SZSDP & Ors v Minister for Immigration & Anor

[2013] FCCA 1647

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSDP & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1647

Catchwords:
MIGRATION – Review of recommendation of Independent Protection Assessor – whether Independent Protection Assessor recommendation affected by jurisdictional error – whether Independent Protection Assessor made recommendation without considering submission of the applicant – whether Independent Protection Assessor made a finding which was irrational or illogical – nature and scope of irrationality ground of review – whether Independent Protection Assessor failed to accord the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5(1), 36(2), 46A(1), 46A(2), 65, 195A(2)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Bruce v Cole (1998) 45 NSWLR 163
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319
Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24
R v Secretary of State for Home Department; Ex parte Onibiyo [1996] QB 768
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
Tickner v Chapman (1995) 57 FCR 451

First Applicant:  SZSDP

Second Applicant: SZSDQ

Third Applicant: SZSDR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: GINA TOWNEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: SYG 2580 of 2012

Judgment of: Judge Manousaridis

Hearing date: 20 August 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

Counsel for the Applicant: Mr T. Ower

Solicitors for the Applicant: Baker & McKenzie

Counsel for the Respondents: Ms R. Graycar

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs.

3. The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2580 of 2012

SZSDP

First Applicant

SZSDQ

Second Applicant

SZSDR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GINA TOWNEY IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant (applicant) is an Iranian national. He applied for a protection visa on behalf of himself and his two children. He claimed he is a Faili Kurd and, for that reason, fears persecution if he returns to Iran.

2. The second respondent (IPA) did not accept the applicant’s claims; she found the applicant was not a credible witness.[1] The IPA also found the applicant was an Iranian Arab from Ahwaz,[2] and further found the evidence did not support a finding that the applicant would suffer serious harm or persecution on that count if he returned to Iran. The IPA, therefore, recommended the applicant not be recognised as a person to whom Australia has protection obligations.

   [1] CB166 [85]

   [2] CB167 [88]

3. In this application for judicial review, the applicant claims the IPA failed to address a submission made by the applicant’s adviser, and for that reason made a jurisdictional error when concluding the applicant was not a Faili Kurd. The applicant also claims the IPA made two jurisdictional errors in finding he would not face persecution as an Ahwaz Arab. He claims the IPA’s conclusion was “irrational illogical and/or unreasonable” in light of the country information the IPA accepted as accurate; and that the IPA arrived at the conclusion without applying that country information. Finally, the applicant claims he was denied procedural fairness because the IPA failed to put to the applicant adverse country information on which the IPA relied.

4. I propose to first consider the applicant’s claim that the IPA did not address his adviser’s submission. I will then consider the applicant’s claims in relation to the IPA’s conclusion that the applicant will not face persecution or harm as an Ahwaz Arab, and his claim that the IPA failed to accord him procedural fairness. Before I consider the claims, however, I will say something about the administrative context out of which this application for judicial review arises.

Administrative context of application for review

1. The recommendation of the IPA, of which the applicant seeks judicial review, forms part of “an administrative refugee status assessment process established by the Government for offshore entry persons”.[3] Under that process, an “offshore entry person”[4], although prevented by s.46A(1) of the Migration Act 1958 (Cth) (Act) from making a valid application for a protection visa, may be permitted by the first respondent (Minister), under s.46A(2) of the Act, to lodge an application for a protection visa. An applicant may be so permitted if, after a “protection obligations determination” (POD) officer has conducted a protection evaluation assessment, the POD officer finds the applicant meets all the requirements for the granting of a protection visa and also finds the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Refugee Convention).[5] An applicant may also be permitted to lodge an application for a protection visa if a POD officer has found the applicant is not a person to whom Australia has protection obligations under the Refugee Convention but, after an independent protection assessor has undertaken an “independent protection assessment”, the independent protection assessor recommends to the Minister that the applicant is a person to whom Australia has protection obligations under the Refugee Convention.

   [3] Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24 at [7]. This is a description of the “administrative refugee status assessment process” described by the High Court in Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 which is almost identical to the current system.

   [4] Which is defined in s.5(1) of the Migration Act 1958 (Cth) (Act)

   [5] CB43

2. In Plaintiff M61/2010E v The Commonwealth of Australia[6] the High Court considered the substantially similar predecessor of this administrative scheme. That scheme provided for an “independent merits review” by a reviewer of a “Refugee Status Assessment” made by an officer of the Department of Immigration and Citizenship. The Court held that the scheme was implemented by the Minister after he decided to consider exercising the dispensing power conferred by s.46A(2) of the Act and the power to grant a visa to a person in detention under s.195A(2) of the Act, and for the purpose of informing the Minister of matters that were relevant to whether he would exercise these powers in favour of the claimant;[7] that the carrying out of the independent merits review, and the making of a recommendation were steps that were taken to inform the Minister’s consideration, and hence were steps towards the exercise of the powers conferred by ss.46A(2) and 195A(2);[8] that the Minister’s consideration of the exercise of these powers must be procedurally fair to the persons in respect of whom that consideration is given;[9] and, that the consideration must proceed by reference to correct legal principles, correctly applied.[10] It followed, therefore, that the independent reviewer was obliged to accord the applicant procedural fairness when undertaking the review. It followed further that the independent reviewer’s “determination of whether Australia had protection obligations to the plaintiff was to be made according to law”.[11]

   [6] (2010) 243 CLR 319

   [7] (2010) 243 CLR 319 at [73]

   [8] (2010) 243 CLR 319 at [78]

   [9] (2010) 243 CLR 319 at [78]

   [10] (2010) 243 CLR 319 at [78]

   [11] (2010) 243 CLR 319 at [87]

3. In my opinion, based on the decision of Plaintiff M61/2010E, an independent protection assessor who, like the IPA in this case, has been appointed to undertake an independent protection assessment must undertake that task without committing any jurisdictional error. That is the assumption on which both parties approached the application for judicial review that is before the Court.

Claimed failure to address adviser’s submission

1. The jurisdictional error the applicant claims the IPA made in concluding he was not a Faili Kurd is stated in paragraph 4 of the grounds of application:

   The second respondent fell into jurisdictional error in failing to address the submissions of the applicants’ advisor concerning the first applicant’s inability to speak Kurdish (Faili dialect).

