SZRQG v Minister for Immigration
[2013] FCCA 111
•24 April 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRQG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 111 |
| Catchwords: MIGRATION – judicial review – independent protection assessor – whether failure to provide country information – whether failure to provide opportunity to comment on country information – whether failure to deal with claims of risk of persecution – whether error of law – whether denial of procedural fairness. |
| Legislation: Migration Act 1958 (Cth), s.476 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees |
| Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Darabi vMinister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 F Hoffman La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 Kioa & Ors v West& Anor (1985) 159 CLR 550 Minister for Immigration and Citizenship v SZQGG (2012) 200 FCR 223 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2005) 144 FCR 1; [2005] FCAFC 263 NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 Plaintiff M61/2010E & Ors v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 |
| Applicant: | SZRQG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 1518 of 2012 |
| Judgment of: | Judge Kemp |
| Hearing date: | 8 March 2013 |
| Date of Last Submission: | 8 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cirillo |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The Applicant’s Amended Application filed 3 October 2012 is dismissed.
The Applicant to pay the First Respondent’s costs as agreed or assessed.
The parties have leave to apply to set aside or vary order 2 within 28 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1518 of 2012
| SZRQG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a male Shi’a Muslim with Iranian citizenship who arrived in Australia on 6 March 2011. On 21 May 2011, he made, pursuant to a request for a protection obligations evaluation (“POE”), a claim for protection on the basis that he was a person to whom Australia owed obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).
The applicant’s claim is based on his fear of persecution by the authorities in Iran due to his perceived opposition to the Iranian regime, owing to his assertions that he had:
a)participated in more than 25 anti-regime protests following the June 2009 elections in Iran;
b)sought protection in Australia; and
c)supported the Mosavi.
The ground referred to in paragraph 2 (c) above has not been further advanced in these proceedings.
On 24 May 2011, the applicant attended a POE with, Ms Danuta Szuszkiewicz (“DS”) (“the POE officer”), an officer in the employ of the Minister for Immigration and Citizenship (“the Minister”), the first respondent (“the POE interview”).
On 18 July 2011, the POE officer found that the applicant did not meet the definition of a refugee under the Convention. The applicant’s case was then automatically referred for independent protection assessment (“IPA”).
On 22 July 2011, the office conducting the independent protection assessment acknowledged receipt of the referral from the first respondent’s department.
On 30 October 2011, the applicant attended an interview with the assistance of an interpreter and a legal adviser (“the IPA interview”) with the second respondent, as the independent protection assessor (“the Assessor”).
On 20 January 2012, the Assessor recommended to the first respondent, the Minister, that the applicant not be recognised as a person to whom Australia owes protection obligations under the Convention. The Assessor’s recommendation and reasons (“the Reasons”) were communicated to the applicant on 23 January 2012.
The applicant seeks judicial review of the Assessor’s recommendation and the relief claimed as set out in his amended application filed on 3 October 2012 (“the Application”) which includes declaratory, injunctive relief and costs as set out therein, pursuant to s.476 of the Migration Act 1958, which provides as follows:
(1)Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2)The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a)a primary decision;
(b)a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3)Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975 .
(4)In this section:
"primary decision" means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period.
For “Federal Magistrates Court” now read “Federal Circuit Court”.
The applicant relies on:
a)An affidavit of Christopher Scott Nielsen sworn on 3 October 2012 and filed on 3 October 2012, which annexes a copy of the transcript of the IPA interview conducted on 30 October 2011 (“the IPA Transcript”).
The Minister’s response to the application filed on 15 October 2012 opposed the making of the orders sought in the Application.
The Minister relies on:
a)An affidavit of Marie Helena Ratterree affirmed on 4 October 2012 and filed on 4 October 2012, which annexes a copy of the transcript of the POE interview conducted on 24 May 2011 (“the POE Transcript”).
The second respondent abides the orders of the Court, subject to any question of costs.
The applicant initially sought an extension of time under s.477 of the Migration Act 1958 for his original application which was filed in this Court on 12 July 2012. The parties now accept that no extension is required in light of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship & Anor (2012) 286 ALR 331.
The applicant was represented by Ms Cirillo of Counsel.
The first respondent was represented by Mr Smith of Counsel.
Counsel each provided detailed written submissions and spoke to those.
The Court has before it as Exhibit “Court 1”, the relevant Court Book (“CB”) to which both counsel made reference to in their written and oral submissions.
