WZAPI v Minister for Immigration and Citizenship

[2013] FCA 188

FEDERAL COURT OF AUSTRALIA

WZAPI v Minister for Immigration and Citizenship [2013] FCA 188

Citation:	WZAPI v Minister for Immigration and Citizenship [2013] FCA 188
Appeal from:	WZAPI v Minister for Immigration and Citizenship & Anor [2012] FMCA 1065
Parties:	WZAPI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:	NSD 1977 of 2012
Judge:	NICHOLAS J
Date of judgment:	13 March 2013
Legislation:	Convention relating to the Status of Refugees 1951 Protocol relating to the Status of Refugees 1967
Cases cited:	Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Date of hearing:	28 February 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	23
Counsel for the Appellant:	Mr G Antipas (Pro Bono)
Counsel for the Respondents:	Mr H P T Bevan
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1977 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WZAPI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	13 MARCH 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.  

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1977 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

WZAPI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

CHRIS PACKER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	NICHOLAS J
DATE:	13 MARCH 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. This is an appeal from a decision of a Federal Magistrate given on 22 November 2012 dismissing the appellant’s application for judicial review of the recommendation made by the second respondent (the Reviewer) to the first respondent (the Minister).  The Reviewer recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the Convention).

2. The sole issue before the primary judge was whether the appellant had been denied procedural fairness by the Reviewer.  The appellant contended that he had been denied procedural fairness as a result of the Reviewer not having put to the appellant that he had acquired Iranian nationality.  The primary judge found that the appellant had not been denied procedural fairness.  The appellant challenges that finding.

   THE REVIEWER’S REPORT

3. The appellant is a Faili Kurd, who was born in Iraq, and who travelled with his family at a young age to Iran where he then lived for about 30 years.  In 2006 the appellant married an Iranian national with whom he had a child.  The appellant’s wife and child still live in Iran.

4. The appellant claimed he was stateless.  The appellant also claimed that he led a disadvantaged and humiliating life in Iran.  He claimed that he was harassed and abused because he was a Faili Kurd, a stateless Iraqi refugee or an imputed Iraqi national. 

5. The appellant claimed that during his time in Iran he held a “White card”.  He accepted that a White card holder who married an Iranian national and who registered the marriage could ultimately become an Iranian national.  In fact, the appellant claimed that he had attempted to register his marriage to his Iranian wife but that he had not been able to do so.  The Reviewer expressed doubts about the correctness of the latter claim. 

6. Even though the Reviewer did not explicitly reject the appellant’s claim that he had not been able to register his marriage, the Reviewer ultimately concluded that the appellant had become an Iranian national.  At the same time the Reviewer made it clear that he did not consider it necessary to determine precisely how or when the appellant became an Iranian national. 

7. The Reviewer made various findings concerning the quality of life that the appellant enjoyed while living in Iran.  The Reviewer did not accept that the appellant led a disadvantaged and humiliating life.  The Reviewer said (at [96]):

   The next issue I have considered is the claimant’s status in Iran in the 30 years from 1980 to 2010.  The claimant claims he held a White card for the entire period and as a stateless (displaced Iraqi) Faili Kurd led a disadvantaged and humiliating life in Iran.  He claims that even as a White card holder he did not have permission to work.  I accept that even as a White card holder he would likely not have had permission to work, which makes plausible his claim to have worked illegally.  Yet, much of the claimant’s own evidence does not show that he suffered the disadvantaged life in Iran he has portrayed. 

8. The Reviewer then turned to consider the appellant’s marriage and his internal movements within Iran which, according to the Reviewer, strongly suggested that the appellant had obtained a higher social and economic standing in Iran than he claimed.  The Reviewer made the following finding (at [99]):

   … Given the claims, strongly made, that such harassment and ill-treatment naturally flows from a status as a stateless Faili Kurd or stateless Iraqi refugee or imputed Iraqi national (and whether or not a White card holder), the lack of such ill-treatment strongly suggests he did not have that status in Iran.  That is, he was not a stateless Faili Kurd or stateless Iraqi refugee or imputed Iraqi national.

