WZAPN v Minister for Immigration
[2013] FMCA 6
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WZAPN v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 6 |
| MIGRATION – Judicial review – independent merits review – whether denial of procedural fairness – alleged failure to draw country information to applicant’s attention – alleged failure to consider integer of claim as to Faili Kurd re-entering Iran – alleged failure to undertake further inquiry concerning increased risk of persecution following 2009 Iranian elections – whether correct test as to serious harm applied – whether short periods of detention, restrictions on access to socio-economic conditions and restricted ability to subsist constituted serious harm – whether failure to take into account relevant considerations – alleged failure to consider risk of harm to undocumented Faili Kurds returning to Iran – alleged failure to consider whether denial of education constituted serious harm – whether correct legal test applied as to alleged social group of undocumented Faili Kurds living in Iran – whether jurisdictional or other error. |
| Migration Act 1958 (Cth), ss.36(2), 91R, 476, 477 |
| 1001288 [2010] RRTA 912 Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362; [2000] FCA 589 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 |
| Applicant: | WZAPN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | GRAHAM BARTER AS INDEPENDENT MERITS REVIEWER |
| File Number: | PEG 281 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 28 March 2012 |
| Date of Last Submission: | 28 March 2012 |
| Delivered at: | Perth |
| Delivered on: | 31 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms P E Cahill SC |
| Solicitors for the Applicant: | Case for Refugees |
| Counsel for the Respondents: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 281 of 2011
| WZAPN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| GRAHAM BARTER AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Further amended application
By a further amended application filed in Court with leave at the hearing on 28 March 2012, the applicant applies for relief in the exercise of the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth).[1] The relief sought is in respect of a future decision or other action by the Minister, or an officer under the Migration Act, concerning the applicant, following an independent merits reviewer[2] making a recommendation to the Minister on 10 August 2011 in relation to the applicant.[3]
[1] “Migration Act’.
[2] “IMR”.
[3] “IMR Recommendation”.
Grounds of application
The grounds of the further amended application are as follows:
1.The IMR failed to accord the applicant procedural fairness.
Particulars
a)The reviewer failed to draw to the applicant’s attention, and invite his comment upon, pieces of general country information upon which the IMR expressly relied when addressing the applicant’s refugee claim, and from which he drew conclusions adverse to the applicant’s claim.
b)The IMR failed to accord the applicant procedural fairness, because he failed to consider an integer of the applicant’s claim, that as a stateless Faili Kurd, the applicant was precluded from re-entering Iran.
c)The IMR failed to accord the applicant procedural fairness given that the IMR was apprised of the fact that conclusions as to the safety from persecution of failed asylum seekers returning to Iran prior to the disputed Iranian elections in 2009 were no longer necessarily valid and that there was now evidence of the possibility of an increased risk of persecution to such persons. In those circumstances the need for the Tribunal to enquire further and/or inform itself further of the likely risk of persecution the applicant would now suffer as a failed asylum seeker returning to Iran was obvious and the IMR should have, but did not, undertake such enquiry or gather further information.
2.The IMR committed a jurisdictional error in that he failed to apply the correct legal test as to what constitutes “serious harm” for the purpose of section 91R of the Act.
Particulars
a.The IMR wrongly concluded that the risk, if the applicant were returned to Iran, of the applicant being detained for short periods could not amount to “serious harm”
b.The IMR wrongly concluded that the restrictions on the applicant’s ability become educated, obtain hospital treatment, get married, obtain a reasonable return for his labour and/or hold property did not or could not amount to “serious harm”
c.The IMR wrongly concluded that the fact that the applicant’s ability to subsist was precarious by reason of such restrictions did not or could not amount to “serious harm”
3.The IMR committed a jurisdictional error in that he failed to take into account relevant considerations.
Particulars
a.The IMR failed to take into account evidence that the risk of persecution involving serious harm of failed asylum seekers returned to Iran, stateless Kurds and/or undocumented Kurds has increased since July 2010
b.The IMR failed to take into account the likelihood of the applicant, if returned to Iran, coming to the attention of the Iranian authorities as a failed asylum seeker because of his undocumented status
c.The IMR failed to consider whether and the extent to which the applicant being denied education could amount, either alone or together with other factors, to “serious harm.
4.The IMR committed a jurisdictional error in that he failed to apply the correct legal test in order to determine whether undocumented Kurds living in Iran were a “social group” for the purposes of the Convention.[4]
[4] Transcribed from grounds of the further amended application without amendment.
Relief sought
The final 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 ground/s of the further 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.
The further 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.[5]
[5] 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.
An extension of time was also sought in the further amended application, but in light of the judgment of the Full Court of the Federal Court in SZQDZ v Minister for Immigration & Citizenship[6] an extension of time is unnecessary.
[6] (2012) 200 FCR 207 at 221 per Keane CJ, Rares and Perram JJ; [2012] FCAFC 26 at para.49 per Keane CJ, Rares and Perram JJ. See also WZAPN& Ors v Minister for Immigration & Anor (2012) 261 FLR 284; [2012] FMCA 235 at paras.2 and 20 per Lucev FM.
Factual background
The factual background which is uncontroversial is as follows:
a)the applicant is a stateless Faili Kurd from Iran who arrived undocumented at Christmas Island on 21 July 2010;[7]
[7] CB 1-5.
b)an entry interview was conducted with the applicant on 24 August 2010 by an officer of the Department of Immigration and Citizenship[8] The applicant gave the following as his reasons for not wishing to return to Iran:
[8] “Department”.
i)he was a Faili Kurd;
ii)he has no ID;
iii)he left Iran illegally, and he would be questioned about his departure; and
iv)it was not clear what might happen to him if he was returned to Iran;[9]
[9] CB 7 and 25.
c)asked whether he knew what would happen to him if he went back to Iran the applicant responded that:
After the elections they have no mercy to the Iranian people. imagine what will happen to me, they may accuse me of being a traitor or a terrorist, … [10]
[10] CB 25.
d)on 5 September 2010 the applicant made a request for a refugee status assessment, which was supported by a statutory declaration. The applicant claimed that he faced harm in Iran on the basis of his ethnicity, nationality and membership of a particular social group, namely being a stateless Faili Kurd;[11]
e)on 27 September 2010 the applicant was assessed by an officer of the Department as not meeting the definition of a refugee as set out in Article 1A of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol,[12] and as not being a person to whom Australia owes protection obligations.[13] The applicant was advised of this decision by letter dated 27 September 2010;[14]
f)the applicant then sought an independent merits review of the RSA Decision,[15] and that application was supported by submissions by the applicant’s lawyers dated 2 November 2010;[16]
g)an independent merits review of the RSA Decision was conducted by the IMR, who interviewed the applicant by video link on 13 April 2011;[17] and
h)in the IMR Recommendation on 10 August 2011 the IMR concluded that the applicant did not have a well founded fear of being persecuted by reason of any of the grounds referred to in the Convention, in the foreseeable future, should he return to the country of his former habitual residence, and he found that the applicant does not meet the criterion for a protection visa set out in s.36(2) of the Migration Act. The IMR therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention.[18] More detail of the IMR Recommendation is set out as appropriate below.
Ground 1 – Lack of procedural fairness
Particular (a) - failure to draw applicant’s attention to country information
[11] CB 32-49 and 59-63 (“RSA Request”).
[12] “Convention”.
[13] CB 82-96 (“RSA Decision”).
[14] CB 74-75.
[15] CB 98-101.
[16] CB 104-113 (“November 2010 Submissions”).
[17] CB 116. A transcript of this interview is Annexure “A” to the affidavit of Shayla Marie Strapps affirmed 21 December 2011 (“IMR Interview Transcript”).
[18] CB 116 and 132 at para.100.
Applicant’s submissions
The applicant submits that:
a)the IMR recorded in the IMR Recommendation that he had “perused a large amount of information and identified material” that he had used to come to his conclusions.[19] That information is unspecified but is clearly additional to the country information set out at paragraph 20 of the IMR Recommendation[20] and the information supplied by the applicant referred to at paragraphs 12-19 of the IMR Recommendation;[21]
b)the IMR Recommendation contains numerous conclusions adverse to the applicant regarding the level and extent of persecution or deprivation the applicant can expect to experience if returned to Iran;[22]
c)the IMR did not place before the applicant, and invite the applicant to respond to, the information and material referred to at paragraph 22 of the IMR Recommendation, upon which he relied to draw those adverse conclusions; and
d)that omission denied the applicant procedural fairness.[23]
[19] CB 123 at para.22.
[20] CB 122-123 at para.20.
[21] CB 118-122 at paras.12-19.
[22] Citing, by way of example, CB 131-132 at paras.89, 90, 93, 94 and 96.
[23] Citing Plaintiff M61 CLR at 356-357 and 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.91 and 98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Minister’s submissions
The Minister submits that:
a)there was no breach of procedural fairness by the IMR;
b)the IMR noted that he had perused a large amount of internet available information, and identified material that he considered “to be relevant, reliable and contemporary where I have used it, together with the above information, to come to the conclusions set out below.”[24] The IMR’s reference to “the above information” is a reference to the country information set out in the RSA Decision, and country information referred to by the applicant’s lawyers, as set out at paragraph 20 of the IMR Recommendation;[25]
[24] CB 123 at para.22 (Minister’s underlining).
[25] CB 123 at para.22.
c)the IMR then set out a number of conclusions.[26] It cannot be said that any of the conclusions are adverse to the applicant or the claims which he was making. This is in contrast to the country information relied upon by the independent merits reviewer in Plaintiff M61, which was clearly adverse to the plaintiff's claims in that case;[27]
[26] CB 123-124 at paras.23-33.
[27] Plaintiff M61 CLR at 355 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.85 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
d)in MZYPF v Minister for Immigration & Anor,[28] the Court referred to two decisions which held that an independent merits reviewer is only required to put country information to an applicant which is “adverse, credible, relevant and significant”;[29]
[28] [2011] FMCA 985 (“MZYPF”).
