SZSPG v Minister for Immigration
[2013] FCCA 2030
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSPG v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2030 |
| Catchwords: MIGRATION – Application for review of Independent Merits Reviewer – alleged failure by the reviewer to consider a claim – whether applicant denied procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 411, 412, 414, 476 |
| Plaintiff M61/2010E v Commonwealth of Australia; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) |
| Applicant: | SZSPG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ANTONY SACHS, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 319 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 October 2013 |
| Date of Last Submission: | 1 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Andelman |
| Solicitors for the Applicant: | Carroll & O'Dea Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 20 February 2013 and amended on 5 June 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 319 of 2013
| SZSPG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ANTONY SACHS, IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 20 February 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 5 June 2013, seeking review of the recommendation by the second respondent, Antony Sachs, in his capacity as Independent Protection Merits Reviewer (“the reviewer”), to the first respondent Minister, that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention,[1] or otherwise did not meet the relevant requirements to be owed protection by Australia.
[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; M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 (“M61/M69”).
Background
The applicant is a citizen of Iran (CB 3) who arrived in Australia as an “Irregular Maritime Arrival” on 23 October 2011. Such persons are not able to apply for a protection visa. However, the Minister has created a process to enable a recommendation (with a review) to be made to him as to whether such persons are owed protection by Australia.
The applicant sought a “Protection Obligations Determination” (“POD”) (CB 21 to CB 94). Included in the application was a Statutory Declaration made on 6 January 2012, setting out the applicant’s claims to protection (CB 26 to CB 28). These can be summarised as follows:
1)The applicant claimed to fear harm from “plain clothed officers” or “Basij” (CB 26). He had previously been harmed by the “Basij” on two occasions. On the first occasion he was not sure of the reason, however he “speculated” it was because of his clothes (CB 26.5). On the second occasion, the “Basij” asked him why he “did not conform to the Islamic dress code” and then proceeded to “beat” him in front of a crowd and detained him for a number of hours in a “container”. He was released when he agreed to sign a document which stated that he “was not to dress or behave in a manner contrary to Islamic laws” (CB 27.4).
2)Further, after his arrival in Australia he heard that “they” had attacked his house and, as a result, his mother had passed away from a heart attack (CB 28.3).
3)He feared that the “Basij” would harm him on his return (CB 27.8).
Also included with the applicant’s POD were submissions provided by the applicant’s “IAAAS” provider outlining relevant country information (CB 83 to CB 94).
The applicant attended an interview with a departmental officer on 8 January 2012. On 24 February 2012, the departmental officer was not satisfied that the “essential and significant reason the [applicant] fears harm is for one of the Refugees Convention reasons” (CB 102.7).
Independent Protection Assessment
Following the “adverse” POD assessment the applicant’s matter was “…automatically referred for [an] Independent Protection Assessment” (“IPA”), which was to be conducted by Mr A. Sachs (“the reviewer”) (see CB 103.7).
The applicant’s representatives provided further submissions to the reviewer on 23 May 2012 (CB 108 to CB 144). In these submissions they drew a connection between “the way he dressed” and his status, if returned, as a “failed asylum seeker and returnee from a Western Country”, and an “imputed political opinion” which could give rise to persecution. Further, the representatives submitted that the applicant was a member of a particular social group, “as a failed asylum seeker and returnee from a Western country” and “as a person who has chosen to live a lifestyle that is incompatible with Islamic law and culture” (CB 109.7). Even further, the representatives submitted that the applicant fell within the constraints of the complementary protection criterion at s.36(2)(aa) of the Act. The representatives submitted that the applicant would face “significant harm” if returned to Iran.
On 29 May 2012, the applicant was invited, by email sent to his representatives, to an interview with the reviewer (CB 145). The applicant attended on 15 June 2012 ([20] at CB 153). On 26 September 2012 the applicant was informed, by email sent to his representatives, of the outcome of the IPA (CB 147).
The reviewer found that the applicant did not meet the criteria for the grounds of a protection visa, and therefore recommended that he not be recognised as a person to whom Australia has protection obligations.
The reviewer held “reservations about the plausibility of some aspects” of the applicant’s claims. These “reservations” centred on the claimed “second assault” by the “Basij”. Further, the reviewer found that the inconsistencies in the applicant’s “account of his departure from Iran… caused [him] to doubt the general credibility of the [applicant]”. Yet, the reviewer “after much consideration” concluded that his doubts “might be misplaced”, so accepted the applicant’s factual account of past events ([83] at CB 166 to [87] at CB 167).
However, when the reviewer applied his factual findings to the definition of a “refugee”, he found that the applicant had “no political opinion, nor political profile” ([93] at CB 167), and found that the applicant was “not of interest to the Iranian authorities” ([96] at CB 168).
Further, on the claim of fearing harm as a “returned asylum seeker”, the reviewer found that the applicant did not have a “political profile or record”, and that the applicant had departed Iran legally and “with ease” ([100] at CB 168). The reviewer “inferred” from country information that “failed asylum seekers with no other feature to draw their attention to authorities (such as an adverse political or religious profile)” would not face interrogation on their return to Iran ([102] at CB 168).
Even further, the reviewer found that, while it was “possible” that the applicant would be questioned on return to Iran, he was “not satisfied” that the applicant would “be seriously harmed during or after questioning” ([103] at CB 169). Therefore, the reviewer found that the applicant did “not face a real chance of harm by reason of his membership of a particular social group” ([104] at CB 169).
The reviewer considered the applicant’s claims as they related to “religious views”, and his choice “to live a lifestyle incompatible with Islamic law and culture” (CB 109.7). The reviewer found that the “public morality laws” were of a “general application” and being subject to them was not “persecution”, or “persecution for a convention reason” ([108] at CB 169).
Further, the reviewer concluded that the applicant did not meet the criterion for complementary protection. The reviewer found that ([117] ‑ [118] at CB 170):
“[117] I accept that the claimant may be questioned on return, but there is no evidence before me to suggest that the claimant would be tortured, or suffer cruel or inhuman treatment or punishment; or degrading treatment or punishment whilst being questioned or in the foreseeable future in Iran. There are no substantial grounds for believing there is a real risk he would be treated in this way and I find that any harm he may face would not amount to significant harm.
[118] Taking the claims and evidence as a whole, I find that there are no 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 that he will suffer significant harm.”
Application to the Court
The application to the Court, amended on 5 June 2013, is in the following terms:
“That the decision of the second respondent (the reviewer) was affected by legal error in that:
1. The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information which was credible, relevant and significant and from which the reviewer drew conclusions adverse to the applicant’s claims.
