SZRLQ v Minister for Immigration - [2012] FMCA 1159

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRLQ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1159

MIGRATION – Independent protection assessment review – review of conduct leading to recommendation of second respondent – whether recommendation made according to law – whether the second respondent misapplied s.91R(3) of the Migration Act 1958 (Cth) – whether the second respondent failed to accord the applicant procedural fairness – whether the second respondent erred in making illogical and capricious findings – application dismissed.

Constitution, s.75
Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 476, Pt.7

SZQXX v Minister for Immigration & Anor [2012] FMCA 415
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
SZRER v Minister for Immigration and Citizenship [2012] FCA 887
Kioa v West (1985) 159 CLR 550
Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant:

SZRLQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

JAMES SILVA IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number:

SYG 1008 of 2012

Judgment of:

Emmett FM

Hearing date:

29 October 2012

Date of Last Submission:

29 October 2012

Delivered at:

Sydney

Delivered on:

4 December 2012

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Gilbert + Tobin Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The proceeding before this Court, commenced by way of application filed on 9 May 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the agreed amount of $8,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1008 of 2012

SZRLQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JAMES SILVA IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution.
This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an independent protection assessor (“the Second Reviewer”), dated 28 February 2012 and handed down on 29 February 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks a writ of prohibition or an injunction restraining the first respondent from acting upon or giving effect to the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.

Background

On 31 January 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 14 February 2010, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 31 March 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 10 May 2010, an officer of the Department of Immigration and Citizenship (“the Department”) found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 26 May 2010, the applicant applied for Independent Merits Review of the RSA.
On 25 January 2011, a different Independent Merits Reviewer (“the First Reviewer”) recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 22 July 2011, Smith FM declared that the recommendation of the First Reviewer was affected by an error of law.
On 28 February 2012, the Second Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
On 9 May 2012, the applicant filed an application in this Court seeking judicial review of the Second Reviewer’s recommendation.

Legislative framework

The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, from the Australian Government Solicitor, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1)     An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7)     The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3]     Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4]     M61 (2010) 243 CLR 319 at [70].
[5]     M61 (2010) 243 CLR 319 at [66].
[6]     M61 (2010) 243 CLR 319 at [67].
[7]     M61 (2010) 243 CLR 319 at [73].
[8]     M61 (2010) 243 CLR 319 at [76].
[9]     M61 (2010) 243 CLR 319 at [89].
[10]    M61 (2010) 243 CLR 319 at [78].
[11]    M61 (2010) 243 CLR 319 at [73].
[12]    M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14]    M61 (2010) 243 CLR 319 at [99]-[100]
[15]    Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16]    M61 (2010) 243 CLR 319 at 360-361 [101]-[104].

The applicant’s claims and RSA

In his “Statement of Claims” provided in support of his request for RSA, dated 31 March 2010, the applicant claimed that:
a)he is a stateless Faili Kurd without any identifying documentation;
b)in about 1980 his parents were expelled from Iraq because they had no identifying documentation and were Faili Kurds and that they subsequently moved to Iran;
c)when they came to Iran, his parents were issued with green cards, but when his father tried to renew his, the government refused and told him to go back to Iraq;
d)the applicant never applied for a white card because the government had refused to renew his father’s card and he feared that he would be arrested and deported if he attempted to do so;
e)in Iran he was beaten by the Basij at least three or four times each month because he did not have any identifying documentation;
f)the applicant was punished because he is a Faili Kurd;
g)the applicant was last beaten by the Basij in December 2009, when, having been unable to produce any identifying documentation, the Basij took him to a room and beat him for three or four hours and broke his nose; and,
h)the applicant is unable to live in Iraq because he is not Iraqi and cannot return to Iran because the Basij will continue to mistreat him because he does not have any identifying documentation and is a Faili Kurd.

The Department’s refugee status assessment

On 10 May 2010, an officer of the Department found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
The officer of the Department accepted that the applicant may have been mistreated and detained by the Basij because he had no identifying documentation, however, found that this was for breaking a law of general application in Iran and not because the applicant was a Faili Kurd.
The officer of the Department also found the applicant’s fear of deportation to Iraq if he attempted to “regularise” his identity to be “speculative”, and, alternatively, found that there was nothing barring the applicant from applying for citizenship in Iraq.

Reviewer’s conduct leading to recommendation

On 26 May 2010, the applicant requested an independent merits review which was duly conducted by the First Reviewer.
On 4 July 2010, the applicant’s migration agent sent a submission to the First Reviewer in support of the applicant’s claims.
On 1 September 2010, the applicant attended a hearing before the First Reviewer.
On 25 January 2011, the First Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 22 July 2011, the First Reviewer’s recommendation was found to have made an error of law by failing to consider whether the applicant had a well-founded fear of persecution in Iran by reason of his membership of a particular social group constituted by unregistered or undocumented people living in Iran.
The matter was then referred to the Second Reviewer to complete a recommendation to the first respondent.
The applicant provided further submissions to the Second Reviewer in support of his review application.
On 21 September 2011, the applicant was interviewed by the Second Reviewer. However, this interview had to be adjourned as the applicant felt he was unable to continue. A resumed hearing was then scheduled and adjourned several times at the request of the applicant because of ongoing mental health concerns. It was finally set down for 11 November 2011. However, the resumed hearing on 11 November 2011 did not proceed because the Second Reviewer was told that the applicant did not wish to attend. The Second Reviewer proceeded to make its decision on the review without any further adjournment of the hearing.

