SZSFK v Minister for Immigration & Anor
[2013] FCCA 7
•16 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSFK v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 7 |
| Catchwords: MIGRATION – Review of report and recommendation of an Independent Protection Assessor (Reviewer) – applicant claiming persecution in Iran as a Faili Kurd – applicant’s fears found not to be well-founded or related to the Refugees Convention – whether the Reviewer denied the applicant procedural fairness, misconstrued the law or overlooked a claim considered – the Reviewer erred by failing to deal with a particular social group claim and in misapplying the complementary protection criterion. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R |
| Applicant A v Minister for Immigration (1997) 190 CLR 225 Applicant S v Minister for Immigration (2004) 217 CLR 387 Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 Htun v Minister for Immigration (2001) 194 ALR 244 M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 Minister for Immigration v Guo (1997) 191 CLR 559 Minister for Immigration v Pham (2008) 101 ALD 268 Minister for Immigration v SZNWC (2010) 190 FCR 23 Minister for Immigration v SZQHH (2012) 200 FCR 223 MZYOI v Minister for Immigration [2012] FCA 868 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZRHK v Minister for Immigration [2012] FMCA 763 VTAO v Minister for Immigration (2004) 81 ALD 332 |
| Applicant: | SZSFK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PETER TYLER IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 2671 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Mr O Jones Clayton Utz |
ORDERS
The Court declares that the report and recommendation of the second respondent made on 12 October 2012 that the applicant not be recognised as a person to whom Australia has protection obligations was not made in accordance with law.
The first respondent is restrained, by himself or by his Department, officers, delegates or agents from relying upon the report and recommendation of the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2012
| SZSFK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PETER TYLER IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to restrain the first respondent (Minister) from relying upon a report and recommendation of the second respondent (Reviewer). The Reviewer prepared a report dated 12 October 2012 in which he recommended that the applicant not be recognised as a person to whom Australia has protection obligations on the basis that he does not meet either of the criteria for a protection visa set out in s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). The applicant is from Iran and had claimed protection as a member of the particular social group of stateless and undocumented Faili Kurds[1].
[1] It is debateable whether Faili Kurds constitute a racial or ethnic group distinct from other Kurds. It is generally accepted that they constitute a particular social group in both Iraq and Iran. See DZACP v Minister for Immigration & Anor [2012] FMCA 570 at footnote 1 and SZQZV v Minister for Immigration & Anor [2012] FMCA 472 at footnote 4.
The applicant challenges the report and recommendation of the Reviewer on numerous grounds. I have found that the Reviewer fell into error by failing to deal with an integer of the applicant’s claims as an undocumented Faili Kurd, and by misapplying the complementary protection criterion.
The following statement of background facts is derived from the submissions of the parties.
The applicant arrived on Christmas Island as an unauthorised arrival[2].
[2] Court Book (CB) 78.7.
On 24 September 2011, the applicant completed and provided to the Minister’s Department a form entitled “Biodata”[3] and on 28 September 2011 he participated in an interview as part of an age determination process[4].
[3] CB 1-5.
[4] CB 6-18.
On 20 October 2011, the applicant completed and lodged with the Department an Irregular Maritime Arrival Entry Interview form[5]. In this form, the applicant made claims as to persecution[6].
[5] CB 20-44.
[6] CB 37, 42.
On 10 December 2011, the applicant provided a statutory declaration setting out his claims[7].
[7] see CB 46-73.
On 15 December 2011, the applicant was interviewed by an officer of the Department[8].
[8] Falconer affidavit: Annexure A.
On 17 February 2012, a delegate of the Minister (delegate) determined that the applicant was not owed protection obligations and referred the matter to the Reviewer[9].
[9] CB 74-91.
On 21 June 2012, the applicant sent the Reviewer a submission[10].
[10] Supplementary Court Book (SCB) 1-41.
On 3 July 2012, the Reviewer interviewed the applicant[11].
[11] Falconer affidavit: Annexure B.
On 12 October 2012, the Reviewer made the recommendation[12].
[12] CB 92-107.
The applicant is an undocumented Faili Kurd from Iran. His parents were deported from Iraq in the 1980s.[13] The applicant was born and, until his departure for Australia, had always resided in Iran. The applicant claimed he faced mistreatment in Iran as an undocumented Faili Kurd. He and his family had been unable to renew their “green cards” or obtain “white cards”[14]. He was “in a bad situation”. Life was “very hard”. He and his family “didn't use public services” and were “always abused by the Iranian regime[15].
[13] Court Book (CB) 46, 97.
[14] CB 47, 48, 97, 98, 99.
[15] CB 37, 96.
In particular, the applicant alleged the following incidents:
a)members of the “Basij” arrested the applicant and two friends. His friends, who were documented, were promptly released. The applicant was detained, seriously assaulted and then released. In addition, the applicant was accused of being a spy because he was an undocumented Faili Kurd[16];
b)in public places, the applicant was constantly asked by the Basij and intelligence services to produce his identification documents and was sworn at by them. The applicant could not walk in public with his wife without being questioned. He was also stopped at checkpoints, sworn at and embarrassed, meaning he could not easily travel to visit his friends[17];
c)on one occasion when the applicant was returning home with his wife and his mother from a visit to a friend's home, they were stopped at a checkpoint and asked for their papers. When the applicant said they were Faili Kurds without documents, a police officer pushed his mother. The applicant shouted at the officers. He was physically assaulted and his name and the name of his father were recorded[18];
d)when the applicant was a street vendor of clothing, he was assaulted[19];
e)the applicant's father had been beaten[20];
f)when the applicant and his family worked, they could not obtain insurance and were paid less than the going rate[21];
g)the applicant and his family did not have the right to study and were not entitled to use the health system, except with the payment of large fees and bribes;[22] and
h)the applicant was not allowed to wear t-shirts or get a tattoo.[23]
[16] CB 37, 47-48, 96, 97, 99-100.