Grounds of review
The applicant asserts the following two (2) grounds of review:
a)First, that the Assessor fell into legal error in failing to afford the applicant procedural fairness because the Assessor substantively relied on certain country information in respect of returned asylum seekers in his findings and reasons which were not:
i)put to the applicant during the IPA interview;
ii)cited by the applicant’s legal representatives in their submissions to the Assessor dated 20 October 2011;
iii)contained in the material before the POE interview; and
iv)provided to the applicant following the IPA interview,
so as to invite the applicant to comment upon the said country information.
Particulars
1. The Assessor cited the UK Home Office, Country of Origin, Information Report – Iran, dated 26 January 2010 (see paragraph [32] of the IPA reasons); (“Document 1”) (also referred to as Document “D” in the applicant’s submissions).
2. The Assessor cited the RRT Country Advice Service 2010, Research Response IRN37363, 1 September 2010 (see paragraph [33] of the IPA reasons); (“Document 2”) (also referred to as Document “E” in the applicant’s submissions).
3. The Assessor cited the RRT Country Advice Service 2010, Research Response IRN37040, 3 August 2010 (see paragraph [34] of the IPA reasons); (“Document 3”) (also referred to as Document “F” in the applicant’s submissions).
4. The Assessor cited the RRT Country Advice Service 2010, Research Response IRN36407, 15 April 2010 (see paragraph [35] of the IPA reasons); (“Document 4”) (also referred to as Document “G” in the applicant’s submissions).
5. The Assessor relied on the information particularised in paragraphs (1) to (4) above in forming his conclusion, (see paragraph [60] of the IPA reasons).
b)Secondly, that the Assessor fell into legal error in failing to afford the applicant procedural fairness because the Assessor substantively relied on country information concerning censorship in his findings and reasons which was not put to the applicant for his comment.
Particulars
1. The Assessor relied on country information which he described as being “reported” in the “general information about Iran” to reject evidence about raids on the applicant’s family home that was central to the applicant’s claims (see paragraph [58] of the IPA reasons).
The applicant, initially, submitted that he was entitled to have identified the source of the above referred country information. At hearing, the applicant conceded that, in the present case, the Assessor did not need to provide a copy of each item of country information to him, nor identify its source, provided its substance was put.
Legal principles
The applicant sets out in his outline of submissions the following relevant legal principles, which are not the subject of dispute. Those provide:
a)Procedural fairness requires that “a person should have an opportunity to put his or her case and to meet that case that is put against him or her”: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per Gaudron J at [99]. See also Kioa v West (1985) 159 CLR 550 per Mason J at 587 and Brennan J at 550 and 628-9.
b)The opportunity should be given to deal with adverse information that is “credible, relevant and significant” to the decision to be made: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [15].
c)Therefore, the substance of matters that the decision-maker knows of and considers may bear upon whether to accept an applicant’s claim must be put before an applicant: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 per French CJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [77].
d)In Darabi v Minister for Immigration & Anor [2011] FMCA 371, Nicholls FM determined what is required by the procedural fairness requirement and referred to Allsop J in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [27] – [28] per Allsop J (Gyles and Conti JJ agreeing at [17]). His Honour Nicholls FM said:
The answer lays in what Allsop J said at [27] and at the beginning of [28]: “Natural justice is ultimately a question of fairness”… What is fair depends on the circumstances of the particular case. That is, it is those circumstances that will dictate what is required by way of procedural fairness. I emphasise that what is required is such as to ensure that the claimant knows the case against him, and has the opportunity to put his case.
e)That not every item of country information which has not been expressly raised with an applicant necessarily results in a denial of procedural fairness: Minster for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 per Rares and Jagot JJ at [27] and [31]. As Smith FM said in SZQHC v Minister for Immigration & Anor [2011] FMCA 851 said at [31]: “The particular information, its relationship to the refugee claims and how they have been presented, and its relevance to the reasoning which was adopted by the decision-maker, need to be examined closely”.
f)However, the substance of ‘credible, relevant and significant’ country information must be put to a claimant for their consideration and comment. What is meant by substance should be understood in this particular case as enough “to [have brought] the critical issue or factor on which the decision was likely to turn to the attention of the [applicant]”: see Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 per French CJ, Gummow, Hayne, Crennan and Kiefel JJ at [19] and also SZQVO v Minister for Immigration & Anor (No.2) [2012] FMCA 512 per Nicholls FM at [57].
The Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZQGG (2012) 200 FCR 223 (Rares, Flick, and Jagot JJ) in dealing with obligation of procedural fairness in respect of country information stated at paragraphs 30 and 31 the following:
[30] “… the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice… .”
[31] “… In general, the decision-maker need not disclose more than the substance of the information, however it has been conveyed to him or her. The position may be different if the particular form in which the information was conveyed itself affects the meaning of the information or because some unusual or particular characteristic has a bearing on its credibility, relevance or significance.”