On 24 November 2011, the applicant’s migration agent lodged a complaint with the Principal Reviewer and CEO of the Independent Protection Assessment Office about the Second Reviewer’s conduct of the review. This complaint included a claim of apprehended bias against the Second Reviewer because he had “dismissed the opinion of the treating psychologist” and instead had preferred his own observations and the views of the International Health and Mental Services Staff Pty Ltd (“IHMS”) at Villawood Immigration Detention Centre when deciding to offer a resumed hearing on 11 November 2011.
The migration agent’s complaint was duly investigated and on 12 December 2011 the CEO of the Independent Protection Assessment Office wrote to the applicant’s migration agent informing him that he had raised the grounds of the complaint with the Second Reviewer and anticipated that the Second Reviewer would take “all [your] concerns regarding the claimant into account” but that he had been assured that “our support officer [the Second Reviewer] did not at any time act improperly”.
Accordingly, the Second Reviewer continued his review of the applicant’s claims and on 28 February 2012 completed his recommendation to the first respondent.
In his Statement of Reasons, the Second Reviewer noted that he had before him the Department’s file and other materials available to him from a range of sources. In particular, the Second Reviewer noted documents indicating that the applicant had “ongoing and significant mental health concerns” related to his migration status and continued detention. However, the Second Reviewer found that recording of earlier interviews with the applicant did not suggest that the applicant had any mental impairment or difficulties in presenting his case on those occasions.
The Second Reviewer also noted the report of Ms Afsanieh Jolan, the applicant’s treating psychologist, stating that the applicant had been diagnosed with Post Traumatic Stress Disorder and that “it is highly likely that [the claimant] [the applicant] will not be able to understand and respond rationally to the questions asked”.
The Second Reviewer further noted a letter, dated 22 August 2011, from United Nations High Commissioner for Refugees (“UNHCR”) Senior Protection Officer Ellen Hansen, raising concerns about the conduct of the First Reviewer’s review and presenting new information about the applicant that had not been raised by the applicant or his migration agent to that point. The letter specifically raised concerns that, due to the applicant’s involvement in a widely reported protest at Villawood Immigration Detention Centre, which resulted in the disclosure of his name and the publication of his face in various forms of media, the applicant may have come to the attention of Iranian and Iraqi authorities.
The Second Reviewer also noted a submission received from the applicant’s migration agent on 6 December 2011, in response to an invitation by the Second Reviewer for further written submissions. However, the Second Reviewer found that the submission did not appear to contain any new information or deal with the gaps and concerns identified by the Second Reviewer in the invitation to provide further submissions.
The Second Reviewer considered the reports from the applicant’s treating psychologist and accepted that the applicant suffered from significant mental health concerns; has ongoing feelings of helplessness; that his thought processes and conduct range include paranoia, dissociation, avoidance behaviour and anger; and, that he is “currently unfit to stand any types of trial”.
The Second Reviewer found that the applicant gave cogent and logical evidence during his interview with the Second Reviewer on 21 September 2011 and observed “nothing to suggest that he lacked the mental capacity to participate in an interview”. The Second Reviewer noted that during the latter part of the interview the applicant had “voiced frustration”.
As the latest report from the applicant’s psychologist was dated 26 October 2011, the Second Reviewer asked for an update from IHMS. The Second Reviewer decided to proceed with the scheduled resumed hearing on 11 November 2011 after IHMS had advised him that they were not aware that the applicant was suffering from any mental health problems.
The Second Reviewer accepted that the applicant was born in Iran and is of Faili Kurd ethnicity and is a Shia muslim. The Second Reviewer identified that the critical issue was whether the applicant was stateless and undocumented as claimed.
The Second Reviewer considered country information indicating that the majority of Faili Kurds in Iran are Iranian-born nationals and that there was nothing to suggest that a significant number of the three million Faili Kurds living in Iran were stateless. The Second Reviewer did not accept that the mere fact of being an ethnic Faili Kurd from Iran establishes that a person’s ancestors were been born in Iraq and are now living in Iran as undocumented and stateless persons.
The Second Reviewer outlined a number of specific concerns he had about the applicant’s evidence. The Second Reviewer noted that, at the interview on 21 September 2011, the applicant had briefly mentioned that his parents had been expelled from Iraq in about 1980 but that he had little to say about other family details or tribal connections in Iraq.
The Second Reviewer expressed concern that the village where the applicant lived in Iran was made up of large families. However, the applicant was only able to give a brief explanation when asked to comment upon the small size of his own family.
The Second Reviewer was concerned that the applicant had little meaningful information to offer on the circumstances surrounding the family’s legal status. The Second Reviewer was concerned that the applicant had initially claimed that the Basij came into his workplace, but then changed his evidence when asked by the Second Reviewer how he, nonetheless, managed to hold down a job for five years.
The Second Reviewer was concerned by what he considered to be a “cursory account” of the applicant’s claimed statelessness and lack of documentation.
The Second Reviewer expressed concern at the logistics of the applicant’s travel to Australia as a claimed stateless and undocumented Faili Kurd. The Second Reviewer noted in particular that the applicant claimed to have paid for this travel using cash his father kept at home because of his family’s lack of access to banks. However, the Second Reviewer found that the applicant had failed to explain why the applicant and his mother had hoarded this cash for about a decade rather than addressing their claimed poverty.
Moreover, the Second Reviewer expressed doubt that the applicant had been seriously beaten by the Basij in 2009, because he had not satisfactorily explained the consequences of the alleged beating, such as whether his physical appearance when leaving Iran aroused the suspicions of authorities.
Ultimately, the Second Reviewer was not satisfied that the applicant was a stateless, undocumented Faili Kurd whose family originated in Iraq, and who had been denied registration and identifying documentation. The Second Reviewer was therefore not satisfied that the applicant would be denied entry into Iran in the future, or would face a real chance of discrimination or other mistreatment amounting to persecution if he succeeded.
The Second Reviewer considered the consequences for the applicant of returning to Iran as a failed asylum seeker. However, the Second Reviewer found that the applicant did not face a real chance of persecution on this basis.
The Second Reviewer also considered the applicant’s involvement in protests at Villawood Immigration Detention Centre and accepted that print and electronic media had published the applicant’s image, identified him with particulars such as his name, and that this had received widespread attention in Australia. However, the Second Reviewer was not satisfied that the applicant had engaged in the rooftop protest otherwise than for the purpose of strengthening his claims to be a refugee and therefore disregarded this conduct pursuant to s.91R(3) of the Act.
The Second Reviewer was therefore not satisfied that the applicant is stateless and undocumented, that he has suffered past harm amounting to persecution for any Convention reason, or that he has a genuine and well-founded fear of harm amounting to persecution for any Convention reason either now or in the reasonably foreseeable future.
Accordingly, the Second Reviewer found that the applicant did not meet the criterion for a protection visa as set out in s.36(2) of the Act.

