SZRUC v Minister for Immigration
[2013] FMCA 87
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRUC v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 87 |
| MIGRATION – Review of report and recommendation of Independent Protection Assessor in respect of the protection claims of an offshore entry person – applicant claiming a fear of harm in Iran as an adulterer – error by the Reviewer in not alerting applicant that the credibility of his claimed sexual relationship was an issue in respect of his claim to complementary protection. |
| Migration Act 1958 (Cth), ss.36, 46A, 425 |
| Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 DZAAX v Minister for Immigration [2012] FMCA 1050 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319. SZRFY v Minister for Immigration [2012] FMCA 1003 |
| Applicant: | SZRUC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WENDY BODDISON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 1989 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 14 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J B King |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr P M Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The Court declares that the report and recommendation of the second respondent dated 8 August 2012 was not made according to law.
The first respondent, by himself or his Department, officers, delegate or agents, is restrained from relying upon the report and recommendation of the second respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1989 of 2012
| SZRUC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WENDY BODDISON IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks to restrain the Minister from relying upon a report and recommendation of an Independent Protection Assessor (Reviewer) made on 8 August 2012. The Reviewer found that the applicant did not meet the criteria for a protection visa set out in s.36(2) of the Migration Act 1958 (Cth) (Migration Act). There is no express mention in the recommendation of s.36(2)(aa) of the Migration Act although the complementary protection criterion was discussed in the Reviewer’s report, and was presumably intended to be incorporated in the reference to “criteria”. She recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant complains of procedural unfairness because at an earlier stage of the investigation of his claims, a sexual relationship that was the foundation of his asserted fear of harm was accepted, and the Reviewer did not put him on notice that the credibility of that claimed relationship was an issue in the review. I have found legal error by the Reviewer insofar as the claimed relationship bore on the complementary protection criterion.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Iran[1]. He arrived in Australia on 13 August 2011[2] as an offshore entry person.
[1] Court Book (CB) 209 [122]
[2] CB187 [2]
On 4 December 2011, the applicant requested a protection obligations evaluation (POE). He claimed to fear persecution and the risk of significant harm on the basis that he had committed adultery by having sex with the wife of a senior government official. The applicant was a tradesman who had been at their home for the purpose of installing satellite dishes.
On 5 December 2011 the applicant made a statutory declaration[3]. In that declaration he claimed:
a)He had worked as a self-employed installer of satellite television dishes and car alarms in Tehran.
b)In July 2008 and January/February 2009, he was arrested by the Basij paramilitary group for installing satellite dishes. On both occasions he was released after he paid bribes.
c)One of his clients was a former Member of Parliament and was an officer of the Sepah Pasdaran (ie the Revolutionary Guards) (the official).
d)He was asked by the official’s wife to obtain access to prohibited satellite television channels, including “X-rated” channels. The official’s wife made advances towards him and they had sexual intercourse. After intercourse, the applicant was discovered in a state of partial undress by the official’s son.
e)The applicant immediately fled the official’s house but later received threats from the official and people working for him. The official accused the applicant of raping his wife. Four or five men searched the home of the applicant’s parents house and threatened to kill the applicant. After a further incident where he escaped a group of men on his motorbike, he fled Iran.
f)The applicant claimed to fear conviction and punishment for rape or adultery. He also claimed to fear harm for installing satellite television dishes.
[3] CB 51-56
These circumstances were claimed to involve persecution for reasons of membership of a particular social group or for an imputed political opinion.
The POE officer concluded, amongst other things, that the particular social group relied on by the applicant did not satisfy the relevant legal tests. In reaching that conclusion, he accepted that the applicant had committed adultery:
a)“any harm [the applicant] may be subjected to by the authorities would be a consequence of him breaking an Iranian law of general application”[4];
b)“the reason he was being targeted was … for reason of being a person who had committed adultery”, which involved “a loss of self control”[5];
c)“I do not discount the proposition that harsh treatment may be the result of the claimant’s actions in committing adultery”[6].
[4] CB103.1
[5] CB103.1
[6] CB108.1
The POE officer did not make an express finding as to whether the events claimed by the applicant had occurred, although in drawing his conclusions the comments made by the delegate were such as to suggest that the factual claims had been accepted. However, the POE officer found that any fear which the applicant apprehended was the result of his individual actions and not because of his membership of a particular social group. The applicant’s claims for protection were therefore rejected[7].
