SZSLL v Minister for Immigration
[2013] FCCA 2017
•28 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSLL v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2017 |
| Catchwords: MIGRATION – Application for review of recommendation of Independent Protection Assessment Reviewer – whether reviewer failed to consider claim and integer of claim ‑ whether reviewer failed to consider claims made by the applicant in relation to complementary protection criterion – no legal error –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”) |
| Applicant: | SZSLL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | RAY MCNICOL, IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 3103 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 July 2013 |
| Date of Last Submission: | 16 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P W Bodisco |
| Solicitors for the Applicant: | Stanford Lawyers |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The title of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application made on 24 December 2012 and amended on 16 July 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $8,300.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3103 of 2012
| SZSLL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| RAY MCNICOL, IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 December 2012 and amended on 16 July 2013, seeking a declaration that the recommendation by Mr Ray McNicol, in his capacity as Independent Protection Assessment Reviewer (“the reviewer”) to the first respondent Minister, that the applicant not be recognised as a person to whom Australia had protection obligations under the Refugees Convention,[1] or did not otherwise meet the requirements for a protection visa, was affected by legal error.
[1] United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (“Refugees Convention”)
The application to the Court also seeks injunctive relief, and thereby engages the jurisdiction of this Court in the manner explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (“ M61 /M69”).
Background
The applicant arrived in Australia on 22 November 2011 as an “unauthorised boat arrival” (Court Book (“CB”) – CB 110.9). He completed a “Biodata Form” in which he claimed to be a “stateless Bidoon” who was born in Kuwait (CB 1).
On 16 December 2011, the applicant participated in an “entry interview” in which he reiterated his statelessness (CB 8). He claimed that he left Kuwait because he came to the attention of security forces because he was active in demonstrations in “Jahara Taymaa” with other young Bidoons (CB 15). He claimed that after this the security forces had been to his house and taken “his papers”. He claimed that as he did not feel safe he stayed at a friend’s house until he was able to leave the country (CB 14 to CB 15). Further, he claimed that if he returned to Kuwait he would be in danger from the government and the security services, and would be taken into custody, tortured or killed.
On 29 January 2012, the applicant lodged, with assistance from an “IAAAS” provider (a migration agent and lawyer), a request for a “Protection Obligations Determination” (“POD”) (CB 31 to CB 88), including a “Statutory Declaration” setting out his claims (CB 75 to CB 78). In that Statutory Declaration he claimed the following:
1)He was a Bidoon who held “no citizenship” ([2] at CB 75).
2)In February 2011 he participated in a demonstration in the “Jahraa area” with other Bidoons demanding their civil rights. The demonstration became violent against the police and people were arrested ([8] – [13] at CB 76). The applicant claimed that he fled to the beach, and while he was there his mother called him and said that the security forces had been to his house looking for him, taken all of his family’s documents, and told him not to come home ([14] – [16] at CB 76 and [17] at CB 77). His mother told him that if the family wanted the documents back he would have to go and claim them ([15] at CB 76).
3)Further, the applicant claimed that the security services knew who he was because there had been people taking videos, and that someone must have “informed” on him ([18] at CB 77).
4)The applicant claimed that as a result he had been scared to return home and stayed at a friend’s house. His friend organised for documents so that he could leave the country ([20] and [21] at CB 77).
5)The applicant claimed that if he returned to Kuwait he would be “arrested…detained…tortured and killed” by the government “security intelligence forces” ([23] and [24] at CB 77).
The applicant attended an interview on 5 February 2012 with an officer of the Minister’s department (“the POE officer”). At the interview the applicant was presented with evidence that contradicted his claims to be a “stateless Bidoon”. The POE officer showed the applicant evidence that he was actually an Iranian citizen. As a result, on 17 February 2012, further documents were provided to the Minister’s department by the applicant containing an “uncertified” photocopy of “his” Iranian passport and Kuwaiti visa (CB 89 to CB 103).
On this evidence the applicant’s claimed circumstances changed considerably. The applicant now says that he was born in Iran and had been “mostly” resident in Kuwait (CB 111.3). However, the applicant claimed that he “felt Kuwaiti, because he had never lived in Iran” (CB 113.7). He claimed that the “smugglers...had advised him to hide his real Iranian identity because as an Iranian man he would not have the opportunity to remain in Australia as a refugee” (CB 113.9).
At the interview, the applicant maintained his claim that he had attended a “public Bidoon gathering” in February 2011. He claimed that he had participated because he was “inflamed by what he saw as an injustice against Stateless Bidoons”, and that although he evaded arrest, the authorities had raided his house and confiscated “all of his Kuwaiti documents” (CB 113).
The POE officer put further information to the applicant in regard to evidence that he applied for a visa to the United Kingdom one month before the Bidoon demonstration. He admitted this, and said that he had “failed to provide the sufficient funds” so his application had been refused (CB 113.6).
The applicant made a further claim as to his “real story” to the POE officer. He claimed that he had not completed his military service in Iran. However, as he was the oldest child and his father had passed away he could have it waived without payment (CB 114.1). He attended the Iranian Embassy in Kuwait to claim this benefit. However, his claim was rejected and he was “treated very poorly by staff members at the Embassy”. He claimed that “…[t]his treatment enraged [the applicant] and he insulted the Embassy staff and the Iranian Government” (CB 114.2).
He further claimed that the Embassy staff attempted to arrest him. He believed that he had been “blacklisted and… would be punished because of the insults he voiced on that occasion” (CB 114.2). He also claimed that, subsequently, his mother had tried to have his passport “stamped”, however “they” refused and “advised her that [the applicant] should present himself in person or go to Iran to sort out the matter” (CB 114.3).
The POE officer found that the applicant was not a “credible witness”, as most of his written and oral testimony were “affected by contradictory and implausible elements” which led the POE officer to “suspect” that the applicant had “fabricated his claims about his involvement in political activities as a Stateless Bidoon in Kuwait” (CB 116.3).
The POE officer accepted that the applicant was an “Iranian citizen who [did] not wish to complete his military service in Iran” (CB 116.5). The POE officer went on to find that, although she was “satisfied” that this claim amounted to a fear that was for “one of the Refugees Convention reasons namely political opinion” (CB 117.5), that fear was not well-founded (CB 118.9).