2. To assess this claim, I must first set out the claims the applicant made to the delegate, the evidence he gave before the IPA, and the applicant’s adviser’s submission the applicant contends the IPA did not consider.

The applicant’s claims in his application for a protection visa

1. In his application for a protection visa, the applicant claimed that if he returned to Iran the government would kill him because he is a Kurd.[12] He claimed he could not get citizenship in Iran, he could not work there, and, because the applicant’s children will be unable to obtain citizenship, they will not receive education.[13] Instead of citizenship, the Iranian government had issued the applicant with a white card.[14] The applicant further said his father was a Kurdish Faili and his mother was Iranian;[15] he used his mother’s surname because his father was not a citizen;[16] the applicant’s wife’s family threatened to kill him,[17] but the courts did nothing when he complained;[18] the applicant’s wife’s family forced him to divorce his wife;[19] and council workers confiscated stock owned by Kurds,[20] and they confiscated the applicant’s cart.[21]

   [12] CB24

   [13] CB24

   [14] CB16

   [15] CB28. “Because my father was Kurdish Faili and my mother was Iranian, he had no citizenship or rights, that is why my surname is the same as my mothers.”

   [16] CB28

   [17] CB16

   [18] CB25

   [19] CB26

   [20] CB25

   [21] CB27

The interview before the IPA

1. The IPA asked the applicant questions about how he left Iran;[22] the language the applicant spoke;[23] the area in which he lived when in Iran and the ethnic groups among whom he lived;[24] how the authorities knew he was a Faili Kurd given that he did not speak Faili;[25] information the applicant had given in a previous interview about the council’s confiscation of the applicant’s cart and his detention;[26] information the applicant had previously given about the death of his father when the applicant was two years old;[27] his use of his mother’s surname;[28] and the applicant’s relationship with his wife, including when he last saw her.[29]

   [22] CB148 - 149 [22]

   [23] CB149 [23]

   [24] CB149 [23]

   [25] CB150 [26]

   [26] CB150 [27]

   [27] CB150 - 151 [29]

   [28] CB151 [30]

   [29] CB151 [31] [32]

2. The evidence the applicant gave in relation to his inability to speak Faili, as set out in the IPA’s reasons, included the following:[30] the applicant spoke Arabic because his mother was Arabic; he also spoke Persian, but not Faili; in response to the IPA stating it was a concern for her that the applicant did not speak Faili, the applicant said his mother spoke Arabic and Persian, and his father spoke Arabic, Persian and Kurdish; and, although the applicant lived in an area where there are a minority of Faili Kurds, he had no contact with Faili Kurds and the area in which he lived were peopled by Iranian citizens. The IPA put to the applicant that she had not accepted the applicant was a Faili Kurd, and that it was possible that the applicant was an Arab from Ahwaz but was applying as a Faili Kurd because he thought there was a better chance of his being granted refugee status.[31] The applicant said that he could have claimed to be an Ahwaz Arab but he would not deny his background.[32]

   [30] CB149 [23]

   [31] CB149 [23]

   [32] CB149 [25]

The applicant’s adviser’s submission

1. During the interview with the IPA, the applicant had with him an adviser. After the IPA put to the applicant he might not be a Faili Kurd but instead might be an Ahwaz Arab, the IPA asked the adviser for “input”.[33] As set out in the IPA’s reasons, the adviser:

   submitted that language is not sufficient to reject the claimant as a Faili Kurd; and noted that the Iranian authorities don’t allow Faili Kurds to speak their own language in schools, nor are they able to speak Arabic. The agent also submitted that whether the claimant is Arabic or Faili Kurd he is subject to discrimination by the Iranian authorities.

   [33] CB149 [24]

2. This passage sets out the substance of the submission made by the adviser as recorded at page 9 of the transcript of the interview held on 21 February 2012.[34] According to the transcript, the adviser submitted that the question of nationality “has to be based on something objective”. The adviser continued:

   [I]t can’t be based on pure speculation, and I think that this understanding that if speak [sic] Faili Kurd you’re a Kurd and if you don’t speak Faili Kurd you’re not a Kurd. I mean that’s not supported in any kind of objective way to make that kind of assessment. I think you need a bit more than that to come to a conclusion to completely exclude his assessment as being on one hand [sic] Stateless, and together a Stateless Faili Kurd.

   I think in terms of the Kurdish part there would probably be a lot of Iranian citizen Kurds who don’t actually speak Kurdish for the simple fact that the Iranian authorities don’t actually allow Kurdish to be spoken in the schools. And so I mean that in itself, it does completely come down to these children learning Kurdish at home through their parents, which as the client has indicated he has not had access to that because of the death of his father at a young age.

   [34] Exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

3. After the interview, on 2 March 2012 the IPA sent to the applicant’s adviser an email which identified country information the IPA had considered on a number of topics.[35] One of the topics was language:

   [35] CB137

   Language

   . . . . In relation to language, and the importance of language in the Faili Kurd culture, the assessor had regard to country of origin information, including information obtained from the Faylee [sic] Kurds Democratic Union website, accessed at . . . . The Assessor also had regard to a speech by Majeed R. Jafar, Ph. D. titled aFaylee [sic] Kurds in Iraqa [sic] and presented in London on 30 November 2010. The speech was accessed at . . . on 28 February 2012; the Assessor refers particularly to pages 3, 4, 12 & 13. . . . The Assessor notes that this document relates predominantly to Iraq, however she believes that the emphasis on language is relevant to Iran too.

4. The applicant’s adviser responded by letter dated 13 March 2012 in which she stated:[36]

   All the articles seem to indicate with respect to language is that Faili Kurds speak “Kurdish” and have their own dialect. This is a fact we have never disputed and note that this is widely documented. . . .

   The sources of information you have put forward in no way suggest that Faili Kurds in all countries would in all cases speak the Kurdish (Faili) dialect and that failure to speak such a dialect would cause their link or perceived link to this ethnicity to disappear.

