SZTIK v Minister for Immigration & Border Protection
[2014] FCCA 1483
•11 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTIK v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1483 |
| Catchwords: MIGRATION – Review of conduct leading to recommendation of Independent Protection Assessment – whether recommendation made according to law – whether the Assessor failed to accord the applicant procedural fairness – no error of law – application for injunctive and declaratory relief dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 14, 36, 46A, 195A, Pt.7 |
| Cases: Plaintiff M61/201 v Commonwealth of Australia (2010) 243 CLR 319 SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123 F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 SZBEL v Minister for Immigration ad Multicultural and Indigenous Affairs (2006) 228 CLR 152 Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 142 Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 195 ALR 502 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 |
| Applicant: | SZTIK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | SALLY MAYNE IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | SYG 2342 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 June 2014 |
| Date of Last Submission: | 24 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr. d’Arville |
| Solicitors for the Applicant: | Wotton & Kearney |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2342 of 2013
| SZTIK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| SALLY MAYNE IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an independent protection assessor (“the Assessor”), dated 18 October 2012 and handed down on 22 October 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law.
The applicant claims to be a citizen of Iran and of Shia Muslim faith.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status, and a summary of the second respondent’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
Background
On 22 November 2011, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 29 January 2012, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship.
On 3 February 2012, the applicant made a request for a Protection Obligations Evaluation (“POE”).
On 12 February 2012, an officer of the Department of Immigration and Citizenship found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations.
On 23 March 2012, the applicant’s POE was referred for an Independent Protection Assessment (“IPA”).
On 18 October 2012, the Assessor recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 2 October 2013, the applicant filed an application in this Court seeking judicial review of the Assessor’s recommendation.
Legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations
The legal framework for review was accurately summarised by counsel for the applicant, Mr d’Arville, in his submissions as follows:
The Applicant’s position is similar to that of the Applicants in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.
The Applicant was an “offshore entry person” and an “unlawful non-citizen” for the purpose of the Migration Act 1958 (Cth), as it stood in November 2011.
For that reason, the Applicant could not make a valid application for a visa by reason of section 46A(1) of the Migration Act.
However, s46A(2) of the Migration Act provided the Minister with the following discretion:
“If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.”
In Plaintiff M61, the High Court described that power as follows:
“The power given by s46A is, in effect, to determine that an offshore entry person may make a valid application for a visa of a class specified. It is commonly referred to as a decision to “lift the bar””[1]
[1] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [13].
For the purpose of considering whether to exercise that discretion, the Minister established a two-tiered process.[2] The departmental guidelines described the process as follows:[3]
[2] See Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [41]-[49].
[3] Guidelines dated 27 June 2012, pp5-6.
“The POD process comprises a protection obligations evaluation (POE) conducted by the Department and, following a negative POE, an automatic referral for an independent protection assessment (IPA), which is conducted by an independent protection assessor …
The POE involves an evaluation by a departmental officer as to whether an [Offshore Entry Person] is owed protection obligations by Australia. Where the departmental officer finds the claimant is owed Australia’s protection, he or she is referred to the Minister for consideration under section 46A(2) of the Act.
Where the POE officer determines that the claimant is not owed protection, the Department refers the claimant’s case for an independent protection assessment.
…
Assessors consider afresh all claims for protection, taking into account all available information. Under a Memorandum of Understanding (MoU) with the Refugee Review Tribunal (RRT) both reviewers and assessors may also access country advice available to the Department.
These Ministerial appointees are independent of the department in their decision making and assess each case on its own merits. Upon completion of an IPA, assessors provide an assessment to the Department with a recommendation as to whether or not the claimant is found to be owed protection by Australia … Where the assessor recommends that the claimant is owed protection, the Department generally accepts the recommendation and considers referral of the claimant’s case to the Minister for consideration under section 46A(2) of the Act.”
Most important for the present application is the next paragraph of the guidelines:
“Assessors are bound by Australian case law, certain provisions of the Migration Act 1958, are required to observe the rules of natural justice and to provide procedural fairness in conducting assessments…”
This is the process through which the Applicant’s claim has been assessed and by which the Independent Protection Assessor’s (referred to hereafter as the IPA) recommendation comes to be reviewed by this court.