Particulars:
(a) The substance of the information is in [102] of the statement of reasons of the second respondent, “that failed asylum seekers with no other features to draw their attention to the authorities (such as adverse political or religious profile) would face no more than interrogation upon their return.”
(b) The reviewer did not put the substance of the information relied upon to the applicant either in the course of the review or at any other time prior to the recommendation.
2. The second respondent (the reviewer) drew a false distinction between returnees being subjected to ill treatment before and after the election in Iran or those with or without a political record in circumstances where that distinction was not supported by country information.
Particulars
The substance of the conclusion is in [100] of statement of reasons of the second respondent, “I accept on the face of it, the country information supports the proposition that a failed asylum seeker who has a political record does face a real chance of serious harm upon return. However, I have found that the claimant was not arrested or detained during the post-election protests, and does not a have a political profile or record.”
3. The second respondent (the reviewer) failed to consider a substantial claim and information put forward by the applicant.
Particulars
The substance of the conclusions in [117] and [118] of statement of reasons of the second respondent, that there was no evidence as to significant harm in foreseeable future.
An unfortunate feature in the presentation of the applicant’s grounds was that the submissions departed from the grounds pleaded even after the “later” amendment of the grounds and particulars. I note the first respondent’s comments during the hearing regarding the requirement for leave for the applicant to further amend the amended application (for example, to raise the issue of “harassment”, see further below).
It appears that, at some time prior to the hearing before the Court, the Minister sought further and better particulars in relation to the applicant’s grounds and that the applicant’s solicitors responded in relation to grounds two and three.
It was not clear if the applicant sought to tender this response in these proceedings. The particulars did not form part of the further amended application. Nonetheless, the matters raised by the applicant in those particulars appeared in his various submissions before the Court. References in this judgment to “Exhibit 2” are to the latter from the applicant’s solicitors to the Minister’s solicitors. Although toward the end of the hearing the applicant advised that he did not press the “further particulars”, I understand this to be a reference to “Exhibit 2” as such, because he had already “pressed” and relied on various parts of it in making his arguments, particularly in reference to grounds two and three.
I have endeavoured to deal with all of the complaints presented by the applicant.
In addition to the Court Book, I have before me, the applicant’s written submissions, the affidavit of Ms Beryl Fitzhenry of 6 June 2013, the affidavit of Ms Lara Jane Piercy of 17 September 2013 and two volumes of Exhibits to the affidavits (LJP1 – Volume 1 and Volume 2). I note the Minister’s objection to parts of those Exhibits. I also note “Exhibit 2”, which was ultimately not pressed (see [130] below).
Consideration: Ground One - Part One
Ground one asserts a failure by the reviewer to afford procedural fairness to the applicant in two ways. The first relates to the reviewer’s finding concerning the ‘harassment” of the applicant in Iran. The second is derived from the reviewer’s consideration and finding in relation to failed asylum seekers returning to Iran.
It is important to note that, before the Court, the applicant’s submissions strayed from the particulars as they were pleaded. In any event, the applicant relies upon the transcript of the interview with the reviewer annexed to the affidavit of Ms Fitzhenry (“T”) at T91.5 to T98. The submission was that at this part of the transcript the applicant gave notice to the reviewer that he had been subjected to physical harm by the “Basij” (see T91.5).
1)Further at T92:
“Interpreter (the applicant): We were in constant fear and that was the main torture”
2)At T93:
“Mainly bruising on the face, basically head or other different parts of the body with the sticks that they have.”
3)At T94:
“He pushed me on my head and because my head was in front of the window of the supermarket, to prevent my head to be hurt with the glass I brought my hand in front of my head and then the window broke and that’s how I got my hand injured.”
4)At T95:
“AS [the reviewer]: That was the scar you were showing me? It’s an impressive scar.”
Before the Court, the applicant’s submissions sought to emphasise that the applicant’s evidence to the reviewer was that he had suffered actual, physical, emotional and mental harm at the hands of the “Basij” to the extent that he still carried a physical scar from these events (see further below at [42]).
The applicant sought to contrast this with the reviewer’s characterisation in his relevant finding that the applicant was “harassed twice by the Basij” ([87] at CB 167). Further, the reviewer was said to have understood the applicant’s evidence as, “I note that the claimant claims he has been harassed by the Basij because of his appearance, which it is claimed is linked to an imputed political opinion” ([94] at CB 168 and [110] at CB 169):
“[110] I have also considered this claim in the context of the punishment inflicted on people who break public morality laws or even identified in public with bad hijab. Accepting that the punishment for such ‘offences’ includes fines and other forms of punishment (and I note that the claimant said he was harassed because of the clothes he wore and because he was walking with his girlfriend), I do not consider that any harm is inflicted by reason of a convention ground, as I am not satisfied the laws are implemented or enforced in a discriminatory manner. Rather, the harm is inflicted as a punishment for what I have found to be a law of general application.”
The applicant further submitted a comparison of the reviewer’s report of one part of the interview with the transcript. When compared to the transcript, the applicant submitted the reviewer’s report reveals that the reviewer did not properly characterise the applicant’s evidence relevant to the matter of “harassment” ([32] at CB 156):
“I asked the claimant to tell me about the incidents with the Basij, and he explained that the first incident happened about two years ago. He was out with his girlfriend in Darakeh, north of Tehran. The claimant stated that he and his girlfriend were questioned by the Basij about being together, and about his hair and clothes. The Basij took them to the Basij centre, where they were detained for 3-4 hours. The claimant ‘feared he would be tortured’, but ‘only got a few bruises’. The Basij threatened to tell both the claimant’s and his girlfriend’s parents, which greatly worried the claimant. They did not want their respective parents to meet them for the first time at the Basij centre. The claimant signed an agreement not to repeat his behaviour.”
This is to be read with T92.2:
“We were in constant fear and that was the main torture…”
That is, when the applicant said that it was “torture” to be in fear, the reviewer reported this as that he feared torture from the “Basij”.
In essence, I understand the submission to be that this was one example of the reviewer’s misunderstanding, or misrepresentation, of the applicant’s evidence. The view taken by the reviewer of this evidence was to characterise it as “harassment”, yet what the applicant claimed was something “worse”. That view by the reviewer, and the consequent finding, was not put to the applicant for comment. This was the alleged failure of procedural fairness.
The applicant referred the Court to the Minister’s Guidelines contained in Volume 2 of the Exhibit referred to in the affidavit of Ms Piercy.
1)In particular, page 609:
“…[T]he reviewer/assessor will ensure the claimant’s agent is invited to attend any interview at which the claimant is present; and
the reviewer/assessor will provide the claimant with an opportunity to comment on adverse information which the reviewer/assessor considers may bear adversely upon the claims made.”