[7] CB 103 and CB 108
On 6 February 2012, the POE officer referred the applicant’s case for an independent protection assessment.
Before the Reviewer, the applicant again claimed a fear of persecution for reasons of his membership of the particular social group of, broadly, non-practising Muslim adulterers, and the risk of significant harm by way of the death penalty or inhuman and degrading treatment.
The Reviewer interviewed the applicant on two occasions, the first interview having been terminated due to concerns as to the quality of the interpreter[8].
[8] CB194 [51]
The Reviewer’s recommendation
The Reviewer reached different factual conclusions to those reached by the POE officer. The Reviewer did not accept that the applicant was discovered having sexual intercourse with the official’s wife or that he had been accused of raping her. The Reviewer also did not accept that the official had threatened the applicant[9].
[9] CB 217 at [154]
The Reviewer therefore rejected the claim to fear harm from the official or fear prosecution for rape or adultery. The Reviewer also rejected the applicant’s claims to fear harm on account of:
a)his installation of satellite television dishes[10];
b)his claim to be a non-practising Muslim[11];
c)his interest in Christianity[12]; and
d)his status as a failed asylum seeker[13].
[10] CB 216 at [150]
[11] CB 218 at [157]
[12] CB 218 at [159]
[13] CB 220 at [170]
In rejecting the applicant’s claims, the Reviewer found, amongst other things, that:
a)she was “not satisfied that the claimant was discovered having sex with the official’s wife”[14]; and
b)in respect of the complementary protection criterion, she had “not accepted that the claimant had sex with the official’s wife”[15].
[14] CB 217 [154]
[15] CB 220 [173]
The judicial review application
These proceedings began with a judicial review application filed on 14 September 2012. The applicant now relies upon an amended application filed on 19 December 2012. There is one particularised ground in that application:
1. The [Reviewer] failed to make the Recommendation in accordance with the law by failing to accord procedural fairness to the applicant.
Particulars
a. The officer of the Minister’s Department who assessed the applicant’s claims (“Officer”) accepted that he had sexual relations with a female client of his satellite dish installation work (whose husband was claimed to be a senior government/security official).
b. The [Reviewer] departed from this finding without:
i. informing the applicant that the [Reviewer] might depart from the Officer’s acceptance of this claim; and
ii. informing the applicant that these were issues arising in his review.
I received as evidence the court book filed on 22 October 2012. I also received the affidavit of Jenny Falconer made on 19 December 2012, to which is annexed a transcript of the interview conducted by the Reviewer with the applicant on 7 May and 25 May 2012.
Both parties made written and oral submissions. The applicant contends that the Reviewer denied the applicant procedural fairness by failing to alert the applicant that the credibility of his claimed sexual relationship, which was the foundation of his claims of past harm and fear of future harm, was an issue in the review.
The Minister denies that there was any want of procedural fairness.
Consideration
At the POE stage of the assessment of the applicant’s claims, the POE officer appeared to proceed on the basis that the applicant’s claimed sexual relationship had occurred, although he doubted some other aspects of the applicant’s claims[16]. In contrast, the Reviewer’s credibility concerns about the applicant’s claims were more fundamental and broad ranging. In relation to the applicant’s asserted fear based on the claimed sexual relationship, the Reviewer noted at [151][17] that the applicant had a tendency to embellish his claims and fabricate aspects of his claims which reflected badly on his overall credibility. She added:
There are aspects of his claims regarding having a sexual relation with [an Iranian official’s] wife that also concern the reviewer.
[16] CB 98-108
[17] CB 216
The Reviewer referred to inconsistencies and illogicalities. These related to the applicant’s account of what happened following his discovery in a state of partial undress by the woman’s son. Critically, at [154][18] the Reviewer said:
When the claimant described on each occasion what happened with [the official’s] wife he did so in a practised way. He recited what occurred in continuous narrative that did not vary even in very minor points. In the reviewer’s view it had the tenor of a learned narrative rather [than] someone relating a serious event that occurred. This coupled with the other matters the claimant has not been truthful about and the fact the reviewer does not accept that he was pursued at Soraya Street, the reviewer is not satisfied that the claimant was discovered having sex with [the official’s] wife or that he is accused of raping her. The reviewer is not satisfied that [the official] is pursuing him or wanted to cause him serious harm. The reviewer does not accept that he [has] caused the claimant to be charged with wholesaling and installing satellite dishes. The reviewer does not accept that there is a real chance that [the official] will assassinate the claimant, cause him to be imprisoned for life or that he would cause the claimant serious harm as envisaged by s91R(1)(b).
