SZRQF v Minister for Immigration
[2013] FMCA 61
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQF v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 61 |
| MIGRATION – Review of recommendation of Independent Merits Reviewer – whether the reviewer failed to ask the right question – whether the reviewer gave proper, genuine and realistic consideration to the merits of the applicant’s case – whether the reviewer made findings without a rational basis in law or fact – whether the reviewer denied the applicant procedural fairness – “construction” of evidence by the reviewer – alleged failure to have regard to, or consider, a relevant consideration – whether the reviewer acted upon “misconceptions” as to the effect of the evidence given and claims relied upon by the applicant – whether the reviewer took into account irrelevant considerations – no error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 425, 476 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 SZKMX v Minister for Immigration and Citizenship [2008] FCA 856 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 SZKMV v Minister for Immigration and Citizenship [2009] FCA 157 SZMFH v Minister for Immigration and Citizenship [2009] FCA 105 SZMLR v Minister for Immigration and Citizenship [2008] FCA 1853 MZYQF v Minister for Immigration and Citizenship [2012] FCA 1270 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 SZPZI v Minister for Immigration & Anor [2011] FMCA 530 Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4; (1997) 190 CLR 225 SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 Applicant S v Minister for Immigration & Multicultural Affairs & Anor [2004] HCA 25; (2004) 217 CLR 387 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Calado v Minister for Immigration & Multicultural Affairs (1998) 81 FCR 450 VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 233 CLR 1; [2006] HCA 60 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 SZOYH v Minister for Immigration & Citizenship [2012] FCA 713 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 WAJSv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 SZQYU v Minister for Immigration & Anor & SZQYV v Minister for Immigration & Anor [2012] FMCA 1114 Minister for Immigration and Citizenship v SZQXZ [2012] FCA 931 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550 Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2000) 206 CLR 57; [2000] HCA 22 SZAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 312 WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 SZGWN v Minister for Immigration & Citizenship [2008] FCA 238 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154 /2002 [2003] HCA 60; (2003) 201 ALR 437 Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412 Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1 Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 |
| Applicant: | SZRQF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 1505 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 November 2012 |
| Date of Last Submission: | 21 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Burchett |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 11 July 2012, amended on 27 September 2012 and further amended on 27 November 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1505 of 2012
| SZRQF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MICHAEL GRIFFIN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 11 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 27 September 2012 and further amended on 27 November 2012, seeking review of the recommendation by the second respondent, Michael Griffin in his capacity as Independent Merits Reviewer (“the reviewer”), to the first respondent, the Minister for Immigration and Citizenship, that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.[1]
[1] United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”).
The application to the Court also seeks injunctive relief and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (“M61/M69”).
Background
Given the complaints raised in the applicant’s further amended application, it is important to note the following:
1)The applicant arrived in Australia on 18 November 2009 ([1] at CB 432 and CB 1 to CB 5).
2)On 22 November 2009 the applicant was interviewed by an officer of the Minister’s department (referred to as the “initial entry interview”) (CB 6 to CB 30).
3)On 1 January 2010, Libby Hogarth, migration agent, submitted various documents to the Department on the applicant’s behalf (CB 32 to CB 82, including attachments). Relevantly, and important to the current proceedings, that included a request for a Refugee Status Assessment (“RSA”) (CB 33 to CB 49) and a “statement of claims”, signed by the applicant on 31 December 2009 (CB 53 to CB 54).
4)The applicant attended an interview with the assessor on 4 January 2010 (referred as the “RSA interview”) (CB 79). On 18 February 2010 the assessor found that the applicant was not a person to whom Australia owed protection obligations (CB 85 to CB 96). The assessor’s findings were set out in his record (CB 95.7 to CB 96.5).
5)On 3 March 2010 the applicant applied for Independents Merits Review (“IMR”) (CB 97 to CB 101).
6)By covering letter dated 22 March 2010, the applicant’s representative made submissions in relation to the applicant’s IMR (CB 102 to CB 119). Accompany those submissions was a record of a “phone interview” with the applicant, conducted by a registered migration agent with the assistance of an interpreter in the “Kurdish” language (CB 120 to CB 125).
7)On 5 May 2010 the applicant was interviewed by Professor Sam Blay in his capacity as Independent Merits Reviewer (referred to as “the first reviewer” and “the first reviewer’s interview”) (CB 128 to CB 139). That interview was conducted with the assistance of an interpreter in the “Kurdish” language (CB 130.1). On 26 August 2010 the first reviewer recommended that applicant did “…not meet the definition of a refugee” as set out in the Refugees Convention (CB 139.3).
8)On 20 September 2010, transmitted by “e-mail”, the applicant’s representative made submissions on his behalf to the respondent Minister’s department (CB 140 to CB 152).
The Reviewer
On 13 January the applicant’s representatives provided submissions on the applicant’s behalf with respect to his “second” IMR (CB 153 to CB 184). That is, the review the subject of current consideration. The applicant was interviewed by that reviewer, Mr Michael Griffin, on two occasions: 21 January 2011 (referred to as “the first interview” with the reviewer) and 9 June 2011 (referred to as “the second interview” with the reviewer).
The applicant’s claims ultimately before the reviewer were that he feared persecutory harm in Iran (where he had lived since he was one year old) because of his Faili Kurd ethnicity, his statelessness and as a returnee from a Western country where he had sought asylum.
The reviewer rejected as “recent fabrications” the applicant’s claims that he had been assaulted by the Basij (religious paramilitaries) in Iran ([35] at CB 441). The reviewer found it implausible that the applicant would not have mentioned such serious matters if they had occurred in his initial interview and written statement of claims.
The reviewer accepted the applicant’s factual account of his ethnicity, education and employment. He also accepted that the applicant received support from his local mosque and that he had the capacity to find funds to come to Australia ([36] at CB 442).
While the reviewer accepted that minority groups, including those who are stateless, may be subjected to some discrimination ([36] at CB 442), he preferred Department of Foreign Affairs and Trade (“DFAT”) advice that Faili Kurds were not targeted because of their ethnicity. What remained, therefore, of the applicant’s factual assertions, did not amount to “serious harm”. Further there was no credible evidence that the applicant would be systematically targeted by the Basij or anyone else ([36] at CB 442).
The reviewer relied on independent country information to find, contrary to the applicant’s representative’s submissions, that the applicant would not be persecuted as a returnee from a Western country, and for being stateless.
Before the Court
At the final hearing, Mr S Burchett of counsel appeared for the applicant. Ms R Graycar of counsel appeared for the first respondent.
Leave was granted to the applicant to file a further amended application in the following terms:
“1. The Second Respondent (“Reviewer”) fell into jurisdictional error by failing to ask himself the correct question in law, whether, and to give proper, genuine and realistic consideration to the merits of the case presented by the applicant that, he had a well-founded fear of persecution involving serious harm, other than by and having previously suffered actual physical injury.
Particulars
a. The applicant claimed persecution by reason of his ethnicity or membership of a particular social group, being stateless Faili Kurds in Iran, by denial of civic identity, status of rights, martial and parental rights, access to health services, higher education opportunities, equality of terms of employment, intimidation, humiliation, threats of violence, blackmail and random detention by state actors.
b. The applicant tendered detailed submissions and evidence supporting his claims, which the Reviewer largely failed to refer to or consider.
c. The Reviewer failed to ask himself or consider, whether those claims amounted to serious harm.
d. The Reviewer failed to apply the inclusive definition of ‘serious harm’ amounting to persecution in s 91R Migration Act 1958.
2. The Reviewer fell into jurisdictional error by making the following conclusions or finding when there was no rational basis in law or fact for their making.
a. the applicant’s evidence of assaults of him by the Basij was a recent fabrication designed to enhance his initial claims of negative societal discrimination;
b. the applicant’s claims generally could not be accepted;
c. the circumstances of the applicant’s education, attempts to obtain and denial of civic rights and leaving Iran did not amount to relevant serious harm;
d. the evidence of a real chance of persecution for leaving Iran illegally and/or being stateless was not credible;
e. the evidence of the likelihood of the applicant being targeted by the Basij was not credible.
f. [not pressed]
g. the evidence tendered of past returnees to Iran being harmed (including a contemporaneous decision to that effect of the Refugee Review Tribunal) did not support a real chance that the applicant would be similarly harmed; and/or
h. that, in effect, stateless people did not constitute a social class for the purposes of the Convention or otherwise was an insufficient basis for protection.
3. The Reviewer denied the applicant procedural fairness, in that:
a. he took into account evidence of a previous interview of the applicant which was conducted in a language, other than his chosen or native language and inaccurately translated;
b. the Reviewer failed to identify and give the opportunity to the applicant (or his agent) to respond to the evidence, upon which he relied for the rejection of the applicant’s claims, as required by the Department’s Independent Merits Review Guidelines, in particular, it was never suggested to him that;
i. his answer on his entry interview to the question, whether he had been ‘threatened’, that no-one had ‘hurt’ him, was inconsistent with his evidence of having been slapped and forced to pay bribes;
ii. he should have mentioned those ‘assaults’ in his entry interview and statement of claims; or
iii. his evidence of such ‘assaults’ was a recent fabrication designed to enhance his claims of societal discrimination.
c. [not pressed]
d. the Reviewer failed to identify in his reasons the evidence and claims of the applicant, which he regarded as credible or incredible, reliable or unreliable, and the reasons for such findings.
4. The Reviewer fell into jurisdictional error and erred in law by:
a. construing evidence of the Australian embassy staff in Tehran’s lack of awareness of Faili Kurds being targeted because of their ethnicity as capable of contradicting the applicant’s positive evidence of such targeting or (if considered at all) later independent expert evidence, to which he was referred, and thereby failed in his duty to apply the most recent, credible evidence;
b. construing the evidence of the applicant’s achievement of a level of education, employment and social or religious support as preventing the denial of further education, employment, social, religious or other rights constituting relevant ‘serious harm’.