The proceeding before this Court

The applicant was represented before this Court by Mr Karp, of counsel.
The applicant was granted leave to file in Court and rely upon the grounds contained in a further amended application which is in the following terms:
“1. The reviewer erred in his interpretation and application of the section 91R(3) of the Migration Act.
Particulars
(a) The reviewer erroneously considered that conduct engaged in by others publishing the applicant’s name and photograph after his rooftop protest at Villawood came within section 91R(3) of the Migration Act.
~~(b) The reviewer erred in failing to construe section 91R(3 of the Migration Act as requiring consideration of the motives of the conduct of the applicant at the time of that conduct.~~
(c) The reviewer erred in failing to consider evidence before him as to why the applicant engaged in his rooftop protest at Villawood in attempting to determine the motive for his conduct at the time of that conduct.
2. The applicant was denied procedural fairness.
Particulars
(a) It was not suggested to the applicant at interview or in writing that an issue in the applicant’s case was why ‘he and his mother ~~had~~ hoarded cash of diminishing value, over a decade or so, rather than address their claimed poverty.’
(b) It was not suggested to the applicant at interview or in writing that issues in the applicant’s case were the ‘practical arrangements at producing a photograph for the people smuggler in Tehran who allegedly procured a photo-substituted Iraqi passport; and his physical appearance when departing Tehran’s international airport (and whether, for instance, this was such as to arouse suspicions on the part of the Iranian authorities).’
(c) It was not suggested to the applicant that an issue going to his credit was his apparent lack of having ‘… thought about… or be able to comment on the link in his own family (but presumably not others) between poverty and family size.’
(d) The reviewer drew adverse inferences from the applicant’s failure to elaborate on answers given at interview when he was not asked to elaborate.
Further Particulars
(i) On the issue of how the applicant reconciled poverty influencing the size of his family with the (presumably) larger families of others who were (by implication) also poor.
(ii) On the circumstances surrounding the family’s legal status in Iran.
(iii) On the applicant’s evidence to the effect that his employer in Ilam ‘… knew of the situation but could not help’.
~~(e) The reviewer relied on an erroneous view of evidence given at interview.~~
~~Further Particulars~~
(i) Contrary to the reviewer’s statement at CB 368.3, the applicant did not change his evidence about whether the Basij harassed him inside or outside his place of employment when the reviewer ‘signalled [his] interest in how he nonetheless managed to hold down a job for some 5 years’.
(f) The reviewer sought the opinion of International Health and Medical Services (IHMS) as to the applicant’s fitness to participate in a further interview without asking IHMS whether, and if so when, it had assessed the applicant.
(g) The reviewer sought the opinion of IHMS as to the applicant’s fitness to participate in a further interview without providing IHMS with either a copy of a psychological assessment written by Ms Afsaneh Jolan of 26 October 2011, or a summary of that report
~~3. A hypothetical independent and informed observer would hold a reasonable apprehension that the reviewer had not approached the review with an open mind.~~
~~Particulars~~
(a) The reviewer used his alleged lack of satisfaction of the applicant’s claims to be undocumented (which was partly based on the applicant’s inability to participate in a further interview) to dismiss his claims, without attempting to independently assess the evidence of the applicant’s claims to have been persecuted to ascertain whether they were themselves credible.
(b) The reviewer attempted to force a further interview with the applicant, in the face of a strong opinion of the applicant’s treating psychologist that he was not capable of participating in such an interview, by relying on his own inexpert observations of the applicant at the first interview and the opinion of International Health and Medical Services Pty Ltd (IHMS) staff at the Villawood Immigration Detention Centre in circumstances where there was no evidence before the reviewer that IHMS staff had conducted a psychological assessment of the applicant either within several weeks of the date of the IHMS advice, or relevant to the applicant’s ability to participate in such an interview..
~~(c) In an attempt to force a further interview both the applicant and his migration agent were given false information about what the other had said, that is;~~
~~(i) The applicant was told, incorrectly, that his migration agent had said that he should attend a further interview.~~
~~(ii) The applicant’s migration agent was told, incorrectly, that the applicant had consented to attending a further interview.~~
~~(d) Contrary to his statement that he did not do so, the reviewer did in fact draw strongly adverse conclusions as to the following matters.~~
~~Further Particulars~~
~~(i) The reviewer’s assumption that the applicant should have “gleaned” information about family details and tribal connections from his mother despite his youth at the time that he left Iran.~~
(ii) The reviewer’s assumption that despite the applicant’s youth and psychological problems that the applicant would have thought about the reasons why families in his village other than his own, which were afflicted by poverty, may have had large families.
(iii) The reviewer relied on a supposed dichotomy between on the one hand the applicant’s evidence of what his father had been told when his father had approached the Iranian authorities to seek a “White Card” and a lack of “meaningful information ... on other circumstances surrounding the family’s legal status”, despite the fact that the father was claimed to have applied for a “White Card” when the applicant was an infant, the applicant’s youth at the time that he left Iran and his psychological difficulties.
(e) The reviewer put to the applicant at interview a fact that he had earlier conceded to be untrue, that being that the applicant had not mentioned being severely bashed by the Basij in Iran in his entry interview.
~~(f) The reviewer put country information to the applicant at interview when it is reasonable to conclude that he knew that information to be untrue.~~
~~Further Particulars~~
~~(i) That reviewer had found no information that the Iranian authorities routinely denied “white cards” to people who had held “green cards”.~~
(g) The reviewer misrepresented Ms Jolan’s psychological reports as not saying that the applicant suffers from the symptoms of his psychological problems, “continuously or evenly, or that they are such that he cannot talk about his claims for refugee status in any setting”.
~~(h) The reviewer found that section 91R(3) of the Migration Act applied to the applicant;~~
~~(i) Without considering evidence, or which he was well aware, as to the applicant’s intentions in protesting from a rooftop at the Villawood Detention Centre.~~
~~(ii) By speculating, in the complete absence of evidence, as to why the applicant did not raise that issue before it was raised by the reviewer himself.~~
4. The decision was reached by an arbitrary and capricious assessment of the evidence.
Particulars
~~(a) The reviewer’s implied conclusion that the applicant was either an Iranian national or a documented Faili Kurd was arbitrary and unreasonable in light of the reasons which were given.~~
~~(b) The applicant repeats the particulars stated in ground 3(d) above.~~
(c) The reviewer misrepresented the conclusions in Ms Jolan’s psychological reports as not saying that the applicant suffers from the symptoms of his psychological problems, ‘continuously or evenly, or that they are such that he cannot talk about his claims for refugee status in any setting’ when those reports were unequivocal in saying that he could not do so.
(d) The reviewer’s being, ‘unsettled’ by the applicant’s not having thought about why poverty had affected the size of his family but not others (which contributed to his lack of satisfaction as to the applicant’s claim to being an undocumented Faili Kurd), was arbitrary and unreasonable.
(e) It was arbitrary and unreasonable for the reviewer;
(i) To find that the applicant had little meaningful information as to ‘other circumstances surrounding his family’s legal status’.
(ii) To find that the applicant’s evidence that ‘his employer knew of his situation but could not help’ appeared brief to the point of being glib.
(iii) To be concerned about the applicant’s allegedly cursory efforts to resolve his claimed statelessness.
each of which contributed to the reviewer’s lack of satisfaction as to the applicant’s claimed undocumented status in Iran.
(f) The reviewer speculated without evidence as to why the applicant did not mention his rooftop protest until prompted to do so by the reviewer himself.”
Ground 3 was withdrawn during the hearing by counsel for the applicant.