The applicant’s case was referred for review by the “Independent Protection Assessment office” ([7] at CB 119 and CB 120).
On 10 July 2012, the applicant’s representative provided submissions to the reviewer (CB 122 to CB 172). In those submissions the applicant’s claims were set out as ([1] – [2] at CB 122):
“[1] We are instructed that [the applicant] fears persecution in Iran due to his perceived opposition to the Iranian Regime.
[2] [The applicant] will be perceived to oppose the Iranian Regime for the following reasons:
a. his participation in the following anti-Regime activities:
i. his refusal to undertake his compulsory military service in Iran.
ii. insulting the Regime during an argument at the Iranian Embassy in Kuwait and subsequently being refused official documentation by the Iranian Regime.
b. his attempt to secure protection in Australia.”
Further, the submissions stated that the applicant had “openly recanted any previous claims that he had made about being a Stateless Bidoon” at the interview with the POE officer ([4] at CB 123).
The submissions summarised the applicant’s fear of persecution as follows ([13] at CB 125):
“…
a. [The applicant] has been persecuted in the past (threats have been made to him through his mother and he had been advised that he has been ‘blacklisted’) because of his perceived opposition to the Regime;
b. he will continue to oppose the Iranian Regime on his return;
c. he will be perceived as a dissident by virtue of his activities outside Iran; and
d. there has been no improvement in the human rights environment in Iran since his departure…”
On 24 August 2012, the applicant attended an interview with the reviewer. At the interview, the applicant made a number of further statements in support of his application.
First, he claimed that he had “lost” his passport in Indonesia ([85] at CB 183). Second, he claimed that he had been “living in fear in Kuwait because Iranians have a bad name and you can be deported for the smallest infringement of the law” ([88] at CB 183). Third, through his representative’s submissions, the applicant claimed that he would face “religious persecution”. This was said to be because the applicant was a Shia Muslim “residing in a predominantly Sunni country”
([97] at CB 184).
The applicant’s representative submitted that the applicant “should be given credit for his honesty in revealing all of the real facts about himself to the POE officer”, and to the reviewer ([98] at CB 184). Further, the applicant’s representative stated that “he relied on the submissions in relation to the applicability of the complementary protection provisions and had nothing to add” ([101] at CB 185).
On 24 October 2012, the reviewer found that the applicant did not meet the criteria for a protection visa as set out in s.36(2) of the Act and therefore, recommended that the applicant “not be recognised as a person to whom Australia has protection obligations” ([141] at CB 192).
The reviewer had a “number of concerns about the [applicant’s] evidence” which caused him to find that the applicant was “not a credible witness”, and that the evidence before him was “inconsistent and lacking in credibility in crucial respects”([116] at CB 188).
The reviewer accepted that the applicant’s claim was “based on his real or imputed political opinion” due to his refusal to undertake military service, and the altercation in the Iranian Embassy in Kuwait. However, while the reviewer accepted that the applicant had attempted to obtain an exemption from compulsory military service, he did not accept the applicant’s evidence concerning the altercation in the Embassy, or the threat of arrest that had supposedly occurred ([119] at CB 188). Further, the reviewer stated ([120] at CB 188):
“Given the claimant’s previous history of providing false information in respect of his application for protection, the lack of any evidence in corroboration of these claims, and the general lack of plausibility surrounding the claims made about the behaviour of the embassy officials, I do not accept that the evidence concerning an argument in the Iranian Embassy is truthful. Further, I find that it is a manufactured account of the events designed to promote the application for protection, and as such, I reject it completely.”
The reviewer accepted that the applicant had not completed his compulsory military service “because he had failed to register for such service as required by the law in Iran” ([122] at CB 188). However, the reviewer stated that it was a “well-established principle” that a generally applicable law did not “constitute persecution” for the purposes of the Refugees Convention ([124] at CB 189). The reviewer found, on the evidence, that the law relating to compulsory military service was one that operated “generally in its terms, intent and application to the entire male population of Iran” and that any penalty for failure to fulfil this requirement did not amount to persecution ([127] at CB 189). Therefore, the reviewer was not satisfied that the applicant had a well-founded fear of persecution under the Refugee Convention.
As to the claimed fear of persecution as a “failed asylum seeker returning to Iran”, the reviewer found that as the applicant had departed Kuwait legally on his own “genuine Iranian passport” and that as the reviewer had found that the applicant did not have a political profile in Iran due to his rejection of the applicant’s evidence of the altercation at the Iranian Embassy, he was “not satisfied that there would be a real chance that he would be subject to serious harm”([129] –[131] at CB 190).
Further, the reviewer rejected the representative’s submission that the applicant should “be given credit for his honesty” in recanting his original claims to the POE officer because ([133] at CB 191):
“….I note that the [applicant] provided an orchestrated, comprehensive and completely false account of his personal circumstances and his claims to protection….the [applicant] attempted to rely on the fabricated testimony before the POE officer for over an hour before the POE officer presented the [applicant] with irrefutable evidence of his application for a visa to the UK and the fact of his possession of a genuine Iranian passport….”
The reviewer went on to consider that applicant’s claims under the complementary protection criterion (s.36(2)(aa) of the Act). He made the following statement and finding ([137] at CB 191):
“Having found that the [applicant] has not been subjected to any serious harm amounting to persecution in Iran for the purposes of the Convention, and as a consequence there is no real chance that the claimant will be persecuted in Iran, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country (Iran), there is a real risk that he will suffer any significant harm from the authorities in Iran. As a consequence, I find that the [applicant] is not a person to whom Australia has protection obligations under the complementary protection provisions set out in s.36(2)(aa) of the Act.”
Before the Court
At the final hearing Mr P W Bodisco of counsel appeared for the applicant. Mr H P T Bevan of counsel appeared for the Minister.
The applicant sought leave to file an amended application at the final hearing. There was no objection and leave was granted. The grounds of the application, as amended on 16 July 2013, are as follows:
“1. Ground one:
That the IMR failed to apply the correct test at law.
