SZRHK v Minister for Immigration
[2012] FMCA 763
•31 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 763 |
| MIGRATION – Persecution – review of recommendation made by independent merits reviewer (“Reviewer”) that the applicant not be recognised as a person to whom Australia has protection obligations. ADMINISTRATIVE LAW – Allegation that the Reviewer failed to provide adverse material and conclusions for comment, failed to consider a claim, made a finding for which there was no evidence and failed to take a relevant consideration into account. |
| Migration Act 1958, ss.36, 46A,195A |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 Kioa v West (1985) 159 CLR 550 |
| Applicant: | SZRHK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | P. MCINTOSH IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 666 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 August 2012 |
| Date of Last Submission: | 15 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms B. Styles |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 666 of 2012
| SZRHK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| P. MCINTOSH IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Iran who arrived at Christmas Island by boat on 30 August 2010. He lodged an application for a Refugee Status Assessment (“RSA”) dated 30 October 2010 alleging that he was a refugee and, as such, a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
By letter dated 13 April 2011 an officer in the department administered by the first respondent (“Minister”) advised the applicant that he had been assessed as not meeting the definition of a “refugee” under the Convention. That decision was subsequently reviewed by the second respondent (“Reviewer”) who, on 16 December 2011, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. It appears that the applicant was in detention at the time of the RSA and subsequent review.
The evidence makes it clear that the applicant had no visa when he entered Australia at Christmas Island. In the circumstances and as provided by s.46A(1) of the Migration Act 1958 (“Act”), he cannot make a valid application for a protection visa. However, ss.46A and 195A of the Act also provide that the Minister may, in his discretion, lift the bar on the applicant making such an application and may grant him a visa.
It was an unstated assumption in these proceedings that the Minister would consider exercising his ss.46A and 195A discretions in favour of the applicant if he received advice to that effect, advice which would be based on the recommendation of the Reviewer: see Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319 at 344 [49].
The applicant has made an application to this Court for judicial review of the Reviewer’s recommendation. He seeks a declaration that the Reviewer’s recommendation was affected by an error of law and an injunction restraining the Minister from relying on that recommendation. In order to succeed he must demonstrate that the Reviewer’s review was procedurally unfair or was not conducted by reference to the correct legal principles correctly applied: SZQRW v Minister for Immigration & Citizenship [2012] FMCA 191 at [6]-[10].
For the reasons which follow, the application will be dismissed.
Background facts
The recommendation made by the Reviewer was supported by written reasons. The facts alleged in support of the applicant’s claim for protection were set out on pages 3 to 16 of those reasons and are relevantly summarised below.
Entry interview
The applicant made the following claims during his entry interview on 14 September 2010:
a)in June 2009 he was arrested during a post-election protest in Enghelab Avenue and was subsequently detained for nine months. He was tortured regularly during this time;
b)his brother paid US$2,000 to an army officer to gain his release. The army officer told the applicant and his brother that he would make “the file look lost” and advised the applicant to leave the country. He was released in February or March 2010;
c)he spent the next five months living in the north of Iran (instead of Tehran) where it was safe and where he could recover from his ordeal. His brother took care of his food and rent;
d)people came to his brother’s house to look for him. The army officer told them that it was the army and advised the applicant to leave the country, which he did in August 2010;
e)in 2007 he had been beaten by the Basij and the police while walking with his girlfriend in the street. He was detained for two days;
f)he had not done his compulsory military service in Iran because he did not approve of the government; and
g)he would be imprisoned if he returned to Iran because of the way he was released from detention. There was no safety there.
RSA application
In support of his application for an RSA, the applicant provided a statutory declaration declared on 30 October 2010 and also attended an interview with an RSA assessor. He relevantly claimed that he wore green clothing in support of Mousavi at the June 2009 demonstration and feared harm from the Iranian authorities because he was a Mousavi supporter. He claimed that while he was in detention he was physically abused and tortured every day and suffered extensive muscular damage to his left leg. He also claimed that he left Iran through Shiraz international airport which, he said, was small and quiet. He said that he arrived about thirty minutes before the flight departed and was rushed through the process.
Proceedings before the Reviewer
In written submissions dated 13 July 2011 the applicant’s advisers argued that the applicant feared persecution as a result of “imputed political opinion and membership of a particular social group”. It was submitted that the applicant would be arrested and possibly killed by the Basij because of his support for the “Mousavi party and pro democracy elements generally”. It was also submitted that having been outside Iran and, in particular, to a western country, the applicant would be harassed at the airport and would be considered as “a spy and a traitor”. The applicant’s advisers submitted that people who travelled abroad and expressed their dissatisfaction with the Iranian government, as the applicant had done, were at risk of persecution as political dissidents.