The Court has also had regard to the decision of Justice Dodds-Streeton in MZYVM v Minister for Immigration and Citizenship [2013] FCA 79 where her Honour had the occasion to provide a very useful and cogent summary of the law as it now stands relevant to the disclosure of information to an applicant, in the circumstances of this applicant, in the following quoted paragraphs:-
[56] In Kioa, Brennan J acknowledged that procedural fairness did not require that all adverse information be put to a claimant. His Honour stated:
The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision making is not to be clogged by inquiries into allegation to which the repository of power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed.
[57]Brennan J recognised, in that context, (at 629) that:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
[58] In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”) at [16]-[17], the High Court referred to Brennan J’s observations in Kioa and elaborated on the meaning of “adverse information that is credible, relevant and significant to the decision to be made”. Their Honours (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) stated:
As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made only a few sentences earlier: that “[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.
It follows that what is “credible, relevant and significant” information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
[59]In NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40 at [84], Allsop J stated of Brennan J’s comments (at 629) in Kioa:
This passage indicates that it is not sufficient to seek to shut out or disavow the relevance of material if it is “credible, relevant and significant” and if it is material of the kind that creates a real risk of prejudice, albeit subconscious. To a degree, as the last sentence of the passage shows, the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision, but rather on the appearance of a fair hearing and the maintenance of confidence in the administrative process and judicial review of it.
[60] In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 the Full Court (Northrop, Miles and French JJ) clarified the requirements of procedural fairness in putting adverse information, as follows:
It is a fundamental principle that where the rules of procedural fairness apply to a decision making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41.
[61] The Full Court observed that natural justice did not require the decision maker to disclose what he or she is minded to decide so that the parties have the opportunity to criticise the decision maker’s mental processes before reaching a final conclusion: (F Hoffman La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock). If, however, information on a factor personal to the claimant was obtained which was likely to affect the outcome, the claimant should be given the opportunity to deal with it.
[62] The Full Court noted that the above general propositions were subject to two qualifications propounded by Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108 109. First, the person affected by the decision was entitled to be directed to the critical issues or factors on which the decision was likely to turn, in order to have the opportunity of dealing with it (Kioa per Mason J at 587). Secondly, the person affected by the decision was entitled to respond to any adverse conclusion drawn by the decision maker on material known to be the subject which was not an obvious or natural evaluation of the material.
[63] The Full Court stated at (at 591-592):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).
[64] In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [91], the High Court stated that:
procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiffs’ claims ... The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made’.
Consideration
The relevant substance of the country information contained in each of the four documents (referred to in paragraph 19 above) was asserted by the applicant to be:-
a)Document 1 (Document “D”) stated that observers “had seen no evidence that failed claimants, persons who had illegally exited Iran…faced any significant problem upon return to Iran (although cases that gain a high profile may face difficulties)” (para [32] of the Reasons);
b)Document 2 (Document “E”) indicates that Iranians who have been critical of the Government whilst abroad are likely to face interrogation and possible detention upon return to Iran and that returned asylum seekers may be interrogated upon return (para [33] of the Reasons);
c)Document 3 (Document “F”) indicates that there is no evidence that failed asylum seekers face any significant mistreatment on their return to Iran (para [34] of the Reasons); and
d)Document 4 (Document “G”) indicates that Iranians who participate in protests outside Iran or who criticise the Iranian government on Facebook may be subject to harassment by Iranian authorities on return to Iran (para [35] of the Reasons).
The Minister did not dispute that the substance of the country information contained in each of the documents referred to above was other than as asserted by the applicant.
The applicant says and the Minister accepts that the country information contained in Documents 1, 2, 3 and 4 (referred to above) were discussed by the Assessor in forming his conclusion (as set out in paragraph 60 of his reasons) as follows:
[60] The country information cited above as well as that which was cited by the POE officer and the adviser do not lead to a clear conclusion regarding what happens to returned failed asylum seeker (sic). The information does, however, allow for some inferences regarding the profile of the persons who have allegedly suffered some kind of harm on return, that being that they had a significant profile in Iran before leaving it, or that they have engaged in substantial public activities in their host country to criticise the Iranian regime, or in some cases, that they have left Iran illegally. (emphasis added by the applicant)
and, in concluding that the that the applicant “has no political profile” (paragraphs [61] - [64] of the Reasons) when he stated:
[61] In this case, as I have found above, the [applicant] has no political profile and he has been detained in Australia since his arrival and he left Iran legally. In addition, the same considerations apply here in terms of his previous travels in and out of Iran as for the previous claim. He undertook trips in and out of Iran after the alleged events in which he participated, without incident.
