WZAPM v Minister for Immigration & Anor - [2013] FCCA 266

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAPM v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 266

Catchwords:
MIGRATION – Judicial review – independent merits review – failure to provide interpreter with appropriate language for applicant – interpretation and misinterpretation by interpreter – failure to have regard to relevant material – denial of procedural fairness – whether jurisdictional or other legal error.

Legislation:
Constitution, s.75(v)
Migration Act1958 (Cth), ss.5(1), 36(2), 46A, 91R(2), 476

Cases cited:
Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301; [2011] FMCA 371
DZAAA v Minister for Immigration & Anor [2012] FMCA 699
DZAAA & Ors v Minister for Immigration & Citizenship & Ors (2011) 250 FLR 423; [2011] FMCA 434
Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 55
Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507
Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41
Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80
Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515; [2009] FCAFC 42
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63
SZGYM v Minister for Immigration & Citizenship & Anor [2007] FCA 1923
SZOYU v Minister for Immigration & Anor [2012] FMCA 316
SZQDZ & Ors v Minister for Immigration & Citizenship & Anor (2012) 200 FCR 207; [2012] FCAFC 26
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
WALN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 131
Xie v The Minister for Immigration and Ethnic Affairs (Unreported, WAG 125 of 1994, French J, 9 August 1995)

Applicant:

WZAPM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

PEG 278 of 2011

Judgment of:

Judge Lucev

Hearing date:

25 May 2012

Date of Last Submission:

25 May 2012

Delivered at:

Perth

Delivered on:

17 May 2013

REPRESENTATION

Counsel for the Applicant:

Ms M Lamattina

Solicitors for the Applicant:

Castledine Gregory

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

DECLARATION AND ORDERS

The Court declares that the second respondent in her capacity as Independent Merits Reviewer, did not make her recommendation of 11 August 2011 according to law, in that the applicant was denied procedural fairness by reason of:
(a)the fact that the interpreter did not speak Faili Kurd at all not being made known, properly or at all, to the second respondent;
(b)the applicant’s request for an interpreter who spoke Faili Kurd not being conveyed in terms to the second respondent; and
(c)errors by the interpreter in the interpretation of the applicant’s evidence.
The Court orders that the first respondent, whether by himself or by his servants, officers, delegates or agents be restrained from relying upon the second respondent’s recommendation of 11 August 2011.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 278 of 2011

WZAPM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

KERRY BOLAND IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Application

The amended application in this matter[1] is made under s.476 of the Migration Act 1958 (Cth)[2] in relation to a decision[3] of Kerry Boland in her capacity as independent merits reviewer,[4] finding that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act, and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.[5]
[1] Leave to file the amended application in substitution for the original application was granted at hearing on 25 May 2012: Transcript, page 7.
[2] “Migration Act”.
[3] “IMR Recommendation”. The IMR Recommendation is at Court Book (“CB”) 191-208.
[4] “IMR”.
[5] “Convention”.

Relief sought

The substantive relief sought by the applicant is as follows:
a)a declaration that the IMR Recommendation was not made in accordance with law, by reason of the grounds of the amended application; and
b)an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the IMR Recommendation.

Grounds of the amended application

There are four very detailed grounds in the amended application. Each of the grounds is set out below, together with the parties’ submissions and the Court’s consideration of each ground. In summary, however, the applicant’s grounds contend that the IMR Recommendation was not made in accordance with the law because the IMR committed jurisdictional errors, each of which is sufficient to support the grant of relief sought by the applicant.

Jurisdiction

In SZQDZ & Ors v Minister for Immigration & Citizenship & Anor,[6] the Full Court of the Federal Court of Australia found that this Court’s jurisdiction pursuant to s.476(1) of the Migration Act was enlivened by the applicants seeking declaratory and injunctive relief to prevent the Minister or his officers taking into account an independent merits reviewer’s recommendation in any future consideration of the exercise of powers under s.46A of the Migration Act, which jurisdiction was the same as that of the High Court under s.75(v) of the Constitution.[7]
[6] (2012) 200 FCR 207; [2012] FCAFC 26 (“SZQDZ”).
[7] SZQDZ FCR at 220 per Keane CJ, Rares and Perram JJ; FCAFC at para.45 per Keane CJ, Rares and Perram JJ.
The amended application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the IMR Recommendation, is within this Court’s jurisdiction for relief in relation to a migration decision.[8]
[8] Migration Act, s.476(1); Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319 at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; [2010] HCA 41 at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“Plaintiff M61”); Darabi v Minister for Immigration & Citizenship & Anor (2011) 250 FLR 301 at 308 per Nicholls FM; [2011] FMCA 371 at para.31 per Nicholls FM (“Darabi”).

Affidavits

The following affidavits were filed in support of the application:
a)affidavit of the applicant, sworn 30 March 2012;[9]
b)second affidavit of the applicant, sworn 4 May 2012;[10]
c)affidavit of Frideriki Barbas, sworn 26 April 2012;[11]
d)second affidavit of Frideriki Barbas, sworn 26 April 2012;[12]
e)affidavit of Fermesk Kaka, sworn 30 April 2012;[13] and
f)second affidavit of Fermesk Kaka, sworn 30 April 2012.[14]
[9] “Applicant’s March 2012 Affidavit”.
[10] “Applicant’s May 2012 Affidavit”.
[11] “Mr Barbas’ Affidavit”.
[12] “Mr Barbas’ Second Affidavit”.
[13] “Ms Kaka’s Affidavit”.
[14] “Ms Kaka’s Second Affidavit”.
Ms Kaka is an interpreter fluent in Faili Kurdish and English.[15]
[15] Ms Kaka’s Affidavit, paras.2 and 5.

Background facts

The background facts are as follows:
a)the applicant claims to be a stateless Faili Kurd born in 1980,[16] who arrived in Australia as an unlawful entry at Christmas Island on 23 June 2010;[17]
b)the applicant sought asylum and was assessed under the usual administrative arrangements established by the Department of Immigration and Citizenship;[18]
c)the applicant satisfied the definition of an “offshore entry person” and is therefore prohibited from applying for a protection visa;[19]
d)under the arrangements in place, the applicant requested a refugee status assessment;[20]
e)having considered the material provided by and on behalf of the applicant, the RSA officer determined on 22 February 2011 that the applicant did not meet the definition of refugee as set out in the Convention and was therefore not a person to whom Australia owed protection obligations;[21]
f)the applicant requested an independent merits review of the RSA officer’s determination;[22] and
g)the IMR interviewed the applicant on 17 May 2011,[23] issued the IMR Recommendation on 11 August 2011, and recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[24]
[16] CB 10.
[17] CB 61.
[18] “Department”.
[19] Migration Act, ss.5(1) and 46A(1).
[20] “RSA”; CB 68-84.
[21] CB 122-123. The RSA Record is at CB 107-123.
[22] CB 124-130.
[23] “IMR Interview”.
[24] CB 208 at para.89.

Applicant’s claims

The applicant claimed at his entry interview on 14 August 2010 that:
a)he lived in a small village from birth until February 2010, apart from a brief period in Tehran prior to his departure for Australia;[25]
[25] CB 10.
b)he worked in a garage in Tehran while waiting for his travel documents;[26]
[26] CB 11.
c)he had two years of basic literacy skills training by an elder in his village;[27]
d)he had no identity documents;[28]
e)he can speak Kurdish Faili and Farsi;[29]
f)he left Iran because he was stateless and suffered discrimination;[30]
g)he lived in fear and under cover because he had no identification documents;[31]
h)he had no right to go to school;[32]
i)because he had no identity documents anyone could assault him;[33]
j)if he needed medical attention he had to go to a private hospital;[34]
k)his family could not receive subsidised farm products through the agriculture department;[35] and
l)he was not able to marry his girlfriend because he did not have Iranian citizenship.[36]
[27] CB 12.
[28] CB 12.
[29] CB 13.
[30] CB 18.
[31] CB 18.
[32] CB 18.
[33] CB 18.
[34] CB 27.
[35] CB 27.
[36] CB 28-29.
The applicant claims to have fled to Australia as a result of the following events:
a)his girlfriend was a local girl whose parents refused permission for them to marry because the applicant was not an Iranian citizen;[37]
b)the local girl later married an Iranian man, but a year later they divorced;[38]
c)the husband’s family blamed the applicant for the divorce, and the former husband tried to scare the applicant by telling the Basij[39] to harm the applicant;[40]
d)later the applicant purchased some clothes from a street vendor, who asked if it was possible to stay the night, and because of the Islamic culture of hospitality, the applicant allowed the street vendor to stay over night and for breakfast;[41]
e)three days later when in the mountains shepherding sheep and goats he saw two government cars coming toward his village;[42]
f)later that afternoon his younger brother told him that some army people had come to their house to arrest him but that they had taken his father away instead;[43]
g)the applicant fled to a neighbouring village, and had inquiries made about his father, which ascertained that his father had been questioned about the two clothes vendors, whom it transpired were members of a Kurdish opposition group in the area;[44]
h)the army was accusing the applicant and his family of supporting the members of the Kurdish opposition group;[45]
i)his father was tortured and detained;[46] and
j)the authorities demanded that the applicant hand himself in, but after receiving word from his father that he should not hand himself in, he fled to Australia.[47]
[37] CB 28-29.
[38] CB 29-30.
[39] It is generally accepted that the Basij are a “a paramilitary voluntary force formally connected with the IRGC [Islamic Revolutionary Guard Corps]”: see DZAAA v Minister for Immigration & Anor [2012] FMCA 699 at fn.14 per Lucev FM.
[40] CB 30.
[41] CB 30-31.
[42] CB 31.
[43] CB 31-32.
[44] CB 32.
[45] CB 33.
[46] CB 33.
[47] CB 33.
In a statutory declaration accompanying his application for asylum the applicant largely repeated the claims made in the Entry Interview, but also asserted that:
a)his family lived in constant fear of deportation because they were stateless, and were constantly threatened by the Basij and the authorities;[48]
b)his father remains in gaol until the applicant returns and gives himself up;[49]
c)a friend arranged his travel, and he understands that a smuggler was paid US$3000 for an Iraqi passport and a further US$7000 for his travel to Australia;[50] and
d)he will not be safe in Iran because he is a Faili Kurd and stateless.[51]
[48] CB 194 at para.13.
[49] CB 194 at para.15.
[50] CB 194 at para.16.
[51] CB 194 at para.16.
At the RSA the applicant’s claims were largely repeated, but the applicant added that:
a)his parents were never issued with a green card because they never went to a refugee camp;[52]
b)because the applicant had no identity documents he tried unsuccessfully to get a green card in his own right in 2003;[53] and
c)the applicant could not get medical treatment when he broke his hand about six years ago because he could not afford to pay for it.[54]
[52] CB 194 at para.20.
[53] CB 194 at para.20.
[54] CB 194 at para.20.
At least two submissions were made by the applicant’s advisers in relation to the RSA and IMR referring to:
a)the applicant’s lack of right or entitlement to reside in Iraq, based on case law and country information; and
b)by reference to country information, the lack of status and poor treatment of Faili Kurds in Iran.[55]
[55] CB 194 at paras.18 and 23.
At the IMR Interview the above claims were again largely repeated, with some additional information in relation to how it was that the applicant funded his trip to Australia and his inability to obtain documents even under the new social security system which applies in Iran. The applicant submitted that he had a genuine fear of returning to Iran because of his race and because he was a stateless person and was at risk of punishment and persecution.[56] Further information concerning the punishment of failed asylum seekers was submitted by the applicant’s advisers after the IMR Interview.[57]
[56] CB 194-197 at paras.25-41.
[57] CB 197-198 at paras.43-44.