5. The Reviewer fell into jurisdictional error in failing to have regard to and failing to consider or apply relevant considerations in reaching his decision, being:
a. the submissions and evidence mentioned in the applicant’s representative’s letter of 13 January 2011.
b. the materials, to which he was referred by the applicant’s representatives after the hearing by letter of 12 June 2011:
i. the decision of the Refugee Review Tribunal concerning the threat to returning failed asylum seekers in Iran in 1001288 [2010] RRTA 912 (22/10/10),
ii. Amnesty International Report, Iran: Human Rights abuses against the Kurdish minority (2008)
iii. the US Department of State, Country Reports on Human Rights Practices – Iran (8/4/11),
iv. the report of the International Federation of Human Rights, The Hidden Side of Iran (Oct.2010),
c. the fact, that the evidence given by the applicant in his entry interview, statement of claims, Refugee Status Assessment and prior Independent Merits Review concerning his harassment by the Basij or Iranian police was consistent with his evidence to the Reviewer, and
d. the obvious ambiguity on interview of the terms interpreted to and from the applicant in other than his preferred language of ‘abuse’, ‘assault’, ‘hurt’, ‘harm’, ‘bashing’ or ‘beating’ as opposed to a ‘smack’, ‘slap’ or ‘hit’.
e. The evidence of matters stated above wrongly found to be incredible or unsupportive of a real risk of serious harm to the applicant.
f. [not pressed]
6. The Reviewer fell into jurisdictional error by acting upon misconceptions as to the effect of the evidence given and the claims relied upon by the Applicant, and thus upon irrelevant considerations and not upon the evidence and claims presented by the Applicant; namely:
a. at [20] of the report, that the applicant had said, that his preferred language was Faili Kurd, being the language of the interpreter on the first IMR, of whom he had complained, when in fact he said his preferred language was Persian (Farsi).
b. at [35] of the report, that the ‘record indicates that the risk of physical harm was given no emphasis by [the Applicant] in his initial interview and written claims’, when in fact:
i. in his initial interview he had said, that if sent back, he would have ‘no security’ and would be put in gaol, and
ii. in his statement of claims he had said, that he had to pay money to avoid detention or ‘torture’, ‘feared physical harm’ and ‘persecution’ and could be ‘killed’ if sent back.
c. at [35] of the report, that the applicant had ‘stated positively on at least 2 occasions that he had not been beaten or otherwise assaulted by the authorities’, when in fact he had said:
i. on his entry interview, that he had not personally be ‘hurt’ when ‘threatened’, in the sense of suffering lasting injury, although he later explained, that he had been ‘slapped’, ‘smacked’, ‘hit on the head’ and had witnessed the breakage of bones of friends by police, and
ii. on his RSA interview, that he had not been ‘beaten’, but ‘abused’ and ‘humiliated’ by the police and made to stand in the sun for hours.
d. at [35] of the report, that only ‘later’ had he told of being made to stand in the sun for hours, when in fact it was contained in his initial claims and in his RSA interview.
e. at [35] of the report, that he had ‘subsequently changed’ his evidence to having been ‘slapped and forced to pay bribes to the Basij on a frequent basis’, when in fact the former was not a change and the latter was in his initial statement of claims and RSA and subsequent interviews and submissions.
f. at [35] of the report, that the Applicant relied on the facts of his past ‘assaults’ by police ‘to enhance’ or otherwise support his fear of persecution in the future, when he had never done so, but only mentioned them, when specifically asked, had never relied on them, but had expressly dismissed them as not causing serious harm, while maintaining his harassment, detention, threats and witnessing of serious harm by police did support his fear of persecution.
g. The Reviewer misconstrued the Applicant’s claim as based on a fear of persecution by reason only of ethnicity, statelessness and being a ‘returnee’, failed asylum-seeker and deemed western spy or collaborator and thus failed to consider the Applicant’s claims by reason of his nationality, membership of the social group of ‘refugee in Iran’, ‘Iraqi refugee in Iran’, ‘unregistered refugee’, imputed political opinion against the Iranian regime flowing from his ethnicity and Iraqi heritage.
7. The Reviewer fell into jurisdictional error by taking into account other irrelevant considerations, being:
a. at [17] of the report, that the first IMR Reviewer had written in his decision, that the Applicant had denied to him being assaulted or persecuted by the Basij, other than by verbal abuse, when the transcript and evidence before the Reviewer showed he had been inaccurately translated, but even as translated had not denied it and had given evidence of assaults and persecution.
b. at [36], that it was asserted by DFAT, that Faili Kurds were treated well in comparison with Afghans.”
[Note: before the Court particular (g) to ground six was renumbered as a separate ground and referred to as “ground seven”. Ground seven, as pleaded in the further amended application, became “ground eight” before the Court.]
Leave was sought, and granted, for the following affidavits to be read:
1)Marianne Elizabeth Larkins, sworn on 20 September 2012, which annexed a transcript (“1T”) of the first interview with the reviewer from the “IMR-2-1 CD”. That is, the first interview with Mr Griffin.
2)Lisa Jane Brady, sworn on 20 September 2012, which annexed a transcript (“2T”) of the second interview with the reviewer, from the “IMR-2-2 CD”. That is, the second interview with the Mr Griffin.
[Note: transcript references appear as T page, line X – Y.]
Leave was granted for further written submissions to be filed by the first respondent and the applicant, in reply, following the hearing. [Referred to as the respondent’s supplementary written submissions and the applicants submissions in reply, respectively.]
Consideration
Ground Six
It is convenient to begin consideration with ground six as the bulk of the applicant’s submissions were focused on this ground. Further, ground six supplies the factual basis for much of the remainder of the applicant’s complaints before the Court.
Ground six, as stated in the further amended application, asserts jurisdictional error on the part of the reviewer in that he acted on “misconceptions” as to the effect of the evidence given, and the claims relied upon, by the applicant. The applicant submits that that led the reviewer to act on irrelevant considerations and not on the evidence and claims made by the applicant.
As with much of what the applicant pleads in his further amended application, some effort is required to ascertain the exact nature of the legal error for which the applicant contends. It became somewhat clearer from the applicant’s oral submissions that the real thrust of the applicant’s complaint was that the material presented to the reviewer can be said to have included claims expressly made, or clearly arising from that material, and that the reviewer failed to deal with those claims.
In other words, in spite of references to “irrelevant considerations” and the like, the actual legal error asserted by the applicant is that described in cases such as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No.2)”) and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”).
The applicant’s initial written submissions appear to also confuse matters. There is an almost passing reference in those submissions (at [31]) to a denial of procedural fairness. This is said to be “in relation to the evidence”. While this immediately conjures up some possible assertion of a failure of fairness in the process adopted by the reviewer, the submissions, immediately, move to an attack on the reviewer’s adverse finding as to the applicant’s credibility. (However, see below in relation to the applicant’s written submissions in reply.)
However, the prominent extract in the applicant’s written submissions (at [30]) from NABE (No.2) (at [63]) would suggest that a failure to consider a claim is, again, the “real” complaint. Before the Court, the applicant appeared to agree that a failure to consider a claim was the complaint raised in this ground. His reference in written submissions in reply to the complaint being “more” than this (see at [25] of the applicant’s written submissions in reply) only serve to confuse the matter again.
In the particulars to this ground, the applicant sets out six matters which he says go to make out his ground. [As noted above, particular (g) to ground six is best treated as a separate ground and was referred to before the Court as “ground seven”.]
At particular (a) of ground six the applicant refers to [20] (at CB 435) of the reviewer’s statement of reasons:
“I asked [the applicant] which language he wished to use to speak with me. A Persian interpreter had been provided at his request this time. He said ‘Either is ok, after thirty years I speak better Faili Kurd. I pointed out that he had asked for a Persian interpreter this time. He said, ‘Yes, I said I want a Persian interpreter’. The interpreter confirmed that he would interpret from English to Persian and from Persian to English. I asked if he had been able to consider the transcript of his first IMR interview with his adviser. He and his adviser confirmed that was the case.”
The complaint is that the reviewer misunderstood, or misconceived, the applicant’s evidence as to his preferred language. The reviewer said that the applicant said he spoke Faili Kurdish better than Persian. Yet, the transcript of the second interview shows that the applicant said he spoke “Persian better than Faili Kurdish” (2T 7, lines 9-11).
What can immediately be seen is that the applicant’s assertion that he spoke one language “better” than another cannot be seen as a claim, whether expressly made or clearly arising, as to why he feared persecutory harm if he were to return to Iran. Particular (a) to ground six therefore does not explain the complaint in the ground as initially submitted.
It may be, of course, that a failure to provide an interpreter in an appropriate language may lead to an applicant being denied the opportunity to present their case. Such conduct could give rise to the breach of a key principle of procedural fairness at common law. This may explain the applicant’s subsequent submissions about a breach of procedural fairness.
The difficulty for the applicant however, even in the context of an error of factual reporting by the reviewer, is that an error of reporting of this type, even if it is relevant to an erroneous finding of fact, does not, in and of itself, reveal jurisdictional error.
The relevant issue is whether the applicant was afforded a fair opportunity to present his case and to know the case against him. In this regard, the applicant’s own evidence to the reviewer was (2T 7, lines 9 – 10):
“C: I said that if I have a Kurdish Faili, Faili or a Persian interpreter, it doesn’t matter. In fact because I lived 31 years in Iran I speak Persian better than Faili Kurdish”
[I note that in her affidavit, Ms Brady deposes (at [4](b)) that “C” is “…the interpreter, when speaking in English in translation of prior words spoken in a foreign language by another voice, assumed to be of the Applicant”]
Further, the reviewer interviewed the applicant on two occasions. On the second occasion an interpreter in the Persian language was used. This was done to specifically address concerns raised at the first interview (2T 5, lines 9 – 19):
“IMR:Now this is a resumption of an interview we previously had on 21st January this year. That interview was effectively adjourned to allow the transcription of a previous interview that you had with another reviewer. Now that happened because you told me that there was a change in language in the previous interview. So I decided to get a transcript of that interview a written record of that interview. And at that time Ms Murphy requested that the transcription be done by an independent interpreter. And so I asked for that to be done and I have received the written transcript of the interview. And I understand that that has been made available to you Ms Murphy.
Murphy: Yes that is correct.”
[I note that the applicant was accompanied at this interview by his representative, Ms Josephine Murphy – 2T5, lines 7 – 9]
In any event, it would otherwise appear that the applicant’s concerns were directed to the interpretation provided not at the first interview conducted by Mr Griffin, the relevant reviewer in these proceedings, but at the interview by the first reviewer, Professor Blay.
For a charge of a failure of procedural fairness in relation to interpretation to succeed what would need to be shown is that the interpretation provided was so inadequate that the applicant was effectively prevented from giving evidence or, that the errors made by the interpreter were material to the conclusions of the decision maker that were adverse to the applicant (Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 (“Appellant P119/2002”) at [17], with reference to Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27]; Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 (“Mazhar”); Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [25] and Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6.
