WZAPH v Minister for Immigration & Anor
[2012] FMCA 773
•31 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 773 |
| MIGRATION – Independent Merits Review report recommends applicant not be regarded as being owed protection obligations – application to review pursuant to s.476(1) of the Migration Act – nature of review – whether error identified must be jurisdictional. |
| Migration Act 1958 (Cth), ss.5, 5E, 46A, 474, 476 & 477 Commonwealth Constitution, s.75 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 “When is the Federal Magistrates Court bound by the Federal Court?” (2012) 86 ALJ 478 |
| Applicant: | WZAPH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 244 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 4 May 2012 |
| Date of Last Submission: | 4 May 2012 |
| Delivered at: | Perth |
| Delivered on: | 31 August 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 filed on 29 August 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 244 of 2011
| WZAPH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The applicant arrived by boat on Christmas Island on 18 August 2010. He made a request for a Refugee Status Assessment (hereinafter an “RSA”) on 23 September 2010.
The officer of the Department who carried out the assessment found that Australia did not owe the applicant protection obligations.
The applicant requested an Independent Merits Review (hereinafter the “IMR”).
The IMR reviewer is referred to hereinafter simply as “the reviewer”.
At the close of his review, the reviewer recommended that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks order by way of declaration and injunction that would have the effect of preventing the Minister from relying upon that recommendation.
The application is made pursuant to s.476(1) of the Migration Act 1958 (Cth) (hereinafter “the Act”) which provides:
(1) Subject to this section, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
“Migration decision” is defined in s.5 of the Act which says:
"migration decision" means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision.
All of those terms are in turn defined in the Act.
Section 5 provides that a privative clause decision has the meaning given by s. 474(2). That subsection provides:
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
Subsections (4) and (5) of s.474 do not bear upon the circumstances of this case.
Section 5 says that a non-privative clause decision has the meaning given by s.474(6) of the Act. That subsection simply refers back to subsections (4) and (5). In other words, they are decisions that are excluded by the very definition of privative clause decisions.
Purported privative clause decision is defined in s.5E of the Act. It means:
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
Section 474(3) of the Act describes the varied array of acts and events that are included in the reference to a “decision” in s.474.
Now, s.474(1) says as follows:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
So, looking only at the text of the Act s.476(1) gives the Court a jurisdiction of which it is simultaneously deprived by s. 474(1).
But the High Court made plain in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 that s.474(1) would not prevent the Court exercising the jurisdiction to review privative clause decisions if the decision under consideration can be said to have been vitiated by jurisdictional error. Jurisdictional error is a concept best explained in High Court decisions such as Craig v The State of South Australia [1995] HCA 58. I do not propose to explicate further the meaning of jurisdictional error in these Reasons.
The legal and constitutional adequacy of arrangements for the processing of off-shore entry persons and their applications for protection visas was considered by the High Court in Plaintiff M61/2010 v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41.
The applicant in this case is an off-shore entry person.
I summarised the effect of the decision for applications in this Court in Plaintiff M61 in DZABS v Minister for Immigration & Anor (2012) 261 FLR 447 at [25] to [42]. I adopt what I said there in relation to the Plaintiff M61 decision.
Plaintiff M61 explained the basis of the High Court’s jurisdiction to deal with reviews arising from unsuccessful IMR decisions. I went on in DZABS to consider the basis that exists for the exercise of jurisdiction by this Court in such matters.
I dealt with that issue from the perspective of two discrete periods of time – that leading up to the date of the judgment of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 and, secondly, the period following the delivery of that judgment.
In respect of the first period of time, the decision of Smith FM in Alami v Minister for Immigration & Anor [2011] FMCA 623 was good law and was authority for this proposition: that the IMR itself was a decision of an administrative character and a decision under the Act and therefore a privative clause decision, and therefore a migration decision in respect to which the jurisdiction of this Court under 476(1) could be exercised.
The being satisfied that IMR decisions are privative clause decisions, in my view, (as expressed at [50 e)] of DZABS) required me, I found, also to be satisfied that any errors associated with such decisions were jurisdictional errors, in accordance with Plaintiff S157/2002.
The Full Court of the Federal Court in SZQDZ overruled Alami. The Court found that IMR decisions were not “migration decisions” under s.476 of the Act at all; they were not even decisions under the Act. Accordingly, the time limit relating to the institution of proceedings under s.476(1) referred to in s.477 did not apply.
