WZAPD v Minister for Immigration
[2012] FMCA 626
•20 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 626 |
| MIGRATION – IMR decision recommends applicant not owed protection obligations – Faili Kurd – whether jurisdictional error involved in finding applicant born in Iran – whether applicant afforded procedural fairness – whether proper, genuine and realistic consideration of claims – whether decision illogical or irrational – application refused. |
| Migration Act 1958 (Cth), ss.65, 91R & 476 Administrative Decisions (Judicial Review) Act 1997 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 DZABS v Minister for Immigration and Citizenship & Anor [2012] FMCA 297 Craig v The State of South Australia [1995] HCA 58 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Cityof Enfield v Development Assessment Commission (2000) 199 CLR 135 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 Buck v Bavone (1976) 135 CLR 110 Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | WZAPD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 233 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 2 July 2012 |
| Date of Last Submission: | 2 July 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 20 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Seif |
| Solicitors for the Applicant: | Case for Refugees |
| Counsel for the Respondents: | Mr Macliver |
| Solicitors Respondents: | Australian Government Solicitor |
ORDERS
That the Application filed on 23 August 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 233 of 2011
| WZAPD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”).
It is made following the statement of reasons of one Chris Packer for recommending to the Minister that Australia does not owe the applicant protection obligations under the Refugees Convention and Refugees Protocol. I will refer to Mr Packer hereafter as the “reviewer” and to his report as “the IMR report.”
The nature of the jurisdiction of this Court in such applications in the light of the High Court decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 and the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 was discussed by me in DZABS v Minister for Immigration and Citizenship & Anor [2012] FMCA 297. I adhere to what I said there as to the nature of the jurisdiction, in particular at [50] to [64].
It is the future or anticipated reliance by the Minister on the IMR report which gives rise to the claim for relief.
But the error must be one which goes to jurisdiction. As I said in DZABS (supra) at [63]
Regarding myself as bound to consider that future or anticipated decision as a migration decision under s.476, I am also bound to regard my power to review as being limited only to those future or anticipated decisions which can be shown to have been vitiated by jurisdictional error (see [50(e)] hereof). Perhaps a better way of expressing my task (as left to me by the combined effect of the High Court decision in Plaintiff M61 (supra) and the Full Court decision in SZQDZ (supra)) is that it is to determine whether such future decision is likely to be vitiated by jurisdictional error if I posit the possibility of reliance upon the IMR decision which is the focus of the application.
Jurisdictional error is a concept explained in High Court decisions such as Craig v The State of South Australia [1995] HCA 58. One of the tasks before me will be to determine whether the errors in the IMR report contended by the applicant were jurisdictional errors (or rather, whether reliance on the report by the Minister would give rise to jurisdictional error in his future or anticipated migration decision).
An Amended Application filed on 2 March 2012 sets out three grounds:
1.The applicant was not afforded a fair hearing, further and in the alternative, was denied natural justice.
(a)The essential basis of the applicant’s application for a protection visa is that, because he was a Kurdish Faili and due to a lack of documentation and an inability to get documentation, he was persecuted, in that he was deprived of access to education, proper medical services, an ability to gain proper employment, freedom of movement, the right to own property, the right to a bank account, and a (sic) result was unable to marry, or otherwise lead a normal life, and was at risk from the Basiji.
(b)The second respondent did not accept that the applicant “was undocumented or was unable to get identity documents in Iran. I therefore do not accept his claim based on a lack of documentation.” (paragraph 92, Court Book [CB] 122).
(c)All of the evidence is consistent with the applicant being undocumented and none of the evidence is consistent with the applicant having documents.
(d)The fact that the applicant was undocumented was accepted in the RSA and the issue was not properly put by the second respondent to the applicant during the course of their interview.
(e)The second respondent put to the applicant the statement in the RSA about a car. The applicant denied that his family had ever a car, but the putting of this irrelevant issue would have served to confuse and unnerve the applicant. There was no referral to car in the interview with the RS Assessor, and the statement in the RSA should not have been raised.
