SZRMA v Minister for Immigration
[2012] FMCA 949
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRMA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 949 |
| MIGRATION – Review of report and recommendation of Independent Merits Reviewer in respect of the claims of an offshore entry person – whether the process followed by the Reviewer was procedurally fair – whether the Reviewer failed to make necessary findings and whether the Reviewer overlooked part of the applicant’s claims and relevant material considered. |
| Migration Act 1958 (Cth), s.427 |
| Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 SZJTQ v Minister for Immigration(2008) 172 FCR 563 SZMYO vMinister for Immigration & Anor [2010] FMCA 963 SZQNF v Minister for Immigration & Anor [2011] FMCA 965 |
| Applicant: | SZRMA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1065 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 16 October 2012 |
| Date of Last Submission: | 19 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Russell, SC |
| Solicitors for the Applicant: | Baker & McKenzie |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court declares that the report and recommendation of the second respondent dated 30 January 2012 was not made in accordance with law.
The first respondent is restrained, by himself or by his Department, officers, delegates or agents from relying upon the report and recommendation of the second respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1065 of 2012
| SZRMA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| STEVE KARAS IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to restrain the first respondent (the Minister) from relying upon a report and recommendation of the second respondent (the Reviewer). The Reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a stateless Faili Kurd from Iran. He arrived in Australia by boat at Christmas Island on 8 October 2010[1]. On arrival the applicant became a “offshore entry person” for the purposes of the Migration Act 1958 (Cth) (Migration Act) which meant that he was prevented from applying for any form of visa without the consent of the Minister. The applicant was initially interviewed on 18 October 2010. There is a sound recording of that interview available but the audio quality of the recording was too poor to permit a transcript of it to be prepared[2].
[1] court book (CB) 93
[2] Affidavit of Sue Archer made on 22 August 2012 at [5]
A written record was made in relation to answers given by the applicant in the entry interview[3].
[3] CB 1-28
At the interview on 18 October 2010, the applicant was asked[4]:
[4] CB 18, 27
Do you have any reasons for not wishing to return to your country of nationality (residence)?
I feel sad to go back to my country.
Why? Is misery is unexplainable.
Q. What will happen if you go back?
A. Government will take to jail or something else I don’t know.
Q. How do you know the government will take to jail?
A. I don’t what will happen to me. 1st I came illegally, second things are not good in Iran specially for Iraqi people they living in Iran. The government [throw] us to jail, torturing us and the government [throw] the body from over the bridge. This is a daily basis happening in the area I live.
The last one if I go back may be it is death penalty for me.
Q. Any other reason?
The government can make a thick folder about me. The government will add more story about me.
I have nothing to add.
The applicant made a written statement on 8 December 2012 of 11 paragraphs. He said he feared returning to Iran because he had no documents and no right to return[5]. He believed that if he returned to Iran they would not let him in[6]. He said that the authorities would not accept him back into the country and that he left the country illegally with a fake passport[7]. He said that the authorities do not want him in the country because he is a Faili Kurd of Iraqi origin[8].
[5] CB 47.3
[6] CB 47.6
[7] CB 47.9
[8] CB 48.1
On 18 December 2010, the applicant made a request for a refugee status assessment (RSA) and was interviewed on 21 December 2010 (RSA interview).
At the RSA interview on 21 December 2010 (which has been transcribed[9]), on the question of being returned to Iran, the applicant said the following:
a)“I got out of the country illegally with Iraqi passport, so they would not accept me because I’m Kurd Faili and they wouldn’t want me to go back”[10];
b)“They will not allow me in. Because I got out of Iran illegally they will put me in jail if they accept me. And they kind of think that I came to other countries and I told bad things about Iran and they make a file for me and they will rule against me… and put me in their jails”[11].
[9] Affidavit of Sue Archer sworn 22 August 2012, exhibit SA-1, pages 1-16
[10] Page 12/22-24
[11] Page 12/47-13/9
The Refugee Status Assessment record[12] made the following findings in favour of the applicant:
a)the applicant’s identity was as stated[13];
b)the applicant is stateless[14];
c)the applicant does not have effective protection in a third country[15];
d)any harm the applicant suffers as a result of being a Faili Kurd does have a Convention nexus and thus the Convention ground of race is the essential and significant reason for the harm feared[16];
e)the harm feared involves serious harm and systematic and discriminatory conduct which amounts to persecution[17];
f)the applicant was a generally credible witness[18].
[12] commencing at CB 92
[13] CB 95.7
[14] CB 96.4
[15] CB 98.2
[16] CB 98.7
[17] CB 98.9
[18] CB 99.3
The RSA officer nevertheless was not satisfied that the applicant had a real chance of being subjected to harm amounting to persecution on account of his membership of a particular social group or any other Convention-related reason, in the reasonably foreseeable future if he were to return to Iran[19].
[19] CB 103.9
On 17 March 2011 the applicant requested an Independent Merits Review (IMR)[20].
[20] CB 105
On 20 May 2011 the applicant’s agent made a written submission for the IMR[21].