The applicant was interviewed by the Reviewer on 20 July 2011 at which point he made the following additional claims:
a)when he first entered Enghelab Avenue on the day of the protest, people were carrying placards and shouting slogans. Things turned violent at around two or three in the afternoon and continued until sunset. Members of Sepah and the Basij shot into the crowd to disperse them and beat people with batons;
b)he told his captors that he had not done his military service because he did not like the government. As a result, they tortured him even more;
c)he did not like the Islamic republic as a form of government and left Iran because he disagreed with it; and
d)he had been raped by one of the Basij during his detention.
After the interview, the applicant’s advisers provided:
a)a letter dated 25 July 2011 from a “Trauma Counsellor/Advocate” at the Association for Services to Torture and Trauma Survivors (“ASeTTS”) stating that the applicant had symptoms consistent with post-traumatic stress disorder, anxiety and depression. The author did not state her qualifications;
b)a letter dated 16 August 2011 from a psychologist stating that the applicant had undergone a “mental state examination” which indicated that he was suffering post-trauma physical injuries, psychological distress and depression likely to be “related to the torture and trauma he suffered” in Iran; and
c)an “Intake Assessment Report” from a different counsellor at ASeTTS which, although undated, referred to an interview on 20 October 2011 at Curtin Immigration Detention Centre. The counsellor, whose qualifications were also not provided, set out the applicant’s personal history and diagnosed him as having the symptoms of post-traumatic stress disorder.
On 26 October 2011 the applicant’s advisers wrote to the Reviewer and made the following additional submissions:
a)a returnee to Iran who was considered to be against the government – and therefore a traitor – risked being killed by the authorities;
b)that the applicant would be returning to Iran from a western country and after a lengthy time abroad were further reasons why the Iranian authorities would question him and accuse him of being a spy;
c)the applicant was suspected of holding anti-government views and had been detained and questioned by the authorities because of this. He would be perceived as an opponent of the regime and would face questioning, torture and possibly death if he returned; and
d)the applicant had recently “converted” to Christianity. He was attending Bible study classes and was waiting for an opportunity to be baptised. In support of this claim, the applicant’s advisers submitted a letter dated 17 October 2011 from a Father Boyers who confirmed that the applicant had attended some Christian services at Curtin Immigration Detention Centre.
Reviewer’s findings and reasons
After discussing the claims made by the applicant and the evidence before her, the Reviewer found that the applicant did not meet the criteria for the grant of a protection visa as set out in s.36(2) of the Act. The Reviewer consequently recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention. That recommendation was based on the following findings and reasons:
a)while the Reviewer accepted that the applicant was beaten by the police and detained for two days, she noted that he did not claim or imply that this incident had had any consequences after he was released. On this basis, the Reviewer was satisfied that it was an isolated incident which was not indicative of systematic and discriminatory conduct against the applicant;
b)the Reviewer accepted that the applicant had not served his period of conscription and that, were he to return to Iran, he would face penalties as a draft evader in accordance with Iranian military law. However, the Reviewer found that the laws relating to draft evasion in Iran applied indiscriminately to all citizens who were eligible to perform military service. She found that it was a law of general application which would not be implemented or enforced in a discriminatory manner and, as a result, this claim did not fall within the provisions of the Convention;
c)having regard to the following matters, the Reviewer did not consider plausible, and did not accept, that the applicant participated in a protest in 2009 and was detained and tortured as a result:
i)the applicant’s description of the protest in Enghelab Avenue was not consistent with evidence from the Iranian Human Rights Centre (“IHRC”). The applicant claimed that the security forces became violent towards the protestors at two to three in the afternoon and continued until sunset whereas the IHRC reported that the violence broke out at around sunset. The IHRC also reported that the crowd was silent in Enghelab Avenue which was not consistent with the applicant’s account that they were shouting slogans. Finally, the applicant made no reference to the authorities’ use of tear gas to control the crowd, as had been reported by the IHRC;
ii)if, as he claimed, the applicant’s captors knew that he was a draft evader, it was illogical and highly improbable that they would have simply released him instead of handing him over to the military to perform his military service;
iii)that the applicant was of sufficient importance to be detained and frequently tortured for a lengthy period of nine months and yet was not of sufficient importance to be charged was, in the Reviewer’s opinion, not consistent with the independent evidence that many protestors subsequently faced politically-motivated charges;
iv)there was no reliable evidence before the Reviewer, such as evidence from a qualified medical practitioner, that the applicant had sustained any physical injuries consistent with having been tortured;
v)the applicant’s claim that he was detained from June 2009 to around March 2010 was not consistent with information provided in his RSA request form that he was employed as a workshop assistant in Tehran from 2008 until February 2010;
vi)the applicant was unable to explain why he feared being re-arrested given that the authorities had released him from detention without charge and had shown no subsequent interest in his whereabouts or activities. The Reviewer inferred from this that the applicant left Iran for some reason other than fear of being arrested in relation to his claimed political activities; and
