SZRZM v Minister for Immigration
[2013] FCCA 2018
•28 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRZM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2018 |
| Catchwords: MIGRATION – Application for review of recommendation of Independent Protection Assessment Reviewer – whether reviewer failed to consider claim and integer of claim ‑ whether departmental officers failed to consider claims made by the applicant in relation to complementary protection criterion – whether wrong test was applied – discretion to refuse relief ‑ whether Tribunal failed to consider the process of investigation or interrogation upon arrival at the airport if the applicant was returned to Sri Lanka ‑ legal error – declaration made. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A, 46PA, 425, 476 Migration Amendment (Complementary Protection) Act 2011 (Cth), ss.5, 35, 36 |
| Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 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) |
| Applicant: | SZRZM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIA BAILEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 2270 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 July 2013 |
| Date of Last Submission: | 19 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Searle with Mr PW Bodisco |
| Solicitors for the Applicant: | Wotton + Kearney Lawyers |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
THE COURT DECLARES THAT:
The departmental assessment made 9 August 2012 was not made in accordance with law.
THE COURT ORDERS THAT:
That the title of the first respondent is amended to “Minister of Immigration and Border Protection”.
An injunction issue restraining the Minister, by himself or by his departmental officers, delegates or agents, from relying upon the departmental assessment made on 9 August 2012.
The application is otherwise dismissed.
The first respondent pay the applicant’s as assessed or agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2270 of 2012
| SZRZM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIA BAILEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 12 October 2012, amended on 23 November 2012, and further amended on 18 July 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking declarations that the recommendation made to the first respondent Minister by Ms Mia Baily in her capacity as Independent Protection Assessment Reviewer (“the reviewer”), that the applicant not be recognised as a person to whom Australia had protection obligations, under the Refugees Convention,[1] and the departmental assessment conducted by Reqik Achemyeleh, and adopted by Helen Santaltzis, (“the departmental officers”) that the applicant did not meet the Minister’s Guidelines for protection in Australia, were affected by legal error.
[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 (that is, that the Minister not rely, or act, on the recommendation from the reviewer or the assessment by the departmental officers), 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
The applicant is an Iranian citizen (Court Book – “CB” – CB 66) who arrived in Australia with his brother on 21 October 2010 as an “Irregular Maritime Arrival” (CB 138 to CB 139).
On 14 February 2011, the applicant applied for a Refugee Status Assessment (“RSA”) with the assistance of a registered migration agent (CB 39 to CB 120, including attachments).
The applicant provided a signed Statutory Declaration with his RSA application setting out his claims to protection (CB 63 to CB 65). His claims can be summarised as follows:
1)He is a “Muslim Shia” by birth. However, he does not believe in Islam (CB 63.2).
2)He left Iran because he was “harassed and threatened” by the “Basij and Eteleaat for exercising [his] political rights” (CB 63.6). The applicant claimed that he was “a big supporter of Mr Musavi and the Green Movement” (CB 63.6).
3)During the “presidential election of July 2009” he was an active participant in a demonstration with his brother. They participated by distributing pamphlets and posters for “Mir Hossein Musavi” (CB 63.7). He was “captured” by the “Basij and Eteleaat” and suffered “terrible injuries” (CB 63.8).
4)On the anniversary of the “July 2009 presidential election”, he and his brother gathered people for another demonstration because he believed that the then “current government” regime was “corrupt and violent” (CB 63.9).
5)At this time, the applicant was told by his cousin that “his brother [his cousin’s brother] was arrested for the same thing [he was] doing” and warned him to “back off and seek refuge immediately”. He and his brother hid at his uncle’s house until his father made arrangements for them to leave Iran (CB 64.1).
6)The applicant could not return to Iran because he would be detained and tortured because of his political opinion, and that the authorities would not protect him because “…they support the very intelligence agencies who threaten, intimidate and kill Iranian people” (CB 64.5).
The applicant attended an “RSA interview” on 18 February 2011, where he asserted a new claim of possible “religious persecution” due to his non-belief in Islam (CB 141.5). On 6 May 2011 the applicant was notified of the negative outcome of his RSA application (CB 129 to CB 130).
As the applicant’s brother had also made an “RSA application”, the RSA assessor had previously sought, and received, permission to “discuss relevant information between the [applicant] and his brother” (CB 148.2). The assessor found that there were a number of inconsistencies between their oral “testimonies” and their current claims compared to the claims made at the time of their arrival in Australia. Because of these inconsistencies, the assessor did not accept that the applicant had been targeted by the Iranian authorities and, therefore, found that he did not have a well-founded fear of persecution (CB 148.4 to CB 151.5). Further, on the question of religious persecution, the assessor found that the applicant identified “himself as a Shi’a Muslim and, as such, it [was] unlikely that he would be of interest to the Iranian authorities” (CB 151.8).
On 19 May 2011, the applicant sought Independent Merits Review (“IMR”) (CB 153). At that time the reviewer was tasked with considering the applicant’s claims to protection only under the Refugees Convention. Section 36(2) of the Act was amended to include an additional criterion, s.36(2)(aa) of the Act, in March 2012 (see further below).
On 18 August 2011, the applicant’s representative provided written submissions in support of the application for IMR that included new claims. First, that the applicant would be “stopped and targeted when he returns to Iran... [and he] fears that he will be harassed in the airport” (CB 160.1). Second, that he would be “considered a spy and a traitor for having travelled overseas and for seeking to live in a western country” (CB 160.2). Third, that he would be persecuted as a “failed asylum seeker” (CB 160.3).
The applicant attended an interview with the reviewer on 25 August 2011 ([66] at CB 207). After this interview, the applicant’s representative made further submissions to answer a “potentially adverse issue” raised by the reviewer (CB 193 to CB 198).
On 10 October 2011, the reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations (CB 199). The reviewer did not find the applicant’s evidence in relation to his claimed political opinion and persecution credible. Further, she did not accept a number of facts about the applicant’s claimed political activities and his profile with the Iranian authorities ([128] at CB 219 to [144] at CB 221).
In relation to the claim that the applicant would face persecution on return to Iran as a “failed asylum seeker”, the reviewer found that the applicant would not face such persecution or harm. She found that, as she had previously found that the applicant did not have a political profile, the applicant would not be persecuted. Further, that although there was a “real chance that the [applicant] will be monitored”, the reviewer did not find that that amounted to persecution. Even further, that there was not a real chance that he would be “subjected to serious harm” as a failed asylum seeker ([148] at CB 222).
The reviewer also considered the claim based on his claimed lack of religious beliefs. While the reviewer accepted the applicant’s “frustration in relation to the religious laws and restrictions” ([155] at CB 223), she found that it was “unlikely…that he would publicly express his religious beliefs in the future”, as he had not done so in the past ([155] at CB 223).
On 3 November 2011, the applicant’s representative submitted further documents to the Minister’s department (CB 225 to CB 236). In these submissions, the representative sought to have the review of the applicant’s assessment “reconsidered” and have a preferable result substituted, and submitted further information in relation to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”) as well as further country information linked to the applicant’s claims. The applicant also, personally, wrote to the department on 16 December 2011 “pleading” for their assistance.
