WZAOV v Minister for Immigration
[2013] FMCA 9
•8 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOV v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 9 |
| MIGRATION – Judicial review – independent merits review – whether well-founded fear of persecution – whether denial of procedural fairness by failing to put provisional conclusion – whether conclusions not based on findings or inferences of fact supported on logical grounds – whether conclusions irrational or illogical – whether clear or coherent question of law for the determination of citizenship enunciated – whether relevant material ignored in relation to current position of Kurds in Iran – whether non-Iranian allowed to re-enter Iran – whether distinct integer of claim concerning actual or imputed political opinion considered. |
| Migration Act 1958 (Cth), ss.36(2), 46A, 91R, 195A, 476 |
| Abebe v The Commonwealth of Australia & Anor (1999) 197 CLR 510; [1999] HCA 14 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1997) 47 FCR 576 Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 |
| Applicant: | WZAOV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 193 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 17 August 2012 |
| Date of Last Submission: | 17 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Hooker (pro bono) |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATION AND ORDERS
The Court declares that the second respondent, in his capacity as Independent Merits Reviewer, did not make his recommendation in accordance with the law by reason of his failure to deal with the applicant’s claim alleging a well founded fear of persecution by reason of the applicant’s imputed political opinion as a Faili Kurd.
AND THE COURT ORDERS:
That the first respondent, whether by himself or by his servants, officers, delegates or agents, be restrained from relying upon the second respondent’s recommendation of 20 June 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 193 of 2011
| WZAOV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under s.476 of the Migration Act 1958 (Cth)[1] for a declaration and injunction in relation to a decision[2] of Christopher Keher, in his capacity as an independent merits review:[3]
a)finding that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act; and
b)recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[4]
[1] “Migration Act”.
[2] “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 172-194.
[3] “IMR”.
[4] “Convention”.
Relief sought
The applicant seeks relief in the following terms:
A.An injunction restraining the First Respondent, by himself or his Department, officers, delegates or agents, from relying upon the recommendation of the Second Respondent.
B.A declaration that the recommendation of the Second Respondent was not made in accordance with law, by reason of the substituted grounds of this application.
The grounds of the application
By an application filed on 19 July 2011, the applicant made an application under s 476 of the Migration Act in respect of “A future decision or other action by the Minister or an officer under the Migration Act concerning an offshore entry person, following the making of a recommendation by an Independent Protection Assessment Reviewer”, being the IMR Recommendation. The only final relief sought by the applicant was “A declaration that the recommendation of the Independent Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application”, but no grounds for the application were set out.
Pursuant to an order made by this Court on 1 May 2012, the applicant filed and served an amended application entitled “Applicant's Substituted Application”.[5] The two grounds of the Amended Application are set out in full hereunder, followed by the parties’ submissions, and the Court’s consideration of each ground.
[5] “Amended Application”.
Jurisdiction
The Amended Application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[6]
[6] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).
Background facts
The applicant is a Faili Kurd from Iran who arrived in Australia at Christmas Island on 2 April 2010.[7]
[7] CB 119.
On 2 May 2010 the applicant was interviewed by an officer of the Department of Immigration and Citizenship.[8] The applicant claimed that he was a stateless Faili Kurd who had been born in Sherwan, Ilam, Iran, on 10 January 1983, and who had no identity documents. The applicant gave a number of reasons as to why he left Iran and why he did not wish to return to Iran.[9]
[8] “Department”.
[9] CB 1-22.
On 27 June 2010 the applicant made a request for a Refugee Status Assessment,[10] and that request was supported by a statement by the applicant.[11]
[10] “RSA”.
[11] CB 23-49.
The applicant’s migration agent prepared written submissions dated 19 June 2010 in support of requests by the applicant and other Faili Kurd clients for RSAs. It was submitted that the applicant’s claims should properly be considered against Iraq, and that the situation in Iran should not be a relevant consideration. It was also submitted, however, that the applicant was still able to demonstrate a well-founded fear of persecution in Iran on the basis of ethnicity, imputed political opinion as pro-Kurdish, and as an Iraqi refugee or someone perceived to be without a nationality.[12]
[12] CB 72-91 (“June 2010 Submissions”).
The applicant’s RSA interview was conducted by a Departmental officer.[13]
[13] CB 71 and 137 (“RSA Officer”).
On 26 July 2010 the applicant’s migration agent provided further written submissions in support of the applicant’s claims.[14] Apart from the submissions under the heading “Denial of Right of Nationality in Iran”,[15] the July 2010 Submissions were a repetition of the June 2010 Submissions.
[14] CB 93-117 (“July 2010 Submissions”).
[15] CB 108-110.
On 7 September 2010 the RSA Officer found that the applicant did not have a genuine fear of harm, that there is not a real chance of persecution occurring, and that his fear of persecution was not well founded. Accordingly, the RSA Officer was satisfied that the applicant did not meet the definition of a refugee set out in Article 1A of the Convention, and was not someone to whom Australia owes protection obligations. The applicant was advised of the RSA Decision by letter dated 7 September 2010.[16]
[16] CB 136 and 138-139 (“RSA Decision”).
On 15 September 2010 the applicant submitted a request for an independent merits review of the RSA Decision.[17]
[17] CB 147-151.
On 30 March 2011 the applicant provided written submissions in support of the applicant’s request for an independent merits review. The submissions were said to provide “further updated country information”, and were generic submissions in relation to the various Faili Kurd asylum seekers for whom the applicant’s migration agent was acting.[18]
[18] CB 152 and 153-170 (“March 2011 Submissions”).
The applicant was interviewed by the IMR on 5 April 2011.[19] The applicant’s migration agent requested two weeks to provide a further written submission, which was agreed to by the IMR. No further written submission was received.[20]
[19] “IMR Interview”.
[20] CB 172, 178 and 171.
On 20 June 2011 in the IMR Recommendation the IMR found that the applicant did not meet the protection visa criterion set out in s.36(2) of the Migration Act. The IMR recommended that the applicant should not be recognised as a person to whom Australia has protection obligations under the Convention. The applicant was notified of the IMR Recommendation by letter dated 21 June 2011.[21]
[21] CB 172, 194 and 195-196.