(f)The applicant’s denial of schooling was not adequately or properly put to the applicant in the IMR interview, to enable the second respondent’s conclusion that the applicant was not “denied schooling because he was a Kurd and/or undocumented” (paragraph 94, CB 122).
(g)The second respondent’s finding that the applicant was not prevented from working or excluded from work “because of his ethnicity, a lack of identification, or for any other reason” (paragraph 96, CB123) was
(1) not adequately or properly put (sic) the applicant in the IMR interview; and
(2) unsupported by the evidence.
(h)The entry on page 1 of the Biodata form that the applicant was born in Iran was given undue consideration and weight by the second respondent, because:
(1) it was consistently contradicted by all of the other information in the Biodata form;
(2) it was contradicted by all of the other evidence available to the second respondent;
(3) the applicant is illiterate;
(4) Kurdish Faili is not a written language;
(5) how the entry came to be made was not investigated, nor properly put to the applicant by the second respondent.
2. The second respondent failed to give proper, genuine and realistic consideration to the merits of the case.
(a)The second respondent disbelieved almost everything that the applicant said.
(b)The second respondent concluded at paragraph 89 (CB 122) that the applicant was born in Iran, relying on the answers in the Biodata Form at page 1 (CB 1), and accordingly that the applicant was “an Iranian national and so he is not stateless as he claims” (paragraph 91 (CB122)).
(c)In so concluding, the second respondent disregarded the information contained in
(1) Part B of the Biodata Form at pages 3 (CB 8), and 4 (CB 9),
(2) the Entry Interview Running Sheet (CB27),
(3) paragraphs 3 read with 4 of the Statutory Declaration (CB44),
(4) every other statement made by the applicant: see transcripts of the RSA and IMR interviews,
(5) the submission made to the Independent Reviewer (CB91)
(d) The applicant repeats paragraph 1 above.
3. The second respondent made a decision which is irrational, illogical and not based on findings or inferences of facts supported by logical grounds.
Particulars
(a) The applicant repeats paragraphs 1 and 2 above.
A fourth ground was added during the course of the hearing before me. I will set out that further amended ground of the application hereafter.
The applicant arrived at Christmas Island on 23 June 2010.
His account of those matters said to ground his application for a protection visa are to be found in the following documents:
a)the biodata document, the information for which is taken upon arrival [CB 1 to 5]. The answers are given in both English and Persian and the interpreter states at the conclusion of the document that the applicant has “fully understood the questions presented in this form” and it was completed on the date of his arrival presumably, which was 23 June 2010. I will refer to this hereafter as the “biodata document”;
b)an entry interview (completed in English) which is said to have been carried out with the assistance of an interpreter in the Faili Kurd language and dated 24 August 2010 (or at least that is the date on the entry interview running sheet which accompanies the document). I will refer to this document hereafter as “the entry interview”;
c)a request for a refugee status assessment completed in English with accompanying statutory declaration both dated 5 September 2010 and both accompanied by interpreters’ declarations as to the accuracy of the translations of both documents to the applicant in his own language. These documents will hereafter be called respectively the “RSA application” and “statutory declaration”;
d)the transcript of the refugee status assessment interview of 8 September 2010, at which the applicant was assisted by an interpreter in his own language. I will describe this as the “RSA interview”;
e)a submission on behalf of the applicant, prepared by his agent and dated 4 November 2010, which I will call “the agent’s submission”;
f)the transcript of the IMR interview of 8 April 2011 at which the applicant was assisted by an interpreter in his own language and which I will describe as the “IMR interview”.