   The Client has presented consistently circumstances in support of his background and as to the languages he speaks. The Client has continued to reiterate that he grew up in Iran, a country where Persian is the dominant language spoken and where there are known restrictions on the teaching of minority languages like Kurdish in the schools (see our earlier submissions). The Client’s Kurdish father died when he was young and the Client was then brought up by his mother who only spoke Persian and Arabic. The Client associated with his mother’s family who were also of Arabic/Persian backgrounds. Accordingly, the Client now speaks Arabic and Persian.

   No information is presented in either source you have referred to that supports that the Client’s claim is implausible purely on the basis that he has not had the opportunity to learn Kurdish.

   [36] CB139

Did the IPA fail to address the adviser’s submission?

1. The applicant submits the IPA did not address the adviser’s submission. The basis of that submission is that in paragraph 86 of her reasons, where the IPA records her finding that the applicant is not a Faili Kurd, and lists the matters on which the IPA relies for that finding, the IPA listed as one of those matters the applicant’s “inability to speak Faili” without referring to the applicant’s father having died when the applicant was two years of age and of Kurdish children not being permitted to speak Faili in schools.[37] The Minister, on the other hand, submits the IPA did refer to the applicant’s adviser’s submission. He further submits that in any event the submission the applicant’s adviser made was not one the IPA was required to address.

   [37] “[T]here is no express consideration or finding concerning the Applicant’s explanation for not being able to speak Faili Kurd” (applicant’s written submission, [17]).

2. The substance of the submission the adviser made to the IPA was that the applicant’s not speaking Faili did not necessarily mean he was not a Faili Kurd. The IPA, however, not only referred to the submission;[38] she accepted it. In conformity with what the applicant’s adviser submitted, the IPA did not conclude the applicant was necessarily not a Kurd because he could not speak Faili Kurd. The IPA rejected the applicant’s claim he was a Faili Kurd for a number of reasons only one of which was the applicant’s inability to speak Faili:[39]

   The assessor finds that [the applicant] is not Faili Kurd. This finding is not based on any one factor, but on the cumulative factors including [the applicant’s] inability to speak Faili; his submission that his mother was Arabic and that he used her surname (as opposed to his father’s); the fact that he is from a predominantly Arabic area in Iran; his submission that he had no contact with Faili Kurds in his area; [the applicant’s] evidence that he married an Arab woman, country of origin information regarding Ahwaz and [the applicant’s] incorrect submissions regarding the rights provided to people who hold refugee registration cards, including his submissions that no schooling or medical assistance was available.

   [38] CB149 [24]

   [39] CB166 [86]

3. This part of the application, therefore, fails.

Claimed irrational finding that applicant not at risk of harm as Ahwaz Arab

1. The applicant claims the IPA’s finding in paragraph 89 of her reasons is infected with jurisdictional error. The finding is:[40]

   In relation to the foreseeable future, the assessor finds that the evidence does not support a finding that [the applicant] would suffer serious harm or persecution based on his ethnicity or race as an Ahwaz Arab.

   [40] CB167 [89]

2. The applicant claims the finding “was irrational, illogical and/or unreasonable” because it “was fundamentally inconsistent with the country information cited at” paragraphs 76 to 78 of the IPA’s reasons for decision.[41]

   [41] Amended Application, paragraph 1 of grounds of application.

How the issue of the applicant being liable to harm as an Ahwaz Arab arose

1. Whether or not the applicant faced persecution as an Ahwaz Arab arose as an issue after the IPA put to the applicant that it is possible that the applicant is Arabic, not Kurdish.[42] The applicant informed the IPA that “the Arabic [sic] from the Ahwaz area, they’re always in trouble with the Iranian government, protests are always happening there”.[43] In the course of the adviser making submissions that the applicant’s inability to speak Faili Kurd did not mean he is not a Kurd, the adviser said:[44]

   But I guess really when it comes down to ethnicity, which he’s always said from the very beginning he is of mixed ethnicity, he is Arab from his mother’s side, Kurdish from his father, but at the end of the day whatever one you want to consider him as, both of these are ethnic minorities within Iran that are currently subject to probably the same level of discrimination by the authorities in Iran, if not I think the evidence that’s currently being put forward about the treatment of Ahwaz Arab is they are being subject to either worse harassment and discrimination by the Iranian authorities than many Kurds in Iran.

   [42] Page 7 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

   [43] Page 8 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

   [44] Page 9 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

1. After this submission, the applicant said he would not deny his Kurdish background. He added, however, that “even if you say I was Arabic, an Arabic Ahwazi would be in more trouble to [sic] than being Kurdish over there”.[45]

   [45] Page 9 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

The country information to which the IPA referred

1. The IPA set out in her reasons for decision country information relating to Ahwaz Arabs which was obtained from the website of the Unrepresented Peoples and Nations Organisation.[46] The IPA said she believed that this website “provides a succinct and reliable summary of the present situation in Ahwaz”.[47]

   [46] CB164 [76]

   [47] CB164 [76]

2. The statements the IPA set out in her reasons includes that the Ahwazi Arabs face continued violence and repression by the Iranian government; in order to silence opposition “Iranian authorities have persecuted the Ahwazi Arabs through arbitrary arrest, torture, rape, deportation and destruction of property”; in 2005 “it was revealed that the central government had been pursuing a plan of requisitioning land from Arabs in Al-Ahwaz and selling it to ethnic Persians and non-Arab businesses with zero percent loans”; and this led to “massive protests and unrest” which was met by a “government backlash” which “was severe and led to hundreds of arrests and dozens of executions”.[48]

   [48] CB164 [77]

3. In addition, the IPA set out the following passage:[49]

   In addition to being forced from their native lands the Ahwazi Arabs have experienced severe repression through the Iranian gozinesh law, passed in 1988, which makes access to education, employment, military and governmental services conditional upon a rigorous ideological screening to assure a devotion to the state’s official ideology of Islam. Both Sunni and Shia Ahwazi Arabs suffer under this discriminatory policy as they are seen as enemies to the Iranian state and not true practitioners of Islam. Many have been denied access to basic services, while several among them have been subjected to arbitrary arrests and imprisonment.

