SZSKC v MIBP
[2014] FCCA 938
•16 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSKC v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 938 |
| Catchwords: MIGRATION – Review of report and recommendation of an Independent Protection Assessment Reviewer – applicant claimed persecution in Iran as a Faili Kurd – whether the Reviewer erred by misapplying the complementary protection criterion – Error of law in misapplication of test to be applied – Declaration made. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 36(2)(a), 36(2)(aa), 91X, 91L, 195A |
| Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 SZRCI v Minister for Immigration and Citizenship (2012) 214 FCR 584 SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 |
| Applicant: | SZSKC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | TAMARA HAMILTON-NOY IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2982 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 31 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr C. Peadon |
| Solicitor for the Applicant: | Mr H. Collings-Begg of Allens Linklaters |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitor for the First Respondent: | Ms H. Dejean of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
THE COURT DECLARES THAT:
The Recommendation of the Independent Protection Assessment Reviewer made in respect of the applicant on 18 June 2012 was not made in accordance with law.
THE COURT ORDERS THAT:
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The First Respondent, by himself or by his departmental officers, delegates or agents, be restrained from relying upon the Recommendation of the Independent Protection Assessment Reviewer made in respect of the Applicant on 18 June 2012.
The First Respondent pay the Applicant’s costs of and incidental to the application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSKC.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2982 of 2012
| SZSKC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Independent Merits Reviewer (the “IMR”), being DIAC reference, CLF2011/26476, a decision of T. Hamilton-Noy dated 18 June 2012, finding that the applicant did not meet the criteria for a Protection (Class XA) visa set out in s.36(2) of the Migration Act.
The solicitors for the first respondent, the Minister of Immigration and Border Protection (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
The applicant was granted leave to file and serve an amended application and any evidence they wished to rely upon on or before 26 March 2013. The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen (14) days before the date of the hearing. The applicant’s representatives elected to not file an amended application; however, they did file and serve written submissions on 17 May 2013.
The application seeks injunctive relief (that is, that the Minister not rely, or act, on the recommendation from the Reviewer or the assessment by its departmental officers), and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319.
At the hearing on 31 May 2013 the applicant read the following evidence:
a)Affidavit of Hamish Andrew Collings-Begg affirmed 14 December 2012, attaching a copy of the IMR decision (the “First Collings-Begg Affidavit”);
b)Affidavit of David Alexander Rountree affirmed 23 April 2013 (the “Rountree Affidavit”); which contained three Annexures, being:
i)Annexure “A” – Independent Merits Review Guidelines, dated 1 July 2011;
ii)Annexure “B” – copy of the “Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”; and
iii)Annexure “C” – copy of the “International Covenant on Civil and Political Rights”;
c)Affidavit of Hamish Andrew Collings-Begg affirmed 22 May 2013 Tabs (the “Second Collings-Begg Affidavit”), which contains the following:
i)Tab 2 – “United Kingdom Home Office, Operational Guidance Note: Iran, 15 March 2011, v6”;
ii)Tab 4 – “Department of Foreign Affairs and Trade (DFAT), CIS Request No. IRN9025: Iran: Return of Failed Asylum Seekers, 14 June 2007”; and
iii)Tab 5 – “Danish Immigration Service, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30 April 2009”.
Mr Knowles, appearing for the Minister, objected to the Second Collings-Begg Affidavit on the ground of relevance. I will expand on his argument later in these reasons.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant arrived in Australia on or about 4 January 2011 (CB 207). The applicant claimed that he was a stateless Faili Kurd formerly resident in Iran. He claimed to fear harm on account of his Faili Kurd ethnicity and his status as a stateless person (CB 37-47; 80-86).
On 4 April 2011 an officer of the Minister concluded a Refugee Status Assessment (“RSA”) in respect of the applicant’s claims (CB 89-96). The RSA found that the applicant was not a refugee within the meaning of the Refugee Convention: Convention Relating to the Status of Refugees adopted at Geneva on 28 July 1951, as amended by the 1967 Protocol Relating to the Status of Refugees.
The Reviewer reached the same conclusions as the RSA in respect of the applicant’s claim to be a refugee (CB 206-233). The Reviewer was not prepared to accept that the applicant was a Faili Kurd or that he was stateless (CB 229 at [109]). The Reviewer also rejected the applicant’s claim to fear harm as a member of a social group consisting of failed asylum seekers (CB 231 at [122]).
The Reviewer went on to consider whether the applicant satisfied the “complementary protection” criterion for a Protection visa established by s.36(2)(aa) of the Migration Act introduced in March 2012. The applicant claimed that he faced a real risk of significant harm on account of the prison conditions that he would face upon return to Iran. The Reviewer found that it was unlikely that the applicant would be imprisoned if returned to Iran and, as a result, did not meet the criterion s.36(2)(aa) of the Migration Act (CB 232-233 at [130]-[131])
At CB 232-233 at [130]-[131] the Reviewer stated:
130. In order to fall within this criterion, the claimant would need to establish there are substantial grounds for believing there is a real risk he will suffer significant harm. “Significant harm” is defined in section 36(2A) of the Act. The claimant’s representative submits that the claimant will face torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if returned to Iran, on the basis that he will be subject to poor prison conditions. The representatives submitted that the “harsh and arbitrary nature of detention in Iran will often result in torture at the highest end of the spectrum and, at the very least, to cruel and inhuman treatment and degrading treatment as detainees are systematically deprived of their dignity”. The UK Home Office report cited by the representative outlines the use of solitary confinement, denial of adequate food and medical care, overcrowding, exposure to extreme cold, long terms of pre-trial detention, lack of due process and access to legal representation, and the use of unofficial detention centres where allegations of torture are common. The report also notes that deaths in custody are a “very serious cause for concern” in Iran.