   (original emphasis)

9. The Reviewer’s assessment of the appellant’s claims focused on the appellant’s account of his life in Iran after his 2006 marriage.  Earlier in his reasons the Reviewer observed (at [48]) that he had told the appellant during the course of an interview that “[i]t would be unusual for an Iranian woman to marry a Faili Kurd who was not an Iranian national” and that he had a concern “that the marriage showed that [the appellant] had a stronger basis to reside in Iran than just a White card.”

10. The Reviewer also indicated in his reasons (see [57]) that he had pointed out to the appellant that the Reviewer would consider whether the appellant was stateless, and if he decided the appellant was stateless, then he would assess the appellant by reference to Iran, which was the appellant’s country of habitual residence. 

11. In his reasons, the Reviewer discussed the possibility that the appellant was an Iranian national.  The Reviewer said (at [103]-[104]):

    103Based upon country information, and in the light of his evidence that I do accept, I conclude he became an Iranian national. I do not have to go on to speculate how this occurred. Nonetheless, at my interview when I put to him that country information shows that an Iraqi who holds a White card, if he marries an Iranian, can register the marriage and ultimately become an Iranian national, he agreed. He went on to claim that he had indeed sought to register the marriage (and his daughter’s birth), but though he had gone to the authorities to ask what was happening, the authorities had told him to wait but they never contacted him. His short response did not suggest that he made any great efforts to resolve the claimed impasse in the 4 years after his marriage, which raises serious concerns with his explanation. Country information shows this is one way in which the claimant may have become an Iranian national.

    104In the light of my findings above, I do not accept that the claimant is stateless and so do not accept he will be a displaced Iraqi or a stateless person when he returns to Iran. I do not accept that he would face in Iran in the reasonably foreseeable future, serious harm amounting to persecution for the Convention ground of his nationality (or lack of nationality).

12. The Reviewer then made an express finding (at [105]) that the appellant was an Iranian national.  It is the making of this finding that is said to have given rise to procedural unfairness.  As I have already mentioned, the Reviewer did not specify when or how the appellant became an Iranian national except to say that it must have occurred sometime in or after 1980. 

    THE PRIMARY JUDGE’S DECISION

13. The primary judge’s reasons include a detailed account of the appellant’s claims and the Reviewer’s assessment of them.  Having correctly identified the issue that arose out of the appellant’s application, the primary judge said (at [16]-[19]):

    16A party liable to be directly affected by an administrative decision to which the rules of procedural fairness apply is to be given the opportunity of putting information and submissions to the decision-maker in support of an outcome that supports his or her interests. In order that that right can have substance, the party affected is to be given the opportunity to ascertain the relevant issues. This will require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The person is also entitled, amongst other things, to be informed of the nature and content of any adverse conclusion that the decision-maker has reached which would not obviously be open on the known material and to address any such unexpected conclusions by further information and submission.

    17This case turns on the correct identification of the relevant issue. The applicant’s claims to fear persecution on a return to Iran were principally based on his allegation that he was a Faili Kurd who was stateless. For present purposes the relevant issue is whether he was stateless. This was an issue well recognised by the applicant, as evidenced by his advisers’ submissions and by the course of his interview with the Reviewer. Importantly, a negative answer to that question would lead inevitably to a consideration of what nationality the applicant did in fact have. One possible outcome of such a consideration was a finding that the applicant was an Iranian national. The only other finding that was potentially and realistically open was that he held Iraqi nationality. The Reviewer did not need to spell out these very obvious alternatives to the applicant.

    18The fact that a consideration of the applicant’s alleged statelessness resulted in a conclusion that in fact he was not stateless, but was instead an Iranian national, does not mean that his particular nationality became an issue in its own right. Rather, the conclusion on his nationality was a finding based on the evidence placed before the Reviewer relevant to the issue of the applicant’s claimed statelessness.

