WZAOZ v Minister for Immigration
[2012] FMCA 1139
•30 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAOZ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1139 |
| MIGRATION – Judicial review of decision of Independent Merits Reviewer – credibility – procedural fairness. |
| COURTS AND JURISDICTION – Federal Magistrates Court – migration – offshore entry person – decision of independent merits reviewer – whether migration decision or in relation to a migration decision – whether proceedings barred in relation to an offshore entry person. |
| Constitution, s.75(v) Migration Act 1958 (Cth), ss.5, 36(2), 91X, 425, 476, 494AA 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees |
| Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 Kioa & Ors v West& Anor (1985) 159 CLR 550 Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577; [2010] FCAFC 159 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 533; [2003] FCAFC 126 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs& Anor (2006) 228 CLR 152; [2006] HCA 63 SZDJT v Minister for Immigration & Multicultural & Ethnic Affairs [2005] FCA 214 SZMDB v Minister for Immigration & Citizenship & Anor (2008) 105 ALD 499; [2008] FCA 1937 SZQDZ & Ors v Minister for Immigration & Citizenship& Anor (2012) 200 FCR 207; [2012] FCAFC 26 SZQGA v Minister for Immigration & Citizenship & Anor (2012) 204 FCR 557; [2012] FCA 593 WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284; [2012] FMCA 235 |
| Applicant: | WZAOZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 207 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 May 2012 |
| Date of Last Submission: | 18 May 2012 |
| Delivered at: | Perth |
| Delivered on: | 30 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Dr J Cameron (pro bono) |
| Counsel for the Respondents: | Mr P Hannan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 207 of 2011
| WZAOZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The Application
The applicant is an offshore entry person as defined in s.5 of the Migration Act 1958 (Cth).[1] The applicant seeks judicial review under s.476 of the Migration Act in respect of a recommendation made by an independent merits reviewer[2] that the applicant not be recognised as a person to whom Australia owes protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[3]
[1] “Migration Act”.
[2] “IMR Recommendation” (at Court Book (“CB”) 199-226) and “IMR” respectively.
[3] Collectively “Convention”.
Background
The applicant was born in Mandaly, Iraq on 27 November 1969.[4] He arrived on Christmas Island on 2 April 2010.[5]
[4] CB 201.
[5] CB 29, 69, 128 and 200.
On 20 June 2010 the applicant signed various forms by which he sought a Refugee Status Assessment.[6] On that date, he also signed a “Statement of Claims”.[7] The applicant claimed that:
[6] “RSA”.
[7] CB 39-55, 66-67.
a)he is a stateless Faili Kurd and a Shiite Muslim;
b)he fears persecution in Iran due to being a stateless Faili Kurd;
c)he and his parents were forcibly removed from Iraq in the early 1980s;
d)his father died shortly after they arrived in Iran;
e)neither he nor any member of his family ever held a green or white card in Iran;
f)in or about 2008 he was beaten by the Basij after he was unable to produce identification documents;
g)he was detained three times in twelve months before making his statement of claims;
h)he left Iran on a ‘genuine’ passport in another person’s name, with his own photograph substituted;
i)he fears harm if he is returned to Iraq; and
j)he claims fear of persecution:
i)on the basis of discrimination against Faili Kurds including in their ability to work, move freely, access education and medical care and to marry;
ii)from the Basij; and
iii)on a cumulative basis.[8]
[8] CB 66-71.
On 3 September 2010 a delegate of the Minister, having conducted the RSA, determined that the applicant was not someone to whom Australia owed protection obligations under the Convention.[9]
[9] CB 127-145 (“RSA Determination”).
On 13 September 2010 the applicant requested an independent merits review of the RSA.[10]
[10] CB 146-149.
IMR Recommendation
The IMR interview was conducted on 3 April 2011.
On 7 July 2011 the IMR determined that the applicant did not meet the criteria for a protection visa in s.36(2) of the Migration Act, and recommended that the applicant not be recognised as a person to whom Australia owes protection obligations under the Convention.[11]
[11] CB 226 at para.71-72.
In the IMR Recommendation the IMR found that:
a)the adverse interests that the applicant claimed to have experienced were “minimal and in fact virtually non-existent”;[12]
[12] CB 222 at para.52.
b)the applicant worked in the traditional work of people in Ilam Province, namely, farming and labouring jobs, and that his family was able to obtain a large sum of money to pay for his departure from Iran, which indicated that they were not impoverished, but had a degree of means and resources;[13]
[13] CB 224 at para.59.
c)the applicant is of Iranian nationality and held Iranian citizenship;[14]
[14] CB 224 at para.61.
d)the applicant is not an undocumented Faili Kurd as he claimed to be;[15]
[15] CB 224 at para.61.
e)the history presented indicated that the applicant and his family were Iranian citizens and held documentation, and did not need to obtain a refugee card in Iran because “they were able to regularise their status in Iran or continue their citizenship” and that it “is most probable this was because they were able to establish citizenship in Iran, or in fact had never lost it”;[16]
[16] CB 224 at para.58.
f)the applicant did not depart Iran illegally,[17] but rather using a genuine passport in his real name;[18] and
[17] CB 226 at para.68.
