  He claimed that the authorities tried to disperse the crowd and that his cousin was arrested and he was injured.  He did not refer to the time of day at which this occurred. 

21. In the RSA assessment the Assessor recorded only limited details of what the Applicant had said in his interview, but found that his account of the events of the day was “scant, vague and unconvincing”.  The Assessor did not accept that the Applicant was involved in the memorial service/protest as claimed.  After making this finding, the Assessor went on to find, in light of independent country information about the estimated number of people at the cemetery on that day and the presence of security officers preventing people from entering the cemetery, that she did not accept the Applicant's testimony that he and his cousin, who had arrived at the cemetery around 9 am, would have been able to make their way through the crowd to be in front of the student's grave.

22. In his Statutory Declaration sworn on 7 June 2010 the Applicant claimed they arrived at what he described as a “memorial service” for the student at about 9 am on 30 July 2009.  He claimed that at that time there were only a few thousand people, but that from about 10 am more and more people arrived and then the authorities tried to disperse everyone using force. 

23. In written submissions dated 20 September 2010 provided to the first Reviewer, the Applicant’s adviser stated that the Applicant had instructed that his cousin had suggested they go to the commemorative memorial for the student, that they drove overnight to Tehran, that they arrived “in Tehran” at about 7 am but that it took them about one and a half to two hours to drive through Tehran and to find their way to the cemetery and about half an hour to walk back towards the cemetery from where they had parked.  The Applicant claimed they arrived at the cemetery at about 9 am, that he was able to get very close to the grave and that there were about a few thousand people at the time they arrived.  He claimed that from about 10 am more people arrived and then the authorities tried to disperse everyone and began to use force.  He claimed there was a public announcement at about 11 am telling them to go home and that the police moved in thereafter, beating people as they tried to disperse the crowd, arresting his cousin and injuring him. 

24. In the statement of reasons dated 1 October 2010 the first Reviewer set out in some detail the evidence given by the Applicant at the interview conducted by that Reviewer.  It was recorded that the Applicant claimed that he and his friends travelled to Tehran to attend the memorial ceremony for Ms Soltan, that they arrived at the cemetery at about 8.30 am and then walked to the grave site, arriving at about 9 am.  He claimed that he did not know what section the grave was in, but that he asked for directions and followed people.  He claimed they were “hanging around waiting for Karoubi and Mousavi” (opposition politicians who were supposed to attend the ceremony) to give speeches.  He also stated that the ceremony was scheduled to start between 2 pm and 4 pm, “something like that”.  However he claimed that at about 10 or 11 am a speaker told them they had to leave the area, whereupon there was a protest, and guards started to push people, and this escalated into a clash.  When asked what time his cousin had been grabbed by the guards, the Applicant stated that this had occurred “around noon, around 10.30 to 11 am, something like that”.  He was not able to clarify which of these times it was, beyond agreeing that the incident involving his cousin had occurred some time around 10.30 am to noon. 

25. The first Reviewer relied on independent country information to the effect that the memorial service was planned for 4 pm in the afternoon on that day and that the authorities had acted violently and had dispersed attendees at about that time.  The first Reviewer set out independent country information stating that a memorial service or ceremony called an “arbayeen” had been arranged for Ms Soltan on the 40^th day after her death in accordance with Shi'a Muslim tradition to take place at 4 pm local time at the cemetery. 

26. The cemetery was described as located about one hour’s drive south of Tehran.  Opposition leaders had said they would attend.  Relevantly, information taken from a guardian.co.uk news blog reporting on events on the day also indicated that the ceremony was to take place at 4 pm local Tehran time.  The blog described the first report of dozens of riot police attempting to disperse mourners shortly before 4 pm local time, Mr Mousavi’s arrival at about 4 pm local time, the fact that he had been forced to leave.  Clashes reportedly started from shortly before 4 pm when Mr Karoubi (who was also said to have arrived in the afternoon) visited the section of the cemetery containing Ms Soltan’s grave. 

27. At the end of this blog it was recorded that at 9 am Tehran time “[r]egular army in riot gear ha[d] positioned themselves in [the] cemetery”, that the Basiji were on motorcycles and helicopters were hovering above, that “[s]ome people [we]re arriving at [the cemetery] and mostly asking for directions to [the] section of the cemetery” in which the student was buried and that others were “tell[ing] them to just follow where the helicopters [we]re circling”. 