131. Section 36(2)(aa) of the Act requires me to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed, there is a real risk that the claimant will face torture, cruel or inhuman treatment or punishment and/or degrading treatment or punishment. I have noted above the UK Home Office’s Country of Origin Information Report for 2010 notes that the available penalties for illegal departures are between one and three years imprisonment or a fine of 100,000 to 500,000 rials. I have also noted above DFAT information which indicated that there is no evidence of widespread patterns of mistreatment of failed asylum seekers and that it is unlikely authorities would prosecute simply for seeking asylum overseas, and the Danish Immigration Service report states that a person may be fined upon return for illegal departure and, if they have committed a crime previously, they will be prosecuted for the previous crime but not for the illegal departure. I consider that these sources establish that the claimant is unlikely to be imprisoned for illegal departure from Iran, given he states he is not facing other issues with the authorities upon return… I have therefore concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed, there is a real risk he will face significant harm.
(CB 232-233)
By a way of summary the Reviewer:
a)Referred to material from authoritative sources that suggested that persons imprisoned in Iran may face “significant harm”;
b)Considered that it is “unlikely” that the applicant would be imprisoned upon his return; and
c)Concluded that, because it is “unlikely” that the applicant will be imprisoned, as there were not substantial grounds for believing that the applicant would suffer significant harm as a direct and foreseeable consequence of being returned to Iran.
Application before the Court
The final orders sought by the applicant in the Application filed 14 December 2012 are:
A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
An order that the first respondent pay the applicant’s costs.
Such further orders as the Court sees fit.
The single ground of that Application is as follows:
1. The second respondent erred in law by misapplying the test of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm
Particulars
(a) The applicant submitted that, as a necessary and foreseeable consequence of him being removed from Australia to Iran, there was a real risk that:
i. he would be imprisoned in Iran if he is returned to that country; and
ii. that imprisonment would constitute “significant harm”.
(b) The second respondent:
i. found that the applicant is “unlikely” to be imprisoned if he were returned to Iran; and
ii. did not make a finding as to whether such imprisonments would constitute significant harm.
(c) The second respondent concluded that, because the applicant was unlikely to be imprisoned, “there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed, there is a real risk he will face significant harm”: second respondent’s Statement of Reasons, paragraph 131.
(d) The phrase “real risk that the applicant will suffer significant harm” is capable of being satisfied even if it is “unlikely” that an applicant will suffer significant harm.
(e) In determining that there was no “real risk” of significant harm because such harm was “unlikely”, the second respondent therefore made an error of law.
Test for Complementary Protection
The criterion for a Protection visa under s.36(2)(aa) of the Migration Act is that the applicant for a visa is:
Protection visas
(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
The elements that must be satisfied are that:
a)The applicant must be a non-citizen, other than a refugee;
b)There are substantial grounds for believing;
i)as a necessary and foreseeable consequence of being removed from Australia to the receiving country (in this case, Iran); and
ii)there is a real risk that the non-citizen will suffer significant harm.
Whether or not there is a “real risk that the non-citizen will suffer significant harm” for the purposes of s.36(2)(aa) is to be determined by reference to the same risk threshold as applicable to s.36(2)(a), for example, there is a real chance that the applicant will suffer the requisite type of harm: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [239]-[246] per Lander and Gordon JJ.
Two propositions flow from the decision in SZQRB (supra), being:
a)It is erroneous to approach s.36(2)(aa) on the basis that the threshold of a “real risk” must be satisfied on the balance of probabilities (i.e. more likely than not): SZQRB at [247]; and
b)Authorities such as Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considering the threshold of risk applicable to s.36(2)(a) are also relevant to considering whether there is a “real risk” of significant harm: SZQRB (supra) at [242].
Applicant’s Submissions
The applicant submits that the conclusions in the country information on which the Reviewer based the finding that the applicant was “unlikely” to suffer significant harm left open the real prospect that a failed asylum seeker might be imprisoned and therefore suffer significant harm.
The applicant contends that the Reviewer acknowledged the prospect that a failed asylum seeker might be imprisoned and therefore suffer significant harm in the language used to express the findings (contrast with a finding that it is “highly unlikely” or “extremely unlikely” that a person will suffer harm: see SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [31]). This acknowledgment was consistent with the country information before the Reviewer. In relation to the complementary protection criterion, the applicant submits that that test requires that a possibility must be taken into account if it is more than ‘insignificant’ and the decision maker has a “real doubt” about the finding: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576; see also SZRCI v Minister for Immigration and Citizenship (2012) 214 FCR 584 at [39]. That prospect was not “insignificant”.
The applicant submits that the Reviewer’s reasons disclose, however, that the Reviewer did not take that risk into account in applying the “real chance” test.
The applicant submits that it follows that the Review failed to apply the proper test in considering the complementary protection criterion. That error of law is a jurisdictional error.
Minister’s Submissions
The Minister submits, in relation to the test for complementary protection, that while the threshold of a “real risk” for the purposes of s.36(2)(aa) may be equivalent to the “real chance” threshold applicable to refugee claims it does not follow that the test in s.36(2)(a) and s.36(2)(aa) are identical. The clear language of s.36(2)(aa) suggests that satisfaction of the criterion requires not only the existence of a “real risk” of significant harm (i.e. a real chance), but also the existence of two other qualifying factors, namely:
a)The Minister must have substantial grounds for believing that the real risk exists; and
b)The real risk must be a necessary and foreseeable consequence of the removal of the non-citizen to the receiving country: see Minister for Immigration and Citizenship v Anochie (2012) 209 FCR 497 at [62] and [66] per Perram J.
The Minister contends that this understanding of s.36(2)(aa) reflects both the statutory language of the subsection and the fact that the purpose of the subsection is to implement Australia’s international obligations in respect of non-refoulement: see Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011. These obligations are not identical to the obligations owed by Australia to respect of refugees: Anochie (supra) at [79]-[80] per Perram J.