[18] CB 224 at para.61.
g)the applicant did not use “anything other than a genuine passport” to pass through the security measures at the airport and that the applicant “has not been truthful about his documentation and status in Iran.”[19]
[19] CB 222-223 at para.53.
h)the applicant had fabricated significant aspects of his claims and history and was not a credible witness;[20]
[20] CB 224 at para.60.
i)that the applicant was able to travel in Iran, and was able to work and live in his locality;
j)was able to obtain a passport and leave through an international airport and pass security checks as he held proper documentation;[21]
[21] CB 224 at para.61.
k)that the name on his passport was his real name;[22]
l)suffered a degree of minor discrimination as a Faili Kurd but not of sufficient seriousness to be considered as persecution;[23]
m)was not detained by the Basij because he was a Faili Kurd, as the majority of the people in the province are Faili Kurds, and the local militia would also be local Basij;[24]
n)was beaten by the Basij during an incident two and a half years ago, and slapped in an incident about a year ago, but the reasons were not Convention reasons, nor were those incidents of a seriousness nor type considered to be persecution for the purposes of the Convention and s.91R of the Migration Act;[25]
o)nothing of any significance happened to the applicant or his family in the 12 months prior to his departure which would indicate that the reasons for his departure had little or nothing to do with past events;[26]
p)the applicant’s overall history did not give him a profile such that he would be of adverse interest to the authorities or to anyone else for reasons related to a Convention ground, and he had not in the past been of any concern to the authorities for Convention related reasons;[27]
q)in the circumstances, he would not be of adverse concern to the authorities on return to Iran and does not have a well founded fear of persecution because the chance of him being harmed in Iran in the reasonably foreseeable future is remote;[28]
r)will not suffer persecution as a member of class of undocumented Faili Kurds if he returns to Iran and would not be punished on his return for illegal departure;[29]
s)does not meet the criterion for a protection visa under s.36(2) of the Migration Act;[30] and
t)is not a person to whom Australia owes protection obligations under the Convention.[31]
[22] CB 224 at para.61.
[23] CB 225 at para.64.
[24] CB 225 at para.65.
[25] CB 225 at para.65.
[26] CB 225 at para.66.
[27] CB 225 at para.67.
[28] CB 225 at para.67.
[29] CB 226 at para.68.
[30] CB 226 at para.71.
[31] CB 226 at para.72.
Application for judicial review
By an application to this Court filed 29 June 2011, the applicant sought judicial review of the IMR Recommendation. The applicant in amended grounds of review submitted that:
a)in ground 1.1, the IMR determined, contrary to the RSA Determination that the applicant was an undocumented stateless Faili Kurd, that the applicant was an Iranian citizen, without first putting to the applicant that he proposed doing so and inviting him to comment;
b)in ground 1.2, the IMR determined, based on a misunderstanding of the country information and the applicant’s evidence, that airport procedures in Teheran meant that the applicant must have travelled on a valid Iranian passport, when the RSA Determination had failed to reach a positive determination of the issue, without first putting to the applicant that he proposed to doing so and inviting him to comment; and
c)in ground 1.3, the IMR failed to consider the real chance that the applicant might suffer persecution as a member of a class of undocumented aliens if returned to Iran.
When this matter came on for hearing a judgment was pending in the Federal Court in the matter of SZQGA v Minister for Immigration & Citizenship & Anor, proceedings numbered SYG 698 of 2011. At hearing there was some discussion as to whether the hearing of this matter ought to be adjourned pending the judgment of the Federal Court. The Court determined to proceed with the hearing of this matter, a course to which there was no substantive objection from the parties. At the completion of the hearing of the matter the Court ordered that:
1.This matter be adjourned pending the judgment of the Federal Court of Australia in the matter SZQGA v Minister of Immigration and Citizenship & Anor (“SZQGA”), SYG698/2011.
2.Liberty to apply to either party to relist the matter on short notice following the SZQGA judgment.
The Federal Court delivered judgment in SZQGA v Minister for Immigration & Citizenship & Anor[32] on 7 June 2012. Neither of the parties in this matter sought to exercise the liberty to apply to relist the matter following judgment in SZQGA. Regrettably, neither party had the courtesy to advise the Court that it did not intend to exercise the liberty to apply. So, when judgment was listed, the Court indicated that if either party sought to exercise the liberty to apply, or to have the delivery of judgment adjourned, they should contact Chambers forthwith. Neither party sought to have the matter relisted or to have the delivery of judgment adjourned. Neither party sought to file any further submissions in relation to the jurisdictional issues dealt with in SZQGA, which jurisdictional issues were raised and sought to be relied upon in these proceedings.
[32] (2012) 204 FCR 557; [2012] FCA 593 (“SZQGA”).
Issues
The issues that therefore arise before the Court in relation to this application are:
a)first, the judicial review issues, namely, whether:
i)the Court has jurisdiction to hear this matter under s.476(1) of the Migration Act; and
ii)the application was barred under s.494AA of the Migration Act; and
b)second, the judicial review issues, namely, whether the IMR denied the applicant procedural fairness on the bases set out above in the amended grounds of review.
Jurisdictional Issue
Section 476(1) of the Migration Act
Section 476(1) of the Migration Act purports to confer on this Court the same original jurisdiction as the High Court under s.75(v) of the Constitution, but only “in relation to migration decisions”.[33]
[33] SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26 (“SZQDZ”).
