WZAPL v Minister for Immigration
[2012] FMCA 1164
•6 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1164 |
| MIGRATION – Independent Merits Review report recommends that applicant not owed protection obligations by Australia – judicial review – dismissed. |
| Migration Act 1958 (Cth), ss. 36, 91R & 476 1951 Convention relating to the Status of Refugees and its 1967 Protocol |
| SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 HTUN v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 244 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
| Applicant: | WZAPL |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | CHRISTOPHER KEHER IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 277 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 6 August 2012 |
| Date of Last Submission: | 6 August 2012 |
| Delivered at: | Perth |
| Delivered on: | 6 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Legal Aid Western Australia |
| Counsel for the Respondents: | Mr Hooker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application for review filed on 26 September 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 277 of 2011
| WZAPL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| CHRISTOPHER KEHER 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 2 April 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 application simply marks all of the optional final orders available in the pro forma document as being sought but it was plain during the course of argument the applicant is seeking a declaration that the reviewer’s recommendation was not made in accordance with law and an injunction restraining the Minister from relying on the recommendation.
The grounds upon which the review is sought are set out in a document styled “Substituted Grounds of Application” filed on 12 March 2012. There are three grounds. The application for extension of time to bring the application is no longer sought in the light of the decision of the Full Court of the Federal Court in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26.
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, 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” for the purposes 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 before I would allow such a review.
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. The applicant has promoted his grounds of review on the basis of a claim for jurisdictional error in each of them but I will deal with the grounds on the basis of an identification of legal error or a denial of procedural fairness as being sufficient to allow the review. Of course, the principles relating to the identification of jurisdictional error discussed in cases such as Craig v The State of South Australia (1995) 184 CLR 163 will continue to be of relevance in determining whether the review will be allowed.
I proceed in this way notwithstanding that the Full Court of the Federal Court in MZYPW v Minister of Immigration & Citizenship [2012] FCAFC 99, a decision which was delivered on 11 July 2012 (and therefore after Barker J’s decision of SZQGA) continued to express the task of review in terms of identification of jurisdictional error (see [19] – [25] thereof).
The applicant is a Faili Kurd from the province of Ilam in Iran. The reviewer found that he was an Iranian citizen and probably that his name was the name that the applicant said had been inserted on his false passport. The reviewer evaluated the applicant’s claims to be owed protection obligations against his finding that Iran was the country of origin of the applicant. The reviewer accepted country information which indicated that undocumented persons could be subject to arrest and deportation but he found that the applicant’s experiences in Iran involved very little if any adverse interest directed to him or to his family by the authorities.
The applicant claimed two experiences at the hands of the Basij, one in 2005 and one in either 2008 or 2009.
The reviewer was concerned about the way in which the applicant was able to depart from Iran on a false passport. He thought that this indicated that the applicant had not been truthful about his documentation and status in Iran.
The reviewer thought that the applicant and his family were likely to be Iranian citizens and to hold documentation.
The reviewer found that the applicant had fabricated significant aspects of his claim and that he was not a credible witness.
The reviewer did not accept the applicant’s claims to be from a poor background given that he was able to raise the money to pay the people smuggler to depart from Iran. Whilst he accepted that the country information demonstrated the Faili Kurds face some degree of discrimination in Iran he did not consider the discrimination experienced by the applicant to amount to serious harm for purposes of s.91R of the Act.
He accepted that the applicant had been detained and mistreated by the Basij on two occasions but did not accept that he was dealt with in this way on account of his ethnicity or undocumented status and he did not accept that the applicant’s departure from Iran had anything to do with those experiences. The reviewer found that the applicant would not be of adverse interest to anyone or face persecution in the reasonably foreseeable future if he were returned to Iran. Because he found that the applicant had not left Iran illegally the reviewer did not accept he would face any harm in the event of return to Iran on account of his having being an unsuccessful claimant for asylum.
Ground one asserts jurisdictional error in the way in which the reviewer reached his conclusion that the applicant was an Iranian citizen and that at all material times he possessed the documentation which was an incident of such citizenship, by drawing inferences that were illogical or had no logical connection with the evidence or by taking into account irrelevant considerations or by failing to take into account relevant considerations.
Illogicality or irrationality in reasoning may constitute a ground for judicial review. SZMDS v Minister for Immigration & Citizenship (2010) 240 CLR 611 is authority for that proposition but as noted by McKerracher J at the conclusion of his discussion of that case in SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58, at [85]:
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.
Similarly, it can be readily accepted that the taking into account of irrelevant considerations or ignoring relevant considerations can amount to jurisdictional error (see HTUN v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 244) though as Mr Hooker, for the Minister, pointed out in his written submission it is the applicant’s claims per se and their component integers which constitute the mandatorily relevant considerations.