The Minister submits that the key findings of the Reviewer are found are [130]-[131] (CB 232-233) of the Decision Record.
The Minister submits that the substance of the submission put by the applicant’s adviser in respect of complementary protection was that imprisonment upon return to Iran would involve the applicant being exposed a “real risk” of significant harm (CB 195-197). Imprisonment of itself does not amount to serious harm: s.36(2A) of the Migration Act. The submission of the applicant must be understood therefore as a risk of significant harm arising where the applicant would be exposed to mistreatment whilst incarcerated.
The Reviewer did not deny the potential for mistreatment in Iranian prisons. Indeed, she cited the UK Home Office Report (noted at [5](c)(i) above) to this effect. However, the Reviewer went on to cite independent country information that suggested that people were generally not imprisoned in Iran for leaving the country illegally (CB 232 at [131]).
The Minister submits that the Reviewer thus concluded that the event identified as exposing the applicant to the risk of significant harm (i.e. imprisonment) was “unlikely” to befall the applicant. This reasoning should be understood not as finding that the risk of significant harm associated with imprisonment was not a “real risk”, but as a finding that imprisonment was not a “necessary and foreseeable consequence” of the applicant’s removal to Iran. Alternatively, the Reviewer’s reasons can be characterised as a finding that there were not “substantial grounds for believing” that the risk of harm was a “necessary and foreseeable consequence”.
On either approach suggested in the previous paragraph, the Reviewer’s findings were consistent with s.36(2)(aa). These approached are also consistent with the principle that the Court should not construe the reasons of a decision-maker with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Minister submits that in any event, contrary to the submission of the applicant, the Reviewer’s use of the word “unlikely” does not, without more, suggest that the Reviewer failed to apply the real chance test. As a matter of ordinary language, the use of the term unlikely does not mean that the Reviewer applied a balance of probabilities test. Further, the Reviewer did not use language or make any findings which might suggest that such a test had been applied: Minister for Immigration & Ethnic Affairs v Guo (supra) at 573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Significantly, the Reviewer did not adopt the language used in the submissions made by the applicant’s advisors which suggested a balance of probabilities test applied. As a result, in describing the risk as “unlikely” the Reviewer should be understood as describing the probability of the risk occurring as low. This approach is consistent with the “real chance” test.
Consideration
At the hearing held on 31 May 2013 Mr Knowles, appearing for the Minister, objected to the Second Collings-Begg Affidavit on the ground of relevance. He argued that the affidavit and its lengthy annexures of country information were not relevant as the ground of review is not of no evidence or of a breach of procedural fairness. Mr Knowles argued if the applicant’s representatives were trying to establish the existence of a real risk, then that would simply amount to nothing more than merits review.
Mr Peadon, appearing for the applicant, argued that it was not the applicant’s intention to adduce evidence. Mr Peadon submits that the reasons stated by the Reviewer are informed by country information with some of the language used by the Reviewer, in particular [130]-[131] of the Decision Record (reproduced at [11] above). Mr Peadon submits that the affidavit was filed to benefit the Court to understand the context in which the Reviewer has made certain statements.
I informed the parties that I noted the objection in respect of the large volume of country information. However, as Mr Peadon informed the Court he was only relying on the document at Tab 4 which consisted of two pages and appears to have been considered by the Assessor, I indicated that I would permit the affidavit to be read.
Mr Peadon, in his oral submissions, set out the background of the matter, turning to the jurisdiction and the single ground of appeal. The single issue in this proceeding is whether the Reviewer’s recommendation is affected by jurisdictional error, including error of law, and, in this case, whether there has been a misapplication of the complimentary protection test.
The applicant is an offshore entry person, and an unlawful non-citizen and arrived in Australia on 4 January 2011, being a date prior to 24 March 2012 when access to the RRT rules changed as a consequence of the High Court’s decision in Plaintiff M61/2010E v Commonwealth of Australia (supra).
Mr Peadon referred to the complementary protection provisions (set out at [16] above) that state the elements of the test. The first element that the applicant is a non-citizen, other than a refugee. The second being that there are substantial grounds for believing that as a consequence of the applicant being removed from Australia to the receiving country, Iran that there is a real risk that the non-citizen will suffer significant harm.
Mr Knowles argues that this case could be quite simply dealt with by the application of the principles in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (supra), in that one should not review a decision-maker’s reasons with an overzealous eye attuned for the detection of error. In this matter the applicant has seized upon the word “unlikely” and from there comes conclusion that the test was applied. In Wu Shan Liang (supra) per Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ, the Court made it clear that the decision-makers reasons are to be construed beneficially and not with an eye keenly attuned to the perception of error. It is important to have regard to the whole of the relevant reasoning processes as the selection of one or a few infelicitous expressions to demonstrate legal error would be unfair to the decision-maker and fall into the error that the High Court was referring to.
In SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 per Stone J at [26] her Honour stated:
26. The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;(1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error…
The use of the term “unlikely” may be infelicitous language when the test to be satisfied need more precise selection of wording and this is addressed in more detailed in the primary submissions advanced on behalf of the applicant, which are considered below.
Mr Peadon referred the Court to the Court Book, with the Decision Record beginning at CB 206. Mr Peadon submits that what is notable is that there is no discussion about the nature of the test itself, in terms of what does a real chance or a real risk involve. Mr Peadon contends that there is no discussion of whether the Reviewer is to apply the test in Chan Yee Kim v Minister for Immigration and Ethnic Affairs (supra).
Mr Peadon took the Court to Annexure “A” to the Rountree Affidavit, which attaches an email from Brooke Griffin of Australian Government Solicitor to Mr Rountree of Allens, containing a document titled “Guidelines for Independent Merits Reviewers” (“Guidelines”). Mr Peadon contends that these are the Guidelines that the Minister submits were applicable at the time of the Reviewer’s decision.