Ground 1

Ground 1(a) alleged that the Second Reviewer erred in his interpretation and application of s.91R(3) of the Act in that the Second Reviewer considered that conduct engaged in by others publishing the applicant’s name and photograph after his rooftop protest at Villawood was conduct within s.91R(3) of the Act.
The relevant findings made by the Second Reviewer are as follows:
“123. I accept that the claimant was involved in Villawood IDC rooftop protests in April 2011. I also accept that the print and electronic media published his image, identified him by his name, age and claimed ethnicity/nationality (albeit not always accurately), and that this received widespread attention in the Australian public.
124. Section 91R(3) requires me to disregard conduct engaged in Australia, unless I am satisfied that the claimant did so otherwise than for the purpose of strengthening his claims to be a refugee.”
The second respondent there finds that the applicant was involved in the rooftop protest in April 2011. In accepting that the applicant was involved in the Villawood rooftop protests, the Second Reviewer was obliged to consider that conduct in the light of s.91R(3) of the Act. Section 91R(3) of the Act states as follows:
“(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
As is clear from the Second Reviewer’s statement above, the Second Reviewer also accepted that the publication of the applicant’s conduct identified the applicant and received widespread attention in the Australian public.
It is common ground between the parties that the migration agent’s submission, dated 6 December 2011, raised a sur place claim by the applicant as a result of the publication of the applicant’s involvement in the rooftop protest. It is also clear from the applicant’s migration agent’s submission that the applicant relied on the applicant’s participation in the rooftop protest in support of that sur place claim.