But the Full Court in SZQDZ was still satisfied that this Court had a jurisdiction under s.476(1) of the Act: it related to the application to prevent the Minister from taking into account the impugned IMR assessment in any future consideration of the exercise of the powers under s.46A of the Act to “lift the bar”. As the Full Court said at [45]:
In the cases of present concern, the applicants have sought an injunction to prevent the Minister or his officers taking into account the reviewer’s assessments and recommendations in any future consideration of the exercise of the powers under s 46A. Their applications for that relief enlivened the jurisdiction of the Federal Magistrates Court conferred by s 476(1) of the Act . That jurisdiction, it must be understood, is relevantly, the same as that of the High Court under s 75(v) of the Constitution. It is a jurisdiction the exercise of which the Courts are not astute to confine.
They had already expressed a view, at [42], that a decision under s.46A was likely to be a privative clause decision:
To avoid doubt, s 474(7) of the Act provides that a decision by the Minister under s 195A is a privative clause decision. Curiously, the Act is silent as to whether the same applies to a decision under s 46A; but it is unlikely that the Parliament intended a decision under s 46A to fall outside its apparent nature of a decision of an administrative character made under the Act; and no party contended for such a result.
It was for these reasons that I expressed the view in DZABS, at [50 e)] that my jurisdiction to make orders in relation to IMR decisions is predicated on the identifying of a jurisdictional error associated with that future s.46A decision which might be made upon reliance on the IMR report, the subject matter of the application. The reliance that I posit the Minister as having on such a report in the future in making his s.46A determination must be reliance infected with jurisdictional error, or so I found. I thought that I must suppose that such a state of satisfaction on my part entails my finding the errors in the report as being jurisdictional in order to make sense of my enterprise of hearing such matters. Of course, I know nothing about the posited future decision except that it might be made upon reliance on the IMR report. The jurisdictional error must have its provenance in the IMR report. Even though it is not a “migration decision” itself (see SZQDZ) the future decision of the Minister, is, by my positing reliance on the IMR decision, constitutive of a “migration decision” under s.476(1). If it were not, this Court would have no jurisdiction under s.476(1) and it must have a jurisdiction because if it did not, as Lucev FM pointed out in WZAPN, WZAQD and WZAQE v Minister for Immigration & Anor [2012] FMCA 235 at [24], then the Full Court in SZQDZ would not have remitted the matter before it to the Federal Magistrates Court for determination.
When I reserved this present judgment Barker J had not delivered his judgment in SZQGA v Minister for Immigration & Citizenship [2012] FCA 593 (it was delivered on 7 June 2012).
His Honour there conducts an analysis of what he describes as “the 476(1) issue” at [43] to [72] and concludes at [72] that the Federal Magistrates Court does have jurisdiction under s.476(1) to deal with matters of the kind that were before him on appeal from the Federal Magistrates Court. He said this at [73]:
In the circumstances, notwithstanding that I consider there is force in the appellant’s submissions on this point, I accept that the decision of the Full Court in SZQDZ draws the distinction I have noted, and even if not strictly bound by it I should follow the decision and apply the distinction drawn.
I should note that the decision itself does not deal with the question as to why it is that the appellant before his Honour was arguing that the Federal Magistrates Court did not have a jurisdiction. He was (as applicant) unsuccessful before the Federal Magistrates Court on his judicial review application. It may be that the utility in the argument from the appellant’s perspective was that if he were successful in arguing the Federal Magistrates Court had no jurisdiction under s.476(1) then the only Court with a jurisdiction was the High Court under s.75(v) of the Constitution, and he thought that entailed advantages in respect of the conduct of his case. Certainly the jurisdiction of the High Court under s.75(v) has unique features which a Court exercising “the same” jurisdiction as the High Court under s.75(v) does not. I will return to that issue hereafter.
His Honour had already made the following observations, however, in relation to certain difficulties associated with the decision in SZQDZ at [70] and [71]:
It may be contended, as it is on behalf of the appellant, that, in light of the Full Court’s close analysis at [39], and particularly the clear legal propositions that the Minister is not bound to act on any assessment or recommendation, does not even have to take it into account at any stage of his consideration, and does not have to make a decision even if the recommendation has been favourable to the applicants and that there may never be a decision taken by the Minister under s 46A, it is difficult to see how an application for an injunction against the Minister to prevent him from relying on the allegedly flawed assessment and recommendation of a reviewer can be characterised as one “in relation to [a migration decision]”.