Mr Peadon referred to section 1.2 of the Guidelines where the second paragraph commences with:
Australia also has non-refoulement (non-return) obligations…
Mr Peadon submits that this, in fact, reflects the prior position which is that the complementary protection provisions were dealt with under a separate process. Mr Peadon indicated that the guidelines do not set out for the Reviewer the particular test that should apply in dealing with the complimentary protection provisions. Mr Peadon pointed out that the Decision Record itself does not indicate that the Reviewer has been given any guidance in relation to the real chance test.
Mr Peadon referred to [31]-[32] (CB 211) of the Decision Record which sets out the claims the applicant has made:
31. The representative’s submissions with respect to Convention grounds were as follows:
Notwithstanding the issue of nationality discussed above, we submit that he nonetheless has, and would suffer persecution in Iran for the following reasons:
His ethnicity – Faili Kurd
His imputed nationality – imputed to be Iraqi or non-Iranian
His membership of the particular social groups:
·Faili Kurdish refugees of Iraqi origin;
·Returned failed asylum seekers from the West
His imputed political opinion – returned failed asylum seekers from the West
32. The representative noted that the claimant had given evidence at the first IMR hearing regarding his religious beliefs (or lack thereof) and noted the following:
His religion – opposition to Shi’a practice;
His political opinion – opposition to Islamic law in Iran;
His imputed political opinion – opposition to Islamic law in Iran
(CB 211)
Mr Peadon submits that these claims themselves were rejected and this is not in dispute, however, it is mentioned to ascertain a better understanding the applicant and his circumstances, which is relevant when considering the nature of what might happen if he is returned to Iran.
Mr Peadon referred to [35] of the Decision Record, where the Reviewer stated:
35. The claimant’s departure on a false passport would bring to the attention of the Iranian authorities upon his return. There is a real chance he will be interrogated and detained indefinitely. There is “significant harm” demonstrating that Iranian returnees are treated harshly on return to Iran. There is evidence that the Iranian authorities monitor boat arrivals in Australia and that the Christmas Island boat crash from December 2010 was brought to the attention of the authorities.
(CB 212)
Mr Peadon referred to [41] (CB 213) of the Decision Record, where the Reviewer noted that after the IMR hearing the applicant and his representatives were invited to make comment on further matters. Specifically within that request, Mr Peadon identified the following passage:
41. …
In respect of the claimant’s claims to fear serious harm as a returned asylum seeker, the reviewer has had regard to the following sources:
- Department of Foreign Affairs and Trade report dated 14 June 2007 which states that “if the regime is aware that an individual that has a claimed political asylum overseas has returned to Iran, is it possible it will seek to at least monitor that individual. We are not/not aware of a widespread pattern of maltreatment by authorities of returning failed asylum seekers. However, it is possible in isolated cases. If the regime was aware of a failed asylum bid, it could use this information to pressure individual with regard to other issues….However, the regime would be unlikely to allow public information about such activity to be disseminated. It is possible such activity occurs without our knowledge. The regime frequently labels those who disagree with it ‘political dissidents’. If such ‘dissidents’ form part of an identifiable group that the regime views as a threat, it is likely to act with some force against them”.
(CB 213)
Mr Peadon referred to [48] and [53] of the Decision Record (CB 216-217), which deals the submission made on behalf of the applicant. The Reviewer stated:
48. The representative submitted (in relation to the complementary protection legislation) that the claimant would face torture, cruel and inhuman treatment or punishment and degrading treatment or punishment if returned to Iran. The representative made submissions regarding the prison conditions in Iran, and submitted that he would be detained on arrival and “it is likely his detention will be prolonged and result in his mistreatment”. If not detained and deported to Iraq, he would be subject to degrading treatment – “systematic discrimination and denial of basic public services affecting his ability to subsist with dignity”.
…
53. The claimant stated he was born in Azna Camp, Lorestan Province in Iran. He was born on 31 January 1986 and is 25 years of age…
Mr Peadon referred to [63]-[64] (CB 219) of the Decision Record and explained that this is relevant as it explains how the applicant got out of Iran and what would happen in the context in which he would be returned. The Reviewer stated:
63. His brother in 2009 went to Iraq to obtain a birth certificate for him. He went illegally with the help of a smuggler and paid money to obtain the birth certificate. The certificate obtained for the claimant has his name and his father’s name and surname…
64. … His brother obtained a birth certificate and passport for himself and travelled with these back to Iran, across the border illegally. The claimant took his birth certificate to Iraq to obtain a passport in late 2010, in order to be able to obtain a passport to travel to Australia. He paid a smuggler $50 to travel to Iraq by land, through Esfehan to Kurdistan province, Mariban and crossed the border by foot. In Iraq he stayed in Bashmaq in a garage, and was given a piece of paper and told that he could travel with his paper in Iraq…
The Reviewer’s “Findings and Reasons” commence at [107] (CB 228) of the Decision Record. Mr Peadon referred to [111] and [113] (CB 229) of the Decision Record where the Reviewer stated:
111. The claimant has consistently claimed that the Iraqi birth certificate and Iraqi passport he used to travel out of Iran (via Iraq) are illegal, in that they contain incorrect details as to his identity. The claimant was asked in detail about the obtaining of the birth certificate and his own travels to Iraq to obtain the passport. He gave his answers in a credible manner and I accept this aspect of his claims. I accept that the birth certificate and passport do not confer Iraqi nationality upon the claimant.
…
113. … I accept he was formerly resident in Iran and find that he is to be assessed against his country of former habitual residence, being Iran.
(CB 229)
Mr Peadon referred to [121] (CB 230) of the Decision Record where the Reviewer stated:
121. I have further considered whether the claimant faces a real chance of serious harm as a returned failed asylum seeker from a Western country. The DFAT information I have considered indicates that there is no evidence of widespread patterns of mistreatment of failed asylum seekers and that it is unlikely authorities would prosecute simply for seeking asylum overseas…
(CB 230)
Mr Peadon referred to [122] of the Decision Record (CB 231) which contained reference to the UK Home Office’s Country or Origin Information Report for 2010 and notes that:
122. …an Iranian who has left the country illegally will be sentenced to between one and three years imprisonment or will receive a fine of 100,000 to 500,000 rials
...