This jurisdictional issue, raised by the applicant in these proceedings and in SZQGA, must be considered against the background of what was decided by the Full Court of the Federal Court in SZQDZ, which can relevantly be disposed of by reference to one critical paragraph in SZQDZ, which was as follows:
In the cases of present concern, the applicants have sought an injunction to prevent the Minister or his officers taking into account the reviewer’s assessments and recommendations in any future consideration of the exercise of the powers under s 46A. Their applications for that relief enlivened the jurisdiction of the Federal Magistrates Court conferred by s 476(1) of the Act . That jurisdiction, it must be understood, is relevantly, the same as that of the High Court under s 75(v) of the Constitution. It is a jurisdiction the exercise of which the Courts are not astute to confine.[34]
[34] SZQDZ FCR at 220 per Keane CJ, Rares and Perram JJ; FCAFC at para.45 per Keane CJ, Rares and Perram JJ.
In WZAPN & Ors v Minister for Immigration & Citizenship & Ors[35] this Court observed that:
24. In each of these applications the relief sought is the same as that sought in SZQDZ, namely, an injunction to restrain the Minister from making a decision which takes account of an IMR Recommendation. It was applications of this type that the Full Court of the Federal Court in SZQDZ remitted to this Court for further hearing and determination, which, as both Counsel pointed out, the Full Court of the Federal Court would not have done, indeed could not have done, if this Court lacked jurisdiction or power to deal with those applications.
25. The proceedings are therefore best described as being proceedings to prevent, by way of injunctive relief, the Minister from taking into account in the course of the Minister’s decision-making process, any unlawful IMR Recommendation. Bearing in mind that the High Court in Plaintiff M61 observed that the Minister’s decision-making process does not depend for its commencement upon a submission being put before the Minister if the outcome of the RSA and IMR processes is unfavourable to the applicant, it is the application to this Court for injunctive relief in relation to that still to be completed decision-making process by the Minister that enlivens this Court’s jurisdiction, as it is an application for relief in relation to a migration decision.[36]
[35] (2012) 261 FLR 284; [2012] FMCA 235 (“WZAPN”).
[36] WZAPN FLR at 292-293 per Lucev FM; FMCA at paras.24 and 25 per Lucev FM (footnotes omitted).
The Federal Court observed in SZQGA that:
54. … a “migration decision” is defined to mean a “privative clause decision” or a “purported privative clause decision” or a “non‑privative clause decision”. A privative clause decision is an expression defined by s 474(2) and means a “decision of an administrative character” made, proposed to be made or required to be made as the case may be under Migration Act, or under a regulation or other instrument made under the Migration Act (whether in the exercise of a discretion or not), other than a decision referred to in subs (4) or (5). By s 474(3), the reference to a “decision” includes a reference to a wide range of activities include, in para (g), the “doing or refusing to do any other act or thing” and in para (h) “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation”.[37]
55. In this regard, the “lifting of the bar” under s 46A, as indeed the act of removing a person from Australia under s 198, would appear to constitute, at the least, the doing of a thing. It might also be said that the independent merits review process constitutes the “taking of evidence or the holding of an inquiry or investigation” which is “preparatory” to the making of the removal of a person from Australia, although this might well be intended to be a description of something itself done under an enactment and not, as here, under a departmental administrative practice.
56. Arguably, the judicial review proceeding commenced by the appellant in the Federal Magistrates Court in this case is in relation to a migration decision, in the sense that it might lead to either a decision of the Minister to “lift the bar” under s 46A or to the grant of a visa under s 195A, or ultimately would lead to the removal of the appellant under (presumably in this case) s 198 of the Migration Act.[38]
[37] SZQGA at para.54.
[38] SZQGA FCR at 572 per Barker J; FCA at paras.54-56 per Barker J.
In SZQGA, having quoted the paragraph from SZQDZ set out above,[39] the Federal Court went on to observe that:
The Court then concluded, at [46], that because the Minister had not yet made any decision and, as Plaintiff M61 decided, need not take account of the assessments and recommendations of the reviewer, “the injunctions sought are not in relation to a migration decision in respect of which an extension of time must be granted because any such decision is yet to be made by the Minister and will be in the future”. Thus, no occasion arose for the Federal Magistrates Court to exercise any power under s 477(2).
Thus it appears the Court drew a distinction between the application of s 477 in such a judicial review case, and the breadth of the jurisdiction of the Federal Magistrates Court under s 476(1).[40]
and
In the result, the Full Court in SZQDZ appears to have formed the view that the relief sought of injunction to prevent the making of a migration decision was a proceeding that enabled the exercise of jurisdiction “in relation to” a migration decision, albeit one yet to be made under s 46A or s 195A. It might be added that arguably it might also be in relation to a decision to be made under s 198.
In the circumstances, notwithstanding that I consider there is force in the appellant’s submissions on this point, I accept that the decision of the Full Court in SZQDZ draws the distinction I have noted, and even if not strictly bound by it I should follow the decision and apply the distinction drawn.[41]
[39] See para.14 above, quoting SZQDZ FCR at 220 per Keane CJ, Rares and Perram JJ; FCAFC at para.45 per Keane CJ, Rares and Perram JJ.