[62] I have considered the evidence referred to in the RRT’s 2010 country advice for Iran (cited above), and agree with the author that it is not clear whether any of the examples of ill-treatment were due to an imputation of political opinion as a result of asylum claims made while abroad.
[63] I note the remarks by Amnesty International cited above that Iranians may face increased risk on return because of the general crackdown on dissenters and critics, but that those facing such risks would be those who have been vocal and public in their criticism while abroad. I also agree that the Iranian regime may have informants who keep an eye on Iranians living in certain countries.
[64] On the available evidence, I do not consider that failed asylum seekers are routinely imputed with an adverse political opinion on return to Iran merely because they may have sought asylum. As I have concluded above that the [applicant] does not have a political profile to speak of, I find that the chance that he would be persecuted for reason of an imputed political opinion as a failed asylum seeker to be remote or insubstantial.
It is also not disputed that the Assessor also had regard to information contained in three other documents which were either before the POE or were contained in the applicant’s own submissions before the IPA, as follows:-
a)The December 2010 DFAT report which states that “[l]ow level protestors” have “been stopped” on their return to Iran (though the basis upon which the authorities make such decisions was not clear), (paragraph 29 of the Reasons) (before the POE - CB94);
b)The RRT Country Advice dated 19 August 2010 states that it is “certain” that “at least some returnees from Australia” have been subjected to “varying degrees of ill-treatment by authorities upon return” (though it was unclear whether any of the examples of ill-treatment were attributable to political beliefs imputed by authorities due to asylum claims made abroad) (paragraph 30 of the Reasons) (within the applicant’s submissions before the IPA - CB123-125).
c)The Amnesty International report says that Iranians who left Iran, but have publicly expressed dissatisfaction with events in Iran “may face increased risks should they return to Iran” (paragraph 31 of the Reasons) (within the applicant’s submissions before the IPA – CB130).
The Minister conceded that the information contained in Documents 1, 2, 3 and 4 was not directly put to the applicant but says that there was no obligation to do so, because the applicant was on notice of the substance or gravamen of the country information and/or that the information was not adverse to the applicant’s claims nor used to reject any of the applicant’s claims and, in those circumstances, need not be put to him.
The Minister submits that the information contained in Document 1 (“D”) was consistent with the information obtained from a July 1999 report of the Canada Immigration Review Board (“CIRB”), also extracted in paragraph 32 of the reasons, as being referred to in paragraphs 27.12 and 27.13 of Document 1 (“D”), which stated:
“… Several times in the recent past, senior government officials have declared that all Iranians living abroad are welcome to return home without fear of reprisal … and the Foreign Ministry’s Consulate Department has confirmed that applying for asylum abroad is not an offence in Iran. In contrast to this opinion, it was also stated in the same source that: the only exception to this … might be persons who are extremely critical and/or advocate the overthrow of the government through the use of force; … also … that relatives of high profile refugee claimants outside Iran could face some difficulties.”
The Minister says that it is clear, however, that the applicant was aware of the substance of this information as it was referred to in his own written submissions sent to the IPA by the applicant’s adviser with their letter of 20 October 2011 (CB 134.2) which at footnote 35 refers to the “UK Border Agency, Country of Original Information Report Iran, 15 August 2008 at paragraph 28,2 quoting [from] a CIRB report of July 1999. The letter states:
There have been some reports that returned asylum seekers are not subject to reprisals from the Iranian Authorities. In a report by the UK Border Agency, it was noted:
“Several times in the recent past, senior government officials have declared that all Iranians living abroad are welcome to return home without fear of reprisal …”35
The said letter goes on to criticise the above statement as incorrect and refers to an evaluation of the UK Border Agency Report prepared by academics from the Centre for Iranian Studies at Durham University.
Ms Cirillo submits that what appears in the applicant’s submission letter is half of what the applicant asserts was the substance of the 2010 report. The Court notes that the 15 August 2008 UK Border Agency Country of Origin Information Report Iran is not in evidence. Ms Cirillo accepts that the quotation set out in the penultimate paragraph of paragraph 29 above is not a complete quotation. She submits that there is no reference to an exception for persons with high profiles referred to in that quotation. However, the extracted paragraph states “in contrast to this opinion, it was also stated in the same source that:”, the same source being the July 1999 CIRB report. In the circumstances, the Court is of the view that those words of exception were within the knowledge of the applicant, given that his solicitors quoted from that very report.