28. A report by PBS also referred to by the first Reviewer described police and Basiji starting to use tear gas to disperse the crowd in the afternoon before the 4 pm gathering. 

29. There was no reference in this material or in any of the other independent country information extracted in the first Reviewer's decision to any attempts to disperse mourners or violence at the cemetery having occurred in the morning of 30 July 2009. 

30. The first Reviewer found that the Applicant's “story” was that he had participated in the memorial ceremony on 30 July 2009 and that he was present at the grave site when the authorities attacked the crowd and his cousin was arrested.  However that Reviewer expressed concern about the Applicant’s vague and inaccurate account of the events of that day, found he was not a credible witness and was not satisfied he had the involvement he claimed on that day. 

31. The first Reviewer had regard to the fact that the Applicant did not know where the cemetery was, what section the grave was in or that the ceremony was scheduled for 4 pm.  The Reviewer referred to the Applicant’s vague evidence that the ceremony was between 2 pm and 4 pm.  The Reviewer found that the claimed great effort the Applicant and his friends made to attend the ceremony was difficult to reconcile with his casual and scant regard for the location and timing of the ceremony in circumstances where independent country information showed that details of the cemetery were widely known in the community and amongst opposition supporters before the event.

32. The first Reviewer also found the Applicant's evidence about the time of the “riot” (when the authorities attempted to disperse the mourners) was vague.  His account varied between 10.30 am and midday, whereas independent information placed the police action late in the afternoon, close to 4 pm.  The first Reviewer found that eyewitness accounts had provided a cohesive account of the events at the cemetery and that this discrepancy was significant and raised strong concerns.  The first Reviewer also expressed concerned about the vagueness of other aspects of the Applicant's account of what occurred at the cemetery, including his vague account of slogans chanted at the cemetery.  Relevantly, the first Reviewer found (at [87]) that:

    The claimant's recollection of the events of that day are (sic) also vague in other details.  Material before the Reviewer shows that other significant occurrences include the presence of helicopters which one eyewitness pointed out hovered over the grave area early in the morning, stone throwing and the police use of teargas.  The claimant explained any omissions by pointing out he was there quite early and had departed well before some of these occurrences.  However, his explanation itself causes serious concern because all of the accounts before the Reviewer, including those cited in the submission, place the police attempts to disperse the mourners late in the afternoon and not between 10.30 am to midday, as stated by the claimant.  That the claimant did not witness some of these occurrences raises strong concerns he was not an eyewitness.

33. The findings of the first Reviewer, in particular in relation to the Applicant's explanation that he had not referred to certain occurrences at the cemetery because he was there quite early and departed well before some of those occurrences, are relevant to an understanding of what occurred in the part of the 24 March 2011 interview conducted by the second Reviewer that is relied on in this ground. 

34. It is also relevant to have regard to what occurred elsewhere in the interview of 24 March 2011.  Although the Applicant did not seek to rely on a transcript of the whole of the interview, there is a summary of the interview in the statement of reasons of the second Reviewer.  Relevantly, it recorded that the Applicant stated that he arrived in Tehran about 9 am (on 30 July 2009).  He walked to Ms Soltan’s grave which was the centre of the crowd’s attention.  He did not know how long it had taken him to walk to the grave.  When asked if anyone special was there, he said someone was supposed to come, he did not know whether they had come and then said that they had come in the afternoon but before that “something happened” to him and he had left the cemetery between 11 and 11.30 am.  When asked what happened between 9.30 and 11 am the Applicant claimed that when the crowd had gathered it was impossible to hear, that people were shouting slogans and that the authorities and government employees in civilian clothes were making announcements and asking people to leave.  This did not occur and people started booing.  According to the Applicant, when the government forces realised people were not going to listen to instructions, they decided to use force.  The Applicant claimed the authorities clashed with the crowd, started to hit people (including his cousin) with batons, tried to take his cousin away and hit and injured him.  He and his friends then left the cemetery as quickly as possible, fearing they would be recognised in photographs taken by government officials. 