Ground 1
Ground 1 asserts that the IMR committed jurisdictional error in the course of arriving at the IMR Recommendation in that:
1.In concluding that the Applicant did not have a well-founded fear of persecution on any of the Convention grounds of race, nationality, or membership of a particular social group (namely Iraqi refugees in Iran and/or stateless individuals in Iran), the Second Respondent, despite finding that the Applicant is a Faili Kurd from Ilan province in Iran as he claimed, and, further, had a history of presenting claims which was generally consistent:
(a)denied the Applicant procedural fairness by failing to put to him as a provisional conclusion that the Applicant is a citizen of Iran who travelled to Australia using a genuine passport in his own, actual (not false) name, and giving him a reasonable opportunity to be heard on those provisional conclusions;
(b)arrived at conclusions rejecting the Applicant’s claim of being detained and beaten in 2005 by reason of race or nationality by the Basij that were irrational, illogical, and not based on findings or inferences of fact supported on logical grounds in that:
(i) the Second Respondent first found on this integer of the Applicant’s claims that because the Applicant was released by the Basij after being detained and beaten, that indicated that the Applicant “held some form of documentation to avoid deportation” and that he “must have something so as to facilitate his release from detention”;
(ii) the Second Respondent later found that the Applicant was detained in 2005 by the Basij not because he was a Faili Kurd, “but as he had no documents with him and was detained for this reason”; and
(iii) found further that the Applicant’s claim that his detention by the Basij in 2005 was by reason of being a Faili Kurd was “nonsensical” because the Basij in the region of Ilam province would “as a matter of course be Faili Kurd” when there was no evidence or other material in support of that latter proposition
(c)failed to enunciate and apply any clear or coherent question of law for the determination of the citizenship, if any, of persons in Iran who are Faili Kurd; and
(d)ignored relevant material evidencing that:
(i) Kurds, among other minority groups in Iran, are disproportionately targeted for arbitrary arrest, prolonged detention and physical abuse;
(ii) even Kurds who are not politically active face increasing difficulties with the Iranian authorities (which difficulties have further increased since President Ahmadinejad came into power) such as discrimination and harassment solely on the grounds of their ethnicity;
(iii) it is likely that Kurds residing in Iran, including Faili Kurds, are identified as threats to the internal stability of the state and are therefore targeted by Basij members;
(iv) an asylum seeker who is not Iranian would not normally be allowed to re-enter Iran.
Ground 1(a) – applicant denied procedural fairness by IMR failing to put to him as a provisional conclusion that the applicant is a citizen of Iran
Applicant’s submissions
The applicant submits as follows:
a)the RSA Officer had reached no conclusion adverse to the applicant concerning his nationality, citizenship or whether he had a genuine passport. The furthest the RSA Officer went on this subject was noting that the applicant’s claim of having no present existing right to Iranian nationality was “not clear in regards to the specifics of (the Applicant’s) circumstances”.[22] Although the RSA Officer addressed the applicant’s assertion that he left Iran on a false passport with a false identity and concluded that she “did not accept that the claimant has presented the truth about his method of departure from Iran”,[23] the RSA Officer made no relevant explicit finding beyond that;[24]
b)the IMR’s finding on the issue amounted to one of conscious dishonesty. Fairness demanded that it be clearly and explicitly put to the applicant for his response. Nothing in the IMR Recommendation discloses it having been put to the applicant before the factual finding was reached. Generalised assertions, recounted in the IMR Recommendation,[25] were put, but they were devoid of any particularity and not couched as provisional findings, nor supported by any particularity;
c)the IMR canvassed aspects of the applicant’s identity,[26] and found that the applicant was a Faili Kurd from Ilam Province in Iran,[27] but he said that that “did not particularly assist” him in “determining other matters”. The IMR set out a number of “categories in which Faili Kurds from Iraq could “fall”. Among those categories included an assertion that of “logical reality” most Faili Kurds from Iran would be Iranian citizens,[28] and that many Faili Kurds who had been living in Iraq without holding Iraqi citizenship “obviously” would have held Iranian citizenship.[29] The IMR also asserted that it was “obvious” that the applicant could be any number of variations of citizenship, with or without documentation. One such variation was that the applicant “could be” an Iranian citizen;[30] and
d)despite that range of possibilities the IMR then proceeded through a range of factual findings[31] (none of which the applicant concedes was legitimate, given the illogicality and other legal errors that plagued the IMR Recommendation otherwise), before concluding that the applicant is a citizen of Iran and not an undocumented, stateless Faili Kurd.[32] So crucial was the process of arriving at this conclusion (for it was fatal to the applicant’s credibility overall) that the substance of it needed to be put to the applicant. To simply ask the applicant why the IMR “wouldn’t consider he was an Iranian citizen” and advise him that his citizenship was an “issue” was a vastly different matter to alerting him to the process of reasoning by which a range of “possibilities” was converted to a conclusive finding adverse to the applicant’s credibility. The applicant was denied procedural fairness.
[22] CB 135.
[23] CB 136.
[24] CB 135-136.
[25] CB 178 at paras.33 and 36.
[26] CB 191 from para.46.
[27] CB 191 at para.47.
[28] CB 191 at para.47 at dot point 1.
[29] CB 191 at para.47 at dot point 4.
[30] CB 191 at para.48.
[31] CB 192 from para.49.
[32] CB 192-193 at paras.54 and 57.
Minister’s submissions
The Minister submits that:
a)the applicant contends that the IMR failed to put to him as a provisional conclusion that he was a citizen of Iran who travelled to Australia using a genuine passport, and should have given him a reasonable opportunity to be heard on those provisional conclusions;
b)in particular, the applicant submits that the IMR should have alerted him to “the process of reasoning by which a range of ‘possibilities’ was converted to a conclusive finding adverse to the applicant’s credibility”;[33]
c)there is no substance to this ground for review. While it may be accepted that, where a reviewing administrative decision-maker takes a different view in relation to a particular issue from that reached by a primary administrative decision-maker, procedural fairness requires that the person affected be advised of that different view and be given an opportunity to make submissions, procedural fairness does not require the reviewing administrative decision-maker (here the IMR) to give a running commentary or disclose thought processes;[34]
d)the IMR did put the applicant on notice that whether or not he was a citizen of Iran was in issue.[35] Procedural fairness did not require that the IMR then further advise the applicant of his provisional views and his reasoning as to why he might conclude that the applicant is a citizen of Iran;
e)the applicant’s migration agent was present at the hearing before the IMR and was clearly aware that the applicant’s Iranian citizenship was an issue.[36] The applicant was given the opportunity through his migration agent to provide further written submissions, but did not avail himself of that opportunity;[37]
f)having advised the applicant that whether or not he was an Iranian citizen was an issue for consideration, the applicant must be taken to have been put on notice that his claim to have left Iran on a false Iranian passport because he was not an Iranian citizen was also in issue; and
g)the applicant has not put forward any evidence to establish that the IMR did not raise with the applicant at the IMR Interview the issue of whether or not he left Iran on a genuine or false Iranian passport.
[33] Applicant’s Outline of Submissions, para.21.
[34] Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J; [2001] HCA 22 at para.31 per Gleeson CJ and Hayne J (“Miah”); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1997) 47 FCR 576 at 591 and 592 per Northrop, Miles and French JJ (“Alphaone”).