[21] CB 109-126
On the topic of fear of persecution on the grounds of returning to Iran as a failed asylum seeker, the submission for the applicant covered the following:
a)as a stateless Faili Kurd the applicant had no right to enter Iran. If he was forced to return he feared to be arrested, interrogated and charged for leaving Iran illegally[22];
[22] CB 111.9
b)there is a real chance that the applicant will face arrest, detention, torture and disappearance perpetrated by the State. In the experience of Australian Migration Options (the agent for the applicant), Iranian citizens deported from Australia in 2002 were handed over to the Iranian authorities on arrival in Tehran and detained and tortured. One individual escaped after a year, reached Malaysia, was assessed to be a refugee and was re-settled in Australia[23];
c)direct accounts of persecution have been document in “A Well-Founded Fear” and “Deported to Danger II: The Continuing Study of Australia’s Treatment of Rejected Asylum Seekers” produced by the Edmund Rice Centre for Justice and Community, “Following Them Home, The Fate of the Returned Asylum Seekers” and other reliable sources[24];
d)in October 2010 the Refugee Review Tribunal decided that failed asylum seekers returning from Australia face a real chance of being persecuted upon their return, referring to the current political climate and the deteriorating human rights situation in Iran[25];
e)the Tribunal in that decision said[26]:
Furthermore it is certain that at least some returnees from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, ranging from monitoring, interrogation and detention. There are reliable reports that some returnees from Canada have been physically harmed and there is at least one report of a returnee dying following physical harm upon return. It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto Iranian authorities. It is also likely that these details will be known to Iranian Immigration Security Officials at IMAM Khomeini International Airport in Tehran, the main international gateway into Iran.
f)the Tribunal also said[27]:
However, country information indicates that following Ahmadinejad’s election in 2005 and particularly since the last election in June 2009 the applicant would face a greater chance of persecution on the basis of anti-government opinion imputed from an attempt to seek asylum.
[23] CB 120.3
[24] CB 120.5
[25] CB 121.5
[26] CB 121.6
[27] CB 122.1
There was an interview with the Reviewer on 31 October 2011. The interview has been transcribed[28]. On the topic of being returned to Iran the applicant said:
a)that while the applicant used to have a White Card, it was not renewed, and as he didn’t get it renewed he couldn’t get another one[29];
b)after the applicant’s agent raised that the Reviewer had not asked the applicant any questions about return and the fact that he left Iran on an illegal passport[30] the applicant said that he did not have a document to prove that he is Iranian and that departing with a forged passport attracts fines and imprisonment. He also said that the things that he had said about the government would actually cause him to get harsh punishment. The Reviewer assured the applicant that everything said was confidential and that the Iranians would not be told what he had said.
[28] Pages 17-47 of the exhibit to the affidavit of Sue Archer
[29] Pages 23/25-24/8
[30] CB 46/10
The applicant’s agent asked to provide a post hearing submission on the return of people who had sought asylum in Australia.
On 30 January 2012, the Reviewer recommended (the recommendation) to the Minister that the applicant not be recognised as a person to whom Australia owes protection obligations under the Refugees Convention (the Convention)[31]. The Reviewer’s recommendation and report (the report) were communicated to the applicant on 31 January 2012[32].
[31] CB 154-171
[32] CB 152-153
Notwithstanding that the applicant was born in Iran, he is not an Iranian citizen. Further, although the applicant’s parents were born in Iraq, there is no evidence the applicant had been, or would be, granted Iraqi citizenship[33]. Given that the applicant was born in Iran and had lived there all his life prior to his arrival in Australia, the Reviewer assessed his claim for protection against Iran as his country of habitual residence[34].
[33] CB 162 [33]
[34] CB 162 [33]
The applicant claimed that he had a well-founded fear that, should he be required to return to Iran, he would suffer persecution owing to his ethnicity (as a Faili Kurd), his status as a stateless person and his status as a returned (failed) asylum seeker.
Each of the applicant’s claims was rejected by the Reviewer. The Reviewer acknowledged that owing to his ethnicity and stateless status, the applicant might be affected in part by incidents of some discrimination and hardship but concluded that such discrimination and hardship did not amount separately or cumulatively to a well-founded fear of persecution for a Convention reason[35]. The Reviewer also rejected the applicant’s claim that he was at risk of persecution owing to his status as a returned asylum seeker[36]. Accordingly, the Reviewer found that the applicant was not a person to whom Australia owes protection obligations under the Convention and made the recommendation to the Minister to that effect[37].
[35] CB 169 [60]
[36] CB 169-170 [61]-62]
[37] CB 170-171 [63]-[65]
The judicial review application
These proceedings began with a judicial review application filed on 16 May 2012. I gave leave for the applicant to rely upon an amended application filed in court on 16 October 2012. The grounds in that application are:
Ground 1
1. The IMR failed to take into account a relevant consideration, and failed to consider an integer of the applicant’s case, and/or constructively failed to exercise his jurisdiction, when he failed to consider whether or not the applicant had a well-founded fear of persecution on account of his status as a failed asylum seeker.
2. The IMR failed to take into account a relevant consideration, and failed to consider an integer of the applicant’s case, and/or constructively failed to exercise his jurisdiction, when he failed to consider whether or not the applicant had a well-founded fear of persecution on account of his status as a Faili Kurd who no longer had a White Card, and who could not obtain another White Card.
Ground 2
3. The IMR asked himself the wrong question, and constructively failed to exercise his jurisdiction, and/or misunderstood the nature of his task, when he considered that the applicant was not a person to whom the opinion of opposition to the Iranian regime would be imputed if he were returned to Iran as a failed asylum seeker.
Ground 3
4. The IMR failed to take into account a relevant consideration, failed to make requisite findings of fact, failed to take into account an integer of the applicant’s claim, and /or failed to exercise his jurisdiction in failing to identify precisely the nature and scope of harm which the applicant was at risk of, and failing to consider whether the applicant was at risk of harm from the Iranian regime.