IMR Recommendation – the findings

The following are the key findings in the IMR Recommendation:
a)the applicant and his family continued to live in their rural and remote village largely unhindered by the absence of identity documents;[58]
[58] CB 204 at para.79.
b)restrictions which applied to other non-citizens without identification including type of work, ability to open a bank account, own property, buy a car or have a driver’s licence did not directly impinge on the applicant’s everyday life;[59]
[59] CB 204 at para.79.
c)the only contact the family had with the Basij was three years previously when the Basij stopped the applicant’s father, who was bashed and had his possessions taken;[60]
[60] CB 204-205 at para.79.
d)the applicant and family avoided the Basij by using another road into their village;[61]
[61] CB 205 at para.79.
e)limited access to schooling, living a modest existence without electricity or a materially comfortable life, and a lack of access to identity documents do not amount to serious harm;[62]
[62] CB 205 at para.79.
f)while the applicant did not have access to public medical care, it is not clear that there would have been such care available to the applicant or his family in or near the village;[63]
[63] CB 205 at para.80.
g)the applicant’s family could have afforded to pay for private medical care given their funding of the applicant’s travel to Australia from savings and contributions from relatives;[64]
[64] CB 205 at para.79.
h)the IMR did not accept other evidence advanced by the applicant in earlier submissions and a statutory declaration regarding his and his family’s treatment by the Basij and their having been detained regularly, beaten and tortured.[65] This was rejected on the basis that it was not consistent with oral evidence of the applicant during the IMR interview;
[65] CB 205 at para.81.
i)the applicant is able to avoid the Basij in the future to avoid any harm, and this amounts to inconvenience, not serious harm;[66]
[66] CB 205 at para.81.
j)the applicant was not targeted by the Basij in the course of his daily living in the past and would not be targeted in the future;[67]
[67] CB 205 at para.81.
k)the applicant was not denied access to basic services or the capacity to earn a living to subsist;[68]
[68] CB 206 at para.82.
l)the same restrictions which apply to the applicant as a non-citizen apply to non-citizens in other countries;[69]
[69] CB 206 at para.82.
m)the restrictions which apply to the applicant do not result from him being a Faili Kurd but are because he is a non-citizen;[70]
[70] CB 206 at para.82.
n)the applicant and his family had no history of any past problems with the Basij or other government authorities;[71]
[71] CB 206 at para.83.
o)the ex-husband of the applicant’s ex-girlfriend would not have waited one and half years to exact revenge on the applicant for his marriage break up;[72]
[72] CB 206 at para.83.
p)the applicant or his family would have paid a bribe to secure his father’s release or attempted to do so;[73]
[73] CB 206 at para.83.
q)the applicant’s family could have raised money for bail based on their funding of the applicant’s travel to Australia;[74]
r)the applicant is not of interest to the authorities because of his imputed political profile;[75]
s)the applicant’s detention for questioning and being fined on return to Iran would not amount to serious harm;[76]
t)the applicant may be prosecuted for his irregular departure but would not be persecuted;[77]
u)the inability of the applicant to return to Iran without documentation is not part of the review;[78]
v)the applicant’s father was not arrested and is not in jail;[79]
w)the written submissions on behalf of the applicant dated 13 May 2011 concerning the applicant’s family paying bribes to avoid deportation are inconsistent with the oral evidence of the applicant;[80]
x)the applicant and his family have never been threatened with deportation and there is no real chance the applicant will be deported in the future;[81]
y)there is no real reason why the applicant cannot return to Iran and resume his life living and working as a shepherd and farmer in Ilam;[82] and
z)the difficulties faced by the general population are due to a lack of infrastructure and little or no government investment, compounded by the hike in food prices and the subsidy given to Iranian citizens. The difficulties are due to the applicant’s status as an undocumented non-citizen in Iran and are not for a Convention reason.[83]
[74] CB 206 at para.83.
[75] CB 206 at para.83.
[76] CB 207 at para.84.
[77] CB 207 at para.84.
[78] CB 207 at para.84.
[79] CB 207 at para.84.
[80] CB 207 at para.84.
[81] CB 207 at para.84.
[82] CB 208 at para.85.
[83] CB 208 at para.85.

Ground 1

Ground 1 is as follows:
1.1    On 17 May 2011, a hearing of the Independent Merits Review (the Hearing) was conducted before the Second Respondent in respect of which an interpreter was provided.
1.2    The questions put to the Applicant and answers given by the Applicant, which were interpreted throughout by the interpreter, disclosed multiple errors; the contents of which are contained in the Affidavit of Fermesk Kaka sworn on 30 April 2012 (Kaka IMR Affidavit). See also the transcript of the hearing annexed to the Affidavit No.2 of Frideriki Barbas sworn on 26 April 2012 (Barbas IMR Affidavit).
1.3    The Second Respondent was advised of the interpreting issues:
(a)    Early in the hearing, the Second Respondent was informed by the Applicant that the interpreter did not speak Kurdish Faili, which was the Applicant’s native language. See Annexure FB2-1 page 6 of the Barbas IMR Affidavit.
(b)    Fermesk Kaka confirms that the interpreter did not speak Kurdish Faili at any time during the hearing (Kaka IMR Affidavit at paragraph [9]), but spoke a mixture of Kurdish Kurmanji, Persian and Kurdish Sorani (Kaka IMR Affidavit at paragraphs [7] to [9] and [36]).
(c)     The Applicant requested a Kurdish Faili interpreter (Kaka IMR Affidavit at paragraphs [21] and [25]). The Second Respondent made no inquiry as to the availability of such an interpreter despite the proposal by the Applicant’s agent to do so during the hearing (Kaka IMR Affidavit at paragraphs [29] to [33]).
(d)    The Applicant notified the Second Respondent of his concerns about the delay in obtaining a hearing; the length of his time in detention; and the effect of delay in getting another interpreter for the Hearing, and thereby prolonging his detention (Kaka IMR Affidavit at [21] to [35]).
(e)     Accordingly, the Applicant agreed to proceed without a Kurdish Faili interpreter (Applicant’s affidavit dated 30 March 2012 (… [Applicant’s] March Affidavit) at paragraphs [6] to [21]).
1.4    Notwithstanding the matters set out in ground 1.3(a) to (e) above, the Second Respondent proceeded with the hearing (see pages 7 and 8 of Annexure FB2-1 of the Barbas IMR Affidavit).
1.5    The inaccuracies and misinterpretation by the interpreter had a real and likely impact upon:
(a)    the content and way in which questions were put to the Applicant;
(b)    the content and way in which answers of the Applicant were conveyed to the Second Respondent;
(c)     the speed, relevance, spontaneity and directness of the Applicant’s responses;
(d)    the findings of the Second Respondent with respect to claims made by the Applicant; and
(e)     the Second Respondent’s findings about the credibility of the Applicant.
1.6    By reason of the matters referred to in grounds 1.2 to 1.5 (inclusive), jurisdictional error was committed in that:
(a)    there was a failure by the Second Respondent to discharge the Second Respondent’s statutory and common law duties to provide the Applicant with a fair hearing; and
(b)    there was a denial of procedural fairness to the Applicant by failing to enable the Applicant to fully understand the questions being put to him and to provide a reply that would be accurately communicated to the Second Respondent by the interpreter.