In a “reconsideration”, an assessment was conducted by Reqik Achamyeleh and accepted by Ms Helen Santaltzis (“the departmental officers”), that the applicant’s case should not be referred to the Minister because it did not meet the “Guidelines” for doing so (see the “Department of Immigration and Citizenship Minute” (“the departmental assessment”) at CB 238 to CB 242).
In essence, the “reconsideration” (as per the departmental assessment) purports to assess whether the applicant met the Minister’s “Guidelines” on “Consideration Post-Review Protection Claims”. The departmental assessment states that the applicant had not had his circumstances considered in relation to an “International Treaties Obligations Assessment” (“ITOA”) (apparently an administrative process put in place by the Minister) prior to the commencement of the complementary protection provisions (s.36(2)(aa) of the Act) on 24 March 2012.
Relevantly, the departmental assessment states that “…no further claims and no new or additional information personal to the [the applicant] has been provided”, further that “…there have not been any changes in [the applicant’s] circumstances…since his IMR was finalised” (CB 241.6). Therefore, the departmental officers found that (CB 241.8):
“…in the absence of any new evidence or information to indicate that he of adverse interest to non-state actors or authorities in Iran, I find there is no real risk he would be subjected to significant harm, as a necessary and foreseeable consequence of his return to Iran.”
Before the Court
At the hearing Mr A Searle of counsel appeared with Mr PW Bodisco of counsel for the applicant. Ms R Graycar of counsel appeared for the Minister.
The applicant sought leave to file a further amended application at the hearing. Leave was granted. The grounds of the application, as further amended on 18 July 2013, are as follows:
“1. The First Respondent cannot lawfully act on the recommendation of the Second Respondent because that recommendation failed to take into account a relevant consideration for the First Respondent, namely the Applicant’s claims to complementary protection under s 36(2)(aa) of the Migration Act 1958(Cth) (“the Act”).
Particulars
a. The First Respondent is obliged to take s 36(2)(aa) of the Act and the Applicant’s claims thereunder into account from 24 March 2012 notwithstanding that the Second Respondent had not been obliged to take into account s 36(2)(aa) of the Act and the Applicant’s said claims at the time the Second Respondent made his recommendation.
b. Because the Applicant is a person who has not yet made an application for a protection visa, s 35 of Schedule 1 of the Migration Amendment ([Complementary] Protection) Act (No. 121 of 2011) makes s36(2)(aa) (as amended) applicable to the definition of ‘protection obligations’ for the purposes of the Act in considering claims for protection made by the Applicant on and after 24 March 2012.
c. The First Respondent has previously announced that all people who arrive and are offshore entry persons who provide claims or information which prima facie may engage Australia’s protection obligations would be assessed for the purposes of s46A.
d. The Applicant has made claims that prima facie engage Australia’s protection obligations as defined under the Migration Act.
e. Only those protection claims under s36(2)(a) of the Act have been assessed pursuant to the power under s46A of the Act. No assessment has been given to the Applicant’s ‘protection claims’ as defined by s36(2)(aa) of the Act for the purposes of s46A of the Act.
2. That the First Respondent cannot lawfully act on the basis of the ‘International Treaties Obligation Assessment’ conducted by Reqik Achemyeleh on 9 August 2012 and adopted by Ms Helen Santaltzis, Manage Post Review Protection Check Taskforce VIC, Department of Immigration and Citizenship, as contained in the Court Book at page 238 because:
(a) that assessment applied the wrong standard of proof when assessing whether the First Respondent could have ‘substantial grounds for believing’ that the applicant would be arbitrarily deprived of his life; and/or
(b) it was made by a process that denied the Applicant procedural fairness in that he was not given any opportunity to be heard in person or in writing on the questions relevant to the Assessment of his claims under complementary protection.
3. That the First Respondent cannot lawfully act on the basis of the ‘International Treaties Obligation Assessment’ conducted by Reqik Achemyeleh on 9 August 2012 and adopted by Ms Helen Santaltzis, Manage Post Review Protection Check Taskforce VIC, Department of Immigration and Citizenship, as contained in the Court Book at page 238 because it was made by a process that applied the incorrect test at law to the Applicant’s claims to complementary protection.
4. That by focussing on the likely outcome of the possible detention and interrogation of the applicant on return to Iran rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not apostate, the IMR asked herself the wrong question and therefore fell into jurisdictional error.
Disposition of the Grounds
By his further amended application, the applicant puts forward four grounds (noting that ground two has two parts) in support of the orders that he seeks from this Court. For clarity, I note again that relief is sought by way of declaration in relation to the assessments made by the reviewer and the departmental officers, and an injunction restricting the Minister from relying on that assessment or the “reconsideration” of the applicant’s claims.
For the reasons that follow, the applicant does not succeed in relation to grounds one and four. The Minister does not deny the asserted legal error in relation to grounds 2(a) and 3, but, argues that the Court should not exercise its discretion to grant the relief sought (see further below). The applicant succeeds in relation to ground 2(b). The Minister did not oppose the exercise of the Court’s discretion if that were found to be the case.
Submissions: Grounds Two and Three
While it may create some “overlap” with the matters discussed in the consideration below, it is useful as an aide to understanding the consideration to note the following matters put in submissions to the Court.
The applicant submitted that, following the High Court’s decision in M61/M69 at [77], the “assessment and review must be procedurally fair and must address the relevant legal questions” (see [22] of the applicant’s written submissions). Further, the applicant relied on the Full Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 (“SZQDZ”) at [44]:
“The Minister can ignore entirely a reviewer’s assessment and recommendation. However, as in Plaintiff M61 at 358-360 [99]-[104], declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that an assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted. As the High Court explained in Plaintiff M61 at 353-356 [76]-[78]:
76 Contrary to the submissions of the Commonwealth and the Minister, the Minister's decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.
77 Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.
78 The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
[Emphasis in original.]
Further, the applicant submitted that this Court should follow the reasoning in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (“SZQRB”) per Lander and Gordon JJ at [230] – [231] (see further below).
The applicant submitted that the assessment by the departmental officers clearly did not “purport” to be an assessment under s.36(2)(aa). He submitted that it was merely an administrative process. The applicant points to the statement in the departmental assessment that it was conducted “pursuant to Ministerial guidelines”. Although it “purported” to take into account s.36(2)(aa), it did not claim to do so on its face, which the applicant submitted was a necessary requirement after 24 March 2012. Further, the applicant submitted that it “conflated two matters” by relying on the result of the Refugees Convention test (as set out in the reviewer’s record at CB 200) and by doing so had failed to consider s.36(2)(aa) of the Act.
The applicant also submitted that he had not been afforded procedural fairness, as he was not given “an opportunity, in person or in writing, to put his claim under complementary protection” (applicant’s written submissions [31](a)). Before the Court, the applicant submitted that there were a number of deficiencies in the administrative process. The documents by the applicant provided post the IMR decision and prior to the reconsideration, were not in relation to any formal process, they were a “plea at best”. Further, the applicant submitted that what was contained in these documents was “very different” from submissions in relation to s.36(2)(aa) of the Act, and therefore, the applicant had not been afforded the appropriate opportunity to comment or provide submissions on the issue of complementary protection.