Particulars
By conflating the relevant test pursuant to sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 at paragraph [137] of his decision, the IMR failed to apply the correct test under the complementary protection provisions contained in section 36(2)(aa) of the Migration Act 1958.
2. Ground Two:
That the IMR failed to take a relevant consideration into account:
Particulars
The IMR failed to take into account penalties to apply to the applicant for failing to register for military service in assessing the applicant’s claim under the complementary protection provisions contained in section 36(2)(aa) of the Migration Act 1958.
[Ground three was not pressed.]
4. Ground four:
That the second respondent did not assess the full integers of the applicant’s claims under the complementary protection provisions.
Particulars
The second respondent has failed to assess the applicant’s claim under the complementary protection provisions and as squarely raised by his advisors at paragraphs [122]-[123] of the recommendation.”
The Court had before it submissions from both parties, the affidavit of Charles Frederick Stanford sworn on 22 April 2013, filed by the applicant and which annexed a transcript (“T”) of the interview with the reviewer, and the Court Book, being the bundle of relevant documents filed by the Minister.
All three of the applicant’s grounds concern the way the reviewer is said to have dealt with the complementary protection criterion. While separate assertions of legal error were made, I understood the applicant’s arguments before the Court to be essentially that the reviewer made certain findings which were “bound up” with the Refugees Convention, then, without distinction, relied on those findings to assess the applicant’s claims under the complementary protection criterion, even though the relevant tests are different. Further, that the reviewer’s approach to the relevant complementary protection test was to adopt the view that it required “a higher standard of proof” than that under the Refugees Convention.
Submissions
The applicant relied on the reasoning of Gordon and Lander JJ in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (“SZQRB”) at [230] – [231]:
“[230] If on judicial review a Court determines that in the assessment of a non-citizen’s claims the assessor or reviewer did not accord the person procedural fairness, or proceeded on an error of law, the Court will grant a declaration to that effect. That declaration will warn the Minister that the Minister should not take the person into detention (if not already in detention) for the purpose of removing that person from Australia, or attempting to remove the person from Australia, until a lawful assessment is made.
[231] If the Minister proceeded to remove the unlawful non-citizen without obtaining a further RSA or IMR, the Minister would be liable to be restrained by the Court granting an injunction, not because the Minister will not exercise his powers under s 46A, s 91L, or s 195A, but because the Minister would be removing that non-citizen in breach of Australia’s international obligations to accord protection to those who are entitled to protection under the Refugees Convention, the CAT or the ICCPR. Whether SZQRB is entitled to any injunctive relief will depend upon SZQRB making out his claim that the ITOA is infected with jurisdictional error.”
Before the Court, the applicant further relied on the following from SZQRB per Gordon and Lander JJ ([246] – [248]):
[246] In our opinion, the test is as for s 36(2)(a) and as stated by SZQRB – is there a real chance that SZQRB will suffer significant harm (as that is defined in s 36(2A)) were he to be returned to Afghanistan.
[247] That being the case, the ITOA applied the wrong test in considering SZQRB’s entitlement for Australia’s protection obligations under the CAT and ICCPR as defined in s 36(2)(aa) and s 36(2A). The ITOA assessed SZQRB’s claims as against whether it was ‘more likely than not’ that SZQRB would suffer significant harm, which was not the appropriate standard. The ‘Departmental policy’, if the ITOA was right to describe it that way, was not in accordance with Australian law.
[248] SZQRB’s contention that the ITOA was not carried out according to law must be accepted on that ground alone.”
The applicant submitted that the reviewer failed to deal with an integer of the claim under the complementary protection provisions. That is, that the reviewer did not deal with the claim that the applicant would face persecution because of his failure to register for military service. Before the Court, the applicant submitted that the reviewer’s recommendation clearly indicated that the claim had been dealt with under the Refugees Convention, through the language used, however, there was “no evidence” that that claim was considered under the alternative test.
The applicant also referred to the decision of Judge Driver in SZSFK v Minister for Immigration [2013] FCCA 7 (“SZSFK”) at [97] – [98]:
“[97] 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).
[98] 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”
The applicant submitted, that in this matter the reviewer had applied the relevant authorities (Applicant A v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225; Mijoljevic v Minister for Immigration & Multicultural Affairs [1999] FCA 834; Mehenni v Minister for Immigration & Multicultural Affairs [1999] FCA 789 (1999) 164 ALR 192 and Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1), and that these were important to the “gutting” of the applicant’s claims under the Refugee Convention. However, the applicant submitted that the “appropriate test” was not then applied in relation to, and for the purposes of, s.36(2)(aa) of the Act. Instead, the reviewer had “effectively” stated that if the applicant could not meet the first test (the Refugees Convention test, s.36(2)(a) of the Act), he could not meet the second one either (Complementary Protection, s.36(2)(aa) of the Act). That is, that the reviewer did not exhibit in his recommendation an “intellectual engagement” with the test for complementary protection, indicating that the test was not applied to this integer of the claim.
Further, the applicant submitted that the statement at [137] (at CB 191, see also [27] above) in relation to complementary protection was inadequate to show any application of the test. First, the findings with regard to the claim under the Refugees Convention and the applicant’s (lack of) military service were “bound up” in the test under s.36(2)(a) of the Act. Second, that there was no evidence in that statement that the reviewer had applied the correct test. Third, that the reviewer appeared to have applied a higher standard of proof than that which was required for s.36(2)(a) of the Act, or conflated the two tests with the following statement ([137] at CB 191):
“Having found that the [applicant] has not been subjected to any serious harm amounting to persecution in Iran for the purposes of the Convention, and as a consequence there is no real chance…”
The Minister submitted that the applicant’s argument could “not be made out”. First, the Minister submitted that there was no claim made that military service in Iran would constitute significant harm for purposes of s.36(2)(aa) of the Act. Further, that the “only factual basis” for the applicant’s complementary protection claim was the supposed altercation with the Iranian Embassy staff and that the reviewer “comprehensively” rejected the factual basis of this claim on credibility grounds. Therefore, the basis on upon which the applicant now claimed to satisfy the complementary protection criterion “did not occur”.