Applicant’s submissions

Interpretation issues

With respect to the interpretation issues the applicant submits that:
a)the IMR was made aware of interpreting issues:
i)early in the IMR Interview, the IMR was informed by the applicant that the interpreter did not speak Kurdish Faili, which was the applicant’s native language;[84]
[84] Mr Barbas’ Second Affidavit, Annexure FB2-1, page 6.
ii)Ms Kaka confirms that the interpreter did not speak Kurdish Faili at any time during the IMR Interview,[85] but spoke a mixture of Kurdish Kurmanji, Persian and Kurdish Sorani;[86]
[85] Ms Kaka’s Second Affidavit, para.9.
[86] Ms Kaka’s Second Affidavit, paras.7-9 and 36.
iii)the applicant requested a Kurdish Faili interpreter.[87] The IMR made no inquiry as to the availability of such an interpreter despite the proposal by the applicant’s agent to do so during the IMR Interview;[88]
[87] Ms Kaka’s Second Affidavit, paras.21 and 25.
[88] Ms Kaka’s Second Affidavit, paras.29-33.
iv)the applicant notified the IMR of his concerns about the delay in obtaining the IMR Interview; the length of his time in detention; and the effect of delay in getting another interpreter for the IMR Interview, and thereby prolonging his detention;[89] and
[89] Ms Kaka’s Second Affidavit, paras.21-35.
v)accordingly, the applicant agreed to proceed with the IMR Interview without a Kurdish Faili interpreter;[90]
[90] Applicant’s Affidavit, paras.6-21.
b)notwithstanding the matters set out above, the IMR proceeded with the IMR Interview;[91]
[91] Mr Barbas’ Second Affidavit, Annexure FB2-1, pages 7 and 8.
c)the IMR erroneously asserted that the applicant speaks, reads and writes Farsi in a summary of the record of Entry Interview contained in the IMR Recommendation.[92] This is inconsistent with the record of Entry Interview[93] which states that the applicant speaks Farsi, and makes no reference to his reading and writing Farsi, or the fluency of the applicant’s knowledge of Farsi. This is also inconsistent with the applicant’s statements at the commencement of the IMR Interview;
[92] CB 193 at para.9.
[93] CB 13.
d)during the IMR Interview, the errors by the interpreter as detailed in the Ms Kaka’s Second Affidavit were numerous and concerned issues of significance to the applicant’s claims, thereby denying the applicant an effective opportunity to present his case. Further, the impact of the inaccuracies and misinterpretation had a real and likely impact upon:
i)the content and way in which questions were put to the applicant;[94]
[94] Ms Kaka’s Second Affidavit, paras.7, 8, 9, 28, 30, 36, 37, 43, 51, 53, 80, 83, 111, 120, 123, 127, 133, 178, 209, 216, 233 and 247.
ii)the content and way in which answers of the applicant were conveyed to the IMR;[95]
[95] Ms Kaka’s Second Affidavit, paras.7, 8, 9, 15, 18, 19, 22, 23, 26, 28, 32, 36, 37, 41, 44, 47, 49, 53, 57, 60, 63, 66, 69, 72, 75, 78, 81, 85, 87, 90, 91, 92, 93, 95, 98, 1,1, 103, 106, 109, 112, 113, 115, 118, 125, 131, 135, 138, 141, 144, 147, 150, 153, 156, 158, 161, 164, 167, 170, 173, 176, 181, 184, 187, 190, 193, 196, 198, 201, 104, 207, 211, 214, 220, 223, 226, 228, 231, 235, 237, 240, 242, 244, 245, 246 and 248.
iii)the speed, relevance, spontaneity and directness of the applicant’s responses and statements;[96]
[96] While generally ascertained from Ms Kaka’s Second Affidavit and Mr Barbas’ Second Affidavit, the applicant notes by way of example Ms Kaka’s Second Affidavit, paras.25-32, 39-43, 49, 50-57, 61-63, 64-69, 70-75, 84-87, 88-90, 93, 93, 94, 95, 96-98, 99-101, 104-109, 110-113, 114-115, 116-118, 122-125, 126-141, 148-153, 154-156, 157-161, 157-161, 162-164, 165-167, 168-170, 171-173, 177-181, 182-184, 185-187, 188-190, 192-198, 202-204, 210-211, 213-214, 215-220, 222-223, 225-226, 227-228, 230-231,232-235 and 241-242.
iv)the findings of the IMR with respect to claims made by the applicant;
v)the IMR’s findings about the credibility of the applicant, namely, in rejecting the applicant’s claims that:
a.he suffered serious harm that threatened his capacity to subsist, including a lack of effective access to basic services such as education, proper housing, and health care, and recent changes (since his departure from Iran) to social security benefits and prices, which meant that conditions would be even more difficult on his return;[97]
[97] CB 204, 205 and 208 at paras.79, 80 and 85.
b.the applicant was not able to afford health care;[98]
[98] CB 205 at para.80.
c.the applicant and his family had regular contact with the Basij and were regularly beaten and detained by them and they faced being targeted by them in the future;[99]
[99] CB 205 at para.81.
d.the applicant was falsely reported to the authorities by his ex-girlfriend’s ex-husband who is Iranian for being affiliated with the Kurdish Resistance Party;[100]
[100] CB 206 at para.83.
e.the report alleged that two vendors that had stayed with the applicant and his family were part of the Kurdish Resistance Party;[101]
[101] CB 206 at para.83.
f.as a result of the report, the authorities came to the applicant’s family home looking to arrest him, and when he was not there, they arrested his father;[102]
[102] CB 206 and 207 at paras.83 and 85.
g.his father was held and is continuing to be held until the applicant hands himself in as the applicant is still wanted by the authorities;[103]
[103] CB 206 and 207 at paras.83 and 85.
h.the applicant will be arrested and harmed on his return to Iran because he has no documentation and because of the allegations made against him in respect of which he cannot get protection from the authorities;[104]
[104] CB 206 and 207 at paras.83 and 84.
i.the applicant’s family cannot secure his father’s release including through a bribe;[105]
[105] CB 206 at para.83.
j.the applicant would be targeted as a failed asylum seeker;[106]
[106] CB 207 at para.84.
k.the applicant and his family have paid bribes to prevent their deportation;[107] and
[107] CB 207 at para.85.
l.the harm the applicant will suffer is because he is an undocumented stateless person in Iran, or a Faili Kurd;[108]
[108] CB 207 and 208 at para.85.
e)during the IMR Interview, the applicant’s evidence advanced in relation to key claims being made by the applicant concerning his past experiences of serious harm and the risk of the applicant suffering serious harm in the future was misinterpreted by the interpreter;
f)the applicant and his family’s interaction with the Basij was inaccurately communicated to the IMR due to the interpretation issues described above:
i)the applicant did not refer at all to the use of alternative access roads in his hearing with the IMR which was an embellishment by the interpreter;[109]
[109] Ms Kaka’s Second Affidavit, paras.82-85.
ii)the applicant said that he and his family needed to use the roads which were the roads where identity checks would be done on a ‘monthly’ basis to get necessities, however this frequency was not translated by the interpreter;[110]
[110] Ms Kaka’s Second Affidavit, para.46.
iii)the applicant described how the Basij come for two days each week to the next village which is 10 to 15 minutes away from his village by foot, and blocked the roads which they say is for safety reasons. The applicant describes how he and his family try to avoid the road. This passage is incorrectly translated and embellished by the interpreter;[111]
[111] Ms Kaka’s Second Affidavit, paras.70-85.
iv)the applicant did not say that his father tried to buy more things on the occasion that he was beaten and robbed by the Basij so that he could avoid using the roads as frequently. The reference to avoiding using the roads as frequently was an embellishment by the interpreter;[112]
[112] Ms Kaka’s Second Affidavit, paras.86-87.
v)the applicant referred to his father having been beaten and robbed by the Basij two years ago, but the interpreter refers to this having occurred three years ago;[113]
[113] Ms Kaka’s Second Affidavit, paras.88-90.
vi)the applicant said that the authorities received the report from his ex-girlfriend’s ex-husband about him and that they sent people to arrest his father and had his people and the Basij everywhere. The applicant said that the authorities will act on the smallest issue or report and will take, harass and abuse them. This is incorrectly translated by the interpreter and references to the authorities and the Basij and abuse are not translated;[114]
[114] Ms Kaka’s Second Affidavit, paras.123-125.
vii)the applicant referred to the Basij as being a group who would question his illegal departure without documentation from Iran if he were to return, but the interpreter does not translate this;[115]
[115] Ms Kaka’s Second Affidavit, paras.169-170.
viii)the applicant referred to the Basij as being a group from whom he fears harm on his return to Iran, but this is not translated by the interpreter;[116]
[116] Ms Kaka’s Second Affidavit, paras.171-173.
ix)the applicant did not say that his family moved to his small village when they arrived in Iran because it was far from the government agencies or security officials. This is an embellishment by the interpreter;[117]
[117] Ms Kaka’s Second Affidavit, paras.188-190.
x)the applicant described weekly targeting by officials who came to his village on the pretext of raising funds for poor Iranians, and that they can take animals or whatever they want from him and his family by force, otherwise they would get into trouble because they have no documents. The interpreter failed to interpret that this occurs weekly, that things other than animals can be taken and that this occurs by force, failing which there would be consequences;[118] and
[118] Ms Kaka’s Second Affidavit , paras.209-214.
xi)the evidence advanced by the applicant, but misinterpreted, concerning the applicant and his family’s treatment at the hands of the Basij is also consistent with the applicant’s representative’s prior submissions upon which the applicant sought to rely and other past statements by the applicant;[119]
[119] CB 182 (Submissions dated 13 May 2011); Applicant’s March 2012 Affidavit, paras.47-48, Mr Barbas’ Second Affidavit, paras.9, 32 and 34; CB 48 (Statutory Declaration of the Applicant dated 27 August 2010); CB 90 (Submission dated 23 December 2010).
g)as a real and likely consequence of the matters set out in sub-paragraph (f) above, the IMR made negative findings described in paragraph 15(a), (c), (d), (h), (i), (j), (n) and (w) above and contributed to the negative findings set out in paragraph 15(t), (x), (y) and (z) above;
h)the applicant’s evidence in the IMR Interview concerning whether restrictions which applied to other non-citizens without identification including type of work, ability to own property, buy a car or have a driver’s licence directly impinged on the applicant’s everyday life were inaccurately communicated to the IMR:
i)the applicant did not state that his family is entitled to a percentage of the landowner’s income, but half or less of the profits of products of sheep or crops;[120]
[120] Ms Kaka’s Second Affidavit, paras.48 and 49.
ii)the applicant did not use the words “whatever we preferred” in describing how he and his family were paid by the landowner for their work, this was an embellishment by the interpreter that led to further questioning by the IMR during the IMR Interview;[121]
[121] Ms Kaka’s Second Affidavit, paras.50-57.
iii)the applicant identified the fact that he is not Iranian as a reason why he and his family receive less when trying to sell crops, but this was not translated by the interpreter;[122]
[122] Ms Kaka’s Second Affidavit, paras.55-57.
iv)the applicant described how landowners had proper houses but that his family did not because they could not own land or a house, but this is embellished and incorrectly communicated by the interpreter;[123] and
[123] Ms Kaka’s Second Affidavit, paras.64-69.
v)the applicant stated that he did not have the right to any work in Iran as a Faili Kurd, or to have a licence or get married, or do the most basic things, but this was not translated or was otherwise translated inaccurately by the interpreter;[124]
[124] Ms Kaka’s Second Affidavit, paras.224-226.
vi)further, the IMR’s findings in paragraph 15(b) above are directly contrary to the following evidence of the applicant:
a.many times he and his family went hungry and would sleep in wet clothing, and he was exposed to freezing and hot conditions;[125]
[125] Mr Barbas’ Second Affidavit, pp10-13.
b.he was not able to drive a car or have a driver’s licence;[126]
[126] Mr Barbas’ Second Affidavit, pp.10-13.
c.he and his family had to live in hiding and travel in and out of his village under cover;[127]
[127] Mr Barbas’ Second Affidavit, pp.10, 13, 14, 16 and 25.
d.the authorities would patrol his village to take things from him and his family because they were undocumented on the pretext of collecting money for poor Iranians;[128]
[128] Mr Barbas’ Second Affidavit, p.28.
e.he and his family were unable to own property;[129]
[129] Mr Barbas’ Second Affidavit, p.13.
f.he and his family were unable to get an education at a public school, as he could only obtain some instruction in reading and writing from a local land owner;[130]
[130] Mr Barbas’ Second Affidavit, pp.14 and 15.
g.he was unable to marry legally;[131]
[131] Mr Barbas’ Second Affidavit, pp.16 and 17.
h.he was unable to obtain citizenship;[132]
[132] Mr Barbas’ Second Affidavit, pp.30-31.
i.he was unable to leave and return to Iran legally;[133]
[133] Mr Barbas’ Second Affidavit, pp.24-25.
j.there was a significant increase in prices for necessities for him and his family since Ahmadinejad came to power, without social security benefits, and this has worsened since his departure from Iran;[134]
[134] Mr Barbas’ Second Affidavit, p.32.
k.he lived in a shack with his family, some stone walls with some grasses on the roof, which belonged to an Iranian land owner;[135]
[135] Mr Barbas’ Second Affidavit, p.13.
l.the lack of access to public medical facilities and insurance, with private medical cover being too expensive;[136]
[136] Mr Barbas’ Second Affidavit, pp.28-29.
m.his inability to source chemicals for his farming affordably;[137] and
[137] Mr Barbas’ Second Affidavit, p.32.
n.his and his father’s inability to access the protection of the authorities when false accusations were made against him and his family, and his father was arrested;[138]
[138] Mr Barbas’ Second Affidavit, pp.17-23.
i)as a real and likely consequence of the matters set out in sub-paragraph (h) above, the IMR made the negative findings described in paragraph 15(b) above, and contributed to the negative findings set out in paragraph 15(e), (j), (k), (l) and (z) above;
j)further and alternatively to sub-paragraph (d) above, the errors in interpretation contributed to an erroneous view on the part of the IMR that the applicant’s ex-girlfriend’s ex-husband had waited one and half years to exact revenge for his marriage break up:
i)the applicant asserted that:
a.his ex-girlfriend was married to her current ex-husband a year and a half before his departure from Iran and they were married for a year before they divorced;[139]
[139] Ms Kaka’s Second Affidavit, paras.126-141; Applicant’s March 2012 Affidavit, paras.55-58.
b.the applicant was accused of causing the marriage break up;[140] and
[140] Mr Barbas’ Second Affidavit, pp.16, 17 and 20-22; Ms Kaka’s Second Affidavit, para.92.
c.his father had been arrested approximately sixteen months prior to the date of the IMR Interview (which would have been around January 2010);[141]
[141] Ms Kaka’s Second Affidavit, paras.104-109.
ii)on this basis, the applicant’s father was arrested shortly (approximately two months) after his ex-girlfriend divorced her ex-husband;
iii)the confusion and ambiguity in interpretation concerning these timeframes is apparent in paragraphs 104 to 109, 126 to 141, and 191 to 196 of Ms Kaka’s Second Affidavit; and
iv)this contributed to the erroneous assertion by the IMR concerning the period of time between the marriage break up and the applicant’s father’s arrest;
k)this erroneous assertion forms a material basis for the IMR’s adverse findings set out in paragraph 15(o) above, and contributed to the negative findings set out in paragraph 15(r), (t), (v), (y) and (z) above;
l)further and alternatively to sub-paragraph (d) above, the applicant’s evidence in his hearing with the IMR Interview as to his and his family’s access to health care was inaccurately communicated to the IMR:
i)in describing the applicant’s family’s health issues and lack of access to health care, the applicant notes that his mother, after she haemorrhaged and lost her child, was not able to work properly or hear properly, and that his hands had become “not normal” since he broke them six years prior. These continuing health issues were not communicated, or were incorrectly interpreted, by the interpreter to the IMR;[142]
ii)in describing the cost of private health care, the applicant indicated that the cost for taking his mother to a private hospital was 2 to 3 million toman, and that since the changes to social security were introduced after his departure from Iran, what used to cost 2,000 toman had risen to 15,000 toman for Kurdish Failis. This is incorrectly interpreted to the IMR, and the scale of the changes to social security are incorrectly described as having only doubled (from 1,000 toman to 2,000 toman) since the applicant’s departure from Iran;[143] and
iii)had the evidence of the applicant been accurately communicated, the applicant contends that it was likely that the continuation of health concerns for the applicant and his mother, and the materiality of the price increases since his departure, would have led to further questions concerning access to health care. In response to questions concerning health care, the applicant would have provided further evidence to the IMR, including to the effect contained in the Applicant’s March 2012 Affidavit at paragraphs 49-54;
m)as a real and likely consequence of the matters set out in sub-paragraph (l) above, the IMR made the negative findings described in paragraphs 15(f) and (g) above, and contributed to the negative findings set out in paragraphs 15(j), (k), (l), (t), (y) and (z) above.
[142] Ms Kaka’s Second Affidavit, paras.215-221.
[143] Ms Kaka’s Second Affidavit, paras.221-223.