In this regard it is interesting to note that in Plaintiff M61 the High Court does not appear to have concluded that the rights and interests of the plaintiffs were sufficiently affected for the purposes of granting the relief that the Court granted, on the basis of a possible future exercise of power by the Minister. Rather, at [76] the Court held that the Minister’s decision to consider whether power should be exercised under either s 46A or s 195A affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, “prolonged their detention for so long as the assessment and any necessary review took to complete”. The Court noted that the price of prolongation of detention is a price which some claimants may have paid without protest but stated that that should not “obscure that what was being done ... had the consequence of depriving them of their liberty for longer than would otherwise have been the case”. Then at [77] the Court further emphasised: “The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected”. In other words, the High Court found that the rights or interests of plaintiffs in circumstances such as those of the appellant here, were directly affected in a relevant way, but not in a way that depended directly upon the possible future exercise of power by the Minister.
His Honour in referring at [73] to SZQDZ as not being “strictly” binding upon him was no doubt referring to the fact that the Full Court decision was a decision on the question as to whether the time limits in s.477(1) of the Act applied in relation to reviews conducted by the Federal Magistrates Court arising out of IMR decisions, rather than in relation to the jurisdiction under s.476(1) itself.
This Court, of course, will follow what the Full Court of the Federal Court had to say about s.476(1) even if it is only in the form of obiter dicta in accordance with the comity that exists on account of the respective places each of the Court occupies in the hierarchy of Chapter III courts (as to the doctrine of stare decisis in relation to judgments of single judges of the Federal Court see [47] hereunder). I have already described the view the Full Court had as to the jurisdiction of this Court under s.476(1) in such matters.
His Honour followed SZQDZ on the issue of the jurisdiction of this Court then notwithstanding clearly articulated reservations he had as to its correctness.
The other aspect of his Honour’s decision which is of considerable importance in matters of this kind is his discussion of the issue as to whether it is necessary to establish a jurisdictional error in such reviews before this Court involving IMR decisions or whether an error of law will be sufficient to ground the jurisdiction to make an order allowing review.
In discussing Plaintiff M61 his Honour noted at [120]:
Each plaintiff, in seeking what are often called constitutional writs under s 75(v) alleged error of law and denial of procedural fairness as grounds supporting the grant of such writs or orders. There was no allegation of “jurisdictional error” as such, presumably on the view that because the Minister had not yet made any decision under s 46A or s 195A no “jurisdiction”, that is to say “power”, had been exercised by the Minister or constructively by the Minister through the reviewer. The reviewer of course had no separate statutory jurisdiction or power. It is also generally understood that relief under s 75(v) may go for error of law or denial of procedural fairness, something to which I will return.
It has often been noted that the High Court acknowledged in Plaintiff M61 that no party before them had sought to argue the applicability of s.474 (see [17] of that judgment). Privative clause decisions are not discussed in any way. Plaintiff M61 was concerned with the High Court’s powers under s.75(v) of the Constitution. Section 476(1) of the Act gives this Court the same jurisdiction as the High Court under paragraph 75(v) of the Constitution but only in relation to migration decisions as defined in the Act. The section does not give the Federal Magistrates Court the same jurisdiction in relation to migration decisions that would have been granted if the reference were not to a cognate expression (“migration decisions”) which has a clearly articulated definition set forth in s.5 of the Act.
The co-extensive original jurisdiction only arises in respect of a specific category of decision under the Act, which turns out to be, essentially, privative clause decisions or purported privative clause decisions.
In discussing the nature of the application before him his Honour noted at [130]:
I mention that “jurisdictional error” was not the subject of the appellant’s application to the Federal Magistrates Court, just as it was not a ground complained of to support the grant of relief in Plaintiff M61.
Hs Honour says at [145]:
While there may be some debate about the proposition, it would seem generally to be recognised that the remedies of injunction and declaration, at the least, including when sought under s 75(v) of the Constitution, are available to correct an error of law whether or not that error amounts to a “jurisdictional error”. In Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [105], Gaudron J considered that it may well be that an injunction, being a remedy mentioned in s 75(v) of the Constitution, would lie to prevent an officer of the Commonwealth from giving effect to an administrative decision based on an error, “even if that error is not jurisdictional error”. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [211], Kirby J would appear to have accepted (at least did not disapprove) of her Honour’s observations. Plaintiff M61 would appear plainly to support the proposition as the Court did not purport to grant relief on the basis of any alleged jurisdictional error, and the language of jurisdictional error does not appear in the Court’s reasoning.