As noted above, there appears to be increased risk if a person has previously come to the attention of the authorities, for example, for reasons of previous political activities…
(CB 231)
Mr Peadon referred to [130]-[131] of the Decision Record (reproduced at [11] above) which he described as the “key paragraphs” as foreshadowed in his submissions. Mr Peadon argued that for the applicant to fall within the criterion, it needed to be established that there were substantial grounds for believing that there was a real risk. Mr Peadon submits that the applicant’s representative at the Tribunal hearing argued that the applicant would face torture or degrading punishment if returned to Iran on the basis that he would be subject to poor prison conditions. The representative submitted that the harsh and arbitrary nature of detention in Iran often results in torture at the highest end of the spectrum.
The UK Home Office report cited by the applicant’s representative outlines the use of solitary confinement, denial of adequate food and medical care, overcrowding and exposure to extreme cold. The report also outlines that deaths in custody are a serious concern. Mr Peadon submits that if the applicant were to be detained for any period of time under the law of Iran that he would suffer significant harm, with the issue being whether there is a real risk of imprisonment and therefore a real risk of significant harm arising. The Reviewer stated at [131] of the Decision Record:
131. … I have noted above the UK Home Office’s Country of Origin Information Report for 2010 notes that the available penalties for illegal departure are between one and three years imprisonment or a fine of 100,000 to 500,000 rials. I have also noted above DFAT information which indicates that there is no evidence of widespread patterns of mistreatment of failed asylum seekers and that it is unlikely authorities would prosecute simply for seeking asylum overseas, and the Danish Immigration Service report states that a person may be fined upon return for illegal departure and, if they have committed a crime previously, they will be prosecuted for the previous crime but not for the illegal departure. I consider that these sources establish that the claimant is unlikely to be imprisoned for illegal departure from Iran, given he states he is not facing other issues with the authorities upon return… I have therefore concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed, there is a real risk he will face significant harm.
(emphasised by Mr Peadon) (CB 232-233)
Mr Peadon referred to a series of paragraphs of the Minister’s submissions. The first submission addressed is reproduced at [26] above where he highlights the term “generally not imprisoned”. He argued that it certainly leaves open the possibility that the applicant will be imprisoned. Mr Peadon submits that it is in this sense that the Minister’s submission on the term “unlikely” should be construed. “Unlikely” is used in the same sense as “generally not”, but that does not mean always, and it does not mean that there is an insignificant or negligible risk of it occurring. Mr Peadon illustrated another example in the Minister’s submission (reproduced at [28] above). Mr Peadon argues that again, “unlikely” is used and the Minister has construed it as “generally”, as it is a general proposition, so that “most, but not all” would be the way that the average person would understand it. The final example that Mr Peadon took the Court to was in the Minister’s submissions (reproduced at [30] above) where it was argued “[a]s a result, in describing the risk as “unlikely” the Reviewer should be understood as describing the probability of the risk occurring as low”. Mr Peadon argues that low does not necessarily mean negligible.
Mr Peadon referred to where the Reviewer made reference to risk with reference to the DFAT report in the Decision Record. These are found at [106], [121] and [131]. The Second Collings-Begg Affidavit contains at Tab 4 a DFAT Country Information Report No 07/51, titled “Iran: Return of failed asylum seekers” and states therein:
Q1. Are returned Iranian asylum seekers subjected to persecution and/or imprisonment/ torture?
R1. If the regime is aware that an individual that has claimed political asylum overseas has returned to Iran, it is possible it will seek to at least monitor that individual. We are not/not aware of a widespread pattern of maltreatment. However, it is possible in isolated cases. If the regime was aware of a failed asylum bid, it could use this information to pressure individuals with regard to those other issues.
The DFAT Report also raises the following issue:
Q3. A group called the British Ahwazi Fellowship Society (BAFS) claim to have received reports of returned asylum seekers being detained and tortured on their return to Iran. The group claims these people are often labelled “political dissidents”. Could you please comment on these claims?
R3. We are not/not aware of any specific cases of returned asylum seekers being detained or tortured on their return to Iran. However, the regime would be unlikely to allow public information about such activities to be disseminated. It is possible such activity occurs without our knowledge. The regime frequently labels those who disagree with it “political dissidents”. If such “dissidents” form part of an identifiable group that the regime views as a threat, it is likely to act with some force against them. We note that the claims come from the British Ahwazi Fellowship Society. The Iranian regime is likely to act aggressively against agitators from unstable border areas including Ahwaz. However, while the possibility cannot be discounted we are not aware of any specific information to suggest that the act of applying for asylum per se would trigger maltreatment. If the authorities were aware that someone they were targeting for other reasons had applied for asylum overseas, they are likely to use this against them.
Mr Peadon suggests that the language that is used in the Assessor’s reasons at [131] (CB 232-233) is fairly characteristic of the language used in this DFAT Report.
Mr Peadon indicated that his submissions relied upon the following authorities. In Minister for Immigration and Citizenship v SZQRB (supra), the headnote states that on 21 September 2012, the Minister made a decision (the Minister’s Decision) relating to the exercise of his non-compellable powers under the Migration Act (ss.91L and 195A) in respect of the respondent. The Minister had formed the view that the return of the respondent to Afghanistan was consistent with Australia’s obligations on the basis of the recommendation of the IMR, the International Treaties Obligations Assessment (“ITOA”) and the pre-removal clearance. The decision of Lander and Gordon JJ (Besanko, Flick and Jagot JJ agreeing) in determining whether or not the ITOA was affected by jurisdictional error found the proper test to be, in respect of whether a non-citizen is entitled to Australia’s protection obligations or whether or not there is a real chance the respondent would suffer significant harm as defined in s.36(2A) of the Migration Act were he to be returned to Afghanistan, applying Chan.