[17] CB 37, 96.
[18] SCB 4, CB 98.
[19] CB 37, 47, 96, 97, 100. SCB 6-7.
[20] CB 37, 97.
[21] CB 37, 46, 96, 97.
[22] CB 37, 46, 96, 97.
[23] CB 37, 96.
The applicant claimed he would be arrested upon arrival in Iran, detained and harmed. He would have no access to basic rights and be deprived of his livelihood[24]. He would also be persecuted, tortured, treated inhumanely and even executed because he left the country illegally on a false passport[25].
[24] CB 49, 98.
[25] CB 100 [40].
At his interview with an officer of the Department, the applicant also claimed that, if the Iranian authorities became aware of his asylum application, he would be persecuted[26].
[26] see CB 81.8.
In his submission to the Reviewer, the applicant elaborated on the claims above[27]. This included:
a)The recounting of an occasion in August 2009 where he and his wife, who lacked official documentation verifying their marriage, were stopped at a police checkpoint with his mother. One of the officers pushed his mother, he shouted at the police, and he was then assaulted by them. Their details were then recorded by the police[28];
b)Putting a particular social group claim, the claimed groups being “Stateless Faili Kurds of Iraqi origin” and “Stateless Faili Kurds suspected of opposing Iranian authorities who have fled to the West illegally and returned to Iran as failed asylum seekers”[29];
c)Claiming that he would attract adverse attention as a stateless Faili Kurd who departed Iran illegally who has already come to the attention of the Iranian authorities[30];
d)Claiming that the law prohibiting illegal departure had a discriminatory impact on members of a particular social group (Faili Kurds of Iraqi origin)[31];
e)Claiming that he would be perceived as an enemy of Iran due to (a) his status as a stateless undocumented Faili Kurd of Iraqi origin, (b) his previous adverse encounters with the Basij and Iranian authorities, (c) his illegal departure, and (d) his status as a failed asylum seeker[32].
[27] SCB.
[28] SCB 4 at [18].
[29] SCB 24 at [102].
[30] SCB 25 at [104].
[31] SCB 27 at [110]-[115].
[32] SCB 28 at [116]-[122].
The applicant was professionally assisted and represented at all stages, including before the Reviewer, by his current solicitors.
The first instance assessment
At first instance, an officer of the Department:
a)accepted that the applicant fell within a particular social group consisting of “stateless, illegal and undocumented foreigners in Iran” and that this was the essential and significant reason for the harm which he feared[33];
[33] CB 85.8.
b)considered that the applicant also claimed to fear harm for being a failed asylum seeker and because of his Faili Kurdish ethnicity[34];
c)accepted that the harm he feared was sufficiently serious to amount to persecution[35];
d)did not accept that he was beaten when selling goods by reason of his ethnicity or being undocumented[36];
e)did not accept that economic hardship encountered by him would threaten his capacity to subsist[37];
f)did not accept that he was denied basic education[38];
g)accepted that Faili Kurds had limited access to health care, but did not accept that he was denied access so as to constitute persecution[39];
h)considered that his targeting by the Basij was more likely to be to extract a bribe than because of his Faili Kurdish ethnicity[40];
i)did not accept that he had a real chance of political persecution[41];
j)concluded that he might suffer consequences because of his illegal departure, but that was a consequence of a law of general application[42]; and
k)found that a failed asylum seeker would not suffer serious harm for a Convention reason, without more[43].
[34] CB 85.9.
[35] CB 86.1.
[36] CB 88.3-4.
[37] CB 88.5.
[38] CB 89.3.
[39] CB 89.4.
[40] CB 89.8-90.1.
[41] CB 90.2.
[42] CB 90.6.
[43] CB 90.8-91.5.
The Reviewer made the following findings:
a)the applicant was an undocumented and stateless Faili Kurd from Iran. He was born and had resided there all his life. He had been educated and had worked there[44];
b)the applicant was significantly older than his claim of being 17 years old when he arrived in Australia[45];
c)there was a level of discrimination against undocumented, stateless Faili Kurds in Iran[46].
[44] CB 101 [45].
[45] CB 101 [46].
[46] CB 101 [48].
However, the Reviewer did not accept that the treatment amounted to “persecution for the purposes of the Convention”[47]. The incident where the applicant and his friends were arrested was because he was part of an unauthorised gathering rather than his ethnicity[48]. This was borne out by the applicant's subsequent conduct in street vending and delay in departing Iran, indicating that he did not have a subjective fear of the Basij by reason of the incident[49]. The applicant's treatment at a checkpoint, in the presence of his wife and mother, was not due to his ethnicity or any other Convention reason. The obligation to produce identification at checkpoints was common to all Iranians. The assault on the applicant was a reaction to his conduct[50]. So, too, was the recording on that occasion of the applicant's name and that of his father[51].
[47] CB 102 [48].
[48] CB 102 [52].
[49] CB 102 [52].
[50] CB 103 [53].
[51] CB 103 [54].
The Reviewer found that the applicant's mistreatment as a street vendor was the result of the applicant engaging in illegal trading activity, which the applicant had admitted to the Reviewer[52]. The applicant had not been denied a basic education in Iran[53]. The applicant had not been denied the ability to work and make at least a subsistence living[54]. The applicant had sufficient income to obtain health care from private providers[55]. The prevention of the applicant having a tattoo was not serious harm for the purposes of the Convention, nor was there evidence that the prevention was confined to the Faili Kurd community[56].
[52] CB 103 [55].
[53] CB 103 [56].