vii)the applicant claimed that in order to escape from Iran he was obliged to depart through a distant airport at Shiraz. However, his description of that airport, i.e. that it was a small, sleepy airport which allowed him to depart with little checking and after a very late arrival, was not consistent with the independent evidence [i.e. that it was the largest airport in the southern region of Iran, was the second most reliable and modern airport in Iran in terms of flight safety and passengers had to check-in three hours before departure]. The Reviewer inferred that the applicant was unfamiliar with the airport because he had not departed Iran through it;
d)the Reviewer accepted that the applicant was not a supporter of the Islamic regime in Iran, a view which was shared by many young people in Iran today. However, because of its ubiquitous nature, the Reviewer was not satisfied that merely holding such a view generally resulted in any serious harm;
e)in relation to the three letters which the applicant provided in support of his claim that he had been tortured, the Reviewer accepted that the applicant displayed the symptoms referred to therein but did not consider the letters to be reliable sources of evidence as to the cause of those symptoms, noting that:
i)with respect to the letter from the psychologist, there was no explanation as to how a “mental state” examination could have “indicated post trauma physical injuries” or how the author might have had the expertise to enable her to link the applicant’s condition with torture and trauma suffered in Iran;
ii)in relation to the letter from the “Trauma Counsellor/Advocate” at ASeTTS, the Reviewer noted that the author appeared to be unqualified to provide a professional diagnosis of the applicant’s condition. Further, the author’s assessment of the applicant’s symptoms was based on information given to her by the applicant; and
iii)the report from the other counsellor at ASeTTS also relied on information provided by the applicant about his history. The counsellor “naturally” attributed the applicant’s condition (at least in part) to that history;
f)the Reviewer also found that the chance of the applicant being persecuted in Iran for holding pro-Mousavi and pro-democracy political opinions was remote;
g)although the Reviewer accepted that the applicant had attended some Christian services in Australia, she was not satisfied that he had converted, or intended to convert, to Christianity or that he would be perceived in Iran as an apostate. The Reviewer noted in this connection that the applicant made no reference to an interest in Christianity until after the interview in July 2011, provided little information about his motivation for wishing to give up his existing religion or the extent of his interest in Christianity and provided no information about having made any firm plans to formally convert to Christianity. In the circumstances, the Reviewer was not satisfied that the applicant wished to be baptised or wished to practise as a Christian in Iran;
h)the Reviewer considered it likely that if the applicant returned to Iran he would be perceived as a failed asylum seeker and questioned accordingly. However, given that the applicant had not been politically active, the Reviewer was satisfied that such enquiries would reveal nothing that might lead to suspicions about the applicant’s political opinions or activities; and
i)while the Reviewer accepted that the Iranian authorities were careful in their scrutiny of individuals, including failed asylum seekers, to establish if they were opponents of the regime, she did not accept on the available evidence that failed asylum seekers were routinely imputed with an oppositional political opinion or were regarded as spies or traitors merely because they had sought to live in a western country. Given that the applicant did not have a history of political opposition to Iran and did not claim to have undertaken any oppositional political activity since his departure, the Reviewer was satisfied that, while the applicant might be questioned on his return to Iran, he would not be perceived by the authorities as an opponent of the regime.
Proceedings in this Court
Failure to provide material
Ground one of the amended application alleged:
1.The Second Respondent failed to afford procedural fairness to the Applicant by failing to put before the Applicant and his advisors for consideration and comment the substance of the matters that the reviewer knew of and considered credible, relevant and significant in considering whether or not to accept his claims.
Particulars
i. The Second Respondent did not put the Applicant on notice that in assessing his claim to fear persecution on account of his political opinion as a Mousavi supporter and/or his membership of a particular social group, being persons opposed to the Islamic regime in Iran who participated in and were arrested at a post-election protest in June 2009 and subsequently detained and tortured (the “Political Persecution Claim”), particular weight would be given to certain matters which were credible, relevant and significant to the decision to reject that claim, or integers of it, in particular:
a. The Second Respondent did not put the Applicant on notice that in rejecting his claim to have been tortured she would give particular weight to and would draw an adverse inference from his failure to provide evidence from a qualified medical practitioner;
b. The Second Respondent did not put the Applicant on notice that she would reject the evidence of the Trauma Counsellor and Psychologist owing to their failure to state relevant qualifications;
c. [Not pressed]
d. In relation to the Applicant’s claim to have been raped while in detention in Iran (“Rape Claim”), the Second Respondent did not place the Applicant on notice that she:
i.would “carefully consider” his Rape Claim as part of his claims of abuse by the State;
ii.“did not consider [the claim to have been detained, including the Rape Claim] plausible”; and/or
iii.would attach weight to the fact that the Applicant had not submitted “evidence from a qualified medical practitioner” to verify the claim to have been tortured, including the Rape Claim.