The Minister submitted in response to the procedural fairness claim in ground two, that the applicant had not “set out the basis upon which it is claimed that he was denied procedural fairness”. The Minister submitted that the applicant had not “suggested that there is any aspect of the recommendation of [the departmental officers’ assessment or “reconsideration”] that [relied] on material that was not put to the applicant, nor to which he did not have an opportunity to respond” (Minister’s written submissions at [25]).
Before the Court, the Minister denied that there was some “set” process that was required to be followed for the consideration of s.36(2)(aa) of the Act. The Minister submitted that the applicant’s submissions were about the “form” of the departmental assessment, or an identifiable process and that there was no authority for any such “form” requirement. Further, that his concern of procedural fairness was really about “an abstract opportunity to keep putting submissions”. Such concerns should be focused on making sure decisions are procedurally fair. In this case, the country information that the departmental assessment relied upon was that which was submitted by the applicant’s representative, and no country information was relied on that “post-dated” the IMR recommendation. The Minister submitted that this alone distinguished the case from SZQRB ([262] per Gordon and Lander JJ). In any event, the Minister submitted that the language of the departmental assessment, that referenced Australia’s international treaty obligations, was essentially “the language of s.36(2)(aa) of the Act” and that there was no statutory requirement that there be a specific reference to the Act.
Consideration: Grounds Two and Three
In ground two, the applicant asserts that the Minister cannot lawfully act on the basis of the assessment or “reconsideration” conducted by the departmental officers in relation to complementary protection. The ground has two particulars. In ground 2(b), the applicant asserts that he was denied procedural fairness in the departmental assessment conducted by the departmental officers.
This particular to ground two asserts that the denial of procedural fairness was based on the failure to give the applicant the opportunity to be heard in person, or in writing, on the question of complementary protection.
Given the applicant’s emphasis, at least in his written application before the Court, on the “opportunity to be heard in person”, it is important to note that the failure of the departmental officers to afford the applicant a specific interview, or hearing, does not necessarily, of itself, reveal some failure of procedural fairness (see further below).
What also needs to be understood is that, in the current case, it is the principles of common law procedural fairness that are to be applied. It is trite to say that the departmental officers were not required to apply any statutory notion of procedural fairness.
The applicant’s reliance on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 (“SZBEL”) must therefore be treated with some caution. While, respectfully, I understand the High Court to draw on general notions of what constitutes a fair process (see reference to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, the focus in SZBEL was plainly on s.425 of the Act. (In particular, on s.425(1), “[t]he Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review). This does not apply here.
Before the Court, both parties made submissions with reference to various relevant authorities on the question of common law procedural fairness. In resolving the dispute in the current case I am guided, indeed directed, by the following.
Noting the particular circumstances in this case, the Court is not being asked to review a decision of the Minister (or a Tribunal) but rather two recommendations to the Minister as to whether he should “lift the bar” (pursuant to s.46A(2)) to enable the applicant to apply for a protection visa. What was said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (“Kioa”) is of direction on the question of procedural fairness (at [28] per Mason J and [38] per Brennan J)):
“[28] It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it (Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at p 109; Salemi (No. 2), at p 419; Ratu, at p 476; Heatley v. Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 498-499; FAI Insurances Ltd. v. Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 360,
376-377; Annamunthodo v. Oilfields Workers' Trade Union (1961) AC 945). The reference to “right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.
…
[38] … 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…”
In VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17], the High Court further explained that this latter element “must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision.”
Both parties, obviously taking different views as to the application to the facts of this case, referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ:
“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In my view, the relevant procedural fairness obligation does extend to the applicant being given the opportunity to present his case in relation to the “decision” (the subsequent departmental assessment) which also affected him. This extends to the right to be told the substance of the case to be answered and or given the opportunity to respond to it (Kioa at [28] per Mason J).
In argument before the Court, there was some reference in this context to country information. It was submitted that, although there is no onus on the applicant to show what additional material would have been put, there is an onus on him to advance whatever information or evidence he needs to make his claim (Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510). Further, the Minister contrasted the position of SZQRB, by stating that in this matter there was no material that the applicant claimed had relied on which was “adverse” to the applicant and should have been put to him for response ([36] of the Minister’s written submissions).
What was not touched upon, however, is that the right to know the case against him not only involves “adverse” information (that is, “credible, relevant material”) but, in certain circumstances, includes the identification of critical legal issues and adverse conclusions not readily discerned from what is known to the applicant.
It is the case (in partial answer to the applicant’s claim relating to a hearing) that an oral hearing in every case is not necessarily required. This depends on the circumstances of each case. Care needs to be exercised by decision makers in this context (in this case the officers making the recommendation), where a critical part of the assessment relies on an issue of credibility (Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [33] – [35] per Hely J).
As was said in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 8 (“Aala”), at [100] per McHugh J (although in the minority on the factual question):
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”
I accept the Minister’s submission in the current case that the determination of whether a procedure is fair depends on the facts and circumstances of the case and not some abstract notion of fairness.
The issue, therefore, is what are the relevant facts and circumstances in the current case on the matter of whether procedural fairness has been afforded, or denied, to the applicant by the departmental officers in relation to the assessment conducted.
The relevant facts are as follows. The reviewer’s assessment and recommendation was made on 10 October 2011. The applicant’s claims to protection were assessed at the relevant time, solely and properly with reference to the Refugees Convention (CB 199 to CB 224).
In that assessment, the matter of the credibility of a portion (but not all) of the applicant’s account, and claims, was at issue. This was significant and, ultimately, largely determinative of the reviewer’s conclusion (see in particular [131] at CB 219, [133] at CB 220 to [141] at CB 221and [155] at CB 223).
On 3 November 2011, the applicant’s representative made submissions to the Minister’s Department requesting a “reconsideration” of the reviewer’s recommendation. In context, however, it is plain despite the use of the word “reconsideration” what was being sought was a “substitution” of “a more favourable decision” for their client (CB 225 to CB 234).
The Minister submitted that the representative’s submissions post the reviewer’s recommendation included “extensive claims…made by reference to Australia’s non-refoulement obligations flowing from international conventions to which Australia is a party” (Minister’s written submissions at [27]). The Minister submitted that the departmental assessment was made with clear reference to the applicant’s representative’s submissions, and further, that the “detailed” submissions “related” to complementary protection (Minister’s written submissions at [32]).
I agree with the applicant that, when regard is had to the entire document, what was sought was an assessment of the applicant’s circumstances in light of Australia’s international obligations flowing from being a signatory to the ICCPR. No reference is made to any other convention or non-refoulement concerns, nor was it otherwise linked to the not yet in force s.36(2)(aa) criterion (see further below).
On 24 March 2012, the “complementary protection” amendment to the Act came into force (Migration Amendment (Complementary Protection) Act 2011 (Cth) (“the Amendment Act”)). Relevantly, this introduced, through s.36(2)(aa) of the Act, an additional criterion for the grant of a protection visa. For current purposes it is important to note the following.
One, the amendment was intended to align Australia’s non-refoulement obligations under “international human rights treaties” with domestic law (see treaties – ICCPR; Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)).
Two, definitions of key concepts were inserted into the Act (see s.36(2A) and s.5(1) of the Act – “Covenant”, “cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, “receiving country”, “significant harm” and “torture”).
The assessment of the applicant’s protection claims by the departmental officers was made on 9 August 2012. That is, well after the introduction of the complementary protection amendment to the Act, and some 10 months after the reviewer’s recommendation.