Translation and interpretation issues – applicable law

With respect to translation and interpretation issues the applicant submitted that the applicable law was as follows:
a)a fair hearing requires an applicant to be provided with an interpreter, and in the absence of an interpreter an independent merits reviewer will lack jurisdiction to conduct the hearing, and will have denied the applicant procedural fairness. This also applies where an independent merits reviewer fails to provide a competent interpreter to assist a non-English speaking applicant;
b)in Perera v Minister for Immigration & Multicultural Affairs,[144] the Federal Court made the following findings in relation to a decision of the Refugee Review Tribunal:[145]
[144] (1999) 92 FCR 6; [1999] FCA 507 (“Perera”).
[145] “Tribunal”.
i)a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground of review within s.476 of the Migration Act;
ii)a failure by the Tribunal to provide an interpreter to a non-English speaking applicant means that the Tribunal does not have the jurisdiction to conduct the hearing;[146]
[146] Perera FCR at 17 per Kenny J; FCA at para 21 per Kenny J.
iii)the role of an interpreter is to “place the non-English speaker as nearly as possible in the same position as an English speaker…to remove any barriers which prevent or impede understanding or communication”;[147]
[147] Perera FCR at 18 per Kenny J; FCA at para.24 per Kenny J.
iv)“[i]nterpreting reliably involves technical skill and expert judgment”;[148]
[148] Perera FCR at 18 per Kenny J; FCA at para.25 per Kenny J.
v)the standard of interpreting required is subject to criteria of “continuity, precision, impartiality, competency and contemporaneousness” and a summary of what is said or omitting passages of what is said is not acceptable;[149]
[149] Perera FCR at 18-19 per Kenny J; FCA at para.28 per Kenny J.
vi)the interpreter must “express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”;[150]
[150] Perera FCR at 19 per Kenny J; FCA at para.29 per Kenny J.
vii)whether an applicant requires an interpreter affects the assessment of the competence of the interpretation. Where an applicant has knowledge of English but would not be sufficiently capable of giving evidence before a Tribunal in support of an application, the need for competent interpretation still arises. This is particularly the case in the stressful circumstances of appearing at a hearing in the context of a refuge application and its implications for the applicant’s future prospects;[151]
[151] Perera FCR at 20-21 per Kenny J; FCA at paras.34-35 per Kenny J.
viii)whether or not the applicant was able to give evidence is a matter upon which the Tribunal’s jurisdiction to conduct the hearing depended, and the Tribunal’s opinion about the adequacy of the interpretation is not conclusive of the matter;[152]
ix)the relevant question is whether the interpretation was so incompetent as to have effectively prevented an applicant from giving evidence;[153]
x)issues relevant to this question include whether the applicant appeared to be unresponsive to interpreted answers to questions asked, whether those answers were coherent and consistent and whether there was evident confusion in exchanges between the interpreter and the Tribunal.[154] The timeliness of the applicant’s complaint was also relevant;[155]
xi)it was possible to infer from the transcript, without the availability of expert evidence from another interpreter, that the standard of interpretation was not met;[156]
xii)the departure from the standard of interpretation “must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”, and it must relate to the proceedings and not be merely administrative or collateral in nature;[157] and
xiii)a relevant departure from the required standard of interpretation is sufficient to establish prejudice caused to the applicant, however further prejudice can also be shown where findings concerning an applicant’s lack of credit are also material to the Tribunal’s decision. The incompetent interpretation thus can form the context for negative credibility findings upon which a Tribunal decides to reject an applicant’s claims. “A witness whose answers appear to be unresponsive, incoherent or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness”;[158]
c)the Full Court of the Federal Court of Australia in WALN v Minister for Immigration & Multicultural & Indigenous Affairs[159] found that the appellant must establish that “errors had in occurred in translation which were so material as to cause the decision making process to miscarry”;[160]
d)in SZGYM v Minister for Immigration and Citizenship & Anor,[161] the Federal Court considered circumstances involving an applicant and interpreter who raised concerns with a Tribunal member at the commencement of a hearing on the basis that the dialect spoken was not the dialect spoken by the applicant. While the applicant ultimately agreed to proceed with the interpreter, and was invited by the Tribunal to request that questions be repeated or to raise any issues with interpreting during the hearing as they arose, the Court found that the Tribunal was obliged, once the interpreting issues were raised, to order an adjournment of the hearing to facilitate the provision of an interpreter that spoke the applicant’s dialect. The Court further noted that it would not be possible for the interpreter or the applicant to raise issues concerning interpreting during the hearing due to the lack of comprehension between them. Accordingly, the Court found that there was a denial of procedural fairness by the failure of the Tribunal to provide a fair hearing;[162] and
e)the applicant submits that the principles set out above concerning translation and interpreting issues as forming the basis of a ground of review, while predominantly discussed in the context of hearings before the Tribunal, are also applicable to hearings conducted for the purposes of an independent merits review of a refugee status assessment as they are consistent with common law duties described in Plaintiff M61.
[152] Perera FCR at 21-22 per Kenny J; FCA at para.37 per Kenny J.
[153] Perera FCR at 22 per Kenny J; FCA at para.38 per Kenny J.
[154] Perera FCR at 22 per Kenny J; FCA at para.41 per Kenny J.
[155] Perera FCR at 23 per Kenny J; FCA at para.43 per Kenny J.
[156] Perera FCR at 22 per Kenny J; FCA at para.38 per Kenny J.
[157] Perera FCR at 23-24 per Kenny J; FCA at para.45 per Kenny J.
[158] Perera FCR at 23-25 per Kenny J; FCA at paras.45, 47 and 49 per Kenny J.
[159] [2006] FCAFC 131 (“WALN”).
[160] WALN at para.29 per Ryan J.
[161] [2007] FCA 1923 (“SZGYM”).
[162] SZGYM at paras.36 and 37 per Graham J.

Conclusions contended for by the applicant regarding Ground 1

The applicant contended that the Court ought to draw the following conclusions in relation to ground 1:
a)the applicant was a non-English speaking person who requested a Kurdish Faili interpreter for the IMR Interview;
b)the IMR failed to provide the applicant with an interpreter who spoke the dialect of the applicant, including when the IMR was put on notice early in the IMR Interview that interpreting issues had arisen;
c)two of the languages spoken by the interpreter, Kurdish Kurmanji and Kurdish Sorani were not spoken by the applicant at all and the third language, Farsi, was a language the applicant only knew in a limited way and not fluently;
d)the role of the interpreter was critical to the communication to the applicant of the questions being put by the IMR and the responses provided by the applicant to the IMR;
e)while invited to alert the IMR to issues with interpreting that arose during the IMR Interview, the applicant was not capable of ascertaining whether the content of his responses was being faithfully communicated to the IMR or whether the content of the questions being communicated to him by the interpreter was consistent with the questions asked by the IMR;
f)while the applicant ultimately agreed to proceed, the interpreting issues persisted and the applicant indicated that he was concerned about delays to the IMR Interview prolonging his detention;[163]
g)the inaccuracies and misinterpretation by the interpreter, considered individually and cumulatively, during the IMR Interview effectively prevented the applicant from presenting evidence concerning matters which were material to his claims;
h)the inaccuracies and misinterpretation, considered individually and cumulatively, also led to negative credibility findings by the IMR in relation to claims by the applicant; and
i)these errors ultimately led to adverse findings against the applicant that were central to the IMR Recommendation that the applicant was not a person to whom Australia owed protection obligations;
j)as a result of the foregoing, the IMR committed jurisdictional error in that the IMR:
i)failed to discharge the IMR’s statutory and common law duties to provide the applicant with a fair IMR Interview; and
ii)denied procedural fairness to the applicant by failing to enable the applicant to fully understand the questions being put to him and to provide a reply that would be accurately communicated to the IMR by the interpreter; and
k)the above conclusions are consistent with the applicable law described in paragraph 18 above.
[163] This is confirmed by the Applicant’s May 2012 Affidavit, para.6 onwards.