2)Further, at page 612:
“As required by common law rules of procedural fairness, reviewers/assessors must invite claimants to comment on any adverse information. That is, any information which the reviewer/assessor considers may bear negatively upon the claims made. The request for comments may be put to the claimant in writing or orally at interview. If such information is put to the claimant, the reviewer/assessor should explain the relevance of the information.”
The gravamen of the applicant’s submission on this point was that the reviewer did not put to the applicant, at any time during the conduct of the assessment, that he considered making a finding that the applicant had been “merely harassed”. That is, that he was not minded to believe the applicant’s evidence that he had been (physically) assaulted.
The applicant sought to rely on the statement of common law principles as they appeared in the Minister’s Guidelines (as referred to variously in the Exhibit to the affidavit of Ms Piercy). Of greater assistance is to have to direct regard to relevant authorities, and how the Courts have articulated relevant principles, rather than what is set out in one part of the Minister’s Guidelines.
This is particularly important in the current case given that those parts of the Minister’s Guidelines specifically referred to, and relied on, by the applicant before the Court were concerned with “information” and “adverse information” rather than what appears to be the applicant’s grievance before the Court. That is, that the reviewer did not put his “thought processes” to the applicant for comment.
In this regard, as a general proposition, the reviewer was not required to put to the applicant what he made of his evidence. That is, his thought processes about the evidence, during the course of conducting the assessment. (See, for example, Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ and [85] ‑ [86]. See also the reference to Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 (“Alphaone”) at 592, WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36] per French J (as he then was); WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (“WACO”) at [46]).
This is qualified, however, by the requirement that the reviewer put the applicant on notice of any adverse conclusion which would not obviously be open on the material given by the applicant, or known to the applicant, or was not an obvious and natural evaluation of that material (NAEQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 482, Kioa v West (1985) 159 CLR 550 at 582 per Mason J, WACO at [46], Alphaone at [28]; Somaghi v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108–109, Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31], VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804 and S154/2002 (2003) 201 ALR 437 at [48] and [86]).
As was made clear in Refugee Review Tribunal, Re; Ex parteAala (2000) 204 CLR 82 (“Aala”) at [78] per Gaudron and Gummow JJ, with reference to Mahon v Air New Zealand Ltd [1984] AC 808 at 821, an applicant should not be left “in the dark” when there is a chance that an adverse finding would be made in circumstances where that deprives the applicant of the opportunity to provide further evidence in relation to that finding. McHugh J (although ultimately in the minority in that case), in a similar vein, stated (at [100]):
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”
The resolution of the applicant’s ground requires consideration of the relevant circumstances of this case as against these principles, not necessarily what is contained in the Minister’s Guidelines referring to “information”.
Before the Court, the applicant emphasised that the reviewer proceeded on the basis that the applicant had said that he was “merely” harassed by the “Basij”. On balance, I did not understand this to be put as an actual quote of what the reviewer stated, or found, but rather a descriptive emphasis to characterise the reviewer’s understanding and subsequent reasoning.
That is, the applicant argued, when relying on the ordinary, “dictionary” meaning of “harassment”, that there is a quantitative difference, a difference of degree, between “merely” being harassed, as opposed to actually being assaulted, and suffering physical and mental harm.
The difficulty for the applicant now in this regard commences with submissions made by his representatives on his behalf to the reviewer (at CB 109.7):
“We submit that the Applicant will be persecuted upon his arrival in Iran based on his membership of a particular social group, namely, as a failed asylum seeker and returnee from a Western country, and as a person who has chosen to live a lifestyle that is incompatible with Islamic law and culture.
We note that the Applicant has instructed that the Basij targeted and harassed him on many occasions because he did not conform with the strict Islamic dress code. He instructs that he was detained and beaten as a result and on one occasion held in a container for 5-6 hours. The Applicant instructs that he suffered this type of treatment on a frequent basis prior to the incident with his girlfriend in July 2011, which ultimately resulted in his departure from Iran.
Furthermore, given he has travelled overseas and sought protection in a western country, he may be suspected of being a spy and working for the foreign forces against the regime. The Applicant has been in Australia since late 2011. Despite having being in Australia for some time now, we note it is not the length of stay overseas which is of primary concern, but the mere fact that the Applicant has entered and sought protection in a western country. The Applicant will be stopped and targeted when he returns to Iran, given he has been outside Iran, especially to a western nation such as Australia. Based on this the Applicant fears that he will be harassed should he be returned to Iran.”
[Emphasis Added.]
It is clear that, in this context (while the representative plainly stated that the applicant was “claiming” to have been “detained and beaten”), the word “harassed” was used as a general descriptor of the idea that the applicant had come to the adverse attention of the “Basij”, and that they had engaged with him.
Further, those parts of the transcript of the interview with the reviewer, relied upon by the applicant now, must be viewed not selectively, but in context of the whole in which they appear. (See generally, T90 to T99).
The applicant made reference at the interview to suffering physical harm at the hands of the “Basij” in relation to, at least, two incidents and the reviewer clearly responded to the claims of actual physical harm. See, for example:
1)T91.9:
“AS: Were you injured?”
2)T92.8
“AS: I think I understand. You said that they hurt you and smashed you?”
3)T92.9:
“AS: Were you injured?”
4)T93.2:
“AS: Mainly bruising on the face basically head or other different parts of the body with the sticks that they have.”
5)T93.7:
“AS: Okay. I am wondering if there were any other incidents with the Basij where they hurt or grabbed you. I was just wonder if there was any other conflict with the Basij?”
6)T94.6:
“Interpreter: After he slapped me my face, he put two hands on the in front of the shop because he wanted to search me. He put my hands up…
AS: What do you mean? On the wall…
Interpreter: That’s how he…
AS: Yes I understand.”
7)T95.1:
“AS: That was the scar you were showing me? It’s an impressive scar.”
8)T95.6
“AS: Just let me get this right, you escaped and got a taxi. Was that easy to get a taxi, there would have been a lot of blood? Tell me about what happened with the taxi?”
9)After a short break the reviewer returned to the matter of the incident, the physical harm the applicant claimed and his claimed hospital treatment (T114 to T118).
10)Importantly, after another short break, the reviewer put a number of concerns that he had with the applicant’s evidence to the applicant. These included matters relating to the incidents of harm from the “Basij”, and the applicant’s claimed treatment at hospital (T122). In terms of the current assertion of a failure of procedural fairness, generally, I note the applicant told the reviewer (at T123.5):
“Interpreter: I am very happy that you are asking your concerns, that you are giving me the opportunity to defend myself.”