[35] CB 178 at paras.33 and 36.
[36] CB 178 at paras.33 and 37.
[37] CB 178 at para.37.
Consideration of ground 1(a)
The IMR put to the applicant:
a)that in view of the applicant’s “history why wouldn’t … [the IMR] consider … why the applicant “was an Iranian citizen”;[38] and
b)that one of the three “main issues” was “the identity of the claimant and whether or not he was in fact an Iranian citizen”.[39]
[38] CB 178 at para.33.
[39] CB 178 at para.36.
The applicant was provided with an opportunity to provide a written submission in relation to the above issues, but no written submission was forwarded to the IMR. At a general level it cannot therefore be said that the applicant did not have the opportunity to deal with the question of whether he was or was not an Iranian citizen.
The history of the case supports the contention that the applicant was aware that his Iranian nationality was in issue, and that he had the opportunity to deal with that issue.
It was the applicant who put in issue the matter of leaving Iran on a false passport as it was one of his claims at his entry interview on 2 May 2010,[40] and, therefore, it was for the applicant to satisfy the IMR that he left Iran on a false passport.
[40] CB 175 at para.15.
The matter of the false passport was in issue before the RSA Officer. In the RSA Decision she said as follows:
I now turn to the issue of the method of departure from Iran. The claimant has stated that he left Iran on a false passport with a false identity. The claimant departed Iran through the Imam Khomeini airport where he was able to pass through unimpeded. Reports on exit procedures at the airport reveal that there are several checks conducted by the authorities, including a computerised system check on the passport where the details of the passport and the passport holder can be verified … . While it is possible to bribe officials, it would be very difficult to bribe all of the parties involved in this multilayered checking procedure. Consequently, I do not accept that the claimant has presented the truth about his method of departure from Iran.[41]
[41] CB 136.
There are no express findings by the RSA Officer that the applicant left Iran on a genuine Iranian passport, in his own name, but the above passage allows the reader to draw the inference that that would have been the case. In any event, if one cannot generally leave Iran on a false passport with a false identity, the issue of how the applicant left, and whether he left on a genuine passport with a genuine (his own) identity, is obviously in issue.
The issue of the applicant’s Iranian citizenship was squarely raised in the IMR Interview, and arose in a number of different ways. They included the following:
a)the IMR asking the applicant to detail which of the members of his extended family were Iranian citizens, the ultimate outcome of which appeared to be that both maternal and paternal uncles, and their families, were Iranian citizens;[42]
b)that both the applicant and his father had obtained paid employment as agricultural labourers at a rate comparable to an average family income in Tehran, which indicated that they were well paid;[43]
c)that his family lived in a house in a village which was owned by his maternal uncle, who also owned other land in the village, and that the uncle has a glass shop in Tehran, but that the applicant did not work in this shop when he was living in Tehran;[44]
d)the IMR put it to the applicant that he found it difficult to accept that the applicant had never applied to obtain Iranian citizenship, and that he was too scared to do so, and that his friends had told him not to apply, in circumstances where close maternal and paternal relatives were Iranian citizens;[45]
e)that although the applicant said he had no identity documents and could not get a job, the IMR put to him that he could get a job, and “a relatively well paid one”;[46]
f)the IMR also put to the applicant that the “main issue was not whether he was a Faili Kurd but whether he was pretending to be an undocumented Faili Kurd from Iraq or whose parents had been from Iraq”;[47] and
g)the applicant again being asked why he had never applied for Iranian citizenship,[48] and was also asked why he had not approached the authorities to obtain the White and Green refugee cards which attracted certain benefits to the holders.[49]
[42] CB 176-177 at para.27 and CB 190 at para.44.
[43] CB 177 at para.28.
[44] CB 177 at para.29.
[45] CB 177 at para.30.
[46] CB 177 at para.31.
[47] CB 178 at para.33.
[48] CB 178 at para.33.
[49] CB 178 at para.35.
The circumstances of the applicant’s departure from Khomeini Airport are relevant to this issue, because there was significant country information before the IMR which suggested that the applicant could not have left Iran through Khomeini Airport on a false passport, and that only persons with a genuine, and obviously in this case, Iranian, passport would pass through the exit procedures at Khomeini Airport.[50]
[50] CB 180 at para.38.
It is relevant to note at the outset that in relation to the existence or otherwise of documentation, including a genuine or false Iranian passport, that the IMR found that the applicant was not a credible witness and did not believe his story concerning his documentation.[51]
[51] CB 190 at para.43 and CB 192 at para.53.
The IMR’s conclusion with respect to the applicant’s nationality was expressed as follows:
I accept as true, as noted above, that the claimant is a Faili Kurd. He had a degree of knowledge of Faili Kurds and speaks a dialect spoken by Faili Kurds. I also accept that he was resident in Ilam Province for all of his life apart from the last several months while he and his family resided in Tehran. He had a degree of knowledge of that Ilam province. It is a province of Iran populated almost entirely of Faili Kurds. As detailed above I have found the claimant not to be a credible witness. Having carefully considered his evidence and the country information I find that he is a citizen of Iran – I base this on the nature of the history as provided by him. I do not accept that the history as provided evidences an undocumented Faili Kurd from Iraq living in Iran. It evidences that the claimant was able to travel in Iran, was able to live and work in Ilam, was able to obtain a passport and was able to leave through the International Airport and pass security checks as he held proper documentation. This evidences he in fact holds Iranian citizenship and his passport was genuine. In all the circumstances I find that the claimant is an Iranian citizen and probably of the name on the passport – [name omitted]. The claimant states the passport was in that name. I make no finding as to which name it was in other than to find that whatever name it was in is his name.[52]
[52] CB 192 at para.54
Having regard to the “history” which preceded the above finding, and in particular:
a)the applicant’s family background, on the basis of which the IMR found that “it is more reasonable to accept than not that he is in fact an Iranian citizen”, and noted that both maternal and paternal uncles and their families were Iranian citizens;[53]
b)the airport security processes, which indicated that it was “reasonable to believe it was a genuine passport” on which the applicant left Iran;[54]
c)that the applicant’s immediate family had attracted no adverse interest from the Iranian authorities, and had led a “normal existence in Iran” including being able to travel outside of their village to regional centres, and ultimately to Tehran, and that had worked in the local area;[55]
d)that both the applicant and his father had been able to work and been paid a monthly income in keeping with what an Iranian labourer would be paid, and only marginally below the household average of what a household earns in Tehran, indicated they were Iranian citizens as otherwise they would not have been paid this relatively high salary;[56] and
e)that it is probable that they did not need to obtain a White or Green refugee card because they were Iranian citizens.
[53] CB 190 at para.44.
[54] CB 190 at para.45.
[55] CB 192 at para.49.