The focus of ground 1 is the finding of the reviewer at [91] and [92] as follows:
[91] In sum, the matters discussed above are directly relevant to the claimant’s claims to be an Iraqi born Faili Kurd displaced from Iraq in 1980. However, as I reject his story concerning his birth in Iraq and the family’s expulsion to Iran in 1980, and as I did not find the claimant to be a credible witness when he discussed his family history, I am not satisfied that his family (the parents and grandparents) have any family links to Iraq. I am not satisfied that he and his family are other than Iranian born and so are Iranian nationals. Country information shows that a person born in Iran to an Iranian parent is also an Iranian national. I find that the claimant is an Iranian national and so he is not stateless as he claims.
[92] The other element of the claimant’s claim to be a stateless, displaced Iraqi born Faili Kurd, with an Iraqi born father, is that he is undocumented. However, in the light of the foregoing, I am not satisfied that his family (the parents and grandparents) have any family links to Iraq, and so I also do not accept the claimant was undocumented or was unable to get identity documents in Iran. I therefore do not accept his claims based on a lack of documentation.
The earlier finding at [80] –
I accept for the purposes of this decision that the claimant is a Faili Kurd who resided in Iran until he departed for Australia. I accept his identity is as set out in this review.
– needs to be understood in the light of those subsequent findings.
The findings as to Iranian nationality and statelessness are contrary to the findings as to those topics in the RSA report that he was “stateless” [CB 74] and “an undocumented Kurdish Faili” [CB 82].
In argument before me, counsel for the Minister conceded that, as per his written submission:
[21] The first respondent accepts that where on review a decision-maker or tribunal take a different view in relation to a particular issue from that reached by the primary decision-maker, procedure (sic) fairness requires that person concerned be advised of that different view and be given an opportunity to make submissions.
I accept that proposition. Furthermore, a failure to provide procedural fairness would amount to an error going to jurisdiction.
The finding as to statelessness is bound up with the finding that he is an Iranian citizen. The latter finding seems to have arisen on account of both the reviewer’s rejection of his account of his family history on credibility grounds and the fact that the applicant conceded that his mother was born in Iran. The latter finding was then coupled with country information [set out at CB 119 and 120] that was said to indicate that children of such persons were entitled to Iranian citizenship.
A reading of the transcript of the IMR interview demonstrates clearly, in my view, that the reviewer’s scepticism relating to the claim for statelessness was clearly understood by the applicant and his adviser. The reviewer explicitly states that the issue of whether the applicant was born in Iran was a matter that was clearly before him for his consideration (see pages 3 and 4 of the transcript which appears as Annexure B to the affidavit of Shayla Strapps affirmed on 2 March 2012).
If the reviewer had come to a view that the applicant was stateless, the claim for refugee status would still have to have been determined against the applicant’s circumstances in Iran, where he had indisputably lived since 1980, but the claim would have been assessed as that of a Faili Kurd without a right of citizenship, which the applicant contends would have been much more likely to have resulted in the acceptance of his status as a refugee owed protection obligations.
But in my view, the complaint that the applicant was not put on notice that the RSA finding as to statelessness was being scrutinised, cannot be sustained.
The author of the RSA seems to have been content to make a finding of statelessness without deciding the issue of citizenship, even though similar country information as to the acquisition of Iranian citizenship matrilineally was referred to by him [CB 79]. He rejected the claim for refugee status on the basis of the applicant’s statelessness but against the background of Iran being the applicant’s country of habitual residence.
In any event, before me there was no challenge to the country information summarised by the reviewer at [78] and [79] that the applicant was entitled to acquire Iranian nationality on account of his mother having been born in Iran.
Some uncertainty attends the findings as to nationality in both the RSA decision and the IMR report.
It may be there is no material difference between Faili Kurds who arrive aged three in Iran with an Iranian mother and Iraqi father, but who have never acquired citizenship on the one hand, and a stateless person on the other; or that there is no material difference between the position of such a person who had acquired citizenship through the matrilineal side of the family, and one, who having arrived, did not; perhaps that is why the RSA author was prepared to proceed upon a finding of statelessness. It is unclear.
But as far as the contention that procedural fairness was not accorded in the way in which the IMR departed from the finding of statelessness in the RSA decision, however, I have already indicated my unwillingness to accept that argument. The applicant was on notice that these matters were in issue.