1. Relevantly, the Reviewer also recorded that when the Applicant was asked why the demonstration had taken place in the cemetery he referred generally to events in the country and protests after the election.  When asked why people had gone to the cemetery that day, he said that it had been announced that Mousavi, Karoubi and another person would come and give a speech in support of the student's family.  He could not remember when they were expected, but it was in the afternoon.  When asked why he had gone to the cemetery so early, he had said they did not know who was going to come and had only learnt from others who was coming and that they were going to do so in the afternoon.  He said the particular day was the 40^th day after Ms Soltan’s death. 

2. The Reviewer recorded that he put to the Applicant that press reports indicated that the clashes with the security forces had occurred late in the afternoon and that, initially, relations with them had been good and that some of the demonstrators had even given the police flowers.  The Applicant was said to have replied that they were given instructions not to approach the grave and to go further away.  When asked, the Applicant claimed there were no other graves of interest to the people.  He did not know it was the 40^th day after the deaths of two other people killed on the same day as Ms Soltan who were buried in the same section of the cemetery.  The Reviewer also stated that, when asked, the Applicant did not know how far the cemetery was from central Tehran.

3. After summarising further evidence given in the interview, the Reviewer recorded that he had asked the Applicant if there was anything he wanted to add or if anything had not been covered.  The Applicant said there was not.  The Reviewer recorded (at [49]):

   I said it was clear from his evidence that he had missed the main event.  I would need to consider whether, if I accepted his story, his morning attendance at the cemetery would give rise to a well-founded fear of persecution.

4. When one considers the section of transcript of the interview relied on by the Applicant in the context of the Applicant’s claims and the earlier decisions, it is clear that the Reviewer's statement at paragraph [49] of the reasons for decision is reflective of what occurred in the relevant part of the interview. 

5. In the relevant part of the interview on 24 March 2011 the Applicant's lawyer raised with the Reviewer the issue of the first Reviewer's decision and his focus on reports and blogs in relation to the events of “16 July”.  It is not in dispute that this is intended to be a reference to 30 July 2009.  This clearly raised a concern about the part of the first Reviewer's decision which set out independent country information relied on by that Reviewer to find against the Applicant’s credibility on the basis that the fact that he “did not witness some of these occurrences raised strong concerns that he was not an eyewitness”.  The occurrences referred to in that statement included stone throwing and the use of tear gas by the police. 

6. When the Reviewer then indicated in the interview of 24 March 2011 that he had “another theory” and told the Applicant’s adviser “not to worry” about previous decisions, this must, in context, clearly be a reference to the first Reviewer's decision and the adverse inference he drew from the fact that the Applicant had not seen what had occurred in the afternoon (including the use of tear gas).  The Reviewer explained that in his view the Applicant "clearly wasn't there for the main event" to which the adviser responded “yes”.  The Reviewer clarified that the “main event” occurred hours after the Applicant left (which was clearly a reference to the time of the clashes as recorded in independent country information compared to the time at which the Applicant claimed he left the cemetery).  The Reviewer explained that he understood the Applicant's claim was that he was not at the cemetery in the afternoon (after 4 pm) when the Basiji charged the demonstrators and the use of tear gas occurred and hence suggested that his claims had to be assessed on the basis that he was a “marginal participant” in what eventually happened.  The Reviewer also clarified that he accepted, relevant to the Applicant’s credibility, that the fact that the Applicant was not present at the time of the main event explained his failure to mention events (like the use of tear gas) that occurred in the afternoon.  

7. It is clear from a consideration of the transcript in light of all of the evidence, that the Reviewer was indicating that he accepted that the Applicant's claim was that he was only at the cemetery in the morning.  However, while the Reviewer made it clear that he accepted that the fact the Applicant was not present in the late afternoon was an explanation for his lack of knowledge about events that occurred in the afternoon, the Reviewer did not say that he would not rely on any independent country information at all in assessing the credibility of the Applicant’s claims that he was at the cemetery in the morning.  Nor can this be inferred.  The Reviewer's clarification that he would not draw an adverse inference from the fact that the Applicant had not seen what occurred in the afternoon does not amount to an indication to the Applicant through his adviser that the Reviewer would not rely on any country information at all in relation to the events of 30 July 2009.  The Reviewer simply made it clear that, in assessing the Applicant's credibility he would not take into account adversely the fact that the Applicant had not witnessed events, such as tear gas being used, that, on the independent country information, clearly occurred in the afternoon of 30 July 2009. 