[56] CB 192 at para.50.
Each of the above conclusions related to matters which were expressly put to the applicant by the IMR in the IMR Interview, and to which the applicant responded in some fashion, and some of which were in issue as a consequence of the RSA Decision (and in particular the airport departure issue).
As to the applicant’s criticisms of the IMR’s reasoning process with respect to the various categories into which Faili Kurds from Ilam Province might fall, it is fair to observe that the categorisation is not closely reasoned and the mode of expression is occasionally somewhat clumsy. That said, however, and having regard to the country information which the IMR sets out in the IMR Recommendation,[57] it was open for the IMR to conclude that Faili Kurds from Ilam could fall into one of the following categories:
a)an Iranian citizen;
b)a registered refugee;
c)a formerly registered refugee who was now officially undocumented;
d)persons expelled from Iraq in the 1970s and 1980s who had previously held Iranian citizenship, and were not necessarily Iraqi citizens and may be Iranian citizens, who have returned to Iran as a consequence of the expulsion from Iraq; and
e)a small number who were expelled from Iraq and were able to establish and be granted Iranian citizenship through familial descent.[58]
[57] CB 178-185 and 186-187.
[58] CB 191 at para.47
The above categorisation demonstrates that there is a possibility that a Faili Kurd from Ilam Province might be an Iranian citizen. That then is used as a foundation, based on the applicant’s own history, as set out above, for the IMR to conclude that the applicant is in fact an Iranian citizen. That is a finding of fact which is within the range of findings of fact with respect to citizenship available to the IMR on the evidence.
When one has regard to the IMR Interview of the applicant, as set out in the IMR Recommendation, the broad range of possible citizenship categories set out above were put, and discussed with, the applicant.[59] Furthermore, having regard for those citizenship categories, the applicant’s own history, which he either gave to or put in issue before the RSA Officer and the IMR, enabled the IMR to make a factual conclusion with respect to the applicant’s citizenship which was open on the available material. The Court is of the view that the substance of the basis for the IMR’s conclusions with respect to the applicant’s citizenship were properly, or at least sufficiently, put to the applicant in terms which provided the applicant with an opportunity to rebut those issues, or to provide further information in support of the applicant’s contentions, to the IMR, and it is apparent from the IMR’s description of the IMR Interview with the applicant, that the applicant did so. Moreover, the applicant was afforded the opportunity to put further written submissions to the IMR after the IMR Interview, and failed to do so.
[59] CB 191 at para.47.
In the above circumstances, the applicant’s assertion that he was denied procedural fairness cannot be made out as the applicant was given more than adequate opportunity to deal with the substance of the nationality issues both when before the IMR, and subsequently by way of written submission, which latter opportunity the applicant did not take up.
The applicant’s assertion that the IMR denied him procedural fairness because he was not alerted to the process of reasoning by which a range of possibilities were converted to a conclusive finding adverse to the applicant’s credibility is not made out, because:
a)the IMR is not required to expose the process of reasoning by which it arrives at a conclusion;[60] and
b)for reasons otherwise set out above, the substance of each of the possibilities was discussed with, or put to, the applicant, and the applicant had the opportunity to deal with those matters at the IMR Interview, and also subsequently in writing, which latter opportunity was not taken up.
[60] Miah CLR at 69 per Gleeson CJ and Hayne J; HCA at para.31 per Gleeson CJ and Hayne J; Alphaone FCR at 591 and 592 per Northrop, Miles and French JJ.
In the circumstances no denial of procedural fairness was made out by the applicant on this review, and ground 1(a) must fail.
Ground 1(b) - IMR arrived at conclusions rejecting the applicant's claim of being detained and beaten in 2005 by the Basij by reason of race or nationality that were irrational, illogical and not based on findings or inferences of fact supported on logical grounds
Applicant’s submissions
The applicant submits that:
a)the findings as to the basis for the detention of the applicant by the Basij in 2005 were important because the IMR did accept that the applicant was assaulted with the butt of a rifle breaking his collar bone. Plainly, such treatment amounts to “serious harm” for the purposes of s.91R of the Migration Act. It was critical, therefore, that the applicant reach conclusions that were fairly open as to the rationale for the detention and the basis for the eventual release. The conclusions of the IMR, however, make no sense at all.[61] The IMR seems to have ignored the assertion of the applicant that his release the morning after the detention and assault was because of the sympathetic view taken by an elderly Basij member, finding that the applicant was “released without apparent intervention by anyone the next morning”. The inference that the release from detention indicated the applicant held “some form of documentation” and that the applicant “must have something” so as to facilitate that release is grounded in no evidentiary or other foundation. In and of itself it defies any rationality;
b)the matter is rendered all the more confusing by the distinct finding, about the same incident,[62] where the IMR found that the detention by the Basij in 2005, at which time the applicant was bashed in detention and his collar bone broken, was for the reason that he had no documents with him. How it was that the applicant’s release “indicated” he was able to establish his identity and bona fides within that short space of time, in the absence of any documents is unclear in its own right. But, it simply cannot sit compatibly with the earlier conclusion that the applicant did hold some form of documentation and “must have something” to facilitate his release;[63] and
c)the standard for judicial review on the grounds of irrationality or illogicality is met.
[61] CB 190 and 193 at paras.43 and 58.
[62] CB 193 at para.58.
[63] CB 190 at para.43.
Minister’s submissions
The Minister submits that:
a)the applicant’s contention is based on statements:
i)that the applicant “held some form of documentation to avoid deportation, and avoid any ongoing arrest and deportation” and that he “must have something so as to facilitate his release from detention”;[64] and
ii)that the applicant was “detained on that occasion as he had no documents with him” and that “[t]hat he was released indicates he was able to establish his identity and bona fides”;[65]
b)there is no inconsistency or irrationality in the conclusions expressed by the IMR Recommendation;[66]
c)the IMR clearly found that the applicant had no documents with him and was detained for that reason, but was later released when he was able to establish his identity and bona fides. There is nothing illogical or irrational about such findings;
d)the IMR was clearly aware of the applicant’s claim that the morning after he was taken into detention by the Basij, an “elderly Basij agreed to release me”. This claim[67] was specifically referred to by the IMR.[68] When the IMR states that the applicant was released “without apparent intervention by anyone”,[69] he is clearly referring to the lack of intervention by a family member of the applicant having to pay a bribe to secure the applicant’s release, as a person without documentation; and
e)likewise, there is no inconsistency in the IMR’s conclusion that the applicant’s release by the authorities indicated that “he held some kind of documentation to avoid deportation”,[70] and his conclusion that the applicant was detained on that occasion “as he had no documents with him”.[71] A person may “hold” documentation without having immediate physical possession of that documentation. Thus a person may hold a car licence, even though he may not physically keep the licence on him.