In support of this ground the applicant provides 11 different particulars. I deal with each of them in turn.
a)At [52] the reviewer makes a finding that the fact that the applicant was released by the Basij following the two occasions he was detained by them indicates that he held some form of documentation to establish his bona fides. That is said to involve taking into account the irrelevant consideration that the Basij would detain a person indefinitely on account of lack of identity documents and a failure to take into account a relevant consideration namely the applicant’s evidence that his father paid money to the Basij to obtain his release. But the reviewer had already found inconsistencies in the applicant’s account of these detentions (see [36]). The reviewer was free to reject the account given in relation to the father paying a bribe and it is clear that he did so. There is nothing illogical about assuming that if a person is detained for being undocumented that it is more likely he would be deported rather than released, which is I think the case of the finding on that point. These are factual findings the reviewer is entitled to make.
b)In the same paragraph of the review, the reviewer rejected the applicant’s account that he avoided detection in the course of his life in Iran (apart from these two occasions) by staying within his village. The reviewer did not accept that. But the applicant had said that the Basij often came to his village. This finding must be seen in the context of the reviewer’s scepticism as to why the applicant and his family had so few encounters with them. I do not consider that the assumption the reviewer has made that the Basij would have encountered the applicant more frequently than they did on his own account involves the taking into account of an irrelevant consideration. What the applicant complains of as an “assumption” by the reviewer is in my view an unexceptional instance of fact finding.
c)A further complaint is made about that same paragraph when the reviewer reasons from the fact that the applicant was released on each of the two occasions he was detained and that none of his other family members encountered difficulties with the Basij (on his own account), that the claimant is not giving a truthful account of his status. Further, this complaint is linked to a complaint with a finding at [59] where the reviewer notes that the applicant has made no claims of ill treatment of other family members or of them being of adverse interest to the authorities in Iran as assisting him, in coming to the view that such is because they are Iranian citizens. Once again this seems to be an unexceptional instance of the reviewer’s fact finding obligation. It is not to the point that the applicant was not asked to give details of such experiences of other family members; it is reasonable to expect the applicant himself would have referred to such instances as grounding his own apprehensions; it is, at least, not irrational or illogical for the reviewer to have formed such a view.
d)At [23] the reviewer notes the applicant’s evidence that his grandparents were born in Iran and at [16] it is noted that his parents were born in Iraq. His grandparents returned to Iran from Iraq. This is noted at [53]. The reviewer notes that neither the grandparents or the parents of the applicant sought documentation at the time of their return to Iran. He is referring there to the applicant’s account that he was unaware whether any family members had ever obtained green or white refugee cards from the authorities. It should be noted that the reviewer found the applicant’s account of his family circumstances untruthful generally. It was reasonable for the reviewer to form the view that he did in relation to these matters. True it is that in coming to this conclusion the reviewer has not taken into account the applicant’s evidence that in the years 1983 to 1985 inclusive his family tried to obtain citizenship. The applicant would have been some 3 or 4 years old at this time and it was for that reason the reviewer asks in the interview how he knew this. The answer he gets is that the family always mention these years. That is not a particularly persuasive piece of evidence. The reviewer is entitled not to give it weight. I reject the contention that these findings evidence illogicality. The reviewer, moreover, did not find that his family had only procured the citizenship at the time of their return. His finding was not time-specific.
e)The inference the reviewer drew from the fact that the applicant passed through the Shiraz International Airport evidence that he had a genuine Iranian passport is attacked upon the basis that the inference was drawn from an incomplete or illogical premise. The reviewer did not have country information relating to Shiraz Airport but only the Imam Khomeini Airport in Tehran. At [54] the reviewer says that the country information refers “mainly” to the latter airport but that was not correct in the sense that no other airport is specifically referred to. However, the country information summarised at dot point 1 at CB198 speaks of the general position throughout Iran relating to the difficulty of using forged passports without reference to a specific exit point. If it be an error in summarising the evidence it is an error made within the exercise of the jurisdiction.
f)An attack is also made upon the reviewer’s findings at [54] and [55] relating to the fact the applicant did not have his passport with him in Australia. It is said that he overlooked the applicant’s own evidence that it was taken from him by the people smuggler who arranged his travel to Australia. In the furtherance of this submission the applicant’s evidence is said to have been un-contradicted. But there is no contradicter present during the course of the interview for an IMR. The reviewer manifestly did not give any weight to the applicant’s claim in this regard. It is a very easy claim for such an applicant to make. The reviewer was entitled to take the view he did in relation to the topic and the findings were open to him.
g)A discrete point is made in relation to the inferences drawn from the absence of the passport. It is said that the reviewer displayed illogicality by finding that because the applicant did not have identity documents in Australia, he was likely to have had them in Iran. I do not think that fairly summarises the inference drawn. The reviewer was entitled to add to his other findings (including his credibility findings) his scepticism about the explanation provided for not having his false passport with him. Possession of his false passport would have been helpful in assisting the applicant to make out his intentions as to lack of nationality. The applicant did not have it with him. The reviewer did not believe his explanation as to why he did not have it with him. To proceed in this way is not to exhibit illogicality.