The applicant’s written submissions in reply, straying far from the ground as initially explained, seek to argue that the “error” by the reviewer (as to the appropriate language) played a part in the adverse credibility finding made against the applicant by the reviewer the subject of current consideration ([26] of the applicant’s written submissions in reply)
The difficulty for the applicant now is that he seeks to explain the basis of the reviewer’s adverse credibility finding as being, in part, based on errors in interpretation before the first reviewer, not necessarily at the first interview with the current reviewer.
The reviewer took two steps to ameliorate, or address, the concerns raised about the interpretation before the first reviewer. First, he sought a transcription, prepared by an “independent interpreter”, of the first reviewer’s interview. The applicant and his representative were given the opportunity to make submissions on that (2T 6, lines 1 – 6).
The second, and critical, step is that an interpreter in the preferred language was used on the occasion of the second interview before the reviewer (2T 6, lines 30 – 37 and 2T 7, lines 1 – 14). The opportunity therefore was afforded to the applicant to give his evidence in his “preferred” language (although noting he claimed proficiency in the other language used).
The ground as pleaded asserts jurisdictional error because the reviewer, as a result of his misconception as to the applicant’s evidence, took into account an irrelevant consideration. Namely, that the applicant’s preferred language was Faili Kurd, rather than Persian.
The applicant’s initial written submissions (see at [33] – [34] of the applicant’s written submissions) made reference only to the fact of the reviewer’s error and its claimed significance to the reviewer’s adverse credibility finding. These were not linked to any assertion of legal error in any meaningful way. The complaint was explained as follows. The applicant asserts that the adverse credibility finding (at [35] at CB 441 of the reviewer’s statement of reasons) depends upon distinctions in meaning drawn by the reviewer from the statements made by the applicant in what he says were “initial interviews” (note: plural – see [34] of the applicant’s written submissions) in Faili Kurd.
In this context, the applicant submits that the reviewer’s factual error as to what the applicant said his preferred language was, was relevant to what the reviewer said the applicant said at the interview with the first reviewer and therefore impacted on the current reviewer’s adverse credibility finding.
Nor was this satisfactorily explained in oral submissions. The applicant’s complaint however does become somewhat clearer in his submissions in reply (see at [28] – [33]). The applicant relies on Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (“Yusuf”) at [82] (and as relied upon in SZKMX v Minister for Immigration and Citizenship [2008] FCA 856 (“SZKMX”) at [24] – [26] per Baker J) for the proposition that “…to rely on evidence not given is to take into account irrelevant matter” (at [33] of the applicant’s submissions in reply).
There are two separate answers to this complaint. First, the applicant’s particular, as explained in submissions, proceeds on an erroneous basis. It is quite clear that the reviewer was wrong, in light of the transcript of the hearing, to report that the applicant said (at the second hearing) that his preferred language was Faili Kurd. As already set out above, the transcript reveals that the applicant said it was Persian.
However, the applicant’s submission now that the reviewer relied at [35] (at CB 441) of his statement of reasons on “errors” in interpretation at the first reviewer’s interview to find adverse to the applicant’s credit is, in itself, a misrepresentation of the reviewer’s reasoning and findings at [35] (at CB 441).
The applicant’s submissions refer to the reviewer’s relevant findings as referring to omissions between “initial interviews” (plural) and “later interviews” (see at [34] of the applicant’s written submissions in reply). That is not the case. The reviewer plainly made reference to the “initial [entry] interview” (singular) and written claims and the applicant’s failure to mention there important matters that he subsequently raised.
The second answer is that, given what is set out above and indeed relevant in relation to other particulars, the proposition from Yusuf does not assist the applicant here. The reviewer’s “error” (the erroneous presentation as to the applicant’s preferred language) was not an error that affected the exercise of the power given to the reviewer by the Minister.
While one other specific instance of where a “mistake” in interpretation at the first reviewer’s interview is put forward in ground three (and is dealt with below), for the immediate purpose, particular (a) to ground six does not assist the applicant in relation to ground six as pleaded, and ultimately explained in submissions. Nor, given the above, does it assist the applicant in any assertion of a failure of procedural fairness.
Particular (b) to ground six refers to [35] (at CB 441) of the reviewer’s statement of reasons:
“It is submitted on behalf of [the applicant] that he is at risk of serious harm in Iran because of his Faili Kurdish ethnicity, his statelessness and his presence in a Western country as an asylum seeker. The harm is said to include the real chance of physical injury being inflicted on him by the Basij or other Iranian authorities. The record indicates that the risk of physical harm was given no emphasis by [the applicant] in his initial interview and written claims. Indeed, he stated positively on at least two occasions that he had not been beaten or otherwise assaulted by the authorities. Later, he said that he had been slapped about the head or face on occasion and made to stand in the sun for some hours. This was done to him by the Basij he claims when he was stopped and asked for identification. In his first interview, in answer to the express question ‘Have you ever been threatened?’ he said, ‘No one has hurt me’ and in his first written claims, made with the assistance of an adviser, he made no mention of having suffered any physical harm. However, this subsequently changed to being slapped by and forced to pay bribes to the Basij on a frequent basis. I find it implausible that he would not have mentioned those assaults in his initial interview and written statement if they had happened. I find that they are recent fabrications designed to enhance his initial claims of negative societal discrimination.”
[Emphasis added.]
The complaint is that that part of the record emphasised above is contrary to what the applicant said. The applicant asserts that he said (ground six, particular (b)(i) and (ii)):
“i. in his initial interview he had said, that if sent back, he would have ‘no security’ and would be put in gaol, and
ii. in his statement of claims he had said, that he had to pay money to avoid detention or ‘torture’, ‘feared physical harm’ and ‘persecution’ and could be ‘killed’ if sent back.”
In short, I understood the complaint to be that the reviewer misconstrued the applicant’s claim as to whether he had suffered physical harm as given at the initial entry interview and in written claims submitted on the applicant’s behalf (earlier than the interview with the first reviewer).
The applicant refers to ([35] of the applicant’s written submissions):
1)His initial entry interview at CB 16:
“‘[In Iran]…they don’t believe I am a person…When [in Iraq] Police, Basi came to my house. My family were separated. We don’t’ know what happened to my dad. What else happens to you because you have no citizenship? The same as Iraq (ie. forced detention, separation and disappearance, presumed death, of family members)…’ ”
[Emphasis in the applicant’s written submissions.]
2)The applicant’s initial entry interview at CB 24:
“if sent back, he would be deemed to have left ‘in protest’, be ‘in trouble’, would have ‘no security’ and would be put in ‘jail’…”
[Emphasis in the applicant’s written submissions.]
3)The applicant’s initial statement of claims at CB 53:
“…the ‘Basij…harass us all the time’, ‘when found we are Kurdish it would aggravate the situation’, ‘detain us…and take people away to their interrogation centres and torture us’…”
4)The applicant’s initial statement of claims at CB 54:
“he was ‘constantly living in fear of physical harm in Iran and was persecuted’, had a ‘genuine fear of physical harm and could even be killed’, while the government was ‘not willing to protect us.’”
Plainly, again, this does not reveal any failure to deal with a claim in the sense that the concept is understood in relevant authorities. In essence, this complaint seeks to cavil with the reviewer’s finding in relation to the evidence before him.
The reviewer’s actual finding must be noted. The finding was that the applicant did not emphasise matters of actual physical harm on which he later relied ([35] at CB 441 and as set out above at [43]. This was reasonably open to the reviewer given what is set out in the extracts to which the applicant now refers. He did not find that there was no reference to harm whatsoever.
I note that what is emphasised in italics as reproduced above (at [46](1) and as taken from the applicant’s written submissions), does not appear in the report of the initial entry interview as reproduced at CB 16. What is relevant here is not what the applicant’s representatives believe the words meant or mean now, but whether the meaning ascribed to them by the reviewer was reasonably open to the reviewer on what was before him.
The applicant may not have wished to emphasise the matters of claims of “forced detention”, however that is the very point made by the reviewer. The reviewer found that the applicant did not “emphasise” them at the initial interview, nor for that matter in his written statement of claims.
Further, in his submissions before the Court, the applicant appears to have confused evidence as to actual physical harm with a general fear of harm which is implicit, if not explicit, in these extracts.
The reviewer simply found that there was no evidence that the applicant had actually suffered physical harm in the past. Indeed the sentence following that part of the reviewer’s statement of reasons set out above (see [43] above) reveals that the focus of the reviewer was on the fact that the applicant, initially, made no claim to have been physically harmed. The reviewer noted that the applicant, on two occasions, “positively” said that he had not. That was contrasted with the applicant’s “later” evidence that he had been “slapped” and made to stand in the sun.
As the Minister correctly submits, a challenge to the factual findings of the reviewer crosses the line into impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Particular (c) to ground six follows the same path as particular (b) to ground six. It also concerns [35] (at CB 441) of the reviewer’s statement of reasons. The particularised complaint is that the reviewer reported that the applicant had “stated positively on at least two occasions that he had not been beaten or otherwise assaulted by the authorities”. The applicant now says that, contrary to what the reviewer recorded, the applicant had said that he had not been “hurt” when he was “threatened”. This did not mean that he had not been assaulted. Before the Court the applicant submitted that that was put in the sense that he was saying that there was no lasting injury and therefore that his later evidence (that he had been slapped, smacked and the like) was not inconsistent. Further, that at the later RSA interview with an officer of the Department, he had said that he had been slapped.
I note again, the applicant’s legal representatives lack of understanding that the focus now must be on what was actually said by the applicant (as reported the relevant times) not what the applicant, or his legal representatives, would have liked him to have said, or relevantly, emphasised.
This, again, is an example of the applicant seeking to cavil with factual findings made by the reviewer. Neither the applicant nor, more particularly, his legal advisers, can now otherwise explain, by way of submission, what the applicant meant. The question for the Court is whether the finding made by the reviewer in this regard was reasonably open to him on what was before him.
Contrary to the applicant’s assertion now that “No one has hurt me” is not a statement that he had been not beaten or assaulted, it was reasonably open to the reviewer to take the view that the statement did not mean that the applicant had been so treated. While it is possible that another reviewer may have taken a different view, the test to be applied is whether this reviewer’s finding was reasonably open on what was before him. On the plain language used by the applicant at the interviews, it was.