[54] CB 103 [57].
[55] CB 103 [58].
[56] CB 104 [59].
The requirement that the applicant produce identification documents to officials, which was accompanied by swearing at the applicant, was not directed to any particular persons or group of people. It applied to all classes of Iranian society. It did not amount to serious harm[57]. While the applicant had claimed that his father had been beaten, he had not explained how this might or had created a similar risk to himself. Nor had the applicant explained how his father's beating was for a Convention reason. As a result, the beating of the applicant's father did not indicate a risk of serious harm to the applicant[58]. The cumulative effect of all the above mistreatment did not amount to persecution or serious harm[59].
[57] CB 104 [60].
[58] CB 104 [61].
[59] CB 104 [62], CB 105 [71].
The Reviewer further found that, while the applicant's departure from Iran illegally on a fraudulent passport may mean he is liable for prosecution, the relevant laws applied to all Iranians. This would not amount to persecution under the Convention. Notwithstanding the applicant's evidence to the contrary, there was no evidence suggesting Faili Kurds would be special targets in this context[60]. While there was a real chance the applicant would be questioned and monitored upon his return to Iran, this treatment did not amount to serious harm and persecution under the Convention[61]. As the applicant did not have a high profile or history of anti-regime activities, there was no real chance that he would be seriously harmed if he returned to Iran, including on account of applying for asylum in Australia[62].
[60] CB 104 [63].
[61] CB 104 [65].
[62] CB 105 [65]-[68].
The Reviewer then considered complementary protection. He found that there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm because of his experiences in the past. Those experiences were not “systematic” or targeted at the applicant and, therefore, did not demonstrate or create a real risk of happening in the future[63]. There were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm because he would be imputed with a political opinion or regarded as a dissident, spy and traitor[64].
[63] CB 105 [72].
[64] CB 106 [73].
The Reviewer found that the applicant had not been charged with any offence punishable by death and there was nothing to indicate that a failed asylum seeker such as the applicant would be charged with such an offence. The Reviewer accepted that the applicant may be questioned on his return to Iran, but there was no evidence to suggest that he would be tortured, or suffer cruel or inhuman treatment or punishment, or degrading treatment or punishment in the course of that questioning[65].
[65] CB 106 [74].
In short, the Reviewer found that the applicant's claims as to complementary protection were based on the same evidence as the Convention claims. The Reviewer was satisfied there were no substantial grounds for believing there was a real risk the applicant would suffer significant harm[66].
[66] CB 106 [75].
The judicial review application
These proceedings began with a judicial review application filed on 16 November 2012. The applicant now relies upon an amended application filed on 8 February 2013. There are four particularised grounds in that application:
1. The [Reviewer] denied the applicant procedural fairness.
Particulars
a. An issue that was credible, significant and relevant that arose in the review was whether “State records” would indicate that the local police took the name of the applicant during a particular incident (“State Record Issue”).
b. Further and in the alternative, any or all of the following were issues arising in relation to the review (“Subjective Fear Issues”):
i. whether the applicant lacked a subjective fear of persecution;
ii. whether the applicant’s conduct in working on the street in a public place demonstrated a lack of fear of the Basij;
iii. whether his conduct in not making plans to leave until May or June 2011 indicated that he did not have a subjective fear by virtue of his detention following an [unauthorised] gathering;
c. Further and in the alternative, the [Reviewer] relied upon the following country information (“Country Information”):
i. an advice from the Australian Embassy in Tehran that indicated that it was unaware of Faili Kurds being targeted because of their ethnicity (Recommendation at [63]);
ii. CX61493 (Recommendation at [66]-[67]).
d. Procedural fairness required the [Reviewer] to inform the applicant of the State Record Issue, Subjective Fear Issues and/or the Country Information (or substance thereof) and to provide him with an opportunity to comment. The [Reviewer] did not do so, thereby denying the applicant procedural fairness.
2. The [Reviewer] engaged in legal error by misconstruing or misapplying the applicable law, or otherwise failed to ask itself the right question.
Particulars
a. The [Reviewer] rejected certain claims made by the Applicant on the basis that the relevant conduct on the part of the alleged persecutors was the consequence of the enforcement of a law of general application (e.g. CB104 at [60] and [63] of the [Reviewer’s] Decision).
b. Prior to rejecting the claims on this basis, the [Reviewer] was required (but failed to) ask [himself] whether that law is appropriate and adapted (in the sense of proportionate) to achieving some legitimate object of the country of the refugee.
3. The [Reviewer] engaged in legal error by failing to consider a claim or component integer thereof.
Particulars
a. The [Reviewer] failed to consider a claim, or component integer thereof, made by the Applicant as an undocumented Faili Kurd to the effect that he had a well founded fear that he would be subjected to persecutory conduct beyond the scope of the enforcement of a law of general application at the hands of the Iranian authorities/Basij (including being made to disappear without being accounted for), without access to state protection.
4. The [Reviewer] engaged in legal error by misconstruing or misapplying the applicable law, or otherwise failed to ask [himself] the right question.
Particulars
a. The [Reviewer] failed to correctly construe and apply, or otherwise correctly ask [himself], the question posed by section 36(2)(aa) when considering the Applicant’s claim for complementary protection (see CB106 at [75] of the [Reviewer’s report]).
I have before me as evidence the court book filed on 18 December 2012. I also received as evidence the affidavit of Jenny Falconer made on 17 January 2013 (filed 8 February 2013) to which are annexed transcripts of the Protection Evaluation Obligation (POE) interview with the applicant on 15 December 2011 and the Independent Protection Assessment (IPA) interview conducted with the applicant on 3 July 2012.
Both parties made written and oral submissions.