   [49] CB165 [77]

The IPA’s reasoning for concluding applicant will not suffer harm as an Ahwaz Arab

1. Notwithstanding the IPA acknowledged that country information recorded that “Ahwaz Arabs face difficulties regarding employment opportunities, income and housing, as well as related problems”, the IPA concluded that the evidence did not support a finding that the applicant, whom the IPA found was an Ahwaz Arab from Iran, “would suffer serious harm or persecution based on his ethnicity or race as an Ahwaz Arab”.[50] The evidence the IPA found did not support such finding consisted of one of two explanations the applicant gave about why he did not sell jewellery he inherited from his mother to support his family when in Iran. That explanation was the applicant’s having “referred to his employment, and his lack of need to use the inheritance received from his mother during his seven year marriage because he could obtain work and financially support himself and his family”.[51]

   [50] CB167 [89]

   [51] CB167 [89] (emphasis in reasons)

2. This explanation occurred in a series of questions and answers about when the applicant had decided to leave Iran which the IPA summarised in paragraphs 42 and 43 of the IPA’s reasons for decision:[52]

   The assessor raised that in the POD interview [the applicant] had said that he had always planned to use the jewellery that he had inherited from his mother to leave Iran. [The applicant] confirmed that this was correct; he said his mother had saved a lot of things for him, including money and jewellery. . .

   The assessor raised the fact that [the applicant] had submitted he had always planned to use the jewellery to leave Iran reflects a long term plan to leave Iran; and suggested he did not leave in response to family crisis or treatment from the authorities. [The applicant] said he had always planned to leave but once he was married he changed his mind. The assessor then asked him why he would keep the jewellery if he had decided to stay, and why didn’t he use it to support your wife and children? [The applicant] said they had separated and since he separated he has had no life.  The assessor raised that she means prior to the marriage breakdown, that is, why did he keep the jewellery when he had already decided not to leave Iran when he could have used it to make his married life better? [The applicant] said why would he waste the jewellery and the money when he could work and provide day-to-day, and that he was keeping it for a rainy day. The assessor raised that [the applicant] had previously submitted in his POD interview that issues arose with his extended family because [emphasis by IPA] he had been unable to provide for his wife and children, and the assessor again asked [the applicant] why he would not use the jewellery and money to provide for them. [The applicant] responded by saying that it was not his country, he saw no future for himself and his children there, and deep inside he knew he could not stay there.

   [52] CB153-154

Parties’ submissions

1. The applicant, relying on a passage from the joint reasons of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS,[53] submits that a decision maker makes a jurisdictional error if he or she arrives at a conclusion which is not one that a logical or rational mind could arrive at. He submits that the IPA’s conclusion that the applicant would not suffer harm as an Ahwaz Arab is such a conclusion. The Minister, on the other hand, submits that, before the Court can conclude the IPA’s finding manifests jurisdictional error, it must be satisfied that the finding was so unreasonable that no reasonable assessor could have made it,[54] and the applicant cannot show that the IPA’s finding is unreasonable in this sense. The IPA’s finding, on the material that was before her, was open to the IPA.

   [53] (2010) 240 CLR 611 at [130] – [131]

   [54] Minister’s written submissions, [6] relying on Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, [28] (French CJ), [108] (Gageler J)

2. Before I consider the competing submissions, I will first attempt to identify from the authorities the nature and scope of what I will describe in these reasons as the “irrationality ground of review” .

The irrationality ground of review

1. The irrationality ground of review has been considered by the High Court in the context of applications for judicial review of decisions made by the Refugee Review Tribunal (RRT). And here, two strands of analysis can be identified.

2. One strand takes as its point of departure the requirement under s.65 of the Act that before the Minister can grant a visa he must be “satisfied”, among other things, that the criteria prescribed for the granting of a visa have been satisfied. One of the criteria for the granting of a protection visa of which the Minister must be satisfied is that prescribed by s.36(2)(a) of the Act, namely, that the applicant for the visa “is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”. The Minister’s satisfaction under s 65 and 36 is a jurisdictional fact, and, like all jurisdictional facts on which the exercise of Commonwealth executive power may depend, is reviewable under s 75(v) of the Constitution:[55]

   A determination that the decision maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision maker and is reviewable under s 75(v) of the Constitution.

   [55] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [131] (Gummow J)

3. The circumstances in which the Minister’s satisfaction of the existence of the matters referred to in s.36(2)(a) of the Act is reviewable have been stated by Gummow J, either alone or jointly, in a number of cases. In Eshetu, his Honour said that he “would permit review in cases where the satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.[56] In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002,[57] McHugh and Gummow JJ accepted as an appropriate ground for reviewing a decision of the RRT that it was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[58] Gummow and Hayne JJ said:

   The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   [56] (1999) 197 CLR 611 at [145]

   [57] (2003) 198 ALR 59 at [34]

   [58] (2004) 207 ALR 12 at [38]

4. And in Minister for Immigration and Citizenship v SZMDS,[59] Gummow and Kiefel JJ quoted this passage with approval, but noted the following:

   However, it should be remarked that what is characterised as the “critical question” should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error.

   [59] (2010) 240 CLR 611 at [40]

5. The second strand of analysis of the irrationality ground of review is to be found in the joint reasons of Crennan and Bell JJ in SZMDS. Their Honours noted that irrationality as a ground of review is related to three other principles, one of which is the implied standard of reasonableness which has come to be known as “Wednesbury unreasonableness”.[60] Their Honours further noted that there are a number of difficulties in accepting “irrationality” as a separate ground of review, one of which is that irrationality is “only one facet of unreasonableness”,[61] and that, therefore, there is an “undeniable semantic overlap between “irrationality”, “illogicality” and “unreasonableness””.[62] Their Honours, nevertheless, formulated the irrationality ground as follows:[63]

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the sense of an opinion that a mandated state of satisfaction has not been reached.