    19Moreover, that finding was not one which meets the description of a conclusion which was not obviously open on the known material. This is because the Reviewer had raised with the applicant the means by which it was open to him to obtain Iranian citizenship and had questioned whether his marriage showed that he had a basis to remain in Iran which was stronger than being the holder of a white card.

14. Neither party suggested that there was any error in the statement of principle that appears in [16] of the primary judge’s reasons.  It was also accepted by the Minister that “[t]he 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”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 per Northrop, Miles and French JJ.

    THE PARTIES’ SUBMISSIONS

15. A central issue before the Reviewer was whether or not the appellant was a stateless person.  The appellant accepted that the Reviewer made clear that he might find that the appellant was in fact an Iraqi national and therefore not a stateless person.  However, the appellant submitted that it was not suggested to him that the Reviewer might conclude that the appellant was not a stateless person because he was an Iranian national.  He further submitted that, because such a finding was not obviously open on the material before the Reviewer, if the Reviewer proposed to reject the appellant’s claim that he was a stateless person on that basis, then the Reviewer was required to put that proposition to the appellant directly so as to allow him a reasonable opportunity to respond to it. 

16. It was accepted by the Minister that the Reviewer did not put to the appellant that he was an Iranian national.  But following the reasoning adopted by the primary judge, the Minister submitted that once it is accepted that there was an obvious issue as to whether or not the appellant was a stateless person, it also followed that there was an obvious issue as to whether the appellant might not be an Iraqi national or an Iranian national.  The Minister submitted that it was apparent from the Reviewer’s questioning of the appellant concerning his marriage, including the possibility of registering the marriage as a step along the way to becoming an Iranian national, that it was obviously open on the known material before the Reviewer to find that the appellant did become an Iranian national.

    CONSIDERATION

17. The question before me is not whether the Reviewer’s conclusion that the appellant had become an Iranian national was correct.  The question is whether the Reviewer’s finding was one that was obviously open to him to make on the known material.

18. There were a number of matters explored with the appellant in his interview by the Reviewer which were directly relevant to the question whether the appellant was not stateless because he was an Iranian national.

19. First, it was put to the appellant that it would be unusual for an Iranian woman to marry a Faili Kurd who was not an Iranian national.  There were two possible implications inherent in this question.  One was that the appellant had not married an Iranian woman as he claimed.  Another was that the appellant was already an Iranian citizen by the time he married his Iranian wife in 2006.  During the interview with the appellant the Reviewer indicated a concern that the appellant’s marriage to an Iranian woman showed that he had a stronger basis to reside in Iran than was provided by a White card.  I think the Reviewer was clearly suggesting to the appellant by these questions (even if not in direct terms) that he might find that the appellant was an Iranian national and not stateless as claimed. 

20. Secondly, it was put to the appellant that it had been open to him to become an Iranian citizen after marrying his Iranian wife if he registered the marriage.  The appellant was questioned about the steps he took with a view to registering the marriage.  He explained to the Reviewer that he had tried to register his marriage but that the authorities never got back to him.  It is clear that the Reviewer was here exploring two possibilities – first, that the appellant had already taken steps to become an Iranian national and, second, that it was open to the appellant to take such steps in the future. 

21. Thirdly, much of the questioning of the appellant by the Reviewer was concerned with the quality of the appellant’s life during his 30 years in Iran.  This was relevant to the appellant’s claim that he had been the victim of discrimination while living in Iran, but it was also relevant to the appellant’s claim that he was stateless.  It was always open to the Reviewer to infer that the quality of the appellant’s life in Iran was inconsistent with the appellant being a stateless person and that he lacked that status because he had at some point become an Iranian national.

22. In all the circumstances, I am satisfied that it was obviously open on the material which the appellant knew was before the Reviewer that the Reviewer might find that the appellant was not stateless because he was an Iranian national.   I do not think that the primary judge’s reasons for decision reveal any error in reaching the same conclusion. 

    DISPOSITION

23. The appeal will be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:
Dated:        13 March 2013