Instead of placing the Applicant on notice of any of the matters (i) to (iii) which were referred to in the Second Respondent’s recommendation, the Second Respondent informed the Applicant that the Rape Claim was “not something I need to write about in my recommendation, in any detail.”
ii.The Second Respondent did not put the Applicant on notice that, in assessing his claimed fear of religious persecution because of his intention to convert to Christianity, particular weight would be given to the Applicant’s failure to notify the Second Respondent of “firm plans” to be baptised.
iii.The Second Respondent did not put to the Applicant for his consideration and comment those aspects of country information known to her which she considered may bear upon his claimed fear of persecution because of his status as a failed asylum seeker. In particular she should have, but failed to:
a. put to the Applicant for his consideration and comment the substance of extracts from a 2010 DFAT report referred to in her review at paragraphs 123 and 152; and
b. notify the Applicant that the source of that country information was a DFAT publication and that given the authority of the source of that information she was likely to attach special weight to it.
Particular (i)(a) failure to provide evidence of a qualified medical practitioner
The allegation that the Reviewer failed to alert the applicant to the significance which she would attach to the absence of evidence from “a qualified medical practitioner” when considering his claim of torture was based on what the Reviewer had said in para.140 of her reasons. In that paragraph she said:
Fourthly, he has submitted no evidence from a qualified medical practitioner that he has sustained any physical injuries consistent with having been tortured. Of course it does not follow from the lack of such evidence that he was not tortured, but it is the case that I have before me no reliable evidence (the letters from counsellors are discussed below) beyond his own assertions that he was subjected to such treatment.
The applicant submitted that although the Reviewer did not believe that his claim that his leg had been damaged by torture in Iran without supporting medical evidence, when he had suggested at their interview that she did not believe that his leg had been damaged in detention, she had reassured him by saying:
… I know that treatment in prisons in Iran is extremely cruel and there is a lot of torture. So I know.
The applicant submitted that the Reviewer had thereby failed to place him on notice that he was in danger of being disbelieved if he did not provide medical evidence to verify his claim to have been tortured.
The Reviewer’s statement that she knew treatment in prisons in Iran was cruel was responsive to the applicant’s evidence concerning conditions in Iranian prisons and the purposes for which people were imprisoned, not to his allegation that he had been tortured while in prison. In that connection, shortly before the statement quoted above at [17] the Reviewer had said to the applicant:
… obviously people can injure their leg or any part of their bodies by playing sport or by having a childhood injury or something like that. So it would be, you know, helpful if you were able to get some written information from your doctor just showing that you have told him what happened to your leg. And ask him if he can confirm that your, what he can see is consistent with your description of the incident. …
I’m not asking for information from a doctor in Iran. But because you’ve been seeing a doctor here in Australia, that might be useful evidence for you, it might be beneficial for you to get some evidence from the doctor about the injury to your leg. It is up to you. …
But if I don’t have any evidence from your doctor then obviously I just have to rely on your account, what you’re telling me about yourself.
These passages make it clear that the Reviewer was interested in such medical evidence as the applicant might have been able to place before her in support of his claim that the injury to his leg had been caused by torture. She did not mislead the applicant into thinking that such evidence would not be of assistance to him.
Further, the Reviewer had no duty to alert the applicant to the fact that he might be disbelieved if corroborating evidence was not adduced. A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission: Kioa v West (1985) 159 CLR 550 at 628-629; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 96-97 [140]; SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 162 [32]; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 [9].
However, the significance which might be placed on a particular piece of evidence, or on its absence, falls into none of these categories and is not something which the law obliged the Reviewer to bring to the applicant’s attention.
In any event, the Reviewer’s comments in this regard, quoted above at [16], were no more than an observation on the absence of evidence of a sort which, if presented, would clearly have been relevant to the review. In circumstances where an applicant has a practical obligation to satisfy the Reviewer that he or she meets the criteria for the grant of a protection visa, so much is obvious and goes without saying; the fact that the Reviewer did not say it does not amount to reviewable error. It was not the Reviewer’s role to prompt or elicit from the applicant an elaboration of his claim which he chose not to make himself and no error is disclosed because she did not do so: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58].
