WZAPE v Minister for Immigration
[2012] FMCA 1077
•21 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1077 |
| MIGRATION – Faili Kurd – protection visa sought – adverse IMR recommendation – judicial review. |
| Migration Act 1958 (Cth), s.476 1951 Convention relating to the Status of Refugees and its 1967 Protocol |
| Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Khan v Minister for Immigration, Local Government and Ethnic Affairs [1987] FCA 457 Khan v Minister for Immigration and Ethnic Affairs [2011] FCAFC 21 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 |
| Applicant: | WZAPE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 234 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 3 July 2012 |
| Date of Last Submission: | 3 July 2012 |
| Delivered at: | Adelaide by telephone link |
| Delivered on: | 21 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hannan |
| Solicitors for the Applicant: | Case for Refugees |
| Counsel for the Respondents: | Mr Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application for review filed on 22 August 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 234 of 2011
| WZAPE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant is an off-shore entry person who arrived at Christmas Island on 18 August 2010.
This is an application pursuant to s.476(1) of the Migration Act 1958 (“the Act”) seeking orders by way of judicial review arising out of the recommendation made by an Independent Merits Reviewer (hereinafter “the reviewer”) to the Minister that Australia should not be regarded as owing the applicant protection obligations pursuant to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
The specific relief sought by the applicant is a declaration that the reviewer’s recommendation was not made according to law and an injunction restraining the Minister from relying upon the recommendation.
The grounds upon which the review is sought are set out in a Minute of Proposed Amended Grounds of Application.
I had occasion to examine the nature of this Court’s jurisdiction in such matters in the light of the decision of the High Court in Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41 and the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447.
It is the posited future reliance by the Minister upon the reviewer’s recommendation which is the “migration decision” which is the focus of the exercise of the Court’s jurisdiction in such matters.
For reasons I gave in DZABS I regarded myself as being obliged to identify jurisdictional error in that exercise.
However, on 7 June 2012 Barker J delivered his judgment in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593.
I discussed the consequences of that decision for the exercise of the Court’s jurisdiction in these matters in WZAPH v Minister for Immigration & Anor [2012] FMCA 773. I came to this conclusion at [48]:
In my view his Honour’s decision is authority for the proposition that in a review pursuant to s.476(1) relating to an IMR decision this Court does not need to identify a jurisdictional error in order to allow the review.
At [49] I respectfully expressed reservations in relation to that conclusion but at [50] and [51] noted my duty to follow the decision.
Accordingly, in this review the applicant will be entitled to the relief sought if he establishes legal error associated with the reliance upon the recommendation, whether that legal error is an error indicative of an excess of or want of jurisdiction or not. The applicant will also be entitled to the relief claimed if he establishes that he was not accorded procedural fairness.
Before the reviewer the applicant claimed to be a Faili Kurd and a Shia Muslim. He said his parents had been expelled from Iraq by Saddam Hussein. He did not know whether they were Iraqi nationals. He said that his parents were born in Iraq. Both of his father’s parents had been born in Iran at a place called Poshtkoah and his mother’s father had also been born in Poshtkoah.
The delegate of the Minister who carried out the Refugee Status Assessment (“RSA”) reported on 10 December 2010 that the applicant was not a person to whom Australia owed protection obligations. She did so upon the basis of her finding that aspects of the applicant’s account were “unconvincing, vague and unsubstantiated” but principally because she was not persuaded that the applicant did not have a right of citizenship in Iraq. It was on that basis that she determined that he was not a stateless Faili Kurd as he claimed.
The reviewer also was not satisfied that the applicant was a stateless Faili Kurd but for a different reason.
The reviewer found that the applicant was a person who had a right to enter and reside in Iran.
It is in these circumstances that ground one of the application asserts a denial of procedural fairness.
The Minister’s delegate considered that there was no evidence to indicate that the applicant had a right of residence or citizenship in Iran (CB 84). Counsel for the applicant suggested that the delegate had found that the applicant was a stateless Faili Kurd but I do not think that is the case. Certainly, the delegate thought the applicant had a right to return to Iraq and did not think he had a right of residence or citizenship in Iran.
It is also true that the written submissions lodged by the applicant’s migration agent prior to the IMR hearing were in a large part directed to the issue relating to whether the applicant could return to Iraq and that no notice was given prior to the IMR interview that the reviewer considered the applicant had a right of residence or citizenship in Iran.
It is contended that the applicant should have been given written notice well in advance of the IMR interview that the reviewer might not accept that he is a stateless Faili Kurd.
