WZAOY v Minister for Immigration
[2013] FMCA 28
•8 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOY v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 28 |
| MIGRATION – Judicial review – independent merits review – whether reviewer asked wrong question or failed to consider claim – whether failure to take into account country information as a relevant consideration – whether failure to consider whether a real chance of persecution or a well founded fear of persecution. |
| Federal Magistrates Court Rules 2001 (Cth), r.4.15, Schedule 1 Part 3 Migration Act 1958 (Cth), ss.36(2), 476, 477, 486E, 486F |
| 1001288 [2010] RRTA 912 Minister for Immigration & Citizenship v Khadgi& Anor (2010) 190 FCR 248; [2010] FCAFC 145 Minister for Immigration & Citizenship v SZJSS& Ors (2010) 243 CLR 164; [2010] HCA 48 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74 |
| Applicant: | WZAOY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 202 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 17 May 2012 |
| Date of Last Submission: | 30 May 2012 |
| Delivered at: | Perth |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms B Robbins (pro bono) |
| Counsel for the Respondents: | Mr R L Hooker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 202 of 2011
| WZAOY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Application
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 an independent merits reviewer,[3] finding that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and 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”) 127-143.
[3] “IMR”.
[4] “Convention”.
The applicant did not specify any grounds for judicial review, nor explicitly seek any relief, in his original application to this Court. On 23 April 2012 the Minister’s solicitor received an amended application from pro bono counsel acting for the applicant. The Minister did not oppose leave being granted to the applicant to substitute the amended application for the application initially filed,[5] and that leave was granted at hearing.[6]
[5] “Application”.
[6] Transcript, page 17.
Relief sought
The applicant seeks the following relief:
a)a declaration that the IMR Recommendation was not made in accordance with law, by reason of the ground/s of this Application;
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation;
c)that the Application be allowed; and
d)the Minister to pay the applicant’s costs of the Application, to be taxed if not agreed.
The relief sought as to costs is surprising, especially given that the Federal Magistrates Court Rules 2001 (Cth)[7] contain specific provisions fixing the usual costs in relation to an application to this Court under the Migration Act.[8] The usual provisions with respect to costs may be varied, up or down,[9] but not so as to provide for costs to be taxed if not agreed, unless costs were sought on the Federal Court costs scale,[10] which would be most unusual in a migration case.
[7] “FMC Rules”.
[8] FMC Rules, r.44.15(1) and Schedule 1, Part 3. But see also Migration Act, ss.486E and 486F in relation to costs and obligation where there is no reasonable prospect of success in migration litigation.
[9] Bunnag v Minister for Immigration & Anor (No. 2) [2008] FMCA 430 at paras.9-18 per Lucev FM, and cases there cited.
[10] Pratt & Ors v Latta & Ors (No. 2) [2002] FMCA 43 at para.6 per Driver FM; Pierson’s Pro-Health Pty Ltd v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at paras.40-49 per Lucev FM.
Jurisdiction
The 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.[11] The Minister acknowledges that the IMR Recommendation does not constitute a “migration decision” such that the time limit conferred on certain “decisions” by s.477 of the Migration Act is applicable.[12]
[11] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The 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”).
[12] Minister’s Outline of Submissions, para.6, citing SZQDZ & Ors v Minister for Immigration & Citizenship& Anor (2012) 200 FCR 207; [2012] FCAFC 26.
Background facts
The background facts are as follows:
a)the applicant is a national of Iran who was born on 16 July 1982. He arrived in Australia on 23 June 2010 on a genuine Iranian passport;[13]
b)on 27 August 2010 the applicant applied for a Refugee Status Assessment,[14] and was interviewed on that date for that purpose;[15]
c)on 7 October 2010, a Refugee Status Assessor, being a delegate of the Minister, concluded that the applicant did not meet the criteria for the grant of a protection visa and should not be recognised as a refugee;[16]
d)on 25 October 2010 the applicant applied for an independent merits review,[17] and on 1 April 2011 he was interviewed by the IMR for the purposes of such a review;[18] and
e)on 5 May 2011 the IMR Recommendation found that the applicant did not meet the criteria for the grant of a protection visa, and recommended to the Minister that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[19]
[13] CB 43; CB 128 at para.7.
[14] CB 37-47.
[15] CB 48-51 (“RSA Interview”).
[16] CB 89-96 (“RSA Decision”).
[17] CB 97-100.
[18] “IMR Interview”.
[19] CB 143 at paras.78-79.
Applicant’s claims
In summary, the applicant claims to fear persecution in Iran because:
a)he had been a vocal critic of the Iranian government, including on 4 June 2010 whilst travelling on a train on the Teheran Metro where he alleges he made disparaging comments concerning train services in Iran, which developed into a political discussion;[20]
b)he was subsequently followed by a person from the train,[21] and that the Follower got into, and subsequently alighted from, the same taxi taken by the applicant after he had disembarked the train, at the same time as the applicant got into, and subsequently alighted from the taxi;
c)after alighting from the taxi the Follower followed the applicant who was forced to walk through back streets and alleys to evade him;
d)the following day when the applicant was at work two undercover officers[22] came to his home to arrest him, and indicated to his mother (the applicant was at work) that he was wanted by the Iranian Intelligence Office;
e)the applicant went into hiding at a relative’s home in Teheran;
f)the applicant was informed that the family home was being watched by a stranger,[23] and the applicant was advised by his family not to return home;
g)the applicant then contacted a smuggler[24] in order to arrange his escape from Iran and he departed from Khomeini Airport in Teheran[25] on 7 June 2010;
h)after the applicant arrived in Jakarta he called his family and was told that three undercover officers[26] armed with a search warrant had searched his home in an effort to find him;
i)the applicant fears he will be persecuted by the government, the Basij or other militant groups in Iran because of his political opinion (opposition to the Iranian regime), or his religion (non-fundamentalist Shia Islam); and
j)the applicant fears he will be identified as a returnee from a Western country as he departed Iran on a one month visa.[27]
[20] “Metro Incident”.
[21] “Follower”.
[22] “Two Undercover Officers”.
[23] “Watcher”.
[24] “Smuggler”.
[25] “Khomeini Airport”.
[26] “the Three Undercover Officers”.
[27] CB 139 at para.58.
In addition to examining the applicant’s claims to fear persecution upon the Convention grounds of political opinion and religion, the IMR also considered the applicant’s claims under the Convention ground of membership of a particular social group, being a returnee from a Western country or a failed asylum seeker returning from a Western country.[28]
[28] CB 140 at para.60.