[64] CB 190 at para.43.
[65] CB 193 at para.58.
[66] CB 190 and 193 at paras.43 and 58.
[67] CB 45 at para.24.
[68] CB 175 at para.21.
[69] CB 190 at para.43.
[70] CB 190 at para.43.
[71] CB 190 at para.58.
Consideration of ground 1(b)
The conclusion that the applicant held some form of documentation which saw him released the morning after his detention is not lacking an evidentiary or other foundation when regard is had to the fact that the IMR did not believe the applicant in relation to his story about a lack of documentation and citizenship status in Iran, and that (at some stage) the applicant was able to obtain a passport. The conclusion that the applicant was released because he held “some form of documentation” and that he “must have something” is not particularly elegantly put, however, it is not inconsistent with the other findings made by the IMR concerning the applicant’s Iranian nationality.
The applicant’s assertion that the IMR’s finding that the applicant was detained because he did not have documentation with him, and that that is somehow incompatible with the conclusions that he held some form of documentation which facilitated his release, does not withstand scrutiny. A person may hold a document, but not have it on them, and then be able to produce (or have it produced) sometime later. That said, the IMR’s conclusion on this issue is based on inferences drawn from the conclusions otherwise reached, particularly as to the applicant’s nationality, and the history of the applicant, his familial relationships, work and earnings, prior to leaving Iran. On that basis there is nothing illogical or irrational about the IMR’s conclusion on this point, when looked at on the basis of the totality of the evidence. Given the IMR’s conclusion that the applicant is an Iranian citizen it is entirely conceivable that, having been arrested because he did not have papers, that by the next morning he was able to somehow – and precisely how is not apparent, although it is worth observing that he lived in a familial environment in a small village – have relevant documents produced to his captors, the Basij, which facilitated his release. Ultimately, however, there is no issue for this Court in any event. That is because the detention arose from the application of a general law, applied to all Iranians, with respect to the treatment of persons found without papers. The detention was not for a Convention related reason, but because of a lack of documentation, as was found by the IMR.[72]
[72] CB 193 at para.58.
Likewise, it is therefore immaterial as to whether or not the members of the Basij who detained the applicant were Faili Kurd or not. Whether they were Faili Kurd or not is a factual mistake within jurisdiction, and not a jurisdictional error, particularly in circumstances where the detention was not for a Convention related reason.
Whether or not the IMR correctly concluded that the applicant was released as a result of someone’s “intervention” is also a factual issue, and even if the IMR was mistaken, it is a factual mistake within jurisdiction.
In all of the above circumstances, ground 1(b) has therefore not been made out.
Ground 1(c) - IMR failed to enunciate and apply any clear or coherent question of law for the determination of the citizenship, if any, of persons in Iran who are Faili Kurd
Applicant’s submissions
The applicant submits that the IMR’s analysis[73] canvassing the range of possibilities as to the nationality or citizenship of the applicant, before concluding that he is a citizen of Iran, is part of a process of fact finding that was procedurally unfair to the applicant, and “downright incoherent”.[74] Having correctly observed that the applicant could be any number of variations of citizenship with or without documentation[75] the IMR then purports to apply no test or standard, whether grounded in statute law of Iran, Iraq or otherwise on which to base his conclusion as to a mixed question of fact or law. Such an error must, in the applicant’s submission, amount to jurisdictional error. It was central to the applicant’s recommendation to the IMR because it formed a major component of the adverse finding on the applicant’s credibility.
[73] CB 191-193 at paras.47 and 55.
[74] Applicant’s Outline of Submissions, para.25.
[75] CB 191 at para.48.
Minister’s submissions
The Minister submits that:
a)the IMR was not required to enunciate any question of law for the determination of the citizenship of Faili Kurds in Iran. The issue of whether the applicant was a citizen of Iran was essentially a question of fact for determination by the IMR, based upon the applicant’s claims and evidence, the IMR’s assessment of those claims and evidence and the applicant’s credibility, and relevant country information;
b)the IMR noted a range of possibilities as to the nationality or citizenship of the applicant as a Faili Kurd from Ilam Province.[76] It was open to the IMR on the evidence and material before him and for the reasons which he expressed,[77] to conclude that the applicant was in fact a citizen of Iran; and
c)as the IMR’s determination of the applicant’s nationality was an issue of fact, and based in part upon his assessment of the applicant’s credibility, the failure to articulate and apply any particular test or standard for the determination of the applicant’s citizenship does not demonstrate any jurisdictional error.
[76] CB 191 at para.47.
[77] CB 192 at para.54.
Consideration of ground 1(c)
For reasons set out above, the IMR’s analysis of the citizenship possibilities pertaining to the applicant was:
a)not procedurally unfair; and
b)not “incoherent”.[78]
[78] See paras.26-35 above.
There was country information, as set out above, that supported factual findings made by the IMR:
a)about the categories in to which Faili Kurds from Ilam may fall, including the category of Iranian citizen; and
b)as to citizenship generally,
which was within the range of findings of fact with respect to citizenship available to the IMR, which when considered together with the applicant’s own history, enabled the IMR to conclude that the applicant was an Iranian citizen.
The question was, as the Minister submits, one of fact having regard to the available country information, which was sufficient to justify a conclusion by the IMR that the applicant was a citizen of Iran.
It follows that the applicant has failed to make out ground 1(c).
Ground 1(d) - IMR ignored relevant material
Applicant’s submissions
The applicant submits that:
a)the independent country information particularised at ground 1(d)(i)-(iv) was relevant, probative of the applicant’s claim and squarely before the IMR. Much of it was actually referred to by the IMR in the IMR Recommendation.[79] Moreover, it amounted to more than merely a line of evidence - it evidenced a relevant consideration, that it is that people of Kurdish ethnicity in Iran are likely to face persecution on the basis of that ethnicity to such a degree that amounts to serious harm. Nowhere in the analysis of the IMR is any credence given to the material. It is merely cited in an indiscriminate way under the heading “Independent Evidence/Country Information” and then ignored in the rest of the IMR Recommendation; and
b)to properly consider the applicant’s claims of persecution on the Convention grounds of race, nationality or membership of particular social groups the IMR needed to address this material and analyse its significance in light of the applicant’s narrative account. But its content was effectively ignored. From the point[80] where the IMR noted that the history of the applicant’s claims was generally consistent, the approach taken was essentially negative. This amounted to a jurisdictional error compatibly with the enunciation of principle in Minister for Immigration & Multicultural Affairsv Yusuf & Anor.[81]
[79] CB 178-189 at para.38, CB 183-185, 187 and see too 167-168.
[80] CB 190 at para.42.
[81] (2001) 206 CLR 323; [2001] HCA 30 (“Yusuf”).