His Honour was dealing, of course, with an appeal from the Federal Magistrates Court which Court had made orders refusing an application for injunction and declaration in a matter involving an IMR report. In the only ground of the application that was pursued before his Honour, the applicant claimed a denial of procedural fairness.
The approach of the Federal Magistrate to the matter is described by his Honour at [155]. After finding that that reviewer’s impugned words on any construction constituted a denial of procedural fairness, his Honour noted of that issue:
It was not an issue advanced as an error of law or as jurisdictional error, although the Federal Magistrate proceeded to deal with the issue as if it were the latter. The Federal Magistrate treated the identified difficulty with the evidence substantively as an instance of “jurisdictional error”, and as one falling “within jurisdiction”. The Federal Magistrate considered the denial of procedural fairness not to be material to the decision ultimately made by the reviewer. He did not think it affected the assessment and recommendation made.
His Honour goes on at [156]:
I have already noted the close interrelationship between conduct by an administrative decision-maker that may lead to findings of error of law, denial of procedural fairness and jurisdictional error. One can understand how, in relation to any error of law or denial of procedural fairness, legal principle requires some demonstration that the error actually led to a failure to exercise the jurisdiction given, that it was material in some way.
His Honour then proceeds to discuss the requirement that the error of law must have been material to the administrative decision made for the review to succeed, which requirement was part of the legislative scheme of judicial review considered by the High Court in cases such as Australian Broadcasting Tribunal v Bond [1990] HCA 33. His Honour then contrasts that with the position of a finding of denial of procedural fairness and the difficulties involved in such cases in trying to reconstruct a decision-making process to see whether the result would have been different but for the denial of procedural fairness and decides that in the case before him that difficulty is particularly evident. His Honour ultimately finds that the IMR reviewer denied the appellant procedural fairness in dealing with a specific aspect of his evidence.
Accordingly, the application for judicial review that was before the Federal Magistrate was successful and his Honour allowed the appeal from the decision of the Federal Magistrate.
There is no doubting that I am bound to follow his Honour’s decision. There is some conflicting Federal Court authority as to whether the doctrine of stare decisis applies only where the single judge of the Federal Court is exercising an appellate jurisdiction in relation to this Court or whether the circumstance (appellate or first instance) in which the decision is made is irrelevant. (See the discussion of this topic by Jones in “When is the Federal Magistrates Court bound by the Federal Court?” (2012) 86 ALJ 478.) But here his Honour was exercising appellate jurisdiction in any event.
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.
The reservations which I respectfully have in relation to proceeding to conduct a review in that way can be summarised as follows (and only briefly summarised, given what I have noted at [50]):
a)Whilst his Honour expressed substantial reservations in the judgment on the topic of whether this Court had a jurisdiction in these matters (though he ultimately decided to follow the Full Court decision in SZQDZ) and whilst in the course of expressing his reservations he referred to the “special meaning” pertaining to migration decisions in s.476(1) (see [46]), there is no further discussion of that topic in relation to whether the error identified must be jurisdictional, i.e. that a finding of jurisdictional error is a necessary finding in the Federal Magistrates Court given the definition of a migration decision as a privative clause decision or purported privative clause decision.
b)The issue of the need for jurisdictional error and the closely related topic of the privative clause provisions of Part 8 were not matters that arose for determination in Plaintiff M61; the authorities upon which his Honour relies in his discussion on the issue of jurisdictional error are all authorities relating to occasions on which the High Court exercised its power of review under s.75(v) of the Constitution or were decisions of the High Court in appellate matters in relation to legislative schemes vastly different from that described in Part 8 of the Act.
c)The jurisdiction of the High Court under s.75(v) of the Constitution has a special significance which a Court exercising “the same jurisdiction of the High Court” can never have, with important consequences when it comes to the exercise of the power of judicial review (see Bodruddaza v MIMA (2007) 228 CLR 651 at [44] to [46] especially).
d)There is a fundamental distinction between a Court exercising the same jurisdiction as the High Court exercises under s.75(v) of the Constitution on the one hand and of that same Court exercising the same jurisdiction of the High Court under s.75(v) of the Constitution in migration matters when that cognate expression has a special meaning under the Act.