The applicant contends that the Assessor, in referring and relying on Document 1 (“D”), had an obligation to inform the applicant of that reliance, notwithstanding that the substance of the information contained in Document 1 (“D”) was to the same effect as that in the earlier UK Border Agency Country of Origin Information report dated 15 August 2008, relied upon by the applicant in his submissions. The Court does not accept that proposition. The applicant bore an onus to show that the information contained in the 2010 report, relied upon by the Assessor, was different in substance to that referred to by the applicant as being contained within the 2008 report. The mere difference in dates, albeit it could be said that the 2010 report is more current, does not assist the applicant. There must be a material difference upon which the Assessor has relied. Nothing has been put to the Court as to any such difference. This case is clearly distinguishable from the facts of SZPAD v Minister for Immigration & Anor [2012] FMCA 73 where Federal Magistrate Smith stated:
“In the present case, the manifest pertinence of new information to the reviewer’s reasoning, its elements of novelty in the sense of new and authoritative opinion, and its material currency was given weight by Ms Zelinka, and so they all point to the information satisfying the test as being information that is adverse – credible, relevant and significant to the decision to be made.”
Further, the Court accepts the Minister’s argument that there is little distinction between country information which provides that observers had seen no evidence that failed claimants, persons who had illegally exited, faced any significant problem on return to Iran and the proposition, arising from that information, being put that no significant problems arise. The Court accepts that that is a distinction without any substance. The Court accepts that the substance of this country information was something which the applicant was already well aware.
The Court, further, accepts that the balance of the country information referred to in paragraphs 27.12 and 27.13 of the UK Home Office Country of Origin Information Report– Iran 26 January 2010 (extracted at paragraph 29 above) could not be considered adverse to the applicant given that he seeks to put himself within that claim by virtue of his having been involved in anti-authority demonstrations in Iran and that Iranians who have been critical of the government while abroad are likely to face interrogation and that returned asylum seekers may be interrogated upon their return to Iran. Again, that information would tend to suggest that the applicant faced a possibility of persecution when he returned rather than the converse and, accordingly, such information would be of advantage to him, if accepted.
The Court accepts that, in those circumstances, there was no obligation on the Assessor to bring that information to the applicant’s attention: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 235.
With respect to Document 2 (“E”), the applicant says that the substance of the material contained therein was adverse to him because he was claiming asylum in Australia on the basis that he feared persecution, first, to do with an imputed political opinion, taking into account all of the integers that he made about attending protests and the like and, secondly, on being a failed asylum seeker. In the context of the imputed political opinion, the applicant claimed that he was a person who has a relevant political profile. The information suggested that people who face this profile may suffer harm on their return. The Assessor, however, found that the applicant did not have this profile and, therefore, did not face any real chance of persecution. The substance of Document 2 (“E”) was that Iranians who had been critical of the government whilst abroad are likely to face interrogation and possible detention upon return to Iran and that returned asylum seekers may be interrogated upon their return. As raised with Ms Cirillo, if the word “not” was inserted before the word “likely” then that country information could, on its face, be adverse to the applicant. Ms Cirillo argued that the information could still be adverse depending on how it was used by the Assessor. Ms Cirillo argued that it has been used by the Assessor to exclude the applicant as being a person not having a relevant profile, that profile requiring an inference that one has been “critical of the government”.
The consideration as to whether information is potentially adverse given that it was, otherwise, credible, relevant and significant to the decision to be made, has to be assessed objectively without regard to the decision maker’s reasons (see the High Court of Australia decision in VEAL). Indeed, a decision not to rely on a document does not potentially exclude the decision maker from the obligation to place the substance of the document before an applicant. This requirement has to be balanced against the ordinary position that a decision maker does not have to reveal his reasoning process unless such reasons indicate findings that were not obviously open on the known material. See the Full Court of the Federal Court of Australia’s decision in Commissioner for ACT Revenue v Alphaone Pty Ltd (referred to in paragraph 23 above) cited with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. Accordingly, country information not, on its face, adverse to an applicant may take on a meaning of something completely different to what is said in that information and, in those circumstances, there may be a denial of procedural fairness not to give an applicant the opportunity to address on that. Nothing in the evidence before the Court supports such a position in this case. There is no evidence to ground a submission that information on its face not adverse to the applicant here has become so by virtue of a process of reasoning of the Assessor.
The applicant says that the failure to put the substance of the information in this document to the applicant meant that the applicant was not aware of the critical mass of different information from which the Assessor might use to draw the inferences that he did. The Court does not accept that submission.
The Minister submits that the information contained in Document 2 (“E”) was not adverse to the applicant as it tended to support, rather than undermine his claims. For that reason, which the Court also accepts, there was no obligation on the Assessor to bring the information to the attention of the applicant. Further, the information contained in this document was similar in substance to that set out in the documents referred to in paragraph 27 above, which the applicant conceded he was aware of.