Under the aegis of ground one, and the lack of procedural fairness, the applicant also complains of a number of factual findings that, it is said, were not properly put to the applicant and/or were based upon inadequate or no factual findings (the latter complaint is also raised in the context of ground two).
Firstly, in assessing the claim for protection the IMR report referred to the contention that a family member of the applicant had died at the age of two years from a snake bite because, it was said, of the inability of the applicant’s family to access proper medical treatment for that sister. This, in turn, was said to arise from fear of persecution from the Basiji who controlled an area through which the family had to travel to access the medical treatment. This was at a time when the applicant himself was four years old. The claim was made in the statutory declaration.
A finding by the reviewer that this claim was also made in the RSA interview is mistaken. It is not. So much was conceded by the respondent before me. There being no second account of this incident, the applicant’s story on this point cannot be criticised as “changeable” as the reviewer purported to do at [97] of the IMR, and ought not to have gone into the scales in deciding to reject the alleged incident as worthy of being a factor in the assessment of fear of persecution.
The statement wrongly attributed to the applicant in the RSA interview included a reference to the family travelling in a car. The reviewer put this proposition to the applicant in interview (see the affidavit of Shayla Strapps, Annexure B at page 5). It is said that the putting of this was a denial of procedural fairness. I will also assess it under the aegis of ground two. The passage is as follows:
CP: Now sir, thank you, I might now just put to you some concerns I suppose you could say I have with your story or your claim. And some might be more significant than other of course. Now, I note that you did talk about your sister who died of a snake bite. I see though that you have at times said that she died through lack of treatment as your family was afraid of passing through Basij controlled areas.
MJ: Correct.
CP: However, in your interview on 8 September last year, you said it appears that the car in which you were travelling to hospital was stopped at a Basij checkpoint.
MJ: No, didn’t have car there, no car. We lived in isolated areas. No access to a car in that area because of the reasons we lived there. Like a narrow road.
CP: And does that mean it was hard to get in and out of your home area?
MJ: Part of the road is access to and very easy to get there and the second part is very hard to go there, only for the animals and cattles they go through access to these roads.
But, as will be seen from that passage, the applicant almost immediately corrected him in relation to the car, and the statement that there was no car was apparently accepted by the reviewer, at least implicitly (see [97]).
I will return to this error in fact finding later in these Reasons.
Next, the applicant complains from a procedural fairness perspective, of this passage in the IMR report:
[94] The claimant has spoken of his scant schooling. I cannot discount the possibility that the claimant did not undertake formal schooling. Indeed, at my interview the claimant’s and agent’s descriptions of the community schooling provided at a Mosque because his village was in an isolated area where a teacher comes to provide limited schooling to the village, accords with country information. However, given the circumstances the claimant has described, I do not accept that the limited schooling undertaken by the claimant shows that he was denied schooling because he was a Kurd and/or undocumented.
The expression “given the circumstances the claimant has described” is very vague, but the reviewer, in my view, in this passage is saying no more than that the limited schooling the applicant has received was more likely to be a function of the remoteness of his village and was not explicable only by reference to the denial of services experienced by Faili Kurds, and especially non-documented Faili Kurds. The finding itself seems to me to be an unexceptional remark.
It is difficult to identify what it is that ought to have been put to the applicant in relation to this passage. I do not think any issue of procedural unfairness arises in the way that the reviewer dealt with this issue. He is not obliged, as it were, to give the applicant a first draft of his finding on this topic and then invite a response. He draws his conclusions from all of the information before him, which information had either been provided by the applicant or canvassed in the RSA decision. He draws inferences from the information that has been put by the applicant and the country information with which it was consistent. No complaint is made, as far as I understand, that the country information, referred to in a general way as it is, is other than that which is contained within the country information cited on behalf of the applicant as referred to in the RSA decision, as claimed by the reviewer at [61].