The applicant also now contends that the statement that no one had hurt him was given in answer to the question as to whether he had been threatened (see the applicant’s written submissions at [37](a) and with reference to CB 16). This only serves to emphasise the view taken by the reviewer.
In the impugned paragraphs in the statement of reasons the reviewer made reference to two occasions on which he says the applicant had said that he had not been beaten. The first is set out immediately above. In his written submissions the applicant appears to argue that the second occasion was at the RSA interview. The applicant then proceeds to take issue with the reviewer’s finding (see [37](b) of the applicant’s written submissions).
It is clear, when regard is had to [35] (at CB 441) of the reviewer’s statement of reasons, that the “second” instance the reviewer refers to is the applicant’s “written” statement of claim submitted earlier by the applicant in support of his claims, and not to any interview. No legal error is revealed here.
Particular (d) to ground six, again, attacks a part of [35] (at CB 441) of the statement of reasons. The reviewer said that it was only “later” that the applicant said he was made to stand in the sun. Yet the applicant now asserts that a reference to standing in the sun was made in his initial statement of claims (at CB 54), and in the RSA interview (CB 80 to CB 81).
It is the case that reference to standing in the sun is made in the applicant’s initial written statement ([10] at CB 54). However, it is not as clear whether such reference was made at the RSA interview. The record of the RSA interview, in particular the officer’s handwritten note, makes reference to “stand and wait” (CB 81.1), but no reference to “sun”. In any event, the reviewer’s focus was on the earlier initial entry interview and the written statement of claims provided prior to the RSA interview.
It must be said that of the vast number of records of refugee assessment (reviewers, assessors and the Refugee Review Tribunal) seen by this Court, the current record stands in the lowest cohort in terms of quality. If the object of this report was to assist the Minister by recommending to him whether Australia owed protection obligations to the applicant, then the general lack of clarity, and specificity, exhibited by the reviewer in his written record would run counter to that purpose.
Some time was spent at the hearing before the Court determining, or attempting to determine, exactly which of the many interviews conducted with the applicant, and which of the written sets of claims, the reviewer was referring to at different parts of his record. The question arises therefore, at [35] (at CB 441), when the reviewer makes reference to the applicant’s “initial interview and written claims”, just what was he referring to? In my view, it is open to say that “initial interview” referred to is the interview of the applicant conducted immediately on his arrival in Australia. That is, the initial entry interview. The reference at [11] (at CB 434) of the reviewer’s statement of reasons allows this to be said. The initial entry interview is reported at CB 6 to CB 30 – the “Unauthorised Arrival” interview – and in that report there is no reference to “standing in the sun”.
The question then is what is meant by the reviewer’s reference to “written claims” and what is meant, in context, by the word “later”. On the best view of the evidence, and on balance, I take the view that this is a reference to the written statement of claims, signed by the applicant and submitted by his representative to the Minister’s department. That is, the document reproduced at CB 53 to CB 54. The reviewer reproduced, in part, the contents of this statement, including the references to standing in the sun (at [13] at CB 434 of the statement of reasons).
As the Minister notes (with some generosity to the reviewer), the reviewer’s finding is expressed in “perhaps a somewhat less than clear manner” given that it may infer that “standing in the sun” is a later made claim.
Contrary to the drawing of this inference, the Minister suggests that the reviewer’s “quote” of the applicant’s written statement is a reference to the claim being made at an earlier time.
Some caution must be exercised in saying that the decision maker actually focused on a particular part of a written document simply because it is reproduced verbatim in his or her statement of reasons. In my view, there is a distinction between this situation and a reference to an applicant’s statement “reproduced”, or described, in the decision maker’s own words which serves to convey the sense that the decision maker actually read, and considered, the written statement.
In any event, and on balance, I take the view that the reviewer was in error to say that “later” the applicant said, amongst other things, that he had been made to stand in the sun. The applicant plainly stated this, in writing, at a time earlier than that to which the word “later” refers in the context of [35] (at CB 441).
The reviewer therefore, in my view, did make an error of fact. The question, however, as the Minister correctly submits, is whether such an error constitutes legal error. In this regard, the Minister’s reference (at [18] of his supplementary written submissions) to NABE (No.2) (at [63]) is of relevant direction to this Court in the current circumstances: “[e]rror of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome”.
The applicant’s submissions stress the relevance, and consequence, of all of the alleged “errors” of the reviewer, including this one. That is, that they were part of, and led to, the adverse credibility finding against the applicant.
The applicant’s submissions as to the relevant law on this specific point are, in my respectful view, well put. What was said, with respect, by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (at [167]) often relied upon by the Minister in cases of this type, must also be seen, as the applicant submits, in light of what was relevantly said in Yusuf and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 (see the applicant’s written submissions in reply at [28] – [29]). Further, what was said in the various relevant Federal Court authorities referred to by both parties in the current proceeding is also of instruction, and direction, to this Court (SZKMX, SZKMV v Minister for Immigration and Citizenship [2009] FCA 157, SZMFH v Minister for Immigration and Citizenship [2009] FCA 105, SZMLR v Minister for Immigration and Citizenship [2008] FCA 1853 and MZYQF v Minister for Immigration and Citizenship [2012] FCA 1270).
It must be noted, taking into account the best view of the exact legal error asserted in ground six, that this is not necessarily a situation of the reviewer failing to deal with a claim as such (“standing in the sun” – that is a factual assertion). That was dealt with. The factual error is in not having recognised when the evidence in relation to this matter was given (“initially” or “later”). In my view, while the reviewer did make an error as to the timing, in context, I am not persuaded that it was of consequence to the outcome (with reference to NABE(No.2) at [63]).
The thrust of the reviewer’s analysis at [35] (at CB 441), on at least a fair reading, is as follows. The issue for consideration was the real chance of “physical injury” to the applicant by the Basij, and other Iranian authorities. In this regard, the applicant had initially given “no emphasis” to being physically harmed by the Basij, or other authorities. Further, he stated “positively”, on at least two occasions, that he had not been beaten or otherwise assaulted. This was contrasted with what was said to have been claimed by him “later”. That is, that he was slapped about the head and made to stand in the sun.
The reviewer emphasised that the applicant initially claimed that he had not been hurt in Iran and made no mention of any physical harm. He subsequently “changed” this account (see also further below) to claim that he had been frequently slapped by the Basij and forced to pay bribes.
I agree with the Minister that, on a fair reading, the thrust of the reviewer’s analysis, focus, and findings here, were on whether the applicant had been subject to physical injury, or hurt, by the Basij. More pointedly, when the applicant put forward these claims in respect of which he had earlier, and “positively”, stated to the contrary. The Minister is correct to submit that it was not until the interview with the first reviewer that the claim of physical harm, in the sense of being struck, was raised.
It is in that light that the reviewer’s use of the words “no emphasis”, as it also relates to particular (a) to ground six, becomes clear.
On a fair reading, it is not that the reviewer found that no threat of harm was made in the initial opportunities presented to the applicant for the statement of his claims to fear persecutory harm, but that the later “emphasis” on actual serious physical harm was absent in the initial entry interview and written statement. On this basis, and in this light, I agree with the Minister that it was open to the reviewer to find that the allegations of physical harm were a “later” “invention”. Whatever factual error occurred in relation to “standing in the sun” was, therefore, of no consequence.
Particular (e) to ground six also focuses on [35] (at CB 441). The complaint is that, in addition to the elements dealt with above, there was no “change” in the applicant’s evidence as to having been slapped by, or having to pay bribes to, the Basij.
The applicant refers to the following exchange at the interview before the first reviewer (CB 246.7):
“Reviewer: Now tell me, were you ever beaten by the police?
Interpreter (foreign language): Did they beat you?
Reviewer: The Basiji?
Interpreter (foreign language) Basij?
Client (foreign language): They didn’t beat me, but I told you sometimes, smack, hit on the head.
Interpreter (English): Not that, but sometime you know like, abuse, like, maybe like, slap.”
[Emphasis in original.]
Beyond mere assertion now, the applicant made no specific reference to those interviews, or written claims, prior to the first reviewer’s interview, to show where he had earlier stated that he had been “slapped” by the Basij. The applicant appears to agree before the Court that the matter of the “minor assaults” was first introduced before the first reviewer. The current reviewer’s analysis was that this later “subsequent” change in the applicant’s claims occurred when compared with his initial entry interview and written statement of claims. For the same reasons as already set out above, no legal error is revealed here.
In relation to the payment of bribes, the submission was that this was always a part of the applicant’s claim. The applicant relied on (as set out at [45] of the applicant’s written submissions):
1)His initial statement of claims at [9] (at CB 53).
2)The RSA interview (the third and seventh “bullet points” on CB 80 and the first “bullet point” on CB 81).
3)The RSA decision (the second paragraph at CB 92): “The claimant states he has had to pay bribes to the Basij on a number of occasions as well as the police and local government officials.”
4)The first IMR submission (CB 103) and the annexed interview record (CB 121 and CB 124).
5)The interview with the first reviewer (CB 235.5, CB 245.2 and CB 247.4).
6)The first reviewer’s statement of reasons (CB 130).
Again, what must be noted is that the reviewer’s focus in [35] (at CB 441) was on physical harm. It is the failure to “emphasise” this claim initially that, in part, led to the adverse credibility finding. In any event, the reviewer was factually correct in saying that in his “first interview” (that is, the initial entry interview) the applicant made no reference to paying bribes and that this aspect of the applicant’s claims “subsequently” changed. The reference in the written claims, and elsewhere, was subsequent to the initial entry interview.
Particular (f) to ground six also arises from [35] (at CB 441). The complaint appears to be that the applicant’s reviewer found that the applicant relied on claimed past assaults by the “police” to enhance his claim of fear of future harm. Yet the applicant now says he never relied on, what he now describes as, “minor” assaults ([47] of the applicant’s written submissions). His argument is that his fear emanated, in various part, from harassment, general abuse and the threat of detention, serious assault or torture.
Ultimately, when pressed before the Court, the applicant conceded that this was the “weaker” of all his particulars to ground six. I agree. Indeed, I would go further and say that it is difficult to see what legal error is asserted here, let alone made out.
The essence of the complaint as put before the Court was that the applicant did not rely on these claimed “minor” assaults (I note that the reviewer did not describe them as such), but that the applicant’s evidence of having been slapped and the like only emerged after questioning. That is, it emerged because of the inquisitorial process. The assertion being that the applicant did not “volunteer” it.