   [60] (2010) 240 CLR 611 at [124]

   [61] (2010) 240 CLR 611 at [126]. The quote is from the reasons of Sir Thomas Bingham MR in R v Secretary of State for Home Department; Ex parte Onibiyo [1996] QB 768 at 785

   [62] (2010) 240 CLR 611 at [128]

   [63] (2010) 240 CLR 611 at [130]

6. Their Honours further said:[64]

   Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [64] (2010) 240 CLR 611 at [130]

7. Later in their reasons for judgment, Crennan and Bell JJ said:

   [T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or reasonable minds might differ in respect of the conclusions to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

8. Thus, for Gummow and Kiefel JJ, the irrationality ground of review applies to a jurisdictional finding of fact that is “irrational” or “illogical”; and for Crennan and Bell JJ it applies to a jurisdictional finding of fact that no rational or logical decision maker could make on the material that was before the decision maker. Their Honours, however, did not elucidate the concepts of “irrational” or “illogical”. That makes it difficult to determine the scope of this ground of review because, in my opinion, these words do not have obvious meanings, and, depending on the context, may denote different things. In order to properly apply this ground of irrationality, therefore, it is necessary to consider what meaning, if any, can be attached to the words “irrational” and “illogical”.

9. A starting point is the proposition that the words “irrationality” and “illogicality” and their opposites, “rationality” and “logicality”, at the very least signify a quality of something, that something being “reasoning”. That this is so is apparent from the dictionary definitions to which Crennan and Bell JJ referred in SZMDS:[65]

   [T]he word “irrationality” is conventionally defined as “the quality of being devoid of reason”, “illogicality” is conventionally defined as “unreasonableness” and “unreasonableness” is conventionally defined as “irrationality”.

   [65] (2010) 240 CLR 611 at [125]. The definitions are taken from the Oxford English Dictionary, 2nd ed

10. In these definitions, “irrationality” and “illogicality” are linked to “reason” or, more particularly, to the absence of “reason”. If one continues with the dictionary, the word “reason”, when used as a noun, has meanings which include a “statement of some fact (real or alleged) used to . . . prove or disprove some assertion, idea, or belief”, (in logic) a “premise of an argument”, or, when used as a mass noun, “grounds, motivation, or justification”.[66] The word “reasoning” is defined as “the process by which one judgment is deduced from another or others which are given”.[67] And the word “reasonably” is defined to mean “[a]ccording to reason; with good reason, legitimately; justly”.[68]

    [66] Oxford English Dictionary, 3rd ed 2009

    [67] Oxford English Dictionary, 3rd ed 2009

    [68] Oxford English Dictionary, 3rd ed 2009

11. With these definitions in mind, to say that a decision is “irrational” or “illogical” is to say either that the decision has been made without any reason or reasons, or the decision has been made on the basis of a reason that is not a legitimate (to use a neutral term) ground or warrant for making the decision. To formulate a meaningful test for irrationality, therefore, is to formulate standards, or at least procedures, by which a Court can assess whether a reason on which a decision maker relies for drawing a conclusion is a legitimate reason for arriving at that conclusion.

12. And it is here that one can begin to appreciate the difficulty in formulating such standards or procedures, and hence, defining the notion of an irrational or illogical decision. Reasoning is ubiquitous in decision-making. Decision makers reason about different things: they reason about whether to accept testimony; they reason about whether a particular item of evidence is relevant to what he or she has to decide; they reason about the inferences that may be made on the basis of evidence they accept and how to weigh or reconcile competing or conflicting inferences; they reason about whether findings they have made meet a legal standard; they reason about value judgments they have to make; and they may reason about many other things.

13. Not only is reasoning ubiquitous; there are different forms of reasoning, and decision makers may use these different forms of reasoning for different types of issues; and often a decision maker may use a combination of different forms of reasoning in the course of arriving at the one decision. For example, in a relatively limited class of circumstances, a decision maker may reason deductively; that is, he or she may draw, or purport to draw conclusions that necessarily follow from other facts which the decision maker accepts or assumes to be true. In cases where decision makers assess evidence and make findings of fact on the basis of evidence, they may reason inductively; that is, they may draw conclusions from other facts, not because such conclusions necessarily follow from such facts, but because the decision maker considers that it is probable that such conclusions follow from those facts. In some cases, decision makers might rely on “abduction” or “inference to the best explanation”; that is, they may conclude that a certain fact exists because that fact provides the best explanation for the existence of other facts that the decision maker has found exist or which he or she may find exist. A decision maker may also reason from analogy. A decision maker may reason in yet other ways when determining whether facts he or she has found to exist meet some legal standard, and the reasoning may differ according to the nature of the legal standard. And there may well be other forms of reasoning decision makers use.

14. Outside the relatively limited scope of deductive reasoning, there are no precise rules or standards by which to assess the legitimacy of a conclusion that a decision maker has arrived at on the basis of a reason in any given case. This is obviously so where the decision is made in the exercise of a true discretionary power where “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”;[69] or where the decision is a “normative fact”, that is, where the decision maker is required to evaluate facts against some community standard such as negligence.[70] But it is also true in the case of fact finding.

    [69] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at [19] (Gleeson CJ, Gaudron and Hayne JJ)

    [70] D A Binder and P Bergman Fact Investigation West Publishing 1984 at p. 7

15. Findings of fact must be based on some evidence.[71] At the very least that requires the drawing of inferences. That is, a decision maker must consider whether posited facts exist given the existence of other facts. Whether or not, however, a decision maker will so conclude will depend on the decision maker’s assessment of the probability that the posited facts exist, given the existence of the other facts. Such probability assessments, in turn, would be based, not only on the evidence the decision maker accepts, but also on a number of often unarticulated generalizations about a wide range of matters relating to human nature and capabilities and to the social and natural worlds – generalizations which Heydon J (as his Honour then was) called the “teachings of ordinary experience”.[72] These probability assessments are necessarily subjective and, for the most part, are not susceptible to or, at any rate, are rarely, if ever, subjected to any numerical probability calculation. And, although decision makers, as members of a particular community, may more or less accept the truth of the same range of generalizations on which they rely when drawing inferences,[73] different decision makers may not agree on the truth of a particular generalization. And even of those generalizations about which decision makers may agree are true, there are bound to be differences between them about the regularity with which they consider such generalizations hold true, and the consequent probabilities that each decision maker would assign on the basis of those generalizations.[74]

    [71] “The making of findings and the drawing of inferences without any evidence to support them is an error of law” – Bruce v Cole (1998) 45 NSWLR 163 at 188B (Spigelman CJ)

    [72] J D Heydon Cross on Evidence 9th Australian ed p 308ff.