The reviewer’s record must be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA; (1996) 185 CLR 259 (“Wu Shan Liang”)). Such a reading, if not a plain reading, of both the reviewer’s account of the interview, and his findings and reasons, reveals that he did not misunderstand, or incorrectly characterise, the applicant’s claims. Further, in essence, the applicant’s charge of a failure of procedural fairness emanates from the alleged failure by the reviewer to put to the applicant the view he had taken of his claim, which was not a view available to him, or was a misunderstanding of what the applicant said.
I agree with the Minister, that the terms “harassment” and “assaulted” were used interchangeably by the reviewer in his report of the interview. See for example, “…because he had been harassed and assaulted twice…” ([31] at CB 156).
In relation to the “first incident” (putting to one side the matter of “torture” for the moment), for example, the transcript of the interview reveals that the applicant was specifically asked “Were you injured?” (T92.9). The response was “[m]ainly bruising on the face basically head or other different parts of the body with sticks that they have” (T93.2).
It is important to note here a number of complaints that emerged in oral submissions before the Court. One impugned part of the reviewer’s report is where the reviewer, in reporting on the applicant’s evidence, put in “single” quotation marks “ ‘[o]nly got a few bruises’ ” ([32] at CB 156). The applicant now says that, when regard is had to the transcript of the interview, he did not use these words in such a way, and that the reviewer purported to quote him as to something he did not say. (I note that what he actually said is as recorded at [42] above).
The Minister argued that there is a stylistic difference in the use by the reviewer of “single” quotation marks (as at [32] at CB 156) which he compared with the use of “double” quotation marks and “indentations” elsewhere in the assessment record (see for example [38], [44] and [45] at CB 157). The significance was that in the latter instances, the reviewer was purporting to quote the applicant’s actual words, while in the former (as at [32] at CB 156) he was purporting to report the gist of what the applicant said. On a fair reading, such an understanding is allowable. However, for the reasons set out below, the applicant’s complaint is not made out even if the reviewer can be said to have used these quotation marks in a different way.
As referred to above, the applicant also asserts that the reviewer misunderstood his evidence regarding “torture”. The transcript of the hearing reveals that the applicant said: “We were in constant fear and that was the main torture” (T92.2) (that is, the constant fear was the “torture”). The applicant says the reviewer reported this as being that he “ ‘feared he would be tortured’ ” ([32] at CB 156).
While there is some scope for ambiguity, in the context of the whole of his evidence, it can be accepted that what the applicant mentioned at T92.2 was that the uncertainty of what would occur in detention generated fear and that, in itself, was “torture”.
Even on the basis that the meaning of the applicant’s words was as he now says, it is difficult how the reviewer’s report of this part of the interview (that the applicant’s was fearful of physical, as opposed to mental torture), led to any assessment, or view, of the applicant’s claims such as to ground the current complaint at ground one. This is because the reviewer ultimately accepted that both incidents involving the applicant and the “Basij” had in fact occurred.
In any event, the applicant’s focus and attack on the use of the word “harass” immediately evokes the High Court’s direction in Wu Shan Liang at [30] that “…the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. It must be noted, that a fair reading of the report, in light of Wu Shan Liang, does not allow for any ambiguity to be excused or ignored.
In my view, on a plain reading, and certainly on a fair reading, the reviewer used this term (“harassment”) as a general descriptor for the idea that the applicant had come to the actual attention of the “Basij” on at least two occasions. The first, as it was reported at [32] of the reviewer’s assessment record (CB 156), was when the applicant and his girlfriend were assaulted and initially questioned about being together in public and about his hair and clothes. The second, as reported at [33] (CB 156), was when they were again approached by the “Basij” at a later time.
In his report of those incidents in his assessment record, the reviewer accurately reflected the essence, and sense, of the applicant’s evidence. With reference to the transcript of the interview, it was consistent with how the applicant put his claims to the reviewer. It is important to note that in his findings the reviewer found that the applicant had been “harassed by the Basij on two occasions as described by the applicant, and that he had sustained injuries on the second occasion” ([89] at CB 167).
In relation to the first incident, the reviewer’s description of his understanding of the applicant’s evidence as having suffered “a few bruises”, is reflective of the evidence the applicant gave of the injuries. (For example, see, items 3 and 4 at [42] above.)
In relation to the second incident, the essence of the applicant’s evidence as set out at T94 to T95 is accurately reflected in [34] (at CB 156) to [42] (at CB 157). The reviewer’s concerns, as initially expressed in the transcript, are also accurately reflected there.
It is tolerably clear that, as the Minister submits, the use of such words and phrases as “second assault” ([86] at CB 167) and “injuries sustained” ([89] at CB 167) show that the reviewer understood and considered the applicant’s claims in the context of having sustained physical injury, not the construction of the word “harassed” asserted by the applicant.
The reviewer did not misunderstand, or take a different view of the applicant’s evidence, to the view that was reasonably open to the reviewer to take on the material before him. Therefore, the factual basis for the applicant’s claimed denial of procedural fairness is not made out.
Consideration: Ground One - Part Two
The “second” aspect of ground one, that is the sole aspect actually pleaded, asserts that the applicant was denied procedural fairness because the substance of certain information relied upon by the reviewer was not put to him for comment.
The applicant draws attention to [101] of the reviewer’s assessment record (at CB 168):
“As to being identified as a failed asylum seeker, there is no evidence before me to suggest that the Iranian authorities would be aware of the claimant has claimed refugee status in Australia. Noting the manner of the claimant’s legal and trouble free departure from Iran, it would be open to him to return to Iran the same way without other than routine scrutiny. However, I have also considered his claim on the basis the authorities would assume he had applied for asylum abroad, or if he were to be returned to Iran without the usual identity documents.”
The applicant says that the reviewer relied on country information that failed asylum seekers who did not, for example, have an adverse political or religious profile drawn to the Iranian authorities’ attention would face no more than interrogation upon return to Iran and that this was not put to the applicant. He was therefore denied procedural fairness.
The applicant submitted that the reviewer did put “something like” what he should have, to the applicant (at T126.8):
“AS: Even if the Authorities in Iran assume you have applied for asylum…Or if you return to Iran without your identity documents…You, it’s possible that you may only be questioned on upon your return…I say this because you don’t have a political profile or record…I just wonder if you have any comment about that?”
However, the thrust of the applicant’s complaint is that what the reviewer found at [102] (at CB 168), that failed asylum seekers with no other profile would face no more than interrogation on return, was based on country information, and that first, what appears in the transcript was “insufficient” to discharge the procedural fairness obligation, and second, the reviewer made no mention of the relevant country information to the applicant.