8. Consistent with this clarification, in his reasons for decision the Reviewer did not rely on independent country information in any manner contrary to what was said at the interview (let alone in a manner that constituted a denial of procedural fairness).  It was not contrary to what was said at the interview for the Reviewer to have regard to the Applicant’s lack of knowledge that the ceremony was planned for 4 pm.  Insofar as in his findings and reasons the Reviewer had regard to the absence of any report of major clashes between the security forces and the public at the time the Applicant claimed that he and his friends were at the cemetery, the Reviewer was not acting contrary to what had been said at the interview or proceeding in a manner which denied the Applicant procedural fairness in either of the ways suggested in ground one in the amended application or more generally.  Rather, the Reviewer was doing precisely what he indicated he would do, by focusing on where and when the Applicant claimed to have been at the cemetery, rather than when the major clashes were accepted to have occurred.  It was also open to the Reviewer to have regard to the Applicant’s vagueness and general ignorance about the cemetery and the event planned to take place there in considering the credibility of his claim to have been at the cemetery in the morning. 

9. Contrary to the Applicant’s submission that the substance of the exchange in the part of the interview relied on in support of this ground was to the effect that the Reviewer indicated that he would not rely on any country information concerning the events at the cemetery on 30 July 2009 in determining whether the Applicant was at the cemetery, the evidence before the Court, including the transcript and the recording of the part of the interview in question, does not establish that the Reviewer told the Applicant that he was not going to rely on any country information in the manner contended for in ground one.  It has not been established that there was any representation as alleged by the Applicant and hence there was no denial of procedural fairness in either of the ways contended for in ground one of the Amended Application.

10. In other words, this ground must fail at a factual level because there was no representation of the nature alleged by the Applicant.  Hence, the Reviewer neither failed to fulfil any representation made by him nor acted contrary to such representation.  It has not been established that he erred in not putting to the Applicant that his account was inconsistent with independent country information later relied upon in his review, or that he erred in not challenging the Applicant in relation to matters he later took into account against him in the manner contended in ground one in the amended application.  I note for the sake of completeness that the Reviewer recorded that he put to the Applicant that press reports indicated that clashes with police occurred in the late afternoon.  What was said in the later part of the interview did not amount to an indication that the Reviewer would not take such information into account. 

11. In any event, insofar as the jurisdictional error contended for in this ground is based on a lack of procedural fairness, a mere departure from a representation by a decision-maker would not necessarily involve unfairness (see Lam per Gleeson CJ at [34] and Gummow and McHugh JJ at [83] and also see Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor (2012) 246 CLR 636; [2012] HCA 31 at [65] per Gummow, Hayne, Crennan and Bell JJ pointing out that, as for the reasons given in Lam, the phrase "legitimate expectation" used in the field of public law "either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded").  The Applicant has not established that he suffered any detriment from the asserted failure to comply with a representation.  However this issue does not require further consideration as I am not satisfied that the substance of the exchange in the part of the transcript of the interview of 24 March 2011 relied on was to the effect contended for by the Applicant. 

12. Ground one is not made out. 

13. Counsel for the Applicant indicated in submissions that ground two was not pressed. 

Illogicality

1. Ground 3 in the amended application is that the Reviewer "failed to exercise the jurisdiction of the review by constructively failing to assess the Applicant's credibility rationally".

2. Originally eight particulars were relied on in relation to this ground.  As indicated, the only particulars now relied on are as follows:

   d. at paragraph 57 of the Review the Reviewer makes an illogical distinction between a "procession" and a demonstration.

   e. at paragraph 57 of the Review the Reviewer makes an irrational finding that because the Applicant had been in a cemetery in Tehran for 2-3 hours he would have learned how far it was to Central Tehran (in circumstances where the Applicant was not from Tehran and did not go through Tehran).

3. It is apparent that these particulars are intended to refer to paragraph [58] of the Reviewer’s reasons for decision set out at [17] above.