[40] SZQGA FCR at 574 per Barker J; FCA at paras.65 and 66 per Barker J.
[41] SZQGA FCR at 575-576 per Barker J; FCA at paras.72-74.
The Federal Court concluded in SZQGA that this Court had jurisdiction under s.476(1) of the Migration Act to entertain a judicial review application the same in form as the application presently before this Court.
Even though the decision itself derived from the IMR assessment is not one which not a migration decision, it is in relation to a migration decision.
Section 494AA of the Migration Act
In SZQGA the Federal Court also dealt with the issue of whether or not the application was barred under s.494AA of the Migration Act, which precluded proceedings relating to an offshore entry by an offshore entry person and proceedings relating to the status of an offshore entry person as an unlawful non-citizen, provides as follows:
(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to an offshore entry by an offshore entry person;
(b) proceedings relating to the status of an offshore entry person as an unlawful non-citizen during any part of the ineligibility period;
(c) proceedings relating to the lawfulness of the detention of an offshore entry person during the ineligibility period, being a detention based on the status of the person as an unlawful non-citizen;
(d) proceedings relating to the exercise of powers under repealed section 198A;
(e) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an offshore entry person.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
"Commonwealth" includes:
(a) an officer of the Commonwealth; and
(b) any other person acting on behalf of the Commonwealth.
"ineligibility period" means the period from the time of the offshore entry until the time when the person next ceases to be an unlawful non-citizen.
"offshore entry" means an entry into Australia that occurs:
(a) at an excised offshore place; and
(b) after the excision time for the offshore place concerned.
The Federal Court observed in SZQGA that the jurisdictional issue thus raised was not one that appeared to have been directly raised for consideration by the Full Court of the Federal Court in SZQDZ.[42]
[42] SZQGA FCR at 579 per Barker J; FCA at para.94 per Barker J.
The Federal Court then went on to observe that:
… I am not satisfied that it is open to argue that the appellant’s judicial review proceeding in the Federal Magistrates Court should be characterised as either a proceeding “relating to an offshore entry by an offshore entry person” or one “relating to the status of an offshore entry person as an unlawful non‑citizen”, substantially for the reasons advanced by the Minister and set out above. The proceeding before the Federal Magistrate did not relate to the offshore entry or to his status as an unlawful non‑citizen but rather related to the lawfulness, putting it generally, of the reviewer’s recommendation provided for the Minister’s purposes under s 46A and s 195A of the Migration Act. The fact that the appellant was, at material times, an offshore entry person and an unlawful non‑citizen were not directly relevant to the issues raised in those judicial review proceedings.[43]
and
In my view, the expression “relating to”, as used in various subparagraphs of s 494AA(1) of the Migration Act, while it may permit a direct or indirect connection, requires a real or substantial relationship between the “proceedings” and the subject matter of paras (a) and (b). In my view, in this case, the relationship contended for between the relevant proceeding is not in substance or reality about the status of an offshore entry person as an unlawful non‑citizen during any part of the ineligibility period, as mentioned in (b) of (1) of s 494AA, and the connection contended for is simply too remote to meet that statutory description. For similar reasons, the relevant proceeding cannot be said to be in substance or reality about an offshore entry by an offshore entry person for the purposes of (a) of (1) of s 494AA, and the connection contended for is too remote. The simple fact is that, following the appellant becoming an offshore entry person as a result of his offshore entry into Australia, he sought protection as a refugee. The decision of the reviewer recommended against the grant of such protection. The judicial review proceedings in the Federal Magistrates Court were designed to challenge the lawfulness of that finding. It is not appropriately characterised as a proceeding relating to the appellant’s status as an unlawful non‑citizen nor to his offshore entry. It fairly and squarely has to do with his claim for protection under the Refugee’s Convention and the independent merits review process undertaken in respect of that claim. To cast the connection as widely as the appellant contends it should be would run the risk of roping in all proceedings designed to ensure a person in the appellant’s position is able to realise their desire to be recognised as a refugee by Australia, and requiring them to be commenced in the High Court if they are to be pursued. While aspects of Mr Ruddock’s comments in the Parliament tend to support that view, in my view the terms of s 494AA are not so broad in their effect, as indeed the Explanatory Memorandum confirms by identifying only “certain proceedings” as within the purview of s 494AA.
Accordingly, I consider that the proceedings before the Federal Magistrate and the proceedings in this Court by way of appeal against that decision for error of law are not proceedings affected by s 494AA(1)(a) or (b) and accordingly there was no bar on the proceeding before the Federal Magistrate and there is no bar on the appeal to this Court.[44]
[43] SZQGA FCR at 579 per Barker J; FCA at para.94 per Barker J.
[44] SZQGA FCR at 579-580 per Barker J; FCA at paras.96-97 per Barker J.
It can thus been seen that the Federal Court determined that there was no bar on the proceeding under s.494AA of the Migration Act.
Binding effect of superior court judgments
The Court observes that the judgments of the Full Court of the Federal Court in SZQDZ, and of the Federal Court in SZQGA, are binding on this Court, as they are judgments of a court, superior to this Court in the hierarchy of federal courts, and which are directly on point, and not plainly wrong, and which must therefore be followed by this Court.[45]
[45] Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.