By section 476(1) of the Migration Act the Federal Magistrate’s Court (and now the Federal Circuit Court) has the original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. The application in these proceedings seeks an injunction against officers of the Commonwealth, and is therefore within paragraph 75(v) of the Constitution.
In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 the High Court confirmed that recommendations made by Independent Merits Reviewers are subject to the same principles of judicial review as other forms of migration decisions. Particularly relevant, for the present application, are the following statements from the unanimous joint judgment:[4]
“Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either ss 46A or 195A, it follows from the consequence upon the claimant’s liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.
The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant’s liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as “conditioned on the observance of the principles of natural justice”. Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
The Applicant’s claim is that the IPA did not observe the principles of natural justice, for the reasons set out below.
The IPA’s recommendation is not a decision to which the time limit set out in section 477 of the Migration Act applies: SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 (at [31] per Keane CJ, Rares and Perram JJ).
[4] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [41]-[49].
The applicant’s request for Protection Obligations Evaluation
On 3 February 2012, the applicant made a request for a POE.
The applicant provided a statement in support of his protection visa application to fear persecution in Iran, in which he stated:
a)In April or May 2011, the applicant gave a lift to a girl, Mojde, because there was shortage of taxis. The two exchanged telephone numbers and arranged to meet. They subsequently commenced a relationship and began having an affair. Mojde would come to the applicant’s house when it was vacant and they would sleep together.
b)On 8 July 2011, the applicant went to Seman for work. On his return, Mojde invited the applicant to her apartment so that she could give him a birthday present. The applicant was observed going into Mojde’s room by her mother. Mojde’s mother and brother subsequently came to the room and Mojde’s brother beat the applicant with the wooden handle of a machete. Mojde’s mother accused the applicant of having an affair with a married woman and informed the morality police. The applicant had not known that Mojde was married, and when he asked her why she had not told him, she informed him that she had been forced to marry a man who she did not love.
c)The claimant was taken to Mafassed (a government office dealing with moral breaches) and on arrival was fingerprinted and asked to sign a document stating that he had not been maltreated. Once the applicant had signed the document, he was stripped, bound to a chair and repeatedly beaten in front of Mojde. The applicant was beaten for a number of hours.
d)The following morning Mojde’s husband came to see the applicant and threatened to have him sent to a place where nobody would find him.
e)The applicant was then placed in a cell for a week by the morality police and sprayed with tear gas from the waist down. After five days of begging one of the guards, the applicant was able to convince a private guardsman to tell his family where he was.
f)One week following being taken into custody, the applicant was taken to a Sharia Court. The Court was presided over by clergymen with no legal training. The applicant’s mother attended the Court but did not recognise her son owing to his maltreatment. The applicant was not allowed legal representation as it was his first offence and the Court did not believe that the applicant did not know that the girl was married.
g)Mojde had been subjected to a physical examination, however there was no evidence that the applicant and Mojde had engaged in sexual intercourse on the night on which the applicant was taken into detention. If there had been such evidence, the applicant would have been sentenced to stoning.
h)The applicant told the Sharia Court about the torture that he had experienced at the hands of the morality police but was not believed because of the document that he had signed.
i)Mojde was allowed bail as her husband worked for the government and his income was accepted by the Sharia Court as security for bail. The applicant was unable to meet his bail requirements and spent two-and-a-half months in prison. The applicant then hired a lawyer who was successful in securing the applicant bail.
j)Fifteen days following his release, the applicant returned to the Court for sentencing. The Court sentenced the applicant to 99 lashes. Mojde’s husband appealed for a more severe sentence, but was not successful. The applicant received his 99 lashes, and Mojde received 10 lashes, with a further 79 lashes deferred on the condition that she not reoffend for four years.
k)One month after the applicant received his flogging, Mojde called him seeking to continue the affair. The applicant refused, however Mojde threatened to show her husband photographs of her and the applicant naked together. The applicant agreed to recommence the affair and began meeting Mojde two to three times per week.