Consideration
I note at the outset that the Reviewer, in his report, made a number of questionable assumptions. First, at [51][67] the Reviewer relied upon an Australian Embassy report of 18 March 2010 which stated that the post was “not aware of Faili Kurds being targeted because of their ethnicity, but those without documents risked deportation”. The Reviewer used that report to support the proposition that the Basij treats everyone, including Iranian citizens, in a similar manner across all sectors of Iranian society. It is questionable whether the report supports that proposition. The fact that a diplomatic post is not aware of something does not mean that it did not occur. Further, Faili Kurds may be targeted for some other reason than their ethnicity (which may be simply Kurdish ethnicity, although Faili Kurds constitute a particular social group in both Iran and Iraq). The Embassy report does suggest that undocumented Faili Kurds are at some greater risk than other groups within Iran which might expose them to greater risk from the Basij.
[67] CB 102.
Secondly, at [52][68] the Reviewer found that the applicant’s conduct in working on the street in a public place demonstrates a lack of fear of the Basij. That was a questionable assumption. The applicant worked on the street illegally in order to subsist. He might well have done so because his need to subsist was stronger than his fear of the Basij.
[68] CB 102.
Thirdly, at [54][69] the Reviewer stated that he was not satisfied that Iranian state records would indicate that local police took the name of the applicant a number of years ago at a checkpoint. This appears to assume that information recorded by the police would not be entered on any computer or other permanent record available to other Iranian officials.
[69] CB 103.
Fourthly, at [55][70] the Reviewer found that the applicant was targeted by the Basij because he was working illegally, rather than for any Convention reason. This overlooks the question of why the applicant was working illegally. The Reviewer accepted that the applicant, as a Faili Kurd, and non citizen, was not permitted to work. It logically followed that in order to subsist he had to work illegally. It is therefore debateable, if he was targeted because he was working illegally, whether there was any Convention nexus with his status as a Faili Kurd. Further, somewhat confusingly, the Reviewer records at [57][71] that he put to the applicant that, although it was illegal for undocumented people to engage in employment, the authorities, especially in the applicant’s province, were not strict in enforcing work restrictions in respect of Faili Kurds. If that was so, it raises the question of why the applicant was targeted by the Basij for working illegally.
[70] CB 103.
[71] CB 103.
Fifthly, at [60][72] the Reviewer found that all classes of Iranian society are required to produce identification documents at checkpoints and, consequently, there was no significance in the fact that the applicant was stopped at checkpoints and abused. That conclusion avoids the question of whether a person like the applicant who has no documents to produce when stopped would be subject to a more significant risk of harm.
[72] CB 104.
Sixthly, at [63][73] the Reviewer had regard to the applicant’s claim that, because he is an undocumented Faili Kurd, he would be treated more harshly than others. However, the Reviewer relied upon advice from the Australian Embassy in Tehran which indicated it was “unaware of Faili Kurds being targeted because of their ethnicity”. Again, the fact that the diplomatic post is unaware of something does not mean that it does not occur. Secondly, this claim of the applicant’s did not depend on his ethnicity but, rather, upon his status as a member of the particular social group of undocumented Faili Kurds.
[73] CB 104.
Seventhly, at [65][74] the Reviewer referred to independent information suggesting that the Iranian authorities would undertake surveillance of asylum seekers through a network of spies. The Reviewer stated that even though the Iranian authorities may be aware that the applicant has applied for asylum, they would not be aware of the basis upon which he made such application. The Reviewer does not state what that assumption is based on. Logically, what the Iranian authorities would know of the asylum claims of individuals in Australia would depend upon the quality of their information, which would in turn depend upon the quality of their informants. Although asylum seekers are screened by ASIO to detect security risks, I am not aware of any similar screening of those responsible for dealing with asylum claims. In the absence of any relevant security assessment, I doubt that anything could be said reliably about what the Iranian authorities may know of the claims of asylum seekers in Australia.
[74] CB 104.
Finally, at [67][75] the Reviewer appeared to rely upon a cable from the Department of Foreign Affairs and Trade which noted that the diplomatic post in Iran “has not seen articles calling for failed asylum seekers to be put on trial”. Once again, ignorance of articles does not mean that the articles do not exist.
[75] CB 105.
The above survey of questionable aspects of the Reviewer’s reasoning in dealing with the applicant’s claims is of no legal significance unless bearing upon an assertion of reviewable legal error. I now turn to consider the grounds of review.
Ground 1 – was there a denial of procedural fairness?
The principles of procedural fairness apply in relation to a review of the kind conducted by the Reviewer[76].
[76] M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 (M61) at [77]-[78] per curiam.
This includes a requirement that a reviewer “put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the [applicant’s] claims”[77].
[77] M61 at [91].
I was also taken by counsel for the applicant to Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[78] at 590-1 (cited by the High Court approvingly in SZBEL[79] at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
[78] (1994) 49 FCR 576.
[79] SZBEL v Minister for Immigration (2006) 228 CLR 152.
State record issue
In the present case, an issue that the Reviewer considered might bear upon whether to accept the applicant’s claims was whether so called “State records” would indicate that the local police took down the name of the applicant and his father at the time of the August 2009 assault (State record issue).
At [54][80], it is apparent that, although the Reviewer accepted the claim that their names were taken down by the police, he was not satisfied that the records of the local police would end up in the so-called “State records” and, for this reason, rejected the claim that officials would be interested in questioning the applicant upon his return to Iran because his name had been taken down on that occasion.
[80] CB 103.
Although, the State record issue bore upon whether to accept the applicant’s claims, the applicant complains this issue was not put to him by the Reviewer.
Subjective fear issues
A further issue that the Reviewer considered might bear upon whether he accepted the applicant’s claims was a collection of issues that broadly concerned whether the applicant held a subjective fear of persecution (subjective fear issues).