Ground 4
5. The IMR denied procedural fairness or failed to apply correct legal principle in that he failed to deal with a claim made by the applicant.
Particulars
(a) The applicant made a claim that he was at risk of being jailed if he returned to Iran because he:
(i)travelled to Australia on a false passport;
(ii) does not have citizenship in any country;
(iii) does not have any documents, in particular a White Card;
(iv) could not obtain a further White card;
(v) is a Faili Kurd;
(vi) came to Australia illegally to seek asylum so the authorities will think that he is against their government and/or is a spy.
(b) At the IMR interview, the applicant re-stated his claims that he fears returning to Iran because he does not have documents and it is possible that authorities will target the applicant and he could be killed as a spy returning to Iran from a western country;
(c) The IMR accepted that the applicant had left Iran illegally and relied on country information that indicated that people who depart from Iran illegally could face prison sentences and/or fines and may be at risk if they had attracted adverse attention of the authorities for another reason;
(d) The IMR did not make any explicit findings on the integers of the applicant’s claims that he would be persecuted because he was a failed asylum seeker and therefore imputed with a political opinion of being against the government or a spy and/or he does not have documents and/or being a Faili Kurd;
(e) Further, or alternatively, the IMR failed to make findings on what will happen to the applicant when arriving in Iran without valid travel documentation and without the ability to obtain fresh documents and as a failed asylum seeker;
(f) Further, or alternatively, on the ‘if I am wrong’ test, since the applicant is a Faili Kurd then the IMR’s own country information indicates that a Faili Kurd who leaves Iran without valid travel documentation has not right of return. The IMR failed to make findings on what will happen to the applicant when arriving in Iran as a Faili Kurd who left Iran without valid travel documentation;
(g) Further, or alternatively, on the ‘if I am wrong’ test, the IMR failed to deal with the applicant’s claim that as a Faili Kurd, he would be denied State protection in Iran.
Ground 5
6. The IMR failed to afford the applicant procedural fairness in that he:
(a) relied on certain adverse independent country information, namely:
(i) a Danish Immigration Service Report dated April 2009: CB 170[61];
(ii) Refugee Review Tribunal’s Country Advice from Iran (9 August 2010): CB 170[62];
(iii) UK Home Office’s ‘Country of Origin Report’ dated June 2011: CB 170 [62],
in finding that the applicant does not have a well-founded fear of persecution in Iran or that he would suffer persecution at the hands of the Iranian authorities and their supporters owing to his status as a failed asylum seeker returning from a Western country: CB: 169-170 [61]-[63]; and
[(b)] failed to draw the substance of this material to the attention of the applicant or his agent, or invite them to comment upon it.
Ground 6
7. The IMR failed to afford the applicant procedural fairness in that, on the issue of whether the applicant has a well-founded fear that he would suffer persecution in Iran owing to his status as a failed asylum seeker returning from a Western country, he failed to consider relevant material, namely:
(a) the Country Guidance Note for Iran which was current at the time of the IMR, being a document from the Department of Immigration and Citizenship issued on 11 July 2011 entitled ‘Country Guidance Note Iran 2011;
(b) the contents of an opinion piece written by the First Respondent and published in the Sydney Morning Herald on 17 September 2011 entitled ‘Humane Reasons for Processing Asylum Seekers Offshore’
(c) material provided by the applicant’s agent.
Particulars of the material referred to in 7(c)
(i) As a stateless Faili Kurd the applicant has no right to re-enter Iran. If he was forced to return he feared to be arrested, interrogated and charged for leaving Iran illegally: CB 111.9.
(ii) There is a real chance that the applicant will face arrest, detention, torture and disappearance perpetrated by the State. In the experience of the applicant’s agent, Australian Migration Options, Iranian citizens deported from Australia in 2002 were handed over to Iranian authorities on arrival in Tehran and detained and tortured. One individual escaped after a year, reached Malaysia, was assessed to be a refugee and was resettled in Australia: CB 120.3.
(iii) Direct accounts of persecution have been documented in ‘A Well-Founded Fear’ and ‘Deported to Danger II: The Continuing Study of Australia’s treatment of Rejected Asylum Seekers’ produced by the Edmund Rice Centre for Justice and Community, ‘Following Them Home, The Fate of the Returned Asylum Seekers’ and other reliable sources: CB 120.5.
(iv) In October 2010 the Refugee Review Tribunal decided that failed asylum seekers returning from Australia are facing a real chance of being persecuted upon their return, referring to the current political climate and the deteriorating human rights situation in Iran: CB 121.5.
(v) The Tribunal in that judgment said:
‘Furthermore it is certain that at least some returnees from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, ranging from monitoring, interrogation and detention. There are reliable reports that some returnees from Canada have been physically harmed and there is at least one report of a returnee dying following physical harm upon return. It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto Iranian authorities. It is also likely that these details will be known to Iranian Immigration Security Officials at IMAM Khomeini International Airport in Tehran, the main international gateway into Iran’: CB 121.6.
(vi) the Tribunal also said:
‘However, country information indicates that following Ahmadinejad’s election in 2005 and particularly since the last election in June 2009 the applicant would face a greater chance of persecution on the basis of anti-government opinion imputed from an attempt to seek asylum’: CB 122.1.
I received as evidence the court book filed on 18 June 2012 and the affidavit of Sue Archer made on 22 August 2012 to which are annexed transcripts of interviews conducted with the applicant on 21 December 2010 (by the RSA officer) and on 31 October 2011 (by the Reviewer).