The paucity, if not deficiency, of this argument speaks for itself. The applicant gave this evidence. Whether he “volunteered” it, or it was given in response to questions, is irrelevant in terms of supporting this particular. In fact, if it is the case that the applicant did not voluntarily make reference to these matters initially, and only referred to them in response to questioning, this can only reinforce the reviewer’s finding that they were subsequent changes to the applicant’s initial account. The applicant’s particular argument before the Court also appears to have overlooked submissions made in relation to all the other particulars that emphasised that the applicant had not changed his account.
I should note the applicant’s contention in relation to this particular that his reliance on claims of harassment and abuse and the like were understood by the reviewer when the reviewer otherwise described the applicant’s “initial claims” as being those “of negative societal discrimination” or arising from discrimination ([35] at CB 441).
Other than for the matter of “standing in the sun” and the applicant’s “preferred” language (both dealt with above) the entirety of the particulars to ground six are examples of seeking impermissible merits review. The reviewer did not fail to deal with any claim to fear persecutory harm. The adverse finding of fabrication of his account by the applicant, and the credibility of his account of past events, was plainly open to the reviewer on what was before him. In all, ground six is not made out.
Ground Seven
Ground seven (“old” particular (g) to ground six) is in the following terms:
“The Reviewer misconstrued the Applicant’s claim as based on a fear of persecution by reason only of ethnicity, statelessness and being a ‘returnee’, failed asylum-seeker and deemed western spy or collaborator and thus failed to consider the Applicant’s claims by reason of his nationality, membership of the social group of ‘refugee in Iran’, ‘Iraqi refugee in Iran’, ‘unregistered refugee’, imputed political opinion against the Iranian regime flowing from his ethnicity and Iraqi heritage.”
The exact nature of the legal error purportedly asserted was not made clear before the Court. For example, is the assertion of legal error that the reviewer failed to deal with a claim, or claims, that the applicant was a member of, at least, one of a long list of social groups he sought to articulate before the Court? Or, alternatively, was the complaint of legal error one of a failure to deal with a claim of imputed political opinion arising from the applicant’s ethnicity and Iraqi heritage? It was not clear whether this was said to be because the applicant was a Faili Kurd.
There appeared to be some assumption in the applicant’s submissions that every element of his background, or his circumstances (his statelessness, his ethnicity, as a returnee from a Western country, a failed asylum seeker and deemed Western spy or collaborator) automatically gave rise to some, albeit poorly articulated, social group. No satisfactory attempt was made, nor when raised with counsel was any submission of relevant note made, with Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”) in mind, that the reviewer was required, and failed, to consider whether the applicant was a member of a particular social group. The applicant does cite Dranichnikov at [48] of his written submissions. The issue however is that beyond, that there was no clear articulation by the applicant of any specific legal error in the circumstances presented by this case.
In any event, I agree with the Minister (at [16] of his written submissions):
“The Applicant has referred to the decision of the High Court in Dranichnikov v Minister (2003) 197 ALR 389 [at [48] of the applicant’s written submissions]. That case is clearly distinguishable from the one before this Court. In Dranichnikov, the High Court held that the decision maker had failed to respond to the key claim made by the Applicant which was not a claim based on his status as a member of the particular social group of ‘entrepreneurs and/or business’ but rather the ‘more limited group consisting of entrepreneurs and/or business who publicly criticized law enforcement authorities for failing to take action against crime or criminals (see (2003) 197 ALR 389 at [22] – [23] per Gummow and Callinan JJ). By contrast, here the Applicant seeks to argue that it was incumbent upon the Reviewer to distinguish between the various evidentiary aspects of the Applicant’s claim, and to treat each one as a separate claim, rather than being a number of manifestations of one substantive claim. In SZQFC v Minister [2011] FMCA 633 at [20], Cameron FM highlighted the clear difference between an integer of a claim, and the evidence for such a claim as follows:
‘As Allsop J’s reasons in Htun [Htun v Minister for Immigration & Multicultural Affairs (2001) 194 CLR ALR 244] at [42] make clear, the integers of a claim are different bases for the persecution alleged, not the individual, and potentially disparate, manifestations of such persecution.’”
Further, some clue as to the applicant’s attack can probably be inferred from his substantial reliance in written submissions on SZPZI v Minister for Immigration & Anor [2011] FMCA 530 (“SZPZI”) per Smith FM, and the possible application of Dranichnikov (although that case was not specifically referred to in SZPZI).
SZPZI was a case also involving an “unauthorised boat arrival” who sought asylum in Australia. He also was a Faili Kurd. The claim before this Court (at [49] of the applicant written submissions) was that in SZPZI:
“…the characterisation of the Applicant as a Faili Kurd and dismissal of claims of persecution of that group, did not rule out the possibility of persecution of Faili Kurds, who were undocumented, refugees from Iraq or imputed to have anti-Iranian political views. The Reviewer failed, to take the first step in this regard.”
In short, therefore, the complaint is that the reviewer only noted part of the applicant’s claims to fear persecution harm as put forward by the applicant in written submissions to the reviewer (dated 22 March 2010 – CB 103). These were said to be described at [16] of the reviewer’s statement of reasons:
“Nationality – ethnicity as a Faili Kurd
Membership of a particular social group:
Stateless person; and/or
Failed asylum seeker returning from a Western country
Actual/imputed political opinion – being opposed to the Iranian regime having fled the country illegally and returning from a Western country such as Australia with ties to the UK – a country openly critical of the Iranian regime”
The specific complaint appears to be that the reviewer noted the claim of “nationality – ethnicity as a Faili Kurd”, but dealt only with the claim of being a Faili Kurd. He failed to deal with the claim of Iraqi “nationality”. Specifically, that such persons are perceived to be former enemies of Iran and imputed with anti-Iranian government political opinion. The applicant submits now that this claim was explained in his representative’s written submission to the reviewer on 22 March 2010 (CB 103 to CB 119). The relevant parts are particularly at [80] (at CB 182) and [87] (at CB 143) and the references there to a list of social groups and imputed political opinion.
First, to the extent that the applicant relied on the articulation in SZPZI of relevant legal principles then it is accepted that a failure to consider a claim expressly made, or clearly arising, from the circumstances presented does lead to legal error. I note, and respectfully agree with, what was said by Smith FM at [47]:
“It is well established that a refugee decision-maker must address and make findings on “a substantial clearly articulated argument relying upon established fact” which could establish a Convention nexus for a well-founded fear of persecution. He or she cannot avoid consideration of a possible nexus arising from membership of a relevant “particular social group” which is raised in the material, by misconstruing or confining the “social group” relevant to the feared persecution, either too broadly or too narrowly (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] - [63]). A failure in this respect is undoubtedly a ‘legal error’ warranting a declaration of the type made in Plaintiff M61, whether characterised as error of law, failure of procedural fairness, or jurisdictional error (see Plaintiff M61 at [90]).”
Second, and however, the facts in SZPZI to which these principles were applied are distinguishable from the facts in the current case. As the Minister submits, there are considerable factual differences.
I put to one side such differences as the respective levels of education (the applicant in SZPZI had a “brief formal education” – see [14] of SZPZI, while the applicant in the current case claimed to have been educated for 12 years), which was a matter addressed in SZPZI, although Smith FM did not find the treatment of educational opportunities (and for that matter employment opportunities) to have led to legal error in that case.
Importantly, in SZPZI the reviewer there found the applicant to be a credible witness and accepted (obviously given the authorities relied upon in SZPZI) the applicant’s claims to have been beaten by the Basij for a considerable period of his life. In the current case, as already referred to above, the reviewer did not find the applicant to be credible in his claims to have suffered physical harm and the like at the hands of the Basij. This has been dealt with extensively above.
In SZPZI the applicant was found to have “expressly invoked membership of” ([51] of SZPZI) a “broader group”. See [50] of SZPZI for that broader group, being “membership of ‘undocumented’ foreign refugees” in Iran:
“In my opinion, the accepted history of the applicant and his family, in the context of the country information which was cited by Mr Connolly, clearly raised the issue whether the existence of significant numbers of ‘undocumented’ foreign refugees in Iran, and the existence and operation of its laws and practices which discriminated against them, had resulted in or evidenced a group of unregistered or undocumented residents who shared a common attribute apart from their particular ethnic or religious backgrounds, and that its members were distinguished by that attribute from ‘society at large’.”
In SZPZI it was clear that the applicant had expressly stated his membership of such a group (undocumented people living in Iran of Faili Kurd background). In these circumstances, the rejection by the reviewer in that case of the applicant’s claim to have been harassed by the Basij because he was undocumented, nonetheless, as the Court found it, still left for consideration whether the “more general group of undocumented people in Iran was a particular social group” and then to address the elements identified in Applicant S as to whether this was a particular social group for the purpose of the Refugees Convention (SZPZI at [52] – [53]).
In the current case the applicant was not undocumented in Iran. He was the holder of a “white card”. He was not denied employment opportunities. On his own evidence, he had been employed in the one position for nine years.
The Minister submits that while, as in SZPZI, the applicant here had (at [10] of the respondent’s supplementary written submissions):
“…not persuade the reviewer that he had experienced ‘serious harm’, or had reason to fear such harm: the Reviewer was thus not satisfied that the applicant had a ‘well-founded fear of persecution’ and it was therefore not necessary to go on to determine whether that was for a convention reason. Thus it was also unnecessary for the Reviewer to consider whether any of the categories articulated by the applicant’s adviser at CB 182 constituted a ‘particular social group’ within the meaning of the High Court authorities considered by Smith FM in SZPZI: Applicant S and Applicant S395.”
I have some difficulty with some of the articulation of the argument against the applicant’s ground in this way. Just because the reviewer found no well founded fear of persecution in the way that he did, and in the individual circumstances of the applicant, does not automatically mean that there was no separate Refugees Convention nexus on the basis of membership of a particular social group. Unless I have misunderstood the Minister’s submissions, that articulation appears to come perilously close to saying that the social group is defined by persecution and therefore the absence of persecution means there is no social group (see Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”)).
Where membership of a particular social group arises as an issue, consideration must be given as to whether there is a social group (relevant to the purpose) of which the applicant is a member and then to consider whether the persecution feared is for reason, or reasons, of membership of that group.