As at 9 August 2012, therefore, the questions relevant to the applicant’s claims under the concept of complementary protection, as it was understood at that time, arose from the applicant’s circumstances as previously presented. That is, his factual claims. However, at that time these circumstances would have needed to be considered within the context of the amendments to the Act. This is so that the Minister could be given an assessment, and recommendation, consistent with the legislation which he commended to the House of Representatives (Commonwealth of Australia, Parliamentary Debates, House of Representatives, 9 September 2009, 8986–92 (Laurie Ferguson, Parliamentary Secretary for Multicultural Affairs and Settlement Services); Commonwealth of Australia, Parliamentary Debates, House of Representatives, 24 February 2011, 1356–59 (Chris Bowen, Minister for Immigration and Citizenship)).
The departmental officers made reference to “the complementary protection provisions in the Migration Act” (CB 239.4). The point is made there that the applicant “had not undergone an International Treaties Obligations Assessment as at 24 March 2012” (CB 239.4). The departmental officers then purported to proceed to make “an assessment whether the case of [the applicant] meets the Minister’s Guidelines on consideration of Post-Reviewer Protection Claims... and if so whether it should be referred to the Minister for consideration” (CB 239.5).
Later in the same assessment, reference is made to “… Australia’s obligation of ‘non-refoulement’ under the complementary protection provisions…” (CB 241.4). In context, this can only mean a reference to the “provisions” in the Act, even though the assessment was said to be made “against the Minister’s Guidelines” (CB 241.4). The matter is put beyond doubt when reference is made to “[t]he threshold for establishing a real risk of significant harm, as required by the Complementary Protection provisions of the Migration Act” (CB 241.8).
It cannot be assumed that the request and submissions, made by the applicant’s representatives in November 2011, were put in the context of the complementary protection “provisions” as they subsequently appeared in the Act. The submissions preceded the date on which the amendments came into force by some five months. In the absence of relevant evidence, the Minister’s suggestion before the Court, that the submissions were made in contemplation of the forthcoming amendments because the “imminent” enactment of the amendment was well known, must be treated with caution.
I note that the Amendment Act was given assent on 14 October 2011 (to come into force on 24 March 2012). It may be, therefore, that the Minister’s submissions before the Court invited the Court to find that the applicant’s representative made their submissions in knowledge of the amendment to the Act, or should have made such submission in that light.
Some caution must be exercised in drawing such an inference from this circumstance above and in the absence of any relevant evidence from the representative of what they intended. On the evidence that is before the Court, what can be said is that there are sufficient “disparities” between the submissions and the scheme of what ultimately came into force as the amendment to the Act, that argues against drawing the inference as the Minister appeared to suggest.
There is nothing in the submissions to support the proposition that what the representatives were doing was making submissions on “complementary protection” in line with the “scheme” ultimately introduced into the Act. For example, there is certainly no reference to the “impending” definitions of relevant concepts as they were to appear in the Act.
Importantly, the stated purpose of the representative’s submissions was to request a reconsideration of the assessment made by the reviewer (CB 225.4). That assessment was plainly not made in contemplation of the amendments to the Act, nor (properly) made any reference to complementary protection. That the representative sought the reconsideration in light of the ICCPR appears to be consistent with the practice in existence prior to the amendment coming into force. A practice which the assessment by the departmental officers gave expression. That is, the reference to the Minister’s “Guidelines”.
In all the circumstances put before the Court, therefore, the applicant was denied the opportunity to make out his case and the context in which it was ultimately assessed by the departmental officers. Further, that the applicant was denied the opportunity to be “heard”, in relation to his complementary protection claims in the context of the legislation in which the concept of complementary protection subsequently appeared, and to which the departmental officers made references in their assessment.
It is the case that there are a number of difficulties with this assessment itself. This includes the difficulty raised by ground 2(a), which the Minister otherwise does not deny contained an error of law (see further below). But, for the purposes of ground 2(b), the applicant was denied procedural fairness because he was not given the opportunity to be heard (even in writing) on the question of his complementary protection claims in the context of the amendment to the Act.
It may be that there was great “overlap” between the administrative process in place before the amendment of the Act, and after the amendment, for the consideration of the “complementary protection” issues. But, as is often said, procedural fairness is not necessarily concerned with outcomes, but with a fair process. What was procedurally unfair in the current case was that the applicant made his submissions in one context (a “loose” or informal administrative arrangement), and these were considered in another context, and at another “time” (the statutory context). He was not heard on the matter of how the claims under the provisions in the Act may be viewed differently, as a result of the amendment, than they would have been viewed in the administrative context that existed previously.
Following a specific question from the Court, the Minister confirmed that if any such error were found (in relation to ground 2(b)) he would not press the Court to refuse the relief the applicant seeks in the exercise of the Court’s discretion. As the denial of procedural fairness infects the departmental officers’ recommendation to the Minister (even in part), it is appropriate that the Minister not rely on it. The declaration should be made in this regard and the Minister should be accordingly restrained from acting on the departmental officers’ assessment and recommendation.
This leads to consideration of ground 2(a) and ground 3. Here the applicant again attacks the assessment and recommendation of the departmental officers. In ground 2(a) the assertion is that the Minister cannot lawfully act on the departmental officers’ assessment because that assessment adopted the wrong standard of proof.
The applicant relies on what was relevantly said in SZQRB (in particular at [246] – [248] per Lander and Gordon JJ) to assert the error and, further, for the relief that he seeks (at [230] – [231] per Lander and Gordon JJ):
“[230] If on judicial review a Court determines that in the assessment of a non-citizen’s claims the assessor or reviewer did not accord the person procedural fairness, or proceeded on an error of law, the Court will grant a declaration to that effect. That declaration will warn the Minister that the Minister should not take the person into detention (if not already in detention) for the purpose of removing that person from Australia, or attempting to remove the person from Australia, until a lawful assessment is made.
[231] If the Minister proceeded to remove the unlawful non-citizen without obtaining a further RSA or IMR, the Minister would be liable to be restrained by the Court granting an injunction, not because the Minister will not exercise his powers under s 46A, s 91L, or s 195A, but because the Minister would be removing that non-citizen in breach of Australia’s international obligations to accord protection to those who are entitled to protection under the Refugees Convention, the CAT or the ICCPR. Whether SZQRB is entitled to any injunctive relief will depend upon SZQRB making out his claim that the ITOA is infected with jurisdictional error.”
The applicant submitted that the correct test was stated in SZQRB per Lander and Gordon JJ at [246] – [247]:
“[246] In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.
[247] That being the case, the ITOA applied the wrong test in considering SZQRB’s entitlement for Australia’s protection obligations under the CAT and ICCPR as defined in s 36(2)(aa) and s 36(2A). The ITOA assessed SZQRB’s claims as against whether it was ‘more likely than not’ that SZQRB would suffer significant harm, which was not the appropriate standard. The ‘Departmental policy’, if the ITOA was right to describe it that way, was not in accordance with Australian law.”
The departmental assessment contains the following (CB 241.8):
“The threshold for establishing a real risk of significant harm, as required by the Complementary Protection provisions of the Migration Act, is a higher threshold than the real chance test of the Refugees Convention. As [the applicant] was found not to be a refugee under the Refugees Convention, in the absence of any new evidence or information to indicate that he of adverse interest to non-state actors or authorities in Iran, I find there is no real risk he would be subjected to significant harm, as a necessary and foreseeable consequence of his return to Iran.”