The Minister submits that the information contained in Document 3 was information, the contents of which, were set out in the findings of the POE as follows:
a)… asylum seeking on its own without more does not usually result in convention based persecution on return to Iran (CB 92.8; CB 98.5)
CB92.8 “It was put to the claimant that according to the latest UK Country of Origin report [referenced at 4.5 as Iran date 28 June 2011] and various Department of Foreign Affairs and Trade (DFAT) reports [referenced at 4.11, 12 and 13] illegal exit usually attracts a fine [referenced at 4.15] and that asylum seeking on its own without more does not usually result in convention based persecution on return to Iran.”
CB 98.5 “… As indicated in section 3 of this evaluation DFAT has provided responses to this very issue and in their view illegal exiting may result in prosecution for immigration offences and failed asylum seeking from Iran without more would not lead to convention based persecution.”
b)… an unsuccessful asylum applicant will be detected upon re-entry into Iran …(CB 93.6)
CB 93.6 “Subsequently, a person identified by an Iranian Embassy as an unsuccessful asylum application will be detected upon re-entry into Iran via the main International Airport.”
and which were sent to the applicant in a letter from the Department of Immigration and Citizenship under the hand of DS dated 18 July 2011 (CB 86) and responded to by his advisers in detailed written submissions from his then lawyers, Craddock Murray Newmann dated 20 October 2011 (CB 114). The Court is of the view, therefore, that the applicant was on notice of the contents of those reports and had them available if he so wished to have regard to all of them and that the effect of the reports or parts of them was that returning asylum seekers were not going to be harmed. The Minister accepts that the Assessor did not, during the course of his interview, raise any country information concerning the fate of returned asylum seekers. In those circumstances, the Minister submits, and the Court accepts, that the applicant was on notice of the substance of the information and the IPA had no obligation to put him on further notice of it.
Ms Cirillo submits that the substance of the material extracted in paragraph 39 above was not the same as that the subject of Document 3 (“F”). Ms Cirillo argues that the material extracted in CB 92.8, 98.5 and 93.6 accepts the possibility that there could still be significant mistreatment if there was something “more” than simply an asylum seeker application, on its own. The Court is of the view that that distinction is without substance.
The Minister submits that the information contained in Document 3 (“F”) and Document 4 (“G”) were not adverse to the applicant as that information tended to support, rather than undermine, his claims, provided that the applicant could show that he fell within their description. For that reason, which the Court accepts, there was no obligation on the IPA to bring that information to the attention of the applicant.
Further, the information contained in Document 3 and Document 4 was similar in substance to that set out in the documents referred to in paragraph 27 above, which the applicant conceded he was aware of.
Further, the Court accepts that when one has regard to paragraphs 32, 33, 34 and 35 of the Reasons, the country information contained within those paragraphs were not adverse or unknown to the applicant.
In conclusion, when dealing with the applicant’s submission that one needs to look at the fairness of what has occurred in the circumstances, the Court is satisfied that, by the conclusion of the IPA interview, the applicant knew the case against him, namely that he may face a chance of persecution on his return to Iran by reason of being a failed asylum seeker if he held a “political” or “significant” profile and he was given the opportunity to address the issues on which the Assessor’s decision turned. This is the case when one considers the following extract of the POE interview:
DS:Now, what I’m going to do now and I would like you to listen and let me finish my whole statement is present you with some information which may not support your claims and may form part of the reasons why you may get a negative result.
Interpreter: [Translating]
DS:Now, don’t panic because this is part of the legal process that I’m required to engage in.
Interpreter: [Translating]
DS: and on the one hand, I acknowledge that Iran does have a very unsatisfactory human rights record.
Interpreter: [Translating]
DS:I am aware that many protestors were arrested and some still remain in detention.
Interpreter: [Translating]
DS:I am aware that the protests dropped off and then started to resume this year and once again, more protestors were arrested and detained.
Interpreter: [Translating]
DS:But also when I look at the number of very credible reports, when I look at the profiles of people who are arrested and detained, they are key people in a movement, leaders, activists, they’re students, they’re journalists, they’re political commentators, they’re human rights workers, they’re lawyers, they are children or family of key political figures.
Interpreter: [Translating]
DS:Now the fact that you left on your passport legally from Iran, went to Malaysia, came back to Iran, went back to Malaysia, went back to Iran, went back to Malaysia indicates to me that you’re not on any watch list and a considerable amount of time has now passed since you took part in these protests.
Interpreter: [Translating]
DS:and I may come to the conclusion that you’re not the kind of person, don’t fit the profile of persons that the authorities have got a sustained interest in.