The IMR Recommendation
In the IMR Recommendation the IMR accepted that the claimant’s place of origin was the city of Karaj in Iran, where his family still reside. The IMR found that if the applicant was to return to Iran in the reasonably foreseeable future, he would return to Karaj.[29]
[29] CB 140 at para.62.
In relation to the manner in which the applicant alleged that he came to the adverse attention of the authorities the IMR found that:
a)the applicant had directly linked the adverse attention to the Metro Incident on 4 June 2010, and went on to find that the applicant had asserted that the Iranian Intelligence Office was seeking the applicant out because of the Metro Incident. The IMR specifically found that a claim made in November 2010, following the RSA Decision, that it was the Basij and not the Iranian Intelligence Office that was seeking out the applicant was a late manufactured claim made in order to explain how the applicant was able to depart Iran from Teheran Airport without interference;[30]
b)the applicant had had ample opportunity to give evidence concerning his religious practices and views, but had not referred to any evidence or incident which would indicate that he had suffered harm on the basis of his religion. The IMR, therefore, did not accept that the applicant’s religious views or lifestyle would lead him to face persecution in Iran;[31]
c)it was plausible that the applicant had anti-government views, because anti-government views were held by a large portion, and perhaps a majority, of adult Iranians, following the June 2009 Presidential election;[32]
d)the applicant’s evidence to the IMR that he voted for the incumbent President in the 2009 Election was, however, a claim which undermined the applicant’s claims to have strongly held anti-government views, and to have taken every opportunity to express his anti-government views. The IMR did not accept that the applicant voted for the incumbent President merely for the purpose of having a seal placed on his birth certificate in order to obtain a government job, as a seal is placed on the birth certificate for the act of voting.[33] The applicant did not attend any demonstrations or undertake any political activism either before or after the 2009 Election, and agreed that he had no political profile, other than speaking very firmly against the government and encouraging people against the government. The IMR concluded that the applicant’s lack of political activism undermined his claims to have strongly held anti-government political views and to have taken every opportunity to express those views;[34] and
e)the IMR did not accept that the applicant had strongly held anti-government political views, or that he had publicly expressed those views, and therefore had serious concerns about the applicant’s story concerning the Metro Incident. Those concerns were reinforced by the nature of the story about the applicant’s evasion of the Follower after he had alighted from the taxi, and doing so successfully, and therefore being unable to explain how it was that the authorities had traced his identity and residence overnight, in circumstances where he did not claim that there was any other way that he could have been identified, or identified so quickly. Further, he had no political or activist profile which would explain such ready identification by the Iranian authorities.[35]
[30] CB 140 at para.63.
[31] CB 140 at para.64.
[32] “2009 Election”; CB 140 at para.65.
[33] CB 141 at para.66.
[34] CB 141 at para.67.
[35] CB 141 at para.68.
In relation to the applicant’s departure from Khomeini Airport the IMR accepted that the applicant departed on a legal Iranian passport without difficulty. That, however, caused the IMR concerns with the applicant’s story because:
a)his departure without difficulty was inconsistent with the allegation that the Iranian authorities had so efficiently identified and located him after the Metro Incident, and then allocated the Two Undercover Officers to seek him out to have him arrested. In those circumstances, the IMR did not accept that the authorities would have failed to ascertain that the applicant had a passport, and that he had not been placed on a wanted list at the same time;[36]
b)the applicant’s explanation that only people “with a case”, such as political people, were stopped at the airport undermined his claim that the authorities were actively seeking him for arrest because of his publicly expressed political opinion;[37]
c)the applicant had not speculated that the Smuggler had used bribery to get him through the various security checks at the airport until after the RSA Decision, and had not provided any details as to how bribery facilitated his departure. Given that the lateness of the claim and vagueness, or lack of details, as to how the bribery was arranged without the applicant’s awareness, the IMR rejected the applicant’s claim that he was able to depart Iran through Khomeini Airport as a result of bribery;[38] and
d)as indicated above, the IMR also found that the claim that the investigating officials were Basij and not government officials from the Iranian Intelligence Office was a late claim, manufactured after the applicant’s claim had been rejected by the RSA Decision, and was not a claim which the IMR accepted.[39]
[36] CB 141-142 at para.71.
[37] CB 141-142 at para.71.
[38] CB 142 at para.72.
[39] See para.10(a) above.
As to the applicant’s credibility the IMR found that the applicant was not a credible witness, and did not accept:
a)that he held anti-government political views or had publicly expressed those views;
b)that the Metro Incident occurred, or that the applicant had ever come to the adverse attention of the Iranian authorities, or any of the quasi government groups responsible for the enforcement of the Iranian authorities’ political and religious views;
c)that the applicant’s non-fundamentalist lifestyle and religious views did not expose him to a risk of harm; and
d)the fact that the applicant was not a witness of truth was reinforced by his claim, on arrival at Christmas Island, that he was a Faili Kurd, and that his later explanations, including that:
i)his nationality was not important to him;
ii)the majority of the people on his table were Kurds so he just followed them by saying that he was Kurdish;
iii)he was influenced by the interpreter; and
iv)he was unwell when he arrived but later felt better,
did not in the IMR’s view explain why he gave such significantly false information about his ethnicity in his first contact with Australian immigration officials. The IMR found that the applicant did so in order to facilitate a favourable migration outcome.[40]
[40] CB 142 at paras.74-75.
Critically, at paragraphs 76 and 77 of the IMR Recommendation, the IMR found as follows:
Returnee to Iran
76.I accept that any attempt to involuntarily return the claimant as a failed asylum seeker to Iran would require consultation with Iranian authorities. However, the country information shows that a returnee who left Iran illegally and applied for asylum overseas would likely merely be detained, questioned and find on their return. In the present case, I find the claimant departed Iran in the usual way on his legal passport. I find the incident on 4 June 2010 did not happen and that the government/pro-government agents have no interest in the claimant. Also, I do not accept that the claimant took part in any political demonstrations, or political or civil society activities in Iran. I find he has no political profile in Iran at all. There is nothing in his background, employment or profile that suggests he would be of adverse interest to the authorities. On the material before me, I do not accept the mere fact of his coming to Australia and seeking asylum would cause him to be persecuted on his return to Iran. I conclude that if he returns to Iran, in the reasonably foreseeable future there is not a real chance he will face serious harm amounting to persecution for a Convention reason of political opinion, religion, or membership of a particular social group such as: returnees from a Western country; or failed asylum seekers returning from a Western country; or as a returnee for any reason.