[29] MZYPF at paras.27 and 28 per Turner FM, referring to SZQFU v Minister for Immigration & Anor [2011] FMCA 599 at para.44 per Driver FM, and SZQGV v Minister for Immigration & Anor [2011] FMCA 743.
e)the IMR was, therefore, not required to advise the applicant, either at the interview on 13 April 2011, or by written advice to his lawyers, of the identified material referred to at paragraph 22 of the IMR Recommendation which, together with the other information set out at paragraph 20, led to the conclusions which he then set out at paragraphs 23 to 33 of the IMR Recommendation. Those conclusions were not adverse to the applicant;
f)further, for the applicant to succeed in this aspect of his claim of breach of procedural fairness, it is not sufficient to simply say that there was country information relied upon by the IMR, and it was not placed before the applicant and he was not invited to respond to it, and therefore a jurisdictional error follows;[30]
g)in SZQGL this Court observed that:
It is where information that is credible, relevant and significant to the outcome, and is not put or known to the applicant, such that he has the opportunity to answer the case against him, that jurisdictional error occurs. If the information was not part of the case to answer and in that sense adverse to the applicant's cause, then it is difficult to see how error can be said to ensue.[31]
h)the applicant was aware of the substance of the country information that the IMR had regard to in conducting his review. The applicant was represented by lawyers who would clearly have been aware of the RSA Decision, and the country information to which regard was had in the RSA Decision,[32] and his lawyers made submissions which addressed country information about Iran relevant to the applicant’s claims,[33] which were taken into account by the IMR;
i)in those circumstances, and having regard to the fact that the IMR did not rely solely upon any further material which he identified to reach any conclusions, let alone adverse conclusions, but only used that further material, together with the country information detailed in the RSA Decision and that provided by the applicant’s lawyers, to reach the conclusions set out at paragraphs 23 to 33 of the IMR Recommendation, there is no basis for the applicant’s claim of a lack of procedural fairness by failing to put the further material to him;
j)the applicant’s reliance upon Plaintiff M61 is misplaced. Plaintiff M61 did not require an independent merits reviewer to put afresh to the applicant, or his legal advisors, all of the country information to which he had regard, irrespective of his knowledge of the assessment by the Department officer, and irrespective of whether or not that country information was adverse to the applicant or his claims; and
k)in SZQGL the applicant relied upon SZPAC v Minister for Immigration & Anor,[34] where the Court had drawn on Plaintiff M61 to find that the information subsequently relied upon was not given at the applicant's interview, and found jurisdictional error in those circumstances.[35] The Court, however, found that the circumstances in SZPAC were clearly distinguishable, as the information was contained in a document dated after the interview.[36] In SZQGL this Court also rejected the submissions of the applicant who sought to rely upon what the High Court had said in Plaintiff M61, that the words “the steps taken” and “overtaken” should be understood as saying that whatever had occurred before,[37] an independent merits reviewer had to go through all the “procedural steps again”, and put all country information to the applicant again. In SZQGL this Court concluded that what the High Court had said did not provide any support for the applicant’s position that what had previously occurred was to be ignored by an independent merits reviewer.[38]
[30] See SZQGL v Minister for Immigration & Anor [2011] FMCA 1019 at para.65 per Nicholls FM (“SZQGL”).
[31] SZQGL at para.66 per Nicholls FM.
[32] CB 84-85.
[33] CB 107-110.
[34] [2011] FMCA 517 (“SZPAC”).
[35] SZPAC at para.59 per Nicholls FM.
[36] SZPAC at para.60 per Nicholls FM.
[37] Plaintiff M61 CLR at 354 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.80 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[38] SZQGL at paras.77-82 per Nicholls FM.
With respect to the specific paragraphs cited by the applicant in support of his submission, the Minister submitted that those paragraphs do not demonstrate that the IMR based the IMR Recommendation upon country information adverse to the applicant, as follows:
a)as to paragraph 89, the IMR accepted the applicant’s claim of abuse, but did not accept that it was systematic or amounted to serious harm.[39] There was no reliance upon adverse country information;
b)as to paragraph 90, the IMR accepted that the applicant had been prevented from attending the mosque in Cham Rota for Friday prayers, but was not satisfied, “in the absence of any corroborative country information”, that it had happened for a Convention reason.[40] Again, this clearly does not amount to a reliance upon adverse country information;
c)as to paragraph 93, the IMR refers to “the country information I have previously referred to”.[41] This may simply be a reference to the specific country information set out earlier in the Findings and Reasons section of the IMR Recommendation, for example, the country information at paragraphs 81 and 83. This information is not adverse to the applicant. Even if the IMR was referring to country information that he identified at paragraph 22, the IMR used that material in conjunction with the information at paragraph 20 to come to the conclusions set out at paragraphs 23 to 33, and none of those conclusions were adverse to the applicant;
d)as to paragraph 94,[42] what is submitted at sub-paragraph (c) above is equally applicable. Further, in their submissions to the IMR, the applicant’s lawyers did not submit that the applicant would encounter difficulties at the airport on his return to Iran in the nature of persecution for a Convention reason. Rather, they submitted that the Iranian Government does not allow re-entry by unregistered refugees, except by irregular channels, and that it therefore appeared that the applicant did not have a right to re-enter Iran;[43] and
e)as to paragraph 96,[44] the IMR is clearly basing his assessment on the applicant’s circumstances and history, and not on any adverse country information.
Consideration – ground 1 – particular (a)
[39] CB 131 at para.89.
[40] CB 131 at para.90.
[41] CB 131 at para.93.
[42] CB 131 at para.94.
[43] CB 112‑113.
[44] CB 132 at para.96.
IMR Recommendation – procedural fairness
There is no doubt that the common law rules with respect to procedural fairness apply to the hearing and determination resulting in the IMR Recommendation.[45] In Plaintiff M61 the High Court said, in respect of the requirement to provide procedural fairness in relation to country information, that:
… procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s.424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s.424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not.[46]
[45] Plaintiff M61 CLR at 356-357 and 358 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.91 and 98 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[46] Plaintiff M61 CLR at 356-357 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.91 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell.
The use of the phrase “procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims” suggests that it is those matters which “bear upon whether to accept the plaintiff’s claims”, that is, which are likely to be adverse to a plaintiff’s claims, which need to be put. That suggests, that in the current case, the IMR only needed to put those matters which were adverse to the applicant’s claim to the applicant for comment.
The obligation to disclose and invite comment in relation to significant new country information relied upon to support an adverse refugee determination was referred to in Re Minister for Immigration & Multicultural Affairs & Anor; Ex parte Miah[47] as follows:
99. The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity.[48]
[47] (2000) 206 CLR 57; [2000] HCA 22 (“Miah”).
[48] Miah CLR at 86 per Gaudron J; HCA at para.99 per Gaudron J.
What was required of the IMR was to give the applicant a reasonable opportunity to present his case and to answer any material that the IMR had which ran contrary to his case, and for the IMR to then determine the applicant’s case in the particular circumstances of the case. That required that the applicant be afforded the opportunity to deal with adverse country information which the IMR proposed to take into account. In cases such as Miah and Muin & Ors v Refugee Review Tribunal & Ors[49] the Refugee Review Tribunal failed to afford an opportunity to deal with new information on fundamental matters adversely affecting the outcome sought by the applicant in each case.[50]
[49] (2002) 190 ALR 601; [2002] HCA 30 (“Muin”).
[50] Miah CLR at 80 and 86 per Gaudron J; HCA at paras.77 and para.99 per Gaudron J; Muin ALR at 634 per Brennan J; HCA at para.137 per Brennan J.
The basic rule as set out above with respect to procedural fairness applies. There is no rule that adverse country information must be disclosed only if it is “of crucial importance”, “determinative” or “decisive” of an application.[51] In light of the High Court’s judgment in Plaintiff M61 it is apparent that it is adverse country information which may bear upon an independent merits reviewer’s decision whether to accept the plaintiff’s claims which must be put to the applicant.
[51] Applicant M87 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs & Ors (2005) 214 ALR 310 at 319 per Kenny J; [2005] FCA 23 at para.28 per Kenny J.
In Applicants M1015/03 v Minister for Immigration & Multicultural & Indigenous Affairs[52] the Federal Court observed as follows:
Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.[53]
[52] [2004] FCA 1309 (“M1015”).
[53] M1015 at para.54 per Weinberg J.
In M1015 the application was dismissed because the Federal Court accepted that there was no practical injustice arising by the applicant not being afforded the opportunity to comment upon country information to which the Refugee Review Tribunal had referred, and accordingly there was no denial of procedural fairness.[54]
[54] M1015 at para.61 per Weinberg J.
In SZQEK v Minister for Immigration & Anor[55] the Court, having cited various passages from Plaintiff M61 and Miah, concluded that prerogative relief ought to be granted, and then went on to observe that:
… it is necessary to examine the particular circumstances, before concluding that there is an obligation to invite comment on country information identified as relevant by a refugee decision-maker. The factual issues arising in the review, the path of reasoning adopted by the decision-maker, and the novelty, credibility and materiality of the information to the decision, all need to be considered before concluding that there has been a failure of procedural fairness. Underlying the assessment is a basic concern for a fair procedure.[56]
[55] [2011] FMCA 628 (“SZQEK”).
[56] SZQEK at para.31 per Smith FM.
In SZQEK it was only in respect of the 2010 UNHCR Guidelines that a denial of procedural fairness was found. In relation to other documents the Court relevantly found with respect to:
a)two of those documents, that they were both documents which had been cited in the refugee status assessment, and the applicant was sufficiently on notice as to their existence and potential materiality;[57] and
b)with respect to a fourth document that it was not sufficiently significant or material to the ultimate decision to warrant a finding that a failure to disclose it constituted a denial of procedural fairness.[58]
[57] SZQEK at para.50 per Smith FM.
[58] SZQEK at para.54 per Smith FM.
SZQEK shows that it is possible for the obligation to afford the applicant procedural fairness with respect to relevant country information to be met by that country information being referred to in the reasoning in, and the list of country information consulted and set out in, the decision the subject of the independent merits review. In SZQEK it was the 2010 UNHCR Guidelines concerning Afghanistan, which contained new and up-to-date information which had not been put to the applicant, whose case had been run on the basis of the equivalent 2009 Guidelines.[59] SZQEK is but an example of a circumstance where an application for prerogative relief was granted on the grounds of denial of procedural fairness because the decision maker failed to invite an applicant to comment upon genuinely new information adverse to the applicant’s case.
[59] SZQEK at paras.11, 22, 24, 37 and 44-48 per Smith FM.