Minister’s submissions

The Minister submits that:
a)it is accepted that the assessment and review conducted by an independent merits reviewer must be procedurally fair, and must address the relevant legal question or questions;[164]
[164] Plaintiff M61 CLR at 353 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.77 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
b)it is also accepted that interpreting errors during a hearing conducted by an independent merits reviewer may result in the applicant for refugee status being denied procedural fairness. To establish jurisdictional error on the basis of interpreter error or the standard of interpretation it must be shown that the standard of interpretation was so incompetent that the applicant was prevented from giving evidence, or that errors in the interpretation were material to the decision-maker or tribunal’s decision;[165]
[165] SZOYU v Minister for Immigration & Anor [2012] FMCA 316 at para.62 per Barnes FM.
c)the interpreting errors which occurred here, however, as identified in the Ms Kaka’s Second Affidavit were not such as to result in a denial of procedural fairness to the applicant. It could not be said that viewed in its entirety the standard of interpretation was so incompetent that the applicant was prevented from giving his evidence;
d)further, having regard to the IMR’s findings and reasons,[166] and the IMR’s post-IMR Interview invitation to the applicant to comment on certain information and the applicant’s response to that invitation, any errors of interpretation were not material to the IMR Recommendation;
[166] CB 202-208 at paras.70-88.
e)the IMR was very conscious of the need to ensure that the applicant was able to continue with the interpreter who had been engaged for the IMR Interview. At pages 7 and 8 of the transcript,[167] the IMR made the following statements:
[167] See Mr Barbas’ Second Affidavit Annexure FB2-1.
I think it's very important before we commence this interview to be absolutely certain …[Applicant] that you feel you can be understood by this interpreter.
and later:
…[Applicant], the top priority is that you are happy with the interpreting. That is the most important because this is a very important time.
f)finally, after querying whether the applicant wanted to continue the IMR stated:
Well what we could do is we could commence the hearing but the moment …[Applicant], you feel that you are not able to communicate using this interpreter, please do not hesitate, raise one of your hands like this and we will then seek to address this concern if it becomes a concern.
…
But you must be very sure that if there is any, any confusion at all about the language that you raise your hand and, and tell me that there is a problem. We don’t want a situation, Mr Interpreter, where you go through the interview and then at the end of the interview you say ‘There were some problems’. You must tell us if … immediately a problem arises.
g)it is possible that the interpretation may have resulted in the IMR having a misunderstanding as to the applicant’s response to her question concerning the impact on him and his family when the Basij come and blocked the road at the nearby village,[168] however, the IMR sought further comment from the applicant in relation to the information as interpreted, and in particular advised the applicant that it was relevant:
because the evidence provided at your IMR interview does not support the claims in your other evidence that you lived in constant fear of the Basij and, that your father and siblings were detained by the Basij on regular occasions and beaten and tortured.[169]
h)accordingly, the applicant had full opportunity to make comments in relation to the interpreter’s interpretation of his evidence on this issue at the IMR Interview before the IMR, and the IMR’s view that this evidence did not support the applicant’s earlier evidence that he had lived in constant fear of the Basij, and that his father and siblings had been detained by the Basij on regular occasions and beaten and tortured;[170]
i)the applicant’s migration agent subsequently provided a response to the IMR on this issue by letter dated 19 July 2011.[171] The Applicant’s July 2011 Submission at paragraphs 12 and 13 stated that the applicant and members of his family were stopped on numerous occasions by the Basij, and that on most occasions they were able to avoid serious consequences by paying a bribe, but that on one occasion his father was seriously assaulted by the Basij. This was said to be consistent with the applicant’s evidence, which is then quoted, and which is consistent with the applicant’s evidence as interpreted. Paragraph 12 of the response then states that “To the extent that our submissions at [2.8] are inconsistent with the evidence our client has provided, they should be disregarded” [emphasis added].[172] This was a reference to the claim at page 2 of the migration agent’s submissions dated 13 May 2011,[173] that “[the applicant], his father, and his siblings were detained by the Basij on numerous occasions; they were beaten and tortured, with their possessions confiscated.” Accordingly, the applicant must be taken to have abandoned his claim that he and his father and siblings were detained by the Basij on numerous occasions and beaten and tortured, apart from the one instance when his father was assaulted by the Basij three years ago; and
j)the IMR clearly had regard to the Applicant’s July 2011 Submission regarding the Basij,[174] and in light of that submission she accepted the applicant’s account at the hearing of his and his family’s dealings with the Basij, and concluded that he and his family had minimal dealings with the Basij or any other authorities. This finding was clearly open to the IMR having regard to the applicant’s evidence at the hearing, the IMR’s post-hearing invitation, and the applicant’s response through his migration agent.
[168] Mr Barbas’ Second Affidavit, Annexure FB2-1, page 14; Ms Kaka's Second Affidavit, paras.82-90.
[169] CB 164-165.
[170] CB 49 - applicant’s statutory declaration, paras.18-20; CB 132 - migration agent’s submissions.
[171] “Applicant’s July 2011 Submission”.
[172] CB 183.
[173] CB 132.
[174] CB 205 at para.81.

Consideration – ground 1

The applicant was entitled to have an interpreter who could interpret from the applicant's native language, in this case Faili Kurd, or some other language in which the applicant was fluent, into English, and, just as importantly, from English back into Faili Kurd, and to a competent standard. If it is not a competent standard then the object of having an interpreter fails, not just because the applicant’s evidence is not interpreted to a competent standard, and the applicant may be unable to raise issues, but also because what is said by, in this case, the IMR, may not be put properly, or at all, to the applicant.[175]
[175] Perera FCR at 17-25 per Kenny J; FCA at paras.21, 24-25, 28-29, 34-35, 37-38, 41, 43, 45, 47 and 49 per Kenny J; SZGYM at paras.36-37 per Graham J.
It is clear:
a)that the interpreter did not tell the IMR that the applicant had said that the interpreter was not interpreting back to the applicant in Faili Kurdish;[176]
b)that although the applicant had said that the interpreter could put into Farsi (or Persian) any words that the applicant did not understand, the interpreter embellishes this by saying that the applicant had said that he would “ have no problem with it” if that were done, when the applicant did not say that;[177]
c)the interpreter did not interpret the applicants further request for the IMR to obtain a Faili Kurdish “speaker” (that is, interpreter), ignoring that request in the interpretation, but saying to the IMR that the applicant had waited a long time for his IMR Interview and that it was hard to get the IMR Interview, and then saying that the applicant had said “It’s also important for me not to miss that [the IMR interview] as well", when the applicant did not say that at all;[178]
d)the interpreter either did not translate or mistranslated, a further request by the applicant for a Faili Kurdish interpreter;[179]
e)from Ms Kaka’s Second Affidavit that:
i)the interpreter did not speak Faili Kurdish at all; and
ii)the interpreter's interpretation of the IMR’s spoken English was being relayed to the applicant, not in Faili Kurd, but in a mix of at least two other Kurdish dialects, neither of which the applicant was fluent in, as well as Persian (Farsi), in which the applicant was also not fluent, and that for a person fluent in Faili Kurdish this would have been very difficult to understand.[180]
[176] Ms Kaka’s Second Affidavit, para.17.
[177] Ms Kaka’s Second Affidavit, para.18.
[178] Ms Kaka’s Second Affidavit, paras.21-23.
[179] Ms Kaka’s Second Affidavit, paras.25-28.
[180] Ms Kaka’s Second Affidavit, paras.7-9
The applicant was denied procedural fairness from the outset because he did not have an interpreter who understood and was able to interpret from his native language Faili Kurd into English. The applicant was further denied procedural fairness because:
a)the fact that the interpreter did not speak Faili Kurd at all was not made known, properly or at all, to the IMR; and
b)the applicant’s request for an interpreter who spoke Faili Kurd was not conveyed in terms to the IMR.
It is not material that the applicant agreed to proceed without a Faili Kurd interpreter. The applicant was entitled to “the provision of an interpreter who could make himself understood in the …[applicant’s] own dialect.”[181] That finding in SZGYM, and the principles expressed in Perera, by the Federal Court are binding on this Court.[182] The applicant’s request to have that entitlement met was not conveyed, or at least not conveyed properly, to the IMR by the interpreter, and the applicant was consequently not afforded procedural fairness by reason of not having an interpreter who spoke Faili Kurdish.
[181] SZGYM at para.37 per Graham J.
[182] Suh & Ors v Minister for Immigration & Citizenship & Anor (2009) 175 FCR 515 at 522 per Spender, Buchanan and Perram JJ; [2009] FCAFC 42 at para.29 per Spender, Buchanan and Perram JJ.