    [73] It is the fact that decision makers of any given community share a belief or assumption of such generalizations that enables one to justifiably claim that the drawing of inferences on the basis of evidence is a rational process.

    [74] As to the nature of generalizations, and their use in drawing probabilistic inferences, see T Anderson, D Schum and W Twining Analysis of Evidence CUP 2^nd ed 2005, Chapter 10

1. The significance of there being no precise rules or standards (outside the field of deductive reasoning) by which to assess the legitimacy of the reasoning that a decision maker might use is that different decision makers following the same pattern of reasoning on the basis of the same evidence may arrive at different conclusions. That means that the fact that a person (such as judge on an application for judicial review of a decision) who is considering whether a decision maker’s decision is rational would arrive at, or concludes that some other person would arrive at, a different conclusion cannot, by itself, be a ground for concluding that the decision maker has acted irrationally or illogically.

2. On the other hand, the fact that two or more decision makers, following the same pattern of reasoning applied to the same evidence might arrive at different conclusions and yet each may do so rationally or logically does not mean that the drawing of conclusions will always be legitimate, that is, rational or logical. The truth of that observation can be demonstrated by the ease with which examples can be devised of conclusions drawn on the basis of evidence or some other reason which everyone will agree cannot be regarded as being legitimately drawn, and hence rational or logical. The difficulty, however, is that it has not proved possible for any court to formulate a criterion or criteria by which any given conclusion may be assessed to have been drawn irrationally or illogically. Whether or not any particular decision is irrational or illogical has been measured by no more refined criteria than “illogical” or “irrational” and their opposites. The reasons for judgment in SZMDS illustrate this point.

3. How, then, should the Court go about assessing a claim, such as the claim that is made by the applicant in this case, that a decision is irrational or illogical? The first thing is for the Court to be conscious throughout its consideration of such a claim that in all but exceptional cases rational decision making is capable of producing a range of conclusions, including conclusions which are inconsistent or even contradictory. This means that the task of the Court is to consider whether the conclusion under review falls within the range of rational conclusions given the reasoning the decision maker employed and the evidence to which the decision maker referred. A finding of irrationality should not be made unless the Court is clearly satisfied that the conclusion claimed to be irrational or illogical cannot be considered as falling within the range of reasonably possible conclusions given the reasoning the decision maker employed on the evidence that was before him of her. To repeat what Crennan and Bell JJ said in SZMDS, the Court “should be slow, although not unwilling, to interfere in an appropriate case”.

4. Second, when determining the range of rational conclusions that may reasonably be available on the evidence before the decision maker, the Court may need to consider the kind of reasoning the decision maker employed. If the reasoning purports to be deductive reasoning, the range of rational conclusions available on that reasoning should be relatively limited, or at least determinable under the rules of deductive logic. If, on the other hand, the conclusion is wholly or in part based on inferences from evidence, the range of potentially rational conclusions will be larger. To determine that range the Court will need to identify the evidence on which the inference is based and any express or implicit generalisations or assumptions on the basis of which the inference is drawn.

5. Third, it may be necessary to consider the nature of the decision which is claimed to be irrational or illogic. If the conclusion is, for example, a “normative fact”, that is, an assessment of some community standard, such conclusion will fall within a wider range of possibly rational decisions than if the decision was a specific fact.

6. There is one further matter to note. I have assumed that rationality of a particular decision is to be determined by reference to the actual reasoning of the decision maker. That is how Gummow and Kiefel JJ approached the claim of irrationality in SZMDS.[75] In SZOOR v Minister for Immigration and Citizenship,[76] however, Rares J understood Crennan and Bell J, in the passage which I have set in paragraph 37 of these reasons, as deciding that “where a decision maker gives reasons and those reasons do not reveal a logical or rational path of thought, but the decision is one to which some logical or rational mind could have come, even if no logic or rationality appears in the reasons given, a jurisdictional error will not be found”. If that is the correct position, then the question of the decision’s irrationality or illogicality may also need to be assessed without reference to the actual reasoning the decision maker used if the decision maker in fact employed irrational or illogical reasoning.

   [75] At [36]: “Here the RRT did give reasons in response to the requirement of s 430(1). The issue is whether, having regard to those reasons . . . the RRT fell into jurisdictional error to attract the remedy provided by the Federal Court.” (Emphasis added)

   [76] (2012) 202 FCR 1 at [3]

Was the IPA’s decision illogical or irrational?

1. The IPA’s conclusion that the applicant claims is irrational is a limited one: the evidence did not support a finding that the applicant “would suffer serious harm or persecution based on his ethnicity or race as an Ahwaz Arab”.[77]

   [77] CB167 [89]

2. The applicant submits that this finding is irrational for two reasons. First, the IPA misconstrued the country information as only referring to discriminatory practices against Ahwaz Arabs in the areas of employment and basic services when the country information also referred to arbitrary arrests and imprisonment, violence and forced relocation.[78] Second, it does not logically follow from the fact that the applicant had been employed in the past that he would not face persecution in the future as an Ahwaz Arab.[79]

   [78] Applicant’s written submissions [9]

   [79] Applicant’s written submissions [10]

3. As to the first of these reasons, the IPA did not, in my opinion, construe the country information as referring only to employment and basic services. That is made clear in paragraph 89 of the IPA’s reasons which refers to country information recording Ahwaz Arabs facing “difficulties regarding employment opportunities, income and housing, as well as related problems” (emphasis added). In my opinion, the emphasized portion of this passage indicates that the IPA intended to refer to all of the disadvantages faced by Ahwaz Arabs described in the country information.

4. As to the second of the reasons on which the applicant relies, it is correct that it does not logically follow (by which I mean necessarily follow) from the fact that the applicant had been employed in the past that he would not face persecution in the future as an Ahwaz Arab. However, that does not mean the IPA’s conclusion is irrational. From the fact (as found by the IPA) that the applicant had been able to work in the past and so was able to support himself and his family, it was rationally open to the IPA to find, as she did, that the applicant had done so without being the subject of discrimination, and that, having done so in the past, he would be able to do so in the foreseeable future. Or, to be more accurate, from the fact that the IPA was satisfied that in the past the applicant had worked and supported himself and his family without being persecuted, it was open to the IPA not to be satisfied that the applicant would face persecution in the future.