The Minister submitted that a fair reading of the reviewer’s statement at [137] (at CB 191), which should be read together with the findings at [119] – [120] (at CB 188), reveals that it was the factual claim that was rejected without any reference to the Refugees Convention. The submission of the applicant that the reviewer had “conflated” the two tests did not “withstand scrutiny”, as the reviewer had clearly stated the law relating to s.36(2)(aa) of the Act in his reasons at [15] – [17] (at CB 175). Further, the Minister submits that the reviewer was “plainly conscious of the difference in the two criteria” (Minister’s written submissions at [17]).
Before the Court, the Minister distinguished the facts of the current matter from those in SZSFK, stating that the factual finding of the reviewer at [119] – [120] (at CB 188) that the altercation at the Iranian Embassy did not occur, was “far and removed” from the circumstances in SZSFK where certain incidents had been accepted by the relevant decision maker as having occurred.
Additionally, the Minister submitted that no claim was put to the reviewer that the applicant “otherwise qualified for a protection visa under the complementary protection regime simply on the basis that he had failed to register for military service”. The Minister submitted that any suggestion that this occurred did “not reflect the way in which the applicant’s claims were advanced” (Minister’s written submissions at [17]).
Finally, the Minister submitted that there was nothing to suggest that the reviewer imposed a higher standard of proof than that required for s.36(2)(aa) of the Act.
Consideration
The gravamen of the applicant’s complaint before the Court is that the applicant had made certain claims in relation to compulsory military service, the consequences of his failure to have done this service, and the incident at the Iranian Embassy in Kuwait. These matters, of themselves, and in the context of his other circumstances, formed the basis of his fear.
The applicant’s argument was that the reviewer understood these claims and dealt with them in the context of the Refugees Convention but did not address them in the context of complementary protection. Further, that the findings made in relation to these claims were intertwined with the Refugees Convention to such an extent that the purported attempt to rely on those findings (as expressed at [137] at CB 191 of the reviewer’s analysis, see above at [28]) in relation to complementary protection means that the reviewer applied the incorrect test to that latter assessment.
The Minister’s response, in essence, was that the applicant’s submissions as to what his claims were before the reviewer are a “reconstruction” of a claim that was not put.
In this regard, at the hearing before the Court, the applicant sought to rely on the following proposition in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (at [58] per Black CJ, French and Selway JJ):
“…the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated…”
It is helpful to note what the Full Court relevantly said at
(at [61] – [63]):
“[61] … We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
[62] Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made…
[63] It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances…”
Further, at [68] in relation to the circumstances before the Full Court:
“Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal…”
The starting point for the current consideration, therefore, must be to ascertain the claim or claims expressly made, or clearly arising from, the materials before the reviewer in relation to the complementary protection criterion. I note that the applicant made no such complaint in relation to the reviewer’s consideration under the Refugees Convention criterion.
While the applicant previously presented his circumstances and claims to the delegate, his representative’s submission to the reviewer, said to be made in response to the delegate’s decision, provided a comprehensive exposition of the applicant’s claims and circumstances as initially put to the reviewer (CB 122 to CB 128).
The Minister asked the Court to take note that the author of the submissions was a senior associate of a firm of solicitors and an accredited specialist in migration law. As such, the submissions are plainly not a narrative drafted by a person ignorant of the relevant law or how to present claims to protection as is often seen in cases of this type (that is, cases involving s.36(2) of the Act).
Much, therefore, can be derived from the structure of the submissions. Under the heading of “Responses to the Delegate’s Findings” the following is of note ([4] at CB 123):
“c. [The applicant] entered into a dispute with the staff of the Iranian Embassy concerning his military service requirements. Essentially, [the applicant] considers that he should be exempt from military service. However, the staff at the Iranian Embassy demanded fees from [the applicant] for the official documentation to confirm this fact. The dispute escalated and [the applicant] insulted the Iranian Regime. Staff at the Iranian Embassy told [the applicant] that they had made a record of his dissent and noted him on a blacklist as a dissident.”
Under the two subsequent headings in the submissions, the advisor sought to address matters with reference to the Refugees Convention (“Resolution of the Matter”, [6] at CB 124 to [14] at CB 126) and s.36(2)(aa) of the Act (“Complementary Protection Considerations”, [15] at CB 126 to [27] at CB 128).
The matters under the first heading include reference to the “heated dispute” at the Iranian Embassy, the “blacklist” ([7] at CB 124) and his refusal “to undertake his military service”, and that the resultant “penalty” would be “exacerbated due to [the applicant] being recorded as being a dissident” ([8] at CB 124).
It is also made clear, with the references to a “well-founded fear” and “persecution”, that these matters were put in support of the applicant’s claims to protection as a refugee. That is, the criterion at s.36(2)(a) of the Act.
Under the heading of “Complementary Protection Consideration” the following is relevant to his claims, put with reference to s.36(2)(aa) of the Act ([23] at CB 127 to [25] at CB 128):
“[23] Prior to his departure from Iran to Australia, [the applicant] was:
f. Involved in an altercation with staff at the Iranian Embassy in Kuwait. During that heated exchange, [the applicant] insulted the Iranian Regime. [The applicant] was told that the exchange had been noted and that he had now been ‘blacklisted’. Further, [the applicant’s] mother was told by the staff at the Iranian embassy that [the applicant] would be taught a lesson and that his tongue would be cut out (on his return to Iran).
[24] In the event that he is returned to Iran, [the applicant] fears he will be:
g. detained and mistreated by the Iranian authorities;
h. subjected to serious physical abuse at the hands of the Iranian authorities and/or members of the Iranian public; and
i. have his tongue cut out as a punishment for insulting the Iranian Regime.
[25] We submit that the above forms of harm are properly characterised as constituting ‘cruel or inhuman treatment’ and ‘degrading treatment’ sufficient to engage Australia’s complementary protection obligations.”
Importantly, there was no reference under this heading to the matters of compulsory military service (see further below).
Before the Court, both parties took the Court to various parts of the transcript of the interview the reviewer conducted with the applicant. Bearing in mind the gravamen of the applicant’s complaint (failure to deal, in the context of complementary protection, with claims expressly made and clearly arising) it is convenient to refer to the transcript comprehensively below, taking into account both sets of references made by the respective parties before the Court.