4. While counsel for the Applicant conceded that a court should not lightly reach a conclusion that a decision-maker had acted irrationally in making a finding of jurisdictional fact and that the issue of whether defective fact-finding was an independent ground of judicial review was a debatable and unresolved issue (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [31] and [124]), it was submitted that the Reviewer's decision was affected by irrationality and illogicality in a manner that gave rise to a reviewable error. In particular, it was submitted that irrational or illogical reasoning had led the Reviewer to make adverse findings in relation to the assessment of the Applicant's credibility. Reference was made to the test referred to in SZMDS, as considered by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58.

5. The Applicant submitted first that it was illogical or irrational for the Reviewer to have made a distinction between a “procession” and a “demonstration” in considering the Applicant's claims about the events at the cemetery on 30 July 2009 and to have had regard to this distinction in finding that the Applicant was vague and generally ignorant about the cemetery and the planned events.  It was acknowledged that in his initial statutory declaration of 26 February 2010 the Applicant had referred to the deceased student's participation in a “demonstration” on 12 June 2009, to the organisation of a large “procession” for the expiration of a 40-day mourning period after her funeral, and his participation in that “procession” and what happened when he was in the cemetery.  However it was submitted that it would be logical to refer to going to a funeral “procession” in relation to attendance at a cemetery and that it was not logical for the Reviewer to have attacked the Applicant's use of the word "procession" in relation to the events in question because he described what occurred when he was at the cemetery.  It was submitted that in circumstances where the Applicant had actually described the events of 30 July 2009, it was illogical for the Reviewer to “pick on” a label that he had used to describe the events. 

6. It was also submitted that it was relevant that in his entry interview the Applicant was recorded as having referred to a “demonstration” at the cemetery.  The Applicant contended that, acting logically, the Reviewer would have referred to this claim and proceeded on the basis that as the Applicant had described what occurred at the cemetery on that day, no adverse finding should be made because of his later use of the word "procession" in his first statutory declaration. 

7. The Applicant contended that in all the circumstances the only reasonable inference to be drawn from the use of the description “procession” in the Statutory Declaration would be either that there was some inaccuracy or inadequacy in the translation, the language spoken or the vocabulary of the translator or to conclude that in fact the word "procession" was a reasonably appropriate word, the use of which had no bearing on the Applicant's credibility. 

8. In addition, there was said to have been an irrational finding by the Reviewer that because the Applicant had been in a cemetery in Tehran for two to three hours he would have learnt how far the cemetery was from central Tehran in circumstances where the Applicant was not from Tehran.  It was contended that there was no evidence that the Applicant had ever been through central Tehran.  It was said that when the Applicant did not say that he went through central Tehran on the way to the cemetery it was illogical for the Reviewer to take the Applicant’s lack of knowledge in reaching a conclusion about his general ignorance about the cemetery and the event planned to take place there. 

9. As pleaded, it appears that the Applicant’s contention is that in reasoning as it did in relation to these two issues the Reviewer failed to assess the Applicant’s credibility rationally. 

10. The First Respondent submitted that, having regard to the principles considered in SZMDS and SZOOR, it had not been established that there was a case of illogicality or irrationality such as to amount to jurisdictional error.  It was also submitted that even if there was some irrationality or illogicality in the Reviewer’s reasoning in relation to the particular matters relied on by the Applicant, it would not amount to jurisdictional error because the parts of the decision in question involved only findings in relation to intermediate or underlying facts rather than the decision-maker's state of satisfaction as to whether the Applicant was a person to whom Australia owed protection obligations under the Refugees Convention.  The First Respondent also submitted that a large number of matters taken together had formed the basis for the Reviewer’s adverse credibility finding.  It was said to be difficult to see how any single one of the matters relied on by the Applicant might, even if illogical, be regarded as affecting the decision as a whole. 