I understood this submission to have a further number of strands of argument. First, what was relevantly put at the interview was put as a question. That is, what was said was posed as a possibility rather than, for example, a more “certain” reference to the existence of more “certain” country information. This, the applicant submits, left the “question” open.
Although not clearly articulated as such, I understood the complaint to be that what the reviewer said lacked “substance” relevant to the subsequent finding such that the applicant was denied the opportunity to understand what was put against him and to be able to respond to it.
Second, at [102] (at CB 168) the reviewer referred to “examples cited by Iran Human Rights and Amnesty International above”. The reference to “above” can only be understood, in context, as the extracted understanding of country information, as set out in the sources as at [70] at CB 163 and [72] at CB 164 of the reviewer’s record (under the heading of “Country Information”…“Treatment of Failed Asylum Seekers”) ([102] at CB 163):
“In relation to the examples cited by Iran Human Rights and Amnesty International above, I consider these are examples of failed asylum seekers with political profiles coming to the attention of the Iranian authorities upon return. I infer from this country information that failed asylum seekers with no other feature to draw their attention to the authorities (such as an adverse political or religious profile) would face no more than interrogation upon their return.”
The Minister proposes two separate and independent arguments in his response. First, the impugned finding at [102] (at CB 168 see [65] above, the second sentence) was not the “primary” basis for the reviewer’s rejection of the applicant’s claim that he feared harm because he was a failed asylum seeker returning to Iran.
It is important to note that [102] (at CB 168) is placed in the part of the reviewer’s assessment record dealing with the Refugees Convention criterion. In this regard, in written submissions to the reviewer, the applicant’s representative explained this claim as being part of the “persecution” arising from “Membership of a Particular Social Group” (see CB 109, see also [39] above).
The reviewer’s relevant analysis is at [100] (CB 168) to [104] (CB 169) ([101] and [102] are repeated for ease of comprehension):
“[100] I accept on the face of it, the country information supports the proposition that a failed asylum seeker who has a political record does face a real chance of serious harm upon return. However, I have found that the claimant was not arrested or detained during the post-election protests, and does not have a political profile or record. Furthermore, I note that the claimant used a passport in his own name and departed Iran with ease through Imam Khomeini Airport, both factors that reinforce my conclusion that he has no political profile and is of no interest to the Iranian authorities.
[101] As to being identified as a failed asylum seeker, there is no evidence before me to suggest that the Iranian authorities would be aware of the claimant has claimed refugee status in Australia. Noting the manner of the claimant’s legal and trouble free departure from Iran, it would be open to him to return to Iran the same way without other than routine scrutiny. However, I have also considered his claim on the basis the authorities would assume he had applied for asylum abroad, or if he were to be returned to Iran without the usual identity documents.
[102] In relation to the examples cited by Iran Human Rights Watch and Amnesty International above, I consider these are examples of failed asylum seekers with political profiles coming to the attention of the Iranian authorities upon return. I infer from this country information that failed asylum seekers with no other feature to draw their attention to the authorities (such as an adverse political or religious profile) would face no more than interrogation upon their return.
[103] While it is possible the claimant will be questioned on return to Iran if he lacked normal identity documents or because he is perceived to be a failed asylum seeker, I am not satisfied there is a real chance he would be seriously harmed during or after questioning. Therefore I am not satisfied that such questioning would amount to persecution for a Convention reason, and find that it would not.
[104] I therefore find that the claimant does not face a real chance of harm by reason of his membership of a particular social group of failed asylum seekers.”
I agree with the Minister that when read, at least, fairly (although a plain reading is sufficient), the reviewer found adversely to the applicant’s claim to fear harm because he would be a returning failed asylum seeker, on two separate bases.
The first, as set out at [100] (at CB 168)and the first two sentences of [101] (at CB 168), was not impugned in relation to this particular, by the applicant before the Court. The reasoning here is that the applicant did not have a political profile or record, the reviewer found he had not been arrested or detained during post-election protests , and used a passport in his own name when he departed Iran “with ease” ([100] at CB 168). The reviewer reasoned he would not face serious harm on return to Iran because country information supported the proposition that only returnees with a political record faced serious harm on return. Further, there was “no evidence” to suggest the Iranian authorities were aware that the applicant had sought protection in Australia. The reviewer reasoned he could re-enter Iran in the same “trouble free” manner in which he had departed ([101] at CB 168).
I agree with the Minister that that, on its own, is sufficient to deal with the applicant’s claim, as made, and as explained by his representative. The Minister relies on VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [31]-[33] per North J (“VBAP”), for the proposition that, in respect of this particular claim, the relevant conclusion was supported by reasoning and findings entire, separate and independent of the reasoning impugned by the applicant. The circumstances found in VBAP are in that sense analogous to the current situation, and this provides the complete answer to the “second part” of the applicant’s ground one.
In any event, I also agree with the Minister that the impugned finding at [102] (at CB 168), and the reference to the country information there, does not reveal a denial of procedural fairness as the applicant now alleges.
First, I should note that, on at least a fair reading, the last sentence at [101] (at CB 168 see [68] above) should be read as the “explanatory” introduction to [102] (at CB 168). That is, it explains the context of what the reviewer was saying at [102] (at CB 168).
The reviewer’s findings at [100] – [101] (at CB 168) are absent doubt. In these circumstances it is not entirely clear why, after having concluded that the authorities would not be aware of the applicant’s asylum claim in Australia, the reviewer then went on to consider an alternative scenario. That is, that they would “assume he had applied for asylum abroad”.
Second, having said that, however, it is clear that with the use of the words “…[h]owever, I have also considered…” (as at [101] at CB 168) the reviewer was considering an alternative or different scenario to that first considered and dealt with. It may be that the reviewer felt compelled to do so because the representative had referred to specific country information in support of that alternative scenario, to what he had actually otherwise found.
However, it is also clear that the country information referred to at [102] (at CB 168)was information provided by the applicant himself, through his representative, to the reviewer. The reviewer makes reference at [102] to “…the examples cited by Iran Human Rights Watch and Amnesty International above…”. The reference to “above” points to that country information referred to at [70] (at CB 163) to [73] (at CB 164) of the reviewer’s assessment record.
The substance of the information extracted in the reviewer’s assessment record was directed to a number of actual cases of failed asylum seeker returnees from Western countries ([70] at CB 163 and [72] at CB 164) and certain propositions derived from these case studies. The thrust of these propositions was that in certain circumstances the Iranian authorities may impute returnees with a political opinion (at [71] at CB 163), and that there is no evidence of “a widespread pattern of maltreatment” (at [73] at CB 164). The references at [102] (at CB 168) to “Iran Human Rights” and “Amnesty International” deal with the latter. That is, individual cases.