The question therefore is whether the issue of membership of a particular social group arises in the current case. The applicant says that, if nothing else, his representative made written submissions to the reviewer referring to a number of social groups of which it was claimed the applicant was a member (CB 182 to CB 183). The complaint is that the reviewer, in effect, failed to consider this part of the applicant’s “claims”. It is here that the distinction between “claims” and “evidence” in matters of this type is important. The first is the articulation of the reasons as to why the applicant says he fears persecutory harm. The latter is the asserted factual basis out of which those fear arises (SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 at [103] per Gray and Besanko JJ).
Further, in the current case, care must be taken with what is set out in the representative’s submissions to the reviewer. These submissions are the representative’s articulation of her view of the applicant’s factual claims and how they should, or could, be characterised by the reviewer.
What must immediately be noted is that a pattern, now seen with some regularity in this Court, appears to have emerged in cases of this type. That is, the submission by the applicants’ representatives to the reviewers of large amounts of material canvassing almost every theoretical possibility that may be put forward to establish Australia’s protection obligations towards any particular claimant.
While the submissions reproduced at CB 153 to CB 210 make some specific reference to the applicant, the relevant parts said to deal with membership of a particular social group are formulaic. Beyond mere assertion of the existence of a long list of social groups, no real attempt, beyond a simplistic equation, has been made to link the applicant’s personal circumstances to the groups posited. In effect, for example, Faili Kurds who are perceived to be of Iraqi nationality are subject to discrimination in Iran. By implication, therefore, as the applicant is a Faili Kurd perceived to be of Iraqi nationality, there is real chance of serious harm if he were to return to Iran. Therefore, he should be given protection in Australia.
Before the Court, some time was spent by the applicant in seeking to explain this ground. In essence however the argument, albeit in a different way, continued the simplistic approach utilised before the reviewer. That is, Smith FM found legal error in a situation involving a stateless Faili Kurd who resided in Iran and who complained about discrimination and the like, and therefore this Court now should do the same in the case of this applicant.
There are plainly some shared characteristics between the applicant in SZPZI and the applicant in the current case. What was missed by the applicant in his submissions before this Court is that it is not the point necessarily to rely on what Smith FM, or the relevant reviewer, did in that case. But whether there were elements, or factors, in the circumstances presented to the reviewer by this applicant and in the findings of fact made by the reviewer in the current case, which may posit the situation that the harm feared by the applicant could occur “by reasons of” (the language of the Refugees Convention) a shared characteristic, or characteristics, with a group of other people, so as to give rise to the obligation of the reviewer to consider whether that group was a “particular social group” within the Refugees Convention meaning (see Applicant S v Minister for Immigration & Multicultural Affairs & Anor [2004] HCA 25; (2004) 217 CLR 387 and Applicant A).
What were the possible elements in the circumstances presented by the applicant to the reviewer that may be relevant here? At best, he was a Faili Kurd, he was an Iraqi “refugee”, he was stateless, and he was, if he were to return to Iran, a returnee from a Western country who claimed he had left Iran illegally. However, I should also emphasis that, unlike SZPZI, he was not “undocumented” in Iran, and he had enjoyed stable long term employment (the latter was on the applicant’s own evidence).
The reviewer in the current case dealt with each of these elements. He accepted that there was discrimination against minorities in Iran. However he relied on DFAT advice that, in the case of one of those minorities (relevantly, Faili Kurds) there was no awareness of them being targeted simply because of their ethnicity ([36] at CB 441 to CB 442).
Rather, that Iraqi refugees, including Faili Kurds, were treated well in comparison to Afghan refugees and that racially motivated violence against any group was rare. Further, that those Faili Kurds who were targeted were those who were politically active (there was no suggestion that the applicant had been, or would be), they were not targeted simply because of their ethnicity. Even further, the applicant was supported in his “application for citizenship” by his neighbours and his local mosque ([36] at CB 442). By implication, these were factors arguing against the applicant’s claim of discrimination.
The reviewer also addressed the matter of risk of harm as a “returnee” and made a finding, open on what was before him, that the applicant would not be targeted for any Refugees Convention reason because he left Iran illegally and was “stateless” ([37] at CB 442).
In this light, I agree with the Minister’s position that, on the material and circumstances presented, and in light of the reviewer’s findings, there was no obligation on the reviewer to go on and consider whether any of the representative’s list of groups constituted a “particular social group”.
The applicant’s submissions also took issue with the reviewer’s treatment of the relevant DFAT report (March 2010) on which he based some of his findings above (as set out above).
First, I should note that the Minister’s response that the choice of, and use of country information, is a matter for the reviewer is not controversial and must be accepted as a general proposition (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10] – [11] and [14]).
To the extent that the applicant’s complaint before the Court largely took issue with how the reviewer used country information, and challenged factual findings made by the reviewer arising from this country information, then that authority, and generally such authorities as Wu Shan Liang, stand against the applicant to the extent that this ground is a challenge to the facts as found.
However, as best as it could be understood, the applicant’s complaint here appeared to also be that this information was not “sufficient” to deal with the applicant’s claims that he feared harm because of imputed political opinion. Namely, an anti-Iranian regime political opinion.
The applicant’s submissions here were unclear and, it must be said, somewhat confused. The “latest” expression of this point put before the Court was in the applicant’s written submissions in reply at [5], particularly at [5](b):
“a) NAHIat (14) was concerned with an alleged failure to comment in reasons on ‘country information’ put in evidence by the applicant and the complete quote is as follows: ‘The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.’ It has no application to a failure to deal with an integer of a claim, but merely supports the uncontroversial principle, that reasons need not explain how every item of evidence was dealt with.
b) No ‘response’ is ‘apparent’ from the paragraphs of the Recommendation cited, to the integer of the applicant’s claim, that he feared persecution for an imputed political opinion. Para.36 talks of ‘racially motivated violence’ and 37 about the risk of harm as a ‘returnee’. It does not appear, that the Reviewer considered the question of persecution within Iran being motivated by the imputation of an anti-regime political opinion to undocumented Faili Kurds, rather than by their race. Nor does it appear why the integer of the claim was not accepted. Moreover in terms of NAHI, there is no mention of any evidence supporting (or opposing) this integer of the claim, let alone any explanation of how it was dealt with.”
It is also unclear from the applicant’s submissions generally whether the applicant’s complaint is that the reviewer failed to deal with the claim to fear persecutory harm because of imputed political opinion said to arise because the applicant was an undocumented Faili Kurd. That is, because of the applicant’s Faili Kurd ethnicity. The applicant appears to complain that the reviewer only dealt with “race”. It is also unclear whether it is alleged that the reviewer only dealt with the fear of imputed political opinion arising because of “race”, or only dealt with the fear of persecution arising from “race”. That is, no consideration of imputed political opinion whether in terms of race or ethnicity. Before the Court, and in written submissions in reply, the reference was to “actual or imputed ‘nationality’” (see for example [52] of the applicant’s submissions in reply).
It must be said that the following cognisance must be taken of the fact that the drafters of the Refugees Convention appear to have overlooked a simple “biological” fact that there is only one relevant “race” on Earth – the human race. In scientific terms therefore, to talk of being persecuted because of some different “race”, in that sense, presents a difficulty. However I did not see the applicant’s inability to properly articulate his complaint as arising because of this.
It may be allowed that “race” in the Refugees Convention was used in the sense of “ethnicity”. The United Nations High Commission for Refugees (UNHCR) Handbook states (at [68]):
“Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.”
In Calado v Minister for Immigration & Multicultural Affairs (1998) 81 FCR 450, Tamberlin J held:
“When considering the meaning of the expression “race” in a case such as the present, it is appropriate to take into account the “popular” understanding of the term which accords importance to physical appearance, skin colour and ethnic origin. There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins. Another consideration is whether the characteristics of members of the group are those with which a person is born and which he or she cannot change. These questions are discussed by Brennan J in The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 243-244. At the latter page his Honour said:
‘As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by par (xxvi). The kinds of benefits that laws might properly confer upon people as members of a race are benefits which tend to protect or foster their common heritage or their common sense of identity. Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide...’”
To the extent therefore that the complaint is that the reviewer only dealt with “racially-motivated violence” as opposed to the applicant’s Faili Kurd ethnicity, then the relevant terms are clearly used interchangeably by the reviewer, and for that matter DFAT. Therefore, no error is revealed here when regard is had to [36] (at CB 441) to [37] (at CB 442) of the reviewer’s statement of reasons.
To the extent, therefore, that parts of the first reviewer’s interview were conducted in Arabic, and the remainder of that interview and the entirety of the first interview before Mr Griffin were conducted in Faili Kurd (not the applicant’s “chosen or native language”) on its own, and for the reasons given below, this does not ultimately assist the applicant in revealing a failure of procedural fairness in what Mr Griffin has done.
One aspect of the applicant’s complaint is that it was not open to the reviewer to take into account evidence given at the first reviewer’s interview. It appears that two reasons (in addition to the “preferred language” reason) are put forward in support of this specific argument.
The reviewer, it is said, to have relied on at least one part of the applicant’s evidence at the interview with the first reviewer to make an adverse credibility finding. That is, that the applicant’s claims to have been physically abused by the Basij were later “inventions” and “fabrications”. Second, that the applicant was “…not able to express my feelings and myself at that interview” (1T 13, lines 20 – 21, with reference to the first reviewer’s interview).
It is well to be reminded of the central, or critical, issue in the reviewer’s adverse credibility finding. That was the applicant’s failure to mention at the initial entry interview and in his written statement of claims lodged prior to any of the three “review interviews”, the assaults by the Basij (see also ground six above). This, relevantly, is the basis for the finding of “fabrication”.
Whatever may have been said at the interview with the first reviewer, whatever may have been, even inadequately, interpreted, the reviewer compared the applicant’s evidence at the initial entry interview (“no one has hurt me” – CB 25) with his later evidence maintained at the interviews before him, and in submissions by the representative, that he had been physically assaulted and the like. This alone stands in answer to the applicant’s complaint. Whether the applicant mentioned being beaten by the Basij, or not, at the interview with the first reviewer is irrelevant in these circumstances, thereby rendering any inadequacy in interpretation also irrelevant.
However, it is also the case that the reviewer did address the question of the inadequacy of interpretation at the interview with the first reviewer. He specifically adjourned the interview on 21 January 2011 (the first interview before him) once having been put on notice of this matter. A transcript of that earlier interview, by an “independent” interpreter, was obtained and provided to the applicant’s representative, who subsequently confirmed at the second interview that she had “discussed [the transcript] in detail” with the applicant.