Interpreter: [Translating]
DS:Now, the other thing is, a concern in seeking asylum in Australia, people have been raising this issue, clients have been raising this issue a lot and our Department of Foreign Affairs and Trade has provided us with their opinion which we do value as having considerable merit and integrity and, in their view, just seeking asylum in Australia does not give rise to a political opinion adverse to the regime and does not result in persecution on return to Iran.
The POE interview records the applicant responding to the substance of the country information, namely, concerning the profiles of persons in Iran who were arrested and detained by reason of their participation in protests and reiterating his claim to be a person involved in, and who will continue to be involved in, Iran’s political activities, and that one need not need be a high profile activist to face fear of harm by the authorities by reason of participation in protests while in Iran stating:
“You imagine if I go back, there will be more trouble back in Iran because although I’m not high profile, I’m a member of the political activities…He mentioned that according to your information only high profile activists could be arrested and they are in prison at the moment but I’m not happy with that report because…”.
The applicant’s response to the substance of the information from Department of Foreign Affairs and Trade (“DFAT”) made it clear that he understood that his profile was being considered. He acknowledges the finding by the Assessor at paragraph [63] of the Reasons:
I note the remarks made by Amnesty International cited above that Iranians may face increased risk on return because of the general crackdown on dissenters and critics, but that those facing such risks would be those who have been vocal and public in their criticism while abroad. (emphasis added)
The applicant was clearly aware of the issue of his profile. It is not on point to say, as Ms Cirillo did, that the abovementioned extract dealt only with his political imputation claim and not with his failed asylum seeker claim, given the context in which those matters were raised. Ms Cirillo accepted the Court’s view that the POE interview was an inquisitive process through which the POE officer did not need to move sequentially through the claims within that interview.
The applicant submitted that the emphasised words in paragraph 45 above misstate the import of the quotation cited in the Amnesty International Report on page 5 of the Reasons. This quotation simply states,
“…some Iranians who left Iran to study or work or for other non-political reasons, but who have publicly expressed dissatisfaction with events in Iran, may face increased risks should they return to Iran.”
The applicant says that such Iranians may face increased risks on their return and that this does not suggest that those who have not publicly expressed dissatisfaction will face no risk, or that the process of seeking asylum may not in itself constitute a public expression of “dissatisfaction”.
However, the Court finds that the Assessor did not make the statement of “no” risk, as was conceded by Ms Cirillo, in her oral submissions. The Court does not accept that the Assessor had misquoted the Amnesty International Report. This was a report that the applicant conceded he was on notice of. When one has regard to what the Assessor said in paragraph 63 of the Reasons he states: “… that those facing such risks would be those who have been vocal and public in their criticism while abroad”. [emphasis added] Such risks must be those referred to within paragraph 63 being “Iranians may face increased risk”. The Assessor does not say that those facing such risks are only those people with a profile.
Therefore, the Court does not accept the applicant’s underlying assumption that the Amnesty International report did not say what the Assessor purports that it said, to ground a submission that the report, (known to the applicant as it was contained in his submissions), could not be relied upon by the Minister as putting the applicant on notice of the issue that the Assessor found to be dispositive of the applicant’s claim, that is, that the applicant needed to have a “political profile” or “have been vocal and public” in his criticism while abroad to accept that he faced a fear of persecution upon return as a failed asylum seeker.
The Court is satisfied that there was no denial of procedural fairness with respect to the matters under Ground 1.
Ground 2
The Assessor considered the evidence concerning the applicant’s claims regarding raids on the applicant’s family home while he had been away. At paragraph [58] of the Reasons, the Assessor concludes:
The claimant indicated that, five months prior to the interview, the satellite dish had been confiscated from his family home in Tehran. He agreed that he does not know why this occurred and that he does not know that this is related to his claims. I therefore [emphasis added] take this as an example (reported many times in the general information about Iran) of the measures which Iran takes in relation to censorship / limiting outside contact of its population.
The applicant submitted that the Assessor had made a mistake of fact as to how the applicant characterised the evidence as “relating to his claim”. The applicant says that when examining the IPA transcript (between lines 446 to 470) where his evidence was being discussed, the applicant does not say anything to the effect that he does not know how the evidence is related to “his claims”. The applicant submitted that at lines 448 to 450 of the IPA Transcript, he had indicated that he did not know why the raids had occurred not that he did not know whether they were related to his claims. The applicant says:
Where I’m living, they’re only looking for one little excuse to damage me. There is no guarantee I will be safe there. And also, while I have been here, twice they raided my house. The excuse has been the satellite dish, but I really don’t know the real issue was the satellite dish or some other reasons. They know everything, they start persecution, and there is no where you can go and complain.