The following passage from the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 - 592 articulates the distinction between those matters (including conclusions and not just facts) which must be disclosed and those where no such obligation arises:
[29] Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
At [95] and [96] the reviewer rejected the applicant’s claim that he and his family had experienced difficulties in finding employment. It will be recalled that s.91R(2)(f) of the Act instances the denial of a capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, as serious harm arising from persecution.
It is said that procedural unfairness arose because the reviewer did not adequately put the matters contained in these paragraphs to the applicant and invite him to respond. But the matters upon which the reviewer relied were those matters that were provided by the applicant himself. The reviewer was unpersuaded by that material that the applicant and his family had been prevented from working because they were Faili Kurds or because they were undocumented. The latter conclusion was one reached independently of that information. I do not see that in these circumstances any issues of denial of procedural fairness arises.
These three issues – the inability to access medical treatment, schooling and employment opportunities denied – are all also raised in the context of a submission that the reviewer failed to give proper, genuine and realistic consideration to the merits of the case and that the reviewer’s decision or recommendation was irrational, illogical and not based on findings or inferences supported by logical grounds.
The formulation of the reviewer’s duty being to give “proper genuine and realistic consideration” to the merits of the case before him has its provenance in a case decided under the provisions of the Administrative Decisions (Judicial Review) Act 1997 (Cth), namely the case of Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291. There Gummow J found that the delegate of the Minister in considering the material before him in a migration appeal, had failed to give it proper, genuine and realistic consideration. The formulation has subsequently been referred to with approval by the High Court in Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 and in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470.
The need for rationality and logicality in decision-making is closely related to such a formulation; arbitrariness and irrationality are often found together. In finding jurisdictional error in relation to a decision of the Refugee Review Tribunal in Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Kenny J said at [72]:
It is, however, unnecessary to go this far. Under the circumstances of the present case, the respondents have met their burden. On the face of the tribunal’s written statement, the tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent’s answers; no such material can be found in the record; and no other logical basis justifies the tribunal’s finding. In these the circumstances, it is appropriate to infer that the tribunal’s decision-making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the federal magistrate did not err in finding jurisdictional error.
In relation to the schooling and employment issues, the reviewer’s conclusions were in my view open to him on the applicant’s own version of events and, in the case of schooling and the issue of remoteness, the country information considered. Other persons considering such material might come to a different view; but the view that the reviewer has reached cannot fairly be described as irrational or as illogical or as not disclosing a proper genuine and realistic consideration of the facts and material before him on these issues.
In Minister for Immigration & Citizenship v SZJSS (supra), the High Court was dealing with an appeal from the Full Court of the Federal Court, allowing a review of a Refugee Review Tribunal decision upon the basis of the use by that tribunal of certain letters said to demonstrate the risks to the applicant of return to his country of nationality. The High Court allowed the appeal and said at [36]:
The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
I find no jurisdictional error involved in the way in which the reviewer came to these findings. The issue relating to the snake bite of the sister, however, raises a different problem. I have already indicated (at [27] and [28]) that the tribunal had no basis for making the statement that the applicant had changed his story relating to this topic. An alleged second version of the story was simply never given. The error is emphasised when we have regard to the fact that the non-existent statement was referred to on three separate occasions by the reviewer in his decision (at [42], [81] and [97]).
The reviewer has made a factual error as to the very existence of an inconsistent version of this snake bite story. The wrong factual finding has then been used to ground a finding (adverse to the applicant) as to his credit.
Not every wrong factual finding will lead to a finding of jurisdictional error (see Cityof Enfield v Development Assessment Commission (2000) 199 CLR 135 at 44).
As Rares J said in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [12]:
Irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact. Ordinarily, a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact: City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 153-154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. After all, the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct. However, if the fact wrongly found is a jurisdictional fact, the decision will be amenable to judicial review. That is because the decision-maker cannot create or negate the existence of his, her or its jurisdiction by an erroneous finding or supposition that the jurisdiction exists or does not exist: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 570-571 [64], 572-573 [67]-[68] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; cf too Australian Communist Party v Commonwealth(1951) 83 CLR 1 at 200 per Dixon J, 258 per Fullagar J; Plaintiff S157/202 211 CLR at 512-513 [102].