Conclusion
77.I do not accept that the claimant had strongly-held anti-government views, or that he publicly expressed whatever anti-government views he did have. I reject in total his story concerning a vehement anti-government discussion with strangers on the metro on 4 June 2010, being then followed by a stranger, and all of the claims that flow from his story. I do not accept that anyone came looking for him the next day, or that he fled Iran for the reasons he has given. I conclude he departed Iran on his legal passport in the usual way without any urgency and without fear of the Iranian authorities. I accept that he used a people smuggler to make arrangements to come to Australia by boat, but do not accept he used a people smuggler to organise his departure from Iran. I do not accept the authorities, armed with a search warrant, have subsequently searched his parents’ home, trying to find him. I do not accept that the Iranian authorities, Basij and/or other militant groups in Iran have any interest in the claimant for the reasons he claims. I do not accept that in Iran he will face a real chance of persecution for reason of his religion, political opinion (real or imputed), or membership of a particular social group, or for any other Convention reason.[41]
[41] CB 142-143 at paras.76-77 (the emphasis on “illegally” is in para.76 of the IMR Recommendation as quoted).
Based on the above factual and credibility findings the IMR was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention.[42]
[42] CB 143 at para.78.
The grounds of the Application
There are three separate grounds for the Application, each particularised. Each ground is dealt with separately below.
Ground 1
Ground 1 is as follows:
1. The second respondent made a jurisdictional error in its decision (GER044) (“the decision”) made on 5 May 2010[43] in that it asked itself the wrong question in relation to, and, or, failed to consider, a material claim or case advanced by the applicant.
Particulars
(i) the applicant claimed he feared that he would be identified by the Iranian authorities as a returnee from a Western country: CB139 - last bullet point;
(ii) the second respondent found that the return of the applicant to Iran would involve him coming to the attention of the Iranian authorities as a failed asylum seeker: CB142 [76];
(iii) the second respondent conflated or confused the question of whether the applicant would face persecution as a failed, returned asylum seeker with the question of whether he would be persecuted on his return for having left Iran illegally (even though the second respondent had found that the applicant had left legally: CB142 [76]; CB143 [77]);
(iv) there was relevant, credible country information to the effect that it was possible that failed, returned asylum seekers may be maltreated on their return to Iran (see the DFAT information at CB136 R1, R3; and at CB137 R5);
(v) by so conflating or confusing the questions, the second respondent did not consider or assess a material claim or case advanced by the applicant and, or, did not consider or assess it in light of the relevant, credible country information.
[43] The correct date is 5 May 2011; see para.6(e) above.
Applicant’s submissions
The applicant submits as follows:
a)in making findings that the applicant would not face a real chance of persecution, the IMR conflated or confused the question of whether a returnee who departed Iran legally and applied for asylum overseas (such as the applicant here) would face serious harm upon return to Iran with the question of whether a returnee would face serious harm for leaving Iran illegally (which is not the applicant’s claim);
b)these are two separate and discrete questions. In the applicant’s case, the IMR ought to have asked whether the applicant, who left Iran legally, would face serious harm on return as a failed asylum seeker. From a fair review of the reasons, it appears that the IMR did not focus on that claim by the applicant;
c)the IMR found that the applicant had left Iran legally;[44]
[44] CB 142-143 at para.76-77 set out at para.13 above.
d)the IMR also found that the return of the applicant to Iran would mean he would come to the attention of the Iranian authorities, and so the Iranian authorities would know he had unsuccessfully applied for asylum in Australia;[45]
[45] CB 142 at para.76.
e)the IMR in considering and reciting country information, however, focussed on whether a person who had left illegally would face persecution on their return.[46] This focus informs and limits the IMR’s consideration;
[46] See the discussion under the heading of “Re-entering Iran” at CB 135-137 at paras.48-52.
f)the IMR then appears to tack the position of a failed asylum seeker onto the end of its consideration of a person who left illegally. For example, the IMR stated:
...a returnee who left Iran illegally and applied for asylum overseas would likely merely be detained, questioned and fined on their return ...[47]
[47] CB 142 at para.76.
g)because the IMR conflated or confused these two questions, he failed to answer the question which he was required to answer about the applicant, and, in turn, reached the conclusion that the applicant did not face a real chance of serious harm amounting to persecution for a Convention reason,[48] without focussing on a viable part of the applicant’s case;
[48] CB 143 at para.76.
h)further, and also consequently on that error, the IMR failed to consider or assess, as was required by law:
i)relevant, credible country information to the effect that it was possible that failed asylum seekers may be mistreated on their return to Iran;[49] or
ii)a material claim or case advanced by the applicant, namely that the applicant claimed he would be persecuted in Iran because of his status as a failed asylum seeker;[50] and
i)the IMR fell into jurisdictional error by failing to properly take into account relevant country information or the applicant’s claims and case. For example:
i)in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs,[51] the Court found that the Tribunal should carefully attend to material which was central to an applicant’s claim, and by failing to do so in a lawful way, it fell into jurisdictional error;
ii)in Dranichnikov v Minister for Immigration & Multicultural Affairs,[52] the Court found that the Tribunal erred in law when it misstated and failed to deal with the applicant’s case presented to it; and
iii)in the present case, by asking the wrong question and failing to deal with the applicant’s case presented to him, the IMR fell into legal error.[53]
[49] See Department of Foreign Affairs and Trade (“DFAT”) advisory informations at CB 136 R1, R3 (“2007 DFAT Advice”) and at CB 137 R5 (“2010 DFAT Advice”).
[50] CB 122.
[51] [2003] FCAFC 80 at para.22-23 per Madgwick and Conti JJ (“SCAT”).
[52] (2003) 77 ALJR 1088 at 1092-1093 per Gummow and Callinan JJ; [2003] HCA 26 at paras.23-27 per Gummow and Callinan JJ (“Dranichnikov”).