Reliance was placed upon the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. In that case the High Court found that the Refugee Review Tribunal had not given the applicant notice of two of the three determinative issues that it regarded as arising in relation to the decision under review. They were not issues that had arisen before the delegate or that had been referred to as a reason or reasons for the delegate reaching the decision which he had. The High Court give this example at [37]:
Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
The High Court had already said in the preceding paragraph [36]:
But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
But the High Court noted at [47]:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. …
I do not think the contention that the applicant was not properly put on notice of the issue of his Iranian residency or citizenship being an important issue at the interview itself can be sustained. The reviewer says at [45]:
I indicated that a question that had to be answered is whether he is stateless, an Iraqi or an Iranian. I summarised and discussed the reports under ‘Faili Kurds in Iran’ and indicated this shows there are many Iranian Faili Kurds in Iran and only a small number are undocumented. …
The reviewer reports at [64]:
I indicated I had to decide if he is stateless or not, and if stateless, assess him against his former habitual residence. The claimant stated he is stateless and Iran will not let him return.
At [65] the reviewer raises the issue of his grandparents having been born in Iran and the possible consequences of that in terms of Iranian citizenship laws.
I indicated his grandparents had been born in Iran and the Iranian citizenship laws say that a child born to an Iranian man are also Iranian nationals. I indicated that might suggest his parents were also Iranian nationals. The claimant stated his grandparents had been born in Iran but they went to Iraq for work. They did not need ID or citizenship in the mountains.
One of the matters that was relied upon by the reviewer in coming to the conclusion that he did in relation to the applicant’s right to reside in Iran was that he had previously asserted that the passport that he used to leave Iran was in his name and had his photo and that was suggestive of it being a “legal passport”.
The extensive questioning in relation to his ability to work and earn money to pay the smuggler to leave Iran must, in my view, have suggested to the applicant and his advisers that the reviewer was sceptical of the applicant’s account of not having a right to live and work in Iran (see CB 149 and 150). The extensive questioning in relation to the work that the extended members of his family are able to obtain in Iran must inevitably have put the applicant on notice of the same issue.
In other words, all of the factual matters which the reviewer ultimately relied upon in coming to the view that he did in relation to the right of residency or citizenship in Iran were squarely put to the applicant. Furthermore, the fact that the reviewer considered the issue of the applicant’s ability to reside in Iran was a live issue for the reviewer was also squarely put.
The reviewer came to his conclusions in relation to the question of the applicant’s statelessness for a different reason than the delegate did. Indeed the reviewer did not consider it necessary to formally evaluate the question of Iraqi nationality (see [119]).
But none of the considerations that arose in SZBEL are extant here. There was no element of surprise in the reviewer’s reasons evidencing the conclusion it did as to Iranian nationality. All of the factual evaluations antecedent to that ultimate conclusion were put to the applicant during the course of the review. The very task of considering the issue of whether he had a right to remain in Iran was explicated during the course of the interview.
I do not consider the claim of a denial of procedural fairness on this basis has been made out.
I now turn to Ground 2.
The applicant contended that if he was to be returned to Iran he would be treated as a spy by the Iranian authorities on account of his being a failed asylum seeker in Australia. His claim in this regard is specifically noted by the delegate conducting the RSA at CB 84 and in the submission from his migration agent preparatory to the review interview the claim is repeated and reference is made to certain country information which is said to be supportive of that concern.
The claim was repeated at the review interview.
The reviewer’s conclusions in relation to this topic are set out at [115] to [118]. The reviewer was not satisfied that the applicant had left Iran illegally and considered that to be an important aspect of the evaluation as to whether he would be detained and questioned on his return. He did not accept that the applicant had left Iran illegally. He did not accept the applicant’s account that he organised a false passport. He rejected the applicant’s account of being assisted through Tehran Airport at the time of departure through making bribes to airport personnel. The reviewer did not think the applicant had the kind of political profile that would interest the authorities upon his return. The reviewer did not accept that simply by coming to Australia and making an asylum claim that the applicant had created circumstances which would give rise to a reasonable fear of persecution when he returned to Iran.
It may be readily accepted that the reviewer was obliged as a matter of law to give proper, genuine and realistic consideration to all matters relevant to each aspect of the claim. The provenance of that expression appears to be the decision of Gummow J in Khan v Minister for Immigration, Local Government and Ethnic Affairs [1987] FCA 457 at [25], [33] and [43]. That same expression is cited with approval by Flick J in a case of the same name, namely Khan v Minister for Immigration and Citizenship [2011] FCAFC 21 (at [75] of his Honour’s reasons).