Particular (i)(b) failure of experts to state qualifications
At paras.145 and 146 of her reasons the Reviewer stated that the applicant’s psychologist did not state in her short open letter of 16 August 2011 how she was qualified to state that a “mental state” examination of the applicant “indicated post trauma physical injuries” and that the ASeTTS “Trauma Counsellor/Advocate” appeared to be unqualified to provide any professional diagnosis of the applicant’s condition. The applicant submitted that these were adverse conclusions which would not have been obviously open on the known material with the result that procedural fairness required the Reviewer to draw them to his attention before acting on them.
In relation to the psychologist, the Reviewer relevantly said at para.145:
There is no explanation in that letter as to how a “mental state” examination can have “indicated post trauma physical injuries”, nor how the author might have had the expertise to enable her to link the claimant’s condition with torture and trauma suffered in Iran in particular.
This is an unsurprising statement. To conclude from what must be assumed to have been essentially a conversation between the applicant and the psychologist, even if it may have involved some inspection of the applicant’s leg, that the injury to his leg had been caused by torture and not by something else, involved a significant logical leap. Given the wide range of potential causes of that injury, as the Reviewer identified to the applicant during their interview and as quoted above at [18], it is hardly surprising that the Reviewer required some demonstration of the expertise justifying the psychologist’s conclusion before she could accept it as a persuasive opinion.
As to the Reviewer’s statement that the “Trauma Counsellor/Advocate” appeared to be unqualified to provide any professional diagnosis of the applicant’s condition, this was a simple statement of fact based on a reading of the report in question. At no point in that report did the counsellor identify in what way she was qualified to express the opinions appearing in that report.
The conclusions expressed by the Reviewer were not ones which were not obviously open on the known materials. Consequently, this particular discloses no error on the part of the Reviewer.
Particular (i)(d)(i) careful consideration of rape claim
In para.135 of her reasons the Reviewer said of the applicant’s claims of torture and rape:
These are very serious claims of abuse by the State and I have considered them carefully.
The applicant submitted that he had been denied procedural fairness because he was not put on notice that the rape claim would be considered in detail. He said that this arose out of the Reviewer’s statements at her interview with him, as recorded at pp.37-38 of the transcript, where she is recorded as saying to him that she did not “need to ask you about the details of that” and “this is not something I need to write about in my recommendation, in any detail, but thank you for telling me”.
Contrary to the applicant’s submissions, properly understood, the Reviewer’s statement that she did not need to ask him “about the details of that” was a reference to the details of the event itself, rather than the claim which was based on it. Further, what the Reviewer did not “need to write about … in any detail” were the conversations which the applicant had had with counsellors, psychologists and psychiatrists and which he had been describing immediately before the Reviewer made that comment. Neither of the quoted passages was a statement that the applicant’s claim to have been raped was not important to the review. In this connection it is significant that the Reviewer did not say to the applicant that she did not need to hear from him further on the subject of the alleged rape, even going so far as to inviting him to tell her if he had anything more he wanted to tell her.
This is not a situation of the Reviewer giving the applicant reason to believe that the allegation in question had been accepted and that no further submissions or evidence needed to be advanced in connection with it. She was simply saying that she did not need to ask for the details of the event and was not going to devote much attention to the conversations he had had with mental health advisers who were unaware of the rape allegation. As was said in the context of the Refugee Review Tribunal in Re Ruddock; Ex parte Applicant S154/2002:
It would have been erroneous for the tribunal to have represented at the hearing that a particular piece of evidence or argument had been accepted and then to have rejected it in the decision in circumstances where, but for the representation, the prosecutrix could have mended her hand. It would also have been erroneous for the tribunal to have relied on a particular conclusion about the material before it which was not open on the material. But it was not erroneous for the tribunal not to have pressed the prosecutrix more than it did about the rape claim. (per Gummow and Heydon JJ at 450 [58], Gleeson CJ agreeing)
For these reasons, this particular of the allegation does not disclose error on the Reviewer’s part.
Particular (i)(d)(ii) claim not considered plausible
No submissions were addressed to this ground. However, procedural fairness did not require the Reviewer to disclose what she was minded to decide so that the applicant might have a further opportunity of criticising her mental processes before she reached a final decision: SZBEL at 166 [48]. No error is disclosed by the matter raised by this particular of the first allegation.
Particular (i)(d)(iii) failure to provide evidence from a qualified medical practitioner concerning the rape allegation
The allegation that the Reviewer failed to alert the applicant to the significance which she would attach to the absence of evidence from “a qualified medical practitioner” when considering his claim of rape was also based on what the Reviewer had said in para.140 of her reasons, quoted above at [16]. In this connection, the applicant also pointed to the fact that the Reviewer said, as recorded at p.37 of the transcript of interview, that rape was a form of torture.