Jurisdiction - conclusion
The jurisdictional issues raised in these proceedings by the applicant must fail because:
a)this Court has jurisdiction under s.476(1) of the Migration Act to entertain the applicant’s judicial review application;[46] and
b)section 494AA of the Migration Act does not operate as a bar on the proceedings brought by the applicant in this case.[47]
Judicial review
[46] SZQDZ FCR at 220 per Keane CJ, Rares and Perram JJ; FCAFC at para.45 per Keane CJ, Rares and Perram JJ; WZAPN FLR at 292-293 per Lucev FM; FMCA at para.25 per Lucev FM; SZQGA FCR at 576 per Barker J; FCA at para.74 per Barker J.
[47] SZQGA FCR at 580 per Barker J; FCA at para.97 per Barker J.
Procedural fairness
The relevant principles in relation to procedural fairness are to the following effect:
a)procedural fairness requires a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed;[48]
[48] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
b)in SZBEL the High Court approved[49] of what was said in the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone,[50] that:
[49] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 161-162 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ; [2006] HCA 63 at para.29 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ (“SZBEL”).
[50] (1994) 49 FCR 576 (“Alphaone”).
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[51]
c)in Plaintiff M61 the High Court said in respect of the requirement to provide procedural fairness in relation to country information:
Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.[52]
Ground 1.1
[51] Alphaone at 591-592 per Northrop, Miles & French JJ.
[52] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.
Applicant’s submissions
The applicant submits that:
a)IMR assessments are purely administrative and not conducted under statutory powers. The content of the procedural fairness required to be afforded to an applicant is, however, at least as great as what is required under the Migration Act, which defines the nature of the opportunity to be heard, that is to be given to an applicant for review by the Refugee Review Tribunal. By s.425(1) of the Migration Act, the applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”;
b)the IMR is not confined to the issues that the delegate considered in preparing the RSA. The issues that arise in relation to the decision leading to the IMR Recommendation are to be identified by the IMR. But if the IMR takes no step to identify some issue other than those that the RSA considered dispositive, or proposes to reach a different view on a dispositive issue, and does not tell the claimant what the other issue is, or how it is to be differently determined, the applicant is entitled to assume that the issues considered dispositive in the RSA are “the issues arising in relation to the decision under review”, and where determined in favour of the applicant, as by accepting his stateless capacity, will not be determined adversely to him, as by determining that he is an Iranian national, without alerting to him that possibility and giving him an opportunity to comment;
c)where the stateless character of the applicant was a live issue in the IMR interview, and the IMR proposed to make a different determination adverse to the applicant, by finding that he was an Iranian national, procedural fairness required that this be clearly brought to the attention of the applicant and his migration adviser, and there is nothing in the IMR Recommendation to indicate that this requirement was complied with;
d)in post interview submissions, the applicant’s migration agent argued that the claimant is stateless, and that there are two countries of former habitual residence – Iran and Iraq.[53] The agent notes:
we note that you raised difficulty in knowing whether the claimant was a stateless Faili Kurd or a Kurd within [sic] Iranian nationality;
e)there is nothing in what follows to indicate that the reviewer brought it to the attention of the applicant or his migration agent that he proposed to find that the applicant was an Iranian citizen, who, contrary to his claims, had travelled on his own passport; and
f)at best, it seems the IMR suggested to the applicant in the course of the interview that the claimant “has a right to nationality in Iran”.
[53] CB 200.
Minister’s submissions
The Minister submits that:
a)the application of principles of procedural fairness to a particular case must always be moulded to the particular circumstances of the case;[54]
[54] Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 98-99 per per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; [2005] HCA 72 at para.25 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ;
b)an IMR is not required to actively assist the applicant to put his or her case.[55] It is for the applicant to advance whatever evidence or argument he wishes in support of his application that he has a well founded fear of persecution for a Convention reason;[56]
c)procedural fairness does not require an IMR to give the applicant a running commentary upon what it thinks about the evidence that is given;[57]
d)on 3 September 2010 the Minister’s delegate did not “determine” that the applicant was an undocumented stateless Faili Kurd. Instead the IMR “assumed” that status “only for the purposes of this RSA assessment”;[58]
e)on 3 April 2011 the IMR put to the applicant that the IMR might find that the applicant was an Iranian citizen;[59]
f)on 18 May 2011 the applicant advisor, his Migration Agent, made written submissions on the issue of statelessness.[60] In the submissions the applicant’s advisor note that the IMR had:
raised concerns during the interview of the lack of documentation held by the client and your difficulty in knowing whether the claimant was a stateless Faili Kurd or a Kurd within the Iranian nationality[61]
g)the IMR’s reasons for decision should not be minutely analysed with an eye to perceiving error;[62] and
h)in all the circumstances, the complaint is not that the applicant was not provided with an opportunity to comment, but rather the IMR had not been persuaded by the applicant’s subsequent submissions.
[55] SZMDB v Minister for Immigration & Citizenship (2008) 105 ALD 499 at 504 per Graham J; [2008] FCA 1937 at para.37 per Graham J; Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 533 at 561 per Gray, Cooper and Selway JJ; [2003] FCAFC 126 at para.36 per Gray, Cooper and Selway JJ.