[18] CB 217
It is apparent from this aspect of the Reviewer’s report that the Reviewer did not accept the applicant’s factual claims concerning the discovery of the asserted relationship or the threats that followed that discovery. It is not, however, apparent from that reasoning that the Reviewer doubted the sexual relationship itself. Nevertheless, in considering the complementary protection criterion at [173][19] the Reviewer said:
The reviewer has not accepted that the claimant had sex with [the official’s] wife. Consequently the reviewer does not accept that the claimant is at risk of prosecution for adultery or rape or that [the official] would seek to harm him. Therefore there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed to Iran there is real risk he would suffer significant harm as defined in s 36(2A) of the Act for these reasons.
[19] CB 220-221
That is the first occasion in the report that the Reviewer states that she had not accepted the claimed sexual relationship itself, rather than the factual assertions of the discovery of it and the consequences of that discovery.
However, the applicant does not complain about that apparent defect in the Reviewer’s report. The applicant complains about an asserted want of procedural fairness in relation to the ultimate rejection of the claimed sexual relationship. The applicant complains that while the POE officer had accepted that the applicant had committed adultery and assessed his claims for protection on that basis, the Reviewer did not.
The issue to resolve is whether procedural fairness required the Reviewer to give notice to the applicant that she considered the fact of his adultery to be a live issue in her assessment and, if so, whether she observed that requirement.
What did procedural fairness require?
A claimant who is assessed through an assessment process established under and for the purposes of s.46A(2) of the Migration Act must be afforded procedural fairness[20]. The guidelines provided to the Reviewer confirm this[21].
[20]Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
[21] CB 258-261
In SZBEL,[22] five members of the High Court approved the following statement of the Full Federal Court in Alphaone[23]:
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 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.
[22] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)
[23] Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ)
In further elaboration of that statement, the High Court emphasised[24]:
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. (counsel’s emphasis retained.)
[24] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [32] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)
The applicant submits that the Reviewer was required to give him the opportunity of ascertaining the relevant issues, including whether the relevant issues were those that had been considered dispositive by the POE officer.
The applicant draws support from the High Court’s statement in relation to the Refugee Review Tribunal acting under s.425(1) of the Migration Act[25]:
if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.
[25] SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)
The applicant contends that at common law the rules of procedural fairness are no less generous than those derived from s.425 of the Migration Act. He contends that consequently, if the Reviewer wanted to consider as dispositive an issue other than those considered dispositive by the POE officer, she was required to tell him what the other issue was.
I do not accept that, simply because the Reviewer took a different view to that of the POE officer, an obligation of procedural fairness arose.
It is erroneous to equate the Reviewer’s obligations with respect to procedural fairness with the obligations of the Refugee Review Tribunal considered in SZBEL. This is made clear in the decision of Dodds-Streeton J in MZYOI v Minister for Immigration[26] (‘MZYOI’). Her Honour said at [92]-[95]:
SZBEL establishes that the statutory procedure prescribed for a review by the Tribunal would ordinarily require it to notify an applicant of an intended deviation from the delegate’s finding on a dispositive or important matter, so that, consistently with procedural fairness, the applicant has notice of the “live” issues in the review. The underlying rationale is that, as the Tribunal conducts a review of the primary decision, unless advised by some means that all findings are in doubt, the applicant may assume that, in the absence of a specific challenge or notice, the dispositive facts accepted by the primary decision maker would also be accepted on review.
In contrast, in the context of an entirely fresh determination, such as that conducted by an IMR, where it is made clear to the applicant that all claims are the subject of a fresh determination, there is no equivalent need to identify the crucial issues in contention by specifically notifying the applicant of any intended divergence from the delegate’s findings on dispositive facts or issues.