Minister’s submissions
The Minister submits that:
a)the IMR clearly did not ignore the country information referred to in paragraphs (i)-(iv) of ground 1(d), as this country information was specifically referred to by the IMR;[82]
b)nor did the country information referred to in paragraph (i)-(iv) of ground 1(d) mandate a conclusion as a matter of law that the applicant faced persecution in Iran on the basis of his Kurdish ethnicity;
c)in relation to the information in paragraphs (i), (ii) and (iii) of ground 1(d), the IMR accepted that the applicant was a Faili Kurd from Ilam Province in Iran,[83] and while accepting that there is some degree of discrimination in Iran against ethnic minorities, including Faili Kurds, concluded that the degree of discrimination as experienced by the applicant was not of sufficient seriousness to constitute persecution under the Convention.[84] The IMR also found that the applicant’s detention by the Basij in 2005 was not by reason of a Convention ground,[85] and concluded that he did not accept that the applicant’s overall history gave him a profile such that he would be of adverse interest to the authorities or anyone else for reasons of a Convention ground.[86] It therefore cannot be said that, in assessing the applicant’s fear of persecution by reason of his Faili Kurd ethnicity, the IMR failed to consider the information in paragraphs (i), (ii) and (iii) of ground 1(d);
d)in relation to the information in paragraph (iv) of ground 1(d), that information became irrelevant once the IMR concluded that the applicant was a citizen of Iran;[87]
e)the individual pieces of information contained within the country information reports were particular pieces of evidence and not relevant considerations in the Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors sense;[88] and
f)even if it was established that the IMR had ignored the material in one or more of paragraphs (i)-(iv) of ground 1(d) (which is not conceded), no jurisdictional error would be established unless it could be shown that the ignoring of such material affected the exercise of power.[89]
[82] CB 182-185 and 187 at para.38.
[83] CB 193 at para.57.
[84] CB 193 at para.57.
[85] CB 193 at para.58.
[86] CB 193 at para.59.
[87] Abebe v The Commonwealth of Australia & Anor (1999) 197 CLR 510 at 545 per Gleeson CJ and McHugh J; [1999] HCA 14 at paras.85-86 per Gleeson CJ and McHugh J.
[88] (1986) 162 CLR 24 at 39-42 per Mason J. See also Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J.
[89] See Yusuf CLR at 351 and 352 per McHugh, Gummow and Hayne JJ; HCA at paras.82 and 84 per McHugh, Gummow and Hayne JJ.
Consideration of ground 1(d)
The country information referred to in ground 1(d) is no doubt relevant and probative generally to the possible persecution of Kurds, including Faili Kurds, in Iran. The IMR was required, however, to examine the country information as it affected the particular circumstances of the applicant in this case.
In the Court’s view the IMR did not ignore the country information set out at grounds 1(d)(i)-(iii). Indeed, as the applicant acknowledges, significant country information is set out in relation to these issues. In particular, the Court notes that:
a)under the heading “Human Rights and Treatment of Kurds in Iran”[90] there is commentary on:
[90] A topic discussed over four pages in the IMR Recommendation: CB 182-185.
i)the Iranian government’s disproportionate targeting of minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse;[91]
ii)the Iranian security forces arbitrary arrest and detention of individuals, often incommunicado, as part of an intensified crackdown against “ethnic minority rights activists”;[92] and
iii)the deterioration in the human rights situation in Iran in recent years, as reflected in the situation facing Kurds, such that even Kurds who are not politically active face increasing difficulties with the Iranian authorities, including discrimination and harassment solely on the grounds of ethnicity, and a rise in the level of discrimination and decrease in the level of tolerance since President Ahmadinejad came to power;[93]
b)under the heading “The Basij in Iran” the IMR sets out country information that indicates that Kurds residing in Iran, including Faili Kurds, are identified as threats to the internal stability of Iran and are therefore targeted by Basij members;[94] and
c)under the heading “Iran – General and in relation to minority groups” the IMR sets out country information:
i)which indicates that the Iranian government disproportionately targets minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse, and that the Kurds, amongst others, report political and economic discrimination particularly in relation to access to economic aid, business licenses, university admissions, permission to publish books, and housing and land rights. In relation to campaigns for Kurdish autonomy the country information set out notes that the Iranian government has consistently banned Kurdish language newspapers, journals and books and punished publishers, journalists and writers for opposing and criticising government policies. The Kurdish language is suppressed by not being taught in schools, and Kurdish NGOs are denied registration permits or are the subject of spurious charges against individuals working within those organisations. The country information speaks of “systematic suppression of efforts by Kurdish activists and dissenters from peacefully exercising freedom of speech and association, and violation of Kurdish minority rights”;[95] and
ii)a DFAT report (for which there is no date) which indicates that embassy staff in Iran are not aware of Faili Kurds being targeted because of their ethnicity, and that racially motivated violence against any group in Iran is rare.[96]
[91] CB 182 at para.38.
[92] CB 183 at para.38.
[93] CB 183 at para.38.
[94] CB 185 at para.38.
[95] CB 188-189 (the quote is from CB 189) at para.38.
[96] CB 189 at para.38.
It cannot be said that in drafting the IMR Recommendation the issues set out in ground 1(d)(i)-(iii) were not in the IMR’s mind, for each of them is extracted and set out in the country information cited above.
In the IMR Recommendation’s findings and reasons the IMR:
a)in the context of a discussion of the applicant’s citizenship makes reference to the applicant’s general claim and country information concerning undocumented persons, including undocumented Faili Kurds in Ilam and Iran, and that they are persons of adverse interest, and subject to arrest and deportation, but goes on to note that the applicant’s “experience of adverse interest and that of his family was minimal and in fact virtually non-existent”;[97]
b)in the context of the applicant’s assertion that his parents were expelled from Iraq to Iran in 1980, or thereabouts, and that the applicant now lives as an undocumented person in Iran, the IMR observed that “they have had no apparent problems with the authorities” and “provided no other history of any adverse interest from the authorities in relation to his immediate family.”[98] The IMR took the view that the applicant’s “family was able to lead a normal existence in Iran and this indicated that they were documented Iranian citizens”;[99]
c)referred to threats of harm or perceived harm, and that not every threat of harm fell within the Convention definition, and that a consideration of whether a person falls within the Convention definition of refugee by reference to threats of harm required “reasoned consideration of the historical evidence and a reasoned appraisal of the reasonably foreseeable future”;[100]
d)drew a conclusion in the following terms:
As detailed above I accept that the claimant is a Faili Kurd and formerly living in Ilam Province, and I have found that he is a citizen of Iran. I find that the country of reference is accordingly Iran. I accept that there is some degree of discrimination in Iran against ethnic minorities. This includes Faili Kurds. I accept that Ilam Province is underdeveloped and has a high unemployment rate, and this is partly due to neglect by the central government but also a lasting consequence of the Iran Iraq War, and the devastation of economic infrastructure in the 1980s. Despite this the claimant and his family have been able to live in a house provided by the claimant’s uncle. They have worked in labouring jobs and been paid relatively well. That the family was able to obtain such a large sum of money to pay for the claimant’s departure from Iran indicates they are not the impoverished family he would present, but had a degree of means and resources. I find that the degree of minor discrimination as experienced by the claimant is not of sufficient seriousness as could be considered as persecution as meant by the Convention.[101]
e)found that had the overall history of the applicant gave him a profile which meant that he was not of adverse interest to the authorities, or to anyone else, for reasons of a Convention ground.[102]
[97] CB 190 at para.43.