[56] SZDJT v Minister for Immigration & Multicultural & Ethnic Affairs [2005] FCA 214 at para.11 per Jacobson J.
[57] SZBEL CLR at 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.48 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[58] CB 128, 133.
[59] CB 203–204.
[60] CB 175.
[61] CB 192.
[62] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh & Gummow JJ.
Ground 1.1 – consideration
In the RSA Determination, and “only for the purposes of this RSA assessment” the IMR “assume[ed] he [the applicant] is a Stateless Faili Kurd from Iran and that his name and date of birth is as stated above”,[63] but did not make a finding that the applicant was a stateless Faili Kurd. When the RSA turned to the issue of the method of departure from Iran, she found that:
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,[64]
and concluded the applicant “did not meet the definition of a refugee” and “is not someone to whom Australia owes protection obligations”.[65]
[63] CB 128.
[64] CB 144.
[65] CB 145.
Under the heading ‘Credibility’ in the IMR Recommendation, the IMR observes that:
Credibility is difficult to assess and in my view should not be made on demeanour or reaction at interview. However, where there are clear inconsistencies or where some claimed history is far-fetched or unrealistic it may be that those claims, after careful consideration, cannot be accepted as being true.[66]
A further significant credibility issue is in this matter is the identity of the claimant. He was no documentation and claims as a consequence to be Stateless. The only documentation he claims to have possessed – an Iranian passport used by him to depart from Iran and in the name [name appears]. It is not with him in Australia. He has no documents to establish his name or his citizenship (or lack of).[67]
[66] CB 222, para.49.
[67] CB 223, para.54. The applicant’s name has been removed in accordance with s.91X of the Migration Act.
The assessment of credit is solely a matter for the IMR, and not a matter for judicial review, and certainly not so in the circumstances of this case.[68]
[68] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J (“Durairajasingham”); Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577 at 594-595 per Buchanan J; [2010] FCAFC 159 at para.63 per Buchanan J (“SZOCT”).
The applicant’s lack of documentation was identified as a significant issue by the IMR. The applicant at the IMR interview on 3 April 2011 explained his lack of documentation:
Saddam Hussein had been killing Faili Kurds and an uncle was expelled from Iran and my mother’s brother was held in a camp and then executed ... my father found this out and we moved to Iran ... they did this after the uncle was expelled ... they were scared and they moved to Iran through the mountains ... we didn’t have any identity documents to show we were Iraqi … I don’t know why we had no documentations ... My parents were born in Iraq through my grandparents in Iran where they had lived poorly and so moved to Iraq ... they came from Ilam Province I presume close to the border. They moved to Mandaly and then Somar and then to our own village as it was far away from the bombing raids of the war.[69]
[69] CB 203 para.23.
At the IMR interview, the IMR put to the applicant that:
… he had no documentation so how could I know who he was and where he was from. He could be an Iranian citizen. He said he was telling the truth and if he was an Iranian citizen ‘I wouldn’t have left my family in such a bad situation’[70]
[70] CB 203, para.28 (emphasis added).
During the questioning regarding Iraq, the IMR raised the issue of the passport again:
He said he didn’t have any documents and the only one he had ever had was the passport used to leave Iran in the name of [name appears]. I asked who that person was and he said he didn’t know. I put to him that given that he had used that passport, why I wouldn’t accept that this was his name. He said ‘you have my address and phone number and could phone my eldest son … you can go back and check …’[71]
[71] CB 205-206, para.42.
The IMR did not accept the applicant’s account of departing Iran on a ‘false’ passport as being truthful, and said:
I also have concern as to how the claimant was able to depart from Iran through the security measures at Khomeini International Airport unless he was able to do so using a genuine passport. The Country Information indicates that it is “highly improbable” that a person using a forged passport would be able to pass through the various checkpoints and leave the country in such a manner. He claims his passport was in another name. Country Information indicates passports are checked by at least 3 people. The security measures at the international airports include a check so as to see if it is genuine, and also if it is the photograph of the person stored on the database.[72]
[72] CB 222 at para.53.
Though the IMR accepted that “it is perhaps remotely possible for someone to pass through those checks without being of adverse notice to the authorities”,[73] he still considered the prospects of departing Iran on a false passport to be “minimal in the extreme”. On that finding, the IMR held that:
He did pass through the airport in combination with his not having the passport with him in Australia (and it possibly then being subject to check and scrutiny) indicates to me that it is reasonable to believe it was a genuine passport, and also reasonable to believe it was in his name.[74]
[73] CB 222 at para.53.
[74] CB 222 at para.53.
The IMR considered a number of different categories of Faili Kurd the applicant, a Faili Kurd from Ilam could fall into, and found that he fell within the following category of Faili Kurds:
· Most Faili Kurds from Ilam would of logical reality be Iranian citizens. The vast majority of the province is Faili Kurd (that is they are Shia Kurds and belong to one of the many Faili tribes who reside in the border provinces of Iran and Iraq and in the Zagros Mountains.[75]
[75] CB 223 at para.55.
The migration agent was aware of the citizenship issue. In submissions dated 18 May 2011,[76] some six weeks after the IMR Interview, the applicant’s migration agent made “further specific submissions relating to [the applicant’s] claims following his interview [with the IMR] on 3 April 2011”[77] that:
We note that you raised concerns during the interview of the lack of documentation held by the client and your difficulty in knowing whether the claimant was a stateless Faili Kurd or a Kurd within Iranian nationality.[78]
[76] “18 May 2011 Submissions”.