I gave leave for the filing of additional evidence in relation to the additional grounds introduced by the amended application. I have before me the affidavit of Matthew Alderton made on 29 October 2012, filed pursuant to that leave.
I also received the following exhibits:
·R1 – Country of Origin Information Report, Iran, 31 August 2010, UK Border Agency
The applicant contends that there were a number of flaws in the review constituting reviewable legal error. In particular, the applicant submits that the review was procedurally unfair because the Reviewer did not put to the applicant or his representative country information relied upon by the Reviewer in preparing his adverse report. The applicant further submits that the Reviewer failed to have regard to a “country guidance note Iran 2011” prepared by the Minister’s Department and issued on 11 July 2011. Further, the applicant contends that information before the Reviewer should have included an article by the Minister and published in the Sydney Morning Herald newspaper on 17 September 2011.
In addition, the applicant contends that the Reviewer erred in various ways in failing to consider the risk faced by the applicant in Iran as a failed asylum seeker and an undocumented Faili Kurd.
The Minister denies that the Reviewer fell into error in any of the asserted respects.
In a reply filed on 19 October 2012, the applicant raises a further allegation that the Reviewer misunderstood and misused country information published by the Danish Immigration Service and relied upon by the Reviewer.
Consideration
Except in relation to grounds 1(2) and 6, I accept the Minister’s submissions.
Ground 1(1) - Failure to deal with a claim
The applicant claims that the Reviewer failed to consider one of the applicant’s claims, namely, that the applicant possessed a well-founded fear that he would suffer persecution owing to his status as a returned (failed) asylum seeker should he be required to return to Iran.
This contention is not correct. The issue was dealt with by the Reviewer at [61]-[63][38] of his report.
[38] CB 169-170
Ground 1(2) - Failure to deal with a claim
In this sub-ground, the applicant claims that the Reviewer failed to consider another of the applicant’s claims, namely, that the applicant feared persecution on account of his status as a Faili Kurd who no longer had a White Card and who could not obtain another White Card.
I accept that the Reviewer was required to consider all the claims made by the applicant that were sufficiently raised on the material before the Reviewer, although such a claim will not depend for its exposure on constructive or creative activity by the Reviewer[39]. A conclusion that a decision-maker has failed to consider a claim not expressly advanced is not to be made lightly[40]. The claim must emerge clearly from the materials before the Reviewer[41] and the mere recitation of a list of attributes relevant to the applicant does not establish that the Reviewer was obliged to consider whether the applicant had claimed membership of a particular “social group” defined by reference to those attributes[42].
[39] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [58]
[40] NABE at [68]
[41] NABE at [68]
[42] SZQIL v Minister for Immigration [2012] FMCA 109 at [64] per Barnes FM
The applicant did not expressly raise the issue of the expiration of his White Card as a basis of a fear of persecution; rather, the fear of persecution was said to arise from his status as a stateless Faili Kurd, a matter that was dealt with by the Reviewer. This alleged claim was not referred to in the submission filed on behalf of the applicant[43] but it was raised by the applicant during the course of the IMR interview[44].
[43] CB 130-147
[44] Affidavit of Sue Archer at pages 22-24
In essence, the applicant was asserting before the Reviewer that he had become an undocumented Faili Kurd and he would be exposed to a greater risk of harm in Iran, because he no longer had a “Green Card” identity document and his White Card had expired and he could not obtain another one.
Given that facts supportive of this particular claim had been raised by the applicant it did squarely arise on the material before the Reviewer. I conclude that the Reviewer erred in failing to consider it. This ground of review therefore succeeds.
Ground 2 - Failure to identify the scope of the harm
In this ground of review, the applicant claims that the Reviewer erred when he found that the applicant was not a person to whom the opinion of opposition to the Iranian regime would be imputed if he were returned to Iran as a failed asylum seeker. Although the applicant states that the Reviewer fell into error in making this finding, the applicant does not identify with any particularity the fault in the Reviewer’s approach.
The Reviewer’s finding that the applicant was not a person to whom the opinion of opposition to the Iranian regime would be imputed if he were returned to Iran as a failed asylum seeker was open to the Reviewer, regardless of the merits of that finding. At [62] of his report[45], the Reviewer referred to a number of pieces of “country information” and concluded that, contrary to what was contended by the applicant, those references do not establish that the applicant would be imputed with an anti-government opinion if he returned to Iran as a failed asylum seeker. The Reviewer noted that, unlike the persons referred to in the country information to which the Reviewer referred, there was no evidence that the applicant was wanted by the Iranian authorities for criminal offences and there was no evidence that the applicant had attended demonstrations, had involved himself in political activities or was associated with any Kurdish organisations in Iran[46]. Further, the Reviewer referred to the fact that there was nothing to suggest that the Iranian authorities would even be informed that the applicant had claimed asylum in Australia[47]. This ground fails.
[45] CB 170
[46] CB 170 [62]
[47] CB 170 [62]
Ground 3 - Failure to identify the scope of the harm
In this ground, the applicant contends that the Reviewer made a legal error in that he failed to identify precisely the nature and scope of harm that the applicant was at risk of, and failed to consider whether the applicant was at risk of harm from the Iranian regime.
It is clear from the Reviewer’s report that the Reviewer was aware of the correct question to be asked when determining whether a recommendation should be made to the Minister that the applicant be recognised as a person to whom Australia owes obligations under the Convention[48]. In particular, the Reviewer was aware of what is meant by the term “persecution” in this field of discourse and was aware of the degree of harm that is required to constitute persecution[49].