There is no dispute that the interpretation errors identified in Ms Kaka’s Second Affidavit were made. There is no evidence to the contrary and there was no application to cross-examine Ms Kaka on the Second Affidavit, or at all. The litany of errors set out in Ms Kaka’s Second Affidavit affect almost every matter interpreted at the IMR Interview, large and small, relevant and irrelevant. They cover matters that are:
a)misinterpreted,
b)not interpreted at all, and
c)embellished in the interpretation,
as set out in the applicant’s submission above.
In the circumstances, it is fair to conclude that the errors in the interpretation were prejudicial to the applicant because:
a)the errors were so many and so manifest that there was no, or no proper, interpretation at all; and
b)the interpretation did not accurately convey to the IMR what was actually said by the applicant in respect of any of the issues material to the matters to be determined by the IMR,
and the applicant was thereby denied the opportunity to put his evidence before the IMR, and to be heard in respect of the case the applicant actually wished to put before the IMR, thereby denying the applicant procedural fairness.
The Court is also of the view that in considering issues of significance to the claim the interpretation errors (using that phrase to incorporate misinterpretations, no interpretation and embellishments to interpretation) caused the proceedings before the IMR to miscarry because the IMR did not consider critical evidence given on issues of significance at the IMR Interview, and was misinformed as to other evidence. Examples include the IMR’s conclusions:
a)that the applicant and his family lived a life largely unhindered by the absence of identity documents;[183]
b)that the evidence did not support claims that the applicant’s father and siblings were regularly detained, beaten and tortured by the Basij;[184] and
c)that the evidence at the IMR Interview, which the IMR accepted, indicates that the only contact that the family had with the Basij was three years previously when the father was stopped, bashed and robbed by the Basij, and that thereafter the family avoided the Basij by using another road into their village, and that given those facts there was no evidence that the applicant would be targeted by the Basij in the future.[185]
[183] CB 204 at para.79.
[184] CB 204-205 at paras.79 and 81.
[185] CB 204-205 at paras.79 and 81.
The above conclusions formed the basis, in large part, for the IMR’s conclusion that the applicant did not have a fear of future persecution in Iran as an undocumented Faili Kurd.[186]
[186] CB 204-205 at paras.77-81.
The above findings also flowed over into the IMR’s conclusion that the applicant had no fear of persecution on the basis of an imputed political profile,[187] the IMR observing that:
Although the claimant and his family had no ID they had no history of any past political problems with the Basij or other government authorities.[188]
[187] CB206-207 at para.83.
[188] CB 206 at para.83.
The evidence at the IMR Interview was, when correctly interpreted, as follows:
a)that the applicant did not refer at all to the use of alternative roads to access his village, and that this was an embellishment by the interpreter;[189]
b)that the applicant's family needed to use the roads on which identity checks were carried out by the Basij on a monthly basis when they travelled to obtain necessities, and that the frequency of this travel was not interpreted by the interpreter;[190]
c)that there was a weekly targeting of the applicant and his family by government officials who came to the village on the pretext of raising funds for poor Iranians, but who took animals and other possessions belonging to the family by force and by reason of the family being undocumented, and that the interpreter failed to interpret that this occurred weekly, and by force, and that possessions other than animals were taken, and that there were consequences (inferentially adverse) for failure to accede to the government officials’ demands;[191] and
d)that the beating and robbing of the father occurred two years, and not three years, previously.[192]
[189] Ms Kaka’s Second Affidavit, paras.82-85.
[190] Ms Kaka’s Second Affidavit, para.46.
[191] Ms Kaka’s Second Affidavit, paras.209-214.
[192] Ms Kaka’s Second Affidavit, paras.88-90.
The above matters were not considered by the IMR in determining whether or not the applicant had a well founded fear of future persecution in Iran as an undocumented Faili Kurd or because of his imputed political profile. Consistent with authority the IMR had determined those matters, at least in part, on the basis of past events which gave some indication as to the likely course of future events if the applicant was returned to Iran.[193] The applicant was, however, prejudiced in this regard by the interpretation errors. By reason of the interpretation errors the above evidence did not come to the IMR's attention as part of the IMR interview. But for the interpretation errors, the above evidence which went directly to relevant considerations would have been before the IMR for consideration. The evidence " as presented at the IMR interview”[194] was particularly relevant to those issues associated with the interaction between the Basij and the applicant and his family. It was prejudicial to the applicant for that evidence not to be before the IMR as part of the IMR interview process to which the IMR had regard in formulating the IMR's conclusions. The evidence which did not come to the attention of the IMR as a consequence of the interpretation errors was evidence relevant to a proper consideration of the applicants fear of future persecution, particularly on the basis of his being an undocumented Faili Kurd, and perhaps less so, on the basis of his imputed political profile, but nevertheless, on both bases, the exclusion of the evidence was to the prejudice of the applicant.
[193] Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 572 and 575 per Brannan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[194] CB 205 at para.81
The Minister’s submitted that the applicant had abandoned his claim with respect to Basij detention, beating and torture of his father and siblings on numerous occasions. The Court does not accept that that claim was abandoned. All that the applicant’s migration agents suggested in their written submissions with respect to these matters was that their written submissions ought to be disregarded where they were inconsistent with the evidence actually given by the applicant. That evidence was the evidence which, unbeknown to the IMR and the applicant, contained interpretation errors, but which did, in fact, support claims made by the applicant with respect to the treatment of his family by the Basij. At the time those submissions were made by the applicant’s migration agents there was nothing to suggest that there were interpretation errors of the kind subsequently discovered, as opposed to possible errors by the IMR in the interpretation of the incorrectly interpreted evidence. In any event, the IMR ultimately relied upon the evidence presented at the IMR Interview, which had been incorrectly interpreted.[195]
[195] See para.31 and fn.194 above.
In all the above circumstances the Court is of the view that ground 1 of the applicant’s grounds is made out, because the applicant was denied procedural fairness by reason of:
a)not being afforded access to a Faili Kurd interpreter:
i)at the outset of the IMR Interview, and
ii)upon request during the IMR Interview; and
b)the interpretation errors, especially as they related to the IMR’s conclusions with respect to the applicant’s fear of future persecution,
and there was, therefore, an error warranting relief in the terms sought by the applicant.

Ground 2

Ground 2 is as follows:
2.1    The Second Respondent made adverse findings that the Applicant’s father had never been arrested on the Applicant’s behalf and was being held pending the Applicant’s return when he would be arrested (see Court Book 206, paragraph [83] and Court Book 207, paragraph 84).
2.2    The Applicant described his father’s arrest and continued detention on his behalf due to false reports made against him by his ex-girlfriend’s ex-husband, and his fear that he would be arrested on his return to Iran (Annexure FB2-1 pages 18 to 22 of Barbas IMR Affidavit). When the Second Respondent queried the consistency of this evidence with evidence advanced in past interviews attended by the Applicant, the Applicant requested that the Second Respondent consider the tapes of past interviews attended by him (Annexure FB2-1 pages 22 of Barbas IMR Affidavit).
2.3    The Applicant reasonably believed that the Second Respondent would consider the past statements made by the Applicant during his past interviews with the Department of Immigration contained on the tape recordings of those interviews. (See … [Applicant’s] March Affidavit at paragraph [44] and transcript of previous Refugee Status Assessment (RSA) interview on 30 August 2010 annexed to the Affidavit No.1 of Frideriki Barbas sworn on 26 April 2012 (Barbas RSA Affidavit) and Affidavit of Fermesk Kaka sworn on 30 April 2012 (Kaka RSA Affidavit).) At no time did the Second Respondent indicate that she would not have regard to the tape recordings of the past interviews with the Department of Immigration including the RSA interview.
2.4    The reasons and decision of the Second Respondent (Court Book at 189) do not disclose that the Second Respondent had listened or had any regard to the tape recording of the RSA interview.
2.5    By reason of the matters set out in grounds 2.1 to 2.4, the Second Respondent ignored and failed to have regard to relevant material which were jurisdictional facts and thereby committed jurisdictional error.

Applicant’s submissions

The IMR ignored or failed to have regard to relevant material comprising past tape recordings of interviews attended by the applicant, which the applicant expressly relied upon in the IMR Interview in support of his claim concerning the arrest of his father on his behalf, and the risk of his arrest on return to Iran. This material comprised jurisdictional facts due to the central nature of the IMR’s adverse finding concerning the applicant’s father’s arrest on his behalf and the risk of his arrest on return to Iran to the recommendation that the applicant was not a person to whom Australia owed protection obligations.
The applicant submits that:
a)the IMR made adverse findings that the applicant’s father had never been arrested on the applicant’s behalf and was being held pending the applicant’s return when he would be arrested;[196]
[196] CB 206 at para.83; CB 207 at para.207.
b)the applicant described his father’s arrest and continued detention on his behalf due to false reports made against him by his ex-girlfriend’s ex-husband, and his fear that he would be arrested on his return to Iran.[197] When the IMR queried the consistency of this evidence with evidence advanced in past interviews attended by the applicant, the applicant requested that the IMR consider the tapes of past interviews attended by him;[198]
[197] Mr Barbas’ Second Affidavit, Annexure FB2-1 at pp.18 to 22.
[198] Mr Barbas’ Second Affidavit, Annexure FB2-1 at p.22.
c)the applicant reasonably believed that the IMR would consider the past statements made by the applicant during his past interviews with the Department contained on the tape recordings of those interviews.[199] At no time did the IMR indicate that she would not have regard to the tape recordings of the past interviews with the Department, including the RSA Interview;
[199] Applicant’s May 2012 Affidavit, para.44; transcript of previous RSA interview on 30 August 2010 annexed to Mr Barbas’ Affidavit and Ms Kaka’s Affidavit.
d)the transcript of the RSA Interview corroborates the applicant’s evidence concerning his father’s arrest and continued detention on his behalf, due to reports made against him by his ex-girlfriend’s ex-husband, and the risk of his arrest on his return for that reason;[200]
[200] Mr Barbas’ Affidavit, pp.13-18 and 21; Ms Kaka’s Affidavit, paras.11, 17, 20, 23, 26-75 and 78-92.
e)the transcript of the RSA Interview provides additional detail concerning these matters as follows:
i)both the applicant and his family members were abused by the ex-girlfriend’s family and the ex-husband, prior to his father’s arrest on his behalf;[201]
[201] Mr Barbas’ Affidavit, p.14.
ii)the time period between the applicant’s father’s arrest and the separation of his ex-girlfriend and her husband was a matter of months;[202]
[202] Mr Barbas’ Affidavit, p.14.
iii)the ex-girlfriend’s ex-husband stated to the applicant that he knew people in the Basij and Sepah and could make trouble for him before his father’s arrest;[203]
[203] Mr Barbas’ Affidavit, p.16.
iv)the applicant had learned through his family friend that his father had been taken to Ilam jail, he had recently called his uncle’s son-in-law to confirm that his father remained in Ilam jail, and this family friend was the one his family usually contacted for news of his father;[204] and
[204] Mr Barbas’ Affidavit, p.16 and 18.
v)the applicant was afraid to make contact to find out about his father’s situation too often for fear of being found out by the authorities;[205]
[205] Mr Barbas’ Affidavit, p.17.
f)the IMR Recommendation[206] does not disclose that the IMR listened or had any regard to the recording of the RSA Interview;
[206] CB 189.
g)while the RSA Interview is referred to in the IMR Recommendation,[207] it is with reference to the matters contained in the record of the RSA Decision,[208] not the recording of the RSA Interview;
[207] CB 194 at para.20-21.
[208] CB 108-109.
h)the findings of the IMR concerning the applicant’s father’s arrest and continued detention on his behalf, due to reports made against him by his ex-girlfriend’s ex-husband, were central to the IMR’s ultimate recommendation that the applicant was not a person to whom Australia owed protection obligations;
i)the IMR was obliged to consider the recordings of past interviews, including the RSA interview, as they:
i)concerned central aspects of the claim made by the applicant concerning his father’s arrest and continued detention on his behalf, due to reports made against him by his ex-girlfriend’s ex-husband;
ii)corroborated and provided further detail in relation to the claim;
iii)impacted upon the IMR’s assessment of the credibility of the applicant and the claim; and
iv)resulted in, or materially contributed to, the adverse findings of the IMR;
j)the obligation of the IMR to have regard to relevant evidence of this nature before making any determination as to the applicant’s credibility in relation to his associated claim made is supported by authority;[209]
k)a failure by the IMR to take into account relevant material which comprised an integer of the applicant’s claim, and thereby make a decision without having considered the claim as put by the applicant, constitutes a failure to exercise jurisdiction by the IMR;[210] and
l)the IMR fell into jurisdictional error by ignoring or failing to have regard to relevant material comprising the recordings of past interviews attended by the applicant, upon which the applicant sought to rely during the hearing, and which comprised jurisdictional facts that went to an integer of the applicant’s claim concerning his father’s arrest and detention on his behalf due to reports made against him by his ex-girlfriend’s ex-husband.
[209] Including: VAAD & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] FCAFC 117 at para.77 per Hill, Sundberg and Stone JJ; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at para.27 per Lee and Moore JJ; WAHP v Minister for Immigration & Multicultural & Indigenous Affairs 2004] FCAFC 87 at para.30 per Lee J.
[210] SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 at para.29 per Madgwick and Conti JJ.