It remains a useful summary of the intellectual requirement to the consideration of the claims (though see the note of caution sounded in respect of the expression by the Court of Appeal of the New South Wales Supreme Court in Swift v SAS Trustee Corporation [2010] NSWCA 182) and particularly at [45]:
Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79]. If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, “to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]-[88] Kirby J), applied by this Court in Spanos v Lazaris [2008] NSWCA 74 at [19], in my judgment, Beazley and Bell JJA agreeing. Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so “properly” or “genuinely”, or “realistically” may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.
The applicant complains in this Court that the reviewer did not consider this aspect to his claim to fear persecution other than in reference to the absence of Iranian identity documents. In other words, no consideration was given to the claim that was being made which was itself not dependent upon the applicant persuading the reviewer that he did not have identity documents. It is also said that the reviewer overlooked certain aspects of the country advice which were promoted by the applicant via the submission of his migration agent at CB 99 and 101.
The reviewer claims at [68] to have had regard to the country information provided on behalf of the applicant.
The Immigration and Refugee Board of Canada report in 2005 which is referred to at CB 101 by the applicant’s advisers, instanced two cases of Iranian deportees from Canada who were subjected to mistreatment when they returned. But there was a good deal of country information from the Australian Department of Foreign Affairs and the UK Home Office upon which the reviewer relied in coming to the views he did as to the level of risk associated with such persons returning to Iran and they are set out at [83] to [85] of the reasons. The view the reviewer had in relation to the applicant having a right of residence or citizenship in Iran necessarily coloured, in the light of that country information, the view he took as to the level of risk associated with returnees to Iran who had made unsuccessful asylum claims. It is not a matter of the reviewer not appreciating that the applicant did not wish to limit this aspect of his claim to one which was dependent upon the finding that he left Iran illegally; the reviewer considered that aspect of the matter to be a very important aspect of the evaluation of this aspect of the claim. I think that we need to be careful in considering these applications not to reflexively categorise such a submission as an impermissible attack on the merits of the decision; that is all too easy to do. It does seem to me, though, in relation to this issue that I am being invited to take a different view than the reviewer did in relation to this aspect of the claim. I do not think it is appropriate that I do so. I think the reviewer gave proper realistic and genuine consideration to this aspect of the claim. Ground two is not made out.
Ground three alleges that the reviewer did not give real, proper and genuine consideration to the claim that the applicant had passed through security checks at the airport as a result of the passport obtained by the people smuggler.
It is said that the reviewer did not evaluate the case the applicant was himself promoting on this point but which was said to be that he passed through the security checks at the Imam Khomeini airport using the passport that bore his name and photograph that had been obtained by a people smuggler bribing an official in the Iranian government.
The reviewer’s conclusion in this regard is to be found at [110]:
Based on the material before me, I do not accept the claimant’s story of passing through the airport with the presence and assistance of a bribed official. The country information, together with my concerns with the claimant’s evidence, and his evidence that the Iranian passport was in his name and had his photo, strongly suggests that he departed Iran with a legal Iranian passport. This in turn would show he is not a non-citizen. I note the agent’s suggestion that “the passport with which he left Tehran may have been a real passport, belonging to another person, with the Applicant’s photograph placed on it”. However, I reject this submission as the claimant has clearly claimed the passport contained his name and photo: he does not claim it had been photo-substituted.
It will be seen that the reviewer regarded the applicant’s agent’s submissions as contrary to his own claims.
The request for an RSA (CB 42) contains this assertion by the applicant:
I have never possessed a genuine travel document. The only passport I have ever used I obtained from a smuggler and it was fake.
On the preceding page (CB 41) reference is made on three occasions to his “false passport”.
The transcript of the hearing before the RSA (see page 27 of Annexure B to the affidavit of Ms Strapps of 28 May 2012) contains this passage:
VL: Okay. So now … did you fly out on your own passport?
HM: Yes, I paid money with my … I have also given my person information.
VL: [Agrees].
HM: My name, my photograph …
VL: Alright, so you flew out apart from your name?
HM: Yes.
VL: Was it an Iranian passport?
HM: Yes.
Annexure A to Ms Strapps’ said affidavit is the transcript of the hearing with the reviewer. At page 13 of that transcript the reviewer says:
Now, sir, you have previously said that you got an Iranian passport that had your photo and you name. That does suggest it was an illegal Iranian passport.
When his agent speculated that the passport he obtained with the help of the smuggler may have been a “real” passport belonging to another person with the applicant’s photograph substituted, he was departing from the account the applicant had already given to the RSA.
I consider that the reviewer dealt with this aspect of the claim upon the basis of the claim the applicant himself advanced and I do not regard the ground of review as having merit. Ground three is not made out.