[Emphasis Added.]
The applicant’s argument is that the Full Federal Court in SZQRB found that the test as to whether there is a real risk of “significant harm” (with reference to s.36(2)(aa) of the Act) is the “real chance test”, as under the Refugees Convention (with reference to s.36(2)(a) of the Act). (See Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 and Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
I should note that, in his submissions, the applicant made reference to the reviewer’s record in relation to this point. He said (at [28] of his written submissions) that with reference to [159] (at CB 224) of the reviewer’s record, the current test under s.36(2)(aa) of the Act was applied. Plainly, the reviewer’s recommendation preceded the implementation of s.36(2)(aa), and it is clear from what the reviewer said, no reference was made to s.36(2)(aa) of the Act, or the relevant test anywhere in that assessment. She did not need to, as the review preceded the implementation of s.36(2)(aa) of the Act.
In any event, in the current case the departmental officers applied a “more likely than not” test. This, as was found in SZQRB, is the wrong test ([246] – [248] per Lander and Gordon JJ – see also [297] per Besanko and Jagot JJ and [342] per Flick J).
The Minister did not dispute that this Court was bound by SZQRB, even though he stated that the judgment was the subject of a special leave application by the Minister to the High Court (see [51] of Minister’s written submissions). This does not affect the situation that this Court is bound to apply what was relevantly found in SZQRB to the circumstances presented in this case in the disposition of this application at this time.
However, the Minister submits that the Court should not exercise its discretion in favour of the applicant because no disadvantage or detriment flowed to the applicant in the failure to apply the “SZQRB” standard for assessing “the real risk of significant harm”, and further, the applicant had not identified any aspect of the findings (of both the reviewer and the departmental officers) such that the application of the “correct test or standard” could have led to a different outcome (see [52] of the Minister’s written submissions).
The Minister written submissions further state ([62]):
“In the First Respondent’s submission, the comprehensive rejection of the applicant’s case on credibility grounds, and the findings that he was not of interest to the authorities in Iran as a result of those parts of his case that were not disbelieved (see paragraphs 41-43 above), show that whatever test was used, there were not substantial grounds for believing that he was at a real risk of suffering significant harm if returned to Iran. The [departmental officers] summarized the findings that had been made as follows, prior to noting that no new or additional claims had been made:
Although [the applicant] claimed he feared he would be harassed, tortured and killed by the authorities in Iran on the basis of his real or imputed political activity, or for being non-religious, both the delegate and the reviewer found that there was not a real chance this would occur. The reviewer was not satisfied of the credibility of his testimony and evidence regarding his claim to be of interest to the authorities in Iran. I do not consider that, given his limited political activities, his lack of public expression of his religious views, and his want of any profile that would make him of interest to the Iranian authorities, [the applicant] would be at risk of harm should he return to Iran.”
The Minister submitted that the grant of a prerogative writ and equitable remedies was clearly established as at the discretion of the Court (Aala, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”)). Therefore, the grant of a remedy does not automatically follow a finding of legal error. In Aala, McHugh J stated, although in the minority on the application to the factual question, that (at [104]):
“Although the second Tribunal concluded that the prosecutor had concocted part of his evidence and did not accept his evidence concerning an agreement with Tehrani, it considered what the Iranian authorities might do if they became aware of the prosecutor's illegal dealings in property. And it did so before it made the adverse findings concerning the prosecutor's credibility. It asked itself whether the illegal activities of the prosecutor - which it assumed had occurred – ‘would be likely to cause the authorities to impute a political opinion in the [prosecutor] which may bring him within the Convention.’ It held that the authorities would not impute those opinions to him even if they knew of his dealings. The Tribunal thought that the prosecutor was motivated by financial gain and not political sympathy in selling the properties, saying that he ‘was involved in the sale of properties for the Shah purely because of the large commissions he was able to earn.’ The Tribunal found that it was so clear that the prosecutor had not been driven by political motivations that there was no possibility that his actions in facilitating the sale of properties owned by the Shah and his associates would be seen as political.”
The Minister relies on a number of authorities for the proposition that relief should be refused. I accept the Minister’s submission that the relief the applicant seeks in this case is discretionary (Aala and SZBYR at [27] – [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
The Minister submitted that the “critical question for the Court” was whether, on the Court’s assessment, the application of the SZQRB test could have made a difference to the outcome of this case. The Minister submitted that, following the “comprehensive rejection of the application’s case on credibility grounds, and the findings that he was not of interest to the authorities” by the reviewer, whatever test was used there could not have been a different outcome. Further, that the departmental officers summarised the findings with reference to these findings of the reviewer.
The Minister’s submissions in reference to grounds 2(a) and (3) and relevant to the circumstances in which the exercise of the discretion to grant relief may vary, draw a distinction between an impugned error involving a breach of procedural fairness where “…no useful result could ensue from the grant of relief” (SZBYR at [29]) and, further, the distinction between a legal error involving a breach of procedural fairness and some other error of law (SZQGA v Minister for Immigration and Citizenship [2012] FCA 593 at [146] – [157] per Barker J)(“SZQGA”).
He referred to the consideration given by Barker J in SZQGA, and noted in relation to the exercise of the discretion, one key principle was whether the legal error contributed to a particular decision or whether the decision would have been the same regardless of the error (at [147] with reference to Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 384 per Toohey and Gaudron JJ).
The Minister submitted that Barker J noted some limits on the exercise of the discretion to refuse relief on discretionary grounds in cases where what was at issue was a denial of procedural fairness (noting of course cases where the discretion has not been exercised in these circumstances – SZBYR and SZQNO v Minister for Immigration & Citizenship [2012] FCA 326).
However, the Minister pressed that in circumstances not involving a breach of procedural fairness, but a breach such as the ones contemplated in grounds 2(a) and 3, the principles and the consideration by Barker J do not arise. (See also J.J. Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [74] – [85] per Flick J and see also Lee & Ors v Minister for Immigration and Citizenship & Anor [2007] FCAFC 62; 159 FCR 181, Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346 and Lansen v Minister for Environment [2008] FCAFC 189; (2008) 174 FCR 14).
The Minister also relied on Kabir v Minister for Immigration and Citizenship [2010] FCA 1164 (per Siopsis J which he says provides a “clear analogy” with this case ([60] of Minister’s written submissions):
“The decision of Justice Siopsis in Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513 provides a clear analogy to this case: there the Federal court found that a legal error that involved the misconstruction of a statutory provision had been established (at [52]) but the Court exercised its discretion to refuse relief. His Honour explained that the effect of any error on the particular decision, and thus the utility (or futility) of any remedy, was to be determined by reference to the facts and circumstances of the applicant in that case (at [47]). After considering the particular circumstances of the applicant in that case, Siopsis J held that the federal magistrate had not erred by exercising his discretion to refuse relief, notwithstanding the misconstruction of the statutory provision.”
The applicant’s submissions proceeded implicitly, if not explicitly, from the position that the legal error in this case was the “wrong standard” and test and was the error found in SZQRB (see at
[232] – [233] per Lander and Gordon JJ).