l)Twenty days prior to the applicant’s departure from Iran, he was confronted again by Mojde’s husband. Mojde’s husband accused the applicant of continuing the affair, however the applicant convinced him otherwise. The applicant subsequently received a phone call from Mojde informing him that her husband was still suspicious and that he was taking her to be physically examined. The applicant was worried, as he and Mojde had engaged in sexual intercourse two days prior.
m)The applicant then made arrangements to leave Iran. He fears to return, as he believes that he would be stoned to death owing to his affair with Mojde.
On 12 February 2012, an officer of the Department found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
Independent Protection Assessment and conduct leading to recommendation
On 23 March 2012, the applicant’s POE was referred for an Independent Protection Assessment.
On 31 July 2012, the applicant was interviewed by the Assessor.
The Assessor noted that it had before it the Department’s file and other materials available to it from a range of sources.
The Assessor was ultimately not satisfied that the applicant had a well-founded fear for a Convention reason.
The Assessor accepted that the applicant had engaged in a sexual relationship with a married woman in Iran and had received punishment in the form of a flogging, the Assessor was not satisfied that:
a)The applicant had bribed a guard at Mafassed with a travellers cheque that he had in his possession so that the guard could inform the applicant’s family of his whereabouts;
b)The applicant was physically abused in detention as claimed;
c)Mojde’s husband was able to use his position to influence the applicant’s treatment in detention, as the applicant failed to make any mention of the claim during his entry interview;
d)Mojde’s husband or family manipulated the judicial system or that the law was selectively or discriminately applied and enforced against the applicant.
e)Following the applicant’s flogging, that Mojde approached the applicant to resume their affair and threatened him with blackmail if he did not comply;
f)The applicant was confronted by Mojde’s husband about the resumption of the affair; or
g)The applicant would on return to Iran be convicted of adultery based on DNA evidence taken from the applicant and Mojde and be subject to the penalty of stoning, or that Mojde’s husband would kill him.
The Assessor considered the applicant’s written submissions, but concluded that:
a)The applicant would not be persecuted for his political opinion or imputed with an anti-regime opinion on account of the applicant’s transgression of the Islamic Penal Code, or that he would be considered a religious dissident by virtue of having had an affair with Mojde;
b)The applicant is not a member of a particular social group, being ‘male adulterers in Iran’ and that the Islamic Penal Code was a law of general application and was not applied to the applicant in a selective or discriminatory manner. The Assessor formed the view that any alleged persecution arising from Mojde’s husband would be of a private nature.
c)The applicant would not be persecuted for having sought asylum in Australia. The Assessor noted that there was no information to suggest that a person with a background such as that of the applicant would attract any interest on return to Iran.
The Assessor considered whether the applicant was able to avail himself of the complementary protection provisions of the Act, but was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran that there was a real risk of him suffering significant harm.
The Assessor did not believe that the applicant would be subject to any criminal charge that would attract the death penalty, would be killed by Mojde’s husband or others as acts of personal retribution, or that he would suffer torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment upon his return to Iran by reason of his having applied for protection in Australia.
Having found that the applicant was not a person to whom Australia owed protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Act, the Assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
The proceeding before this Court
The applicant was represented before this Court by Mr d’Arville, of counsel.
The applicant confirmed that he relied on the ground of review contained in his application, filed on 2 October 2013, as follows:
“1. The Second Respondent (the Reviewer) did not afford procedural fairness to the Applicant.
Particulars
(a) The Reviewer relied upon a finding that much of the Applicant’s “oral evidence as to his abuse in detention appeared to be taken from documented country information in relation to the treatment of political detainees” (Reasons dated 18 October 2012, paragraph 147).
The substance of that matter was not put to the Applicant during the Reviewer’s interview with the Applicant.
(b) The Reviewer relied upon a finding that the Applicant’s “evidence as to DNA testing” was “inconsistent and completely unconvincing” (Reasons dated 18 October 2012, paragraph 154).