The issue of the satellite dish was, however, further explored by the Assessor:
IPA:But you can’t actually say that this was because of you? [emphasis added]
App:That’s correct, I don’t know, but if they found out that I’m here, they start persecution. (Transcript page 12 lines 468-470)
From that exchange, it was clear that the applicant did not regard the raids on his family home as a persecution of him, as in his words, that persecution would only [emphasis added] start if “they found out that I’m here”.
Further, it is clear that because the applicant could not say that the raid was because of you (being him), in those terms, the Court accepts the first respondent’s submission that if it was not related to him, it could not be related to his claims. Accordingly, the Assessor did not make a mistake of fact in characterising the applicant’s evidence, as he did. The Court accepts the Minister’s submission that the use of the word “therefore” in the Reasons shows that the fact that the applicant did not know the reason or whether it related to him or to his claims was the reason for the Assessor’s conclusion about that particular incident. The Assessor appears to have accepted that the subject event happened but could not say that he was satisfied that it had happened for anything to do with the applicant or his political profile, imputed or real, or in relation to any application for asylum.
Nevertheless, the applicant further submits that as the evidence sufficiently raised the issue of whether the applicant would be safe in Iran if the applicant’s family and family home faced security threats because of the applicant being imputed with an anti-government opinion due to participation in protests, the Assessor correctly considered the issue as he was required to do: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 per Black CJ, French and Selway JJ at [60]. The applicant submits that this issue was critical to his claim.
In considering the issue, the applicant submits that the Assessor rejected the significance of the evidence to the applicant’s claim by use of country information which he described as that “reported many times in the general information about Iran”, of which the substance was that “Iran takes measures in relation to censorship / limiting outside contact of its population”.
The applicant says that as the Assessor described the country information as “frequently reported”, this demonstrated that he understood the information as “credible, relevant and significant”. The applicant says that as this country information was not, otherwise, identified and the substance was not put to the applicant during the IPA interview nor notified following the interview, that he was denied procedural fairness in that the information was used in a manner adverse to him, without any opportunity to comment on it.
The applicant submits that what he said in his interview with the Assessor was that the raid did not have anything to do with the satellite, that is, the issue of censorship. That submission was made on the basis that the applicant used the word “excuse” (as referred to in paragraph 52 above) and by using that word, with his difficulties with English, he was asserting that he thinks it had nothing to do with the satellite or those government imperatives concerning censorship but that it had to do with something else. Ms Cirillo says that that something else had something to do with what he was afraid of. The Court is of the view that that implication or inference goes well beyond a normal reading of the stated words and cannot be maintained.
The first respondent submitted, and the Court accepts, that the Court must examine the factual plane to which the information was relevant.
At the interview with Assessor, the applicant said, for the first time, that his house (meaning his family’s house) had been raided twice, whilst he was in Australia. The extract of this part of his interview is referred to in paragraph 52 above. The asserted raid on the applicant’s house involving the satellite dish occurred in about May 2011. The applicant acknowledged that it had not been raised in his solicitor’s written submissions of 20 October 2011.
In short, the Minister submits that the authorities entered the applicant’s house saying that it was in respect of the satellite dish, but the applicant didn’t know if that was the real reason or not. The Court accepts that submission.
The IPA did not reject that claim, however, given the applicant’s lack of knowledge about the reasons for the raid, it found that the reason for the raid stated by the authorities was the actual reason. That finding was supported by general country information which was consistent with the applicant’s claims about the invasiveness of the Iranian authorities. The Court accepts the Minister’s submission that when one has regard to paragraph 58 of the Reasons, the country information could not be regarded as adverse to the applicant. It was part of the applicant’s claim that the Basij was an invasive and all pervasive authority which did as it wished. This information was an aspect of the country’s circumstances in Iran. The parties appear to accept that the authorities in Iran and, particularly the Basij, do take action in relation to censorship and limiting the general populations’ outside contact in a manner which could not be said to be adverse to the applicant’s claims. Understood in that context, the Court accepts that the information was not adverse to the applicant and there was, therefore, no obligation on the Assessor to disclose it to him for comment.
Conclusion
For the above reasons, the Court is of the view that there has been no jurisdictional error in the recommendations of the Assessor following the IPA and no denial of procedural fairness.
The Application should, therefore, be dismissed.
No party submitted that costs should not, otherwise, follow the event and could not now be determined.
It follows then that the applicant pay the first respondent’s costs, as agreed or assessed. However, the Court will reserve to the parties leave to apply to set aside or vary this costs order within 28 days.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 24 April 2013
0
20
3