The discussion of the passport at the interview with the reviewer elicited from the applicant for the first time since his arrival in Australia his claim that as he was making his way through the checkpoints at the airport, he paid fifty dollars by way of a bribe to a person on a counter. The reviewer notes at [61] that the applicant had not been asked about this at the RSA interview but said that he had been asked about it at the first interview (the entry interview). The applicant said that he had not been asked; he was simply asked how much he paid to the smuggler.
At [109] the reviewer says:
However, when I pointed out to the claimant that his description of how he got through the airport seemed a very blatant way of getting him past security checkpoints, he then claimed, for the first time, that at one checkpoint he paid $50 to the person on the counter. This late claim suggests he tailored his evidence as I tested it.
That finding is attacked upon the basis that it is procedurally unfair and evidenced irrationality and illogicality in the decision-making in that it is a finding not supported by logical grounds.
Mr Hannan, for the applicant, provided in his Outline of Submissions ample authority for the proposition that a conclusion of recent invention may be open to review on the grounds of irrationality and illogicality (see [80] to [85] of the Outline of Submissions). Furthermore, if a reviewer comes to a conclusion of fabrication or recent invention contrary to the overwhelming weight of the material before him, then that can constitute a breach of procedural fairness and give rise to an entitlement for an order of review.
In his Amended Grounds of Application in paragraphs 4.1 and 4.2 the applicant’s counsel attacks the finding of recent invention in relation to the fifty dollar payment on both bases.
The Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 were dealing with an application for review of a Tribunal’s decision which in affirming the decision of the delegate not to grant a protection visa had relied, amongst other matters, upon an anonymous letter critical of the applicant. Rares J considers himself bound by the authority of Buck v Bavone (1976) 135 CLR 110 at 118 – 119 in coming to the following conclusion in relation to a challenge to administrative decisions based upon alleged irrationality or illogicality (see [15] of his judgment):
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.
His conclusion is set out at [19]:
It is difficult to see how it is in the public interest that unknown persons who give no basis for their being in a position to make prejudicial assertions about another person are entitled to any credence in decision-making under the Act: cf VEAL 225 CLR at 98-99 [24]-[25]. Unconstrained by authority, I would have found that to do so is as irrational, illogical and unreasonable as having regard to a person saying that the red headed applicant for a visa should have his claim rejected because he has red hair and is a liar. However, the law appears to be otherwise.
McKerracher J (with whom Reeves J agreed) also refused to allow the review but upon the basis that a Tribunal was entitled to reach the conclusion that it did quite independently of the impugned letter. He did so on the basis of applying the test enunciated by the High Court in Stead v State Government Insurance Commission [1986] HCA 54. His Honour described the test as follows 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.
It is not altogether clear what conclusion his Honour would have come to on the question of irrationality if he had considered it necessary for him to do so. Certainly there is a very detailed discussion by him of the decision of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. His Honour ultimately comes to the conclusion that there was no conflict between the plurality judgment of the majority (Crennan and Bell JJ) and Heydon J. As his Honour summarises the effect to SZMDS at [85] of his decision:
Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision.
The criticism of the account given by the applicant as to paying a person on a counter fifty dollars by way of bribe to get through the airport is that it had not been made by the applicant before. In other words, this was the first time in which he raised the matter. But, as Mr Hannan submits, the reviewer had already acknowledged that the applicant had not been asked any questions at the RSA interview which would have invited him to mention the payment (see [61]). We are left then with the entry interview as the only prior opportunity.
When it is taken into account that the questions in the entry interview are pro forma questions, I think the criticism Mr Hannan makes of this reasoning is fair. It is unfair to construct a finding of recent invention when the disclosure of the information at the review interview was effectively the first opportunity for the applicant to impart the information.
I prefer to express my misgivings in relation to the finding in that way rather than in the language of irrationality or illogicality. As Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [20]:
As with illogicality and irrationality, unreasonableness is a protean concept, and may require closer definition where it is said to be relevant to judicial review of an administrative decision.
Mr Hannan says that the adverse credibility finding on this topic impacted upon the reviewer’s other findings on critical matters but I think that submission is difficult to sustain. The principal reason for the account of the departure through the airport to be rejected was the reviewer correctly noted that the applicant’s own account of his passport was that it had his name and his photograph. Country information suggested a high degree of difficulty in leaving the airport through which the applicant left. The finding in relation to the rejection of the story as to how he passed through the airport was not dependent upon the rejection of the account of the payment of the fifty dollar bribe. That was a part of the reviewer’s decision but not a critical part. The denial of procedural fairness in this specific factual finding, in my view, would have made no difference to the outcome of the review (see the authorities referred to by McKerracher J in SZOOR at [96] of his Honour’s judgment).