The applicant submitted, with reference to Lee v Minister for Immigration and Citizenship [2007] FCAFC 62, that where a breach of natural justice is found, such as procedural fairness, the grant of relief will “usually” be granted by the Court, unless the Court finds to a “very high standard” that to do so would be “futile”.
Further, the applicant submitted that the Minister was inviting the Court to “speculate” about the outcome, as the evidence before the Court did not enable the Court to definitively form a conclusion in circumstances where the applicant was not afforded the opportunity to be heard on the grounds of s.36(2)(aa) of the Act.
Further, the applicant submitted that it was not for the applicant to show that if the appropriate test had been applied it “could” have made a difference but rather that it was for the Minister to show, or for the Court to be satisfied, that to grant the relief would be futile. The applicant relied on Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 (“Dagli”) at [91] per Lee, Goldberg and Weinberg JJ:
“In our view, their Honours’ judgment in ex parte S154/2002 does not support the submission that ex parte Lam establishes a principle that is not only of general application, but also a radical departure from well-established authority. The correct position, in our view, was summarised by Hely J in Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069. His Honour said at [34]:
‘If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61].’(emphasis added)”
The applicant submitted that Dagli provided a complete answer to the Minister’s submission that the applicant had to show that what he would have said to the departmental officers would have made a difference.
Therefore, the applicant submitted that this Court should follow (as it is bound to do) SZQRB in circumstances where the error was identical and involved a similar departmental officers’ assessment for recommendation to the Minister and should exercise its discretion to grant the relief the applicant seeks.
In one practical sense, given the Minister’s acknowledgement in relation to the exercise of the discretion in relation to ground 2(b) (the procedural fairness matter), it is strictly unnecessary to consider the exercise of the discretion in relation to grounds 2(a) and 3, given that the exercise of the discretion in relation to ground 2(b) is in circumstances where it cannot be said that to grant relief is futile.
However, given the submissions made by the parties it is also appropriate to consider the question in relation to grounds 2(a) and 3. Here, I agree with the applicant that where there has been a failure to apply the correct legal test, or standard required at law, the exercise, or decision to refuse to exercise the Court’s discretion must be held to a very high standard given the public interest in requiring administrative decision makers to conform with the law (see Kabir at [44] – [48] per Siopsis J).
The question for the Court, therefore, is whether in relation to the error, the grant of relief would be futile in the circumstances. That is, if the correct legal test and standard had been applied it could not have led to a different outcome.
The Minister argues that the comprehensive rejection of the applicant’s case on credibility grounds by the reviewer (at [62] of the Minister’s written submissions) and the findings, again by the reviewer, that he was not of interest to the authorities in Iran, in relation to those parts of “case that were not disbelieved”, “show that whatever test was used there were not substantial grounds for believing that he was of real risk of suffering significant harm if returned to Iran” ([62] of the Minister’s written submissions).
The Minister’s submission was that the departmental officers “summarised” the reviewer’s findings and found that no “new” claims had been made (see CB 241.5):
“Although [the applicant] claimed he feared he would be harassed, tortured and killed by the authorities in Iran on the basis of his real or imputed political activity, or for being
non-religious, both the delegate and the reviewer found that there was not a real chance this would occur. The reviewer was not satisfied of the credibility of his testimony and evidence regarding his claim to be of interest to the authorities in Iran. I do not consider that, given his limited political activities, his lack of public expression of his religious views, and his want of any profile that would make him of interest to the Iranian authorities, that [the applicant] would be at risk of harm should he return to Iran.”
A number of matters must be noted. First, I have some difficulty in accepting the “logic” of the Minister’s submissions that there was a “comprehensive” rejection of the applicant’s case on credibility grounds, yet there were also parts of the “case” that were not disbelieved.
Second, if what was meant by the Minister’s submissions was that those parts that were disbelieved by the reviewer were disbelieved to such a profound degree that the applicant’s credibility was severely affected, then even with this understanding it does not assist the Minister to make out one of the important parts of his argument. The reviewer couched her language in terms of having “serious doubts” about the credibility of some of the applicant’s claims, or causing her to “question the credibility” of his information (see, for example, [133] and [136] at CB 220). What was questioned and doubted by the reviewer was interwoven with findings that were an express rejection of some of the applicant’s factual claims but also an express acceptance of other aspects of his claims.
The reviewer’s assessment was far more nuanced than the Minister’s submissions imply, if not explicitly rely upon. More importantly, the departmental officers also failed to realise this in their “analysis”. Their assessment, in my view, is a simplistic and misleading representation of what the reviewer reasoned, and found, in her assessment.
The departmental officers were selective in focussing on the rejection of the credibility of some of the applicant’s claims, but silent on those that the reviewer accepted. For example, that there was a real chance the applicant would be monitored by the authorities on return to Iran (see at [148] at CB 222).
In my view, what stands against the Minister, quite apart from the not insignificant matters of the application by the departmental officers of the wrong test and the standard of proof to be applied, is the failure by the departmental officers to recognise the character, and context, of the findings made by the reviewer.
I have addressed the character of the findings immediately above. As to context, some assistance is rendered with reference to SZSFK v Minister for Immigration & Anor [2013] FCCA 7. In that case, Judge Driver had before him one decision record involving an applicant’s claims to protection both under the Refugees Convention and complementary protection. That is, the decision record involved one decision maker.
The Court found it “problematic” that findings made in the context of the Refugees Convention, and the language associated with it, were used in the assessment under the complementary protection criterion. This was said, in the circumstances of that case, to give rise to an inference that the decision maker had applied an analysis of “serious” instead of “significant” harm in the assessment of complementary protection.
Plainly, in the current case the circumstances are different, in that there are two sets of decision makers (the reviewer on the one hand and the departmental officers on the other). However, in my view, given what is set out immediately below, that favours the applicant in the current case.
The relevant scheme under the Act (which was in force at the time of the departmental officers’ assessment) is that a particular relationship exists between s.36(2)(a) and s.36(2)(aa) of the Act. That is, the complementary protection criterion only need be considered following an assessment of the applicant’s claims to protection under the Refugees Convention and in circumstances where there has been a finding that the applicant is not a refugee (SZQRB at [71] per Lander and Gordon JJ).
In this context, therefore, it is available to the decision maker to apply findings of fact made in the Refugees Convention assessment to the complementary protection assessment. (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) at [55] – [56] per Robertson J and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125).
However, in my respectful view, the import of what was said in SZSFK (and SZSGA) is to provide a caution that those factual findings, if these are to be relied upon subsequently in the complementary protection assessment, must derive from the facts presented, and be free in the initial assessment of Refugees Convention concepts such as “serious harm” or “persecution” not found in the complementary protection suite of relevant elements (SZSGA at [55] – [56] per Robertson J).
In the current case some of the reviewer’s findings were plainly findings derived from the facts presented, and claimed, and the applicant's evidence about those facts. For example, the reviewer’s finding as to the applicant’s involvement in some demonstrations in 2009. While the reviewer accepted some of the applicant’s claims in this regard, she rejected other aspects, or found them to be “limited” based on the evidence presented ([131] at CB 219 to CB 220). In my view such factual findings can be “imported” into and relied upon in the subsequent complementary protection consideration.