In considering the applicant’s motivation for this conduct, the applicant’s migration agent submitted that the Second Reviewer could not be satisfied that the applicant had engaged in the conduct for the sole purpose of enhancing his claim in light of his fragile mental state. However, the Second Reviewer found that there was no information before it to satisfy it that the applicant’s mental health had prevented him from forming any intention or purpose for his conduct. The Second Reviewer accepted that the applicant had a “fragile state of mind”. However, the Second Reviewer noted that he had not had “the opportunity to hear directly from the applicant as to his motivation for engaging in the rooftop protests or, the sequence of events that led to his actions, his ongoing presence on the roof, and his knowledge of how the media came to know his name, age and ethnicity/nationality”.
The Second Reviewer stated that “it would have been useful to hear from the claimant directly about these circumstances”.
The applicant submitted that there was evidence in the published reports of the rooftop protests as to the applicant’s motivation for that conduct. Those were the applicant’s desire to tell the world of his treatment and that he wanted freedom.
The Second Reviewer was not obliged to accept as evidence those reported statements allegedly made by the applicant. The Second Reviewer was entitled to place weight on the failure of the applicant to provide any direct evidence of his motivation and his failure not to attend the second hearing. Section 91R(3)(b) makes clear that it is for the applicant to satisfy the decision maker, in this case the Second Reviewer, that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.
In the circumstances, it was open to the Second Reviewer to conclude that it was not satisfied that the applicant had engaged in the rooftop conduct otherwise than for the purpose of strengthening his claim to be a refugee.
Whilst the Second Reviewer stated in its conclusion that “I find that the conduct – including its immediate consequences such as the publication of his image and personal details – falls within the scope of s.91R(3) of the Act”, the reference to the consequences of the conduct is no more than that.
Accordingly, I am satisfied that the Second Reviewer properly considered the applicant’s conduct in the rooftop protests. Properly read, the Second Reviewer’s acceptance that the protest was published does not suggest that the Second Reviewer was considering the conduct engaged in by others in publishing the applicant’s name as conduct that it was obliged to consider within s.91R(3) of the Act. The Second Reviewer was simply noting that was a consequence of the applicant’s conduct.
Accordingly, ground 1 is not made out.

Ground 2

Ground 2 makes a general contention that the applicant was denied procedural fairness. The particulars relied on are dealt with below.

Grounds 2(a), (b) and (c)

Grounds 2(a), (b) and (c) contend that the Second Reviewer should have put to the applicant at interview or in writing that the Second Reviewer had concerns about the following evidence given by the applicant:
(i) that the applicant and his mother “hoarded cash of diminishing value, over a decade or so rather than address their claimed poverty”;
(ii) that “the practical arrangements of producing the photograph for the people smuggler in Tehran who allegedly procured a photo substituted Iraqi passport; and (the applicant’s) physical appearance when departing Tehran’s international airport (and whether, for instance, this was such as to arouse suspicions on the part of the Iranian authorities”;
(iii) the applicant’s “apparent lack of having thought about or be able to comment on the link in his own family (but presumably not others) between poverty and family size”.
These particulars relate to a number of specific concerns the Second Reviewer had about the applicant’s evidence about his life in Iran including elements that related to his claimed identity as a stateless undocumented Faili Kurd. Those concerns included a concern about the applicant’s evidence at interview:
i)The source of funds that enabled the applicant to travel to Australia, in circumstances where the Second Reviewer found that the applicant did not explain why he and his mother hoarded cash of diminishing value over a decade or so rather than addressing their claimed poverty.
ii)The practical arrangements that the applicant asserted were involved in his departure from Iraq, including procuring a photo-substituted Iraqi passport. The Second Reviewer was not satisfied about the applicant’s claims about how he came to leave Iran and the evidence in respect of those arrangements.
iii)The applicant’s hometown had about 50 households, although the families were very large. The Second Reviewer noted that it invited the applicant to comment on the fact that the applicant’s family was small. The Second Reviewer noted that the applicant responded briefly and without further explanation referring to the poverty of the family.
In identifying these particular aspects of the applicant’s evidence as matters of concern to it, the Second Reviewer was doing no more than stating that it was not satisfied with the applicant’s evidence in respect of these matters.
At the conclusion of the first interview, the Second Reviewer made clear that it would be necessary for the applicant to come to a second interview for the purpose of giving further evidence. In those circumstances, it should have been obvious to the applicant that the Second Reviewer was not persuaded by the substance of his evidence. The Second Reviewer found that there were significant gaps and anomalies in the applicant’s evidence.
The Second Reviewer found that the applicant spoke “lucidly and assertively during the interview”. The Second Reviewer noted that the applicant was able to provide considerable details on some issues and to indicate clearly when he could not remember something. The Second Reviewer noted that when the applicant was asked about apparent inconsistencies, such as between statements at the current interview and statements made at earlier interviews, the applicant sometimes clarified the points and on other occasions restated his current position and “expressed frustration”.