[53] Citing Re Minister for Immigration & Multicultural Affairs& Anor v Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
Minister’s submissions
The Minister submitted as follows:
a)the IMR found the applicant not to be a credible witness. This was reinforced by the fact that the applicant made a false claim upon arrival at Christmas Island that he was a Faili Kurd;[54]
b)the IMR noted the claim made in the applicant’s then lawyer’s submissions of 16 November 2010 that the Basij, and not the Iranian Intelligence Office, were concerned with the applicant and that the Basij may not have communicated their suspicions to intelligence agencies in time to prevent the applicant’s departure from Iran. The IMR noted, however, that it was clear from the applicant’s statement of 27 August 2010 that the applicant had claimed that it was officials in the “Iranian Intelligence Office” who were interested in him, and found that later speculations regarding the Basij were a manufactured claim to explain how the applicant was able to depart Iran from Khomeini Airport;[55]
c)regarding the claimed fear of persecution on the ground of religion, the IMR observed that, despite ample opportunity, the applicant did not refer to any evidence that he was an apostate or un-Islamic in his practices, or that his religious views played any part in the Metro Incident of 4 June 2010, nor any other incident which evinced harm. Accordingly, the IMR did not accept that the applicant’s religious views or lifestyle would lead him to face persecution in Iran;[56]
d)the IMR did accept that the applicant may have protested against the government, but was not persuaded by the applicant’s claim that he only voted for President Ahmadinejad in order to get a better job. Instead, the IMR concluded that the fact that the applicant voted for Mr Ahmadinejad undermined his claims to have strongly held anti-government political views and to have taken every opportunity to express such views;[57]
e)the IMR found that the applicant had not attended any demonstrations or undertaken any political activism, which also undermined his claims of holding anti-government political views. Accordingly, the IMR concluded that the applicant did not hold strongly anti-government views and that, therefore, the premise behind the Metro Incident was a false one. Thus it was found that the Metro Incident did not take place;[58]
f)having earlier referred to relevant independent country information,[59] and given the earlier findings that the applicant had no adverse political profile and that he departed on a genuine and legal passport, the IMR concluded that the applicant would not face harm upon return to Iran by reason of coming to Australia and seeking asylum;[60]
g)the IMR concluded that the applicant did not face a real chance of persecution for reason of his religion, political opinion (real or imputed), membership of a particular social group, or for any other Convention reason;[61]
h)the IMR was cognisant of each of the applicant’s claims, individually and cumulatively. The IMR demonstrated his understanding of the particular claim of a well-founded fear of persecution by reason of being a failed asylum seeker by discussing it with the applicant in the context of certain country information concerning Iran.[62] Subsequently, under the heading “Findings and Reasons” and the subheading “Claims”, the IMR specifically stated he was considering the applicants claims under the Convention ground of membership of a particular social group such as returnees from a Western country, or failed asylum seekers returning from a Western country;[63]
i)moreover, and contrary to the applicant’s Outline of Submissions, the IMR’s review of country information did encompass material dealing with the circumstances of failed asylum seekers on return to Iran;[64] and
j)the reasoning in the paragraph fastened on by the applicant in ground 1,[65] does, on a fair reading (and particularly so in light of the earlier references) return to, and reach a conclusion rejecting, this integer of the claims. The ground falls into error in attempting to fashion a ground of review from a minute and over zealous examination of the IMR’s reasons, contrary to the oft-cited warning of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors.[66]
[54] CB 142 at paras.74-75.
[55] CB 140 and 142 at paras.63 and 73.
[56] CB 140 at para.64.
[57] CB 140-141 at paras.65-66.
[58] CB 141-142 at paras.67, 68 and 74.
[59] CB 134-139 at paras.46-56.
[60] CB 142-143 at para.76.
[61] CB 143 at para.77.
[62] CB 133 at para.38, dot points 2 and 3.
[63] CB 140 at para.60.
[64] CB 135-137 at paras.48, 51 and 52.
[65] CB 142-143 at para.76.
[66] (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Consideration – ground 1
The IMR considered the question of whether the applicant would be persecuted on return to Iran and concluded that he would not be persecuted for a Convention reason of political opinion, religion or as a member of a particular social group, including:
a)returnees from a Western country;
b)failed asylum seekers returning from a Western country; or
c)returnees for any reason.[67]
[67] CB 142-143 at para.76.
The applicant complains that the IMR failed to ask whether the applicant, having left Iran legally, would face serious harm on return as a failed asylum seeker.
The IMR did, however, consider whether the applicant would face serious harm on return to Iran as a failed asylum seeker, and concluded that he would not.[68] The IMR did so against the background of country information, that the IMR considered and set out, which indicated that a person without a political “profile” would be unlikely to be persecuted on return to Iran, such that:
[68] CB 142-143 at para.76.
a)returning individuals without a profile might be monitored, but would not be persecuted;[69]
[69] CB 136 at para.51 – 2007 DFAT Advice R1.
b)DFAT was not aware of widespread maltreatment of returnees;[70]
c)DFAT was not aware of any specific case of returned asylum seekers being detained or tortured;[71]
d)DFAT was unaware of any “specific information” which suggested returning asylum seekers would be maltreated;[72]
e)recently, in 2010, DFAT advised that “low level protesters have left and returned to Iran without hindrance”;[73] and
f)the UK Home Office concluded that they had seen “no evidence” that failed asylum seekers:
i)who had illegally exited Iran; or
ii)deportees (which must include people who had left Iran legally),
“found any significant problem upon return to Iran” unless they were “high profile”,[74] which the applicant, on his own admission, was not.[75]
[70] CB 136 at para.51 – 2007 DFAT Advice R1.
[71] CB 136 at para.51 – 2007 DFAT Advice R3.
[72] CB 136 at para.51 – 2007 DFAT Advice R3.
[73] CB 137 at para.52 – 2010 DFAT Advice R5.
[74] CB 137 at para.53.
[75] CB 134 at para.43.
Factual findings from country information are matters for the IMR exclusively,[76] and there was clearly sufficient, and authoritative, country information which enabled the IMR to conclude that a returnee to Iran would not face persecution on Convention grounds by reason of being a returnee from a Western country or a failed asylum seeker, whether having left Iran legally or illegally, contrary to the applicant’s complaint that the IMR conflated the question of whether the applicant left Iran illegally or legally, and failed to consider the latter which was the applicant’s actual position and claim.
[76] Wu Shan Liang & Ors at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 per Gummow and Hayne JJ; [1999] HCA 14 at paras.195 per Gummow and Hayne JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ.
The Court does not accept the complaint of the applicant. The IMR was clearly appreciative of the distinction between a person who had left Iran illegally, highlighting that word in the relevant part of its decision,[77] and the position of the applicant who had left Iran legally. At paragraph 76 of the IMR Recommendation it can be seen that the IMR contrasted the position of a person who has left Iran illegally with that of the applicant as a person who has left Iran legally, before going on to find that there is “nothing” in the applicant’s “background, employment or profile that suggests he would be of adverse interest to the authorities” and that the “mere fact of his coming to Australia and seeking asylum” would not cause him to be persecuted on his return to Iran.[78] That was a factual finding entirely consistent with an interpretation of country information which was open to the IMR. In the Court’s view there is no doubt that the IMR considered the applicant’s position as a person who had left Iran legally, before determining that no person returning to Iran as a failed asylum seeker or as a returnee from a Western country, faced persecution if, like the applicant, they had no political profile.