In the applicant’s submissions to the reviewer sent by his representative there are references to both sources. (“May 2011 Amnesty International” and “March 2011 released by Iran Human Rights” at CB 117. See also footnote 7 at CB 164 of the reviewer’s assessment record and footnote 5 at CB 163 and Volume 1 of the Exhibits to Ms Piercy’s affidavit at pages 153-154: Iran Human Rights Website).
The references to these sources, and the subject matter raised in the representative’s submissions to the reviewer, reveal that the applicant (by his representative) had had regard to the same material referred to by the reviewer prior to the interview.
Having regard to the authorities referred to above, it cannot be said that the applicant (or his representative) did not know of the substance of the information, nor did not have access to it, such that it could be said, in that sense, that the applicant did not know the case against him.
However, it must be noted that the applicant’s actual, articulated complaint before the Court, as best as it could be understood on this point, and at best for the applicant’s case before the Court in light of relevant authorities, was that the breach of procedural fairness occurred because the applicant was not on notice of the use that the reviewer made of this material in reaching a conclusion adverse to the applicant’s interest.
Here it is important to note just what the reviewer’s conclusion actually was ([102] at CB 168):
“…I infer from this country information that failed asylum seekers with no other feature to draw their attention to the authorities (such as an adverse political or religious profile) would face no more than interrogation upon their return…”
Here a reading of the transcript of the interview at T122.4 (AS: “I have approximately five concerns”), when read with what is set out at T125 to T126, reveals that the elements in the reviewer’s analysis leading to the impugned inference at [102] (at CB 168)were all discussed with the applicant at the interview:
1)At T125.5:
“AS: …And then you left Iran on 29 July…You left using your own passport…And you easily departed through Elkomani Airport… This suggests that you are of no political interest to the Iranian Authorities…You may be, but not political interest.”
2)Further, at T126.2:
“…the Iranian Authorities may not be aware you have claimed refugee status in Australia?”
A holistic reading of this part of the transcript, and when read in context of the “concerns” put to applicant, reveals that the applicant was put on notice not only of the country information (which he knew about before the interview), but also the possible use the reviewer may make of it and the conclusions he may reach given his concerns.
The transcript also reveals the applicant was asked, “I just wonder if you have any comment about that?” (T126.9). Both the applicant and his representatives responded by asserting that he would be harmed on return to Iran and required protection.
In all, therefore, the applicant (and his representative) had knowledge of the substance of relevant country information, was put on notice of the how this may be specifically used adversely to his interests, and he was given the opportunity to respond. No failure of procedural fairness is evident in these circumstances.
For the sake of completeness, I also agree with the Minister that the applicant’s “suggestion” now that every item of country information considered by the reviewer (“known to the reviewer” see [38] of the Minister’s written submissions) should have been put to the applicant must be rejected. The Minister’s reference to Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [30] per Rares and Flick JJ provides direction here:
“…[T]he reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country information or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice.”
[Emphasis Added]
Ground one as pleaded, and as “explained” and “expanded” in submissions before the Court, is not made out.
Consideration: Ground Two
It must be said that ground two, in its terms, provides no clear assertion of legal error. The assertion that the reviewer drew a “false distinction” appears to cavil with a finding of fact made by the reviewer. Whether this was a complaint that the reviewer proceeded on “no evidence”, or took into account irrelevant considerations, or did not deal with a claim as made, was never properly addressed, let alone explained. This is probably because the submissions sought to pursue a different direction (see further below).
I note first, the ground as asserted in the amended application. The assertion is that the reviewer drew a “false distinction” between returnees being subjected to treatment before and after the date of relevant elections in Iran, or drew a distinction between those with or without a “political record”. These distinctions were said to be “not supported” by country information (See at [100] – [101] at CB 168).
Whatever the applicant’s purpose in asserting this complaint, it has no basis. No “false distinction” is evident on a plain reading of
[100] – [101] (at CB 168) and the context in which it appears.
The reviewer found that the applicant was not detained or arrested during the post-election protests. The reviewer clearly directed attention to the period after the election in this regard because this was a period when protests took place in Iran, which could have led to a political profile being created for, or imputed to, those who participated.
As stated above, it is important to note that at [100] (at CB 168), the reviewer addressed the applicant’s claim to fear serious harm as a returning failed asylum seeker. The reviewer accepted, based on country information, that failed asylum seekers who had a “political record” did face a real chance of serious harm on return to Iran.
What follows, however, with the remainder of [100] and [101]
(at CB 168) to [103] (at CB 169) are the reviewer’s reasons as to why the applicant would not face such a real chance of serious harm (as concluded at [104] at CB 169).
The words “…[h]owever, I have found…”, as they appear at the beginning of the second sentence at [100], clearly import the reviewer’s earlier relevant findings concerning the applicant’s claims. While the reviewer accepted that the applicant had been “harassed twice by the Basij” ([87] at CB 167), the reviewer found that he was not of interest (currently, and in the foreseeable future) to the Iranian authorities because he had no “political record or profile”, and was of “no ongoing interest to the Iranian authorities” ([91] at CB 167).
At [93] (at CB 167) the reviewer found that the applicant “…has consistently stated he has had no involvement in the protests or any political groups…”. He found that the applicant “…[had] no political opinion, no political profile arising from any involvement in the protests or political groups”.
Further, at [97] (CB 168):
“As I find that he is not of interest to the Iranian authorities as a protestor, political dissident or because of the way he dressed or styled his hair, I find that he would not face persecution for those reasons in the reasonably foreseeable future should he return to Iran.”
For the sake of completeness, it must be said that it is not clear from the applicant’s ground, as stated or “explained”, whether the complaint is, first, the claimed application of a distinction between returnees who returned before and after the post-election protests, second, the distinction between country information dealing with the situation before and after the protests, or third, the distinction between those with or without a political profile.
If the first, then plainly any such distinction would not, and did not, apply to the applicant as he was in Iran at the time of the protests and if he were to return, would plainly return after the protests.
If the second, then contrary to the implication in the applicant’s ground, as pleaded, there was country information before the reviewer ([64] at CB 160) that:
The introduction to the US Department of State’s 2009 Human Rights Report: Iran, Bureau of Democracy, Human Rights and Labor, 11 March 2010 states, among other things:
The government’s poor human rights record degenerated during the year, particularly after the disputed June presidential elections. The government executed numerous persons for criminal convictions as juveniles and after unfair trials. Security forces were implicated in custodial deaths and the killings of election protesters and committed other acts of politically motivated violence, including torture, beatings and rape.”