The Second Reviewer made those findings referred to above in the light of the applicant’s claimed mental condition and the medical evidence before it.
The transcript of the interview made clear that when the applicant said he could not continue, the Second Reviewer explored those reasons with the applicant. In the course of exploring those reasons with the applicant, the applicant informed the Second Reviewer that he had stopped taking his medication and implied that the doctors did not know that he had ceased taking his medication. The Second Reviewer then had the following exchange with the applicant:
“JS        Alright, in the light of what you have said, I think we might have to adjourn for another day.
AMM     So, if it’s adjourned for another day, it’s going to be what about? Again the same things?
JS         Well, we’ve talked about some important things about, your life in Mile Maran, and your life in Illam city.
AMM     I think I have told you everything about that.
JS         I need to talk to you… there are some things that Mr Connelly talked about or that the other people have talked about that I don’t need to talk to you about… things like whether you could get Iraqi nationality, whether you could get Iranian nationality, or exactly how you travelled from Tehran to Australia.
But you see I still need to talk to you about what happened before you flew out of Tehran for instance, because I still have to, when I make my recommendation, I need to make recommendations whether I accept you are a stateless undocumented Faili Kurd, or whether for instance whether I think you may be an Iranian national.
Now the only way I can really do that it by talking to you, but we will explore other possibilities if we have to. But the best way for me and the best way for you is actually if you tell me in person, and I know that’s difficult, but that’s why if you either feel strong enough to do that today or if you can think about taking medication and doing something so that can really tell me your story.
AMM     Actually, I can’t keep on the questions any more. I know it’s your duty to ask me, but I have no answer for that, and I can’t keep. I am sure, 100% that this is my last chance, but that is my limitation.
JS         Mr Mojtahedi, are you aware of your client receiving any medical attention apart from psychologist’s report?
Agent    The only thing I know is what I was told by the psychologist – that the mental health team are aware. But again that is what I have been told, so I can’t say that for sure.
JS         [The applicant], if you feel uncomfortable thinking these things over, do you think of any way that you can think of to let me know of how you may be able to let me know about the things, for instance like the way you got on a plane to come to Australia. Do you think there’s some way of talking about that that you might be comfortable with?
AMM     Well the problem is that my mind has actually shut down. I can’t think of anything. And I can see that it’s not worth to talk any more.”
The Second Reviewer went on to make clear that the Second Reviewer did not know what the result would be at the time of the adjournment and that he would not be making a recommendation that the applicant be given a protection visa. The Second Reviewer told the applicant that it would be important for the applicant to come to a second interview. The Second Reviewer told the applicant that if he was able to discuss his concerns with the applicant then that gave the applicant the best chance of being able to persuade the Second Reviewer to recommend a protection visa.
Further, I accept the written submission of the first respondent that the Second Reviewer had specifically requested, in an email to the applicant’s migration agent dated 24 November 2011, further information relating to the funding of the applicant’s travel to Australia, including the source of funding for that travel.
As stated above, in those circumstances, it cannot come as a surprise to the applicant that the Second Reviewer was not satisfied about his claims.
It is well established that procedural fairness required the Second Reviewer to identify for the applicant any critical issue not apparent from the nature of the decision or the terms of the statutory power and to advise of any conclusion which would not obviously be open on the known material. However, the Second Reviewer was not otherwise required to expose his thought processes or provisional views for comment before making his decision (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 per the Court; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 599 per French CJ and Kiefel J).
The principles that govern the Second Reviewer’s obligation of natural justice are properly expressed in Kioa v West (1985) 159 CLR 550 (“Kioa”) at 584-585 per Mason J and at 611 per Brennan J. The Second Reviewer must exercise its statutory power fairly in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the applicant and the interests and purposes sought to be advanced by the Act (see Kioa at 584-585 per Mason J).
The Second Reviewer did no more in its decision record than to identify those aspects of the applicant’s evidence about which it was not satisfied. Those conclusions were the Second Reviewer’s assessment of the applicant’s evidence and, as such, were not information that fairness would demand the Second Reviewer put to the applicant for comment (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
It is not for the Tribunal to make out the applicant’s case for her (see Abebe v Commonwealth (1999) 197 CLR 510 at [187]). Rather, it is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that she meets the criteria for being a refugee.
In the circumstances, the findings and conclusions by the Second Reviewer were open on the evidence and material before it and for the reasons it gave.
Further, there could not have been any doubt that the applicant’s credibility of his claims was in issue and that the conclusions and findings made by the Second Reviewer arose from and were open on the applicant’s own evidence and material (see SZRER v Minister for Immigration and Citizenship [2012] FCA 887 at [25] per Robertson J).
Accordingly, grounds 2(a),(b) and (c) are not made out.

