WZAOZ v Minister for Immigration and Citizenship

[2013] FCA 516

FEDERAL COURT OF AUSTRALIA

WZAOZ v Minister for Immigration and Citizenship [2013] FCA 516

Citation:		WZAOZ v Minister for Immigration and Citizenship [2013] FCA 516
Appeal from:		WZAOZ v Minister for Immigration & Anor [2012] FMCA 1139
Parties:		WZAOZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		WAD 413 of 2012
Judge:		SIOPIS J
Date of judgment:		28 May 2013
Catchwords:		MIGRATION – independent merits reviewer departed from a finding about the appellant’s status as an undocumented stateless Faili Kurd made by the refugee status assessor – whether the appellant was advised that his status was in issue in the review – whether the appellant was given an opportunity to make submissions on this issue – whether there was a failure to accord the appellant procedural fairness – whether the appellant could rely upon a ground not argued before the primary judge.
Cases sited:		W360/01A v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 449
Date of hearing:	13 May 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Appellant:	Mr JL Cameron
Counsel for the Respondent:	Mr PJ Hannan
Solicitor for the Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 413 of 2012

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

WZAOZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Cross-Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	28 MAY 2013
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 413 of 2012

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

WZAOZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Cross-Respondent

JUDGE:	SIOPIS J
DATE:	28 MAY 2013
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The appellant is an offshore entry person, as defined by s 5 of the Migration Act 1958 (Cth). The appellant arrived in Australia on 2 April 2010 after having travelled from Tehran, Iran to Jakarta, Indonesia by air and then by sea to Australia. The vessel he travelled on from Indonesia to Australia was intercepted by Australian authorities and the appellant was taken to Christmas Island. The appellant did not have a passport with him when apprehended by the Australian authorities.

2. The appellant was interviewed by migration officers upon his arrival at Christmas Island.  In answer to the question whether the passport he used to travel en route to Australia was genuine, the appellant answered “No”.  The appellant said that an Iranian passport had been organised for him by “Mohammad” and was in the name of another person, but contained his photograph.  The appellant went on to say that he did not have the passport with him because he had given the passport to an agent in Indonesia before he got on the boat.

3. On 20 June 2010, the appellant made a request to the Department of Immigration and Citizenship for a refugee status assessment (RSA).  This request was supported by a statement made by the appellant and also written submissions made by the appellant’s migration agent.

4. In his RSA statement, the appellant claimed that he was an undocumented stateless Faili Kurd and a Shia Muslim.  The appellant also stated that he was born in Mandalay, Iraq and forcibly removed in the early 1980s.  He said that he and his family had then settled in the Ilam province in Iran, where he had resided until he departed for Australia.  The appellant claimed that he has never held Iraqi or Iranian citizenship, nor that he had any identification documents.  The appellant said that he had left Iran on a false passport arranged by a smuggler who told him that the passport was “original but they changed the photo and it (sic) under a different name”.  The appellant said that he had to arrange such a false passport because he was not recognised as a national of any country.

5. In his RSA statement, the appellant claimed to fear persecution if returned to either Iraq or Iran.  The appellant claimed to fear persecution in Iran on the basis of his ethnicity as a Faili Kurd, his lack of identity documents and his previous denial of basic rights, such as the ability to work, marry, own property, move freely and access education.  The appellant also claimed to fear persecution from the Basij, the Iranian paramilitary forces, and cited several incidents of violence he and his family had suffered at the hands of the Basij.  The appellant also claimed to fear persecution if he was to be returned to Iraq on the basis of his ethnicity as a Faili Kurd and his Shia religious beliefs.

   REFUGEE STATUS ASSESSMENT

6. On 3 September 2010, a delegate of the Minister for Immigration and Citizenship, having conducted the RSA assessment, determined that the appellant did not meet the definition of a refugee.  The delegate said that, in the absence of any evidence to the contrary, she accepted the appellant’s claim that he was an undocumented stateless Faili Kurd living in Iran.  However, on the basis of the available country information the delegate found that the appellant did not have a well-founded fear of persecution for a Convention reason.