I must remind myself at this point of my task in this matter. It is to decide whether a future or anticipated reliance by the Minister on this particular reviewer’s report would give rise to a jurisdictional error. It is the notional future decision which is the “migration decision” which grounds the jurisdiction of this Court under s.476 of the Act. Effectively, the decision would result in the Minister not being “satisfied” that the criteria for the grant of the protection visa had themselves been “satisfied” (see s.65(1)(a)(ii) of the Act). That is the jurisdictional fact.
Has that finding of fact involved jurisdictional error because of the credibility finding that was itself manifestly unjustified?
Rares J in SZOOR (supra) considered himself constrained by the High Court authorities of Buck v Bavone (1976) 135 CLR 110 and Wu Shan Liang (1996) 185 CLR 259, to come to this conclusion about the irrational finding of fact established in the case before him and he says this at [15]:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.
McKerracher J in SZOOR (supra), (with whom Reeves J agreed) reached the same conclusion but by a somewhat different route and in particular upon the basis of authority that related to a finding of a lack of procedural fairness rather than irrationality. For his Honour, it is not enough that someone else could have reached the same conclusion on the evidence. His Honour said at [96]:
Ultimately it comes down to a question of whether it can be said that the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations. This was the test enunciated by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 and see also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470. Nevertheless, it is clear from such cases and, in particular Aala, the grant of relief under constitutional writs is a matter for discretion, much depending on the facts and circumstances of each case. The majority in Aala held, as Gleeson CJ noted (in [4]-[5]) that it could not be concluded that the denial of procedural fairness made no difference to the outcome of the proceeding. All members of the High Court, however, adopted the same or similar test. All members recognised that not every breach of the rules of natural justice would affect the making of a decision. As McHugh J (who was in dissent in the actual result) observed (at [104]), a breach of the rules of natural justice would not automatically invalidate a decision adverse to a party affected by the breach. His Honour noted that in Stead the High Court had already observed that ‘not every departure from the rules of natural justice of a trial will entitle the aggrieved party to a new trial’. However, his Honour, as with the majority, emphasised that a court should refuse relief only when it is confident that the breach could not have affected the outcome.
Here, the applicant’s case relied to a relatively minor degree on matters that were personal to the applicant’s own situation, or upon his own experience. He was not a political agitator, nor did he have any other kind of specific profile that gave rise to a fear of persecution for a Convention reason. His difficulties were those that he said maintained on account of his being an undocumented Faili Kurd (or stateless Faili Kurd, which amounts to the same thing). The instances that he gave of his disadvantage were those that were common, in his submission, to other members of that social group. The specific instances of his personal experience that related to this submission were of a low level of potency or significance.
It was the rejection of his status as a stateless Faili Kurd which was at the heart of the reviewer’s determination.
The unwarranted adverse credit finding as to the snake bite incident was but one reason given by the reviewer for rejecting the applicant’s account of the explanation for the family’s difficulties in obtaining medical treatment. The reviewer clearly considered the experience to have instead been a function of the isolation of the family coupled with the absence of a car and the difficulty of travel in that area. The whole incident, in any event, was some 30 years old at the time of the reviewer’s decision. It was always going to be a matter of marginal significance.
There were other reasons to reject the significance of the applicant’s account of the incident, apart from the credit finding. There were far more important matters involved in the rejection of the claim itself apart from this incident.
The reviewer’s handling of this issue did not give rise to jurisdictional error.
The remaining contention is that in relying upon the information in the biodata document to the degree that he did, and ignoring abundant contrary contentions of the applicant as to his provenance, the reviewer was being irrational or illogical and was failing to give proper genuine and realistic consideration to the merits of the claim.