The difficulty, however, is where the reviewer’s factual findings are “bound up”, or are even partially derived from reasoning that relies on the Refugees Convention. In the current case there is greater difficulty than that in SZSFK. That is that, given the circumstances at the time, the reviewer’s assessment was properly conducted solely in the context of the Refugees Convention. This would have, and should have, required the departmental officers to have exercised some caution in simply “importing” these findings into the complementary protection assessment.
The reviewer’s approach in this regard (and it must be stressed, no criticism is made of the reviewer here), can be demonstrated with references to “persecuted” ([142] at CB 221 and [148] at CB 222), “serious harm” ([143] at CB 221 and [148] CB 222), “well-founded fear of persecution” ([144] at CB 221 and [149] at CB 222), “persecution” ([148] at CB 222), “fear of persecution” ([155] at CB 223).
It may have been possible for the departmental officers to have separated and differentiated between those findings of the reviewer, which included these references, and those which did not, and to have relied on the latter.
But in their simplistic and, in presentation, formulaic, approach they did not. This allows for the view, based on something stronger than the inference drawn in SZSFK, that if the matters were the subject of another assessment applying the correct test, the correct standard of proof, and in properly considering the findings of the reviewer, it cannot be said that a different outcome could not be achieved such that to grant the relief would be an exercise in futility.
The relief the applicant seeks here should also be granted in relation to the departmental officers’ assessment and recommendation on this basis.
Consideration: Ground One
Ground one of the further amended application was ultimately explained in a number of ways, or perhaps, with different emphases. In essence, all derive from the fact that, in making her assessment, the reviewer did not consider, or have regard to, the complementary protection criterion as set out in s.36(2)(aa) of the Act.
While the applicant did not criticise the reviewer for not having regard to this statutory provision (he could hardly have reasonably done so given the reviewer’s assessment pre-dated the introduction of s.36(2)(aa) of the Act), the applicant’s argument was (in part) that the Minister should not be permitted to rely on the reviewer’s assessment now, or in the future, given that s.36(2)(aa) of the Act is now in existence.
I will address each of the applicant’s complaints in turn. First, there is no legal error in the reviewer’s assessment in the absence of reference to s.36(2)(aa) of the Act and complementary protection as the applicant appears to imply now. The reviewer cannot be said to have failed to have taken into account a relevant consideration being, at the time of the conclusion of the reviewer’s assessment, a statutory provision that had not been enacted.
As the Minister submits, such assertion of error (which is the assertion in the ground as stated), can only be made out where the decision maker fails to take into account a matter which she, or he, is bound to take into account (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 ‑ 40).
Second, the applicant also argued (arising initially by way of his particulars to the ground) that even though those provisions were not enacted at the relevant time, s.35 of Schedule 1 of the Amendment Act (which included s.36(2)(aa)) provides the basis for the proposition that, as the applicant has not yet made an application for a protection visa, s.35 (given its terms) applies the Amendment Act provisions to the review of his claims conducted by the reviewer.
Section 35 of the Amendment Act is in the following terms:
“The amendments made by this Schedule apply in relation to an application for a protection visa (within the meaning of the Migration Act 1958):
(a) that is made on or after the day on which this item commences; or
(b) that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences.”
The difficulty for the applicant is that he had not, and has not, made an application for a protection visa. As the Minister submitted, as an “unauthorised maritime arrival” the applicant was, and is, unable to make a valid application for a protection visa unless, and until, the Minister “lifts the bar” to such action pursuant to s.46A of the Act. A power that may only be exercised by the Minister (s.46A(3) of the Act).
In the current circumstances, the assessment was conducted by the reviewer to inform the Minister by way of her recommendation as to whether the applicant should be given protection as a refugee. In a practical sense, that is whether he should “lift the bar” (s.46PA of the Act) to enable the applicant to make a valid application for a protection visa.
It may be that, although not stated as such, this ground was in relation to the consideration of the Full Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“SZGIZ”). That case involved an applicant who had applied for, and had been refused, a protection visa on a Refugees Convention basis, prior to the enactment of the complementary protection provisions. The Full Court held that he was now entitled to consideration of his application for protection in light of the (subsequently enacted) complementary protection provisions.
The critical difference in the current circumstances, however, is that the wording of s.35 of the Amendment Act is clear. The amendments relate to “an application for a protection visa”. As the applicant did not, has not (unlike in SZGIZ), and cannot in the current circumstances, make such an application, s.35 of the Amendment Act is not of assistance to him.
I agree with the Minister that, ultimately, it is important to note, in the disposition of this ground, the connection between the relief that the applicant seeks and the complaint embodied in ground one.
The relief the applicant seeks is a restraint on the Minister from relying on either the recommendation of the reviewer or the departmental officers. One basis for this is that the injunction should be given because there has been no consideration of the applicant’s claims to protection under the complementary protection “umbrella”. I agree with the Minister, for the reasons set out above, that the reviewer was not obliged to conduct any such assessment.
However, the question remains, given the applicant’s submissions, as to whether the departmental officers can be said to have “properly” (putting to one side the application of the wrong test) conducted that consideration in circumstances where s.36(2)(aa) of the Act was in force at the time of their assessment.
The applicant’s argument has some force when regard is had to that assessment. The applicant’s attack is not so much that they did not consider complementary protection, but they did not do so in the context of s.36(2)(aa) of the Act, which was in force at the relevant time.
The matter is complicated by the departmental officers’ insistence that they were conducting “the assessment of [the applicant’s] case against the Minister’s Guidelines” (CB 241.3). The applicant argues that the inference that arises is that they were not focused on, nor conducted, the assessment for the purposes of s.36(2)(aa) of the Act.
On balance, and on a fair reading of the departmental officers’ assessment, I agree with the Minister, that while the assessment referred to the Minister’s Guidelines, there is sufficient reference to s.36(2)(aa) of the Act to say that the assessment was also conducted with reference to the legislation. There is nothing before the Court to show that there was any inconsistency between having regard to the Guidelines and the Act. In my view, the reference to “as required by the Complementary Protection provisions of the Migration Act” (CB 241.8 and above) is sufficient to make that tolerably clear.
Further, the reference in the same document to “Australia’s obligation of non-refoulement under the complementary protection provisions”, also provides the basis for linking the assessment, in the specific context of complementary protection, to the Minister’s task of considering, ultimately, whether he should “lift the bar” (in the statutory context) to allow the applicant to validly apply for a protection visa. Ground one, therefore, is not made out.
Consideration: Ground Four
Ground four asserts legal error on the part of the reviewer in that in assessing the applicant’s claims to fear “serious harm”, she focussed on the outcome of the possible detention, and interrogation, of the applicant on arrival if he were to return to Iran, rather than considering whether the process of interrogation and detention, itself, to which he would be subjected (it is claimed), amounted to persecution.
The applicant relied on the reasoning of Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 (“SZQPA”) per Gilmour J, a matter on appeal from this Court (SZQPA v Minister for Immigration and Citizenship [2012] FMCA 123 (“SZQPA (FMCA”) per Judge Driver). The applicant submitted that SZQPA was “congruent” with the facts in this case. He submitted that the reviewer had made an “assumption” that the detention that she had accepted would occur, would not result in serious harm (applicant’s written submissions [36]). The applicant submitted that the reviewer should have asked herself whether the applicant was at risk of serious harm if he was “suspected” of being apostate (SZQPA at [45]).