Ground four is not made out.
A complaint of a finding that was irrational and illogical and not based on findings or inferences of facts supported by logical grounds is also made in respect of the finding at [105]:
Based upon the claimant’s own evidence, his family background strongly suggests that he is in fact an Iranian national. The fathers of both the claimant’s father and mother were Iranians, born in the Iranian village of Poshtkoh, and then travelled to Iraq for work. Iranian citizenship laws show that nationality descends from the father, and it follows that the claimant’s father and mother were also Iranian nationals through descent. I have serious concerns as to whether the parents in fact were born or ever lived in Iraq, but rather, always lived in or around Poshtkoh. But putting that concern aside, it is reasonable to consider the existence of Iranian grandfathers would provide evidence to satisfy the Iranian authorities of their Iranian nationality. It follows that the claimant was born to Iranian nationals and would similarly be an Iranian national. The family antecedents suggest he was not a non-citizen in Iran.
It is said that there was no material before the reviewer which would indicate that simply by asserting that his grandparents were Iranian nationals that the applicant could obtain Iranian citizenship and, further, that there was no evidence that the grandparents had ever obtained any kind of official documentation.
In truth, there was no evidence of these matters one way or the other. But the fact of citizenship (coupled with three out of four grandparents born in Iran) indicates to me that it was reasonable to consider that such matters could ground an application to the Iranian authorities to clarify their citizenship.
The Civil Code of Iran, set out [79] of the reasons, makes specific provision concerning nationality and says that persons are considered to be Iranian subjects if they are born in Iran or are outside of Iran but whose fathers were born in Iran.
This is against the background of country information indicating that there were approximately 3 million Faili Kurds living in Kurd.
In these circumstances, it is not reasonable to suggest that no rational or logical decision-maker could have arrived at the conclusion expressed above. Ground five is not made out.
A complaint is then made about what the reviewer made of an alleged inconsistency between what the applicant said at his RSA interview and in the IMR interview in relation to the topic of whether his grandparents had been shepherds. The relevant passage is at [52]:
I queried whether his grandparents had property in Iran. The claimant stated no, they had no houses, they lived like shepherds. I pointed out that at his last interview he had said the grandparents had not been shepherds. The claimant stated that was probably an interpreter mistake as it was not a Faili Kurd interpreter. I pointed out that it had been a Faili Kurd interpreter. The claimant stated the interpreter had not been used to their words. He spoke well but did not understand some words.
I accept that a reading of the transcripts indicates that there is no inconsistency. At both interviews the claimant indicated that the grandparents lived like shepherds. Indeed, at the RSA interview it is the delegate who in fact uses that expression in a leading way. There is no inconsistency. The transcript of the IMR interview indicates that the reviewer would consider what the applicant had said at the RSA interview.
The matter is not mentioned again in the IMR report. It is difficult to discern that it played any part in the reviewer’s decision. That is so whether I approach the alleged error from a perspective of a claim for irrationality in fact finding or a failure to accord procedural fairness. I am not prepared to draw that conclusion that it did. Ground six is not made out.
Ground seven focuses upon this passage from [108] of the review of the IMR:
The claimant’s married brother and his family lives in Mehran, together with the mother and sister. I accept that the mother and sister moved to live with the brother because the government has relocated the home village in order to build a dam. At my interview the claimant at first told how the brother rents a farm where he grows chickpeas, and every family member helps on the farm. As I tested his evidence he then stated the brother did not rent the farm but just shares in the profits. When I queried how they lived there without documents, the claimant spoke of them moving around. However, as I pointed out, this is not plausible as the family work on a farm. I conclude the claimant tailored his evidence as it was tested. The brother’s steady work as a farmer on a farm where the whole family assist in his (sic) pursuit, suggests the family do not live in Iran as non-citizens.
The relevant part of the transcript is pages 6 to 8 (see Annexure A to the affidavit of Ms Strapps of 28 May 2012) and I have read that transcript. The conclusion expressed by the reviewer is not irrational or indicative of a denial of procedural fairness. There is a rational basis for the expression of the concern that the evidence gives as to the brother working, effectively as a share cropper on a specific piece of land and, then is being itinerant, are inconsistent. There is no substance to this ground.
Ground eight relates to the same aspect of the interview but targets the last sentence and the conclusion that the fact that the brother was working “steady work” as a farmer on a farm and assisted by his family was suggestive of the family not living in Iran as non-citizens. I do not discern in that conclusion a view which no logical or irrational decision-maker could arrive at on the same evidence.
The application for review will be dismissed.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 21 November 2012
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