[77] CB 175.
[78] CB 180.
From the forgoing history of the interaction between the IMR, the applicant and the applicant’s migration agent, it is the Court’s view that:
a)the RSA Determination assumed that the applicant was an undocumented Faili Kurd, and without more at the IMR stage, the applicant would have been entitled to assume that his nationality was not in issue; and
b)at the IMR stage, however, the following occurred:
i)it was put to the applicant by the at the IMR Interview that he “could be an Iranian citizen”;[79]
ii)the applicant responded to the IMR’s assertion concerning Iranian citizenship at the IMR Interview by saying that he was telling the truth, and that if he was an Iranian citizen he would not have left his family in “a bad situation”;[80] and
iii)in the 18 May 2011 Submissions the applicant, through his migration agent, acknowledged that the IMR had raised the issue of Iranian nationality during the IMR Interview, and the difficulty that the IMR was having in determining whether the applicant was a stateless Faili Kurd or a Kurd with Iranian nationality.
[79] CB 203 at para.28.
[80] CB 203 at para.28.
In the circumstances, it is clear that the issue of whether the applicant was an Iranian citizen or a stateless Faili Kurd was:
a)put to the applicant;
b)responded to by the applicant, not once, but twice, first in the IMR Interview and later in the 18 May 2011 Submissions; and
c)in light of (b) above, was understood by the applicant.
The issue having been put, understood and responded to, it is the Court’s view that the IMR has fulfilled the requirements of procedural fairness in relation to the applicant and the issue of his nationality or statelessness. In the circumstances, the Court finds that the IMR did not deny the applicant procedural fairness, and the applicant utilised the opportunities given to him to comment, at the IMR interview and in the 18 May 2011 Submissions, in relation to the issue of Iranian nationality. Ground 1.1 is, therefore, not made out.
Ground 1.2
Applicant’s submissions
The applicant submits he travelled on a genuine passport issued in the name of another person and carrying the applicant’s photograph. In that sense, it differs from a document, which was completely fraudulent, in that it was not issued by the proper issuing authority. This makes the passport, carried by the applicant, more difficult to detect than a “bogus document”.
The applicant submits that the IMR notes that “country information indicates that passports are checked by at least 3 people. The security measures at the international airports include a check so as to see if it is genuine, and also if it is the photograph of the person stored on the database”,[81] and that had the applicant and his migration agent been alerted to the possibility that the IMR might conclude that the applicant had travelled on a genuine passport, based on his ability to pass through procedures at Imam Khomeini Airport the details of the country information could have been checked, and further clarifying submissions on the issue made.
[81] CB 222.
Minister’s submissions
The Minister submits that:
a)the IMR found that Teheran airport procedures meant that the applicant must have travelled on a valid Iranian passport;[82]
b)the substance of the Danish country information referred to in the RSA by the Minister’s delegate, and set out in the applicant’s submissions, was known to the applicant;
c)the applicant asserts that “[i]t would be necessary for only the immigration officer to be bribed, which could be achieved by the people smuggler, with the applicant directed to go to a particular window to be processed by the bribed official”. The discussion of the Danish Report by the RSA makes it clear that this would be very difficult to leave Iran on a false passport:
this report indicated that it is very difficult to leave Iran illegally through an airport due to security checks. However, it elaborated that it may be possible to bribe airport personnel, which makes it possible to leave through the airport illegally. This, though, will including bribing a lot of airport staff members since there are several checks in the airport. According to DFAT ‘However, it is unlikely that a bribe could convince an airport official to allow a person on a blacklist or without a valid passport to board an international flight’[83]
d)the IMR did not fail to make a positive determination on the issue that Teheran airport procedures meant the applicant must have travelled on a valid Iranian passport; and
e)in any event, the applicant was aware of the substance of the country information that the IMR had regard to in making the IMR Recommendation. The applicant was represented by an adviser who would clearly have been aware of the country information to which the IMR had regard.
[82] CB 223.
[83] CB 139.
Ground 1.2 – consideration
The RSA Determination sets out significant country information in relation to Iraqi and Iranian passports,[84] exit and entry procedures in Iran,[85] and with respect to the applicant’s method of departure from Iran concluded as follows:
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 the payment of one bribe was sufficient to allow his departure. Reports on exit procedures at the airport reveal that there are several checks conducted by the authorities, including a computerized system check on the passport where the details of the passport and the passport holder can be verified (4.42). 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.[86]
[84] CB 138-139.
[85] CB 139-140.
[86] CB 144.
Country information referred to in relation to exit and entry procedures for Iran included a report of the Danish Immigration Service in April 2009[87] cited in the UK Home Office Country of Origin Information Report for Iran published in August 2009 and January 2010.[88] Both of those sources of country information were not only referred to in the RSA Determination’s specific consideration of the entry and exist procedures in Iran, but also listed as material before the RSA.[89]
[87] “Danish Report”.
[88] CB 139.
[89] CB 131 (“UK Home Office Report”).