At the second interview before Mr Griffin, the applicant accepted the accuracy of the transcript of the first reviewer’s interview (see further below). He confirmed that this was the first occasion on which he had claimed to have been physically assaulted by the Basij. Noting again that, in terms of significance to the reviewer’s recommendation, whether that was the first occasion, or not, was irrelevant. What was of central and critical significance was that there was no suggestion from the applicant that he had raised the physical assault issue at his initial entry interview, or in the first written claims.
The applicant’s complaint now that he was not given a reasonable opportunity to address the issue said to be involved in the question of the inadequacy of the interpretation at the first reviewer’s interview simply cannot be sustained.
The applicant’s complaint that he was unable to express his feelings at the interview with the first reviewer does not, in the circumstances set out above, reveal any failure of procedural fairness on the part of the reviewer. Further, and specifically, in relation to the issues determinative of the review, and significant to the recommendation, the applicant was given the opportunity with his “preferred” Persian speaking interpreter to put his evidence and understand the case against him at the second interview before Mr Griffin.
In submissions, the applicant relied on SZGWN v Minister for Immigration & Citizenship [2008] FCA 238 (“SZGWN”) at [37] per Gilmour J for the proposition that “errors” in interpretation “at an early stage of proceedings cannot necessarily be cured by subsequent additional evidence” (the applicant’s written submissions at [88]). This was said with reference, in particular, to what was said in SZGWN at [37] (per [88] of the applicant’s written submissions):
“… The negative impression in the mind of the Tribunal Member conveyed by the appellant’s answers, incorrectly interpreted, is, in my opinion, difficult if not impossible to eradicate, after the hearing. Such a negative impression, in one area of evidence, such as the question of when the appellant began to practice Falun Gong in China, will often affect a decision-maker’s conclusions in other areas. It is impossible to discern the affect such impressions made at the time may have had on the Tribunal’s conclusions as a whole: cf Applicant NAAF of 2002 at [40]. The subsequent characterisation of this evidence as a ‘misunderstanding’ by the Tribunal does not inevitably overcome the unfavourable impression obtained at the hearing by the Tribunal concerning the appellant’s credit.”
The circumstances of this case are, with respect, so far removed from what was before the Court in SZGWN that it invites the comment that the applicant’s representatives before the Court have either misunderstood what was, in my respectful view, plainly said in that case, or did not attend to it with sufficient care.
First, in the current case, the impugned interview was not conducted by the reviewer whose recommendation is the subject of the current proceedings. It was conducted by another reviewer. The reviewer who made the recommendation under current consideration was not at that interview so as to have formed a “negative impression” in his mind at an earlier time.
Second, and further, I respectfully understood that the reference in SZGWN at [37] per Gilmour J to the difficulty in subsequently “curing” such a negative impression by subsequent evidence, to have been put in the circumstances of that case. In SZGWN the relevant decision maker, although giving the applicant the opportunity to make written submissions about the inadequacy of interpretation, did not proceed to a second hearing. That issue was of some relevance in SZGWN, albeit in the context of the discussion of s.425 of the Act (which does not, in any event, apply in the current case) (see SZGWN at [40]).
What I respectfully understood from SZGWN is that the decision maker’s negative impression could not be “cured” in the circumstances of that case simply by the applicant providing subsequent written submissions. While a second ground of attack in SZGWN, that of an apprehension of bias on the part of the decision maker arising from the same circumstances, was not upheld, it is clear that the appeal was upheld, in part, because of the negative view taken by the decision maker at the one, and only, hearing and in circumstances where the perceived “cure” (the written submissions) was inadequate to address the infection of the decision maker’s mind at the hearing.
Plainly, that is not the case here. The reviewer’s mind in the current case had not been infected as in SZGWN. In that sense, there was nothing in the reviewer’s mind that required “curing”.
Further, apart from the reviewer not being at the first reviewer’s interview, it cannot be said that the reviewer did not take steps to properly “cure” whatever concerns emanated from the first reviewer’s interview and even whatever concerns (unparticularised now) may have arisen from the first interview before him.
Whatever inadequacies occurred these were plainly “cured” at the second interview with the reviewer (2T 7, line 27 to 2T 8, line 14 and following):
“IMR:Ok, I just want to clarify some facts [applicant]. I did this last time but there were some concerns about, well I want to be satisfied that I’ve covered the important issues with you in a language where you’re confident that you are telling me what I’m asking you. And so it’s critically important that if you’re not sure of what I’m asking you or you’re not sure of the interpreting, you must tell me, please.
As I said to you at the last interview, the interpreter’s role is to help us to talk to each other. It’s not the interpreter’s role to give advice to you or to me, but the interpreter can assist us as he has already done.
But it doesn’t assist if the interpreter changes the meaning or adds to what you’re telling me. So please be careful in how you word your answer and take your time and give time for the interpreter to communicate it.
Ok, you were born in Iraq?
C: Yes.
IMR: You lived, you went to Iran when you were one years of age?
C: Yes, that is correct we were expelled from Iraq.
IMR: You went with your mother?
C: Yes.
IMR: Your father was imprisoned in Iraq and died there?
C: That is correct.
IMR: You have no brothers or sisters?
C: Correct.”
[And following - I note that the transcript continues with references to the applicant’s factual account of past events.]
The applicant has put nothing before the Court to say that the second interview before Mr Griffin contained inadequate interpretation. Nor, importantly, what issues discussed earlier were not again aired at the second interview. Mr Griffin did, in the circumstances of this case, and contrary to what occurred in SZGWN, conduct a second interview where the significant issues were, again, exposed.
As noted above, the applicant’s legal representatives before the Court did not feel constrained to limit their submissions to the ground as stated. This required some attention by the Court, lest it subsequently be said that proper consideration was not given to all of the applicant’s arguments.
The submissions in support of particulars “b” and “d” to ground three (both before the Court and in written submissions at [90]) appear not to be a complaint about the adequacy of interpretation, but that the reviewer did not give the applicant the opportunity to comment on his views of the applicant’s evidence and did not identify, in his “decision record”, those of the applicant’s claims which he found to be credible, and the like.
It is the case, as referred to above, that the applicant is entitled to know the case against him. The decision maker cannot remain silent on any issue on which the outcome of the review may turn. That is especially the case where there is an issue that is critical to the outcome and the nature of the issue is not apparent in the circumstances presented (for that matter, which also is not apparent from the statute under which a decision is made – see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (“Alphaone”) at 592).
However, once the issue is raised, the decision maker is not required to invite comment on his thought processes about the evidence in the process of considering his recommendation (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154 /2002 [2003] HCA 60; (2003) 201 ALR 437 at [54] per Kirby J and the reference to Alphaone at 592).
The relevant and critical issue here was the applicant’s “late” raising of the claims of physical harm at the hands of the Basij. This issue was squarely raised, at least, at the second interview before Mr Griffin (see 2T 9, lines 17 – 33, 2T 10, line 29 to 2T 11, line 22). The applicant gave his relevant explanation as to why the claims were not raised initially (2T 11, line 25 to 2T 12, line 5). That the reviewer was not persuaded by the applicant’s explanation does not reveal a failure of procedural fairness, nor any other legal error.
As to the claim that the reviewer failed to give reasons for his adverse findings in his recommendation, those reasons are given, as the Minister submits, at [35] (at CB 441) (see also [18] at CB 432 and [27] at CB 435 for explanation). They may not be to the applicant’s liking, and they may have benefited from some clarity and further explanation, but they are reasons sufficient to dispose of the applicant’s complaints now. That is, all of the complaints as raised in relation to ground three.
In all, ground three is not made out.
Ground Four
Ground four asserts jurisdictional error on the part of the reviewer in relation to how he “construed” evidence before him. The particulars assert as follows. First, the reviewer “construed” the evidence of the Australian Embassy staff in Tehran that they were unaware of Faili Kurds being targeted because of their ethnicity as being capable of contradicting the applicant’s “positive” evidence that they were [particular (a) to ground four].
Second, the reviewer did not apply “later independent expert evidence” to which he was referred, and thereby failed to apply the “most recent credible evidence” [also particular (a) to ground four].
Third, the reviewer “construed” the evidence of the applicant’s achievements in education, employment, social and religious support as preventing the occurrence of “serious harm” [particular (b) to ground four].
Before the Court, the applicant was unable to satisfactorily explain why this ground was nothing more than a request to the Court to engage in impermissible merits review (Wu Shan Liang). Nothing in the applicant’s written submissions in reply altered this state of affairs.
First, as the Minister correctly submits, and as set out above, it is well established that the choice of country information, the weight to be placed on it, and the inferences to be drawn from it, are matters for the reviewer, and not this Court (NAHI at [11] – [12]). The applicant before the Court does not dispute this.
What the applicant contends however is that the reviewer was under an obligation to have regard to the most current, credible material in making his “decision” (see the applicant’s written submissions at [96]). The applicant refers to Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24 (“Peko Wallsend”) in this regard. Unfortunately, he makes no reference to what particular part of that case gives rise to this proposition. It may be that the applicant sought to rely on Peko Wallsend at [20] per Mason J:
“The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner's report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner's comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner's report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”
The applicant’s unsatisfactory submissions in this regard leave unexplained how the circumstances before the High Court in Peko Wallsend, and the principle enunciated there, apply to the current circumstances. In Peko Wallsend the High Court was concerned with the exercise of certain statutory powers in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The relevant scheme involved a recommendation to the relevant Minister from the Aboriginal Land Commissioner about land claims, and the subsequent exercise of a discretion by the Minister for Aboriginal Affairs in that regard. The quote above must be read in that context.
In the current case, the applicant says the reviewer relied on, and preferred the DFAT information and did not consider the more recent country information referred to in written submissions by the applicant’s representative after the interview. That country information is identified by the applicant at [95] of his written submissions.
I agree with the applicant that the Minister was in error in his written submissions to say that the applicant had not identified the relevant country information to the Court (see the Minister’s written submissions at [38]).
As submitted by the applicant, it may be allowed that the current case and Peko Wallsend involve a “recommendation”, but that is where the “similarities” end. It is clear in Peko Wallsend that the focus was on the exercise of the Minister’s discretion and whether, in coming to consider the exercise of a (statutory) discretion, some one and a half years after the recommendation was made, the Minister should have had regard to more recent information that may have been to hand.