[77] CB 142 at para.76, set out at para.13 above, and see fn.41 above.
[78] CB 142-143 at para.76.
In the circumstances, the judgments in Dranichnikov and SCAT do not assist the applicant. Insofar as this ground of the Application is concerned the IMR has considered the applicant’s case, and dealt with it. Likewise in relation to SCAT, it is the case that insofar as the applicant’s case was clearly and sufficiently raised, the IMR has dealt with it in relation to this ground of the Application.
In any event, the question of whether a failed returning asylum seeker, or returnee from a Western country, to Iran would be persecuted does not appear to turn, on the country information, on whether the person left Iran legally or illegally. Rather, it depends upon the person’s profile as a protester or activist prior to their leaving Iran, whether legally or illegally. In the circumstances of this case that does not assist the applicant because the applicant admitted he had no profile as a protester.[79] The applicant would therefore not have been a person who would have attracted adverse interest from the Iranian authorities on his return to Iran, in any event, and that finding was open to the IMR.
[79] CB 134 at para.43.
In all of the above circumstances, ground 1 is not made out.
Ground 2
Ground 2 is as follows:
2. Further or in the alternative to Ground 1, the second respondent made a jurisdictional error in finding that Australia did not owe protection obligations to the applicant under the 1951 Refugee Convention relating to the Status of Refugees, as amended by the 1957 Protocol relating to the Status of Refugees: CB143 at [78], in that:
Particulars
(i) the second respondent failed to properly or genuinely take into account relevant considerations, namely country information which indicates that the applicant would face a “real chance” of persecution on the basis of anti-government opinion imputed from an attempt to seek asylum overseas.
(ii) the country information referred to in sub-paragraph (i) above is: DFAT information at CB 136 R1, R3; and at CB 137 R5; and also information from Dr Corlett at CB 117-118, from the Canadian Immigration and Refugee Board of Canada at CB119, and from “the Age” at CB 118.
Applicant’s submissions
In relation to ground 2 the applicant submitted that:
a)the second ground of review is further or alternative to Ground 1 and relates to the IMR’s findings that the applicant would not face a real chance of persecution if he returns to Iran as a failed asylum seeker. The IMR states:
... On the material before me I do not accept the mere fact of his coming to Australia and seeking asylum would cause him to be persecuted on his return to Iran. I conclude that if he returns to Iran in the reasonably foreseeable future there is not a real chance that he will face serious harm amounting to persecution for a Convention reason of political opinion, religion, or membership of a particular social group such as returnees from a Western country, or failed asylum seeker coming from a Western country; or as a returnee for any reason.[80]
[80] CB 143 at para.76.
b)in making these findings, the IMR drew upon his conclusions of the country information which refer to a returnee who left Iran illegally;
c)in so doing, the IMR failed to properly or genuinely take into account relevant considerations, namely, country information provided by the applicant supporting the claim that failed asylum seekers entering Iran would, in the foreseeable future, come to the attention of the Iranian authorities and thereby face a real risk of ill treatment amounting to persecution on their return as result of the political connotations placed on the act of seeking asylum;[81]
[81] CB 117-122.
d)although the IMR states:
... I have had regard to country information specifically referred to, and cited in the submission provided on behalf of the claimant, and in the RSA,[82]
[82] CB 134 at para.46.
the applicant submits that the IMR gave only formulaic and cursory, rather than real and genuine consideration to country information that was credible, relevant and significant to the decision to be made, in that:
i)the IMR did not engage with or put his mind to certain relevant country information in his assessment of the applicant’s claim; and
ii)in the assessment of the applicant’s risk of facing persecution, the IMR ignored important parts of the 2007 DFAT Advice,[83] and the 2010 DFAT Advice,[84] and took no account of some relevant and persuasive material in the applicant’s submission;
[83] CB 136 at para.51.
[84] CB 136 at para.52.
e)the 2007 DFAT Advice and the 2010 DFAT Advice regarding the likely fate of failed asylum seekers from Western countries[85] were raised selectively, and the cautionary aspects of the responses, such as the Australian post’s lack of knowledge were neglected;[86]
[85] CB 143 at paras.76-77.
[86] CB 133 at para.38 dot point 3.
f)the IMR ignored other reliable material before him that at least some failed asylum seekers from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, including reports of physical harm, and at least one report of a returnee dying. This information, which was significant and material to the issues to be decided, was not taken into account. It includes information in the applicant’s submission from:
i)Dr David Corlett of La Trobe University;[87]
[87] CB 117 – 118 (“Dr Corlett’s Information”).
ii)The Canadian Immigration and Refugee Board of Canada;[88] and
[88] CB 119 (“Canadian Board Information”).
iii)The Age on 3 September 2004;[89]
[89] CB 118 (“The Age Report”).
g)Dr Corlett’s Information states that after speaking to a number of returnees during a visit to Iran he found the treatment they received at the hands of the Iranian authorities varied. For example, one returnee had remarked:
his family had paid bribes to ensure his safety...But despite the bribes, when he arrived in Iran, he had his money stolen and he was jailed at one of the notorious Iranian prisons. Because of the bribes, he was released after many months and extensive interrogation....
h)the Canadian Board Information refers to two reported cases where Iranian deportees from Canada were subjected to mistreatment when they returned to Iran and one case where the returnee “died after receiving 100 lashes in prison”. In the other case, a female student activist was detained for 26 hours and “was struck on the head twice in prison when she refused to sign a document denouncing Canada”;
i)The Age Report states “the whereabouts of an Iranian man who had been forcibly returned home under a deal between the Australian Government and Iran was unknown”. Further, this former detainee at the Port Hedland detention centre was reportedly from a “politically active family...”. The Age also reported that a woman forcibly returned had been “detained and interrogated by Iranian intelligence officers for up to five hours on arrival before being released”;
j)the DFAT responses in the 2007 DFAT Advice and the 2010 DFAT Advice[90] which the IMR cited were conditional rather than definitive as to the likelihood of failed asylum seekers being mistreated or tortured upon their return to Iran. They contained clarifying qualifying statements and noted that the post itself was simply unaware of actual cases, not that they did not exist. For example:
[90] Together, the “DFAT Advices”.
i)R3. of the 2007 DFAT Advice:
We are not/not aware of any specific cases of returned asylum seekers being detained or tortured on their return to Iran. However, the regime would be unlikely to allow public information about such activity to be disseminated. It is possible that such activity takes place without our knowledge. ... However, while the possibility cannot be discounted we are not aware of any specific information to suggest that the act of applying for asylum per se would trigger maltreatment...[91]
[91] CB 136 at para.51 (applicant’s emphasis).