11. In SZMDS the High Court considered what would suffice to support a finding that the decision-maker's state of satisfaction that a statutory criterion had or had not been met was irrational, illogical, and not based on findings or inferences of facts supported by logical grounds.  The effect of the decision in SZMDS was explained by the Full Court of the Federal Court in SZOOR.  As Rares J pointed out in SZOOR (at [2]), differences in reasoning are apparent in the three separate judgments in SZMDS. Relevantly, Rares J summarised the majority judgments of Crennan and Bell JJ and Heydon J (at [3]) as follows:

    In SZMDS [77]-[79] Heydon J reasoned that a decision as to satisfaction was not illogical if the issue was one on which minds might differ because, for example, the difference was one of degree, impression and empirical judgment.  His Honour inferred that the decision-maker there had selected a major premise as the foundation of her reasoning and operated on that premise, even though she had not stated it (at [74]-[75]).  Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence (at [130]).  Their Honours appear to have decided that where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found.  At least, that is what I understand their Honours to be saying in the following passage (at [131];  see too at [135]):

    The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (emphasis added)

12. McKerracher J made the point in SZOOR (at [85]) that the views of Heydon J were “not at odds with what was said by Crennan and Bell JJ” and stated that:

    Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based.  Illogicality will not amount to jurisdictional error in every case.  It must be such as to affect the decision.

13. The first aspect of the Reviewer’s decision with which the Applicant took issue was one example of the Applicant’s vagueness and general ignorance about the cemetery and the event planned to take place there which led the Reviewer not to believe his claim that he was there.  In that context, the Reviewer’s reasoning in relation to the Applicant's reference in his first Statutory Declaration to the organisation of and his participation in a “procession” at the cemetery is not such as to establish illogicality or irrationality amounting to jurisdictional error.  This remains the case notwithstanding the earlier reference to a “demonstration” in the Applicant’s entry interview. 

14. In his later Statutory Declaration of 7 June 2010 the Applicant referred to the event as a "service" while in his interview with the first Reviewer he referred to it as a "ceremony".  However, what was of relevance to the Reviewer was not any inconsistency in the Applicant’s claims, but rather the fact that in his first Statutory Declaration he had referred to an event that did not occur. 

1. As counsel for the First Respondent pointed out, the ordinary meaning of "procession" is the "proceeding on or moving on in orderly succession, in a formal or ceremonious manner, of a line or body of persons, animals, vehicles, etc” (Macquarie Online Dictionary).  There is no evidence to suggest that there was any such event at the cemetery on the date in question. 

2. It was open to the Reviewer to find that there was no "procession" at the cemetery in Tehran on 30 July 2009.  The Applicant did not contend to the contrary.  The fact that an event associated with a funeral might be described as a procession in some other context is not to the point.  Insofar as the Applicant suggested that it was not inapt to describe the events at the cemetery on 30 July 2009 as a “procession”, this appeared to be based on the assumption that what occurred on that day was a funeral.  In fact it appears from the Applicant's claims, including in his original Statutory Declaration, that the event (however described) was after the student’s funeral, at the end of the 40-day mourning period after her death.  In any event, in light of the evidence before the Reviewer, including country information in relation to the events of that day, it was open to the Reviewer to have regard to the fact that the Applicant referred to a “procession” in circumstances where there was no procession as one of the matters indicative of his vagueness and general ignorance about the cemetery and the event planned to take place there. 

3. Insofar as counsel for the Applicant suggested that the only reasonable inference from use of the description “procession” was to question the translation, language spoken or vocabulary (of either the interpreter of the first Statutory Declaration or the Applicant), such suggestions are not made out.  Elsewhere in the same Statutory Declaration the word "demonstration" was used in respect of the earlier events in which the student had died.  Further, while the Statutory Declaration was in English and the Applicant is a Farsi speaker, it is not in dispute that a qualified interpreter in the Farsi language had, as he declared, accurately and completely interpreted the contents of the Declaration from the English language to the Farsi language for the Applicant. 

4. The Applicant's use of the word "procession" was probative of a conclusion that he was vague or ignorant about the events at the cemetery on 30 July 2009.  It cannot be said that the Reviewer’s finding in this respect was one at which no reasonable decision-maker could arrive on the same evidence in the sense considered in SZMDS and SZOOR. 