These reservations, however, make no difference in relation to whether I have a duty to follow the decision. His Honour’s decision is manifestly one where the review is allowed notwithstanding that there is no claim made for a finding of jurisdictional error. Most significantly, his Honour’s orders as set out at [159] specifically describe that the sole ground of review of the decision of the Federal Magistrate for error of law is made out.
Accordingly, in conducting this review I will not regard myself as having to find jurisdictional error before the review is allowed.
Obviously counsel have not had the opportunity to make submissions to me on this issue. But the view I have taken on the topic is one which can only broaden the grounds of review so the applicant is not disadvantaged. As will be apparent hereafter, I have refused this application for review in any event so the respondent has not been disadvantaged by my not having given the respondent an opportunity to make submissions.
I will deal with each of the grounds of review separately. The grounds are set forth in an amended application filed on 10 April 2012. The schedule attached thereto sets out each ground with a high degree of particularity. I will not repeat those grounds in these Reasons but rather deal with the substantive issues raised by each of them.
Ground 1 complains that the reviewer failed to address the key issue of whether the applicant would suffer persecution because he was a Faili Kurd living in Iran and instead focused upon whether he was stateless due to an absence of identity documents.
The applicant claims that he is a stateless Faili Kurd. His parents were expelled from Iraq and arrived in Iran in or about 1980. He was born in 1989. He says he lived in Iran as a non-citizen, firstly in Ilam province, then in Tehran and then back in Ilam province until leaving Iran and travelling to Australia in 2010.
I accept that if the reviewer was distracted by issues that kept him from giving “proper, realistic and genuine consideration” to the applicant’s contentions that he would have fallen into the kind of error which may well lead to the review being allowed (see the unanimous decision of the High Court in Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 at [26] to 30]).
The applicant arrived in Australia with no identity documents of any kind. His claim to be a Faili Kurd was accepted by the reviewer essentially because the applicant spoke Kurdish and because he made a claim to be a Faili Kurd (see [115] of the IMR).
His claim to be a stateless non-citizen, however, was rejected for a number of reasons which individually are the subject of separate challenge in this review. Those reasons are set out at [18] to [123]. The conclusion in [123] on this topic was:
Based upon country information and in the light of the foregoing, I accept the claimant resided in Iran but do not accept that he resided there as a non-citizen. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation.
The reviewer went on to find that the applicant’s ethnicity did not mean that he was stateless or born to displaced Iraqis. He found that the country information indicated that most Faili Kurds in Iran were Iranian nationals. He accepted that ethnic minorities in Iran, including Kurds, face a degree of discrimination, and in some cases persecution, but not on the basis of their ethnic or religious identity. He acknowledged that Faili Kurds who are not citizens experience adverse treatment. But he does not accept that the applicant falls into that category.
At [125] the reviewer says:
The claimant claims that as a Faili Kurd he is subjected to social and racial discrimination: often people in the street would abuse him and tell him to go back to Iraq. However, I do not accept that such treatment rises to the level of serious harm in s.91R(2) for a Convention reason.
This indicates to me that the claim based on ethnicity was not overlooked. It was addressed. As an issue discrete from his statelessness it does not receive a great deal of attention from the reviewer but the applicant’s own case was principally concerned with his status as a Kurd and as a stateless person.
I do not think there is substance in this ground.
The second ground relates to the applicant’s fear associated with any return he is obliged to make to Iran and especially as to his being regarded by the Iranian authorities as a spy on account of having sought (unsuccessfully) asylum in Australia. It is said that while he promoted this claim without reference to the fact that he did not have identity documents, the reviewer dealt with it on that basis alone and thereby did not address the actual claim being advanced by the applicant. If that is true, it is capable of being an error and an error going to jurisdiction.
A curiosity of the applicant’s claim was that he left Iran on a genuine Iranian passport; it was genuine in the sense that it had his personal details in or on it (although he attempted to resile to some degree during the IMR from an acknowledgement that his passport accurately recorded his date of birth). Even though it was genuine, though, the applicant says it was obtained illegally by a smuggler using a dead person’s military services card. These circumstances were never adequately explained by the applicant. The reviewer was entitled to ask how another person’s stolen documents can lead to the issue of a passport which records accurately the applicant’s own details. This was one of the reasons why the reviewer rejected the applicant’s contentions as to statelessness. The reviewer thought that the applicant had left Iran using his own passport being a passport regularly obtained.