Specifically, at [52][81], the Reviewer relevantly stated:
In fact, I am satisfied that his conduct in working on the street in such a public place demonstrates a lack of fear of the Basij. Further, in his entry interview he is recorded as claiming the reason for leaving Iran was because of this incident. I note that he did not start making plans to leave until May or June 2011, a period of one and a half years later. I consider therefore that this lengthy time indicates that he did not have a subjective fear of the Basij for reason of this event.
[81] CB 102.
In other words, the Reviewer considered that the following issues bore upon whether to accept the applicant’s claims:
a)whether the applicant lacked a subjective fear of persecution;
b)whether the applicant’s conduct in working on the street in a public place demonstrated a lack of fear of the Basij;
c)whether his conduct in not making plans to leave until May or June 2011 indicated that he did not have a subjective fear by virtue of the detention following an unauthorised gathering.
The applicant complains that the Reviewer did not put to him that his claimed subjective fear was in issue in any respect.
This is said to be particularly problematic, and reveal error, in circumstances where the claims as to the holding of a subjective fear was not in issue in the “decision” under review. The applicant contends that a fair reading of the POE reveals that the issue that arose was the well foundedness of the fear rather than the existence of the fear itself[82]. In such circumstances, the applicant says that he was entitled to assume that the issue did not arise in the review unless told otherwise by the Reviewer[83].
[82] see for example CB 86.1 and CB 91.5, where the existence of the fear appears to have been assumed.
[83] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35].
Country information
I accept that under the general law, procedural fairness requires the Reviewer to “put to the [applicant] for his consideration and comment those aspects of country information known to the Reviewer which the Reviewer considered may bear upon the claims the plaintiff made”[84].
[84] M61 at [91].
In the present case, the Reviewer relied upon an advice from the Australian Embassy in Tehran that indicated that it was unaware of Faili Kurds being targeted because of their ethnicity. He did so at [63][85], where he relied on that country information in rejecting the claim that an undocumented Faili Kurd would be treated more harshly than other people who breach Iranian immigration laws[86].
[85] CB 104.
[86] See also CB 102 at [51].
The Reviewer also referred to country information with the reference CX61493 at [66]-[67][87] to the effect that:
a)Rahim Rostami (an asylum seeker who was imprisoned) had a high profile; and
b)DFAT had not seen articles calling for failed asylum seekers to be put on trial.
[87] CB 105.
The above information was relied upon by the Reviewer to reject the applicant’s claims to the effect that he would be persecuted as a failed asylum seeker upon his return.
The applicant contends that procedural fairness required the above information to be put to him and the Reviewer failed to do so. This is said to constitute reviewable legal error as described in M61.
I prefer the Minister’s submissions on this ground. The relevant principle was described by Cameron FM (as he then was) in SZRHK v Minister for Immigration[88] as follows[89]:
A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity of ascertaining the relevant issues, which will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The party affected is also entitled to be informed of the nature and content of adverse material that is credible, relevant and significant and which the decision-maker has obtained from sources other than that party, as well as of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material, and to address that new material and those unexpected conclusions by further information and submission
[88] [2012] FMCA 763.
[89] SZRHK at [55].
In essence, there must be a failure to disclose a critical issue that is not otherwise apparent, adverse information that is credible, relevant and significant and an adverse conclusion that is not obviously open on the known material. However, there are important limits to these obligations. The Reviewer is not obliged to give the applicant “a running commentary upon what [he] thinks about the evidence that is given”[90]. The Reviewer is not required to disclose “mental processes or provisional views”[91]. Further, only the “substance” of adverse material must be disclosed[92]. Finally, the Federal Court has qualified the principle referred to at [50] in relation to a complete re-hearing rather than the review of a prior decision[93].
[90] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [89].
[91] SZBEL at [29], citing Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 at 591-592.
[92] Minister for Immigration v SZQHH (2012) 200 FCR 223 at [30].
[93] MZYOI v Minister for Immigration [2012] FCA 868.
State records
I accept the Minister’s submission that there was no breach of these principles in relation to the State records issue. The issue was not critical to the Reviewer’s decision. The Reviewer had already found that the recording of the name of the applicant and his father by the police was a “logical consequence of the events occurring at that time”, particularly the applicant shouting at the police in a “heated exchange”. Recording “would be standard practice for the purposes of neighbourhood policing”. Further, there were no charges or further action beyond recording. In other words, the events did not give rise to relevant harm. They were an “insignificant incident” at a checkpoint[94].
[94] CB 103 [54].
In any event, the discussion in the report about State records represented the Reviewer’s “mental processes”. Any disclosure would have amounted to a “running commentary”, which was neither desirable nor required. The applicant had not only claimed harm at the checkpoint by police. He had also claimed that he would be questioned by officials upon his return. The Reviewer, having made findings as to the insignificance of the incident at the checkpoint, went on to conclude that it would not be of interest to those officials. In particular, the incident was not important enough to appear in State records. This is a process of analysis and inference that does not attract an obligation of disclosure. While there may be a lack of logic in the Reviewer’s reasoning, it has no legal significance.
Subjective fear
I accept the Minister’s submission that there are two answers to the complaint that the issue of subjective fear was not put to the applicant. First, the need for subjective fear was apparent and therefore did not have to be disclosed. It has been held that the legislative criteria for a visa fall into this category.[95] The High Court has indicated that a claim for refugee status based on a “well-founded fear of persecution” incorporates subjective and objective elements[96]. The applicant's professional representatives were aware of the requirement of subjective fear, as they submitted that the “subjective aspects of the claimant's treatment should be considered as persecution”[97].