When the applicant arrived at Christmas Island (on 23 June 2010, or at least this is a date that did not seem contentious before me) he gave information which was written down in answer to pro forma questions contained in the biodata document. The document is headed “Biodata (Persian)”. It was said by the reviewer that the answer to question 4 – place of birth – which is given in the applicant’s own language is the same place that is disclosed in answer to question 7 which asks for his most recent address in his country of residence or citizenship. The answer in both cases was, it was said, an address in Iran. The address is not translated into English so I cannot say what that particular place in Iran is, but there was no dispute before me that such place was given as the answer to both questions in the document. The form itself contains an interpreter’s statement that indicates the interpreter’s professional opinion that the applicant fully understood the questions presented in the form.
This is the only occasion on which the applicant gives Iran as his place of birth.
In the entry interview of 24 August 2010 he says that Badra in Iraq is his place of birth (though that document also includes a record that he lived in Iraq since 1977 (see [CB 9]).
In the statutory declaration the applicant says that his family was expelled from Iraq in 1980 (that is consistent with abundant country information indicating large scale expulsion of Faili Kurds from Iran at the time by Saddam Hussein); the statutory declaration itself does not say where he was born but the request document does. It gives Badra in Iraq as the place of birth.
Throughout the RSA interview and the IMR interview the applicant claims to have been born in Iraq.
The reviewer finds that he was born in Iran. He says at [88] and [89]:
[88] At my interview when I put this significant difference to the claimant, he gave various explanations: he was not concentrating when he arrived at Christmas Island; he is sure he was born in Badra and maybe he did not ‘get’ the questions; perhaps the interpreter made a mistake; and he had not been in a good condition to answer. The agent also submitted that: the claimant says he was very distressed at the time; he cannot write or read; an interpreter was used and there could be errors; the UNHCR says that the first statement should be taken with caution; and the biodata forms should be taken with caution as they are not read back and this point might not have been picked up.
[89] In this case, however, I do not accept these explanations and arguments for the following reasons. The information asked for was straightforward, and the questions were simple and not easily misconstrued. Indeed, the claimant gave the same Iranian address to two different question, including indicating he had lived at only that address since 1977. As well, his oral answers were not interpreted into English and written down, but rather, his oral answers were directly written in Kurdish and then later translated into English, so that the chances of misinterpretation were scant. I do not accept his answers were confused in the act of interpreting into English. I conclude that the claimant was in fact born in Iran in 1977 and not born in Iraq as he now claims. It follows that I do not accept: that he lived for 3 years in Iraq; or that his family were expelled in 1980 to Iran.
He goes on to say that this finding entails the rejection of the related contention that the applicant was undocumented [92].
It should also be noted that the applicant said (and did not at any stage resile from saying) that his mother was born in Iran. This was also relied upon by the reviewer in rejecting the applicant’s contention as to statelessness, on the basis of country information [91].
Was this finding indicative of an error going to jurisdiction?
The key to the finding is the reviewer’s rejection of the applicant’s explanation for giving Iran as his place of birth upon arrival. He was asked to explain the recording of the information in the biodata document and he attempted to do so. His explanation was rejected by the reviewer and the reviewer said why he rejected it. It is not to the point that there are numerous subsequent instances of him saying that Iraq was his place of birth. Once he changed his contention as to his place of birth it is unsurprising that he adhered to the same location. The question is whether the change is from an erroneous recording of information to a statement of truth; or from an accurate recording of information to the advancement of an account which is false. It can only be one or the other. The reviewer made a choice as to which he thought it was and he said why. Another person may have come to a different conclusion; but there is no basis, in my view, for saying that the decision to hold the applicant to the account he gave in the biodata document is irrational or illogical, or demonstrates a failure to adhere to his duty to review.
The reviewer is essentially saying that the applicant is an Iranian because he said so when he first arrived at Christmas Island.