One reason for this finding was that the Reviewer “could not find any evidence that DNA evidence is used by Iranian Courts to replace the evidentiary burden of confession or testimony in respect of adultery” (Reasons dated 18 October 2012, paragraph 154).
The substance of that matter was not put to the Applicant during the Reviewer’s interview with the Applicant.”
The ground of the application contended that the Assessor did not afford procedural fairness to the applicant in two respects:
a)The Assessor failed to put to the applicant that the applicant’s oral evidence of his abuse in detention appeared to be taken from country information in relation to the treatment of political detainees.
b)The Assessor failed to put to the applicant that it could not find any evidence that DNA evidence is used by Iranian Courts to replace the evidentiary burden of confessional testimony in respect of adultery.
Ground 1 (a) - Country Information
Mr d’Arville submitted that the Assessor did not put to the applicant that she considered that his evidence as to his abuse had been drawn from country information. Mr d’Arville submitted that the information was used adversely to the applicant and that in the circumstances it was incumbent upon the Assessor to give the applicant an opportunity to explain whether he was aware of the experience of others and whether his evidence was based on those matters rather than on actual events.
The particular finding upon which the applicant relied in support of this complaint is as follows:
“Much of his oral evidence as to his abuse and detention appeared to be taken from documented country information in relation to the treatment of political detainees, and, when questioned closely on specifics, his evidence changed, leading the assessor to believe that he was improvising evidence as he went along.”
In context, that finding was as follows:
“Whilst the assessor cannot rule out that the claimant was mistreated when in custody (he consistently claimed he was sprayed with pepper gas) the assessor found his evidence about critical incidents of abuse in detention to be unreliable and to have evolved over time. For example, in his statutory declaration the claimant stated that he was stripped and beaten in front of Mojde for a period of six or seven hours when first taken to Mafassed. At hearing he gave evidence that he was not stripped when together with Mojde because soldiers were present and would have reported it. He then introduced a new claim that when upstairs with Mojde the guards forced him to undo his belt and zip and looked into his pants whilst they hit him. He gave evidence that he was variously beaten and slapped with sicks, hand, legs, boots and hosed or doused with dirty toilet water. Much of his oral evidence as to his abuse and detention appeared to be taken from documented country information in relation to the treatment of political detainees, and, when questioned closely on specifics, his evidence changed, leading the assessor to believe that he was improvising evidence as he went along. For example, when initially questioned at hearing the claimant stated that he was only with Mojde when first taken to Mafassed and that this was before being taken down to the cells. When he was brought up from the cells the next morning to meet with Mojde’s husband he knew it was her husband because Mojde’s mother was present. He later stated that Mojde was present at that meeting during which her husband verbally abused them, and after which the guards physically abused him, in her presence. Whilst the assessor understands that, with the passage of time, it is often difficult to clearly recall events, she considered that substantial discrepancies in critical pieces of evidence could not be overlooked this cast doubt on the claimant’s recollection of claimed extra-judicial maltreatment.” (emphasis added)
It was common ground that the only country information relating to treatment of detainees and in country information provided by the applicant instancing common methods of torture and abuse in prisons, including severe and repeated beatings and kicking detainees with military boots.
The Assessor made overall adverse credibility findings in the following terms:
“In this case, the assessor found critical parts of the claimed evidence inconsistent and contradictory, and, after considering all the evidence, was satisfied that he had misrepresented key facts, and therefore was unwilling to accept at face value claims that appeared to be inconsistent and/or implausible.”
At the heart of the Assessor’s adverse finding was the applicant’s own internally inconsistent evidence and the new claims made by the applicant at hearing.
As the quotation from the Assessor at paragraph 30 above makes clear, the Assessor noted that the applicant gave evidence that he was variously beaten with sticks, hand, legs, boots and hosed or doused with dirty toilet water. The Assessor found that when questioned closely on specifics, his evidence changed leading the Assessor to believe that he was improvising his evidence as he went along. The Assessor gave various examples in the paragraph quoted above.