At [239]-[240] in SZQRB (supra), Lander and Gordon JJ stated:
239. Section 36(2A), which addresses “significant harm”, and is the touchstone of s 36(2)(aa), includes as significant harm that the non-citizen will be arbitrarily deprived of his or her life or be subjected to the death penalty, or torture or cruel or inhuman treatment or punishment.
240. It was not suggested that the ITOA was not properly focused upon the issue that needed to be resolved. In addressing that issue, the ITOA stated:
… [T]here is a real risk that they will be arbitrarily deprived of life, will have the death penalty carried out on him or her or be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Departmental policy is that this should be interpreted as meaning that the necessary chance of the harm occurring is balance of probabilities, but that this should not be construed too narrowly in cases which are very close to that threshold. That is, the possibility must be more likely than not, which is a higher threshold than the real chance test used in the Refugees Convention under Australian law.
Mr Peadon submits that in the matter before this Court the Reviewer has not set out her understanding of what this test was and this should have been contained in the IMR Guidelines, but the Reviewer was silent on this issue. What this case suggests is, at the relevant time, the Departmental policy was a balance of probability test.
In SZQRB (supra) at [242] their Honours Lander and Gordon JJ stated:
242. The proper test, SZQRB contended, is whether there is a real risk that if SZQRB were to be returned to Afghanistan he would be arbitrarily deprived of his life. The question of “real chance” is, of course, the test to be applied on an application for a protection visa under s 36(2)(a) when considering whether the applicant has a well-founded fear that the applicant will face persecution for a convention reason if returned to the applicant’s country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ; 87 ALR 412 per McHugh J at CLR 429; ALR 448–9 and Mason CJ at CLR 389; ALR 418, Dawson J at CLR 398; ALR 424–5, and Toohey J at CLR 407; ALR 431–2.
In SZQRB (supra) their Honours continued at [246]:
246. In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB — is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.
There is a difference between what the departmental policy was at the time and what the Court has held ultimately was the proper test to be applied. Besanko and Jagot JJ agreed with this at [297] and Flick J agreed at [342].
In Chan (supra) per McHugh J, his Honour stated at 429:
429. The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of a convention protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for a refugee status may have a well-founded fear of persecution even though there is only a 10% chance he will be shot, tortured or otherwise persecuted. Obviously, a far reaching possibility of persecution must be excluded. But if there is a real chance the applicant will be persecuted, his or her fear should be characterised as well-founded for the purposes of the convention and protocol.
In Minister for Immigration and Ethnic Affairs v Guo (supra) at 572 their Honours Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated:
Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%. …
A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate.
Mr Peadon submits that in the matter before this Court the question is whether the Reviewer concluded that the imprisonment was a real possibility and the authorities referred to above suggest that issue was left open. In Guo (supra) at 573, it is made quite clear one can infer from the words used by the second respondent that a balance of probabilities test has been employed without the words balance of probabilities being used.
Mr Peadon indicated that a convenient summary of these principles is found in the decision of Flick J in SZRCI v Minister for Immigration and Citizenship (supra). At [39] his Honour stated:
39. … A claimant need not therefore positively prove that he will be persecuted or even that such an event is probable: SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 at [25], 114 ALD 634 at 641 per Barker J. A remote chance is not a “real chance”: SZQGN v Minister for Immigration and Citizenship [2012] FCA 436 at [4], 127 ALD 299 at 300 per Katzmann J.
Mr Peadon argues that the matter before this Court turns on the application of that test and what the Reviewer did. In this case the Reviewer has accepted that the applicant illegally departed Iran. There is no passport with an exit stamp. It is implicit in the reasons that if the applicant is returned to Iran, Iran’s law has in place punishment for illegal departure which can be a period of one to three years of imprisonment or a fine. There does not seem to be any dispute that imprisonment for the duration would be significant harm.
I now turn to the argument advanced on behalf of the Minister and to the primary submission that the Reviewer made no error because it is not only necessary to consider whether or not there was a real chance of serious harm, but s.36(2)(aa) also requires consideration of other qualifying factors. There needs to be a substantial ground for the Minister to believe in the existence of the real risk and that necessary and foreseeable consequence that the risk will arise as a result of the return of the applicant to Iran. In support of this contention Mr Knowles relies on the authority of SZQRB (supra) which is binding on this Court insofar that it provides that the real risk, for the purposes of complementary protection, is an equivalent threshold to the real chance test.
Both parties brought to the Court’s attention that at the time this matter was being heard, the decision in SZQRB (supra) was subject to a special leave application in the High Court in Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323 which was subsequently heard with leave refused on 13 December 2013. Her Honour Crennan J in refusing special leave made the following observation:
The applicant, the Minister for Immigration and Citizenship, seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia, which granted declaratory and injunctive relief in respect of a decision made by the Minister to remove the respondent from Australia in the exercise of his powers under the Migration Act 1958 (Cth).
Whilst the application concerns a statutory criterion not yet considered by this Court, there are insufficient prospects of success to warrant a grant of special leave…
Mr Knowles acknowledges that, although the real risk for the purposes of complementary protection is an equivalent threshold to the real chance, it does not mean that s.36(2)(a) and s.36(2)(aa) have equivalent thresholds because s.36(2)(aa) clearly has an additional requirement in that it has a necessary and foreseeable consequence requirement. Mr Knowles maintains that imprisonment itself, within the meaning of the relevant conventions is not defined as serious harm under s.36, however, serious harm in the matter before this Court could potentially come about because of the particular prison conditions prevailing in Iran. Consequently, the applicant needs to demonstrate that it is a necessary and foreseeable consequence that as a result of his return to Iran he would be imprisoned and, as a result of the imprisonment, there is a real risk or chance he would suffer significant harm. This requires a two-stage approach to the inquiry, contrary to the approach relied on by the applicant that has consolidated the approach into a single issue or single piece of analysis, in that all that is required is that there is a real risk of imprisonment which is not correct in terms of the language of the section of the Migration Act or with the authorities.