Now, the country information indicated that returnees to Iran who had left illegally and who applied for asylum whilst out of the country may have difficulties with the authorities in Iran upon their return. But the reviewer specifically found that the applicant did not fall into that category.
It is true that the applicant articulated a claim that he feared persecution as a failed asylum seeker if he were to return to Iran, whatever the state of his travel documents were at the time of his departure from Iran. It was not a major aspect of his claim but it deserved separate attention.
However, it was given attention. At [133] the reviewer finds, inter alia:
I do not accept the mere fact of his coming to Australia and seeking asylum would cause him to be considered a spy and/or persecuted on his return to Iran.
The country information that the reviewer relied upon in relation to this issue of re-entering Iran is set out at [99] to [104] inclusive.
The discrete claim arising from his fear of being treated as a spy is not supported by the country information.
Furthermore, the reviewer had identified this issue as an integer of the applicant’s claim in the dot points that constitute [109]. The last dot point says:
It is likely he will arrested, detained, and harmed for leaving illegally and seeking asylum in Australia. He will be accused of being a spy and traitor. He may be killed.
I find that ground 2 is not made out.
The third ground relates to one of the matters I have mentioned earlier as forming part of the reason why the reviewer rejected the applicant’s claim to be stateless and undocumented. It is the issue of schooling. It is expedient that I set out the relevant part of the reasons in extenso.
[119] He speculates that he might once have held a green card through his father, but states after the change in government policy in the early 2000s he did not hold a white card. At my interview he discussed: how he was only able to do 5 years primary schooling; he would not have been allowed to do more as he was undocumented/stateless and so he did not try, and this was would have been the case even with a white card; and even the primary schooling had cost his uncle a lot of money. However, he is recorded to have also previously discussed (Biodata form and interview on 23 September 2010) undertaking schooling beyond primary school. When I put this to him, he explained there had been interpreter problems at his previous interview. However, this did not explain his evidence at the interview on 23 September 2010 where he had not indicated he did not understand the interpreter. His next explanation at my interview that the interpreters must have become confused with his story that he had undertaken 2 years of primary schooling and 3 years of High school mixed in for a total of 5 years schooling, is not convincing as the actual years of his schooling were given (1996 to 2003 at that interview). His changeable evidence concerning his schooling raises serious concerns. In sum, I reject his claim that his schooling was curtailed after just 5 years and that he had no access to education because he was undocumented/stateless. In the light of his claim that he never held a white card, my finding that he had more schooling than the mere 5 years of primary school he claims, leads me to consider he had another basis for undertaking this schooling which he did not wish to disclose - a basis for the schooling that was not provided by a green card or a white card.
By using the word “changeable”, I take the reviewer to mean “inconsistent”. Mr Hannan, for the applicant, submitted, and I accept, that a credibility finding based on the premise that there was a real as distinct from imagined inconsistency in versions given by an applicant as to a discrete factual matter, when that premise was in fact false or erroneous, would amount to an error of a kind that would lead to the review being allowed, in the same way as would a credibility finding arising from a perceived inconsistency as to what the applicant had said about a fact and the objective information available in relation to that fact when there was no inconsistency in truth at all (see MZYIC v Minister for Immigration & Citizenship [2010] FCA 1368 at [23] and [24]).
Mr Hannan’s first point is that the apparent inconsistency can be explained by translation difficulties and ought to have been regarded by the interpreter as having been explained by them. Both the biodata form completed on 18 August 2010 and the entry interview undertaken on 23 September 2010 record the applicant as indicating that he had received more than five years of schooling in Iran. The first document indicates a total of 11 years schooling, being five years at primary, three years at guidance school and three years at high school. The second document says that he had five years at primary school and two years at high school with the actual years at each school identified by date. The biodata form records him as saying he spoke both Farsi (or Persian) and Kurdish as does the entry interview. Both documents are completed by a Farsi interpreter; in the biodata document the interpreter expresses his opinion that the applicant fully understood the questions answered in it; in the entry interview the applicant signs an acknowledgement that he has understood what has been interpreted to him. The latter includes a notation by the officer conducting the interview that the applicant asked for any future interviews to be conducted in Kurdish and that Kurdish was his preferred language but also includes a notation that he had no trouble in communicating with the interpreter in Persian during the interview.