[95] Minister for Immigration v Pham (2008) 101 ALD 268 at [52]-[53].
[96] Minister for Immigration v Guo (1997) 191 CLR 559.
[97] CB 101.
Secondly, the particular subjective fear addressed by the applicant's submissions represents the Reviewer’s mental processes. The Reviewer was making findings regarding the incident where the applicant and his friends were arrested by the Basij. The Reviewer was “satisfied that the essential and significant reason for the treatment he received was because he was part of an unauthorised gathering”. This was because the applicant had indicated “the reason he and his friends were approached by the Basij was because they were gathering in a public place and there appears to be nothing to indicate that it was for any other reason”[98].
[98] CB 102 [50].
The Reviewer bolstered this explanation for the treatment of the applicant and his friends with an analysis of the applicant's subsequent conduct. The applicant had engaged in street vending in a public place. He had also delayed departure from Iran. To the Reviewer, this suggested that, when the applicant was not part of unauthorised gathering, he did not fear the Basij. The Basij were targeting the applicant's engagement in an unauthorised gathering rather than the applicant more specifically. Again, this is a process of analysis and inference (whether logical or not) that does not generate an obligation of disclosure.
Country information
The Minister contends and I accept that the Reviewer was only required to put the substance of the country information to the applicant and the Reviewer did so. It is instructive to set out the Reviewer’s use of the country information:
a)“The claimant left Iran illegally on a fraudulent passport and therefore may be liable to prosecution for breach of Iranian immigration laws. The claimant agreed that these laws apply to all Iranians … Although the claimant claims that because he is an undocumented Faili Kurd he would be treated more harshly than others, I have had regard to the advice from the Australian embassy in Tehran which indicates that it is unaware of Faili Kurds being targeted because of their ethnicity”[99];
b)“The claimant's representative referred to what happened to Rahim Rostami on return to Iran. I accepted that Rahim Rostami who applied for asylum in Norway was imprisoned when he returned to Iran. It appears that he had a relatively high profile in Norway … DFAT in the same cable also noted that the Post has not seen articles calling for failed asylum seekers to be put on trial”[100].
[99] CB 104 [63].
[100] CB 105 [66].
The Minister submits and I accept that the effect of the country information was as follows:
a)Iranian immigration laws are applied to all Iranians without distinction; and
b)a failed asylum seeker must have had a high profile before he or she will attract adverse attention upon return to Iran.
The substance of the above was put to the applicant. The Reviewer recounts the following remarks by him at the interview of the applicant:
a)“I put it to him that country information indicated that anyone who uses fraudulent documents in Iran will be of interest to the authorities because the activity is illegal and the claimant agreed”[101]; and
b)“I put it to him that people with a high political profile will face difficulties with the authorities and that this would not apply to him”[102].
[101] CB 100 [41].
[102] CB 100 [42].
The transcript confirms at pages 65-66 that the Reviewer’s description is accurate.
I reject Ground 1.
Ground 2 – did the Reviewer fail to ask the right question?
The applicant’s submissions helpfully deal with the principles related to this ground. It is well established that, where the alleged persecution of a particular social group arises by virtue of a law of general application, it is necessary (if the law is discriminatory in its implementation or its enforcement) for the decision maker to ask whether that law is appropriate and adapted to achieving some legitimate object of the country of the refugee. This requires up to three questions to be asked:
a)is the law in question a law of general application and/or is it discriminatory?
b)is there a legitimate object underpinning the law?
c)is the law appropriate and adapted (in the sense of proportional) to achieving that objective?
This flows from:
a)Applicant A v Minister for Immigration[103], in which the High Court considered the application of laws related to the one-child policy in China. McHugh J stated[104]:
Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.
...
In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.
(footnotes omitted)
[103] (1997) 190 CLR 225.
[104] at 258-259.
b)Chen Shi Hai v Minister for Immigration[105], in which the High Court addressed China’s one-child policy laws again, albeit their impact upon children born in breach of the one-child policy rather than their parents (as was the case in Applicant A). In respect of the question of persecution, Gleeson CJ, Gaudron, Gummow and Hayne JJ held (at 302-3):
[105] (2000) 201 CLR 293.
The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups — for example, terrorist groups — which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views — for example, those who advocate violence or terrorism — differently from other members of society.
...
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity.
c)Applicant S v Minister for Immigration[106], in which the High Court considered forcible conscription laws in Afghanistan (the particular social group was “able bodied young men in Afghanistan”). Gleeson CJ, Gummow and Kirby JJ said[107]:
[106] (2004) 217 CLR 387.
[107] at 402–403.
A law of general application is capable of being implemented or enforced in a discriminatory manner.
The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the Court’s decision in Israelian. Namely, that enforcement of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.
In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.
(citations omitted)
The High Court went on to conclude (at 404) that even if there was a legitimate national objective, it was not appropriate and adapted (in the sense of there being proportionality) in the means used to achieve that objective because the policy of conscription was implemented in a random and arbitrary manner.
d)VTAO v Minister for Immigration[108], in which the Federal Court dealt with a Tribunal decision in which it had found that China’s one-child policy laws were not discriminatory because they applied to all citizens equally and were directed at a legitimate purpose, namely, limiting population growth. The Tribunal had further held that the financial penalties were serious but did not amount to persecution. The Court held that the Tribunal committed jurisdictional error. Merkel J (at [47]) stated:
The RRT did not enquire whether the harm feared by the applicant parents was appropriate and adapted to achieving the legitimate object of population control. That issue is to be determined by reference to ‘the standards of civil societies which seek to meet the calls of common humanity’: see Chen at CLR 303; ALR 560; ALD 328 [29]. ... A law of general application mandating the imposition of severe penalties on the mother irrespective of her personal circumstances may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object.