[98] CB 192 at para.49.
[99] CB 192 at para.49.
[100] CB 193 at paras.55-56.
[101] CB 193 at para.57.
[102] CB 193 at para.59.
In the circumstances, it cannot be said that the IMR failed to consider the substance of the country information particularised at ground 1(d)(i)-(iii). It is clear that the IMR had in mind the country information the subject of ground 1(d)(i)-(iii) when making relevant findings concerning whether there was a real risk of serious harm, and therefore a well founded fear of persecution, on the part of the applicant.
Ground 1(d)(iv) does not need to be addressed by the Court as the IMR found that the applicant was an Iranian citizen, and the Court has found that there were grounds upon which that conclusion can be sustained.
It follows that ground 1(d) has not been made out.
Ground 2
Ground 2 asserts that the IMR committed jurisdictional error in the course of arriving at the IMR Recommendation in that:
2.The Second Respondent did not consider, properly or at all, the distinct integer of the Applicant’s claims that he feared persecution on the Convention grounds of actual or imputed political opinion of being opposed to the current Iranian government and associated regime evidenced by:
(a)the pursuit one year ago by the Basij and the Revolutionary Guards of the Applicant’s neighbour who belonged to an armed group that opposed the Iranian government, causing those authorities to question the Applicant’s father and threaten harm to the Applicant’s family if the neighbour’s location was not revealed;
(b)following the neighbour’s capture soon after by the police and the Sepah, the Applicant’s family’s house being burnt down;
(c)the relevant independent country material referred to at ground 1(d)(i)-(iii) above.
Applicant’s submissions
The applicant submits that:
a)ground 2 is concerned with the integers of the applicant’s claim asserting a well-founded fear of persecution of actual or imputed political opinion of being opposed to the Iranian Government and the associated regime. These two related integers were grounded in the specific account given by the applicant as summarised in ground 2.[103] That specific account needed to be addressed with the totality of all of the more general account that had been provided by the applicant in support of the other integers of his claim;
b)these two related integers concerning political opinion were not addressed, let alone seriously engaged with, at all. Some limited factual findings were made in very sketchy terms.[104] The IMR actually found that the applicant’s father had “been involved with a situation with a neighbo[u]r” which was clearly referable to the account given concerning the neighbour. The assertion about the burning down of the family house was not addressed. Nor was the dimension of these integers of the claim that harm was feared by the applicant to be inflicted by the Iranian Government, or its representatives, or by the Basij. The IMR appeared to be under the misconception that the fear of persecution was confined to being inflicted by “the family or tribe of the neighbour”; and
c)to so misconceive the applicant’s claim went well beyond the making of wrongful findings of fact or failing to make findings of fact that the applicant would have contended for. Nowhere else in the IMR Recommendation are these integers of the applicant’s claim sourced in actual or imputed political opinion addressed. The Applicant was not properly heard as to this ground of his claim and, therefore, the function of the IMR Recommendation in advising the Minister concerning ss.46A and 195A of the Migration Act was not properly undertaken.
[103] See CB 11-12 and 45-46.
[104] CB 193-194 at para.60.
Minister’s submissions
The Minister submits that:
a)this ground is based on the applicant’s claims arising from an incident with a neighbour of the applicant’s family.[105] The incident was addressed by the IMR[106] who made findings that:
i)the family was protected by the authorities on the day – including by the police and Sepah – which indicated that State protection for this incident was available and provided;
ii)that incident had not resulted in any continued interest from the neighbour’s family; and
iii)even if it had resulted in harm and the family or tribe of the neighbour sought to harm the applicant’s father or family members, their motivation was not for reasons of a Convention ground;
b)the IMR’s findings and conclusions were reasonably open to the IMR and no jurisdictional error is disclosed by them. The applicant’s suggestion that the IMR did not properly consider the applicant’s claims is, in reality, seeking to review the merits of the IMR Recommendation, contrary to principles set out in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors;[107] and
c)the applicant’s claims regarding the incident with the applicant’s family’s neighbour related to his fear that the neighbour’s family and his armed group would kill the applicant and his family out of revenge and that he would receive no protection from the Iranian government against this armed group.[108] The applicant did not claim that this incident would result in the Basij or the Iranian government authorities imputing political opinion to him.
[105] CB 11-12 and 45-46.
[106] CB 193-194 at para.60.
[107] (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[108] CB 47 at paras.39-41.
Consideration of ground 2
As to the subject matter of ground 2 the IMR:
a)set out the claim made by the applicant during his entry interview on 2 May 2010 in the following terms:
He also claims that in the village where he lived his neighbour was involved in anti-government activity, and when the Basij and police came to arrest him he hid in their house. The Basij found him there. The neighbour’s family think that the claimant’s family handed him over and want to kill them. This is why the family left from their village and moved to Tehran in 2009. The neighbour had killed a Basij “and might have been politically active”. He states he personally was not involved with any armed or political groups.[109]
b)the IMR summarised the applicant’s 27 June 2010 statement as follows:
In relation to the incident concerning his neighbour he claims this neighbour “[name omitted]” belongs to one of the largest tribes in Iran, had “belonged to an armed group that opposed the Iranian government” and hid in the mountains near their village. The Basij and Revolutionary Guards surrounded the neighbour’s home and the neighbour jumped into and hid in their stable. The Basij and Revolutionary Guards came to the claimant’s house and questioned his father, and the father told them the man was hiding in the stable. Following this the man was captured and the family was afraid of being harmed by the neighbour’s family. He and his family then fled to Tehran to avoid the family and armed groups.