[48] CB 167-168 [53]-[56]
[49] CB 167-168 [54]-[56]; CB 169 [58]-[59]
Having correctly outlined what is meant by “persecution” in this particular context, the Reviewer went on to consider, and reject, each of the applicant’s claims that were said to give rise to a well-founded fear of “persecution” for a Convention reason. The Reviewer specifically acknowledged that the applicant may be “affected in part by incidents of some discrimination and hardships, but this does not amount separately or cumulatively to a well-founded fear of persecution for a Convention reason”[50]. The Reviewer also rejected the applicant’s claim that he would be at risk as a result of his status as a returned asylum-seeker[51] or that he would be targeted and possibly killed as a spy[52]. It is not a fair reading of the Reviewer’s report to suggest that, in rejecting each of the applicant’s claims that were said to give rise to a well-founded fear of persecution for a Convention reason, the Reviewer had misunderstood or forgotten the meaning of “persecution” that the Reviewer himself had correctly outlined a few paragraphs earlier in his report.
[50] CB 169 [60]
[51] CB 170 [61]
[52] CB 170 [62]
This ground of review therefore fails.
Ground 4 - Failure to deal with a claim
In this ground of review, the applicant alleges that the Reviewer failed to deal with certain claims made by the applicant. It appears that this ground contains four distinct limbs, set out in particulars (d)–(g), which, in any event, substantially replicate some of the applicant’s earlier complaints regarding the Reviewer’s findings of fact.
First limb - particular (d)
By the first limb, the applicant contends that the Reviewer failed to make certain “findings on the integers of the applicant’s claims”. This contention, however, is incorrect. As I have already found, on a fair reading of the report, the Reviewer rejected the claims made by the applicant that he would be persecuted on his return to Iran on the basis that the applicant:
a)would be a returned asylum seeker and therefore would be imputed with an anti-government political opinion or be considered a spy[53];
b)left Iran illegally[54]; and/or
c)is a Faili Kurd[55].
[53] CB 170 [62]
[54] CB 170 [61]
[55] CB 169 [60]
Second limb - particular (e)
In this limb the applicant alleges that the Reviewer failed to make findings about what would happen to the applicant upon his return to Iran, bearing in mind that the applicant would be a returned asylum seeker and would not have travel documents and would not be able to obtain any. Again, it is clear from the report that the Reviewer rejected the applicant’s claim that he would suffer persecution on account of being a returned asylum seeker or as a result of the fact that he may have had left Iran illegally[56].
[56] CB 170 [61]-[62]
Third limb - particular (f)
By this limb, the applicant contends that the Reviewer failed to make a finding as to what would happen to the applicant upon his return, bearing in mind the applicant’s status as a Faili Kurd who left Iran without valid travel documentation. Again, contrary to what the applicant suggests, on a fair reading of the report it is clear that the Reviewer formed the view that the applicant would not suffer any persecution as a result of the fact that he may have left Iran illegally[57].
[57] CB 169-170 [61]
Fourth limb - particular (h)
By this limb, the applicant alleges that the Reviewer failed to deal with the applicant’s claim that, as a Faili Kurd, he would be denied state protection. This claim was not made by the applicant and, in any event, could not have arisen given the Reviewer’s rejection of the applicant’s claims that were said to give rise to a well-founded fear of persecution on the basis of his status as a Faili Kurd[58].
[58] CB 169 [60]
Ground 5: Denial of procedural fairness
By this ground, the applicant alleges that the Reviewer denied him procedural fairness given that the Reviewer relied upon information contained in three separate documents, namely:
a)a report entitled “Danish Immigration Service Report dated April 2009” (the Danish Report);
b)a document entitled “Refugee Review Tribunal Country Advice for Iran dated 9 August 2012” (the RRT Advice); and
c)a report entitled “UK Home Office Country of Origin Report dated June 2011” (the UK Home Office Report)
in circumstances where relevant information in each document was not put to the applicant for his comment or consideration.
Before considering the information in each of the documents referred to in the preceding paragraph, and the use to which such information was put by the Reviewer, it is necessary to briefly set out the principles governing procedural fairness and how they apply in circumstances involving “country information”, that is, information this is not specifically about the applicant but concerns a class of persons of which the applicant is a member.
It is uncontroversial that procedural fairness requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with adverse information that is “credible, relevant and significant” to the decision to be made[59]. As Rares and Jagot JJ recently stated in Minister for Immigration v SZQHH[60] at [27]:
An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision … If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source. (emphasis added, sources omitted)
and later (at [31):
…. the substance of such information is, generally, distinct from the particular mode or source of its expression, which could be in a book, a news or journal article, or in an audio or audio visual form, such as a radio or television program, or in a number of those. In general, the decision-maker need not disclose more than the substance of the information, however it has been conveyed to him or her.
[59] Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 at [15]
[60] (2012) 200 FCR 223
The requirement that a person affected by the exercise of power be informed of the substance of adverse information that is “credible, relevant and significant” is further qualified by the fact that such requirement only applies to information “of which the applicant was not already on notice”[61].