Country information
The IMR identifies the independent country information with which he is dealing, and how he proposes to deal with it, at paragraphs 20-22 of the IMR Recommendation, as follows:
20.The information upon which I have initially relied is as detailed in the RSA Officer’s assessment and the information referred to by the claimant’s advisor. I have had particular regard to the following material:
· UK Home Office Country of Origin Report for Iran 2010 ( align="left">· United Nations Committee on Racial Discrimination (UNCRD) 2010 ( Rights Group International February 2011 ( Rights Watch World Report 2011: Iran ( align="left">· United States Department of State Background Note Iran (17 February 2011) ( align="left">· United States Department of State: Human Rights Report: Iran (8 April 2011) ( align="left">· Bureau of Democracy, Human Rights, and Labour, International Religious Freedom Report 2010 (17 November, 2010) ( align="left">· Federation Internationale des Ligues des Droits de I’Homme (LDDH) ( is a large volume of information that is available on the internet which is not necessarily reliable or independent, and in the case of Iran; the secrecy of the regime limits the availability of current statistical information, particularly following the June 2009 elections.
22.I have perused a large amount of information and identified material that I consider to be relevant, reliable and contemporary where I have used it, together with the above information, to come to the conclusions as set out below.[60]
[60] CB 122-123 at paras.20-22.
What is meant by the “conclusions as set out below” is not immediately clear. There follows, at paragraphs 23-33 of the IMR Recommendation a series of conclusions with respect to the position in Iran, based on country information. Then following, at paragraphs 34-98 are the findings and reasons of the IMR, and a conclusion with respect to those findings and reasons at paragraph 99 of the IMR Recommendation.
Paragraphs 23-33 of the IMR Recommendation are as follows:
23.Iran is a theocracy in which Islam is the majority religion, favouring the Shi’a branch of that faith. The dominant race is Persian and there are several ethnic minorities, including Azeri, Arab, Baluch and Kurds, who inhabit regions where they form a majority. Those minorities do not enjoy the same status as Persians but together may make up as much as half of the Iranian population.
24.The information I have referred to above indicates that certain minorities, including Kurds may be precluded from enjoying certain benefits, particularly if they do not have Iranian citizenship or identification documents such as ‘green’ or ‘white cards’. I accept that they may be precluded from many areas of employment, especially government jobs, that they may not attract equal pay and, if they are not recognised citizens or hold identification documents, they will have difficulty in obtaining education, health benefits or property.
25.In certain areas members of ethnic minorities may be sufficiently poorly treated or denied benefits to the extent that their ability to subsist may be challenged, however each case must be dealt with having regard to its own circumstances.
26.The above information indicates that vocal members of ethnic minorities, who might be described as activists, or those associated with such activists are likely to suffer imprisonment and assault, perhaps even torture and death depending on the extent of their perceived anti Iranian political opinions.
27.The above information indicates that many members of ethnic minorities, perhaps even most members, are subject to extensive adverse treatment depending on their personal circumstances; the more so if they are “Stateless”.
28.The above information indicates that the practice of Islam is desirable, even essential for advancement in Iranian Society in some areas, noting the following extract in relation to the employment of teachers from the United States Commission on International Religious Freedom. (http;// Law on The Selection [gozinesh] of Teachers and Employees in Education and Development states, in Article 2, that “the general guidelines for the moral, belief and political selection (gozinesh]” of [applicants] is according to the following criteria:
1. Belief in Islam or one of the official religions set out in the Constitution of the Islamic Republic of Iran;
2. Practical engagement in the laws of Islam;
3. Belief and engagement in the Velayat-e Faqih [or Leadership by a religious jurisprudent]; the State order (nezam) of the Islamic Republic and the constitution;
29.The above information indicates that those who publicly challenge the practice of the Islamic religion, particularly those who convert to and practice another religion, are likely to be imprisoned and assaulted and, in some cases are exposed to the risk of being lawfully put to death.[61]
30.The above information indicates that the religious / political group known as the Basij has a large and extensive membership which pervades Iran and is supported by a network of informers and a command of technology, including the ability to tap phones. That group is charged with the protection of Islamic values, which are fundamental to the Iranian political system and they may act in the furtherance of their task with virtual impunity from other Iranian authorities.
31.The above information indicates that failed asylum seekers may be subject to varying degrees of ill-treatment by authorities upon return to Iran including monitoring, interrogation and detention, particularly if they have publicly renounced the extant political and/or religious regime:
“[w]hat can be said with certainty is this: Returnees are actively seeking to keep a low profile in Iran; they deliberately deny that they believe something contrary to the State and lie about their activities in Australia…If asked, they deny that their motivation for leaving Iran and seeking asylum in Australia was related to the Iranian religious and political regimes.”[62]
32.The above information indicates that in the period following the June 2009 presidential election, Iran’s already poor human rights record further degenerated. Whilst a poor human rights record is not in itself evidence of persecution, it is indicative of a climate in which the likelihood of persecution for convention reasons is increased. Conclusions as to safety from persecution that may have been drawn prior to the disputed elections are no longer necessarily valid.
33.Human Rights Watch stated in June 2010 that “Iran’s government is tightening its grip, harassing, imprisoning, and using violence against its own people one year after the disputed 2009 presidential election and the start of its brutal crackdown”;[63] and there is no evidence to suggest that situation has abated.[64]
[61] [1] CX267939: IRAN: Yosef Nadarkhani’s Death Penalty for Apostasy Confirmed, Human Rights Activists News Agency (HRANA), 30 June, 2011,, [3] ‘Iran: Crisis Deepening One Year After Disputed Elections Pressure Mounting on Iranian Civil Society’, 10 June http:/ CB 123-124 at paras.23-33. Footnotes 61-63 are direct quotes from footnotes 1-3 in the quoted paragraphs from the IMR Recommendation.
The matters referred to at paragraphs 23-33 of the IMR Recommendation are matters which do therefore appear to include “the conclusions as set out below” referred to at paragraph 22 of the IMR Recommendation. The matters referred to at paragraphs 23-33 are all conclusory statements which variously:
a)do not indicate a source of information;[65] or
b)indicate that they are based on either the “information … referred to above”[66] or the “above information”;[67] or
c)indicate a source of information.[68]
[65] CB 123 at paras.23 and 25.
[66] CB 123 at para.24.
[67] CB 123-124 at paras.26, 27, 28, 29, 30, 31 and 32.
[68] CB 124 at para.33.
The Court observes that where the IMR has used information, other than information specifically identified in paragraph 20 of the IMR Recommendation, the IMR has “identified [that] material”[69] as the IMR indicated he would do.[70]
[69] CB 123 at para.22.
[70] CB 123 at para.22.
When the Court looks at paragraphs 20-33 of the IMR Recommendation as a whole there is no difficulty in concluding that paragraphs 23-33 of the IMR Recommendation contain conclusions based on the country information set out at paragraph 20 of the IMR Recommendation, and the further country information identified in paragraphs 29, 31 and 33 of the IMR Recommendation.
What the IMR did at paragraphs 23-33 of the IMR Recommendation was what he foreshadowed he would do at paragraph 22 of the IMR Recommendation, that is, he:
a)perused information;
b)identified material considered to be relevant, reliable and contemporary where he has used information perused; and
c)used the identified information, together with the country information identified at paragraph 20 of the IMR Recommendation, to come to conclusions set out in paragraphs 23-33 of the IMR Recommendation.
The factual conclusions reached on the basis of country information are exclusively a matter for the IMR.[71]
[71] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J (“Wu Shan Liang”); Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 per Gummow and Hayne JJ; [1999] HCA 14 at paras.195 per Gummow and Hayne JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ.
Two questions arise:
a)is the information credible, relevant and significant to the outcome; and
b)is the information, or the outcome arising from the use of that information, adverse to the applicant, and if so, was the information put to the applicant?
There can be little doubt that the information is credible, relevant and significant to the outcome. But, is the information, or the outcomes arising from the use of that information, adverse to the applicant? Each of the conclusions reached in paragraphs 23-33 of the IMR Recommendation is not a conclusion which is at odds with, or adverse to, the applicant’s case. Indeed, many of the conclusions reached are consistent with arguments put by the applicant in support of his case. It was therefore unnecessary for the IMR to put the additional country information, which country information was itself not adverse to the applicant insofar as it concerned the conclusions at paragraphs 23-33 of the IMR Recommendation.[72]
[72] SZQGL at paras.65-66 and 80-82 per Nicholls FM. See also Miah CLR at 86 per Gaudron J; HCA at para.99 per Gaudron J and M1015 at para.54 per Weinberg J.
IMR Recommendation – findings and reasons
The IMR commences the “Findings and Reasons” section of the IMR Recommendation by saying that:
34.I have carefully considered this application and made my findings having regard to the evidence of the claimant together with such up-to-date and relevant country of origin information as is available.[73]
[73] CB 125 at para.34.
This takes the question of country information no further than paragraph 22 of the IMR Recommendation which indicates that where the IMR has used country information that he considered to be relevant, reliable and contemporary he has identified that material. Questions of whether that material is credible, relevant and significant, and whether it is adverse to the applicant, and, therefore, whether that material has then been put to the applicant, requires further examination, insofar as such country information is referred to in the “Findings and Reasons”.
Paragraphs 81, 83, 89, 90, 93, 94 and 96 of the IMR Recommendation were identified as being relevant paragraphs in which country information was utilised by the IMR. Those paragraphs are set out hereunder:
81.Having regard to the extent of enquiries by the police, the Basij and other de-facto law enforcement agencies revealed by Country Information, particularly since the 2009 elections, I accept there is a real chance that the claimant will be questioned periodically, and probably detained for short periods when he fails to produce identification, in the reasonably foreseeable future should he return to Iran, but having regard to the guidance provided by s.91R(2)(a), (b) and/or (c), I do not accept that the frequency or length of detention, or the treatment he will receive whilst in detention will involve serious harm within the meaning of the Act.
83.Country information indicates that State and de-facto authorities such as the Basij will stop and question people indiscriminately. Detention will follow if the person stopped is suspected of being involved in any illegal or immoral activity or otherwise presents some threat to State security.
89.Having regard to the size of the Kurdish community in Ilam generally and the claimant’s status as a Shia Muslim which is the State religion, it seems unlikely that he would attract such abuse but I accept it has happened. I do not accept it is systematic and, having regard to the guidance provided by s.91R(2), I do not accept it amounts to serious harm in accordance with the Act.
90.He has given an example of being prevented from attending the mosque for Friday prayers, which also appears unlikely to me having regard to the size of the Kurdish community in Ilam and the nature of his religion as a Shia Muslim. Giving [the applicant] the benefit of the doubt, I accept it has happened in Cham Rota, but I am not satisfied, in the absence of any corroborative country information, that it has happened for a convention reason and having regard to the guidance provided by s.91R(2), I do not accept it amounts to serious harm in accordance with the Act.