5. The second aspect of the decision in issue under this ground is the Applicant's lack of knowledge about the distance of the cemetery from central Tehran.  This was a matter the Reviewer considered the Applicant would have learned either en route to or in the cemetery.  The Applicant’s lack of knowledge in this respect was logically probative of the conclusion the Reviewer reached in relation to his general ignorance and vagueness about the cemetery in circumstances where there was evidence that the Applicant had, with three university students, travelled for 10 to 12 hours to the cemetery, including some hours driving around Tehran en route to the cemetery (apart from the three further days he spent in Tehran).  The Applicant’s claim as presented by his adviser was that they arrived in Tehran, at 7 am but it took them “about 1½ to 2 hours to drive through Tehran find our way to the Beheshte Zahra cemetery”.  He also claimed he spent two to three hours in the cemetery.  While the question of the distance from central Tehran to the cemetery was one of detail, there was a rational basis for an expectation that the Applicant might have gained some knowledge of that and other matters during his 10 to 12 hour trip to the cemetery with three university students and the two to three hours he claimed he spent in the cemetery. 

6. The issue is whether it was open to the Reviewer to draw the inference that he drew having regard to this aspect of the Applicant's lack of knowledge.  This is not a case in which only one conclusion was open on the evidence to which the reviewer did not come.  It is not a case in which the conclusion the Reviewer reached was not open on the evidence or where there was no logical connection between the evidence and the inferences or conclusion reached by the Reviewer in the sense considered by Crennan and Bell JJ in SZMDS at [131] (and see SZOOR per Rares J at [3]).

7. Even if a different decision-maker might have reached a different decision it has not been established that there was illogicality such as to amount to jurisdictional or reviewable error in the sense considered by the High Court in SZMDS as explained in SZOOR. 

8. Further, when regard is had to the two matters complained of by the Applicant in ground 3 it has not been established that these matters did not form a rational basis for the conclusion reached at the intermediate level by the Reviewer that the Applicant was vague and generally ignorant about the cemetery and the event planned to take place there.  The next step in the Reviewer's reasoning was that because the Applicant was vague and ignorant about matters critical to his claims, he had not in fact taken part in the events at the cemetery.  It has not been suggested, and nor is it apparent, that that step in the Reviewer's reasoning was irrational.  

9. It appeared to be submitted for the Respondent that this was a case in which, even if reliance on one piece of evidence was illogical, the decision was not affected by jurisdictional error because there were other bases upon which the Tribunal's findings were made.  However this case is not on all fours with SZOOR in which McKerracher J expressed the view that where the decision-maker (the Refugee Review Tribunal) had reached an adverse conclusion against the appellant in advance and quite independently of any "comfort" which may have been drawn by reference to an anonymous letter in relation to which there was said to be some irrationality or illogicality in reasoning there was another basis on which the decision was made.  Nonetheless, it may be said that the other matters relied on by the Reviewer, as detailed above, were, as Nicholas J put it in Minister for Immigration and Citizenship v SZOCT and Another (2010) 189 FCR 577; [2010] FCAFC 159 at [84], “logically and rationally capable of supporting the reviewer’s finding” that the Applicant was not a witness of truth.  There is nothing in the material before the Court, including the decision of the Reviewer, to justify a finding that the Reviewer's assessment of the Applicant's credibility was not open to him on any view of the material before him (see SZOCT per Buchanan J at [64]). Once the Reviewer found that the Applicant was not a witness of truth, it was open to him to find that he was not satisfied that the Applicant was a non-citizen to whom Australia owed protection obligations. It has not been established that there was illogicality or irrationality in this ultimate conclusion such as to constitute jurisdictional error.

10. The manner in which the Reviewer assessed the factors complained of in assessing the credibility of the Applicant and the material he used to do so does not reveal such a lack of rational or logical connection between the material before the Reviewer and his conclusion in relation to the particular matters in issue or the credibility of the Applicant that it can be said that the conclusion the Reviewer reached that the Applicant had concocted his claims about the events of 30 July 2009 and that such claims were not credible (or indeed the ultimate conclusion that the Applicant was not a person to whom Australia owed protection obligations) was one at which no rational or logical decision-maker could arrive on the same evidence or that it was otherwise a jurisdictional error in the sense considered by Crennan and Bell JJ at [130] – [131] in SZMDS or Rares J in SZOOR. 

11. Ground three is not made out. 

12. As neither of the grounds relied on by the Applicant have been made out the application must be dismissed.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  15 August 2013