He claims in Tehran the family was too frightened to leave their home. They were scared of being found “by the armed group of family members of [name omitted]”. They feared that they would seek and harm them “out of revenge”. They feared being targeted by the Basij.[110]
c)set out what was said by the applicant at the IMR Interview on 5 April 2011 in the following terms:
… He said he had a problem “with a group of people they were threatening me and I had no choice but to leave my area and go to Tehran”. I asked for better detail of what he was talking about. He said they “were people doing illegal things … out of order … trading like in illegal weapons … bad people”. I advised this was not good enough and he needed to tell me what he was talking about. He said “troublemakers … going against the law and insulting other people … some were our neighbours and we weren’t able to stay living there … they were out of control of the government … couldn’t go out of the village”. I again asked for better detail. He said “one group was around our village and the police and the Basij were aware of this, and they came to capture him and surrounded his house and then he came and hid in our house, and the authorities were searching from house to house and when they came to our house they spoke to my father and asked him ‘have you got anyone hiding in your house’ and he said ‘yes’ and then they captured him, and it was because of this my parents had to move to Tehran”. The claimant confirmed that he knew of this as he was told by his family. He was at work at the time. He said that on the day the man was captured the authorities (police and Sepah) guarded the family home so that nothing would happen to them and “they allowed our family to leave”. That night their house was burnt down. The family moved to Tehran.[111]
[109] CB 174 at para.12.
[110] CB 175-176 at paras.22-23.
[111] CB 177 at para.31.
Having set out the factual background the IMR then addressed the issue in its findings and reasons in the following terms:
I am prepared to accept as true that the claimant’s father has been involved in a situation with a neighbour. That situation, as detailed above, did not involve the claimant as he was at work. I accept that at the time this would have been of significant concern to the family and as a result they fled the village and have relocated to Tehran. That the family was protected by the authorities on the day – including by the police and Sepah – indicates that State protection for this incident was available and provided, and also that the authorities had no issue about the status of the family. Again indicating they are Iranian citizens. That incident has not resulted in any continued interest from the neighbour’s family, though I accept that they continue to be fearful. Even if it had resulted in harm, and the family or tribe of the neighbours sought to harm the claimant’s father or family members, their motivation to harm them is not for reasons of a Convention ground. It is because they are seeking revenge over their perception of the father having informed on a neighbour.[112]
[112] CB 193-194 at para.60.
Although a claim with respect to actual or imputed political opinion of being opposed to the Iranian regime is mentioned in the March 2011 Submissions, those submissions contain no reference to the incident involving the neighbour.
In the July 2010 Submissions the following was submitted by the applicant’s migration agent:
[The applicant] and his family lived in constant fear of travelling around Iran due to the threat of being targeted by Iranian State agents like the Basij for harm including detention, violence and extortion. [The applicant] has personally experienced the brutal and discriminatory treatment of Basij officers when he was stopped around five years ago and detained for 24 hours during which time he was beaten.
In addition to this [the applicant] … also faces a threat to his and his family’s life as a result of his family’s involvement in assisting police in the capture of a neighbour … who was involved with an armed group. Given [the applicant’s] status in Iran and as a Faili Kurd, he would not be able to obtain protection from the threats of the armed group or those with connections to this group. The additional politically motivated threats on [the applicant] and his family then further exacerbating fears for his security in Iran.[113]
[113] CB 93.
In his statutory declaration of 27 June 2010 the applicant says:
In Iran, I would also fear I would be targeted by the armed group that [name omitted] was a member of out of revenge for my family’s involvement in his capture by the Basij. My family would be denied protection by the Iranian authorities because we are not Iranian citizens and as Faili Kurds. The Basij have targeted and discriminated against me in the past because I was Kurdish and did not have any documents proving that I was an Iranian citizen. I could not expect that they would protect me in Iran from this group.[114]
[114] CB 47.
There is no doubt that the IMR must consider all of the integers of an applicant’s claim where there is a substantial, clearly articulated argument relying upon established facts, and that the failure to do so is either a constructive failure to exercise jurisdiction or a denial of procedural fairness, or both.[115]
[115] Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 at 1092-1093 per Gummow and Callinan JJ; [2003] HCA 26 at paras.23-25 per Gummow and Callinan JJ; Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In the circumstances of this case, the issue is not whether the alleged persecution on the basis of political opinion or imputed political opinion arises from the non-Iranian citizenship of the applicant, because the IMR concluded he was an Iranian citizen, for reasons which the Court has already found withstands scrutiny upon judicial review, but whether the IMR addressed the issue of whether or not the applicant faced persecution by reason of political opinion or imputed political opinion arising from the fact that the applicant was a Faili Kurd. Put shortly, does the IMR’s consideration of the issue as set out above,[116] amount to a consideration of this integer of the applicant’s claim?
[116] See para.64 above, and the quote from CB 193-194 at para.60.
The IMR has not addressed the claim made by the applicant that if the family of the neighbour from the village found the applicant in Tehran the Iranian State would not provide protection because of, at least, the political opinion of opposition to the Iranian government imputed to the applicant as a Faili Kurd, albeit one of Iranian nationality. It is not enough to say, as the IMR has, that in the past, in the small village where the applicant and his family previously lived, that they were protected by the authorities on the day that they assisted the authorities to capture the father of the neighbour’s family by disclosing his whereabouts on the applicant’s family’s property. Nor is it sufficient to say that the actions of the Iranian State on that occasion disclosed no issue about the status of the family, and that they were Iranian citizens. This is because the question which now has to be addressed is whether, in the reasonably foreseeable future, the Iranian State, or quasi State operatives such as the Basij, would or would not protect the applicant, now living in Tehran, the capital city of Iran, from a revenge attack by the neighbour’s family, having regard to any anti-government political opinion imputed to the applicant as a Faili Kurd. The matter takes on more significance in the context of country information cited by both the applicant and the IMR which indicates that the Iranian regime has a deteriorating human rights record vis-a-vis Kurds, including Faili Kurds, post the 2009 election. In all the circumstances, it appears to the Court that the IMR did not consider whether or not the applicant had a well founded fear of persecution based upon a real risk of serious harm in the reasonably foreseeable future by reason of the applicant’s imputed political opinion as a Faili Kurd.
The motive for any attack by the neighbour’s family is, in these circumstances, not relevant, because what the applicant fears is a risk of harm arising from a failure by the Iranian State to act, consequent upon an anti-government political opinion imputed to him as a Faili Kurd.
In all the circumstances, ground 2 has been made out, and it follows that there should be a declaration accordingly. It also follows that there ought to be an order restraining the Minister, and others associated with the Minister, from acting upon the IMR Recommendation.
Conclusions and orders
The Court has concluded that:
a)ground 1 has not been made out; and
b)ground 2 has been made out, and that there ought to be a declaration and order accordingly.
There will therefore be:
a)a declaration that the IMR did not make his recommendation in accordance with the law by reason of his failure to deal with the applicant’s claim alleging a well founded fear of persecution by reason of the applicant’s imputed political opinion as a Faili Kurd; and
b)an order restraining the Minister, and others associated with the Minister, from acting upon the IMR Recommendation.
The Court will hear the parties as to costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 8 February 2013
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