The current case here has not “progressed” to any such stage. The focus here is on the reviewer’s recommendation. In this light, at best for the applicant, what can be said is that some analogy may be drawn to say that the Minister (when, or if, the recommendation comes to him) may be required to have regard to relevant, and “later”, material available to him subsequent to the reviewer’s recommendation.
In this regard, what the applicant further appears to have overlooked is that, in his statement of reasons, the reviewer specifically noted the provision of the representative’s information ([28] at CB 438):
“The country information is detailed in the RSA Officer’s assessment, the adviser’s submissions, including material provided after the interview published by Amnesty International, the International Federation for Human Rights and the US State Department.”
[Emphasis added.]
The order in which the country information reports are referred to here, and their description, matches what is set out in the representative’s submissions to the reviewer (see at CB 262).
In these circumstances, this situation is closer to the circumstances contemplated and addressed in NAHI, and NAHI should be applied, as set out above.
The applicant also submits (at [97] of his written submissions) that “… a statement of lack of awareness of a fact can hardly rationally contradict a positive statement of the existence of that fact.” This, again, seeks to cavil with the reviewer’s finding of fact. While another reviewer may indeed have come to a different view, the relevant finding was open to the reviewer on the material before him and provides the answer to the applicant’s charge of irrationality (see SZMDS and SZOOR as referred to, and set out, above).
The other limb of this ground deals with what is said to be the reviewer’s construction of the applicant’s evidence in relation to a range of factors, and how they were assessed in light of what constitutes “serious harm”.
In many ways, this is another example of one of the matters raised in relation to ground two. The applicant acknowledged this in his written submissions (at [98]).
The reviewer accepted that minorities in Iran, including Faili Kurds were subjected to discrimination in Iran. It is clear, if for no other reason than the reference to “serious harm”, in context, at [36] at CB 442 that he understood that the task set for him by the Minister in making his recommendation included whether the discrimination the applicant would suffer if he was returned to Iran constituted “serious harm” for the purposes of s.91R(1)(b) in particular, and see s.91R(2) of the Act.
As set out above, the test that the reviewer was required to apply was a forward looking test. It is the case that past events can help inform as to the foreseeability of persecution in the future (Guo Wei Rong, particularly at 574-575, Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 87 ALR 412 and Abebe v Commonwealth [1999] HCA 14; 197 CLR 510; 162 ALR 1). However, the relevant test is one focussed on the future.
There was some dispute between the parties before the Court as to the exact nature, and scope, of the reviewer’s relevant findings here. What can be said is that the relevant “list” of what constituted “serious harm” in s.91R(2) of the Act is not exhaustive. However I do not comprehend that s.91R(3) of the Act compels the reviewer to consider all of what is on the “list”, and beyond, in some abstract or theoretical sense.
What defines, or provides, the framework for what the reviewer is required to relevantly consider in each individual case are the circumstances of that case. Plainly, the statute seeks to provide as wide a basis as possible to enable as wide a scope as possible to facilitate consideration of serious harm emanating from the infinite capacity of governments, and their agents, throughout the world to inflict serious harm on their own citizens and residents.
In the current circumstances, the reviewer’s acceptance of the occurrence of discrimination compelled the consideration of whether such discrimination would amount to “serious harm” for the applicant in the reasonably foreseeable future. On this question, the reviewer had regard to the applicant’s account of past events and circumstances relevant to the applicant.
The reviewer reasoned that the “facts” of the applicant’s circumstances, as he found, did not amount to “serious harm”. The applicant had claimed before the reviewer that he would suffer discrimination if he returned to Iran (the reviewer accepted this), and that that discrimination would amount to “serious harm” in the future. Based on past events, the applicant’s individual circumstances, and what the reviewer found to be a lack of credible evidence that the applicant would be “systematically” targeted by the Basij or anyone else, the reviewer concluded that the applicant would not suffer persecution if he were to return to Iran.
The applicant has not pointed to what other factors he raised with, or presented to, the reviewer that could have been relevant to the reviewer’s “construction”. Further, and in essence, if the applicant’s complaint is that it was not sufficient, or not open, to the reviewer to rely on past events that must be rejected.
In all, ground four is not made out.
Ground Five
Ground five asserts that the reviewer fell into jurisdictional error in failing to have regard to, or consider, certain relevant considerations. They are particularised as (for ease, given the precise presentation, as per [39] of the respondent’s written submissions):
“a. the submissions made by the Applicant’s migration agent on 13 January 2011;
b. the country information cited in the agent’s submissions made on 12 June 2011;
c. the fact that the evidence of the Applicant in his entry interview, RSA and prior IMR re his harassment by the Basij was consistent with his evidence to the Reviewer;
d. the obvious ambiguity of various terms relating to the level of physical harm which the Applicant alleged to have experienced at the hands of the Basij…”
[Note particular (f) to ground five was not pressed. Before the Court, the applicant did not press particular (e) to ground five]
Particular (a) relates to submissions made by the applicant’s representative on 13 June 2011. The applicant says that there was no regard to, or consideration of, the submissions (those reproduced at CB 153 to CB 186, and annexures CB 187 to CB 2012).
The applicant concedes that some reference is made in the reviewer’s statement of reasons to the submissions. But, the applicant counters the Minister’s reliance on this “concession” by submitting that “merely” “mentioning” a citation in the statement of reasons is not sufficient to say that regard was had to it by the reviewer. The applicant relies on WAEE for the proposition that a “lack of mention of evidence” can show a lack of consideration.
The applicant’s submissions now appear to confuse the concepts of “submissions”, “evidence” and “claims” and “consideration” of claims. That is, claims to fear persecutory harm. As set out elsewhere in this judgment, there is no doubt that authorities such as WAEE, NABE (No.2) and, for that matter, Htun, stand for the proposition that the reviewer, relevantly, is required to consider every claim, and integer of a claim, “expressly made and clearly arising” from the material presented” (NABE (No.2), in particular, at [61] per Black CJ, French and Selway JJ).
The applicant has not pointed to any such claim that was not considered by the reviewer. If the complaint of legal error, therefore, is that the reviewer did not refer to all of the “evidence” referred to in the applicant’s submissions to the reviewer, then the applicant has provided no authority to support such a proposition. Nor, similarly, if the complaint was that the reviewer failed to consider the submissions as arguments on their own. Any such failure would not, in any event, in the circumstances of this case, amount to a failure to take into account a relevant consideration as that concept is understood.
In any event, and in answer also to particular (b) to this ground (which deals with country information), what is set out immediately above also stands in answer to these complaints. The reviewer dealt with each of the applicant’s claims to fear persecutory harm. He set out in his statement of reasons that material, including the evidence, on which his findings of fact were based. No legal error is revealed here.
Particular (c) to ground five has already been addressed in ground three above. It does not succeed for the reasons there. The applicant may assert that his evidence was consistent across each of the occasions he gave it, but it was reasonably open to the reviewer to take the view that the applicant omitted to make certain claims (give evidence) on the earlier occasions, which he made later.
Particular (d) to ground five is, as the Minister submits, essentially a call for impermissible merits review. The issue of when the applicant first claimed to have been beaten by the Basij and the applicant’s explanation as to why he did not mention it earlier has already been addressed elsewhere in this judgment. The reference to the “ambiguity” of the “terms” interpreted from the interpretation in other than the applicant’s preferred language has also been addressed above. Even if any ambiguity had existed, the second interview before Mr Griffin was, on its own, the applicant’s opportunity for clarification. This particular seeks to re-agitate the complaints about interpretation made in other grounds.
In all, ground five is not made out.
Ground Eight
Ground eight (ground seven of the further amended applicant, referred to as “ground eight” before the Court) asserts that the reviewer fell into jurisdictional error by taking into account irrelevant considerations. Both particulars relate to grounds already considered in this judgment
The first particular relates to ground three. It asserts that the reviewer took into account an “irrelevant” consideration from the first reviewer’s interview. The basis for this particular complaint is with what the reviewer wrote in his statement of reasons at [17] (at CB 434 to CB 435):
“The first IMR reviewer wrote in his decision:
‘The panel asked the applicant if he had ever been assaulted or persecuted by the Basij. He said he had not but he was constantly abused verbally. He also said he was however aware that a friend’s brother was beaten by the Basij’.”
The applicant now says that this was an “incorrect summary”. It may well be that what was reported as having been written by the first reviewer was incorrect. What the applicant fails to understand now is that, as set out above, the reviewer went through a process, as described above, of clarifying the applicant’s evidence. The reviewer’s findings emanated from, and were based on, that clarification (irrespective of what the reviewer may have earlier reported as having been written by the first reviewer). I agree with the Minister that, ultimately, the reviewer correctly understood the applicant’s evidence. Critically, as also set out above, what the applicant told the first reviewer was not the issue. It was the failure to mention earlier, at the initial entry interview and in the written statement of claims, his subsequent claim to have been beaten by the Basij.
The second particular relates to the DFAT report comparing the treatment in Iran of Afghans and Faili Kurds. This is similar to ground four. To the extent it is similar to ground four, it has been addressed above in ground four and does not succeed for the reasons set out there. There may be additional iterations in this ground, in that the particular focus of the applicant’s submissions here appears to be what is said to be the “absence” of a “reference point” to the material at the initial entry interview and in written submissions such as to allow an assignment of weight to the level of harm feared.
The answer to this complaint is that the reviewer’s reference to the DFAT report, and his assessment and findings at [36] (which appears to be the focus of this complaint) must be read in context, and without an “eye keenly attuned to the perception of error” (Wu Shan Liang at [30] with reference to Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280).
The critical part of the DFAT advice was that there was no awareness of the targeting of Faili Kurds in Iran because of their ethnicity. Further, that racially motivated violence was rare, and that any targeting was directed to those who are politically active.
This is the “reference point” that the applicant claims is missing in the reviewer’s consideration. That Afghans are treated less favourably than Faili Kurds, or that Faili Kurds are treated more favourably then Afghans, did not detract from the reviewer’s reliance on the DFAT information, to which it was a matter for the reviewer to accord weight, that Faili Kurds are not targeted for reason only of their ethnicity. Ground eight is not made out.
Conclusion
None of the eight grounds of the further amended application, as stated as variously submitted and as “explained”, are made out. In those circumstances, it is appropriate that the application to the Court, as amended, and further amended, be dismissed. I will make an order accordingly.
I certify that the preceding two hundred and sixty-six (266) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 13 February 2013
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