ii)R5. of the 2010 DFAT Advice:
It is unlikely that all returned asylum seekers would suffer severe mistreatment by the regime. As per our advice in TR635194L, low level protesters have left and returned to Iran without hindrance, although others have been stopped. We do not know on what basis authorities make such decisions. It may be that they are unaware of a person’s political activities[92]
[92] CB 137 at para.52.
k)DFAT:
i)may not have had sufficient relevant on-the-ground intelligence about the activities of the regime to provide a definitive and accurate response, and there is an implication that information provided by regime sources is suspect; and
ii)does not discount the fact that some, as opposed to all, returned asylum seekers may suffer severe mistreatment. Further, it does not know why authorities make such decisions;
l)the IMR committed a jurisdictional error by omitting to fully consider relevant material such as Dr Corlett’s Information, the Canadian Board Information and The Age Report cited above;
m)the IMR Recommendation did not deal with the clarifications in the DFAT Advices, nor did it acknowledge the danger of accepting country information sourced from authorities in a regime known for its intolerance of human rights and corruption;
n)implicit in the notion of “review” of the RSA Decision is an obligation on the IMR to consider important aspects of an applicant’s claim. There is a requirement for the IMR to come to the correct and preferable decision on all the material before it;[93]
o)in meeting this obligation, a reviewer is required to give proper, genuine and realistic consideration to the merits of the case.[94] The applicant submits that the country information referred to in Dr Corlett’s Information, the Canadian Board Information and The Age Report above is critically important to the applicant’s claim, however, the IMR did not engage with it, or ignored it;[95] and
p)the IMR failed to perform this imperative duty to carefully attend to important aspects of applicant’s claim, and thereby fell into jurisdictional error.[96]
[93] Citing WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at 579 per Lee and Moore JJ; [2004] FCAFC 74 at paras.50-51 per Lee and Moore JJ.
[94] Citing Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 at paras.25 and 34-44 per Gummow J (“Khan”).
[95] Citing Minister for Immigration & Citizenship v Khadgi& Anor (2010) 190 FCR 248 at 270 per Stone, Foster and Nicholas JJ; [2010] FCAFC 145 at para.57-59 per Stone, Foster and Nicholas JJ.
[96] Citing SCAT at paras.22-30 per Madgwick and Conti JJ.
Minister’s submissions
The Minister submits as follows:
a)ground 2 is in part based on a claimed ground of review concerning the need for an administrative decision-maker to give “proper, genuine and realistic consideration to the merits of a case”. The subject was recently examined by the High Court in Minister for Immigration & Citizenship v SZJSS& Ors.[97] The following aspects of the High Court’s analysis in SZJSS are of particular importance to this case:
[97] (2010) 243 CLR 164 at 174-177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 48 at paras.23-36 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“SZJSS”).
i)in Swift v SAS Trustee Corporation[98] the New South Wales Court of Appeal held that the merits of a particular case must be properly considered, and that taken out of that context, the epithets “proper”, “genuine” and “realistic” are apt to encourage a slide into impermissible merit review;[99]
ii)the High Court noted earlier comments of Gummow J (when a judge of the Federal Court) in Khan,[100] holding that what the Minister’s delegate was required to do in the context of the grounds pressed in that earlier case was “give proper, genuine and realistic consideration to the merits of the case and be ready to depart from any applicable policy”;[101]
iii)the High Court accepted that the Federal Court had employed the language of “proper, genuine and realistic consideration” to register the Court’s response to a weighing of the evidence with which the Court disagreed,[102] and said[103] that this did not amount to jurisdictional error of the kind discussed by the High Court in Minister for Immigration and Citizenship v SZMDS[104] (in essence, reaching a “satisfaction” that is irrational, illogical, or not based on findings or inferences of fact supported by logical grounds). Moreover, the preference of the Refugee Review Tribunal in that case for certain evidence did not give rise to jurisdictional error by way of failing to take into account a relevant consideration or failing to respond to a substantial argument;[105] and
iv)thus the appeal was allowed, and the High Court concluded that the Refugee Review Tribunal had not committed any jurisdictional error;[106]
b)a recent Full Court of the Federal Court has applied SZJSS in reiterating the point that emphatic judicial disagreement with a decision-maker’s reasoning is not a sufficient basis to make out a ground of illogicality or irrationality in decision-making.[107] Such an approach helps maintain the distinction between judicial and merits review of administrative decision-making. A related point is that reasons of an administrative decision-maker are meant to inform, and not to be scrutinized in an over-zealous fashion;[108]
c)the Application falls foul of these principles and, ultimately, constitutes an impermissible attempt to invite this Court on judicial review to disagree with the factual findings of the IMR and to undertake a merits review;
d)it was open to the IMR to view the applicant’s credibility adversely. In light of that, a rejection of the strength or degree of the applicant’s anti-government political views and the extent of his expression of those views, was a factual finding wholly within the province of the administrative decision-maker. The fact that certain independent country information deals, at a general level, with potential consequences for persons who hold an anti-government opinion does not affect the validity of the IMR’s conclusion regarding this integer of the applicant’s claims; and
e)ground 2 further adverts (as developed in submissions) to jurisdictional error of a Peko-Wallsend[109] character – that is, a failure to take into account a relevant consideration. But variations on the accepted ground of judicial review are advanced: for example, the IMR ignored other reliable material before him, omitting to fully consider relevant material.[110] Such variations inevitably signal a slide into an invitation to undertake merits review. As noted at sub-paragraph (a)(iii) above, a preference for certain evidence over other evidence does not amount to jurisdictional error.[111]
[98] (2010) 6 ASTLR 339; [2010] NSWCA 182 (“Swift”).
[99] Swift ASTLR at 351-352 per Basten JA (with Allsop P agreeing); NSWCA at para.45 per Basten JA (with Allsop P agreeing).
[100] Cited in SZJSS at CLR at 174-175 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.26 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[101] SZJSS at CLR at 174-175 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.26 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, quoting Khan at 292 per Gummow J.
[102] SZJSS CLR at 176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.31-33 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[103] SZJSS CLR at 176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.32 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[104] (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”).
[105] SZJSS CLR at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.35 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[106] SZJSS CLR at 179 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.47-48 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[107] SZOOR v Minister for Immigration & Citizenship& Anor (2012) 202 FCR 1 at 4-5 per Rares J; [2012] FCAFC 58 at paras.5-6 per Rares J.
[108] Citing Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[109] A reference to Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24.
[110] Applicant’s Outline of Submissions at paras.22 and 29.