93.Having regard to the above and based on the country information I have previously referred to, I do not accept there is a real chance that the level of abuse [the applicant] will suffer in the foreseeable future, should he return to Iran, will escalate to such a level as to involve serious harm in the relevant sense.
94.For the same reason I do not accept that [the applicant] will encounter any difficulty at the airport on his return to Iran, for reason of any of the grounds set out in the convention although I accept he may face penalties for leaving the country illegally under the State’s laws of general application.[74]
96.The claimant has raised the question of being possibly identified as a traitor, terrorist or spy on his return to Iran but that fear is speculative. There is nothing to suggest the authorities or the Basij have any suspicions in that regard at present, he has not engaged in any past activity that might give rise to such a suspicion and, absent any such activity in the past, there is no evidence to suggest his absence from the country alone will raise such a suspicion.
[74] CB 130-131 at paras.81, 83, 89, 90, 93 and 94.
As to paragraph 81 the IMR has accepted the claim of abuse, but concluded that the nature of the abuse was not such as to amount to serious harm, a conclusion which the IMR was entitled to reach given that:
… the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard for persecution … while persecution always involves the notion of selective harassment or pursuit, selected harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[75]
[75] Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at 18-19 per McHugh J; [2000] HCA 55 at para.55 per McHugh J (“Haji Ibrahim”).
There is nothing to indicate that the country information relied upon was not drawn to the applicant’s attention, or known by the applicant. Indeed, one of the grounds of the application is that the IMR did not undertake further inquiries in relation to the increased risk of persecution of the applicant following the 2009 Iranian election.[76] This is put in circumstances where the November 2010 Submission submitted that persons opposed to the Iranian regime were persecuted, and relied, in part, on “Country information regarding present situation in Iran”,[77] and specifically quoted a United States State Department Report on Iran published on 11 March 2010 which made reference to:
[76] Ground 1 – particular (c).
[77] CB 109 – heading.
The independent information clearly indicates that people in Iran who are perceived to be political dissidents, or imputed with dissident opinions, are subjected to systematic abuse by the Iranian authorities, including the Basiji, Sepah and the Islamic Revolutionary Guard Corps. It is consistently reported that the Iranian authorities detain, beat, torture and execute those who are perceived to oppose the Iranian regime. In particular, we refer to the following extract from the US State Department Report on Iran published on 11 March 2010:
“…
There were reports that the government and its agents committed multiple acts of arbitrary or unlawful killings during the year. During the June [2009] election protests, scores of protesters and nonprotesting bystanders were killed, especially during antigovernment rallies; …”[78]
The IMR, however, simply determined that, as a matter of fact, the frequency or length of detention, or the treatment whilst detained, of the applicant, would not constitute serious harm, and did so without relying on adverse country information.
[78] CB 109.
As to paragraph 83 that is a statement of fact which, on the country information, is neither adverse to the applicant nor likely to be in dispute, as it is purely factual and most likely incontrovertible.[79]
[79] M1015 at para.54 per Weinberg J.
As to paragraph 89 there was, simply, no reliance on adverse country information. Rather, the applicant’s claims of abuse were accepted, but considered not to be serious harm because they were not systematic.
Paragraph 90 involves a consideration of fact unaffected by country information, namely, that the applicant was prevented from attending prayers, but, in the absence of corroborative country information the IMR did not accept that:
a)the prevention occurred for a Convention reason; or
b)it amounted to serious harm.
Paragraph 90 is therefore a paragraph reliant on an absence of corroborative country information, not upon a failure to draw country information to the attention of the applicant.
Insofar as paragraph 93 refers to country information previously referred to by the IMR, it adds nothing to the applicant’s argument because, for reasons set out above, that country information is not adverse to the applicant.
Paragraph 94 reflects a conclusion clearly available on the country information to which the IMR had referred, namely, that persons who leave Iran illegally may face penalties upon their return, not for any Convention reason, but because they have contravened a law generally applicable in Iran in relation to the manner of their exit from Iran.
Paragraph 96 is a view based on the applicant’s history as a non-activist, that is, a person who has done nothing to raise the possibility of his being identified as a traitor, terrorist or spy upon his return to Iran.
There is therefore nothing in the “Findings and Reasons” which supports the applicant’s claim that particular country information was not drawn to his attention, at least not insofar as it might be adverse or effect an adverse outcome in respect of the applicant’s claims.
IMR’s conclusion
Paragraph 99 is a conclusion based on the “Findings and Reasons”, and therefore takes the matter no further.
Conclusion – IMR Recommendation
For the reasons set out above, ground 1 – particular (a) of the grounds of the application has not been made out because the country information relied on, and the outcomes arising from the use of that information, were not adverse to the applicant.
Particular (b) – failure to consider an integer of the applicant’s claim - his statelessness
Applicant’s submissions
The applicant submits that:
a)one of the claimed bases for the applicant’s claim for refugee status was that, as a stateless Faili Kurd, the applicant was precluded from re-entering Iran;[80]
b)the IMR did not address this ground in the IMR Recommendation; and
c)the IMR’s failure to do so denied the applicant procedural fairness.[81]
[80] CB 105, 120 and 122.
[81] Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Minister’s submissions
The Minister submits that:
a)a fair reading of the IMR Recommendation shows that the IMR did consider the applicant’s statelessness in making his findings and recommendations;
b)the IMR specifically noted that it had been submitted that the applicant had a well-founded fear of persecution for reasons which included his membership of a particular social group, namely stateless persons;[82]
c)in his consideration of the applicant’s claims under the heading “Findings and Reasons”, the IMR accepted that the applicant is stateless, and accepted that his country of former habitual residence is Iran;[83]
d)the IMR proceeded to assess the applicant’s claim to fear persecution because of his alleged membership of a particular social group. The IMR concluded that the applicant is not denied benefits because he is a member of a particular social group, but as a result of the State’s laws of general application, those laws are not discriminatory, and he did not accept that they are applied in such a way as to create a particular social group from a group that otherwise has no defining characteristic, attribute, activity, belief, interest, goal, aim or principle.[84] In considering this claim, the IMR clearly had regard to the applicant’s statelessness; and
e)further, and in any event, the IMR did not accept that the deprivations of which the applicant complained amounted to serious harm in the relevant sense, having regard to s.91R(2) of the Migration Act.[85] So, even if the IMR had failed to take into consideration the applicant’s statelessness in assessing his claims in relation to those deprivations, it would not amount to jurisdictional error.[86]
Consideration – ground 1 – particular (b)
[82] CB 118, 120 and 122 at paras.12, 14 and 19.
[83] CB 125 at para.44.
[84] CB 129-130 at para.77.
[85] CB 129 at paras.70-75.
[86] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”); CB 129.
The law
The applicable law is not in dispute in this case, but rather its application to the facts of the matter.
In Dranichnikov v Minister for Immigration & Multicultural Affairs[87] the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;[88]
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[89] and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[90]
[87] (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”).
[88] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[89] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ. See also Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where it was said that: “The failure to deal with the claim was a denial of procedural fairness”, because the Minister was not informed upon a question he had been asked to consider.
[90] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
The High Court said that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.[91]
[91] Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun v Minister for Immigration & Multicultural Affairs[92] the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[93]
[92] (2001) 194 ALR 244 (“Htun”).
[93] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.[94]
[94] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
What is required of the decision-maker was described in practical terms by this Court in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[95] where the Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”[96] and of “a specific consideration of the claim”.[97]
[95] [2006] FMCA 1454 (“MZXIV (No. 2)”).
[96] MZXIV (No. 2) at para.44 per Riley FM.
[97] MZXIV (No. 2) at para.45 per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs,[98] namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[99]
[98] (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”).
[99] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
The claim
Was the claim of persecution on the basis of being a stateless Faili Kurd precluded from re-entering Iran actually made and clearly articulated?
The applicant asserts that one of the claimed bases for the applicant’s claim for refugee status was that, as a stateless Faili Kurd, the applicant was precluded from re-entering Iran. In the November 2010 Submissions the applicant’s lawyers wrote as follows:
Our client fears returning to Iran, on grounds of persecution by the Basiji due to his ethnicity (Faili Kurd) and membership of a particular social group (stateless persons).
…
· The Iranian government does not allow entry back into Iran if a refugee has been living outside Iran; therefore, our client will be unable to return.[100]
[100] CB 105.
The IMR Recommendation notes the “following significant points” from the November 2010 Submission:
· The Basiji can easily identify the claimant as a Faili Kurd because of his lack of identification;
· The Iranian government will not allow re-entry of refugees;[101]
[101] CB 120.
At the IMR Interview the IMR Recommendation records that the applicant submitted that:
· The claimant has no ID, which precludes his return to Iran.[102]
[102] CB 122 at para.19.
The claim was therefore made, and clearly articulated.
Was the claim of persecution on the basis of being a stateless Faili Kurd precluded from re-entering Iran identified and considered by the IMR?
Paragraph 96 of the IMR Recommendation is set out above,[103] and at paragraph 97 of the IMR Recommendation the following is said:
97.It may be the case that, having left Iran illegally and having no identification papers the claimant will have difficulty re-entering Iran but that would not be for reason of any convention ground rather it would be as a result of laws of general application.
[103] See para.32 above.
Ultimately, the IMR found that there was not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future on the basis of any Convention ground, “should he return to his country of reference”[104] or “the country of his former habitual residence”,[105] being Iran.
[104] CB 132 at para.98.
[105] CB 132 at para.99.
In the above circumstances, it is clear that the IMR has identified the applicant as being a Faili Kurd from Iran, and has accepted that he is stateless,[106] and that he left Iran illegally; and that because he has no identification papers (because he is stateless), that he may have difficulty re-entering Iran. In the circumstances, the Court is of the view that the claim has been identified, and that it has been considered, by the IMR. Furthermore, any refusal of re-entry is identified as not being related to Convention grounds, but to laws of general application in Iran.[107]
[106] CB 125 at para.44.
[107] CB 132 at para.97.
Conclusion – ground 1 – particular (b)
In the above circumstances, the Court considers that the claim of persecution on the basis of being a stateless Faili Kurd precluded from re-entering Iran has been identified and considered by the IMR, and on that basis there is no jurisdictional error. Further, and in any event, there could be no jurisdictional error, because of the IMR’s conclusion, which was available to it on country information, that any difficulty in re-entering would be as a result of laws of general application relating to a lack of identity papers, rather than any Convention ground.