5. In my opinion, the essence of the IPA’s conclusion was that, notwithstanding the applicant was a member of a class which faced persecution in Iran, the IPA found the individual circumstances of the applicant were such that the IPA was not satisfied the applicant himself would face persecution. This does not manifest any error of law. The “central question in any particular case is whether there is a well-founded fear of persecution”; and that “requires examination of how this applicant may be treated if he or she returns to the country of nationality”.[80] And there is no irrationality in the IPA’s concluding she was not satisfied that, although a member of a class that is persecuted in Iran, the applicant will not be persecuted. The country information set out in the IPA’s reasons indicates that the harm to Ahwaz Arabs to which it refers occurred or is occurring in various circumstances and at various times and places. The applicant did not submit to the Court that there was material before the IPA which indicated that the applicant, when he was in Iran or if he returns to Iran, found or will find himself in the circumstances identified in the country information in which harm falls on Ahwaz Arabs.

   [80] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [78] (Gummow and Hayne JJ) (emphasis in original)

6. This ground of the application, therefore, fails.

Claimed failure to apply country information

1. The applicant claims the IPA “failed to apply the country information cited at [76] to [78] [of the IPA’s reasons] to the applicant’s claims”.[81] The applicant submits the IPA was required, but failed to engage in “an active intellectual process directed”[82] at whether the applicant would suffer the harm that the country information indicated Ahwaz Arabs suffer in Iran other than discrimination in employment, income, and housing (omitted country information).[83] The Minister, on the other hand, submits that it was a matter for the IPA to determine the weight, if any, that should be given to country information;[84] there is no jurisdictional error in not making a finding on country information;[85] the principal authority on which the applicant relies (Tickner v Chapman[86]) is distinguishable; and, in any event, there was no claim by reference to which it could be said the IPA did not consider the omitted country information.[87]

   [81] Paragraph 3 of the grounds of application.

   [82] Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ

   [83] Applicant’s written submissions, [12] –[13]

   [84] Minister’s written submissions, [16]

   [85] Minister’s written submissions, [17]

   [86] (1995) 57 FCR 451

   [87] Minister’s written submissions, [17]

2. The resolution of this claim turns, in the first instance, on whether there was any claim or case which required the IPA to consider the omitted country information. And, given that the applicant did not claim he was an Ahwaz Arab, the resolution of the claim depends on whether there was before the IPA evidence or material which the IPA accepted which raised a case the applicant did not articulate.[88]

   [88] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]

3. The IPA did accept the omitted country information. That by itself, however, did not mean the applicant had a case of a well-founded fear of persecution because he was an Ahwaz Arab. Being an Ahwaz Arab did not mean the applicant would necessarily face arbitrary arrest or imprisonment or any of the other harms referred to in the omitted country information. Whether or not he would suffer such harm would depend on what the IPA was satisfied or not satisfied had occurred while the applicant was in Iran, and what the applicant would do if the applicant returned to Iran.

4. The IPA found that, although the applicant may have been apprehended and detained by Iranian authorities, and may have suffered verbal abuse, he was not detained or abused for reasons of race, religion, ethnicity or nationality.[89] And the applicant has not submitted to the Court that there was any evidence before the IPA about what the applicant would do if he returned to Iran, or at least evidence from which it would have been open to the IPA to find that the applicant would have done something that would have given rise to his being exposed to the harm referred to in the omitted country information. That is not surprising, given the applicant did not claim he was an Ahwaz Arab. In these circumstances, the occasion to actively engage with the question whether the omitted country information indicated the applicant would face harm did not arise on the material that was before the IPA.

   [89] CB168 [93]

5. In my opinion, therefore, this ground also fails.

Claimed failure to accord procedural fairness

1. The last of the applicant’s claims is that the IPA failed to accord the applicant procedural fairness by failing to put to the applicant the country information the IPA set out in paragraph 65 of her reasons. To assess this claim, it is necessary to review the issues to which the information was relevant and whether the IPA relied on the information.

Issues to which information relevant

1. The information in paragraph 65 of the IPA’s reasons is contained in the second of two paragraphs of country information that appear in the IPA’s reasons under the heading “Refugees in Iran”. The country information that appears in the paragraph 64 of the IPA’s reasons was taken from the US Committee for Refugees and Immigrants World Refugee Survey 2009: Iran and addressed the number of refugees in Iran and Iran’s policies towards them. The information of particular significance (for the reasons which I will shortly discuss) is the statement: “Longstanding Iraqi refugees in Iran hold refugee documents known as “white cards’”,[90] and the information concerning schooling and medical assistance.

   [90] CB159

2. The significance of this information arose as a result of the applicant’s stating to the IPA during his interview that:[91]

   Nobody’s allowed to work. It’s not only us, the Kurd, all refugees, Afghani, everybody’s not allowed to work. We were not . . .  allowed to buy a house, buy a car, we were not allowed to drive, we were not allowed to rent a shop”.

   [91] Page 11 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

3. The IPA responded to these statements by stating there is “country of origin [sic] which actually says that people are allowed to obtain a work permit with the white card”.[92] The applicant, however, insisted that was not so, that “[w]e were not allowed in Shoush Daniel and we were not allowed to get a permit”.[93] The IPA informed the applicant’s adviser that she would provide her with the country information. Later in the interview, the IPA identified to the applicant’s adviser the document from which the IPA obtained the “country of origin” information. The IPA said:[94]

   I’m just going to let your agent know the information I was referring to before is from World Refugee Survey 2009. It talks about freedom of movement and residence, right to earn a livelihood. So the freedom of movement is where people are restricted or not restricted to live, and it refers to under the right to earn a livelihood, a right to acquire moveable and immoveable property and real estate with reciprocal rights, if there’s reciprocal rights in the other country. This is not a long document so I’ll put into account that I’m taking into account the entire document because it’s only like six pages or something like that.”