[111] SZJSS CLR at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.35 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Consideration – ground 2
Insofar as the applicant’s submissions indicate that ground 2 is based upon the premise that the IMR made the challenged findings based upon conclusions in relation to country information referring to a returnee who left Iran illegally, that premise is false for the reasons set out above.[112] That reasoning relates to, and applies equally to, persons who left Iran legally, and are returning, for example, ordinary deportees who had left Iran legally.[113]
[112] See paras.19-25 above.
[113] See UK Home Office January 2010 Report: CB 137 at para.53.
Ground 2 is in its terms somewhat confused. It cites a failure to take into account relevant considerations, but then sets up a failure to take into account what is said to be relevant material or information. Further, as the argument developed it developed into an argument as to whether or not the IMR had failed to take into account, or had ignored, relevant material.[114]
[114] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
The Minster was not disadvantaged by the confusion in the terms of the ground, as the Minister identified the issue,[115] and argued that what in fact was being done was to invite the Court to undertake impermissible merits review. The case is not a relevant-consideration case: the IMR took into account relevant considerations. The real question which emerges is whether or not the IMR took into account or ignored material relevant to those considerations.
[115] Minister’s Outline of Submissions at para.25.
The ground focuses on two categories of information which the IMR is said to have ignored, namely:
a)certain information in the DFAT Advices;[116] and
b)other country information, namely Dr Corlett’s Information, the Canadian Board Information, and The Age Report.[117]
[116] CB 136 at para.51, 2007 DFAT Advice R1 and R3 and CB 136-137 at para.52 R5.
[117] CB 117-119.
The information which the applicant says has not been considered or been ignored by the IMR is information set out in submissions made to the IMR by the applicant’s then lawyers on 16 November 2010.[118] The November 2010 Submissions set out information, as referred to above.[119]
[118] “November 2010 Submissions”.
[119] See para.28(g)-(i) above.
In the IMR Recommendation the IMR:
a)indicated that the review is an independent one which “will consider afresh all claims for protection … taking into account all available information, including … information provided by or on behalf of the claimant …”;[120]
b)had before it at the time of undertaking the review submissions and information from the applicant and the applicant’s agent (in fact the applicant’s lawyer);[121] and
c)when dealing with country information concerning Iran indicated that:
I have had regard to country information specifically referred to and cited in the submissions provided on behalf of the claimant and in the RSA.[122]
[120] CB 128 at para.2.
[121] CB 128 at para.6.
[122] CB 134 at para.46.
In these circumstances, and particularly having regard to the latter statement by the IMR, it is difficult to accept that the IMR had dismissed the applicant’s country information from its mind, and that it did not give consideration to the applicant’s country information.
The DFAT Advices are set out above. It is apparent that parts of those DFAT Advices have been utilised by the IMR in the IMR Recommendation to arrive at a conclusion that the applicant is not at relevant risk of persecution on the basis of a well-founded fear of harm if returned to Iran.
The applicant criticises the approach taken with respect to the DFAT Advices, and says that the IMR ought to have properly considered other parts of those advices, apart from those that were relied upon by the IMR, as set out above.
The fact that the IMR has set out the DFAT Advices in full indicates that they have been considered by the IMR. The question of what parts of the DFAT Advices, that is what parts of the evidence, are then utilised or relied upon by the IMR in making the IMR Recommendation, is a matter solely for the IMR. The IMR has not in this regard ignored relevant material, but rather chosen what parts of the relevant material it intends to rely upon. For this Court to say that the IMR ought to have utilised or relied upon other parts of the DFAT Advices, as set out in the IMR Recommendation, is for this Court to engage in the process of administrative review, and would represent an impermissible slide into merits review,[123] thereby crossing the “vigorously policed” line between merits review and judicial review.[124]
[123] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Swift ASTLR at 351-352 per Basten JA (Allsop P agreeing); NSWCA at para.45 per Basten JA (Allsop P agreeing).
[124] Zentai v O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
In respect of the DFAT Advices this ground is therefore not made out.
The above statement[125] concerning the IMR specifically having regard to the applicant’s country information immediately precedes the setting out of other country information to which the IMR also had regard. The IMR also, however, had regard for information in the US Department of State 2009 Country Report on Human Rights Practices – Iran.[126] The country information to which the IMR there had regard is precisely the same information (albeit a shorter extract) as is referred to in the November 2010 Submissions.[127] Whilst that country information is not the country information about which the applicant now complains the IMR failed to consider, it does demonstrate, in conjunction with the specific statement by the IMR that regard was had to the country information “specifically referred to and cited” in the applicant’s submissions, that the IMR did have regard to country information referred to in the November 2010 Submissions. There is, therefore, in all the circumstances, no reason to doubt that the IMR also had regard to the other country information in the November 2010 Submissions, including that information which the applicant alleges was not considered. It cannot therefore be supposed that the IMR dismissed the November 2010 Submissions containing that country information from its mind, and failed to consider it, when considering country information in relation to its ultimate findings.
[125] See para.35(c) above.
[126] CB 139 at para.56.
[127] CB 113.
In the circumstances, the evident preference of the IMR for other country information expressly cited by the IMR over that to which the applicant referred to in the November 2010 Submissions, and the weight to be given to all of that evidence, was a matter for the IMR. Even if, as may be the case, the IMR gave no weight at all to the country information in the November 2010 Submissions, that weighting was a matter for the IMR.[128]
[128] SZJSS CLR at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.35-36 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In relation to the applicant’s country information, there was, therefore, no failure to have regard to relevant material, for the reasons set out above. It follows also that there was therefore, no failure to take into account a relevant consideration.[129]In the circumstances, ground 2 is not made out.
[129] SZJSS CLR at 177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.35 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Ground 3
Ground 3 is as follows:
3. Further, and or alternatively to Review Grounds 1 and 2, the second respondent made a jurisdictional error in its decision by misdirecting itself as to the application of the applicable law as to whether the applicant had a well founded fear of persecution, in that:
Particulars
(i) The applicant repeats the particulars given in Review Ground 2 above;
(ii) The second respondent failed to properly consider all of the relevant and significant material before it to ascertain the likelihood that the applicant had a real chance of being identified as a failed asylum seeker on his involuntary return to Iran, and as such would face mistreatment amounting to persecution for a Convention reason; and, or
(iii) in applying the real chance test, the second respondent failed to give consideration to consistency in Tribunal (Review) decision making.