In all the circumstances, particular (b) of ground 1 is not made out.
Particular (c) – failure to make inquiries as to the risk of persecution to failed asylum seekers returning to Iran after the 2009 elections
Applicant’s submissions
The applicant submits that:
a)the IMR Recommendation records that failed asylum seekers may be subject to varying degrees of ill-treatment by authorities upon return to Iran, and that conclusions as to safety from persecution of such people that were drawn prior to the 2009 Iranian presidential election are no longer valid.[108] Indications are that the likelihood of persecution for such people has increased.[109] At June 2010 it was noted by Human Rights Watch that “Iran’s government is tightening its grip…..”;[110]
b)against that background the need for further inquiry was obvious as to the risk of persecution of the applicant as a failed asylum seeker being returned to Iran, in particular;
c)instead, the IMR simply “accepted” that there was a real chance the applicant would be questioned periodically and detained for short periods when he fails to produce identification, should he return to Iran;[111] and
d)the failure of the IMR to make such inquiry, and instead to simply make a decision adverse to the applicant amounted to a denial of procedural fairness.[112]
[108] CB 124 at paras.31-32.
[109] CB 124 at para.32.
[110] CB 124 at para.33.
[111] CB 130 at para.81.
[112] M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 16 at para.76 per Lee J.
Minister’s submissions
The Minister submits that:
a)the applicant made no specific claim to fear persecution if returned to Iran on the basis that he was a failed asylum seeker in Australia. The RSA Decision nevertheless gave consideration to whether the act of seeking asylum overseas may cause the applicant to be seriously harmed by the authorities on return to Iran, and referred to Department of Foreign Affairs and Trade[113] advices that it was not aware of a widespread pattern of maltreatment by authorities of returning failed asylum seekers, but that a public profile inside Iran would increase the risk of maltreatment, particularly if the bid for asylum was publically known. The DFAT advices further noted that the DFAT was not aware of any specific instances of this occurring, and that it was not aware of any specific information to suggest that the act of applying for asylum per se would trigger maltreatment by the Iranian authorities;[114]
b)the applicant’s lawyers provided detailed written submissions to the IMR in support of their client’s claims to have a well founded fear of persecution for reasons under the Convention if he was to be returned to Iran, and the submissions referred to various country information;[115]
c)the applicant’s lawyers must be taken to have been aware of the implied conclusion in the RSA Decision that the applicant did not have a well-founded fear of persecution by reason of having sought asylum in Australia if he were to return to Iran. Their submissions[116] did not, however, seek to raise this issue by claiming that the applicant would face conduct amounting to persecution if returned to Iran because he was a failed asylum seeker, and they did not provide any country information which suggested persecution for any such reason; and
d)there was, therefore, no obligation on the IMR to make any further enquiries regarding the position of asylum seekers who return to Iran, and this claimed breach of procedural fairness is not made out.
[113] “DFAT”.
[114] CB 94-96.
[115] CB 104-113.
[116] CB 104-113.
Consideration – ground 1 – particular (c)
Minister for Immigration and Citizenship v SZIAI[117] dealt with whether or not jurisdictional error occurred where an administrative decision-maker failed to undertake its own inquiries to ascertain relevant facts.
[117] (2009) 83 ALJR 1123; [2009] HCA 39 (“SZIAI”).
In SZIAI the visa applicant had submitted documents received from Bangladesh concerning his membership of an Ahmadiyya Muslim organisation for consideration by the Refugee Review Tribunal. The Refugee Review Tribunal contacted a local branch of the Ahmadiyya Muslim Association in Australia. That association said that the certificates obtained in Bangladesh were forgeries and annexed a letter from the National Ameer of the Bangladeshi Ahmadiyya Muslim Organisation indicating that there was no record of the visa applicant’s membership. The Refugee Review Tribunal used this information to draw conclusions about the visa applicant’s credibility: in short it found that he was not a witness of truth and that his evidence was not to be accepted. The visa applicant’s application for review was dismissed.[118]
[118] SZIAI ALJR at 1125-1126 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at paras.3-8 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In the Federal Court, before a single Judge on appeal, the Refugee Review Tribunal decision was quashed because it was said that the facts gave rise to a duty for the Tribunal to make further inquiries of the authors of the Bangladeshi documents.[119] In relation to those documents the Refugee Review Tribunal had been provided with telephone numbers for the authors.[120]
[119] SZIAIv Minister for Immigration and Citizenship (2008) 104 ALD 22 at 27-28 per Flick J; [2008] FCA 1372 at para.25 per Flick J (“SZIAI-Federal Court”).
[120] SZIAI-Federal Court ALD at 26-27 per Flick J; FCA at paras.20-21 per Flick J.
In SZIAI the High Court recognised that failure to make obvious inquiries about a critical fact, the existence of which is easily ascertained, might affect a decision in some way such as to constitute jurisdictional error.[121] The High Court held that no duty arose. This was because further inquiries concerning the authenticity of the certificates would not have yielded any useful result. If the authors of the certificates were contacted, and said that the documents were forged, there were stronger grounds for the Refugee Review Tribunal’s decision. If not, then nothing was added to the statements effectively conveyed by the certificates themselves.[122] Also, it was noted that neither the applicant nor his solicitors were able to add anything beyond the bare denial of the allegation in the National Ameer’s letter that the certificates were forgeries. For those reasons, there was no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review, or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.[123]
[121] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.25 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[122] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.26 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[123] SZIAI ALJR at 1129 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; HCA at para.26 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The institution of independent inquiries by an administrative reviewer has been described as a “relatively rare case”,[124] and “strictly limited”,[125] and is therefore the exception, and not the rule. Additionally, it is relevant to note that it is a repeatedly recognised feature of administrative decision-making that it is no part of the task of the decision-maker to make out an applicant’s case.[126]
[124] Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J; [2000] FCA 589 at para.214 per Wilcox J.
[125] Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at 298 per Greenwood J; [2008] FCAFC 108 at para.109 per Greenwood J.
[126] See, for example, Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J.
The existence of a “critical fact” which is “easily ascertainable” is the purpose of any further inquiry, and it must be a fact which relates to the particular circumstances of the individual case under review.
In this case what “critical fact” is “easily ascertainable” by further inquiry? With whom would the IMR have made inquiry as to whether this particular applicant was at risk of persecution? Resort to further so-called “country information” would probably have yielded similar material to that already considered by the IMR. On the one hand assertions that the grip of the Iranian regime was tightening, whatever that generality precisely means, and that the likelihood of persecution for returning failed asylum seekers had increased. On the other hand, more cautious, but arguably more specialist, advice may have been given, as was the case with the DFAT advices, such that there was not an awareness of any specific instances of maltreatment of returned failed asylum seekers, or any specific information to suggest that applying for asylum would result in maltreatment by the Iranian authorities on the return of the failed asylum seeker to Iran.
To some extent the “facts” such as they are, conveyed in so-called “country information”, might depend on who is being asked questions concerning conditions in a country, and who is writing about those conditions. Of course, if the facts were truly “easily ascertainable” the IMR might have made inquiries of the appropriate Iranian government official or officials to confirm whether or not a returning failed asylum seeker in the applicant’s position would be exposed to a real chance of serious harm for a Convention reason if he returned to Iran. But even that cannot be done, and certainly not done with any particularity, for as the RSA Decision points out, the Australian government treats as confidential the claims made and would not divulge them to the Iranian government.[127]
[127] CB 96.
To impose a duty to inquire in this case is to effectively impose a duty to inquire wherever there are conflicts in the evidence, or evidence which might lead an administrative reviewer to different results. There can be no duty to inquire in such cases, for if there was, the duty to inquire would be the rule and not the exception, and that is inconsistent with authority.
In any event, the question of whether or not there is a risk of persecution to failed asylum seekers returning to Iran is, on the evidence, a keenly contested and disputed issue, and not one which might give up easily ascertainable facts.
In the circumstances, this is not a case in respect of which the IMR was obliged to make further inquiries as to the risk of persecution to failed asylum seekers returning to Iran after the 2009 elections as it was not a case in respect of which critical facts were easily ascertainable in the sense referred to in the authorities, and it was not part of the IMR’s role to make out the applicant’s case.[128]
[128] An example of a critical fact which is easily ascertainable occurred in WZANF v Minister for Immigration & Citizenship & Anor [2010] FMCA 110 (“WZANF”). In WZANF a critical question arose, both as to the facts and the credibility of the applicant, as to whether or not the applicant had been named and pictured in a regional Turkish newspaper as attending a demonstration. The Refugee Review Tribunal, despite receiving a photocopy of the alleged article, based on issues of credibility, refused to make further inquiries as to the authenticity of the newspaper account. There was evidence that the newspaper was archived, and this Court found that because it was a critical document, and because it would have been corroborative of a number of the integers of the applicant’s claim, the Refugee Review Tribunal committed a jurisdictional error by failing to require the secretary of the Department to arrange for the making of inquiries as to the existence of the newspaper, the publication of the newspaper article, and the possibility of obtaining a copy, not necessarily the original, of the newspaper article from the newspaper’s archives in Turkey: WZANF at paras.106-107 per Lucev FM.
The latter point in the previous paragraph takes on additional importance when one has regard to the fact that the applicant was obviously aware of the nature and effect of the June 2009 presidential election in Iran, and in fact made submissions with respect to that issue. In the applicant’s entry interview the applicant, when asked what would happen to him if he was to be returned to Iran, indicated that “After the elections” the Iranian government would “have no mercy to the Iranian people” and “may accuse” the applicant “of being a traitor or a terrorist”.[129] The November 2010 Submissions, an extract from which appears above,[130] suggests that it is only political dissidents or those imputed with dissident opinions, who are subject to systematic abuse by the Iranian authorities, and the submission specifically refers to the June 2009 election protests.[131]
[129] CB 25.
[130] See para.53 above.
[131] CB 109.
The IMR was patently aware of the deterioration in Iran’s human rights record after the June 2009 presidential election, and specifically adverts to this, a fact which gives rise to the present ground of application.[132] It is not however for the IMR to make the applicant’s case, and to the extent that the applicant has made a case based on the effect of the June 2009 presidential election, it is a case which precludes the applicant because there is no evidence to suggest that either in Iran, or on his return to Iran, he would be considered a political dissident or imputed with the attributes of a political dissident. There was no dispute that the applicant had no profile as a political dissident.[133] It was suggested that because the applicant was a Faili Kurd he may be imputed with anti-government opinions by the Basij,[134] but the IMR found that the applicant had not behaved in any way which would be likely to attract the adverse attention of the Iranian state or its agents, the Basij, such as to give rise to a real chance of serious harm.[135]
[132] CB 124 at para.32.