(emphasis added)
e)See also Minister for Immigration v SZNWC[109] at [45]-[51] and [53]-[57] per Perram J (with whom Moore J agreed), where the Full Court found jurisdictional error where the Tribunal held that there was a law of general application aimed at a legitimate object, but failed to consider where the law was appropriate and adapted. See also Buchanan J on this issue at [34] (although he dissented for reasons not presently relevant).
[108] (2004) 81 ALD 332.
[109] (2010) 190 FCR 23.
In the present case, the Reviewer found that the applicant might be liable to prosecution for breach of Iranian immigration laws, but held that it would amount to the enforcement of a law of general application. It was proper for it to ask itself this question.
However, the applicant complains that what the Reviewer did not do was ask whether there was a legitimate object underpinning the law and whether the law was appropriate and adapted (in the sense of proportional) to achieving that objective.
I prefer the Minister’s submissions on this ground also.
The threshold question is whether a law is of general application. If it is not or if, although general in scope the law is discriminatory on its face, or is implemented or enforced in a discriminatory manner, then it is necessary to ask whether the law has a legitimate object to which it is appropriate and adapted. If the law exhibits no discrimination on its face or in its operation, then further inquiry is unnecessary.
The foregoing is demonstrated by each of the cases cited by the applicant. In Applicant A[110], McHugh J states:
The enforcement of a generally applicable criminal law does not ordinarily constitute persecution … a law providing for the detention of the members of a particular race engaged in civil war may not amount to persecution even though that law affects only members of that race.[111]
[110] (1997) 190 CLR 225.
[111] Applicant's Outline of Submissions, [47(a)].
In Chen Shi Hai, the High Court said:
Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved ...[112]
[112] Ibid, [47(b)].
In Applicant S, Gleeson CJ, Gummow and Kirby JJ said:
A law of general application is capable of being implemented or enforced in a discriminatory manner. The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A.
In VTAO, Merkel J was concerned with China's one child policy, which discriminates on its face against parents who have more than one child. More significantly, in SZNWC, the majority of the Full Federal Court said:
In a case where a person applying for a protection visa claims to be a member of a particular social group which is persecuted by the operation of some criminal law, the approach to be taken by those deciding the visa application is well settled. First, the decision-maker must ask whether the particular social group claimed exists. Second, if the group exists then the decision-maker must ask whether the nominated criminal law discriminates against that group. This is necessary because unless the criminal law discriminates against the group then there can be no question of the group being persecuted by that criminal law. Third, however, discrimination although necessary is not sufficient. If discrimination be shown the decision-maker must then ask whether the criminal law is appropriate and adapted to some legitimate object of the country in question.[113]
(emphasis added)
[113] SZNWC at [40].
In the present case, the Reviewer suggested, and the applicant accepted, that anyone who left Iran illegally on a fraudulent passport would be liable for prosecution for breach of Iranian immigration laws. The applicant argued that he would be treated more harshly because he was an undocumented Faili Kurd. The Reviewer rejected this and found that, in this context, Faili Kurds would not be targeted. In short, the Reviewer considered that he was dealing with a law that neither on its face nor in its operation was discriminatory. On that basis, it was unnecessary to consider whether the law had a legitimate object to which it was appropriate or adapted.
Viewed in this light, the applicant’s real complaint is that the Reviewer should have found that the Iranian law would be applied in a discriminatory manner, which goes to the merits of the report, rather than its lawfulness. I reject Ground 2.
Ground 3 – did the Reviewer fail to consider a claim?
Ground 3 argues that the Reviewer failed to deal with the applicant's claim that, as an undocumented Faili Kurd, he would be treated more harshly under Iranian immigration law. This was said to be distinct from a claim that Faili Kurds generally were treated more harshly under that law.
The Minister submits that the Reviewer did deal with this claim. As indicated above, the Reviewer said at [63]:
The claimant agreed that these laws apply to all Iranians … Although the claimant claims that because he is an undocumented Faili Kurd he would be treated more harshly than others, I have had regard to the advice from the Australian Embassy in Tehran which indicates that it is unaware of Faili Kurds being targeted because of their ethnicity.
According to the Minister, the Reviewer found that, although the applicant is an undocumented Faili Kurd, he would not be treated more harshly than others. In making this finding, it was open to the Reviewer to “have had regard” to country information suggesting that Faili Kurds were not targeted because of their ethnicity. The Minister submits that it is wrong to suggest that, in doing so, the Reviewer overlooked the applicant's particular status as undocumented. The Reviewer referred to the applicant's claim elsewhere in his findings and reasons. In particular, the Reviewer said[114]:
I am satisfied that the claimant is an undocumented, stateless Faili Kurd who was born in Iran and that there is a level of discrimination against such people in Iran. I do not accept that the treatment amounts to persecution for the purposes of the Convention.
[114] CB 102 [48].
The difficulty I have with the Minister’s submissions is that the Reviewer at [63] of his report focused on the applicant’s “ethnicity” rather than upon his membership of the particular social group of undocumented Faili Kurds.
I prefer the applicant’s submissions on this ground. It is well established that a decision maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before him[115]. This includes claims that were expressly raised or squarely raised by the material[116].
[115] see Htun v Minister for Immigration (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389; [2003] HCA 26 at [22]-[24], [27] per Gummow and Callinan JJ, [88]-[89] per Kirby J; [95] per Hayne J).
[116] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [58] -[61] per Black CJ, French and Selway JJ.) See also M61 at [90].