Applicant’s submissions
In relation to ground 3 the applicant submits that:
a)the IMR has misdirected himself by failing to apply the “real chance” test properly, in that the IMR did not make a proper assessment of the applicant’s claim that he had a well-founded fear of persecution as a returned failed asylum seeker. The IMR thereby misdirected himself as to the applicable law and fell into jurisdictional error;
b)the IMR failed to give proper and genuine consideration to the applicant’s claim in applying the “real chance” test because he omitted or ignored critical and relevant country information, namely Dr Corlett’s Information, the Canadian Board Information and The Age Report set out above, that there is a substantial basis for his fear if returned to Iran in the reasonably foreseeable future;[130]
c)the applicant is only required to demonstrate there is a substantial basis for his fear of persecution, and “a substantial basis for the fear may exist even though there is far less than a 50 percent chance that the object of the fear will eventuate”;[131]
d)the IMR failed to give proper consideration to the desirability of consistency in Tribunal decision making in that he failed to take account of a relevant comparable decision of the Refugee Review Tribunal;[132]
e)the circumstances of the applicant and the country information in 1001288 were similar to the present case. The Tribunal in 1001288 found that an Iranian applicant would be identified as a failed asylum seeker in the reasonably foreseeable future and was satisfied to the requisite degree that that applicant as a failed asylum seeker would attract persecution (and would do so reasonably quickly after the applicant’s identification as such);[133]
f)the Tribunal’s findings in 1001288 are persuasive, and the IMR ought to have, but did not take account of the need for consistency in Tribunal decision making;[134] and
g)if the IMR had properly considered the relevant country information supporting the applicant’s claim and the Tribunal’s decision in 1001288 when applying the “real chance” test to the requisite degree; he would not have misdirected himself by failing to apply the “real chance” test correctly, and thus not fallen into jurisdictional error.
[130] See Mok v Minister for Immigration, Local Government & Ethnic Affairs & Anor (No. 1) (1993) 47 FCR 1 at para.96 per Keely J, for the application of the “reasonably foreseeable future” principle.
[131] Minister for Immigration & Ethnic Affairs & Anor v Guo & Anor (1997) 191 CLR 559 at 572 per Brennan CJ and Dawson, Toohey, Gaudron McHugh and Gummow JJ.
[132] 1001288 [2010] RRTA 912 (22 October 2010) (“1001288”).
[133] CB 121-122, and see 1001288 at para.148.
[134] See November 2010 Submissions at CB 117-123, and see Brennan J in Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 in relation to the importance of consistency in decision making (“Drake (No. 2)”).
Minister’s submissions
The Minister repeats his submissions in relation to ground 2 above,[135] and further submits as follows in relation to ground 3:
a)as developed, ground 3 is ultimately concerned with what the IMR ought to have concluded on the material before him. Nothing is pointed to in the language of the IMR’s reasoning to develop the proposition that the IMR misdirected himself as to the applicable law concerning whether the applicant had a well founded fear of persecution or that the IMR failed to apply the “real chance” test; and
b)the proposition that consistency in administrative decision-making may give rise to, or contribute towards, a jurisdictional error is novel and unsupported by authority. Absent a clear ratio decidendi from the High Court or Federal Court it ought not be countenanced as a ground of judicial review. In any event, only one Refugee Review Tribunal decision is pointed to in development of this aspect of ground 3. The contention that one particular RRT decision, on a given set of factual material, ought influence the decision of an independent merits reviewer on a distinct set of claims and evidentiary material where an adverse credibility finding is made, is misconceived.
[135] See para.29 above.
Consideration – ground 3
The repetition of the particulars in ground 2 does not assist the applicant, because, for reasons set out above, the Court has concluded that ground 2 was not made out, and the Court adopts and repeats what it has said above.[136]
[136] See paras.30-43 above.
For reasons also set out above,[137] in relation to ground 2, it cannot be said that the IMR failed to properly consider all of the relevant and significant material before it to ascertain the likelihood that the applicant had a real chance of being identified as a failed asylum seeker on involuntary return to Iran, and that he would face mistreatment amounting to persecution for a Convention reason as a consequence. In this regard, again for reasons set out above,[138] the IMR had before it, and did not exclude from its mind, and considered all of the relevant significant material, and considered whether or not mistreatment amounting to persecution for a Convention reason was “a real chance” upon the applicant’s return to Iran.[139] There was adequate material, particularly in the DFAT Advices and the UK Home Office January 2010 Report, to allow the IMR to arrive at a conclusion that a person with no political profile, who had departed Iran legally, and who was returning as a failed asylum seeker, would suffer no persecution for a Convention reason.
[137] See paras.30-43 above.
[138] See paras.30-43 above.
[139] CB 143 at para.77.
The applicant’s assertion that there is jurisdictional error because the decision of the IMR is inconsistent with an earlier decision of the Refugee Review Tribunal does not withstand scrutiny. Even if inconsistency in administrative decision-making was a basis for jurisdictional error it would not necessarily be established by contrasting one administrative decision of a statutory body, the Refugee Review Tribunal, with a recommendation of a reviewer appointed by the Minister for the purpose of making such a recommendation to the Minister, in relation to a discrete case with different facts. That is particularly so in the area of migration refugee litigation and administrative decision-making where there are thousands of decisions each year of administrative decision-makers, be they independent merits reviewers or the Refugee Review Tribunal, and of the federal courts, impacting upon the nature of the exercise of that administrative decision-making. To point to a single decision and say that it is inconsistent with the decision of the IMR in this case is simply to invite the riposte “And what of the outcome in all of the other cases to which you have not adverted?” The basis for the establishment of jurisdictional error is well known and is not established by the inconsistency adverted to in this case.[140]
[140] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
The reliance upon the decision of the Administrative Appeals Tribunal[141] in Drake (No. 2) is also misplaced. The reasons of the AAT in relation to consistency of decision-making in Drake (No. 2) concerned consistency of decision-making in the context of non-departure from a Minister’s statement of lawful policy.[142] It is not a statement that jurisdictional error is established by inconsistent administrative decision-making, and, in the context of the advances in, and specificity of, administrative law in relation to jurisdictional error in migration refugee litigation since Drake (No. 2) was decided in 1979, it is obviously distinguishable.
[141] “AAT”.
[142] Drake (No. 2) at 644-645 per Brennan J.
For the above reasons ground 3 is not made out.
Conclusions and orders
The Court has concluded that none of the grounds of the Application have been made out. It follows that the Application will be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 8 February 2013
[76] SZQGL v Minister for Immigration & Anor [2011] FMCA 1019 at paras.65-66 and 80-82 per Nicholls FM. See also Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2000) 206 CLR 57 at 86 per Gaudron J; [2000] HCA 22 at para.99 per Gaudron J and M1015 at para.54 per Weinberg J.
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