In the present case, as the Federal Magistrate observed, the IMR at the outset made abundantly clear that she was conducting a fresh hearing of the claims and would make a completely new and independent assessment of the evidence. Moreover, the IMR’s extensive questions and reiterated concerns about the credibility of the appellant’s account clearly expressed pervasive doubt about the appellant’s entire story. While neither party adverted to it, the IMR, on one view, during the interview (transcript extracted at paragraph 28 above), specifically expressed doubt about the occurrence of the kidnapping incident. Even if the IMR did not express doubt about the occurrence of the kidnapping while specifically indicating doubt about other particular aspects of the appellant’s claim, the appellant was unambiguously apprised that all of his claims and all evidence would be considered and determined afresh, and that the IMR had substantial difficulties with his whole story not limited to her specifically expressed doubts. Further, the appellant was given a full opportunity to put his case.
In such circumstances, the appellant was not entitled to assume that in the absence of specific notice, the IMR would not deviate from the delegate’s finding that the kidnapping incident occurred, albeit not for Convention reasons. Any failure specifically to notify the appellant that the IMR would or might make a different finding did not deny the appellant procedural fairness (counsel’s emphasis retained).
[26] [2012] FCA 868
After citing the decision in MZYOI, I held in SZRFY v Minister for Immigration[27] at [71]:
The IMR process was an inquisitorial rather than adversarial process. There is no general obligation in an inquisitorial context to directly put to an applicant that each element of their account is in question.
[27] [2012] FMCA 1003
It cannot be doubted that the Reviewer was obliged to afford the applicant procedural fairness[28]. However, in the context of a fresh consideration of the applicant’s claims, the Reviewer was not obliged to inform the applicant of the obvious fact that the Reviewer may disbelieve aspects of the applicant’s claims[29].There may, nevertheless, be some particular aspect of the applicant’s claims that procedural fairness required the Reviewer to disclose disbelief of.
[28] Plaintiff M61/2010E (2010) 243 CLR 319
[29] cf. SZBEL at [29]; see also DZAAX v Minister for Immigration [2012] FMCA 1050 at [48] per Lucev FM
Did the Reviewer breach her obligation to afford procedural fairness?
This question is to be answered by reference to the transcript of the interviews annexed to the affidavit of Jenny Falconer.
It is convenient to note at the outset that the Reviewer did not expressly identify the relevant or dispositive issues during either of the two interviews conducted, and never challenged the claim that the applicant had committed adultery.
The Reviewer began by explaining that she had listened to the applicant’s interview before the POE officer, and had read the officer’s decision[30]. She did not otherwise comment on their contents in that interview.
[30] at transcript (T)3
During the first interview, the Reviewer asked a series of questions about whether any action had been taken as a result of the applicant’s adultery[31]:
[REVIEWER]: … I understand that you are saying [the official] has brought this action against you unfairly.
But you have made claims that you have been accused of adultery and rape and I want to know whether there has been any court action or police action in relation to those accusations.
[31] at T13
The applicant responded to the effect that he didn’t know why the official had not lodged a complaint against him for his adultery.
The Reviewer noted the applicant’s claim that adulterers face the death penalty[32], and offered the following explanation for why there had been no complaint[33]:
[32] at T 13
[33] at T14
[REVIEWER]: Right. Now, could it be that he [the official] is not pursuing those other matt… rape and adultery because it would lead to his wife facing the death penalty?
INTERPRETER: Yes.
That explanation, put to the applicant by the Reviewer and accepted by him, was premised on the applicant having committed adultery as he claimed.
The Reviewer carried that premise through subsequent questions (at T24):
[REVIEWER]: Had you ever had sex with any of your other customers before.
INTERPRETER: No.
And then with respect to the location[34]:
[34] at T24-25
[REVIEWER]: Were you in like the lounge room of the hou[se]…
INTERPRETER: Lounge room, yeah, lounge room
[REVIEWER]: And is that where you had sex with her?
INTERPRETER: Yes
And with respect to the aftermath[35]:
[REVIEWER]: Alright, did… [the official’s] wife have a shower after you had sex?
[35] at T25
The applicant draws attention to the fact that the Reviewer never questioned whether the applicant had in fact had sex with the official’s wife. To the contrary, her questions reinforced in his mind (as asserted) the perception that she accepted that sex had occurred.
At the commencement of the second interview, because of concerns about the quality of interpretation at the first interview, the Reviewer repeated to the applicant the substance of what had been said during the first interview[36]. The Reviewer noted, for example, that she “had doubts” about the summons[37].