[61] SZQHH at [30]
Not every citation of new country information by a decision-maker in his or her reasons (in circumstances where such information had not been given to or raised with the applicant) will entail a denial of procedural fairness. The particular information, the way it relates to the claims made by the applicant and the use to which such information was put by the Reviewer must be examined closely[62]. The requirement that a decision-maker put to an applicant the substance of all pieces of general country information, even where such information is adverse to the applicant’s claims, does not arise in relation to all pieces of country information that might be considered by the decision-maker. As Smith FM said in SZQNF v Minister for Immigration & Anor[63] at [55]:
Where a ‘new’ source or commentary on country information only appears to add to a general body of information which is known to an applicant and his advisors, and where the new source appears to be generally available to refugee claimants and their advisors, there is no obvious inference that they have suffered a practical injustice if the decision-maker adds the new source to his general background knowledge without inviting further submissions. Where the court is not satisfied from the nature and contents of the new document or information that it was unknown by the applicant and his migration agents, or that it could carry any significant adverse potential, or that material injustice might have resulted from the absence of an invitation to comment upon it, then an applicant may need to present evidence from himself and his professional advisors, deposing to their ignorance of the previously uncited information and how they would have attempted to rebut any potentially adverse effects contained in it.
[62] SZQHC v Minister for Immigration [2011] FMCA 851 at [31]
[63] [2011] FMCA 965
The allegation that the applicant was denied procedural fairness in the manner described must be considered in light of the above principles.
Particular 6(a)(iii) - Information in the UK Home Office Report
The applicant complains that he was denied procedural fairness given that the Reviewer failed to draw the substance of certain information in the UK Home Office Report (the Home Office Information) to the applicant’s attention and invite him to comment upon it.
However, as revealed at [62] of the report[64], the Home Office Information that was referred to by the Reviewer in that paragraph was not adverse to the applicant’s claim. The Home Office Information was neutral in nature. It simply pointed to the treatment meted out to two individuals with political profiles upon their return to Iran. It did not speak against the claims made by the applicant that he feared that he would be persecuted as a failed asylum-seeker if he returned to Iran. Given that the Home Office Information was not adverse to the applicant’s claim, the Reviewer did not deny the applicant procedural fairness by failing to put the substance of the Home Office Information to the applicant for his consideration and comment.
[64] CB 170
Particular 6(a)(ii) - Information in the RRT Advice
The second limb of the applicant’s complaint is that he was denied procedural fairness because the Reviewer failed to draw the substance of certain information in the RRT Advice to the applicant’s attention and failed to invite him to comment upon it.
Much like the information in the UK Home Office Report that was recorded by the Reviewer in his report, the information in the RRT Advice was not adverse to the applicant’s claim. The gist of the information in the RRT Advice, to which reference was made by the Reviewer in paragraph [62] of the report[65] was that it was not known whether failed asylum-seekers would be imputed with an anti-government political opinion upon their return to Iran (the RRT Information).
[65] CB 170
Given the ambivalence of the RRT Information, and given that it was not adverse to the applicant’s claim that he feared that he would be persecuted as a failed asylum-seeker if he returned to Iran, the Reviewer did not deny the applicant procedural fairness by failing to put the substance of the RRT Information to the applicant for his consideration and comment.
Particular 6(a)(i) - Information in the Danish Report
At [61] of the report[66], the Reviewer stated that:
[t]he oft referred to and reported Danish Immigration Service Reported dated April 2009 noted that a person who has left Iran illegally and who is not registered on the list of people, who cannot leave Iran, will not face problems with the authorities upon return, though the person may be fined.[67]
[66] CB 170
[67] this information is hereafter referred to as the Danish Information
The applicant’s complaint concerns the Reviewer’s reliance on the Danish Information[68] in circumstances where the Reviewer had failed to draw the substance of the Danish Information to the applicant’s attention for his consideration and comment.
[68] CB 170 [61]
The Minister accepts that the Danish Information referred to by the Reviewer in [61] of the report was adverse to the applicant’s claim given that it contradicted the applicant’s contention that he would be persecuted as a returned asylum-seeker, notwithstanding that he did not have a political profile.
However, the fact that the Danish Information was adverse to the applicant’s claim is not the end of the matter. To start with, the “substance” of the Danish Information can hardly be considered “novel”; indeed, the Reviewer himself stated that the Danish Report, which contains the Danish Information, was “oft referred to and reported”[69]. The applicant has not put forward anything to counter the suggestion that the Danish Information was generally available to the applicant and his agent or to counter the suggestion that the Danish Information “only appears to add to a general body of information which is known to an applicant”[70].
[69] CB 170 [61]
[70] SZQNF at [55]
Further, the evidence not only establishes that the Danish Information had acquired a level of notoriety, it also strongly suggests (in the absence of any contrary evidence adduced by the applicant) that the applicant or his agent were actually aware of the substance of the Danish Information. That such a conclusion should be drawn by the Court is evident from the following matters:
a)One of the documents before the RSA officer[71] was a document entitled “UK Home Office, Country of Information Report Iran – 31 August 2010”, extracts of which were tendered at the hearing on 16 October 2012 and marked as Exhibit “R1”. The Danish Information was cited at paragraph 31.21 (pages 219-220) of Exhibit R1 as follows:
[71] CB 94
The Danish Immigration Service’s report also commented on illegal exit from Iran:
“The sources were consulted on the matter of return to Iran of Iranians who have left the country illegally. Mirfakhar informed that a person who has left Iran illegally and who is not registered on the list of people, who cannot leave Iran, will not face problems with the authorities upon return, though the person may be fined;”
b)Later, on 14 May 2011, the applicant’s agent filed a written submission on behalf of the applicant[72]. In this submission, the agent squarely asserts that the applicant would “undoubtedly come to the adverse attention of the authorities upon his return”[73]. It is implausible to suggest that the applicant and his agent were unaware of the substance of the Danish Information in circumstances where the agent has squarely contended that the applicant will come to the adverse attention of the authorities upon his return to Iran, and will hence face a risk of persecution, on account of his status as an asylum-seeker; and
c)In the agent’s submission, attention is also drawn to a decision of the Refugee Review Tribunal bearing the medium neutral citation [2010] RRTA 912[74]. As Mr Alderton deposes in his affidavit, parts of the Danish Report are extracted in [141] of this decision of the Refugee Review Tribunal. A link to an internet site where a complete copy of the Danish Report could be found is also provided at [141]. Mr Alderton has also annexed a copy of the Danish Report (including page 36 of the Danish Report, which sets out the Danish Information) that he printed out after going to the relevant internet site. Again, it is highly improbable that the applicant was unaware of the substance of the Danish Information in circumstances where the Danish Report, which contains the Danish Information, is cited (and indeed is made available) in a decision of the Refugee Review Tribunal that is itself relied upon by the applicant in his own submission.