The applicant also referred to what the Reviewer had said at para.85 of her reasons where she summarised part of her interview with the applicant:
After an adjournment to enable him to have a discussion with his advisor, the claimant stated that he had been raped by one of the basij. As to if he had received any medical treatment as a result, he said he had not. He also stated that he was providing this information confidentially and that his counsellor did not know about it. At this point his advisor requested, and was granted, 14 days to provide medical evidence. (None was received on this point).
In relation to this passage the applicant submitted that the Reviewer was incorrect to say that his advisers had at that point asked for fourteen days to provide a medical report relevant to the rape allegation. He submitted that the request had come at the end of the whole interview, not just after the rape allegation had been made, and in fact concerned another issue, not the rape claim.
In relation to this second aspect of this allegation, the applicant appears to submit, based on the Reviewer’s comments quoted above at [35], that medical evidence of the alleged rape had, in effect, been offered but not supplied and that the Reviewer drew an adverse inference from the absence of medical evidence or the absence of medical evidence in circumstances where its provision had been foreshadowed. However, the passage in question comes from the Reviewer’s summary of her interview with the applicant, not that part of her Statement of Reasons document where she sets out her reasoning - which if any adverse inference was drawn by the Reviewer is the place where it would be expressed. In this regard, as quoted above at [16], under the heading “Findings and Reasons” the Reviewer made no specific comment about medical evidence not being advanced in support of the rape allegation; the comment she made concerned the applicant’s torture claims as a whole. In such circumstances, there is no reason to conclude that the Reviewer’s statement quoted above at [16] concerned an absence of medical evidence in circumstances where its provision had been foreshadowed.
As to the first part of this allegation, it does not appear that the alleged rape was considered separately from the applicant’s other claims to have suffered physical abuse at the hands of the Iranian authorities, all such alleged conduct being subsumed under the classification “torture”. For the reasons given above at [20]-[22], the Reviewer had no duty to alert the applicant to the fact that he might be disbelieved if evidence corroborating his claims to have been physically abused in Iran was not adduced.
Particular (ii) failure to notify Reviewer of “firm plans” to be baptised
In para.150 of her reasons the Reviewer relevantly said:
… as the agent has conceded on the claimant’s behalf, he made no reference to an interest in Christianity until after my interview with him in July 2011. He has also provided little information about his motivation for wishing to give up his existing religion, and little information about the extent of his interest in Christianity. He provides no information about having made any firm plans to formally convert to Christianity. While I accept that his exposure to Christian services while in detention here may have provided him with some support at a time when he was plainly under considerable pressure, there is insufficient information about his intentions to satisfy me that he will be baptised or wishes to practice as a Christian in Iran.
The applicant submitted that the Reviewer should have advised him that his failure to notify her of firm plans to be baptised was an issue which would be critical to her decision regarding his claim.
Properly understood, the applicant’s claim is that the Reviewer did not tell him what he had to say in order to make out his claim. The rules of procedural fairness did not require the Reviewer to do this and this allegation discloses no error on that account: see above at [20]-[22].
Particular (iii)(a) failure to provide DFAT report
At para.123 of her reasons the Reviewer referred to a Department of Foreign Affairs and Trade (“DFAT”) report which spoke of the treatment which returned asylum seekers might encounter in Iran. The relevant finding of the Reviewer was at para.152 of her reasons where she said:
As to his claim to face harm on return as “a spy and a traitor for having travelled overseas and for seeking to live in a Western country”, having considered the evidence from DFAT (2010) I consider it likely that, if he is returned to Iran, he may be perceived to have been attempting to remain abroad, perceived as a failed asylum seeker and questioned (Danish Immigration Service 2009). In the present case I am satisfied that, because the claimant has not been politically active, any enquiries into his background by the authorities during questioning will reveal nothing that might lead to suspicions about his political opinions or activities.
The applicant submitted that the DFAT report was relevant to his claim to fear persecution because of his status as a failed asylum seeker and should have been put to him. He said that the report was used adversely to his claim that he feared being killed if he returned to Iran. He further submitted that the Reviewer should have placed him on notice that DFAT was the source of the material and, given its provenance, that she was likely to attach special weight to it.
The DFAT report said nothing about returned asylum seekers being classified as spies or traitors because they had travelled overseas and sought to live in a Western country. Thus the report was not directly relevant to this particular claim. Nor was the information which the report contained relied on by the Reviewer to conclude that the applicant would not be persecuted if he returned to Iran. Rather, the report was cited as evidence supportive of the applicant’s claim that he risked being stopped by the authorities upon his return to Iran. This could not be said to be information adverse to the applicant’s claim. The information which the Reviewer then relied on to reject his claim to fear being singled out as an imputed spy or traitor was other country information, obtained from sources other than DFAT.