   [92] Page 11 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

   [93] Page 11 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

   [94] Page 22 of the transcript of the interview held on 21 February 2012, exhibit SA-1 to the affidavit of S Archer made on 28 February 2013

4. After the interview, on 29 February 2012 the applicant’s adviser sent a letter to the IPA in which a number of matters were addressed. One of these was the information contained In the World Refugee Survey of 2009. The adviser stated:[95]

   You have made reference to a World Survey Report that you indicate provides certain information as to rights that Iraq refugees or “white card/green card holders” may have held at some stage in Iran.

   [95] CB126

5. The adviser then submitted it would be an error to “compartmentalise the serious harm feared by [the applicant] and his children”, and that there is “no benefit in engaging in discussions as to the type of restricted rights white card/green card holders may have held in Iran at [the] same time in the past and the form of rights they hold now”. After making a number of further submissions, the adviser said:

   However, we reiterate, at the core of the feared harm is the fact that “Iraqi” refugees, whether of Arabic or Kurdish identity, have faced discrimination in Iran and that country information supports that from at least in the 1990s the Iranian authorities “tolerance” towards refugees has drastically reduced so that there has been active measures taken to “encourage” refugees to voluntarily depart Iran and return to their “perceived” homes (for the client this is seen to be Iraq).

   More importantly, the claims of individuals like [the applicant] and his children must be assessed against the current situation in Iran. The deteriorating human rights situation in Iran and the fact that the current regime has become identified as much less moderate than previous governments and to be increasingly engaging in actions designed to supress minority groups in the country or groups seen to pose a risk of the power of the current regime. This would include ethnic minorities like the Kurds and Arabs, who are generally seen by the Iranian authorities to hold separatist views and/or foreign sympathies . . . .

6. It is now possible to see to what issue the IPA considered the information contained in paragraph 65 of her reasons to be relevant. In my opinion, the IPA included that information in her reasons in response to the adviser’s submissions which I have quoted in the preceding two paragraphs of these reasons. The adviser did not, in those submissions, dispute the statement the IPA made in the interview that what the applicant had said about Kurds and Arabs not being permitted to work in Iran was contrary to country information. Instead, the adviser submitted that whether or not people with white or green cards were permitted to work in Iran was irrelevant; and she also submitted that, in any event, what was relevant was the current position in Iran which, the adviser submitted, without reference to any supporting information, was deteriorating. The IPA included the information in paragraph 65 of her reasons to address this last-mentioned submission; it was included to show that, contrary to the adviser’s submission, there was country information that “access to health and education and the situation for refugees in Iran is improving”.[96]

   [96] CB160 [65]

Was there a failure to accord procedural fairness?

1. The applicant submits that the IPA had obviously regarded the information contained in paragraph 65 of her reasons and relied on it, but did not give the applicant advance notice that she would do so. The applicant was, therefore, denied an opportunity to comment on it.[97] In addition, I understood the applicant’s counsel to submit that the IPA relied on the information in paragraph 65 of her reasons to conclude in paragraph 86 of her reasons that the applicant had made an “incorrect submission regarding the rights provided to people who hold refugee registration cards, including that no schooling or medical assistance was available”, this being one of the matters on which the IPA relied for not accepting the applicant was a Faili Kurd.

   [97] Applicant’s written submissions, [14]

2. I am not satisfied the IPA relied on the country information referred to in paragraph 65 of her reasons in concluding the applicant made incorrect submissions regarding rights provided to people who hold refugee registration cards. As I note earlier, the IPA put that to the applicant during the interview, and did so by relying on the country information set out in paragraph 64 of her reasons. The applicant’s adviser did not challenge the correctness of that country information. There is nothing, therefore, to suggest that the IPA intended to also rely on the information contained in paragraph 65 of her reasons. And the narrative I have recited earlier shows that the IPA included the information to respond to the applicant’s adviser’s submission that matters in Iran had deteriorated.

1. In any event, in my opinion, the IPA did not deny the applicant procedural fairness. First, the IPA squarely put the applicant on notice at the interview that she was of the view that there was country information that contradicted the applicant’s statements about the rights or benefits refugees in Iran had to work and acquire property. The IPA identified the country information; and the applicant was given the opportunity to respond to that information which he did through his adviser’s letter of 29 February 2012. As I note earlier, the applicant’s adviser did not dispute the country information. And the applicant has not suggested that the IPA was required to give notice that she would regard the applicant’s incorrect submission as a factor against her accepting the applicant’s claims.

2. Second, as I note earlier, the issue of the current situation in Iran concerning refugees was raised by the applicant through his adviser. It was in response to the applicant’s adviser’s submission that the position in Iran was deteriorating that the IPA referred to the information contained in paragraph 65. In these circumstances, it cannot reasonably be said that the applicant was not given an opportunity to deal with that issue. He did deal with the issue, because it was the applicant who raised it.

3. Even if, however, the IPA had given advance notice of her intention to rely on the information in paragraph 65 of her reasons, it would not have made any difference to the outcome. First, the applicant would not have put anything to the IPA to persuade the IPA that the applicant did not make an incorrect submission about rights provided to people who hold refugee registration cards. That opportunity was given to the applicant but the applicant did not take up the opportunity, presumably because country information did show what the applicant said in that regard was not correct. Second, the applicant’s adviser did not provide to the IPA any country information in support of the submission that matters concerning refugees in Iran had deteriorated in Iran. I am entitled to infer, and I do infer, that that was because there was no country information available to support it.

4. In my opinion, this claim also fails.

The second and third applicants

1. As I noted at the beginning of these reasons, the applicant also applied for a protection visa on behalf of his two children, the second and third applicants. Before both the PDO officer and the IPA the applicant (who was assisted by a migration adviser) conducted his application for a protection visa on the basis that the applicant’s children were not making independent claims for a protection visa. In the proceedings before the Court, the applicant was appointed litigation guardian of the second and third applicants. And counsel for the applicant noted that the claims of the second and third applicants are dependent on that of the applicant.

Conclusions and disposition

1. The IPA did not commit any of the jurisdictional errors the applicant claims she made. I therefore propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.

2. I will also order that the Minister’s title as it appears in the application be amended to reflect his current title.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 18 October 2013