The primary decision which investigates the other qualifying factors in s.36(2)(aa) is the decision of Anochie (supra) per Perram J. That decision was not an application in respect of s.36(2)(aa). Rather, it was an appeal from the AAT on an issue of character under s.501 of the Migration Act. However, it did consider the same non-refoulement test applicable under the International Covenant of Civil and Political Rights (“ICCPR”) which is the basis of s.36(2)(aa).
In Anochie (supra) at [60]-[62] Perram J stated:
60. The minister submitted that General Comment 31 was a correct statement of what was required, but that the “real risk” element had been given further content by the committee, which had treated it as synonymous with a “necessary and foreseeable consequence” test.
61. This was said to be supported by what had been said by the committee in ARJ. That case had concerned the proposed deportation by Australia to Iran of an Iranian who had been convicted of importing 2 kg of cannabis resin into Australia: at [2.1]. It was suggested that, on his return, he might be subjected to an unfair trial, imprisonment and thereafter torture. There were two passages in the committee’s reasons which were said by the minister to be relevant:
6.8 What is in issue in this case is whether by deporting Mr J to Iran, Australia exposes him to a real risk (that is a necessary and foreseeable consequence) of a violation of his rights under the Covenant.
…
6.14 In assessing whether, in the instant case, the author is exposed to a real risk of a violation of article 7, considerations similar to those detailed in paragraph 6.12 above apply. The Committee does not take lightly the possibility that if retried and resentenced in Iran, the author might be exposed to a sentence of between 20 and 74 lashes. But the real risk of such treatment must be real, ie be the necessary and foreseeable consequence of deportation to Iran. [Emphasis in original.]
62. One should observe the high standard set by this test. A foreseeable consequence is one thing, but a “necessary and foreseeable consequence” is another altogether. It is foreseeable that I may get wet on the way home today, but on no view is it both necessary and foreseeable that this should occur — the clouds may clear.
However, in Anochie (supra) at [66] Perram J made an important qualification to this, where, after quoting various decisions of the International Human Rights Body, stated:
66. … Nevertheless, I do not think it lessens what is otherwise an explicit statement by the committee that what must be a necessary and foreseeable consequence of deportation is the risk of harm and not the harm itself.
In this passage, his Honour makes clear that there is a distinction between the necessary and foreseeable consequence element of the test and the risk of harm.
In the matter before this Court upon imprisonment one might accept that there is a risk of significant harm befalling the applicant, but the requirements of s.36(2)(aa) are not satisfied until one establishes that a necessary and foreseeable consequence of return to Iran is exposure to that risk and the exposure to that risk, in this case, is imprisonment. It is that question that the Reviewer addresses at [131] of her reasons. Having cited at [130] the particular provisions and danger of prison conditions without making a finding, at [131] the Reviewer concentrates not on the nature of the imprisonment or on the prison conditions, but on the likelihood the applicant will be imprisoned. This is supported by the citation of the UK Home Office Report where the Reviewer notes there are available penalties, but this does not mean they will be imposed, rather, that they are available.
The Reviewer then goes on to cite DFAT Information which states there is no widespread pattern of mistreatment. Mr Peadon, in his submissions, dealt with the DFAT Report in more detail at [54]-[57] above. The Reviewer continues with a reference to the Danish Immigration Service Report which is more conclusive in fact than the DFAT Report, by saying that a person may be fined for illegal departure, but if they have committed a crime previously, they will be prosecuted for that previous offence. However, they will not be imprisoned for illegal departure in isolation. Mr Knowles’ contention is that the Reviewer at [131] of the Decision Record was making an assessment of the necessary and foreseeable consequences and not an assessment of the risk of harm of prison conditions. This is the preferable construction available from the Reviewer’s reasons.
Mr Knowles next addressed the contention advanced on behalf of the applicant that the necessary and foreseeable consequence argument would require some inconsistency with the decision of his Honour Flick J in SZRCI (supra). However, in SZRCI his Honour was considering the issue in the context of s.36(2)(a), where real chance is the only test. His Honour was dealing with the same question that the Full Court in SZQRB (supra) was dealing with, which is the aspect of s.36(2)(aa) that goes to the real risk test, whereas his Honour Perram J found in Anochie (supra) it is a separate consideration to consider the necessary and foreseeable consequences.
Apart from the s.36(2)(aa) construction argument there is the consideration of whether the argument advanced on behalf of the applicant could be accepted on its face if the Tribunal applied the wrong test, in that the applicant would be unlikely to be imprisoned for an illegal departure from Iran. Mr Peadon referred to various parts of the Decision Record in which he suggests that in earlier parts therein the Reviewer was making more definitive, whereas the finding at [131] is a somewhat qualified finding which is not consistent with the real chance test. Contrary to this assessment, Mr Knowles maintains that at [132]-[133] the Reviewer’s language is consistent, even in respect of claims that the applicant did not advance. An example of this appears at [132] of the Reviewer’s reasons where she stated:
132. I note that significant harm is also defined to be arbitrary deprivation of life and where the death penalty will be carried out on the person. The claimant has not claimed that, if returned to Iran, he will be arbitrarily deprived of his life or will be subject to the death penalty. I do not find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Iran, there is a real risk he will face the death penalty or will be arbitrarily deprived of his life.
(CB 233)
Similarly, at [133] of the Decision Record the Reviewer stated:
133. The claimant has raised concerns about being expelled to Iraq from Iran. As noted, this appears to be based upon the evidence of one individual. I do not find on the evidence before me that the claimant faces a real risk of deportation to Iraq.