[133] CB 110.
[134] CB 110.
[135] CB 132 at para.95.
It was open to the applicant to put submissions with respect to this issue, and to a certain extent it did, but that information was not such as to persuade the IMR that there was a risk of serious harm. It was not then for the IMR to make further inquiries so as to make out the applicant’s case, if indeed it was capable of being made out, on the basis of this particular.
In the circumstances, particular (c) of ground 1 of the application is not made out.
Ground 2– failure to apply correct legal test in relation to assessment of risk of serious harm
Section 91R(1) and (2) of the Migration Act provides as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Particular (a) – being detained for short periods
Applicant’s submissions
The applicant submits that:
a)the IMR made a legal error in that he failed to apply the correct legal test as to what constitutes “serious harm” for the purposes of s.91R of the Migration Act;
b)a threat to a person’s liberty for the purpose of s. 91R(2)(a) of the Migration Act must be of comparable gravity to the other instances of serious harm in s.91R(2) of the Migration Act.[136] Apart from that caveat, s.91R(2)(a) of the Migration Act is not subject to any qualitative precondition. In other words, the length of period of detention, frequency of detention or conditions of detention with which a person is threatened are not relevant to the assessment of whether there is a risk of “serious harm”;
c)the wording of s.91R(2)(a) of the Migration Act in this regard is consistent with previous reasoning of the High Court that distinguishes between unjustifiable imprisonment which “invariably” constitutes persecution, and some types of economic harm or interference with civil rights which may not be of a quality to amount to persecution;[137]
d)the IMR accepted that there was a real chance that the applicant would be detained for “short periods” in the reasonably foreseeable future when he fails to produce identification should he return to Iran;[138]
e)the IMR did not accept that “the frequency or length of detention, or the treatment he will receive whilst in detention will involve serious harm within the meaning of the [Migration Act]”.[139] The IMR’s reasoning was that detention had to be “sufficiently significant” to amount to serious harm;[140] and
f)in reaching that conclusion, the IMR evidently misapplied s.91R(2)(a) of the Migration Act by incorrectly importing additional requirements or considerations as to the quality of the detention to the assessment of whether the applicant’s liberty was threatened.
[136] Citing VBAO v Minister for Immigration & Multicultural Affairs (2006) 233 CLR 1 at 9 per Gummow J; [2006] HCA 60 at para.20 per Gummow J (“VBAO”).
[137] Citing Haji Ibrahim CLR at 18-19 per McHugh J; HCA at para.55 per McHugh J.
[138] CB 130 at para.81.
[139] CB 130 at para.81.
[140] CB 130 at paras.81-82.
Minister’s submissions
The Minister submits:
a)the IMR did not fail to apply the correct legal test as to what constitutes “serious harm” for the purposes of s.91R of the Migration Act;
b)in discussing what constitutes “persecution” the IMR noted the High Court’s explanation of the degree of harm that would be required to constitute persecution under the Convention in Haji Ibrahim.[141] The High Court noted that “the infliction of many forms of economic harm and interference with many civil rights may not reach the standard of persecution”, and that similarly, “while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution”;[142]
c)the IMR then noted that under s.91R(1)(b) of the Migration Act, persecution must involve serious harm, and that s.91R(2) of the Migration Act sets out “a non-exhaustive list of the type and level of harm that will meet the serious harm test”.[143] The IMR further noted that under s.91R(1)(c) of the Migration Act the persecution must also involve systematic and discriminatory conduct;[144]
d)the IMR accepted that there is a real chance that the applicant will be questioned periodically, and probably detained for short periods, when he fails to produce identification, should he return to Iran.[145] The IMR concluded, however, that “Having regard to the guidance provided by s 91R(2)(a), (b) and/or (c), I do not accept that the frequency or the length of detention, or the treatment [the applicant] will receive whilst in detention will involve serious harm within the meaning of the [Migration Act].”;[146]
e)in light of the IMR’s finding that the applicant would probably be detained for short periods when he fails to produce identification, the IMR’s conclusion that the frequency or length of the applicant's detention would not involve “serious harm”, does not demonstrate that the IMR applied an incorrect test as to what constitutes “serious harm” for the purposes of s.91R of the Migration Act;[147]
f)the applicant submits that the IMR’s reasoning was that the detention had to be “sufficiently significant” to amount to serious harm, and contends that in reaching that conclusion the IMR “misapplied paragraph 91R(2)(a) of the [Migration Act] by incorrectly importing additional requirements or considerations as to the quality of the detention”;[148]
g)the applicant thereby appears to be contending that any period of detention constitutes “serious harm”, so that the duration and frequency of possible detention are not to be considered. The applicant is, however, making a fundamental error in equating “a threat to the person’s … liberty” to any detention whatsoever. To be detained for a number hours on a number of occasions does not constitute a threat to the person’s liberty;
h)the applicant’s evidence was that he had been detained once for 48 hours, and on other occasions (approximately 30) for periods between 2 and 12 hours.[149] This must be seen in the light of the applicant’s evidence that he was 22 to 26 years old (he didn’t know his date of birth), and that he had worked on farms in the area since he was 10 years old,[150] so his detentions by the Basij must have taken place over many years;
i)whether a particular detention or series of detentions constitutes “a threat to a person’s liberty” is a matter for evaluation and judgment, dependent upon the period or periods of time of such detention or detentions and their frequency, upon which reasonable minds might well differ. It is not the case that no reasonable person could conclude that possible future detention of the applicant for short periods should he return to Iran would not amount to “serious harm” by constituting a threat to the person’s liberty; and
j)further, and in any event, the IMR found that even if future short periods of detention of the applicant did amount to serious harm, he was not satisfied that they would be for the essential and significant reason of one of the Convention grounds.[151] Accordingly, even if the Court was to find that the IMR had applied an incorrect test, in the circumstances of this particular decision that would not constitute jurisdictional error.[152]
[141] CB 126 at para.51.
[142] Haji Ibrahim CLR at 18-19 per McHugh J; HCA at para.55 per McHugh J.
[143] CB 126-127 at paras.52 and 53.
[144] CB 127 at para.54.
[145] CB 130 at para.81.
[146] CB 130 at para.81.
[147] CB 130 at para.81.
[148] See paragraphs 37 and 38 of the Applicant’s Outline of Submissions.
[149]See Annexure “A” to affidavit of Shayla Strapps affirmed 21 December 2011 at page 9.
[150] CB 9, 11, 59 and 60.
[151] CB 130 at para.82.
[152] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
Consideration – ground 2 – particular (a)
There may be cases where the risk of harm to a person during even a short period of punishment is so serious that a real chance of serious harm in the future is established. On the facts, the IMR concluded that this was not such a case, and that the applicant was only at risk of non-serious harm caused by the short periods of detention meted out to persons for the non-Convention related reason of their having no identification documents.
In VBAO it was said by one member of the High Court that:
19. It is trite to observe that the six paras (a)-(f) of s 91R(2) should be considered together; they all take their colour from the specification of “serious harm” in the opening words of the sub-section. That phrase in turn may be traced to judicial statements such as that of Mason CJ in Chan to which reference has been made. His Honour also used the adjective “significant” to describe a detriment or disadvantage which answers the description of persecution (15). The phrase “a threat” to life or freedom was used in Chan by Dawson J (16). The term “significant” qualifies the physical harassment, physical ill-treatment and economic hardship spoken of in paras (b), (c) and (d) of s 91R(2). The consequence of an action or state of affairs spoken of in paras (d), (e) and (f) must be one which “threatens the person’s capacity to subsist”.
20. This reading of the whole of the text of s 91R(2) suggests that no less an element of comparable gravity is involved in the stipulation of a threat to the life or liberty of the person in question. More is required than a possibility which is capable of instilling a fear of danger to life or liberty.[153]
[153] VBAO CLR 9 per Gummow J; HCA at paras.19-20 per Gummow J.
Only the latter paragraph in the above extract from VBAO was relied upon in submissions by the applicant. The latter paragraph must however be read, in context, with the former paragraph. When that is done it can be seen that the assessment of the comparable gravity of the instances of serious harm is s.91R(2) of the Migration Act requires an assessment of the significance of a threat to the life or liberty of the person in question. The “element” referred to in the latter paragraph is the element of significance referred to in the former paragraph in the above extract from VBAO. Thus, in applying a test of “sufficiently significant” to the question of serious harm in relation to a threat to liberty under s.91R(2)(a) of the Migration Act the IMR did not commit a jurisdictional error, or any other form of legal or procedural error. In this case, the IMR took that test, and applied it to the evidence in relation to the periods of, and frequency of, the applicant’s past attention, in order to assess the risk of future detention, in combination with the relevant country information.[154] In those circumstances, to assert that there is a jurisdictional error is wrong. For the Court to interfere in the IMR’s assessment would be for the Court to engage in merits review which is, of course, impermissible.[155]
[154] CB 130 at paras.79-84.
[155] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In any event, jurisdictional error could not be established because the IMR concluded, as the IMR was entitled to do, that the reason for the periodic detention of the applicant was not for a Convention reason, but rather by reason of his not being in possession of identification papers which resulted in detention because of laws of general application in Iran. Particular (a) of ground 2 is, therefore, not made out.
Particulars (b) and (c) – the capacity to subsist
Applicant’s submissions
Entitlement to Education, Hospital Treatment and to Marry
The applicant submits that:
a)the IMR accepted that, if returned to Iran, the applicant would be denied in the reasonably foreseeable future many benefits afforded to Iranian citizens including restrictions on his ability to become educated, obtain hospital treatment and get married;[156]
b)the IMR concluded that none of these matters individually or in combination amounted to serious harm. In reaching that conclusion, the IMR appears to have formed the view that it was necessary for each of those restrictions to lead to economic hardship, affect the applicant’s access to basic services or affect his ability to earn a livelihood as identified in s.91R(2)(d)-(f) of the Migration Act before they could be assessed as “serious harm”;[157] and
c)in approaching the issue in this way the IMR incorrectly applied s.91R(2) of the Migration Act. The subsection is not a code. It is a non-exhaustive list of instances of serious harm for the purposes of s.91R(1)(b) of the Migration Act.