From the transcript it is clear that the applicant gave extensive evidence about the incident at the Iranian Embassy in Kuwait and why he feared to go to Iran because of this (See T18 line 46 to T20 line 44).
In relation to the military service (T20 line 46 to T21 line 1):
“Q. You said that you were fearful of returning to Iran because you will have to do your military service
A. INTERPRETER [giving an interpretation of what the applicant said]: No, no, I mentioned because it was my name on the blacklist because what happened to me in the Iranian Embassy. Plus, in addition… in addition to the blacklist, why would I have to go and spend two years of my life serving Iran, I don’t like the country, and because we lived in Kuwait most of our life and then yet we have a compulsory, we have to go and do two years in Iran.”
Further (T21 line 44 to T22 line 5):
“Q. Okay, okay. If you could pay $5,000.00 to a smuggler, why didn’t you just buy your service in 2008, you could have bought your service…
A. INTERPRETER: bought…
Q. …bought, you could have purchased, bought out [your] commitment to military service in Iran.
A. INTERPRETER: I have no problem financially I would have paid it, he felt like there has been imposed on him because by law if you are the eldest son, your father passed away, by law your exempted from drafting to look after your family, so why they imposing this on me, felt like that’s not fair treatment. He said because when I was in Iran, they explained to me and they told me look you’re exempt (indistinct) but when I went there in Kuwaiti, and that person was rude, was aggressive for no reason at all, so that’s how I felt I been, like he been abused.”
In relation to the applicant’s credibility, given the “concession” that that he had initially presented a fabricated set of claims, the following is of note (T22 line 45 to T23 line 27):
“Q. So you created this fictitious story?
A. INTERPRETER: I was in great fear, I was much, much younger than them and as soon as they got them, they actually say don’t say nothing, just say nothing and don’t disclose any information about yourself, your real identity, so you can be granted visa, and I just believed them, I was in so much fear, I just followed their advice and they older than me.
Q. They what?
A. INTERPRETER: That they older so they (indistinct).
Q. So were these Iranians telling you this, or Indonesians?
A. INTERPRETER: Iraqis and Iranians, and because I speak the Arabic language, so I could understand Iraqis as well, which is Arabic.
Q. Okay. Why, why should you be given any credibility, in respect of anything that you’ve said to me, given that your previous application, interviews, testimony, even about my new details like your brothers and sisters, had been false?
A. INTERPRETER: He said honestly I really, really feel bad and I really feel sorry because I know what I’ve done at beginning was wrong, very wrong. And he said honestly I did not do it on purpose, I did not want to lie on purpose, I just was in great fear, I was so scared, I was traumatised, I didn’t want you to send me back and I didn’t know what to do, I was desperate, and these people got me to say the wrong thing and I really apologise, I know what I’ve done is wrong. I know what I’ve done is wrong.
Q. But you didn’t realise it was wrong, you didn’t… you didn’t… see you had a bio-data interview, that’s one, but had an entry interview, that’s two, you lodged your application and lodged a sworn statement in your application for protection, that’s three occasions, and then you had the interview with the Immigration Officer, that’s four, and it wasn’t until the Immigration Officer actually confronted you with a copy of your passport, that you decided you’d better tell the truth, so why, even up until that point in the interview with the Immigration Officer, you were absolutely on script.”
The reviewer raised concerns with the applicant and his representative, which included reference to the way the applicant’s claims had emerged, and referred to the Embassy incident and compulsory military service (T24 lines 1 to 28):
“MEMBER: Okay. Righto. Thank you. Now, Mr Hart before I leave you with your client, and just to be fair to your client, I’ll tell you some things that I have concerns about so you can perhaps address them when I come back. Your submission, obviously it wasn’t prepared by you, but from your company, says that your client should be given credit because he took the first opportunity to recant. I’ll point out that he didn’t recant until one hour and seven into the interview and only when confronted with a copy of his passport. So it wasn’t an open and honest recanting, it wasn’t voluntary, it wasn’t a voluntary withdrawal of his previous testimony. Although he says today that he’s not … he doesn’t fear doing his military that he’s in fear of returning to Iran because he’s on a blacklist, in the previous interview he did say the he was unwilling to complete his military service because he would be unfairly treated because he hadn’t enlisted when he was supposed to. There’s country information that there is no persecution when you do ultimately enlist, just the only adverse consequence for your client would be he would so 24 months service instead of 20. And I’m sure you know all the laws about enlistment for military service and the laws of general application and so forth. In paragraph 10 and 13 of your submission, it talks about abuse and depravation, harm suffered amounting to persecution, I should acknowledge past incidents of persecution, I would be grateful if you could point out to me what those past incidents of persecution were. And I’d be grateful if you could enlighten me as to what amounts to serious harm in the event that [the applicant] was to return to either Iran or Kuwait, what harm awaits him that amounts to serious harm under Section 91R. And if you say there are grounds as to why I should consider Complementary Protection, I would be grateful if you could point out to me on what grounds Complementary Protection provisions apply. And as it appears that there’s been a long history of residents in Kuwait and yearly renewal of those Residency Certificates for [the applicant] and his family, why should I not consider under Section 36(3) that there is effective protection available in the third country, that being Kuwait.”
[Emphasis Added]
Further, on military service (T27 line 11 to T28 line 19):
“ADVISOR: The second concern regarding his military service, now again, we’ll just, we’ll just continue to rely on point 8 here, which is what deals with that. So it notes here that the fact that he has been regarded as a political dissident by the Iranian Embassy staff in Kuwait, will result in his punishment being exacerbated.
MEMBER: But what punishment?
ADVISOR: Well a punishment if he, as you referred, as you mentioned earlier, if he, for not undertaking his military service.
MEMBER: Right. So the information that I can gather is that once a person, an Iranian turns 19, they are required to register for military service.
INTERPRETER: Yeah.