The issue of the manner of the applicant’s exiting Iran was therefore clearly in issue, as the RSA did not believe that the applicant left Iran on a false passport with a false identity. It might be inferred from that that the RSA, although a positive finding to this effect was not made, considered that the applicant left on a genuine Iranian passport, because the RSA concluded that it would have been very difficult for the applicant to bribe all of the parties involved in the multi-layered exit checking procedure.
In the Court’s view the issue of the means of the applicant exiting Iran was in issue before the RSA, and was in issue as a matter under review by the IMR. It was therefore an issue “arising in relation to the decision under review … which the original decision maker identified as determinative against the applicant.”[90] The IMR specifically took this issue up with the applicant at the IMR Interview. The IMR asked the applicant how he managed his departure and whether he had had any problems with security, to which the applicant responded that the smuggler had made the arrangements and told him the passport was genuine if it had his photograph in it. The IMR inquired as to how this was possible given the security measures at the airport, to which the applicant responded he did not know and that it was arranged by the smuggler.[91]
[90] SZBEL CLR at 163 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.35 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[91] CB 205 at para.39.
The IMR also referred to country information, and specifically referred to the same UK Home Office Report 2010 that had been referred to by the RSA.[92] The IMR noted that:
The UK Home Office Report 2010 notes it to be highly improbable that a person using a forged passport would be able to pass through the various checkpoints and leave the country.[93]
[92] CB 208-209 at para.47.
[93] CB 209 at para.47.
Having considered both the applicant’s explanation and the relevant country information the IMR concluded that:
I also have concern as to how the claimant was able to depart from Iran through the security measures at Khomeini International Airport unless he was able to do so using a genuine passport. The Country information indicates that it is “highly improbable” that a person using a forged passport would be able to pass through the various checkpoints and leave the country in such a manner. He claims his passport was in another name. Country information indicates passports are checked by at least 3 people. The security measures at the international airports include a check so as to see if it is genuine, and also if it is the photograph of the person stored on the database. Whilst I accept it is perhaps remotely possible for someone to pass through those checks without being of adverse notice to the authorities, the likelihood of success I consider to be minimal in the extreme. That he did pass through the airport in combination with his not having the passport with him in Australia (and it possibly then being subject to check and scrutiny) indicates to me that it is reasonable to believe it was a genuine passport, and also reasonable to believe it was in his name. I do not accept given the history of presentation of that passport at the airport in Teheran, that it is reasonable to accept that it was anything other than a genuine Iranian passport. If it was anything other than that I do not accept as reasonable to believe the claimant could have passed through the security measures of the airport. I find that the claimant has not been truthful about his documentation and status in Iran.[94]
[94] CB 222-223 at para.53.
The applicant, based on a section of the Danish Report submits that:
It can be seen that only the third check would be significant in the circumstances of the present case, where the passport was genuine, but the original photo had been removed and replaced with that of the applicant. It would be necessary for only the immigration officer to be bribed, which could be achieved by the people smuggler, with the applicant directed to go to a particular window to be processed by the bribed official.
The means by which, and in particular the nature of the passport and the identity disclosed in the passport, upon which the applicant left Iran was an issue before the RSA in respect of which the applicant was not believed. It was therefore an issue before the IMR of which the applicant was aware, and had sought review.[95] The applicant was aware of the country information, namely the Danish Report and the UK Home Office Report, upon which the RSA had relied in arriving at that conclusion. It was open to the applicant to put submissions on the matter, which was in issue, to the IMR. The time to do that was when the IMR asked the applicant how it was possible to exit Iran through Khomeini International Airport given the security measures at that airport, which was a question asked in the context of an assertion by the applicant with respect to the genuineness of the passport that he used at the time of his departure, or when making the 18 May 2011 Submissions.[96] Having put that matter to the applicant and received the answers that he did, it was open to the IMR to consider that answer, in conjunction with the country information, and also in conjunction with the IMR’s views on the applicant’s credibility, to arrive at the conclusion that he did, which is set out above. What the IMR did in an administrative decision making context was pure fact finding. What the applicant invites this Court to do is to make a different finding of fact based on its interpretation of the procedures set out in the Danish Report. That is not the function of this Court on judicial review. Ground 1.2 must fail because the applicant was afforded procedural fairness, because he knew that the matter was in issue, it was put to him at the hearing, and he responded to it. It must further fail because what the applicant seeks to do is to have this Court stray into the area of merits review which is the province of the IMR.
[95] SZBEL CLR at 163 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.35 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[96] CB 205 at para.39.
Ground 1.2 is therefore not made out.
Ground 1.3
The IMR did not accept that the applicant was an undocumented Faili Kurd. Having found that the applicant was not, in fact, an undocumented Faili Kurd as alleged, there was no error in not considering whether the applicant might suffer persecution by reason of being a member of a class of undocumented aliens.
Ground 1.3 is not made out.
Relief sought
The relief sought is a declaration that the IMR Recommendation was not made in accordance with law, by reason of the amended grounds of judicial review. The applicant eschewed an opportunity to amend the relief sought to include an injunction, for various reasons alluded to in argument. In view of the findings made above it is unnecessary to address those arguments.
Conclusion and orders
For the above reasons, the Court has concluded that all three amended grounds of review have not been made out. This application must, therefore, be dismissed.
The Court will hear parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 30 November 2012
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