In response, the Minister submitted that the facts of the case before the Court were “entirely distinguishable” from those in SZQPA. He submitted that the “critical finding” on this question was made by the reviewer at [148] (at CB 222). The Minister submitted, that unlike SZQPA, where the reviewer had accepted that the applicant in that case had connections with the LTTE, two brothers that had been killed and two brothers that had disappeared for that reason, in this case the reviewer had not accepted the applicant’s claims that he would come to the adverse attention of the authorities.
I agree with the Minister that the critical elements in the reasoning of the Courts in SZQPA concerned the circumstances of that case and findings made by the decision maker there which are absent in the current case.
In SZQPA (involving a Tamil fearing harm from the Sri Lankan authorities because of claimed LTTE links) the relevant decision maker accepted as fact many assertions made by the applicant (SZQPA at [39]):
“It is plain enough in context that the first respondent was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.
The applicant in the current case referred the Court to SZQPA at
[42] – [45]:
“[42] It is artificial to attempt to divide up the bases of his fears as though one was dealing with a pleading point. The facts are a matrix; a combination of interrelated facts and it is unhelpful to attempt to divide them up in the way the appellant seeks to do. The Reviewer, as I mentioned earlier, accepted that upon his return to Sri Lanka the first respondent would be likely to undergo scrutiny by the Sri Lankan authorities to determine whether he represents a ‘security risk’. It cannot be doubted that a significant element of such scrutiny would involve the detention and interrogation of the first respondent by Sri Lankan authorities whether by the police, the State Intelligence Service or the Terrorist Investigation Department. The Reviewer also accepted that the Sri Lankan authorities may wish to question the first respondent as to whether he has any knowledge of the location of the LTTE’s hidden caches of materials.
[43] I reject the submission that there was no expressly articulated claim made by the first respondent which required the Reviewer to consider whether the first respondent would be subjected to Convention related persecution during a process of questioning by the Sri Lankan authorities. This was at the very core of the first respondent’s claimed fears.
[44] The conclusion of the Federal Magistrate at [29] of his reasons which concerned the reasons of the Reviewer in his SOR at [59] was that he:
‘focus[ed] on the likely outcome of the possible detention and interrogation of the [first respondent] on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role.’
[45] I agree with those conclusions. I also agree with the conclusion of the Federal Magistrate at [34] that in effect the Reviewer asked himself the wrong question, namely, whether the first respondent would be at risk of serious harm from State authorities assuming he was not an active member of the LTTE. The question he should have asked in light of the claims made by the first respondent and the country information which he had was whether he was at risk of serious harm from State authorities by reason of his imputed political opinion if he was “suspected” of having links or an association with the LTTE.”
[See also [51] – [54].]
The applicant argued that the relevant findings made by the reviewer in the current case, (at [146] – [147] at CB 222) fall within the reasoning of the Courts in SZQPA and SZQPA (FMCA), and are revelatory of the same legal errors. The thrust of the applicant’s argument is that the reviewer accepted that the applicant would come to the notice of the authorities in Iran on the basis of being an involuntary returnee without relevant “exit stamps” in his passport. Further, that the reviewer assumed that any detention or questioning would not result in serious harm because he was not known as, or perceived to be, an apostate or identified as a failed asylum seeker from a Western country.
The Minister submitted that the disposition of this issue was to be found with reference to the reviewer’s actual assessment and recommendation. The reviewer found that the applicant did not have a political profile or any other public profile of adverse interest to the Iranian authorities (at [148] at CB 222). Further, the reviewer found that the other claims made by the applicant (seeking asylum overseas, imputed political opinion, religious belief or being seen as a “traitor, spy or apostate”) were also addressed by the reviewer and found not to assist in revealing the likelihood of “serious harm”.
Those factual findings made by the reviewer, which involved acceptance of some of the applicant’s claims, did not deter the reviewer from reaching the conclusion that the applicant was not “identified” by the Iranian authorities as a person of interest, ([128] – [129] at CB 219), or that his contacting friends to tell them about demonstrations had any adverse significance for him in this regard ([130] at CB 219). Importantly, as the Minister submits, and in further contrast to the situation to SZQPA, the applicant’s evidence on these points was lacking in credibility ([131] at CB 219 to [134] at CB 220).
What sits centrally, and relevantly, in the reviewer’s analysis is that having rejected a deal of the applicant’s factual basis for fearing “serious harm”, what was left was that he was not of interest to the Iranian authorities and would not be of adverse interest on return. This is in contrast to SZQPA where antecedent factual findings were made to the contrary conclusion.
In my view, the answer to the applicant’s complaint is, in light of the above, to be found in [148] of the reviewer’s analysis as submitted by the Minister (at CB 222):
“I must consider whether there is a real chance that the claimant will be persecuted upon return to Iran on the basis of having sought asylum in Australia. Country information suggests that failed asylum seekers with no public profile may be monitored upon return and there is a risk of more serious mistreatment for those with public profiles of interest to the authorities. I have found that the claimant did not have a political profile or other public profile of adverse interest to the authorities upon his departure from Iran. I accept that there is a real chance that the claimant will be monitored upon return but I find that this would not amount to persecution. I do not accept that there is a real chance that the claimant would be subjected to serious harm on the basis of having sought asylum overseas.”
Before the Court, the applicant focused on the finding that the applicant “will be monitored upon return” and argued that the reviewer fell into legal error because she did not consider what that process of monitoring on return would be. That is, as it was expressed, “what did the circumstances involve?”
The answer to that question is found in a fair reading of the reviewer’s analysis and the particular country information context in which the relevant findings were made.
The reviewer set out country information available to her in relation to the “Return of failed asylum seekers” ([116] at CB 216 to [120] at CB 217). Plainly, the reviewer’s relevant reasoning was that there was a distinction made by the authorities in relation to failed asylum seekers between those who had a political profile and those who did not. The reviewer understood that country information was not conclusive on the treatment of those who had sought asylum. Relevantly, for those who had no political profile, the reviewer accepted they would be monitored by the authorities.
The reviewer also reasoned that absent a political profile, or any other adverse public profile, any monitoring of the applicant (and although there was a real chance that it would occur) would not rise to the level of “serious harm” or “persecution” ([148] at CB 222).
The applicant’s assertion that the reviewer should have gone further and examined what “monitoring” would entail must be rejected. There was nothing before the reviewer to indicate that the word “monitor” was used other that in its usual meaning, for example (The Shorter Oxford English Dictionary, 6th Edition):
“…
2 … c.2 Observe, supervise, keep under review; measure or test at intervals, esp. for the purpose of regulation or control.”
If the assertion now in the applicant’s ground, that he would be “interrogated” on return, is meant to be a reference to his claim before the reviewer that he would be “mistreated” by the authorities on return, then this is a claim specifically rejected by the reviewer as applying to the applicant’s circumstances. What was left was “monitoring”. In the circumstances presented this did not need further inquiry or examination. No error is revealed in ground four.
Conclusion
The applicant is entitled to the relief he seeks in relation to the assessment and recommendation by the departmental officers. I will make orders accordingly. The grounds asserting legal error on the part of the reviewer are not made out. The application should, therefore, be otherwise dismissed. I will make the appropriate order.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 28 November 2013
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