MEMBER: That the Iranian authorities don’t pursue those who don’t enlist for military service when they are 19, but the consequences are, that you can’t own property, you can’t vote, you can’t get a passport if you don’t already have one, you can’t marry and you can’t purchase property. So there is no punishment for not enrolling. When you do … if you do subsequently enrol, you’re required to do the full two years of military service rather than twenty months, which normally applies because the period of service has been reduced to twenty months. So in your client’s case, he would be required to do the full two years. Other than that, there is no punishment. So, in the submission, it talks about you know, that if he went back and was required, he would be more severely punished, I don’t understand how you can be more severely punished when you’re not punished.
ADVISOR: Okay. As I understand, it will be in additional to that additional military service so the initial time that he would get on top of somebody who did not enter late or …
MEMBER: … So you’re submitting to me that the extra four months service is a punishment that amounts to serious harm?
ADVISOR: No, no, what, what, as I understand this, what I’m submitting is that it would be additional to that four months. So he would get additional punishment, on top of that four months, because of his, the fact that he’s be noted as a political dissident.
MEMBER: Okay. Okay.
ADVISOR: And that that would amount to persecution, that act of increasing that punishment, based on political opinions.
MEMBER: Right. So what punishment do you say would befall your claimant, your client [the applicant] if he returned to Iran?
ADVISOR: I … that’s … I don’t know. I think the point is, it would be worse.
MEMBER: Right. So neither you, no your client [the applicant] can tell me what punishment would befall him if he went back to Iran, but whatever it is, if it is anything, it would be worse because he hadn’t enlisted when he was 19?
ADVISOR: No, it would be worse because he’s been noted as a political dissident, because of the events at the Iranian Embassy at Kuwait.
MEMBER: Right.
ADVISOR: And that that resultant exacerbation of the penalty amounts to persecution.”
What follows is plainly relevant to the question of whether the applicant and his representative provided “a substantial, clearly articulated argument relying on established facts” in the Dranichnikov sense (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] (“Dranichnikov”), see also as articulated in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (“NABE No 2”)). That is, was a claim expressly made or did it clearly arise on the materials (see T28 line 21 to T31 line 45):
“MEMBER: Okay, okay. I must admit to being a bit confused. So what I’d like to do is to go back to Tors and start again. Maybe the best place to start is … is to list the grounds upon which you say your claimant relies for protection. So one of them is obviously religion, that he fears having his right to practise his Shia faith …
ADVISOR: … In Kuwait.
MEMBER: Interfered with in Kuwait. Another is his real or [imputed] political opinion.
ADVISOR: That’s right. That, that, that’s, they’re the two claims.
MEMBER: In relation to Iran?
ADVISOR: Yes.
MEMBER: Because of his abuse of the official and the regime in the Embassy.
ADVISOR: That’s correct. And also the fact that also his refusal in itself, to undertake compulsory military service, in combination with that, abuse of …
MEMBER: Righto, now. I just have an issue with the word “refusal” because in the interview, the claimant today said he didn’t refuse, he just objected because he was Kuwaiti? Why should he go and spend two years of his life, so there was no refusal.
ADVISOR: No official refusal.
MEMBER: So, and there was no question of being a conscientious objector or anything else, it was just, why should I do that, I’m a resident of Kuwait.
ADVISOR: Mm.
MEMBER: I don’t live there, why should I do that? Now are you in fact relying on the fact that he didn’t enrol for service? Are you saying that because he didn’t enrol for service, that’s another manifestation of his political opposition to the state of Iran?
ADVISOR: Yes. That is my understanding of the submission, that, that his refusal, his… the fact that he didn’t, amounts to a refusal.
MEMBER: Right, so, I still have a problem with the word ‘refusal’.
ADVISOR: Yeah, okay.
MEMBER: And we need to sort this out.
ADVISOR: Okay.
MEMBER: Because when we spoke about it in the interview, it was apparent to me that he wasn’t refusing. He failed to enrol, he elected not to enrol,
ADVISOR: That’s right.
MEMBER: so that’s, in my view, that’s not a refusal, um, that’s an election that he’s made. A refusal would be something where has, you know, positively decided that he will not enrol, ar, for some reason, the only reason he has is, “well, I don’t want to, why should I?” I’ll put it down as a refusal if you like. I would characterise it as a failure to enrol or a … but I’ll consider it as a refusal.
ADVISOR: Would a failure not be more, a failure almost lacks intent. I mean, he does have a specific intent not to enrol.
MEMBER: Yep. Right, so another ground is his real or [imputed] political opinion in relation to the state of Iran because of his abuse Iran and the official in the embassy, the Iranian Embassy in Kuwait, and his refusal to enrol for military service, which could be taken by the Iranian authorities as an expression as opposition.
ADVISOR: That’s correct.
MEMBER: Alright. Anything else?
ADVISOR: No.
MEMBER: Okay. So in respect of those, Oh, yes there is, there’s his potential for mistreatment as a returning asylum seeker.
ADVISOR: Okay.
MEMBER: Isn’t that in the submission?
ADVISOR: No. It mentions his, the possibility of being perceived as a dissident by virtue of his activities outside Iran, but it doesn’t specifically refer to any failed asylum seeker claim. It mentions country information, that asylum seekers, how asylum seekers can be dealt with severely but it’s not listed as a claim.
MEMBER: So do you want to add it as a claim? Those who have sought asylum all be treated as opponents, or are you specifically telling me that he’s not relying on…
ADVISOR: … No, no, I’m not, I’m just going through the submissions that we’ve, the written submission that we’ve given. I suppose it would be something that I would need to consult with, him about.
MEMBER: Okay. I’m going to consider it as a ground. I think it arises from the information before me.
ADVISOR: Okay. No objection to that.
MEMBER: Okay. So having identifying that, what, what do you say is serious harm that gives rise to his fear?
ADVISOR: Okay, so this was the next concern. Sorry, the next on was regarding the incidence of persecution.
MEMBER: Yep.
ADVISOR: And then, then after that, we’ve got the serious harm.
MEMBER: Yep.