There then followed the finding as to the applicant being stateless. So it remains possible, of course, that even if entitled to Iranian citizenship because he was born there (or because his mother was Iranian, if we reject his account of having been born there) that the applicant did not set about the business of acquiring the papers that would evidence such citizenship or nationality. He did live in a remote area after all; Faili Kurds are not, on the basis of the country information, persons that the Iranians necessarily welcome as citizens; the authorities may have been reluctant to dispense the appropriate documentation even if it were requested. All of these matters are possible, but none of them were advanced by the applicant or on behalf of the applicant. He did not even acknowledge that he had the ability to acquire citizenship (the most he conceded was that his mother had been born in Iran). In these circumstances, the finding as to the place of birth can reasonably be said to entail the rejection of the applicant’s contention as to statelessness.
These were all of the grounds of jurisdictional error advanced at the time of the commencement of the hearing.
A further ground was added during the course of argument:
Ground 1
(i)(1) The Second Respondent’s finding at IMR decision para 48 (CB 113) that dialect was not an issue in interpreting the claimant’s evidence is incorrect. At page 8 of the IMR transcript the interpreter clearly state “I can’t say” in response to whether it was a question of his dialect.
(2) Owing to the above, when the Reviewer received a non-sensical or non-response from the Applicant (see for example page 8 & page 10), it was incumbent upon the Second Respondent to make further enquiries to give the Applicant the opportunity to give a satisfactory answer rather than make an adverse finding.
The relevant passage in the transcript is as follows:
MJ: During this period of time, I’m not just work as a baker. I work at other jobs which is a shepherd and a labourer as well.
CP: I see. And Mr Interpreter, can I just ask what are the difficulties you are having with his evidence? Is it because he is not being clear in what he is saying?
Interpreter: My aim is everything he said I want to translate it to you clearly because I am not representing like I am the client, not him, so I try to get information, right information, no like this [unclear] a little bit I don’t understand really, but I’m pretty [unclear] that I really not get like you, sometimes I get something I say may I repeat, yes.
CP: All right, I suppose I was just thinking is it a question of his dialect or is it, can I say is it because he perhaps is not well educated?
Interpreter: I can’t say.
CP: You can’t say? All right.
Interpreter: Everything he says I have to say to you but I don’t tell him to say from my pockets and he’s not. Everything he said it is part of my job to clearly and very I say to you. Something I can’t get it, I can’t hear it properly, so I just only repeat for me. If a problem, no worries.
CP: Ok. All right, no it’s just sometimes interpreters say oh look, the person’s just giving disjointed sentences or something like that, so I was just curious as to whether that was the issue.
Interpreter: That’s correct. He does give disjointed sentence so I can’t translate it because it’s very hard.
CP: Disjointed, all right. Thanks, yes I wasn’t criticising you or anything, you have asked me when you can confirm, so just to confirm.
Interpreter: Thank you Sir.
At [48] the reviewer says:
At this point of the interview I asked the interpreter why he seemed to be having difficulties with interpreting the claimant’s evidence. The interpreter agreed it was because the claimant was speaking in disjointed sentences: it was not an issue with the dialect.
The position appears to be this: the reviewer noticed some difficulties in translation; he asked the interpreter if the applicant was not being clear in what he was saying and doing what he said; he got a form of answer from the interpreter; he then asked the interpreter specifically whether it was a problem of dialect or lack of education and the interpreter said he could not say; he then asks whether the applicant is speaking in disjointed sentences and the translator says clearly that such is the case.
This is a slender ground upon which to erect an argument which is predicated on a problem with dialect and interpreting; the translator has not excluded a problem with dialect, but neither has he excluded the problem being lack of education. He has not accepted either of these propositions either. He has chosen to characterise the problem as one of disjointed sentences.
Is it an error to say the problem in translation was not that of dialect? Perhaps it would have been more accurate to say that it might have been a problem of dialect, just as it might have been a problem with lack of education. But if there is an error (and it is marginally possible that there is an error there) it cannot be said, in my view, that it is an error going to jurisdiction.
The application will be dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 20 July 2012
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