7. Further, after having referred in some detail to country information about the exit security procedures at Imam Khomeini International Airport in Tehran, the delegate stated that she did not accept that the appellant had been truthful about his method of departure from Iran.  The delegate observed that the appellant claimed to have left Iran on a false passport with a false identity.  The delegate found that even allowing for the possibility of being able to bribe officials, the sophisticated multilayered security procedures which existed at the Imam Khomeini International Airport would make it very difficult to bribe all of the officials operating the multilayered security procedures at the airport.

   INDEPENDENT MERITS REVIEW

8. On 13 September 2010, the appellant requested an independent merits review (IMR) of his refugee claim.

9. The IMR interview with the appellant took place on 3 April 2011.  The independent merits reviewer also received several written submissions made by the appellant’s migration agent, including written submissions which were provided after the interview had taken place.

10. On 7 July 2011, the independent merits reviewer recommended that the appellant should not be recognised as a person to whom Australia had protection obligations under the Convention and, therefore, he did not meet the requirements for a protection visa in s 36(2) of the Migration Act.  The Department of Immigration and Citizenship accepted the independent merits reviewer’s recommendation.

11. During his IMR interview, the independent merits reviewer asked the appellant how he managed his departure from Iran and whether he had any issues with security.  The appellant responded that the smuggler had made the arrangements for his departure and told him the passport was genuine but had his photograph in it.  The assessor inquired how this was possible, given the security measures in place at the Imam Khomeini International Airport, to which the appellant responded that he did not know as it was arranged by the smuggler.

12. The independent merits reviewer rejected the appellant’s claim that he was an undocumented stateless Faili Kurd and found him to be a Faili Kurd of Iranian nationality.  The independent merits reviewer also found that the appellant travelled from Iran to Indonesia on his own Iranian passport.

13. In his statement of reasons, the independent merits reviewer found the appellant had “fabricated significant aspects of his claims and history” and found the appellant not to be a credible witness.  Among several other matters which adversely affected the appellant’s credibility, the independent merits reviewer expressed concern about the credibility of the appellant’s claimed method of departure from Iran.  The independent merits reviewer referred to country information which, he said, indicated that it is “highly improbable” that a person using a forged passport could pass through the various checkpoints at the Imam Khomeini International Airport and leave Iran.  This, combined with the fact that the appellant did not have this passport in Australia, led the independent merits reviewer to find that the appellant had used his own genuine passport to depart Iran, and that the appellant was not in fact an undocumented stateless Faili Kurd, but rather he was an Iranian national who travelled on his own genuine passport.

14. Accordingly, the independent merits reviewer went on to state that he did not accept that the appellant had suffered persecution due to him being an undocumented stateless Faili Kurd in Iran.

15. The independent merits reviewer also found that while the appellant may have suffered a degree of adverse interest as an Iranian Faili Kurd, it was not for a Convention reason and not of sufficient seriousness to be considered persecution under the Convention.  The independent merits reviewer accepted the appellant did twice encounter the Basij and was beaten during one of these encounters.   However, the independent merits reviewer observed that these two incidents reflected minimal adverse interest from the authorities and were not related to his Faili Kurd ethnicity, particularly given that the Basij in his area would likely also be Faili Kurds.

    THE FEDERAL MAGISTRATES COURT

16. The appellant then applied to the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) on 29 July 2011 for judicial review of the independent merits reviewer’s recommendation.

17. The grounds of review relied upon were the following:

    1.The Second Respondent acted without procedural fairness and denied the Applicant natural justice when:

    1.1he determined, contrary to the determination in the Department’s Review Status Assessment that he 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.