Minister’s submissions

The Minister submits that:
a)there is no evidence to support this ground of review. The fact that the IMR Recommendation does not specifically state that he listened to the RSA Interview tape does not mean that he did not do so;
b)the IMR’s conclusion that she could find no plausible evidence to support the applicant’s claim that his harassment by the Iranian girl’s ex-husband resulting in the ex-husband convincing authorities to try and arrest his father in place of the applicant on suspicion of being a supporter of the pro Kurdish movement, was based upon the five reasons which the IMR set out.[211] None of the five reasons identified by the IMR included the reason that the IMR drew any adverse inference from a finding that the applicant did not advise of these problems caused by the Iranian girl’s ex-husband when he was interviewed after first arriving in Australia; and
c)even if the IMR did not listen to the RSA Interview tape, that failure was not material to the IMR Recommendation; and
d)the fact that the IMR raised this possible inconsistency issue during the hearing, but did not rely on any such inconsistency in the reasons for not accepting the claim that the applicant’s father was arrested and continued to be detained, strongly suggests that the IMR did listen to tape of the RSA Interview, and accepted that the applicant had made this claim previously.
[211] CB 206 at para.83.

Consideration – ground 2

In the Court’s view there is no evidence that the IMR did not consider the RSA Interview tape. The factual basis for this ground is not made out, and therefore, the ground must fail.
In any event, the IMR did consider the issues raised by the applicant as to his father's arrest, but at best for the applicant did not have regard to the evidence of the RSA Interview tape. That is not a failure to consider the claim as put, but rather a failure to consider some evidence in relation to that claim. Further, even if the IMR had not listened to the RSA Interview tape, or listened to it to and not considered it further, that is not a failure to consider the relevant matter, or to have regard to a relevant consideration. The applicant’s submissions involve a confusion of the notion of relevant and irrelevant considerations with particular pieces of evidence, which it is important not to confuse. In Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs[212] the Full Court of the Federal Court drew attention to the necessity not to confuse “taking into account relevant considerations with taking into account particular pieces of evidence.”[213] The Full Court went on to observe that the relevant consideration to be taken into account was what might happen to the appellants if they were returned to China.[214] The distinction highlighted by Li Shi Ping was referred to in Xie v The Minister for Immigration and Ethnic Affairs[215] where the Federal Court identified the primary relevant considerations as being “those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.”[216]
[212] (1994) 35 ALD 225 (“Li Shi Ping”).
[213] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed).
[214] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed).
[215] (Unreported, WAG 125 of 1994, French J, 9 August 1995) (“Xie”).
[216] Xie at page 16 per French J.

In the circumstances there was no failure by the IMR as asserted in ground 2 to have regard to relevant material, either at all, or at least sufficient, to constitute a jurisdictional or other error warranting relief. Ground 2 has not been made out.

Ground 3

Ground 3 is as follows:
3.1    The Second Respondent made adverse findings concerning the Applicant’s claim that his father had been arrested and continued to be held in jail on his behalf (Court Book at 206 and 207 paragraphs [83] to [84]).
3.2    The Applicant had presented this claim to the Second Respondent during the Hearing and in submissions, and had supported them by reference to discussions with a family friend and his uncle’s son-in-law, the latter discussions being as recently as two months prior to the Hearing (Barbas IMR Affidavit pages 16, 19, 27).
3.3    The Applicant was not informed by the Second Respondent of any concerns about the Applicant’s assertions as to his father’s arrest and continued detention on his behalf either during the hearing or in the Second Respondent’s subsequent letter (Court Book at 164).
3.4    The Applicant reasonably believed that the information presented to the Second Respondent, together with the submissions made on his behalf, were sufficient to support his claim about his father’s arrest on his behalf (see Applicant’s affidavit sworn on 4 May 2012 (…[Applicant’s] May Affidavit) paragraphs [6] to [14] inclusive).
3.5    The Applicant has now secured further corroborative evidence about his father’s detention on his behalf from [name provided] (Annexure ROA-1 …[Applicant’s] May Affidavit), the family friend to whom the Applicant refers in the Hearing (Barbas IMR Affidavit page 16).
3.6    The Applicant was fearful of obtaining any written information at the time of the Hearing due to the risk this posed to himself, his father and family, and any person involved in assisting the Applicant in this way (…[Applicant’s] May Affidavit at paragraphs 15 and 16), but could have sought to obtain this evidence earlier had he known it was of decisive importance to his case.
3.7    Had the matter of the Second Respondent’s concerns regarding the Applicant’s father’s arrest on his behalf, and the reliability of the supporting information adduced by the Applicant, been put to him, the Applicant would have responded in the manner set out in the …[Applicant’s] May Affidavit at paragraphs [19] to [31] (inclusive), including by securing the letter from [name provided].
3.8    By reason of the matters set out in grounds 3.1 to 3.7, the Second Respondent denied the Applicant procedural fairness and thereby committed jurisdictional error constituted by the Second Respondent failing to raise clearly with the Applicant the substance of matters that the Second Respondent knew of and considered may bear upon, whether to accept the Applicant’s claim concerning his father’s arrest and detention on his behalf.
3.9    Further and alternatively, due to the central nature of the Second Respondent’s findings in ground 3.1 to the Second Respondent’s conclusion that the Applicant did not have a well founded fear of persecution on his return to Iran, the fresh evidence contained in the …[Applicant’s] May Affidavit is likely to have led to a favourable recommendation.

Applicant’s submissions

The IMR denied the applicant procedural fairness in failing to raise clearly with the applicant the substance of matters that the IMR knew of and considered may bear upon whether to accept the applicant’s claim concerning his father’s arrest and detention on his behalf. Further and alternatively, had these matters been raised with the applicant, the applicant could have adduced further evidence to the effect set out in the Applicant’s May 2012 Affidavit, which material is likely to have led to a favourable recommendation.
The applicant submits that:
a)the IMR made adverse findings concerning the applicant’s claim that his father had been arrested and continued to be held in jail on his behalf;[217]
b)the applicant had presented this claim to the IMR during the hearing and in submissions, and had supported the claim by reference to discussions with a family friend and his uncle’s son-in-law, the latter being as recently as two months prior to the hearing;[218]
c)the applicant was not alerted to the IMR’s concerns regarding the applicant’s assertions regarding his father’s arrest and continued detention on his behalf during the hearing or in a subsequent letter from the IMR under cover of an email dated 22 June 2011,[219] including whether the IMR had any concerns with or required further information from the applicant’s family friend or uncle’s son-in-law;
d)the applicant reasonably believed that the information presented to the IMR, together with his submissions, were sufficient to support his claims concerning his father’s arrest and detention on his behalf;[220]
e)the applicant has recently secured further corroborative evidence concerning his father’s detention on his behalf from the family friend[221] to whom the applicant refers in IMR Interview;[222]
f)the applicant was fearful of obtaining any written information at the time of the hearing due to the risk this posed to himself, his father and family, and any person involved in assisting the applicant in this way;[223]
g)the IMR was obliged to raise clearly with the applicant those matters which the IMR knew of and considered may bear upon whether to accept the applicant’s claims concerning his father’s arrest and detention on his behalf. This is supported by the decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor;[224]
h)had the matter of the IMR’s concerns regarding the applicant’s father’s arrest and detention on his behalf, and the reliability of the supporting information adduced by the applicant, been put to him, the applicant could have responded in the manner set out,[225] including by securing the letter from the family friend. This evidence corroborated this central claim by the applicant, was relevant to the findings of the IMR set out in paragraph 15(v) above and ought to have been taken into account;
i)by reason of the matters set out in paragraphs 34 to 41 of the IMR Recommendation, the IMR denied the applicant procedural fairness and thereby committed jurisdictional error constituted by the IMR failing to raise clearly with the applicant the substance of matters that the IMR knew of and considered may bear upon whether to accept the applicant’s claim, and which resulted in the findings set out in paragraph 15(v) above; and
j)further and alternatively, due to the central nature of the IMR’s findings in paragraph 15(v) above to the IMR’s conclusion that the applicant did not have a well-founded fear of persecution on his return to Iran, the fresh evidence contained in the Applicant’s May 2012 Affidavit, could have a real chance of leading to a different result upon reconsideration.
[217] CB 206-207 at paras.83-84.
[218] Mr Barbas’ Second Affidavit, pp.16, 19 and 27.
[219] CB 164.
[220] Applicant’s May 2012 Affidavit, paras.6-14.
[221] Applicant’s May 2012 Affidavit, Annexure ROA-1.
[222] Mr Barbas’ Second Affidavit, p.16.
[223] Applicant’s May 2012 Affidavit, paras.15 and 16.
[224] (2006) 228 CLR 152; [2006] HCA 63.
[225] Applicant’s May 2012 Affidavit, paras.19-31.