The Assessor’s reference to much of his oral evidence as to his abuse and detention appearing to be taken from country information in relation to the treatment of political detainees is not in itself adverse. Read in the context of the Assessor’s findings, it is intended to be no more than an observation.
A transcript of the Assessor’s hearing was annexed to the affidavit of Katherine Louise Copeland, sworn 2 April 2014. Exchanges in that transcript demonstrate the changing nature of the applicant’s evidence and the concerns that the Assessor had with those changes. The following exchange is an example:
“Assessor: Alright. So, I’ve asked you fairly specifically about when Mojde was with you. You told me she was with you when you were being, when the report was being done, when you were signing the information that you hadn’t been abused, then in the car taking you from the police station to Mathased, and then they hit you once in front of her?
Applicant: Yes. And I also saw her in the Court.
Assessor: Yes. Your statutory declaration says that they brought Mojde (sic), tied her to a chair, stripped you and beat you in front of her for a period of about 6 to 7 hours. That does not seem to be correct according to your evidence today?
Applicant: I didn’t say they stripped me. Because where me and Mojde were together, it was upstairs. The guards were there. The soldiers were there as well and if they would have done that to me, someone would have been able to report it and it would have been bad on their families. My hands was, my hands were wrapped or handcuffed from the back and I was forced to sit on the ground. And Mojde was sitting on another chair opposite, 2-3 metres oppose of me and she was handcuffed as well. And she wasn’t able to move. She was crying and in front of her they were [unintelligible].
Assessor: What do you mean by that?
Applicant: They were treating because they weren’t able to hit her, they were trying to torture her by hitting me.
Assessor: But your evidence before was that you were only hit once by them in front of Mojde?
Applicant: Yes.
Assessor: So once, not for 7 or 8 hours?”
Mr d’Arville submitted that the information that the Assessor should have put to the applicant was that it appeared to regard as adverse to the applicant that much of his oral evidence as to his abuse in detention that appeared to be taken from country information. Even if that was the information, there is nothing in the context in which it is referred to by the Assessor to suggest that it is credible, relevant and significant information. It was information that could be dismissed from further consideration by the assessor before making the decision (see Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88, 96). As the Court stated at 96:
“References to information that is “credible, relevant and significant” are not to be understood as depending on whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.”
As French CJ and Kiefel J stated in Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594, 599, procedural fairness would require the Assessor to identify for the applicant any critical issue not apparent from the nature of the decision or the terms of the statutory power. The Assessor was obliged to advise the applicant of any adverse conclusion which would not obviously be open on the known material.
The observation by the Assessor that much of the applicant’s oral evidence appeared to be drawn from country information simply added satisfaction to the Assessor’s view already reached and confirmed the findings already made (see SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [90]).
I accept the submission of counsel for the first respondent, Mr Johnson, that the Assessor’s observation was a thought process or subjective appraisal falling outside procedural fairness requirements. There was no requirement of procedural fairness for the Assessor to have alerted the applicant to its thought processes (see VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24]; F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369; SZBEL v Minister for Immigration ad Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]).
Even if the Assessor had denied the applicant procedural fairness in failing to put to him that much of his oral evidence appeared to have been taken from documented country information in relation to detainees, I am satisfied that no practical injustice was suffered by the applicant in light of the other identified adverse findings in respect of the applicant’s evidence. These include the new claims introduced by the applicant, the evolving nature of his evidence, and the Assessor’s findings that aspects of his evidence were fabricated. In the circumstances, any denial of that opportunity made no difference to the outcome of the proceeding. The applicant did not lose any opportunity to advance his case (see Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at 88; Stead v State Government Insurance Commission (1986) 161 CLR 142 at 145). As Gleeson CJ said in Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 195 ALR 502 at [34] and [38]:
“34. …And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed.
…
38. No practical injustice has been shown. The applicant lost no opportunity to advance his case.”
Accordingly, particular (a) of Ground 1 is not made out.