[36] at T30 et seq
[37] at T35
Nothing was said about the fact of the adultery. The Reviewer repeated her explanation that the official might not have complained about the adultery because doing so would cause his wife to face the death penalty, which after some initial confusion the applicant again accepted[38].
[38] at T35-36
The Reviewer also repeated the questions and answers about whether the applicant had had sex with any other clients and where he had washed after they had sex[39].
[39] at T40
The remainder of the second interview was largely about the applicant’s involvement in installing satellite dishes. The applicant asserts that nothing said by the Reviewer at that time could have dispelled the perception arising from her questions in any event.
I accept that, based on the principles set out in MZYOI (which the applicant disputes but which I am bound to follow), the applicant’s submission that procedural fairness required the Reviewer to inform him that she may make a finding on a dispositive issue which differed from the findings of the POE officer should be rejected.
I also accept that this conclusion is reinforced by two additional features of this case which are relevantly identical to the decision under review in MZOYI.
First, the applicant was specifically told that the Reviewer would be conducting a fresh assessment of the applicant’s claims. At the outset of the interview, the Reviewer said[40]:
[I] am independent of the Department of Immigration. I am not employed by them and my role is to look at all of the materials relating to your case and to make a completely new decision as to whether you are owed protection obligations by the Australian government.
[40] T2
Secondly, during the second interview, the Reviewer said the following in response to a claim by the applicant that the POE Officer had made a particular representation[41]:
I have listened to the interview with that [POE] Officer and I don’t recall him saying that, and your lawyers have not said at any stage that he told you that in the interview and finally, even if he did, this is a complete re-examination of your case so it doesn’t really matter what his views were. (emphasis added)
[41] T44
These statements have the same effect as a similar statement made by the Reviewer in MZYOI[42]. That is, the Reviewer’s statements put the applicant on notice that the Reviewer would consider all of the applicant’s claims afresh[43].
[42] In MZYOI the Reviewer said, “My role is to undertake a fresh rehearing of your claims. I will make a completely new and independent assessment of the evidence... the purpose of the interview is to take a new look at the claims you’ve made”.
[43] MZYOI at [94]
Notwithstanding that the applicant’s assertion of error, based on the difference in approach between the POE officer and the Reviewer fails, in my view, in the circumstances of this matter (and regardless of any distinction between the Reviewer’s reasoning and that of the POE officer), the Reviewer was under an obligation to put the applicant on notice clearly of the fact that the credibility of the asserted sexual relationship was in issue, because it bore directly not just upon his claim to be a refugee but also to the question of whether he was entitled to complementary protection. As I have already noted, the Reviewer did not find, in considering the applicant’s claim to be a refugee, that there was no sexual relationship as asserted. She rejected his claims about the discovery of the relationship and the circumstances which were said to have flowed from that discovery. The express rejection of the sexual relationship itself was made in the context of considering the applicant’s entitlement to complementary protection. That rejection was no doubt necessary in order to avoid considering what risks the applicant might face in Iran simply as an adulterer (without reference to any enmity on the part of the lady’s husband or anyone else). While the Reviewer expressly informed the applicant of her doubts about certain aspects of his claims which were connected to the claim of having been discovered after having sexual intercourse with the official’s wife, the Reviewer expressed no doubts about the sexual relationship itself. The Reviewer:
a)expressed doubts about the authenticity of a summons purportedly issued by the Revolutionary Court[44];
b)questioned why, when the applicant fled the official’s house, he went to a place where it was likely the official would look for him[45];
c)suggested that the applicant did not have the ability to give customers access to prohibited satellite channels[46]; and
d)queried why the official might arrange for the applicant to be charged with illegal satellite television installation but not adultery or rape which attracted longer terms of imprisonment[47].
[44] T11 and 35
[45] T43
[46] T51-53
[47] T13
While I accept that these matters were connected to the applicant’s claim to have had sexual intercourse with the official’s wife, it did not necessarily follow from that that the applicant would have understood that the sexual relationship itself was in issue. He should have understood that his claims to be a refugee were in issue because his fear was based on the enmity of the woman’s husband. He was not put on notice that his claim for complementary protection based on adultery itself was in issue and, by failing to clearly address that factor at the hearing, the Reviewer failed to accord procedural fairness and thus fell into reviewable legal error.
Conclusion
The applicant, having demonstrating reviewable legal error by the Reviewer, is entitled to the relief he seeks in the form of a declaration and injunction.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 26 March 2013
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