[156] CB 128 at para.65.
[157] CB 128 at para.66.
Ability to Subsist
The applicant submits that:
a)the IMR found, in substance, that notwithstanding the restrictions on the applicant’s ability to become educated, obtain a reasonable return for his labour and hold property, the applicant, his family and friends had been able to subsist in Iran in the past without recognition of citizenship, “albeit precariously”.[158] The IMR accepted that this position would remain the same for the reasonably foreseeable future.[159] The IMR, however, concluded that this did not amount to “serious harm” for the purposes of s.91R(2) of the Migration Act;[160] and
b)in reaching this conclusion, the IMR again misapplied the correct legal test as to what constitutes “serious harm” in that he failed to address the criterion in s.91R(2)(d)-(f) of the Migration Act that the economic hardship, denial of access to basic services and denial of capacity to earn a livelihood must threaten the person’s capacity to subsist. Having concluded that the applicant’s ability to subsist was “precarious”, that criterion had been satisfied. It appears that the IMR instead incorrectly reasoned that to establish “serious harm” an applicant must demonstrate an actual rather than threatened inability to subsist.
[158] CB 129 at para.67.
[159] CB 128-129 at paras.65-67.
[160] CB 129 at para.74.
Minister’s submissions
The Minister submits that the IMR found that the applicant and his family and friends appear to have been able to subsist in the past, and that there was no evidence to suggest that the situation would not continue in the same way for the reasonably foreseeable future.[161] This was a finding that was reasonably open to the IMR, and his reference to that ability to subsist being “albeit precariously”, does not provide any basis for a finding that the IMR applied the wrong test in looking at the aspects of discrimination previously suffered by the applicant in Iran.
[161] CB 128-129 at para.67.
Consideration – ground 2 – particulars (b) and (c)
There is no doubt that the IMR accepted that the detrimental mistreatments alleged by the applicant in his past life in Iran would be likely to continue if he returned to Iran. The IMR did not however consider that, either individually or collectively, the detrimental mistreatment amounted to serious harm for the purposes of s.91R(1)(b) of the Migration Act.[162] In that regard, the IMR applied the relevant test, that is, whether the alleged persecution involves serious harm to the person, and arrived at a factual conclusion. There can be no criticism of that approach, and it involves no jurisdictional error.
[162] CB 129 at para.74.
The applicant, however, also complains that the IMR took a codified approach to the assessment of serious harm, seemingly such as to only apply the tests set out in s.91R(2) of the Migration Act, and in particular paragraphs (d)-(f), to the assessment of what constituted serious harm. In the Court’s view, the IMR Recommendation ought to be given a reading consistent with the approach suggested in Wu Shan Liang, that is, essentially, that it ought not be over-analysed.[163] There is no doubt that the IMR did indicate that in arriving at the finding that the applicant would not suffer serious harm in accordance with s.91R(1)(b) of the Migration Act,[164] that “regard” was had “to the guidance provided by s.91R(2)” of the Migration Act.[165] There is, however, no error in having regard to s.91R(2) of the Migration Act, and the guidance provided by it. Indeed, were the IMR not to do so, that may found a jurisdictional error. To interpret having “regard … to the guidance provided by s.91R(2)” of the Migration Act in reaching the finding that the applicant was not subject to persecution involving serious harm, as the application of a code is to over-analyse the IMR Recommendation and its findings. To have regard to something is not, without more, to adopt it as a code, as suggested by the applicant’s submissions. In this respect there was no misapplication of the correct legal test by the IMR, and no jurisdictional error.
[163] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[164] See CB 128-129 at paras.66, 70 and 74.
[165] See CB 128-129 at paras.66, 70 and 74.
The IMR was cognisant of the necessity to assess each case of an alleged inability to subsist on its own merits.[166] In this instance, the IMR has traversed each of the elements which the applicant says threatens his ability to subsist if returned to Iran, and found, in part based on past experiences, that the applicant has been “able to subsist … albeit precariously” in the past,[167] and that there is no evidence that that situation will not continue in the same way for the reasonably foreseeable future.
[166] CB 123 at para.25.
[167] CB 128-129 at para.67.
It is the use of the words “albeit precariously” which appear to lend some substance to the applicant’s claim that there will be, in the future, significant economic hardship, denial of access to basic services and denial of a capacity to earn a livelihood, which “threatens” his “capacity to subsist”.[168]
[168] Migration Act, s.91R(2)(d)-(f).
Albeit precariously, the applicant has, on the evidence before the IMR been able to subsist in the past, and the IMR has concluded that the past situation is likely to continue, which means that the applicant will continue to subsist in the future. That is, of itself, probably sufficient to dispose of the applicant’s assertions under particulars (b) and (c) of ground 2. It is, however, appropriate to deal with the applicant’s submissions on, and the effect of, the use by the IMR of the words “albeit precariously”.
To isolate the words “albeit precariously” and focus on their meaning is to narrow too much the focus of the inquiry made by the IMR. The entirety of the IMR Recommendation must be considered. And when the entirely of the IMR Recommendation as it relates to the subsistence issues is considered, it can be seen that the IMR’s focus was broader, and he specifically considered factors such as the applicant’s:
a)family situation;
b)age and capacity to “make his own way”;[169]
c)capacity to obtain accommodation and shelter through renting property;
d)ability to obtain hospital treatment;
e)ability to get married legally;
f)ability to obtain insurance; and
g)ability to obtain property,
in determining whether or not the applicant would be likely to suffer serious harm in the future.[170]
[169] CB 129 at para.68.
[170] CB 129 at paras.68-74.
The IMR concluded having regard to a broad range of factors, considered individually and collectively, as set out above, that “in the relevant sense”:[171]
a)the factors did not constitute serious harm;[172] and
b)the applicant had no basis for a well-founded fear of persecution.[173]
[171] CB 129 at paras.74 and 75.
[172] CB 129 at para.74.
[173] CB 129 at para.75.
Taking the entirety of the IMR’s consideration of the subsistence issues into account, and reading them in context, the Court is of the view that whilst the IMR may have had doubts about the applicant’s ability to subsist, he ultimately concluded that there was no risk of future serious harm, and that, by definition, excludes a conclusion that there is likely to be, in the future, significant economic hardship, denial of access to basic services and denial of a capacity to earn a living, which “threatens” the applicant’s “capacity to subsist”.[174]
[174] Migration Act, s.91R(2)(d)-(f).
In any event, and finally, the IMR found that any economic hardship, or denial of benefits and services, was not Convention related, but related to the application of laws and general application in Iran.
In all the circumstances there was no jurisdictional error as alleged to have been committed by the IMR, and no other relevant error. Particulars (b) and (c) of ground 2 are not made out.
Ground 3- Failure to take into account relevant considerations
Applicant’s submissions
The applicant submits that:
a)the considerations that the IMR took into account in assessing whether or not the applicant was at risk of serious harm if returned to Iran were limited to a consideration of the consequences of the deprivations the applicant had suffered in the past while living in Iran and was likely to suffer in the future, namely, his inability to obtain hospital treatment, get married, obtain a reasonable return for his labour, hold property or obtain insurance;[175]
[175] CB 128-129 at paras.64-75.
b)the IMR also appears to have considered and concluded, although apparently in the context of considering whether the above deprivations were suffered by the applicant for a Convention reason, that the applicant would be detained for short periods “when he fails to produce identification”, should he return to Iran;[176]
[176] CB 130 at para.81.
c)the IMR had, however, earlier noted that failed asylum seekers may be subject to varying degrees of ill-treatment by authorities upon return to Iran and, further, conclusions as to safety from persecution of such people that were drawn prior to the 2009 Iranian presidential election were no longer valid. Indications were that the likelihood of persecution for such people had increased;[177]
[177] CB 124 at paras.31-33.
d)this consideration was clearly relevant to the IMR’s determination as to whether the applicant met the first criterion of subsection 36(2) of the Migration Act;
e)it is apparent that the IMR failed to take this consideration into account.[178] The failure to do so in the circumstances amounted to a jurisdictional error;
[178] CB 132 at para.95.
f)the IMR also discounted the “question” raised by the applicant of being identified as a “traitor, terrorist or spy” on his return to Iran as a “fear” that was “speculative”. That conclusion was reached apparently on the basis that there was nothing to suggest that the authorities or the Basij had any suspicions about the applicant “at present”;[179]
[179] CB 132 at para.96.
g)the question of whether there was a real chance of persecution necessarily required the IMR to look at the future insofar as it was reasonably foreseeable at the time when he was making his decision;[180]
h)the IMR identified that the applicant had no identification papers and therefore might have difficulty re-entering Iran if returned there.[181] Against that background, the relevant consideration the IMR failed to take into account was the risk of the applicant coming to the attention of the authorities as a failed asylum seeker for that reason, that is, the lack of identification papers;[182]
i)a jurisdictional error in terms of a failure to take into account a relevant consideration was therefore committed by the IMR;
j)additionally, although the IMR concluded that restrictions on the applicant’s ability to become educated did not individually or together with other deprivations, amount to serious harm for the purpose of s.91R(1)(b) of the Migration Act,[183] the IMR did not in his assessment of the claim give specific consideration to:
i)the extent to which the applicant was unable to obtain an education;
ii)the consequences of any such inability; and
iii)whether in those circumstances the inability of the applicant to obtain an education amounted to “serious harm” for the purpose of s.91R(1)(b) of the Migration Act, either alone or together with the other deprivations to which the applicant was subject;[184] and
k)the IMR acknowledged in the IMR decision, in substance, the relevance of an inability to obtain an education to consideration of the issue of persecution and serious harm.[185] Having done that, it was necessary for the IMR to then consider and determine the specific matters referred to immediately above. His failure to do so constituted a jurisdictional error.
[180] Mok v Minister for Immigration, Local Government & Ethnic Affairs & Anor (1993) 47 FCR 1 at para.96 per Keely J.
[181] CB 132 at para.97.
[182] See the discussion in 1001288 [2010] RRTA 912 at [145]-[148].
[183] CB 128-129 at paras.65-67.
[184] CB 128-129 at paras.67-75.
[185] CB 128 at para.65-66.