Minister’s Submission

The Minister submits that:
a)the nub of the complaint in ground 3 is that the IMR did not believe the applicant’s claims concerning his father’s arrest and detention and continued detention in jail. The applicant erroneously maintains that in those circumstances procedural fairness requires that the IMR advise the applicant of his concerns so as to enable him to support his claims about his father’s arrest and detention by further evidence;
b)the Minister accepts that if the RSA officer had accepted the claims about the applicant’s father’s arrest and detention, procedural fairness may have required the IMR to have notified the applicant that she took a different view of this claim. However, the RSA officer did not accept that the applicant’s father had been arrested.[226] The applicant was therefore clearly aware that this was a live issue, and that the applicant needed to put before the IMR all the additional evidence which would support this claim so as to persuade the IMR to reach a different conclusion;
c)an applicant is entitled to put forward whatever evidence and material they wish to support their case, however, there is no legal error because the decision-maker does not accept what has been put forward. A decision-maker or tribunal is not required to disclose to an applicant their reasoning process, and procedural fairness does not require that an applicant be informed that a particular claim put forward is not believed;[227] and
d)there was no breach of procedural fairness by reason of the failure of the IMR to inform the applicant that she did not accept his claim regarding his father’s arrest and continued detention, so as to enable him to put forward further evidence in support of that claim.
[226] CB 122, RSA record, page 16.
[227] See, for example, Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 at 85-86 per Gaudron J; [2001] HCA 22 at para.97 per Gaudron J.

Consideration – ground 3

There is no error in an administrative decision-maker who, having heard the argument and evidence of an applicant, determines a matter on the basis of that argument and evidence without further reversion to the applicant. Put simply, there is no error in non-acceptance of the applicant’s case as it was put. Applicants are not entitled to a further hearing to enable them to consider the administrative decision-maker’s tentative, preliminary or putative determination where that determination is contrary to the applicant’s argument and evidence.[228] In this matter the applicant had to satisfy the IMR as to his case. In this case the applicant had to do so in circumstances where he knew that this element of the case concerning his father’s alleged arrest and continued detention had not been accepted by the RSA officer. In all the circumstances, this is simply a case of the applicant not satisfying the IMR of this aspect of the applicant's case. There was no obligation on the IMR to allow the applicant to put further submissions or evidence before the IMR merely because the applicant failed to satisfy the IMR as to its case. For the same reasons, the fact that the applicant now has further corroborative evidence is of no assistance: the fact-finding task was one for the IMR, not this Court on judicial review.
[228] Miah CLR at 85-86 per Gaudron J; HCA at para.97 per Gaudron J.
In the circumstances, ground 3 is not made out.

Ground 4

Ground 4 is as follows:
Ground 4
4.1    The Second Respondent made findings that the experiences of the Applicant and his family and the discrimination they suffered in Iran as undocumented non-citizens did not amount to serious harm in that they did not affect their access to basic services and thereby their capacity to subsist (Court Book at 204 to 206, paragraph [79] to [82] (inclusive) and [85]).
4.2    The Second Respondent ignored relevant evidence adduced by the Applicant concerning the conditions of daily life for him and his family in Iran, including those which affected their capacity to subsist and access to basic services (see pages 10 to 25, 28, 30 to 32, 35 (inclusive) Barbas IMR Affidavit).
(a)    During the Hearing, the Applicant adduced evidence that:
(i) many times he and his family went hungry and would sleep in wet clothing, and they were exposed to freezing and hot conditions (Barbas IMR Affidavit at page 35);
(ii)    the authorities would patrol his village to take things from him and his family because they were undocumented on the pretext of collecting money for poor Iranians (Barbas IMR Affidavit at page 28);
(iii)   he and his family had to live in hiding and travel in and out of his village under cover (Barbas IMR Affidavit at pages 10, 13, 14, 16 and 25);
(iv)   he and his family were unable to own property (Barbas IMR Affidavit at page 13);
(v)     he was not able to drive a car or have a driver’s licence (Barbas IMR Affidavit at page 35);
(vi)   he was unable to source chemicals for farming affordably (Barbas IMR Affidavit at page 32);
(vii) he and his father were unable to access the protection of the authorities when false accusations were made against him and his family, and his father was arrested (Barbas IMR Affidavit at pages 17 to 23); and
(viii) he was unable to leave and return to Iran legally (Barbas IMR Affidavit at pages 24 and 25).
4.3    The Second Respondent’s reasons supporting the findings set out in the ground 4.1 above do not disclose that the Second Respondent had regard to the evidence referred to in ground 4.2 adduced by the Applicant during the Hearing, and to which the Second Respondent ought to have had regard in determining whether the Applicant experienced serious harm while in Iran and was likely to experience such harm in the future.
By reason of the matters set out in grounds 4.1 to 4.3, the Second Respondent committed jurisdictional error by ignoring relevant material which formed the reasons or part of the reasons for the adverse findings specified in ground 4.1.

Applicant’s submissions

The applicant submits that the IMR ignored relevant material presented by the applicant during the IMR Interview concerning the harm suffered by the applicant and his family in their daily lives which affected their capacity to subsist. This material comprised jurisdictional facts because it was central to the IMR’s adverse finding concerning whether the applicant faced serious harm in Iran in the past, or was likely to, on his return to Iran, and the IMR Recommendation that the applicant was not a person to whom Australia owed protection obligations.
The applicant submits that:
a)the IMR made findings that the experiences of the applicant and his family and the discrimination they suffered in Iran as undocumented non-citizens did not amount to serious harm in that they did not affect his access to basic services or his capacity to subsist;[229]
[229] CB 204-206 at paras.79-82 and 85.
b)the IMR ignored relevant evidence adduced by the applicant concerning the conditions of daily life for him and his family in Iran, including those which affected their capacity to subsist and access to basic services;[230]
[230] Mr Barbas’ Second Affidavit, pp.10-25, 28, 30-32 and 35.
c)during the hearing, the applicant adduced evidence that:
i)many times he and his family went hungry and would sleep in wet clothing, and he was exposed to freezing and hot conditions;[231]
[231] Mr Barbas’ Second Affidavit, p.35.
ii)the authorities would patrol his village to take things from him and his family because they were undocumented, on the pretext of collecting money for poor Iranians;[232]
[232] Mr Barbas’ Second Affidavit, p.28.
iii)he and his family had to live in hiding and travel in and out of his village under cover;[233]
iv)he and his family were unable to own property;[234]
v)he was not able to drive a car or have a driver’s licence;[235]
vi)he was unable to source chemicals for his farming affordably;[236]
vii)he and his father were unable to access the protection of the authorities when false accusations were made against him and his family, and his father was arrested;[237] and
viii)he was unable to leave and return to Iran legally;[238]
d)the IMR’s reasons supporting the findings set out in paragraph 15(a), (b), (e) and (k) above do not disclose that the IMR had regard to the evidence referred to in paragraph 17(g)(vi)a above adduced by the applicant during the hearing, and to which the IMR ought to have had regard in determining whether the applicant experienced serious harm while in Iran and was likely to experience harm in the future;
e)this evidence comprised jurisdictional facts due to the central nature of the IMR’s adverse finding concerning whether the applicant faced serious harm in Iran in the past, or was likely to do so in the future, to the IMR Recommendation that the applicant was not a person to whom Australia owed protection obligations; and
f)the IMR committed jurisdictional error by ignoring or failing to have regard to relevant material which comprised jurisdictional facts that went to an integer of the applicant’s claim and which formed the reasons or part of the reasons for the adverse findings specified in paragraph 15(a), (b), (e) and (k) above.
[233] Mr Barbas’ Second Affidavit, pp.10, 13, 14, 16 and 25.
[234] Mr Barbas’ Second Affidavit, p.13.
[235] Mr Barbas’ Second Affidavit, p.35.
[236] Mr Barbas’ Second Affidavit, p.32.
[237] Mr Barbas’ Second Affidavit, pp.17-23.
[238] Mr Barbas’ Second Affidavit, pp.24 and 25.

Minister’s submissions

The Minister submits that:
a)the IMR’s conclusion that the applicant did not experience discrimination amounting to serious harm was one that was reasonably open on the evidence before her. The IMR correctly found that the applicant was not denied the capacity to subsist as defined by s.91R(2) of the Migration Act;
b)a decision-maker or tribunal is not required to refer to every piece of evidence provided by an applicant in the written reasons for the decision which they have made. Accordingly, there was no legal error on the part of the IMR in not making specific reference to every item of the applicant’s evidence as set out in paragraph 4.2(a) of the applicant’s amended application;
c)in any event, the IMR did refer to various aspects of the discrimination suffered by the applicant in the areas of education, medical treatment, access to electricity, restrictions on the type of work, ability to open a bank account, own property, buy a car or have a driver’s licence;[239]
d)in relation to the applicant’s claim that he and his father were unable to access the protection of the authorities when false accusations were made against him and his family, and his father was arrested, this was not a claim that the IMR accepted;
e)further, the claim that the applicant was unable to leave and return to Iran legally is not a claim that can be said to involve serious harm, or threatens the person’s capacity to subsist;
f)further, and in any event, the IMR concluded that any restrictions that the Iranian authorities placed on refugees or stateless persons living in Iran without identity papers was because of that status, and was not because the person was a Faili Kurd. The applicant was not entitled to the same benefits as were applied to, or be available to, a citizen of Iran.[240] Accordingly, the IMR concluded that any discrimination suffered by the applicant was not for reasons of a Convention ground; and
g)it therefore follows that even if, contrary to the submissions above, the IMR was found to have ignored relevant material in relation to the applicant’s claims to suffer discrimination amounting to serious harm, that was not jurisdictional error, because it did not affect the IMR Recommendation that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.
[239] CB 204-205 at paras.79 and 80.
[240] CB 206 at para.82.

Consideration – ground 4

The IMR did not ignore relevant evidence as to the lifestyle and subsistence of the applicant and his family. The IMR was aware that the applicant's lifestyle was, at best, a basic one, and referred to the fact that the applicant and his family led a “modest existence" and that they were not “ materially comfortable”.[241] The IMR found, however, that this was not a case of persecution or serious harm for a Convention reason, but rather that the applicant’s lifestyle and level of subsistence related to discriminatory practices in relation to persons in Iran lacking identity documents.[242] The IMR cannot be said to have failed to consider the evidence that it heard, or to have made a finding that was not reasonably open to be made. As to any evidence that was not interpreted, that does not assist in making out this ground. Rather, that was relevant to ground 1 which has been made out.
[241] CB 204-205 at para.79.
[242] CB 206 at para.82.

In the circumstances, ground 4 has not been made out.

Conclusion and relief

The Court has concluded that ground 1 has been made out, but grounds 2, 3 and 4 have not been made out. It follows that there will be:
a)a declaration that the applicant was denied procedural fairness by reason of:
i)the fact that the interpreter did not speak Faili Kurd at all was not made known, properly or at all, to the IMR;
ii)the applicant’s request for an interpreter who spoke Faili Kurd was not conveyed in terms to the IMR; and
iii)errors by the interpreter in the interpretation of the applicant’s evidence; and
b)an order that the Minister, his servants, officers, delegates and agents be restrained from relying on the IMR Recommendation dated 11 August 2011.
The Court will hear the parties as to costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 17 May 2013