There had been interpreter problems at the RSA interview. This was the “previous interview” to which the reviewer refers i.e. the review previous to the review he conducted himself. The interpreter difficulties are noted at CB [87]. The problems are those raised by the interpreter whom I note was a Kurdish interpreter as requested by the applicant.
Interpretation difficulties are easy to allege in these circumstances. They were not raised at the time of the biodata record taking or at the time of the entry interview. The reviewer was entitled to reject them as explanations for the inconsistency relating to the years of schooling. The second explanation offered by the applicant in the passage set out above was no more convincing, because the actual years of education are recorded in the entry interview, not just the total. It will be recalled that the explanation proffered was that the five years were made up of three at primary school and two at high school.
In my view, the reviewer has not fallen into error in identifying and relying upon the inconsistency relating to the years of schooling.
Ground 4 advanced an argument of jurisdictional error based upon the failure of the reviewer to take into account the interpretation difficulties experienced by the applicant. That ground fails for the same reasons expressed in relation to ground 3.
It is said with respect to grounds 3 and 4 that the reviewer overlooked a contention by the applicant that he had experienced only five years of primary schooling within a document prepared for purposes of the RSA interview and during the RSA interview itself on 27 October 2010. But it is clear that the reviewer did take into account the claim for five years only in relation to education in Iran which was made in the context of the RSA; he says, at [54] that the inconsistency that he is discussing is not that which arises at the previous interview – the RSA – but at earlier interviews, meaning the biodata record taking and the entry interview.
Ground 4 fails.
Ground 5 can be dealt with straightforwardly. It is said that procedural unfairness arose from the circumstance of the reviewers’ criticisms of the applicant on account of his not having referred to his experience with the Basij until the statement provided for the RSA and the RSA interview itself (24 October 2010 and 27 October 2010 respectively).
The person who carried out the RSA did not make any complaint himself in relation to this. The circumstance that the reviewer then did make complaint is said to give rise to unfairness.
Reliance is placed on the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, a case involving a review by the Refugee Review Tribunal of a decision of a delegate of the Minister not to grant a protection visa. The protection visa was sought because the applicant – who had jumped ship from an Iranian vessel at Port Kembla – had claimed he was at risk of persecution on the ship because he was showing an interest in the Christian religion. The delegate had refused the claim on the ground that the applicant had no genuine commitment to Christianity. The Tribunal rejected his claim on other grounds, grounds not put to the applicant at the hearing. The statutory scheme required such matters to be put. The first the applicant knew of the Tribunal’s concerns was when its Reasons were published (the Federal Magistrates Court and the Federal Court on appeal had considered that the matters relied on by the Tribunal were revelatory of thought processes only and so were not the subject of an obligation to disclose). The plurality say this at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
Here, the applicant says that the obligation that arises in the course of the IMR is analogous to the obligation that the High Court found to exist for the Refugee Review Tribunal in SZBEL.
But in this case the reviewer has squarely put the applicant on notice of his concerns (see [72] and [120]).
The IMR is not, as contended, “confined” to the issues identified in the RSA if the additional issues which the IMR has regarded as dispositive or significant are identified to the applicant in the interview. For me to hold otherwise would be for me to misunderstand the import of SZBEL.
Ground 6 relates to this same topic of the Basij. It is said that procedural unfairness arose because in assessing the applicant’s credibility on account of the failure to mention at an earlier time this significant issue the reviewer failed to give any weight or to take into account the applicant’s situation as an asylum seeker in unfamiliar circumstances and the interpretation issues discussed in relation to earlier grounds as matters explanatory of the failure to raise this issue at the first interview. It is said that the earlier interview occurred shortly after the applicant’s arrival by boat on Christmas Island and that he was unfamiliar with his surroundings and with the experience of having to give an account as to the reasons he feared persecution in Iran. This, it is said, taken together with the earlier discussed preference for a Kurdish rather than Farsi interpreter, is a matter that resulted in the review being conducted in a procedurally unfair manner.