Minister’s submissions
The Minister submits:
a)particular (a) of Ground 3 asserts that the IMR failed to take into account evidence that the risk of persecution involving serious harm of failed asylum seekers returned to Iran, stateless Kurds and undocumented Kurds has increased since July 2010;
b)particular (b) asserts that the IMR failed to take into account the likelihood of the applicant coming to the attention of the Iranian authorities as a failed asylum seeker because of his undocumented status, if returned to Iran;
c)in considering the applicant’s claims to have a well founded fear of persecution for one of the Convention reasons, the IMR was required to consider the applicant’s claims and their component integers;[186]
d)neither the applicant nor his lawyers claimed that he had a well founded fear of persecution for a Convention reason if he was to return to Iran as a failed asylum seeker, whether or not he was undocumented. Accordingly, if the IMR did fail to take into account evidence about that matter, or failed to take into account the likelihood of the applicant coming to the attention of the Iranian authorities as a failed asylum seeker because of his undocumented status, this did not involve any jurisdictional error. This was not a claim or an integer of a claim made by the applicant;
e)in any event, it is clear from the IMR Recommendation, that the IMR did take into account the applicant’s claims to have a well founded fear of persecution for a Convention reason by reason of his being a stateless, undocumented Kurd;
f)further, the applicant has not established that the IMR did not take into account the evidence set out at paragraph 31 of the IMR Recommendation.[187] It is to be borne in mind that the information as to possible ill-treatment of failed asylum seekers was that this was “particularly if they have publicly renounced the extant political and/or religious regime”, and that neither the applicant himself, nor his lawyers in their submissions, made a claim based upon his being a failed asylum seeker. In those circumstances, it is hardly surprising that the IMR did not refer to this evidence again in the Findings and Reasons section of his Statement of Reasons or make a finding as to whether the applicant faced a real chance of persecution because he was a failed asylum seeker or a failed asylum seeker who was undocumented;
g)the third particular to ground 3 is the assertion that the IMR failed to consider whether, and the extent to which the applicant being denied education could amount, either alone or together with other factors, to “serious harm”. This claimed failure to take into account a relevant consideration by the IMR has no substance. The applicant was denied education as a child. He is now an adult aged between 23 and 27 years, and neither the applicant nor his lawyers suggested that he feared persecution on the basis that he would be denied education if he returned to Iran. This was never an integer of his claims.
[186] Htun ALR at 259 per Allsop J (with whom Spender J (at 245) agreed); FCA at para.42 per Allsop J (with whom Spender J (at para.1) agreed).
[187] Set out at para.22 above.
Consideration – ground 3
For reasons set out above, it is apparent that the IMR was aware of the worsening human rights position in Iran post the June 2009 presidential election, both from the submissions made by the applicant, and from the Court’s reference to that issue when setting out relevant country information. [188]
[188] CB 25 and 109, and see paras.62-78 generally.
The IMR refers to that country information, albeit generally, at paragraph 93 of the IMR Recommendation, and cites it as the basis for finding that there is no real chance that the applicant will suffer serious harm in the foreseeable future.[189] Furthermore, it needs to be borne in mind that the IMR qualified the position by indicating that the worsening human rights position in Iran post the June 2009 Presidential election meant that:
a)conclusions drawn prior to the election “are no longer necessarily valid”,[190] but did not find that all or any such conclusions were actually invalid; and
b)the position was worse for those failed asylum seekers returning to Iran, particularly if they have renounced the present Iranian political and religious regime,[191] but that the applicant had not done so.[192]
[189] CB 131 at para.93.
[190] CB 124 at para.32.
[191] CB 124 at para.31.
[192] CB 132 at para.95.
In the above circumstances, the Court considers that the allegation that the IMR failed to take into account a relevant consideration, being the the worsening human rights position in Iran post the June 2009 Presidential election, is not made out.
As set out above,[193] the IMR considered country information concerning the return of failed asylum seekers to Iran, and concluded that the position had worsened post the June 2009 Presidential election, but particularly for those who had renounced the present Iranian political and religious regime,[194] but that the applicant was not such a person.[195] In the circumstances it cannot be said that the IMR failed to take into account a relevant consideration, being the risk of the applicant as a failed asylum seeker coming to the attention of the Iranian authorities upon his return to Iran. Reading the IMR Recommendation as a whole, the IMR did take into consideration the position of failed asylum seekers returning to Iran, and considered the applicant’s position in relation thereto. The Court therefore considers that this allegation has not been made out.
[193] See para.22 above, setting out from CB 124 paras.31-32 of the IMR Recommendation.
[194] CB 124 at para.31.
[195] CB 132 at para.95.
As to the alleged failure of the IMR to take into account a relevant consideration in relation to education, it is correct to say that there was never a clearly articulated claim put before the IMR by the applicant in relation to denial of education. It is true that the RSA Decision deals with the denial of education, but it is the denial to “undocumented children”.[196] The applicant is now at least 23 years old, and no longer a child. Save for information that he had little or no schooling,[197] nothing specific in relation to his past educational status or attempts to be educated, and his present and future educational aspirations, was put before the IMR.[198] The IMR is not obliged to make the applicant’s case for him, or to consider a case to a greater extent than is actually put. In this case, and in the above context, the IMR did consider the applicant’s very general assertions concerning a denial of the right to education, and determined, equally generally, that they did not amount to serious harm.[199] The failure here was the applicant’s failure to put a properly articulated case, or indeed any real case, to the IMR. Such case as was put was relevantly considered by the IMR, and there was no failure to take into account a relevant consideration.
[196] CB 86.
[197] CB 11.
[198] CB 110-111.
[199] CB 128 at para.66.
In the above circumstances, none of the alleged failures to take into account relevant considerations has been made out, and it follows that ground 3 has not been made out.
Ground 4 – Failure to Apply Correct Test in Relation to Social Group
Applicant’s submissions
The applicant submits that:
a)the applicant claims a well-founded fear of persecution for reasons of membership of a particular social group, being persons who are undocumented Faili Kurds living in Iran;[200]
[200] CB 127 at para.56.
b)the IMR appears to have concluded that the applicant did not belong to any identifiable social group for the purpose of the Refugees Convention;
c)the process of reasoning leading to this conclusion seems to involve the following propositions:
i)the defining characteristic “which leads to the deprivations” suffered by the applicant is not his status as a Faili Kurd, or as an undocumented Faili Kurd, but his lack of identification papers;
ii)accordingly, consideration need only be given to whether people without identification papers were a social group for the purposes of the Refugees Convention;
iii)the deprivations resulting from a lack of identification papers applied to “anyone living in Iran without such papers”;
iv)those deprivations arise, not because of membership of a social group, but because of the general application of State laws;
v)the laws are not discriminatory and are not applied in a way that create a particular social group;
vi)people without identification papers do not otherwise have any defining characteristic, attribute, activity, belief, interest, goal, aim or principle so as to create a particular social group; and
vii)the IMR therefore did not accept that people without identification papers comprised a social group;[201]
d)the IMR committed a legal error in reaching this conclusion. The IMR set out the correct legal test,[202] however, the IMR did not apply that test, correctly or at all, in determining whether undocumented Faili Kurds living in Iran were a social group for the purposes of the Convention;
e)the IMR wrongly approached the task of identifying the social group by having regard to characteristics “which lead to deprivations”. The test called for the IMR in the first instance to ascertain whether the group was identified by a common characteristic or attribute, without limitation. In this case the common characteristic(s) or attribute(s) were clearly that the members were:
i)Faili Kurds;
ii)without documentation;
iii)living in Iran; and
f)the test secondly called for the IMR to determine whether the possession of those characteristics distinguished the group from the society at large. Again, that test was not limited to whether those characteristics would “lead to deprivations”. It was necessary for the IMR to consider, more broadly, whether undocumented Faili Kurds living in Iran were set apart from other members of society and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.[203] There was ample evidence from the RSA record before the IMR justifying the conclusion that on this basis undocumented Faili Kurds living in Iran comprised a social group for the purposes of the Convention.
[201] CB 128-130 at paras.61, 77 and 84.
[202] CB 127 at para.59, citing Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 (“Applicant S”).
[203] Applicant S CLR at 410-411 per McHugh J; HCA at para.69 per McHugh J.
Minister’s submissions
The Minister submits that:
a)there was no jurisdictional error by the second respondent in failing to apply the correct legal test to determine whether undocumented Kurds living in Iran were a “particular social group”;
b)after correctly identifying[204] the test set out in Applicant S,[205] the IMR made no express finding, but appears to have concluded that the applicant was not a member of a particular social group, by his statement that the group “otherwise has no defining characteristic, attribute, activity, belief, interest, goal, aim or principle”.[206] In other words, the IMR was applying the third part of the test set out in Applicant S, namely whether the possession of that characteristic, of being undocumented, distinguished Faili Kurds from society at large. Faili Kurds were not the only persons in Iran who were undocumented;
c)further, and in any event, whether or not undocumented Faili Kurds comprise a “particular social group” for the purposes of the Convention, the IMR concluded that the applicant was not denied benefits because he was a member of a particular social group. Rather, the denial of benefits was as a result of the State’s laws of general application resulting only from the applicant’s lack of identification papers. All undocumented persons suffered these types of discrimination;[207] and
d)accordingly, even if the IMR did apply the wrong test in determining whether the applicant was a member of a particular social group, that error did not constitute jurisdictional error.[208]
[204] CB 127 at para.59.
[205] CLR 387 at 400-401 per Gleeson CJ, Gummow and Kirby JJ; HCA at para.36 per Gleeson CJ, Gummow and Kirby JJ.
[206] CB 129-130 at para.77.
[207] CB 129-130 at para.77.
[208] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
Consideration – ground 4
Whether the IMR erred in determining whether the applicant was a member of a particular social group is, in the circumstances of this case, immaterial. That is because, even if the applicant is a member of a particular social group, namely undocumented Faili Kurds living in Iran, any harm that the applicant fears upon a return to Iran is a consequence of the application of laws of general application in Iran in relation to undocumented persons, whether Faili Kurd or not, and is, therefore, not based on a Convention ground. Thus, any error by the IMR in determining whether the applicant was a member of a particular social group did not constitute a jurisdictional error as it could not found a well-founded fear of persecution for the purposes of s.91R of the Migration Act.
Ground 4 of the application is therefore not made out.
Conclusion and relief
The applicant has failed to make out any of the grounds of the application. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 31 January 2013
[2] Corlett, D. 2004, “Fearing Going Home: Australia’s return of rejected asylum seekers, temporary refugees and others from refugee-like situations”, Don Chipp Foundation, 9 December
- Accessed 18 August 2010 – Attachment 3.
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