Ground 2(d)

Ground 2(d) asserts that the Second Reviewer drew adverse inferences from the applicant’s failure to elaborate on answers given at interview when he was not asked to elaborate. The particulars in support of that assertion are as follows:
(i) how the applicant reconciled poverty influencing the size of his family with larger families of others who were also poor;
(ii) the circumstances surrounding the families legal status in Iran;
(iii) that the applicant’s employer in Illam knew of the situation but could not help.
Again, in the light of the applicant’s failure to attend a further interview when it was made clear to the applicant that the Second Reviewer was not satisfied that he met the criteria for being a refugee on the evidence given to the Second Reviewer, there can be no denial of procedural fairness on the part of the Second Reviewer because he did not ask the applicant to elaborate further at the first interview.
The transcript makes clear that the applicant did not wish to explore his evidence at the first interview and failed to attend the second interview.
As stated above, it is not for the Tribunal to make out the applicant’s case for her.
Accordingly, ground 2(d) is not made out.

Grounds 2(f) and 2(g)

Grounds 2(f) and 2(g) assert that the Second Reviewer denied the applicant procedural fairness because the Second Reviewer sought the opinion of the IHMS (International Health and Mental Services Staff Pty Ltd) to the applicant’s fitness to participate in a further interview without asking IHMS whether, and if so, when, it assessed the applicant; and failed to provide IHMS with a copy of the assessment of Ms Jolan dated 26 October 2011 or a summary of the report.
In support, counsel for the applicant referred to Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 where the Full Court stated as follows:
“If the material before the Tribunal and circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding.”
A fair reading of the Second Reviewer’s decision record makes clear that it considered the information provided by Ms Jolan, the psychologist.
The Second Reviewer satisfied itself that the applicant had been provided with a meaningful invitation to give evidence and present arguments pursuant to s.425 of the Act.
The Second Reviewer made the following observations in relation to the applicant at the first interview on 21 September 2011:
“98. In relation to my observations of the claimant at interview on 21 September 2011:
▪ The claimant gave cogent, logical evidence during his discussion with me at the first interview. He responded lucidly and relevantly to many questions, although, in response to some more challenging questions, he gave vague answers and, particularly towards the latter part of the interview, voiced frustration.
▪ At the start of the interview, he reassured me that he was feeling okay, and was willing to proceed with the interview. I observed nothing to suggest that he lacked the mental capacity to participate in an interview, by understanding and responding to questions. I invited him and the agent to alert me to any concerns during the interview, including any emotional issues. Neither did so until late in the interview, when the claimant appeared to become agitated and upset, and signalled that he felt unable to continue, in part because he thought that his prospects were poor. I allowed for adjournments during the interview, and on learning that the claimant no longer wished to continue, I gave him and his agent ample opportunity to consult. I impressed on them the value in continuing the interview, as this gave him the best chance of presenting his claims, and invited them to propose how the review should proceed. Contrary to the agent’s later assertions, I did not indicate to him or the claimant that they or the psychologist Ms Jolan could determine the future conduct of the review.”
The Second Reviewer noted that he was surprised to find that, prior to the detailed submissions dated 7 November 2011, he had received few details of the consultations with Ms Jolan or her methodology and no mention of the problems of the magnitude referred to by Ms Jolan in her report dated 26 October 2011.
However, the Second Reviewer accepted Ms Jolan’s observations and conclusions as follows:
“- There are many triggers that can negatively affect the claimant’s ‘cognitive functioning and decision-making process’.
- He experiences stress if pressed to recall past events in ‘interviews or court-related matters’. This can also trigger his anger.
- Being asked too many questions can also trigger his anger.
- For instance, he often walks out of counselling sessions – Ms Jolan suggests this is ‘either due to inability to understand and respond rationally to the questions asked from those he perceives as authority’ or ‘it can be avoidance behaviour to prevent reactivation of past traumatic memories’.
- His mental processes are ‘significantly impaired and distorted’. He suffers paranoia thoughts and can experience dissociation – if placed under enormous pressure.
- She recommends that the claimant not be subjected to interviews or a court trial, as these can adversely affect both his mental state and his ‘visa status’. She goes on to comment that the claimant has an ‘inability to exert control over his executive functioning’, and this could in turn negatively affect his responses at interview and hence his eligibility for a visa.
- She concludes: ‘Overall, it is evident that [the applicant] is currently unfit to stand any types of trial’.”
The Second Reviewer accepted that the applicant suffers significant mental health problems, has ongoing feelings of helplessness, his thought processes and conduct range include paranoia, dissociation, avoidance behaviour and anger and Ms Jolan’s opinion that he is currently unfit to stand any types of trial.
However, the Second Reviewer found that Ms Jolan did not opine that the applicant suffered from these problems continuously or evenly, or were such that he could not talk about his claims for refugee status in any setting.
The Second Reviewer had the opportunity to observe the applicant at the first interview and to have detailed and lengthy exchanges with him about his evidence. The Second Reviewer did not consider that the applicant was mentally unfit to participate in any discussion with the Second Reviewer.
The Second Reviewer clearly considered the submissions provided by the applicant’s migration agent, however, proceeded to make the following findings:
“Submissions following the first interview indicated that, irrespective of my impressions when I met the claimant, his mental health had since deteriorated significantly and he was now unfit to attend. In fact, he did not wish to attend. Ms Jolan’s report was dated 26 October 2011, and I considered it wise, 2 weeks later, to obtain an update from IHMS staff on site at Villawood IDC, as to the claimant’s mental health and his capacity to participate in an interview. In light of their comment that they were not aware of any mental impairment or other health problems, and given the importance of obtaining further evidence from the claimant, I kept the offer of a resumed interview on the table, and I proceeded to Villawood IDC on that day to meet with him. On learning en route that the claimant definitely did not wish to attend, I decided not to proceed. I instead wrote to the claimant to indicate to him the topics that I considered that we had not covered at the first interview, and inviting his written submissions.”

It was open to the Second Reviewer to put such weight on the various evidence and information before it as it saw fit. In any event, it offered the applicant a second interview.
The Second Reviewer also noted that the medical reports suggested the applicant’s mental health could partly explain gaps in his evidence. However, the Second Reviewer found that the lack of peripheral, incidental and anecdotal evidence raised questions about the completeness and reliability of the applicant’s evidence. That finding was open to the Second Reviewer on the evidence and material before it and for the reasons it gave.
In relation to the second interview, the Second Reviewer stated as follows:
“114. As I flagged in my letter of 24 November 2011, there are a number of matters on which I have insufficient information to be satisfied that the claimant is a stateless, undocumented Faili Kurd who has in the past experiences serious harm at the hands of the Basij, and is at risk of future harm. I had hoped to pursue these at a resumed interview. Although the [applicant’s] letter of 6 December 2011 addresses each of these issues, for the main part it simply restates earlier positions and presents various legal and procedural arguments, rather than provide further information.”
(Emphasis added)
The Second Reviewer also had regard to the applicant’s migration agent’s complaint that the Second Reviewer offer of a resumed interview placed the applicant under pressure and that communications with the applicant were inappropriately conducted directly with the applicant rather than through the migration agent. The Second Reviewer stated as follows:
“102. The agent complained that my offer of a resumed interview placed the claimant under pressure, and that communications between IPAO staff, Villawood IDC staff and the claimant, on the morning of the scheduled interview, were inappropriately conducted directly with the claimant rather than through his office and, moreover, were misleading. I note that the IPAO’s efforts to contact the agent on the afternoon prior to the interview (after the IPAO had received IHMS’ update on the claimant’s health) were unsuccessful. There appears to be no supporting evidence for the claimant’s statement that IPAO or Villawood IDC staff lied to him about his agent’s instructions, and I have no reason to imagine why they would do so.”
The Second Reviewer’s decision to proceed to make its decision for the reasons given, including, in particular, the information before it that the applicant did not wish to attend a Second Interview, does not demonstrate a denial of procedural fairness on the part of the Second Reviewer.
Further, I accept the written submission of counsel for the first respondent that IHMS were made aware of Ms Jolan’s report and could have sought a copy if they thought it necessary and appropriate. Moreover, the Second Reviewer put the IHMS opinion in writing to the applicant and invited him to respond. The Second Reviewer was not bound to accept any response.
There is no denial fairness demonstrated by grounds 2(f) or (g).
Accordingly, ground 2 is not made out.