In the present case, the applicant consistently made a clearly articulated claim to the effect that, as an undocumented Faili Kurd, he had a well founded fear that he would be subjected to persecutory conduct beyond the scope of the enforcement of a law of general application (including a claim that he would be made to disappear)[117]. His claim was not simply that he feared prosecution pursuant to Iranian immigration law. The Reviewer, however, did not deal with this claim at all. The Reviewer did consider the claim that “Faili Kurds” would be treated more harshly or were targeted, however, it did not consider the claim put by the applicant that “undocumented Faili Kurds” were at risk of persecution beyond what the Iranian law prescribed, including being made to disappear.
[117] See, for example, CB 48 at [17]; SC B7 at [31], [33]; Falconer at A (Transcript (T) 37.8); Falconer at B (T 66.2, T 71.1).
I accept the applicant’s submission that the Reviewer fell into reviewable legal error in respect of this ground.
Ground 4 – did the Reviewer fail to ask the right question?
The criterion for complementary protection is prescribed by s.36(2)(aa) as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
Broadly speaking, complementary protection depends on substantial grounds for believing there is a real risk of “significant harm”. This is defined by s 36(2A) of the Migration Act as follows:
a)the non‑citizen will be arbitrarily deprived of his or her life;
b)the death penalty will be carried out on the non‑citizen;
c)the non‑citizen will be subjected to torture;
d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
e)the non‑citizen will be subjected to degrading treatment or punishment.
The reasoning of the Reviewer in relation to complementary protection appears at [72]-[75][118], in particular at [75], and the claim for complementary protection was rejected because “such claims are based on the same evidence as his refugee protection claims” and that “on the basis of the evidence provided by the claimant, country information as discussed above and the findings set out above” the complementary protection claim was not made good.
[118] CB 105-106.
The problem with this reasoning is that the Reviewer makes no attempt to distinguish the different tests posed by s.36(2)(a) and s.36(2)(aa). This is particularly problematic in the present case, where the Reviewer has accepted claims of detention and assault, but rejected a number of the claims on the basis of the absence of a Convention nexus or for some other reason peculiar to the Convention.
This is evident at several places in the report. See for example:
a)at [48][119], the Reviewer accepts that there is discrimination against undocumented stateless Faili Kurds, but found that he did not accept that the treatment amounts to persecution for the purposes of the Convention. The question remains, however, whether the treatment is “significant harm” for s.36(2)(aa) purposes;
b)At [52][120], the Reviewer accepts that the applicant was apprehended and beaten, but concludes that this was because he was part of a public gathering and not for a Convention reason. The reason for the harm, however, is irrelevant to the consideration required by s.36(2)(aa);
c)At [52][121], the Reviewer also finds that there was no subjective fear on the part of the applicant. Section 36(2)(aa), however, imposes no “subjective fear” requirement;
d)At [53]-[54][122], the Reviewer accepts that the applicant was assaulted but rejects the Convention claim on the basis that he was assaulted because he shouted at the police (and not for a Convention reason). The reason for the harm, however, is not relevant to the s.36(2)(aa) inquiry;
e)At [55][123], the Reviewer accepts that the applicant was beaten, but rejects the Convention claim on the basis that he was beaten because he was selling goods illegally. Again, the reason for the harm is not relevant to s.36(2)(aa);
f)At [72][124], the Reviewer makes a point of stating that the three recounted incidents of being apprehended and beaten were not “systematic or targeted” at the applicant. This language may be derived from the statutory definition of persecution (ie s.91R(1)(c)).
[119] CB 102.
[120] CB 102.
[121] CB 102.
[122] CB 102.
[123] CB 103.
[124] CB 105.
Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s.36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision.
The Minister contends that the Reviewer properly considered the complementary protection criterion. He contends that the focus must be on the particular part of the Reviewer’s findings and reasons devoted to complementary protection rather than on the factual findings as a whole. The Minister contends that the focus should be on only [72] and [75] of the Reviewer’s report.
At [75], the Reviewer recognised that the applicant had not made claims of fact specific to complementary protection. Rather, the applicant's case for complementary protection was “based on the same evidence as his refugee protection claims”[125]. This made it necessary for the Reviewer to identify from the account those incidents that were conceivably relevant to significant harm.
[125] CB 106 [75].
The Reviewer said at [72][126]:
The three incidents in which the claimant claims to have suffered physical harm in the past are when he was apprehended and beaten by the Basij when he was with his friends on a street corner, when he was stopped at a checkpoint during an outing with his wife and mother and when the Basij arrived while he was operating his street stall at the market.
[126] CB 105 [72].
The Reviewer then evaluated whether these incidents would recur. They were “random incidents conducted for differing reasons and by differing parties”. They did not give rise to “a real risk of happening in the future”. Accordingly, there were no “substantial grounds for believing that there is a real risk that the claimant will suffer significant harm because of his experiences in the past”[127]. The Minister contends that complementary protection was independently and adequately considered.
[127] Ibid.
On balance, I prefer the submissions of the applicant on this ground. It was open to the Reviewer to deal with the complementary protection criterion in a self contained way in part of his report. He chose, at [72] to emphasise what he saw as the “non systematic or targeted” threat to the applicant. This could have been a reference to s.91R(1)(c) of the Migration Act (which the parties agree is not relevant to the complementary protection criterion) or it could have been a general reference intended to quantify the risk. The use of the word “systematic” is problematic. Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the Reviewer at [75] on unspecified “findings set out above” is particularly problematic. On its face, it appears to be a reference to all of the Reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of Refugees Convention nexus with harm suffered by the applicant).
In my view, the combined effect of these difficulties with this aspect of the report is to establish reviewable legal error as alleged by the applicant.
Conclusion
I have found that the Reviewer fell into error by failing to deal with the applicant’s particular social group claim as an undocumented Faili Kurd and in dealing with the complementary protection criterion. It follows that the applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 May 2013
55
18
2