    1.2he determined, based on a misunderstanding of the country information and the Applicant’s evidence, that airport procedures in Tehran meant that the Applicant must have travelled on a valid Iranian passport, when the Department’s Review Status Assessment had failed to reach a positive determination of the issue, without first putting to the Applicant that he proposed doing so and inviting him to comment.

    1.3he 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.

18. The Federal Circuit Court dismissed the appellant’s application for judicial review.

19. As to ground of review 1.1, the primary judge referred to a number of instances in the independent merits reviewer’s reasons which recorded that the question of the appellant’s nationality and whether he was “documented” was put to him in the IMR interview.  The primary judge also referred to the fact that the appellant’s migration agent had recognised that these matters were in issue as part of the independent merits review and had specifically addressed these matters in written submissions submitted six weeks after the IMR interview.  The primary judge went on to find that the question of whether the appellant was an Iranian national or an undocumented stateless Faili Kurd was put to the appellant, and addressed by the appellant during the IMR interview and, also, in subsequent written submissions made by his migration agent.  As a consequence, the primary judge found that ground 1.1 was not made out.

20. As to ground 1.2, this ground complained that the appellant had not been given the opportunity to make submissions in respect of the independent merits reviewer’s finding that the appellant had left Iran on a genuine passport because he had successfully been able to pass through the security procedures at the airport.

21. The primary judge found that the appellant was aware that the question of how he was able to pass through security at the airport when travelling on a false passport would be an issue in the independent merits review.  The primary judge observed that the question had been identified as an area of concern in the RSA.  Further, said the primary judge, this question had been raised directly with the appellant in the IMR interview, and the appellant had been given the opportunity to address this issue during his IMR interview and in the written submissions after the hearing.

22. The primary judge also found that, having raised the issue with the appellant and having received the answers that he did, and in conjunction with the country information available, it was entirely open to the independent merits reviewer to conclude that the appellant was an Iranian national who had travelled on his own genuine Iranian passport.

23. Further, the primary judge found that insofar as this ground of review sought to raise the question of the assessment of the content of the country information and its application to the evidence, the appellant was inviting the court to make a different finding of fact to the independent merits reviewer.  This aspect of the ground of review, said the primary judge, was inviting the court to “stray into the area of merits review” which was not the function of the court when engaging in judicial review.  The ground of review was dismissed.

24. As to ground 1.3, the primary judge found that, having found the appellant was not an undocumented stateless Faili Kurd, there was no error in the independent merits reviewer not considering whether the appellant might suffer persecution by reason of being a member of a class of undocumented aliens.  Accordingly, this ground of review was dismissed.

    THE FEDERAL COURT

25. On 21 December 2012, the appellant filed a notice of appeal to the Federal Court.

26. The appellant relied upon two grounds of appeal.  However, prior to the hearing, the appellant abandoned the first ground of appeal.

27. The hearing of the appeal proceeded on the basis of the second ground of appeal which alleged that the primary judge erred in determining that the independent merits reviewer had afforded the appellant procedural fairness in relation to his finding that the appellant was an Iranian national who had travelled on a genuine Iranian passport issued in his own name, in the absence of having put to the appellant for comment that he proposed making such a finding.

28. In support of this ground of appeal, the appellant observed that the RSA assessor had accepted the appellant’s claim that he was an undocumented stateless Faili Kurd living in Iran and complained that, in making the finding referred to in the ground of appeal, the independent merits reviewer had departed from that finding.  The appellant contended that, in those circumstances, it was incumbent on the independent merits reviewer to accord the appellant procedural fairness in relation to the making of the impugned finding.

29. The primary judge found that the independent merits reviewer had, during the IMR interview, alerted the appellant to the fact that the question of whether he was a documented Iranian citizen was in issue in the review, and had sought his response.  In support of that finding, the primary judge referred to the following extracts from the independent merits reviewer’s statement of reasons:

    33.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”

    34.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…”  (Original emphasis.  Footnotes omitted.)