In such circumstances, procedural fairness did not require the substance of the DFAT report to be put to the applicant.
Particular (iii)(b) failure to identify DFAT as source of report
As procedural fairness did not require that the substance of the DFAT report be put to the applicant, it did not require that he be advised of the information’s provenance either.
Failure to consider claim
Ground two of the amended application alleged:
2.The Second Respondent failed to afford procedural fairness to the Applicant by failing to consider his claimed fear of religious persecution on the grounds of his stated opposition to Islam.
Particulars
i.The Second Respondent’s findings only refer to the Applicant’s claimed fear of religious persecution on account of his intention to convert to Christianity.
ii.The Second Respondent fell into jurisdictional error by failing to deal with the Applicant’s clearly articulated claim of fear of religious persecution because of his opposition to Islam.
The applicant argued that a written submission from his advisers to the Reviewer dated 26 October 2011 had said that he feared religious persecution because as a person who was “thought to be against the government and the Islamic republic” he would be perceived to be “against the Islamic faith as well”. Further in this connection he pointed to the statement in that submission to the Reviewer that:
He feels that Islam is a faith which is imposed upon people, and he does not agree with religion being forced upon him.
The applicant submitted that the Reviewer’s findings failed to deal with what he said was a clearly articulated claim to fear religious persecution because of his perceived and actual opposition to Islam.
I do not accept the submission that the applicant had expressed actual opposition to Islam. The passage quoted above at [48] does not amount to a claim to be opposed to Islam. Nor was I taken to any other evidence or argument before the Reviewer which would support this aspect of the second allegation in the amended application.
As to the allegation that the applicant would be perceived to be opposed to Islam, his submissions make it clear that the possible imputation of this opinion was said to arise out of his claimed opposition to the government of Iran. It was wholly dependent on his claim to be a person who would be thought to have oppositional political opinions and thus rose or fell with that claim. As the applicant’s political claim was not accepted by the Reviewer, there was no need for her to consider separately his claim to fear being imputed with anti-Islamic views.
No evidence
Ground three of the amended application alleged:
3.The Second Respondent fell into jurisdictional error by rejecting the Applicant’s Political Persecution Claim based on two factual findings for which there was no evidence.
Particulars
i.The Second Respondent fell into jurisdictional error in rejecting the Applicant’s Political Persecution claim on the basis that the Applicant claimed he was “simply released” from detention, in that, the Applicant did not claim to have been “simply released” from detention instead he claimed:
a. his brother secured his release by paying a bribe;
b. the bribe was in the amount of US$2000 and was made to an officer who was made his “file look lost” and said he should “leave the country”; and
c. after his release he went into hiding in a coastal town, rather than returning to live with his brother in Tehran, rarely leaving the house out of fear.
ii.The Second Respondent fell into jurisdictional error in rejecting the Applicant’s Political Persecution Claim on the basis that the Applicant “has not disputed, the authorities never charged him and showed no interest at all in his whereabouts or activities after releasing him”, whereas the Applicant had claimed:
a. that people had come looking for him at his brother’s house in Tehran after his release; and
b. the official whom his brother had bribed to secure his release said he should leave the country and organised his departure upon payment of another bribe and advised he would be arrested if he returned.
Particular (i) “simply released”
The passage from the Reviewer’s reasons relevant to this aspect of the allegation is para.138 where it was said:
Secondly it seems highly illogical and improbable that if, as he says, his captors knew he was a draft evader, he would not have been handed over to the military to perform his military service rather than simply being released. This casts doubt on his claim to have been detained.
The applicant submitted that given the circumstances set out in the particulars of this allegation, it could not be said that he had been “simply released”. However, I accept and adopt the Minister’s submissions on this point:
In context, the reviewer is drawing a distinction between being released as opposed to being handed over to the military. She was aware that the Applicant had claimed to have been released upon payment of a bribe … but this does not detract from the fact that the Applicant’s own evidence was that he was released, not handed over to the military. Accordingly there was evidence for the reviewer’s statement at CB 183 [138].
Particular (ii) applicant not disputing authorities’ lack of interest in him
The passage from the Reviewer’s reasons relevant to this aspect of the allegation is para.142 where it was said:
Sixthly, he has been unable to explain why he would have feared being re-arrested because of his participation in the demonstration at the time he left Iran. If he had been released from detention five months earlier as he claimed, and if, as he has not disputed, the authorities never charged him and showed no interest at all in his whereabouts or activities after releasing him, one would expect him to have been reassured that the matter was resolved. I infer from this that he may have left Iran for some reason other than a fear of being rearrested in relation to his claimed political activities.