h)At [56] of the IMR the reviewer rejected that part of the applicant’s claim that said that he was taught in his village by the son of a local school teacher for six years. He did so because he thought that this claim was inconsistent with the applicant’s claim that his many relatives in the village did not have an education and specifically that none of them could read or write. It was not a finding that turned on all the members of the village being his relatives – that was certainly not the case. It was the relatively odd circumstance that he was the only one of all of them who was educated by this son of a teacher. The finding is unexceptional.
i)One of a number of matters summarised by the reviewer at [63] was the information provided by the applicant that evidenced that he was able to travel within Iran. This was said to fail to take into account his evidence that on his way to Sherwan in 2005 he was detained by the Basij and beaten. I do not think that these findings are necessarily inconsistent. The transcript of the interview reveals numerous visits to other villages and towns over the course of the applicant’s life. It is by no means a history of extensive or distant travel within Iran but it is indicative of some ability to move outside the village.
j)Next is the reviewer’s findings that the amount he needed to procure to pay the smuggler (AUD$6,000) was inconsistent with his coming from a poor and impoverished background. This is contrasted with an earlier finding that his family have led the life of the rural poor in an undeveloped area of Iran. This inconsistency is said to manifest illogicality. There are degrees of impoverishment, of course, and the reviewer can fairly be taken to be saying that his family’s impoverishment was not as extreme as the applicant claimed in the light of this sum of money having been raised. The reviewer expresses this as [66] as follows:
They have worked in farming and labouring jobs – the traditional work in the province. That the family was able to obtain such a large sum of money to pay for the claimant’s departure from Iran indicates they are not the impoverished family he would present, but had a degree of means and resources.
k)Finally in relation to this category of complaint, the applicant says that the reference by the reviewer to having a concern that this application and “the other applications that I have seen” all involve persons who come from one particular area of one particular province of Iran. It is referred to twice in the interview and it makes its way into the reasons at [39]. Obviously, the reviewer has not kept his concern to himself. His ventilation of it provided an opportunity for the applicant to respond to it (which he did on one of the two occasions it was raised). If this was the reviewer’s experience he is entitled to say so. It is preferable that he says it rather than nurses a suspicion silently. It is not a matter given specific weight when he comes to make his findings. I do not think that his observation amounts to the taking into account of an irrelevant consideration constituting error.
I agree with Mr Hooker that these criticisms are fairly characterised as evidencing the kind of scrutiny of administrative decision makers said by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 to be inappropriate when looking at the reasons of an administrative decision maker. Picking up the dicta of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 that such reasons are not to be construed with an eye keenly attuned to the perception of error, the Court says this at 272:
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The same passages referred to in ground one but especially those dealing with the attacks on the applicant by the Basij are recast to support the second ground, which is a contention that the reviewer failed to correctly apply or apply at all the requirements of Article 1A of the Refugees Convention as amended by the Refugees Protocol as applied and modified by ss.36 and 91R of the Act. Article 1A(2) of the Convention is set forth at [6] of the reasons. The analysis of the evidence and submissions by and on behalf of the applicant that follow are clearly directed to whether the applicant had a fear of persecution, whether the fear was well founded, whether it was for a Convention reason and whether, owing to such fear, the applicant was unwilling to avail himself of the protection of his country of nationality. In particular, the analysis of the contentions relating to the two occasions, five years apart, when the applicant was detained by the Basij does not disclose error. The reviewer had credibility concerns (in the sense of consistency of account) in relation to these incidents in any event. The reviewer does accept that he was beaten but does not accept that these two beatings were Convention related or of a seriousness amounting to persecution. Whether one agrees or disagrees with this ultimate finding it cannot be said that the reviewer was not addressing himself to the criteria of the Convention when he came to it.
This ground is not made out.
Ground three is a claim of a denial of procedural fairness and has two aspects.
Firstly, it is said that the reviewer failed to consider the applicant’s claim that Iraq was the country against which the claims for refugee status should be considered. Whether seen from a denial of natural justice perspective or a failure to consider an integer of the applicant’s claim this criticism cannot be sustained. The reviewer gave detailed reasons as to why he regarded Iran as the applicant’s country of origin. The applicant’s claim was that he was stateless. He neither articulated nor implied that Iraq should be regarded as the country against which his claim was to be assessed. He has lived all of his life in Iran. There is no substance to this complaint.
Secondly, the reviewer’s findings that the applicant’s immediate family had experienced nothing amounting to persecution (or even adverse interest from the authorities) is said to be something which should have been put specifically to the applicant. But the way the applicant conducted his claim was not to mention any persecutory experiences of family members at all. In referring to this circumstance at [52] and [59] the reviewer is not so much making a finding as describing the substantive nature of the applicant’s case. No issue of procedural fairness arises in that context.
None of the grounds having been made out the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 6 December 2012
0
9
2