30. The primary judge also made the following observations to show that the appellant’s migration agent had appreciated that the question of whether the appellant was truly an undocumented Faili Kurd as he claimed, was in issue before the independent merits reviewer, and that the appellant had been given an opportunity to make submissions on this question:

    38.The migration agent was aware of the citizenship issue.  In submissions dated 18 May 2011, 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” 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.  (Footnotes omitted.)

31. In my view, it is apparent from the material relied upon by the primary judge, that he did not err in rejecting the appellant’s contention that he had been denied procedural fairness in relation to the making of the impugned finding.

32. In argument, before this Court, the appellant also contended that the independent merits reviewer’s finding that the appellant had departed Imam Khomeini International Airport on a genuine Iranian passport in his own name was “relevant and significant insofar as it reflected adversely on the core of his claim that he was undocumented and that the persecutory conduct which he feared stemmed from that circumstance”.  This much is accepted.  The appellant went on to contend that the independent merits reviewer had not accorded the appellant procedural fairness because he had not warned the appellant that he intended to find that, having regard to the country information, the passport he used to depart Iran was a genuine passport issued in his own name.  Counsel for the appellant went on to contend that had this been done, the appellant would have drawn to the independent merits reviewer’s attention to the “character of the passport” and would have disputed that it had been issued in his own name.

33. The appellant’s point was that the nature of the false passport he used is significant, because in his contention, the risk of being detected by the officials at Imam Khomeini International Airport was reduced by using a false passport which was “genuine” save for the fact that it contained a false photograph.This is because, contended the appellant, the country information stated that only the third of the three layers of security at the airport, involved a check of the photograph on the passport against the name in the passport.  This circumstance, said the appellant, also undermined the reasoning of the RSA assessor that it would be very difficult for a person to depart the airport on a false passport, even by the deployment of a bribe, because of the difficulty of having to bribe each of the officials at each of the three layers of airport security.  The appellant contended that by denying him procedural fairness on this issue, the independent merits reviewer did not fully apprehend the appellant’s case.

1. In my view, for the following reasons, the primary judge did not err in finding that the independent merits reviewer had accorded the appellant procedural fairness in relation to his finding as to the means of the appellant’s departure from Tehran.

2. First, this question was squarely raised with the appellant by the independent merits reviewer during the interview.  This is evident from the following extract from the reasons of the  independent merits reviewer:

   39.In relation to his departure from Iran I asked how he managed this, and whether he had any problems with security at the international airport.  He said all of this was arranged by the smuggler who told him the passport was genuine but had his photograph in it.  He said he didn’t have any problems at Khomeini International airport.  I asked how this was possible given the security measures at the airport.  He said he didn’t know and maybe this was arranged by the smuggler.

3. Secondly, and in any event, as the primary judge found, the appellant was already on notice that the question of whether he was telling the truth about the means by which he was able to pass through the security procedures at Imam Khomeini International Airport would be in issue in the IMR.  This is because the RSA assessor had stated, after having referred to the country information, that she did not accept that the appellant had been truthful about his method of departure from Iran.  More specifically, the RSA assessor had expressly referred to the multilayered nature of the security procedures at the airport and the difficulty in being able to bribe officials at all three layers of the security system.

4. Accordingly, the appellant and his migration agent would have known that the means of his departure from the airport would be an issue before the independent merits reviewer; and that it was a matter in respect of which he would need to give evidence and make submissions.

5. It is apparent, therefore, that the appellant had every opportunity to give such evidence and make such submissions on this question before the independent merits reviewer as he chose, including evidence which took account of the character of the false passport and its relationship to the difficulty of passing through the multilayered airport security procedures described in the country information.  Notwithstanding that the appellant was given the opportunity of explaining how he passed through the airport’s security procedures on a false passport, he did not raise any point about the reduced risk of detection arising from the nature of his false passport.

6. As mentioned, in my view, the primary judge did not err in finding that there was no breach of procedural fairness by the independent merits reviewer in the process leading to the impugned finding.