(CB 233)
Mr Knowles contends in respect of the passage in Guo (supra) at 573 that was relied upon by the applicant to promote the submission that the balance of probabilities test can be applied even where it is not stated, that in the matter before this Court the Reviewer did not refer to that test, nor did it make any finding that would allow the Court to infer that such a test had been applied. Significantly, although the applicant’s adviser N. Young of Refugee Advice and Casework Service (Aust) Inc. in her submissions to the IMR dated April 2012 stated:
Real Risk
We submit that it is probable and “more likely that not” that [SZSKC] would be detained on arrival in Iran for three reasons outlined above. Since [SZSKC] has no valid Iranian documentation and no Persian contacts to secure a bond for his release, it is likely his detention will be prolonged and result in his mistreatment. This risk is personal to [SZSKC] as it is enhanced by his Faili Kurdish ethnicity and his undocumented status.
(CB 197)
Although the applicant’s adviser expressly used the term “more likely than not” when assessing the real risk, that would be an error according to the principles in SZQRB. However, the Reviewer did not repeat that language, notwithstanding it was used in the written submissions provided by the applicant’s adviser, and the Reviewer avoided error by not adopting that test.
Mr Knowles contends that the use of the word “negligible” does not accord with the language used in Chan.
In respect of the suggestion advanced by Mr Peadon that the guidelines provided no guidance as to the test to be applied, in SZQRB the Departmental Policy was found to be in error. However, in the matter currently before this Court, there is no evidence of what the departmental policy was at the time of the decision and there is nothing in the Reviewer’s decision to suggest she had regard to any guideline or department policy which would have been erroneous, or would have applied the erroneous test outlined in SZQRB.
In the Decision Record the Reviewer has not made any reference to departmental policy or guidelines. Importantly, a departmental policy if applied could have been erroneous or could have resulted in the application of an erroneous test as in SZQRB (supra). Consequently, I cannot be certain whether the policy referred to in SZQRB is the applicable policy here, nor can I be satisfied which policy could have been adopted or even considered to by the Reviewer.
The resolution of this matter is within a relatively narrow compass that it depends upon the correct test that was applied by the Reviewer in determining whether the applicant was entitled to the operation of the complementary protection criteria. On a fair reading of the Reviewer’s reasons it does not disclose what precise test was applied in the reasoning process, however, in an assessment of the language used it appears that the balance of probability test was the approach adopted, although the words “balance of probabilities” does not appear on the face of the Decision Record. The language used is “unlikely” which means not generally and the language leaves open that there is a real possibility that the applicant will be imprisoned on his return to Iran. That language is consistent with the High Court decisions in Chan (supra) and Guo (supra). It is also consistent with his Honour Flick J in the decision of SZRCI where he stated you need not show that it is probable that it will occur. It simply needs to be a real risk, not negligible and not insignificant. The language that has been used is consistent with the departmental policy at the time as evidenced by the Full Federal Court decision in SZQRB that a balance of probabilities test was departmental policy in complementary protection cases at that time. Further assistance is found in the decision of SRBB (supra) where Mansfield J considered the phrase “extremely unlikely” which he found was consistent with the application of a real chance test. That form of description makes it clear that the Reviewer was not applying the balance of probabilities test.
In the matter before this Court the Reviewer did not apply the test and did not consider in the colloquial sense of “what if I was wrong” and did not apply the test having regard to the risk of it actually occurring. The sole issue in this application is whether the Reviewer erred in law by misapplying the “complementary protection test” of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, being Iran, there is a real risk that the applicant will suffer significant harm.
The test is not whether imprisonment is a necessary or foreseeable consequence, i.e. inevitable. The test is whether there is a real risk, as a necessary and foreseeable consequence of return, that serious harm will be suffered, in this case whether there is a real risk of imprisonment. There is no requirement of proof that the applicant will be imprisoned on return because that places the onus of proof far too high. In SZRCI (supra) his Honour Flick J at [39]-[40] stated:
39. …A claimant need not therefore positively prove that he will be persecuted or even that such an event is probable:..
40. The requirement that a fear be “well-founded” adds an objective requirement to the requirement that an applicant must in fact hold such a fear. And for a fear to be “well-founded”, there must be a real substantial basis for it:
(citations excluded)
The argument being advanced on behalf of the Minister appears to be that the applicant must show that it is a necessary consequence of the applicant being returned to Iran that he will be imprisoned and as a consequence the question of risk arises in relation to serious harm. That interpretation is not what the language of the statute suggests. In SZQRB (supra) it endorses that what flows from the High Court decision in Chan (supra) and Guo (supra) is that one assess the risk by reference to the integers of risk, being, will he be imprisoned and, if imprisoned, will he suffer harm? These are the integers that must be assessed. The test is not applied by putting the applicant in a position where he must prove that he is in direct way of real harm before the risk test is applied. This approach is consistent with the statute and case law. The standard of satisfaction is not a negligible possibility, rather, one that leaves open a real possibility that he will imprisoned. The country information provides more than sufficient information on the face of the record that there are substantial grounds to form a conclusion that there is a real risk that persons imprisoned in Iran will suffer serious harm.
I believe that it is necessary for the Reviewer to engage with the language of s.36(2)(aa) of the Migration Act considering the evidence relevant to that provision. That is, to identify those parts of the applicant’s account that are relevant to the question as to whether he would face “significant harm” as opposed to “serious harm”. The language used in the section has been subject to considerable judicial consideration in a wide number of decisions which provides rather precise parameters of each respective term. The application of the section is dependent upon the use of that language as defined. The failure by the Assessor to adopt that approach leads to the strong inference being drawn that the Assessor misunderstood and misapplied the relevant tests.
Conclusion
It is appropriate in this case that the applicant is granted the relief he seeks and awarded his costs of these proceedings.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 16 May 2014
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