ADVISOR: So with regard to the third point that was raised, the incidence of persecution, so in point 13 A, it mentions the fact that threats have been made to him through his mother, and that he has been advise, that he has been blacklisted. Those are the … the reference to past incidences of persecution are those. Relate to those events. And the forms of serious harm…
MEMBER: … Hang on, so you’re saying that all of those, so in paragraph 10, the abuse and deprivation experienced, paragraph B, so I should accept the harm suffered to date amounts to persecution and C, I should acknowledge the past incidences of persecution. You’re saying that all those relates to the threats that have been made against him because he’s been blacklisted.
ADVISOR: Yes. Because this is, this is to do with the Iranian regime and the discriminatory persecution that they carry out towards perceived opponents.
MEMBER: Okay.
ADVISOR: Then the serious harm that was raised as the fourth concern, is identified at point 9, which is physical abuse and the temporary detention of a person. Just up at the top of the page. Oh, as well as, the increased punishment that he may receive.
MEMBER: Okay. So that’s potential physical harm.
ADVISOR: That’s right. And that, the likelihood of that is, is laid out in the country information that’s, that’s attached to that submission.
MEMBER: Should he return to Iran?
ADVISOR: That’s right.
MEMBER: And that’ll happen because he’s blacklisted and because of his treatment of the officials.
ADVISOR: That’s right. And also the other part being his … his intention to not enrol in military service.
MEMBER: Yeah, yeah. Now this brings us back to where we started from. So, paragraph 8, the penalty that the authorities would exact upon [the applicant] for his refusing to undertake his military, if required to undertake it given the authorities have not provided military discharge certificate or exemption certificate, would be exacerbated due to [the applicant] being recorded as a dissident by the staff at the Iranian Embassy in Kuwait. Now, what penalty do you say would be exacerbated? I accept your submission that if he were to return to Iran and he was in fact blacklisted, he may be detained and he may be mistreated. If I accept he’s blacklisted. But what penalty do you say would be exacerbated because he hasn’t undertaken his military service? The extra fourth months?
ADVISOR: Well, yes. I … this submission or my oral submission refer to any specific penalty but, given that there is a, you’ve pointed out that there is a difference between a person enrolling when they are meant to and when they don’t, that that situation would be exacerbated. That, that difference, sorry. And that that would result, that would amount to persecution.
MEMBER: Are you following this discussion, [the applicant]?
CLAIMANT: Yeah.
MEMBER: Do you need me to explain anything to you?
CLAIMANT: No.
MEMBER: Now I hasten to say just now, and I actually made sure that I said it at least twice, was that, if I accepted that he was blacklisted, so I haven’t made any, there’s no acceptance on my part that he is in fact blacklisted.”
The following makes clear that the applicant, through his representative, presented his claims in two distinct categories, Refugees Convention and Complementary Protection (T31 line 47 to T32 line 16):
“ADVISOR: Now the last concern was regarding the grounds for Complementary Protection.
MEMBER: Yep.
ADVISOR: Which are addressed in points 24-26.
MEMBER: Are you relying on your submission?
ADVISOR: Yes. Or the submission from the agency.
MEMBER: Yeah. What was it? 24 to …
ADVISOR: … 24 to 26. So he fears he will be detained and mistreated subject to serious physical abuse, and have his tongue cut out.
MEMBER: Yep.
ADVISOR: That as per point 25, these … above these forms of harm are properly characterised as constituting cruelly [inhuman] treatment, or degrading treatment.”
[Clearly the reference to “24 to 26” is a reference to the written submissions of 10 July 2012 (CB 127 to CB 128 and see above)].
Bearing in mind the direction provided by Dranichnikov and NABE (No 2), what can be said is that the Minister is correct to submit that at no time was any claim made by the applicant that the matter of military service in Iran was relevant to the criterion at s.36(2)(aa) of the Act.
The representative’s written submissions, confirmed at the hearing with the applicant and his representative, made clear that the only relevant claim to complementary protection was the matter of the incident at the Iranian Embassy in Kuwait, and its claimed consequences.
Nor, equally as importantly, can it be said that there was evidence from the applicant that the matter of military service in Iran, or the consequences of the applicant’s conduct in relation to that matter, went to the question of “significant harm”. In this sense it cannot be said that this matter can be considered a claim that clearly arose on the circumstances presented, in that context.
The claim that was expressly made in the context of significant harm was the incident at the Iranian Embassy in Kuwait, and the consequences that the applicant claimed flowed from this.
As the Minister submits, that claim was rejected by the reviewer as a matter of fact ([119] – [120] at CB 188):
“[119] I accept the claimant’s evidence that in 2008 he had attempted to obtain an exemption from military service from the Iranian Embassy in Kuwait, was then referred to the Ministry of Defence in Tehran about this exemption and then told to return to the Embassy in Kuwait. However, I do not accept the claimant’s evidence concerning an argument, or an altercation, with the Iranian officials in the Iranian Embassy, or his alleged abuse of the state of Iran at the Embassy, as a truthful account of the events that occurred at the time. I do not accept that officials told the claimant’s mother that he was on a blacklist and would be punished if he returned to Iran.
[120] Given the claimant’s previous history of providing false information in respect of his application for protection, the lack of any evidence in corroboration of these claims, and the general lack of plausibility surrounding the claims made about the behaviour of the embassy officials, I do not accept that the evidence concerning an argument in the Iranian Embassy is truthful. Further, I find that it is a manufactured account of the events designed to promote the application for protections, and as such, I reject it completely.”
Contrary to the applicant’s submissions now, the reviewer’s findings and conclusions, in this regard, were not dependant on any concept flowing from the Refugees Convention. The reviewer rejected the applicant’s claim here because he did not believe the applicant’s evidence. On what was before him, that conclusion was reasonably open (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). He gave reasons for this, probative of the evidence and the circumstances in which it was presented (see [119] – [120] at CB 188 and above).
The applicant relies on [137] (at CB 191, see above at [27]) of the reviewer’s reasons to submit, particularly with reference to ground one (although not exclusively), that the reviewer failed to apply the correct test at law.
It must be said that at first glance this paragraph is, as the Minister appropriately described it before the Court, “flirting with error”. I would go further and say that, on its face and its own, it plainly provides the basis for the applicant’s first ground.