Ground 1 (b) - DNA Evidence
The applicant contended that the Assessor did not effectively put to the applicant that she did not believe what he said about DNA testing because she could not find any country information suggesting the use of DNA testing. The relevant passage from the transcript referred to by the applicant in support is as follows:
“Applicant: I don’t know. If I’m not present there, they cannot do anything against her.
Assessor: Why’s that?
Applicant: Because they don’t have a proof on who she had a relationship with.
Assessor: Don’t they already have your DNA from the Court?
Applicant: Yes they do but that’s how they find out who I am. Beside that they don’t know how to prove it.
Assessor: So, her husband is searching for you, he rings your family and you think that’s because he’s got the test results?
Applicant: 100%. Otherwise how can he threaten my family like that?
Assessor: And the penalty is 100 lashes.
Applicant: Yes.
Assessor: You say the evidence this time, as I understand it, is DNA testing?
Applicant: Yes. They’ve already done it and it’s been finalised.
Assessor: But you haven’t received a summons and under, under the penal Code the evidence for adultery as I have read it is the evidence of 4 witnesses, 4 male witnesses and 2 females, or 4 confessions, not DNA testing.
Applicant: But they didn’t have any witnesses even last time. Iran is not the same way you think [unintelligible].
Assessor: You weren’t charged with adultery last time, you were punished under Article 637 as I understand from what was read, and your evidence because they didn’t have the evidence of adultery.
Applicant: For the last time, because they could not prove anything they should have freed me. Then why did not they. Why did not they free me? Because even last time they could not prove anything against me but they still went through and gave me the 99 lashes.”
Mr d’Arville submitted that those exchanges demonstrated that the applicant did not understand the question asked by the Assessor and answered it as if it only related to the process followed by the Iranian Court previously, rather than as a question about the processes of Iranian Courts generally.
The Assessor made the following findings in respect of that exchange with the applicant:
“The assessor found the claimant’s evidence as to DNA testing inconsistent and completely unconvincing. Despite wide reading, she could not find any evidence that DNA evidence is used by Iranian courts to replace the evidentiary burden of confession or testimony in respect of adultery.”
The Assessor went on to note that there was no evidence that the claimant had been either accused or charged with adultery following his previous sentence for illegal relations. The Assessor put squarely to the applicant that he had not received a summons in relation to adultery and that such evidence would require witnesses and not DNA testing.
Further, I accept the first respondent’s submission that procedural fairness at common law does not require the Assessor to conduct any inquiry or investigation into the applicant’s claims (see Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429). I accept the first respondent’s written submission that it would be a “remarkable outcome” if the Assessor is found to have committed an error in recording the outcome of such an inquiry, having taken the step of attempting to locate material that might support the applicant’s claims.
Again, even if the Assessor was obliged to put to the applicant that she could not find any evidence that DNA evidence is used by Iranian Courts for charges of adultery, as stated above, such a concern was put to the applicant for comment in terms that were clear and comprehensible. The fact that the applicant may have given unresponsive answers does not demonstrate that the Assessor failed to discharge its obligations in putting that adverse information to the applicant in a clear and comprehensible manner.
Accordingly, particular (b) of Ground 1is not made out.
In the circumstances, Ground 1 of the application is not made out. There was no denial of procedural fairness by the Assessor to the applicant as alleged in the particulars to Ground 1.
Conclusion
A fair reading of the Assessor’s decision record makes clear that the Assessor understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Assessor put to the applicant matters of concern she had about his evidence and noted the applicant’s responses. The Assessor identified independent country information to which she had regard. The Assessor also put to the applicant independent country information before her and invited the applicant to comment upon it.
The Assessor then made findings based on the evidence and material before her. Those findings of fact were open to the Assessor on the evidence and material before her and for the reasons she gave. A fair reading of the Assessor’s decision record makes clear that the Assessor reached conclusions based on the findings made by her and to which she applied the correct law.
In the circumstances, the Assessor complied with her obligations under the statutory regime in the making of her decision, including the conduct of her review.
The Assessor’s decision is not affected by any error of law. In the circumstances, the injunctive and declaratory relief sought by the applicant should be refused.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 11 July 2014
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