[Emphasis Added]
If the third, then in context, the ground does not rise above a request for this Court to engage in impermissible merits review (Wu Shan Liang).
In written and oral submissions the focus of the attack in ground two “switched” from [100] to [102] (at CB 168) of the reviewer’s assessment record. Before the Court, the assertion was that the inference drawn by the reviewer that failed asylum seekers with no other feature to draw the attention of the Iranian authorities would face no more than interrogation on return, was not reasonably open on, or was not supported by, the country information.
The applicant’s written submissions referred to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (see [49] – [51] of the applicant’s written submissions):
“[49] The principles in Briginshaw v Briginshaw [1939] FCA 34; (1938) 60 CLR 336 at 361-362 apply. The inference must be made out having regard to the gravity of the matters alleged and that such satisfaction must not be produced by ‘inexact proofs, indefinite testimony or indirect inferences’. At 343 Latham CJ said:
There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.
[50] Rich J at 350 said:
The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
[51] The often quoted statement of Dixon J at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In oral submissions before the Court, the applicant made general references to Minister for Immigration v Li [2013] HCA 18 (“Li”), for the proposition that “…the jurisdiction which is the authority to decide, should be exercised in a reasonable way”. Further, the applicant urged an assessment of country information to decide whether or not the reviewer’s inference was reasonably open to him.
Three preliminary matters are of note. First, while the reviewer was focused on the criteria set out at s.36(2) of the Act, the process of the review was not born of a task set by statute, but rather the Minister’s administrative arrangement that the applicant’s claims to protection be assessed with a view to assisting “…the Minister in the exercise of his discretion to allow an application for a (protection) visa” (see page 603.3 of Volume 2 of the Exhibit to the affidavit of Ms Piercy). In these circumstances, and as the applicant had not applied for a protection visa under the Act, it is unhelpful to talk of the reviewer’s exercise of, in context, statutory jurisdiction.
Second, calls on the Court to review country information, in the current case (in context other than that referred to at [102] (“other Country Information” and submissions)), challenge the restriction on the Court to engage in merits review.
Third, I did not understand the applicant’s complaint to be based on any “no evidence” ground (see Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321).
As set out above, the reviewer’s inference at [102] (at CB 168) arose from country information: “Iran Human Right” and “Amnesty International” (see above at [65] of this judgment and [70] at CB 163 to [74] at CB 165).
The reviewer had specific regard to the “examples” (“case studies”) cited in that country information. The inference drawn by the reviewer was plainly available, given that each of the persons who were cited as examples in that country information had some political or religious profile (see [70] at CB 163 and [72] at CB 164).
That there may have been other country information in the material contained in the Exhibit to Ms Piercy’s affidavit that may have supported a different inference does not assist the applicant. The choice and weight, to be accorded to country information is for the decision maker (NAHI v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCAFC 10).
The paucity of the applicant’s argument is also revealed even if regard were to be had to the country information as urged by the applicant. For example, before the Court the applicant referred to page 134 of Volume 2 of the Exhibits to Ms Piercy’s affidavit:
1)At R.2, page 134 (an extract from DFAT advice dated 30 August 2010) the report states:
“We are aware of individuals who participated in post-election protests leaving and returning to Iran without hindrance…”
The applicant argued before the Court that this was contrary to the reviewer’s inference that failed asylum seekers with no adverse political, or religious, profile would face no more than interrogation on return to Iran.
That there may be some “individuals” who participated in protests and returned without hindrance says nothing about others who may be subject to interrogation. It says even less about the applicant who did not, as the reviewer found, participate in the demonstrations.
Further, what follows (at R.2 at page 134 of Volume 2 of the Exhibits to Ms Piercy’s affidavit) reveals the context in which that advice was given (at page 134):
“…However, we do not know whether or not the authorities knew they protested. We are also aware of officials preventing low profile protesters from leaving Iran. As noted above, we do not know on what basis decisions are being made about who is permitted to travel and who is not.”
It does not reveal error on the basis that the reviewer preferred later country information (“Iran Human Rights” and “Amnesty International”). It simply provides an example of the principle that such assessments are for the decision maker.
I should note, at this point, that following the hearing of this matter the Full Court handed down judgment in Minister for Immigration & Anor v MZYTS [2013] FCAFC 114 (“MZYTS”). I do not see that anything found by the Full Court affects the circumstances of this case. I respectfully understand the rationale in that case to be derived from the Refugee Review Tribunal’s statutory obligation to review a delegate’s decision (in appropriate circumstances – see ss.411, 412 and 414 of the Act). Nonetheless, the matter of the “recent” nature of the country information has some resonance here because the reviewer had regard to “recent” country information. The information to which the applicant took the Court in the current case, in large part, predates the information relied on by the reviewer (March 2011, Iran Human Rights and 6 May 2011, Amnesty International). If anything, this is consistent with MZYTS.
The applicant’s submissions referred to the following sources of country information in Volume 1 of the Exhibits to Ms Piercy’s affidavit:
1)Department of Foreign Affairs (“DFAT”) Report page 129-130: 14 June 2007
2)DFAT advice page 133-134: 30 August 2010
3)DFAT report page 135-137: 22 December 2010.
4)Page 279 ([70]) part of the UK Border Agency: Iran. Although date of publication is 28 June 2011 and at page 279 refers to country information reports of September 2009 and November 2008.
5)Page 393 – returning to an Amnesty International Report of 6 May 2011.
It is of note that item 5 above is the same Amnesty International report relied upon by the reviewer. The “examples” there, to which the applicant wanted the Court to have regard, also reveal the weakness of this submission. One of the persons there was described as a “student activist” or “participating in demonstrations”. This simply reinforces the reviewer’s inference drawn from “examples of failed asylum seekers with political profiles” ([102] at CB 168).
If the applicant sought to press the matter of unreasonableness in the Wednesbury sense (Associated Provincial Picture Houses v Wednesbury Corporation [1947] 2 All ER 680), then I can only agree with the Minister that such a claim can only attach to the exercise of discretionary powers (see for example Li at [23] – [31]), and not the making of a factual finding, as in the current case.
Ultimately, ground two can best be characterised as a request for the Court to engage in impermissible merits review. It cannot do so (Wu Shan Liang). Ground two, as pleaded “explained” and “suggested” is not made out.
Consideration: Ground Three
Ground three, again, presents some divergence between what was pleaded, and what was submitted, by the applicant. The ground asserts that the reviewer failed to consider a claim made by the applicant, and information put by the applicant to the reviewer. Attention is directed, by way of stated particulars, to [117] and [118] of the reviewer’s assessment record (CB 170). These deal with the reviewer’s assessment as against the complementary protection criterion.