However, it is the case, as the Minister also submits, that such “decision records” are to be read fairly. This includes a holistic reading and that the analysis be understood in context, not “with an eye keenly attuned to the perception of error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 at Brennan CJ and Toohey, McHugh and Gummow JJ at [30] citing Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286-287). Although, of course, such a reading should not excuse or ignore ambiguity (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9).
I agree with the Minister that [137] (at CB 191) must be read in context. It must, at the least, be read with [119] and [120] (at CB 188), and with the way in which the applicant’s claims and circumstances where presented to the reviewer. That is, what can be said to have been expressly claimed or clearly arose in the circumstances for consideration.
Here, as set out above, the only claim, relevantly, in light of the relevant requirements (Dranichnikov and NABE (No 2)) that the reviewer was obliged to consider in the context of complementary protection was the incident at the Iranian embassy and its claimed consequences.
As set out above, that claim was rejected at a factual level. There was no claim that remained from the applicant’s evidence, that fell within the obligation to consider (as set out in relevant authorities), that survived for consideration pursuant to s.36(2)(aa) of the Act (SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 774).
That understanding of the reviewer’s reasoning is further strengthened when regard is had to [101] (at CB 185) of the reasons. The reviewer plainly understood from the interview with the applicant and his representative that the extent of the applicant’s claims in relation to complementary protection was as set out in the representative’s written submissions. As noted above, this was the Embassy incident.
Turning to each of the grounds as stated in the application to the Court. Ground one asserts that the reviewer failed to apply the correct test at law. This is said to be because he “conflated” the relevant tests pursuant to s.36(2)(a) and s.36(2)(aa) of the Act, and that the findings are “bound up. The applicant relies on SZSFK to assert legal error.
The first response to this is to note the fair reading of [137] (at CB 191) set out above.
Second, the reviewer set out the relevant tests in unexceptional terms (see [6] at CB 174 to [14] at CB 175 and [15] at CB 175 to [17] at CB 176). There is nothing in the transcript of the interview to suggest the reviewer misunderstood the difference between the two tests or misled the applicant in this regard. Importantly, even in the impugned [137] (at CB 191), as clumsy as the reviewers expression is, the distinction between the two tests is expressly maintained (“serious harm amounting to persecution” and “a real risk of significant harm”).
Third, the applicant is not assisted by SZSFK. As I respectfully understand the reasoning in that case, the circumstances as presented, and accepted, by the relevant decision maker allowed an inference to be drawn that the decision maker had rejected the proposition that claims advanced by the applicant met the criterion in s.36(2)(a) of the Act for reasons specific to the Refugees Convention. The decision maker then came to a similar conclusion in relation to s.36(2)(aa) of the Act without distinguishing between “serious” and “significant” harm.
Importantly, that analysis, by the assessor in SZSFK, proceeded on the basis that past events claimed by the applicant had in fact occurred. Here, the only claim to fall within the obligation to consider under the complementary protection criterion was found not to have occurred as a matter of fact.
It may be that the applicant also may have sought to rely on SZQRB (at [246] – [248]), where their Honours identified the error in that case as one where the decision maker had assessed the applicant’s claims under the complementary protection criterion on a “more likely than not basis”, therefore, a higher standard of proof.
There is nothing in the reviewer’s reasons to suggest that he applied this test in the current case. As is set above, the test the reviewer applied was the “real risk that he will suffer any significant harm” ([137] at CB 191).
At ground two, the applicant asserts error on the part of the reviewer in that he failed to take into account a relevant consideration in the assessment under complementary protection. This was said to be that the applicant could suffer penalties for failing to register for military service.
As set out above, while this matter, including the broader matter of compulsory military service, was raised in the context of “persecution” under the Refugees Convention, it was not raised, nor did it arise for consideration (as that concept is understood in light of Dranichnikov and NABE (No 2)), under the complementary protection criterion.
The applicant now says his advisor squarely raised this as a matter for consideration, at least, at the interview. As the extracts from the transcript above reveal, that is the case. But, they were explicitly raised in the context of the Refugees Convention. When invited by the reviewer to provide any submissions at the interview in relation to complementary protection, the representative relied on the written submissions (albeit written by a different representative, but from the same firm of migration agents and solicitors) in relation to complementary protection, which did not advance this matter as a relevant consideration under that criterion. As set out above, the reviewer was not dealing with an unrepresented applicant. The representative at the interview was legally qualified and had experience in migration law. Given that there is plainly no evidence to the contrary, it must be assumed that the applicant’s representatives knew what they were doing in making the submissions on the applicant’s behalf.
In ground three, the applicant complains that the reviewer failed to address integers of his claims under the complementary protection provisions. In particular, he refers to the assessment record
at [122] – [123] (at CB 188).
Here the reviewer accepted the applicant’s evidence that he had not completed his military service and that he did not want to do so. Further, the reviewer noted the applicant’s representative’s submissions on this.
The reviewer dealt with this claim as it was put, and in the context it was put. He ultimately found that the applicant did not have a
well-founded fear of persecution under the Refugees Convention on the basis of his failure to register for military service and the related integers of this claim (see [128] at CB 189).
The applicant argues that the assessor failed to consider this claim under the complementary protection criterion. For the reasons set out above, he was not required to do so. As the Minister submits, to argue that the reviewer should have (as the applicant now argues) is to fall into that very error that the applicant seeks to attach to the reviewer. Namely, to confuse the separate criteria at ss.36(2)(a) and (aa), and the claims put in respect of each of those.
Before the Court, the applicant characterised a core aspect of the Minister’s submissions (the distinction in the presentation of the claims between the Refugees Convention and complementary protection) as giving rise to a “fundamental paradox”.
At best, I understood this to be an attempt to argue that the applicant was at some particular disadvantage before the reviewer due to a number of “personal” factors.
This submission does not assist the applicant. Just how the applicant’s claimed vulnerability, or any unidentified language difficulties reveal legal error on the part of the reviewer was not explained. It also ignores the fact that the applicant was represented throughout the process by an accredited specialist in migration law who, on any reading of the transcript of the interview, had no difficulty with the English language.
Conclusion
The applicant’s grounds are not made out. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 28 November 2013
2
18
2