7. During the course of his submissions, whilst still purporting to rely upon the denial of procedural fairness ground of appeal, the appellant contended that by not focusing on the specific nature of the falsity of the appellant’s passport, the independent merits reviewer had asked the wrong question in considering the difficulty in evading the security checks at Imam Khomeini International Airport, referred to in the country information.  In my view, insofar as this argument was advanced as a discrete argument, it amounted to an impermissible attempt by the appellant to attack the fact finding process of the independent merits reviewer.

8. The appellant also raised a new complaint based on the allegation that the independent merits reviewer had not sought to obtain evidence from the appellant’s eldest son, notwithstanding that the appellant had provided his son’s mobile telephone number. (See [29] above.)

9. The appellant contended that the independent merits reviewer had erred in failing to advise the appellant that, notwithstanding that the appellant had invited the independent merits reviewer to contact the appellant’s eldest son, the independent merits reviewer did not intend to do so.  The appellant relied upon the case of W360/01A v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 449 (W360/01A).  The appellant observed that W360/01A was a case dealing with s 426 of the Migration Act 1958 (Cth) which provides that a visa applicant may request the Refugee Review Tribunal (the Tribunal) to call witnesses to give evidence at the review hearing. The appellant recognised that the independent merits review did not take place under the Migration Act but referred to s 426 as being indicative of the minimum standards of natural justice.

10. The respondent strongly opposed the appellant’s submission that the Court should permit the appellant to raise on appeal an argument which had not been ventilated in the court below.

11. In my view, the appellant should not be permitted to raise this matter on appeal.  First, there was no sufficient explanation as to why the argument was not raised before the primary judge.  Secondly, the argument has insufficient prospects of success.

12. It is for an applicant for review to make out his or her own case in support of any claim for refugee status.  In this case, the appellant was represented by a migration agent at the interview.  Had the appellant and/or the appellant’s migration agent regarded the son’s evidence as being an important component of the appellant’s case, each could have taken steps to ensure that the evidence was presented to the independent merits reviewer.  This could have been, but was not, done before the interview.  It would have been open to the appellant, and/or to the appellant’s migration agent, during, or even after the interview, to ask for an opportunity to adduce this further evidence.  This was not done, nor was there any reference in the appellant’s written submissions submitted after the hearing to a failure by the independent merits reviewer to take evidence from his son, or about a failure to respond to the appellant’s reference to his son as a potential witness, nor was there a request that the independent merits reviewer’s recommendation be delayed pending the obtaining of a statement from the son.

13. The case of W360/01A is distinguishable from this situation.  In W360/01A, the visa applicant formally asked the Tribunal before the hearing to exercise its powers under s 426 of the Migration Act to call a nominated person as a witness at the hearing.  The witness was willing and able to give evidence and on the day of the hearing attended the gate of the detention centre for the purpose of being transported to the hearing to give evidence.  However, the Tribunal did not arrange transportation for the witness to be taken to the hearing.  In its reasons, the Tribunal recognised that it had failed to give effect to the visa applicant’s request that his nominated witness give evidence, and sought to discount the importance of that evidence.

14. By contrast, in this case, there has been no formal request by the appellant that the independent merits reviewer make arrangements in advance for the evidence of a witness to be given at the IMR interview.  There was no neglect to make arrangements for the taking of evidence at the interview of a person who was willing and able to give evidence at the interview.  The appellant’s comment about his son as a potential witness was made incidentally whilst answering a question at the interview.

15. There was no obligation on the independent merits reviewer to make his own inquiries, nor was there an obligation on the independent merits reviewer to make the appellant’s case.  In the circumstances, there was no obligation on the independent merits reviewer to advise the appellant that he did not intend to take evidence from the appellant’s son.

16. It follows that the appellant’s appeal is dismissed.

I certify that the preceding forty‑nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       28 May 2013