I am unpersuaded by this argument. The account of his experiences with the Basij first given at the RSA and repeated at the IMR are, relative to the balance of the applicant’s claims, significant. It is reasonable for the reviewer to have expressed a view that he expected this issue to have arisen during the first interview. Furthermore, a preference for a Kurdish rather than Farsi interpreter is very different from a claim that the Farsi interpretation operated to the applicant’s disadvantage. There is nothing to suggest that it did.
The last two grounds are advanced on the basis of a complaint that, in two respects, the reviewer gave reasons which were irrational, illogical and not based on findings of fact, or inferences drawn from findings of fact, supported by logical grounds.
So expressed, that is a ground that if made out, I readily accept is capable of constituting jurisdictional error.
The first of the complaints goes back to the schooling issue. I have set forth the contents of [119] of the reasons at [72] hereof. The complaint focuses on the last sentence of that paragraph.
But to understand the argument the applicant advances regard must also be had to [118] :
The claimant states he does not know if he ever held a green card, but he guessed he did as his school had his date of birth. At my interview he stated his uncle (his guardian after the parents died) tried many times to get white cards but could not get one. However, this is quite different to his evidence in his interview on 27 October 2010 when he discussed how his uncle did not apply for a white card as the uncle said he did not think they would be given one because so many people had not been given one, and especially as the claimant’s parents had died some years before. I note that the submission of 26 June 2011 also submitted the uncle did not apply for a white card for him. If the claimant was stateless in Iran and/or had once held a green card, the non-issuance to him of a white card, and the reasons for the non-issuance, would have been a significant matter for him. His changeable evidence concerning why he did not hold a white card raises serious concerns.
To return to what the reviewer says at [119], I think that it is clear that there is a problem with language choice on the part of the reviewer here. “Leads me to consider he had another basis” is, with respect to the reviewer, a somewhat clumsy expression. It suggests some darker or hidden or even sinister reason associated with the applicant going to school. However, I think it is clear that what the reviewer meant would have been more clearly expressed by him saying instead something such as “leads me to consider there is an explanation for the more extensive schooling than a mere five years and that the explanation is that he was an Iranian national and thus entitled to undertake more extensive schooling”. Such an expression or one like it makes the last sentence more coherent with what has gone before. I think a fair reading of the two paragraphs indicates that this is what the reviewer intended to convey. The applicant did not need a green card or a white card to attend school because he was an Iranian national.
The remarks in [119] as to inconsistency on the topic of schooling cohere with the remarks as to inconsistency on the topic of green cards and white cards in [118]. Together they assist the reviewer in his finding that the applicant is not a stateless person.
Ground 8 focuses upon [120]. The reviewer regards the failure to mention the Basij at the first interview as significant and he gives his reasons for rejecting the applicant’s explanation .
The applicant’s unpleasant experiences with the Basij are said by him to have been related to his undocumented status. The experiences arose when the Basij challenged him to produce documentation which he did not and could not have.
Having found that the experiences with the Basij had not occurred, the reviewer then reasons from that conclusion as follows at [120]:
It leads me to consider that in fact he did have identity documents in Iran.
The applicant contends that there is circularity in this reasoning.
The reviewer found that the contentions as to ill-treatment at the hands of the Basij did not occur. The applicant had advanced his undocumented status as the principal reason why these events did occur. If the reviewer is saying no more than that the index of his suspicion about the claim to be undocumented has been raised on account of that issue being at the heart of another issue that was rejected on credibility grounds, it is probably unexceptional. It provides a motive or an additional motive for the applicant’s invention of his account of his undocumented status. If there had been a more dispositive claim made for the linking of these two issues then there may well have been a slide into illogicality evidenced here. But the reviewer says only that “it leads me to consider” that he was able to prove his identity when asked and that “it leads me to consider” that he did have identity documents (it is really the same proposition in each case). I take that to indicate that the linkage of the two issues is used in an non-dispositive way; one finding did not entail the other finding; if it had done then that may well amount to a circularity in reasoning. But it did not. A finding as to one issue only raised the index of suspicion to another.
The implications of the decision of the majority of the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 was explained by McKerracher J in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58. His Honour said at [84]:
In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Here, the linkage of the two issues of the claimed Basij experiences of the applicant and the issue of whether he was in truth undocumented in a way that gave rise to increased suspicion of the applicant’s claim for undocumented status may not have necessarily been a compelling piece of reasoning but in my view it cannot fairly be described as irrational or illogical.
None of the grounds having been made out the application will be dismissed.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 31 August 2012
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