Ground 4

Ground 4 contends that the Second Reviewer’s decision was reached by an arbitrary and capricious assessment of the evidence.
Grounds 4(a) and (b) were not relied upon.
Ground 4(c) asserts that the Second Reviewer’s conclusion that Ms Jolan’s report did not state that the applicant suffered from his mental health symptoms continuously or evenly, or prevented him from talking about his claims in any setting, was not open to the Second Reviewer.
A fair reading of Ms Jolan’s report did not indicate that the applicant could not talk about his refugee status in any setting or that his symptoms were continuous.
In light of:
i)the Second Reviewer’s opportunity to observe the applicant at the first interview;
ii)to have had what the Second Reviewer found to be a lucid interview with the applicant for the most part; and
iii)the report of the IHMS that they were not aware of any mental impairment or other mental health problems that would prevent the applicant from giving further evidence,
it was open to the Second Reviewer to prefer that evidence to that of Ms Jolan in finding that the applicant’s mental health problems were not such that he could not talk about his claims to refugee status in any setting and were not continuous. Such a conclusion was neither arbitrary nor capricious.
Ground 4(d) asserts that the Second Reviewer’s concern about the applicant’s failure to think about why poverty had affected the size of his family but not others was arbitrary and unreasonable where that concern contributed to the Second Reviewer’s lack of satisfaction as to the applicant’s claim to be an undocumented Faili Kurd.
Again, the Second Reviewer’s concern arose from the applicant’s evidence and was open to the Second Reviewer in light of the evidence and material before it and, particularly, in light of the failure of the applicant to attend a further interview to address the Second Reviewer’s concerns.
In the circumstances, grounds 4(c) and 4(d) do not demonstrate an arbitrary or capricious assessment of the evidence.
Ground 4(e) asserts that it was arbitrary and unreasonable for the Second Reviewer to find that the applicant had little information as to other circumstances surrounding his family’s legal status; to find that the applicant’s evidence that his employer knew of his situation, but could not help, was brief to the point of being “glib”; and, to be concerned about the applicant’s alleged “cursory” efforts to resolve his claimed statelessness. The applicant contended that each of these factors contributed to the Second Reviewer’s lack of satisfaction as to the applicant’s claimed undocumented status in Iran.
These complaints appear to be no more than cavilling with the Second Reviewer’s assessment of the applicant’s evidence. All the findings referred to were open to the Second Reviewer on the evidence and material before it. The Second Reviewer was not bound to accept the evidence of the applicant uncritically (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, the complaints in ground 4(e) do no more than seek merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, none of the findings referred to in ground 4(e) are arbitrary or unreasonable.
Ground 4(f) asserts that the Second Reviewer speculated without evidence as to why the applicant did not mention his rooftop protest until prompted to do so by the Second Reviewer himself.
I understand this complaint to be a reference in the Second Reviewer’s decision to the Second Reviewer’s statement that “the reasons for the complainant’s earlier failure to mention his involvement in the Villawood protests are unclear, although it is possible that he considered that they would cast him in an unfavourable light or that there are other reasons unrelated to this application”.
As stated above, it was not until the applicant’s migration agent’s submission, dated 6 December 2011, that the applicant raised for the first time his involvement in the rooftop protests as relevant to his claims. On the evidence and material before it, it was open to the Second Reviewer to find that the reasons for the applicant’s earlier failure to mention his involvement in the Villawood protests to be unclear. It may have been unnecessary for the Second Reviewer to proceed to speculate. However, the speculation was not such as to demonstrate jurisdictional error. It was neither illogical, nor irrational for the Second Reviewer to make such comments in the circumstances.
It is clear that the Second Reviewer was aware that what was relevant from the applicant’s new reliance on his rooftop conduct gave rise to an obligation on the part of the Second Reviewer to consider that conduct in the light of s.91R(3) of the Act. This it did according to law.
Accordingly, ground 4 is not made out.

Conclusion

A fair reading of the Second Reviewer’s decision record makes clear that the Second Reviewer understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Second Reviewer put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Second Reviewer also had regard to the various written submissions provided by the applicant’s migration agent. The Second Reviewer put to the applicant independent country information before it and invited the applicant to comment upon it. The Second Reviewer invited the applicant to a second interview to further explore the Second Reviewer’s concerns about the applicant’s evidence and had regard to the applicant’s mental health problems in making its recommendation. The Second Reviewer made findings based on the evidence and material before it. Those findings of fact were open to the Second Reviewer on the evidence and material before it and for the reasons it gave. A fair reading of the Second Reviewer’s decision record makes clear that the Second Reviewer reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Second Reviewer’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 4 December 2012