[72] CB 130-147
[73] CB 141
[74] CB 143, fn 10
In light of the circumstances, the applicant’s failure to adduce any evidence deposing to his or his agent’s ignorance of the Danish Information and how they would have attempted to rebut any potentially adverse effects contained in it, leads to the conclusion that the Reviewer did not deny the applicant procedural fairness in the way in which he dealt with the Danish Information. It is trite that the concern of the rules of procedural fairness is the avoidance of practical injustice[75] and the applicant has been unable to point to any practical injustice in the present circumstances.
[75] Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ
An unexpected use of the Danish Information by the Reviewer?
A further point should be noted. At the hearing of the matter on 16 October 2012, I enquired whether the rules of procedural fairness required the Reviewer to put to the applicant the fact that the Danish Information might be used to contradict the applicant’s claim[76] that the Iranian authorities might not permit the applicant to re-enter Iran if the applicant attempted to do so.
[76] CB 47 [9]
The authorities on this issue make it clear that where an applicant is aware of certain material (in this case the Danish Information), the decision-maker is only required to advise of any adverse conclusion that might be arrived at that would not obviously be open on such material[77]. A decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question[78].
[77] SZBEL v Minister for Immigration [2006] HCA 63 at [29], referring to the well-known formulation in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 59
[78] SZBEL at [29]
There can be no suggestion that it was not open for the Reviewer to use the Danish Information to consider the claim made by the applicant that he would not be permitted to re-enter Iran if he attempted to do so. There is a question, however, whether the Danish information supports a contrary conclusion. The gist of the Danish Information is that individuals who left Iran illegally but are not otherwise known to the authorities will not face problems with the authorities upon return. The Minister submits that this suggests that not only would a person be permitted to re-enter Iran, but also that such a person would not be the subject of, or subjected to, investigation and interrogation. The Minister submits that it would be a tenuous reading of the Danish Information to suggest that a denial of re-entry into Iran would not fall within the description of a “problem” that a person would face with the authorities upon returning to Iran having previously left illegally.
In my view the Minister’s submission is academic as the Reviewer appears to have accepted at [61] of his report that the applicant, if an unregistered refugee who had been living in Iran but who had left the country, would not be permitted to return. The Danish information does not contradict information from DFAT referred to by the Reviewer as the Danish information refers to a different class of persons than unregistered refugees.
I accept that the applicant can be taken to have been aware of the substance of the Danish Information. The use made of it by the Reviewer in his reasons was not clear but, in any event, there was no requirement on the Reviewer’s part to expose his “mental processes or provisional views” by explaining to the applicant the uses to which the Danish Information might be put.
Ground 6: Failure to consider material
By this ground, the applicant alleges that the Reviewer failed to consider certain material that was apparently not before the Reviewer and did not give proper consideration to material provided by the applicant’s agent that was before the Reviewer in considering the applicant’s claim that he feared he would be persecuted on account of his status as a failed asylum-seeker if he were to return to Iran.
I will deal with the two limbs of this claim separately.
Paragraphs (a) and (b) - Failure to deal with material not before the Reviewer
The “proceedings” before the Reviewer were inquisitorial in nature and the Reviewer was not obliged to make out an applicant's case for him[79]. The corollary of this proposition is that the Reviewer had no general duty to conduct any inquires of his own[80]. The Reviewer was under no obligation to seek out, in particular, the document referred to in paragraph (b), being a newspaper article entitled “Humane reasons for processing asylum-seekers offshore” authored by the Minister and published in the Sydney Morning Herald on 17 September 2011.
[79] see for example, Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]
[80] Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [1]
The document referred to in paragraph (a) entitled, “Country Guidance Note Iran 2011” (CGNI 2011) falls into a different category. A submission was made at the hearing before me that, given its supposed currency, the Reviewer was obliged to locate and consider CGNI 2011 in making the Recommendation. In support of this submission, reference was made to the decision of Rares J in SZJTQ v Minister for Immigration[81], which involved a situation where the decision-maker had more recent material before it but did not take it into account. However, Rares J in SZJTQ, appeared to limit the obligation to have regard to the most recent available material to material that was actually before the decision-maker. According to his Honour (at [40]):
If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information …. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (ie before him or her) supports a conclusion of persecution of adherents of that religion in the applicant’s country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered (emphasis added).
and later at [42]:
Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand (emphasis added).