At the beginning of the hearing before the Court, the applicant submitted that the Minister was “well aware of the [applicant’s] case”. It appears that at some time prior to the hearing, the Minister’s solicitors requested further and better particulars in relation to ground 3 (and ground 2, see [19] – [20] above). These were provided by the applicant’s solicitors.
These “particulars” made reference to such matters as “persecution”, “imputed political opinion and membership of a particular social group”, and “well-founded fear of being persecuted”, which are all concepts relevant to the Refugees Convention consideration, and not complementary protection.
The applicant’s written submissions appear to, first, assert error in relation to the standard of proof in the complementary protection consideration.
Second, the complaint appears to be that the reviewer described the applicant’s claims regarding the “Basij” as being that he was “harassed” by them, yet, the applicant argues that, having regard to the matters set out at s.36(2A) (the definition of “significant harm” for the purposes of the complementary protection consideration), what he claimed and stated to the reviewer, cannot reasonably be described as “harassed”.
Third, the matter is further confused with the reference to “persecution” in the applicant’s written submissions (see at [59] of the applicant’s written submissions). “Persecution”, of course, is a concept relevant to the consideration of the Refugees Convention, and does not appear in the “definition” of “significant harm” (s.36(2)(aa) of the Act).
Fourth, again, although not pleaded, the applicant’s written, and possibly oral, submissions assert a failure of procedural fairness.
In oral submissions, the complaint at ground three was, at first, described as a failure to consider the applicant’s claim pursuant to s.36(2)(aa) of the Act. This was subsequently said to be, and probably linked to the “first” matter described above, in his representative’s submissions that when the reviewer considered the complementary protection criterion he “didn’t correctly assess a real chance but rather assessed it as a real risk” (at [113] of the applicant’s written submission).
The applicant’s insistence before the Court that his numerous complaints were all consistent with the ground as pleaded must be rejected. The applicant’s inability before the Court to understand the lack of harmony between the ground as he pleaded it, the written and oral submissions, and the further particulars, was most unsatisfactory. It put the Minister at a distinct disadvantage as to the case to be answered. It left the Court with unexplained assertions which was inimical to the resolution of this case.
Ultimately, when presented with this difficulty, the applicant was unable to say what parts of his narrative of complaints he sought to press before the Court. Nor, it must be said, did he coherently explain ground three. One thing, albeit at a late stage in the hearing, was indeed made clear by the applicant. That is, that the “further particulars” (Exhibit 2) were not pressed.
In any event, if the gravamen of the complaint in ground three is taken to be that the reviewer fell into legal error because he applied the “wrong test” then this is not made out on what is before the Court.
As the Minister submits, in Minister for Immigration and Citizenship vSZQRB [2013] FCAFC 33 (“SZQRB”), the Full Court held that the “real risk” test in s.36(2)(aa) of the Act requires consideration of whether there is a “real chance” that an applicant will suffer “significant harm” as that term is defined in s.36(2A) of the Act (see [246] – [247] per Lander and Gordon JJ, [297] per Besanko and Jagot JJ and [342] per Flick J). In the case of SZQRB, the relevant decision maker, in considering the matter of complementary protection, used language (“balance of probabilities”, “more likely than not”, “higher threshold than the real chance test”) which revealed that the decision maker had applied the wrong test.
The Court held that the “real risk” test does not require a higher threshold than the test in relation to the Refugees Convention criterion (s.36(2)(a) of the Act and see Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379). That is, that in the Refugees Convention context, there is a “real chance” of “persecution”, for a Convention reason and, in the complementary protection context, a “real chance” of a “real risk” of suffering “significant harm” (as that is defined in s36(2A)).
Apart from mere assertion, the applicant has failed to explain before the Court how the reviewer in the current case fell into such error. The relevant evidence put before the Court is the reviewer’s statement of reasons explaining his reasoning to the Minister. There is nothing in that statement and in particular with regard to [114] ‑ [118] (at CB 170) under the heading of “Complementary Protection” to suggest that the reviewer applied the wrong test.
The reviewer set out his understanding of the relevant law with respect to complementary protection (see [15] at CB 152 to [17] at CB 153). This was done in unexceptional terms and is orthodox in its expression.
When regard is had to the ground as actually pleaded, and when seen in light of some of the applicant’s submissions, it may be that the applicant’s real complaint is that in considering the matter of complementary protection, the reviewer failed to properly consider this question because of his “misdescription” of the applicant’s claims to have suffered harm, and the harm feared as being “harassment” rather than the more physically violent element which the applicant now says characterised his claims before the reviewer.
This complaint also does not succeed. The reviewer, consistent with the statutory relationship between s.36(2)(a) and s.36(2)(aa) of the Act considered the applicant’s claims of harm first with regard to the Refugees Convention.
During this analysis, the reviewer, relevantly, made a number of factual findings, canvassed above in this judgment, not dependent on Refugees Convention concepts for their provenance, but rather arising from an analysis of the facts as claimed, and presented, by the applicant, and in light of country information. (For example, the findings concerning returnees to Iran, the circumstances in which they may come to the attention of the Iranian authorities, and what they would face (see [102] at CB 168)).
The reviewer applied these findings of fact to the consideration of complementary protection ([116] at CB 170). The reviewer also considered the applicant’s claims under complementary protection having regard to the applicant’s representatives’ submissions ([115] at CB 170).
The findings at [117] – [118] (at CB 170) do not reveal, when read in context of the earlier factual findings, any misunderstanding, or misdescription, of the applicant’s claims, or for that matter, any application of the wrong standard or test. The applicant’s factual claims in relation to complementary protection were similar, if not the same as those put in relation to the Refugees Convention. (See for example, the representative’s submissions at CB 140 to CB 144 and the reference there (CB 140.9 and CB 144.2) to the applicant’s Statutory Declaration given with his initial request for protection assessment (CB 26 to CB 28)).
This is not a case where the reviewer’s consideration and findings in relation to complementary protection were “bound up in Refugees Convention thinking” (see SZSFK v Minister for Immigration & Anor [2013] FCCA 7 per Judge Driver and SZSGA v Minister for Immigration [2013] FCA 774 at [55] ‑ [56]).
The reference in the applicant’s submissions to the Court, to a failure of procedural fairness (see at [60] of his written submissions) remained unexplained in relation to ground three. It may be that the applicant sought here to repeat his complaint as it related to ground one. If so, then it fails for the reasons already set out above in this judgment. No legal error is revealed by ground three as pleaded and, variously, submitted.
Conclusion
As no legal error is apparent from the grounds as asserted before the Court, nor is any legal error otherwise discernible on what has been put before the Court, it is appropriate that the application be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 November 2013
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