The applicant submitted that the Reviewer’s finding that he had not disputed that the authorities had never charged him or shown an interest in him after releasing him was unsupported by the evidence. He submitted that he had stated that people had come to look for him at his brother’s house in Tehran after his release and that the official who had been bribed said that he should leave the country, advising that he would be arrested if he returned.
It can be accepted that the relevant statement by the Reviewer was incorrect; the applicant had said that the army had come to his brother’s house looking for him, as recorded at para.17 of the Reviewer’s reasons. However, this was merely an incorrect statement of fact. In order to demonstrate legal error the applicant would need to show that the Reviewer’s finding that she did not consider it plausible that he had participated in a protest in 2009, and had been detained because of a political opinion imputed to him as a result, was unsupported by evidence. It is plain from the Reviewer’s reasons this was not so. The statement of fact which this allegation challenges was only one of a number of matters taken into account by the Reviewer in reaching the relevant conclusion. As a consequence, this allegation provides no basis to order the relief sought by the applicant.
Failure to take relevant considerations into account
The applicant alleged in ground four of his amended application that:
4. The Second Respondent fell into jurisdictional error by:
a.rejecting the Applicant’s Political Persecution Claim by failing to take into account relevant considerations, namely his difficulty with the Gregorian calendar and the English language; or
b.in the alternative, denying the Applicant procedural fairness by failing to consider his difficulty with the Gregorian Calender.
Particulars
The Second Respondent found that the Applicant spoke Farsi and was a national of Iran (a country which uses a Solar Hejri calendar which is different to the Gregorian calendar used in Australia). The Applicant informed the Second Respondent, through an interpreter, that he did not understand Australian (Gregorian) months and years. The Second Respondent committed an error of law in failing to take the Applicant’s stated unfamiliarity with the Gregorian calendar and lack of fluency in English into account in making an adverse credibility finding against him based on a discrepancy between his consistent oral answers, translated from the Farsi language, regarding the date of his employment in Iran and a date inserted by his advisors into a table in the “Request for RSA and Statement of Claims” form which was written in the English language.
Particular (a) failure to take relevant considerations and information into account
The applicant submitted that his difficulty with the Gregorian calendar and the English language was a relevant consideration which the Reviewer should have taken into account. However, this is not so. The matters which the applicant has particularised are not “considerations” in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; Abebe v Commonwealth (1999) 197 CLR 510 or Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323. Rather than “considerations” which the Reviewer was obliged to consider or to exclude from her deliberations, the particularised matters were factual matters which were relevant to the issues which she had to decide.
In what was essentially a submission in the alternative to the characterisation of his difficulty with the Gregorian calendar as a relevant consideration, the applicant relied on what I had said in SZQRW at [38]:
A Reviewer must consider an applicant’s claims in light of the facts as disclosed by the evidence in the Reviewer’s possession at the time of deciding whether he or she is satisfied that the applicant meets the criteria for the grant of a protection visa. If the Reviewer fails to consider evidence which might have a bearing on the outcome of the review, in that the evidence is not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30, Mason J at 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. However, an error of fact will not generally ground judicial review and, even if amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome of a review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53], 20 [63].
By referring to this passage the applicant can be inferred to have submitted that the Reviewer failed to take relevant information into account and that he was denied the possibility of a favourable outcome in the review as a consequence. However, the Reviewer did not fail to take the information in question into account. In para.71 of her reasons the Reviewer noted that during her interview with the applicant she had drawn his attention to the inconsistency between his oral evidence concerning when he had been detained and the statement in his request for an RSA concerning when he had worked at a clothes workshop in Tehran. The Reviewer relevantly concluded, at para.141 of her reasons, that the applicant had been unable to provide any persuasive explanation for this contradiction in his evidence. It is apparent from these passages in the Reviewer’s reasons that the evidence in question had been taken into account and no failure of the sort asserted by the applicant had occurred.
Particular (b) failure to consider difficulty with Gregorian calendar
In the alternative to the two arguments made in connection with particular (a), the applicant submitted that the Reviewer failed to consider his difficulty with the Gregorian calendar and that this denied him the opportunity to present his case consistently with his oral evidence rather than based on what he said was the incorrect content of his request for an RSA. Contrary to this submission, the Reviewer’s conclusion demonstrates that she had considered the applicant’s explanation for the discrepancy in his evidence but was not convinced by it. It was not a question of the Reviewer not considering what the applicant now says was his difficulty with the Gregorian calendar but of her not accepting that the differences in the calendars provided a satisfactory explanation for the discrepancies in his evidence.
Conclusion
The applicant has not demonstrated that the Reviewer’s review was procedurally unfair or not conducted by reference to the correct legal principles correctly applied.
Consequently, the application will be dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 31 August 2012
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