[81] (2008) 172 FCR 563
The Minister contends that the principles set out by Rares J in SZJTQ establish a requirement to have regard to the most recent information that is actually before the decision-maker and a decision-maker is not obliged to seek out further information.
There is no evidence that the document entitled CGNI 2011 was before the Reviewer. At the hearing of this matter, I enquired whether it was open to conclude that the CGNI 2011 ought to be taken to have been constructively before the Reviewer. The Minister responds that there is no room for the notion of “constructive notice” to operate[82].The Minister further relies upon the words of Whelan FM in MZYPK v Minister for Immigration[83] at [55]:
[t]here is simply no basis for saying the Reviewer was constructively aware of everything relevant to the situation in [Sri Lanka] that may or may not be in the Department’s possession. In the absence of such knowledge there is no error.
[82] SZMYO vMinister for Immigration & Anor [2010] FMCA 963 at [78]; SZOIN v Minister for Immigration (2011) 191 FCR 123 at [93]
[83] [2012] FMCA 9
I reject the Minister’s contentions on the facts of this case. The decision of this Court in SZMYO cannot be relied upon as it was overturned by the Federal Court on appeal[84]. In that decision at [63] Gilmour J found that the Refugee Review Tribunal (the Tribunal) erred by failing to exercise its power under s.427(1)(d) of the Migration Act. The decision in SZOIN depended on its facts. In that case at [93] Rares J said:
The omission to forward the STARTTS report to the Tribunal was very unfortunate in the circumstances, but it did not stultify the review by the Tribunal of the appellant’s application to it. Because its procedures were inquisitorial, the Tribunal was not obliged under the Act to locate or ascertain the existence of further relevant material that the Minister, the Secretary or the Department received after the original decision of the delegate was made. There may or may not be some policy reason why the Act does not require such subsequently relevant material, known to the Minister (cf: Peko-Wallsend 162 CLR at 45 per Mason J) actually or constructively, to be provided to the Tribunal so as to avoid the apparent injustice that has occurred here. But, in the end result there is no such obligation.
[84] SZMYO vMinister for Immigration [2011] FCA 506
The statement by Whelan FM is a general one and may be accepted as a general proposition. However, in my view, country guidance notes, which are prepared by the Minister’s Department and the Tribunal expressly to guide decision makers, fall into a special category. Before relying on the Tribunal’s “Country Advice for Iran” published on 9 August 2010 the Reviewer should have checked whether a more recent country advice for Iran was available. The country guidance note issued by the Minister’s Department in 2011 contained updated material at least partially supportive of the applicant’s claims.
That Note, under the heading “Framework for Assessing Claims” says the following:
It is important to note that when assessing whether a person has a well-founded fear of persecution on the basis of political opinion, the person does not need to hold a particular political opinion – it is enough that a person is believed to hold a political opinion.
Whether or not the applicant has a well-founded fear of persecution will need to be assessed, noting that the harm feared must involve serious harm, be systematic and discriminatory in nature and that the applicant’s political opinion is the essential and significant reason for the persecution.
The Note also says:
Sources indicated that there is a possibility that a failed asylum seeker could come to the attention of the authorities on arrival in Iran. An assessment should be made as to whether the applicant’s profile and activities in Iran and/or abroad may place them at risk of mistreatment on arrival.
It cannot be safely concluded that reference to the up to date guidance note would not have affected the outcome, especially as the Tribunal’s country advice was equivocal.
For these reasons, the Reviewer did fall into error in failing to have regard to CGNI 2011.
Paragraphs 7(c) - Failure to deal with material provided by the applicant’s agent
In his submissions, the applicant alleges that the Reviewer fell into error given that the Reviewer gave scant regard to certain pieces of country information provided by the applicant that were said to support the applicant’s claim that he feared that he would suffer persecution on account of his status as a failed asylum-seeker if he were to return to Iran.
In dealing with the applicant’s claim that he feared persecution should he return to Iran as a failed asylum-seeker, the Reviewer noted that the “adviser referred to country information [that supported the applicant’s claim], some being from some years ago”, before going on to prefer other country information, in particular, the Danish Information[85].
[85] CB 169-170 [61]
Contrary to what is asserted by the applicant, it was open for the Reviewer to deal with the issue in the manner in which he did. The Reviewer’s choice of, and the weight attributed to, country information was a factual matter for the Reviewer[86]. Further, it is well established that the Reviewer was not obliged to refer in the report to every item of evidence that was before him[87] and it was also unnecessary for the Reviewer to give a ‘line by line refutation” of the pieces of country information put forward by the applicant[88].
[86] NAHI v Minister for Immigration [2004] FCAFC 10 at [11] and NBKT v Minister for Immigration (2006) 156 FCR 419
[87] Muralidharan v Minister for Immigration (1996) 62 FCR 402 at 414; Minister for Immigration v Guo (1997) 191 CLR 559 at 593
[88] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [65]: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [117]
I reject the applicant’s contention in reply that the Reviewer misunderstood or misused the country information by the Danish Immigration Service. The attack on the use made by the Reviewer on country information is an attack upon the Reviewer’s reasoning process and, ultimately, upon the merits of the report, which is beyond the scope of these proceedings.
Conclusion
The Reviewer fell into error by overlooking an element or integer of the applicant’s claims which clearly arose from the material in relation to his status as an undocumented Faili Kurd. The Reviewer also erred in failing to have regard to the up to date country guidance note for Iran issued by the Minister’s Department to guide decision makers. In view of these errors, the applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 21 December 2012
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