WZAQR v Minister for Immigration
[2013] FCCA 418
•7 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAQR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 418 |
| Catchwords: MIGRATION – Review of an Independent Protection Assessor decision – claim decision maker failed to address claim or asked the wrong question – claim - claim procedural fairness was not accorded as information adverse to applicant was not put to him for comment – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91X, 425 |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 Minister for Immigration and Citizenship & Anor v SZQHH (2012) 200 FCR 223 Minister for Immigration and Citizenship & Anor v SZQPA [2012] FCA 1025 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor (2011) 244 CLR 144 Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah (2001) 206 CLR 57 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 SZPAC v Minister for Immigration and Citizenship & Anor [2011] FMCA 517 SZQEK v Minister for Immigration and Citizenship & Anor [2011] FMCA 628 SZQFY v Minister for Immigration and Citizenship & Anor (2011) 256 FLR 176 SZQOX v Minister for Immigration and Citizenship & Anor [2012] FMCA 566 SZQPA v Minister for Immigration and Citizenship& Anor [2012] FMCA 123 SZRFG v Minister for Immigration and Citizenship & Anor [2012] FMCA 509 |
| Applicant: | WZAQR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WILLIAM KENNEDY, IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | PEG 42 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 13 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms B. Tronson |
| Solicitors for the Applicant: | Mr S. Blanks of SBA Lawyers |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Ms. E. Warner- Knight of Australian Government Solicitor |
ORDERS
The Application filed 29 February 2012 and amended on 20 November 2012 is dismissed.
The Applicant is to pay the Respondents’ costs and disbursements of and incidental to the application.
The applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym WZAQR.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 42 of 2012
| WZAQR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WILLIAM KENNEDY, IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 2 April 2012 the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit “A”. Ms Tronson, appearing for the applicant, read the Affidavit of Sue Archer affirmed 12 November 2012 which attaches a transcript of the Independent Merits Review conducted by William Kennedy on 8 December 2011 and also read the Affidavit of Natalie Wong affirmed 20 November 2012.
These proceedings were originally filed in the Perth Registry of this Court and docketed to Lucev FM (as he then was). His Honour made orders on 20 September 2012 transferring the matter to the Sydney Registry. On 16 October 2012 I granted leave for the applicant to file and serve an amended application on or before 20 November 2012. The applicant elected to file an amended application on 20 November 2012.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking a declaration that the recommendation of the Independent Protection Assessor was not made in accordance with law by reason of the grounds of this application. The applicant is seeking an injunction restraining the Minister from relying upon the recommendation of the second respondent, William Kennedy in his capacity as Independent Protection Assessor (the “Assessor”), of 22 December 2011, that the applicant not be recognised as a person to whom Australia owes protection obligations (CB 153-178).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties, namely SBA Lawyers acting for the applicant and Australian Government Solicitor acting for the respondents. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant is a citizen of Iran who arrived in Australia by boat on 8 February 2011 (CB 113). He was given an entry interview that occurred on 13 and 14 February 2011. On 22 April 2011 the applicant made a request for a Protection Obligation Determination (CB 41-95, 154) and on 14 July 2011 he applied for an Independent Protection Assessment (CB 154).
The applicant’s claims for refugee status were based primarily on his claim to have been involved in a demonstration in July or August 2009, at which he stated he had burned a motorbike belonging to a member of the Basij (CB 71). The applicant also contended that if returned to Iran he would be identified by the regime as a failed asylum seeker and persecuted on that basis (CB 71).
On or around 23 April, the applicant’s advisers provided general written submissions relating to Iranian applicants (CB 97-108). On 25 April 2011 the applicant was interviewed by a Protection Obligations Evaluation Officer (CB 115). By letter dated 7 July 2011 the applicant was advised of the outcome of his Protection Obligations Determination (CB 110-123). He was further advised that his request had been automatically referred for an Independent Protection Assessment.
On 15 November 2011, in response to an invitation dated 4 November 2011, the applicant’s adviser provided submissions for the purposes of the Department of Immigration and Citizenship (the “Department”) undertaking a check of the currency of the applicant’s Protection Obligations Determination (CB 126-150). On 21 December 2011, the Department determined that the original Protection Obligations Evaluation outcome should not be changed (CB 151-152). In relation to the Independent Protection Assessment, the applicant was interviewed by the Assessor on 8 December 2011 (CB 158 at [30]). On 22 December 2011 the Assessor recommended that the applicant “not be recognised as a person to whom Australia has protection obligations” (CB 175-176 at [116]). The applicant was advised of that recommendation via letter dated 4 January 2012 (CB 177-178).
Independent Protection Assessment Interview
The applicant claimed a fear of persecution which rested on his religious beliefs being less conservative than the religious beliefs of the regime, his imputed political opinion being less conservative than the political opinion of the regime and his membership of particular social groups with those groups being people who do not comply with fundamental religious norms imposed by the Iranian regime and are supporters of the Mousavi/ Green Party (CB 156-159).
The applicant claimed that his return to Iran would be involuntary. Further, he would not be able to avoid attracting the attention of authorities regarding his return to Iran and may be subject to mistreatment by the Iranian authorities (CB 157 at [22]). The applicant claimed that he had always had problems with the Iranian Government’s attitude, felt that it exercised too much control over people’s lives and that there was no freedom (CB 158 at [32]). He stated that he had not been involved in politics and did not vote in the 2005 elections, but did vote in the 2009 elections (CB 158 at [32]). In relation to a demonstration following elections in Iran in 2009, the applicant claimed that he has attended the demonstration. When the demonstration turned violent he helped an injured person get away and he set fire to a Basij (a volunteer paramilitary force of men and women) motorcycle (CB 158 at [33]). The applicant claimed that as a result of his actions he was afraid his photo had been taken and he would be beaten and detained (CB 158 at [35]). He also claimed that the Basij had come looking for him because he had participated in the demonstration (CB 159 at [36]).
The Assessor accepted that the applicant is a national of Iran, was born there and spent most of his life there. The Assessor found that at the interview the applicant was not particularly credible and that he generally spoke with confidence, but had some difficulty answering some questions in which he tended to resort to generalities when challenged on particular points, or seemed evasive (CB 164 at [59]). The Assessor found that there were some inconsistencies between the applicant’s evidence at the interview and his earlier evidence (CB 165 at [60]).
The Assessor accepted that the applicant was caught up in a demonstration following the 2009 elections. However, the Assessor did not accept that the applicant burned a motorcycle belonging to the Basij, that the Basij visited the applicant’s home looking for him or that the authorities in Iran have any interest in him. The Assessor found that the applicant’s answers to questions about the demonstration indicated that he was more of an observer than a participant (CB 167 at [73]). The Assessor did not find it credible that the Basij would not make contact with the applicant after the demonstration, but then come to his house to look for him two years after the election. The Assessor concluded that the applicant was unknown to the Iranian authorities and unlikely to come to their attention for any past action in Iran (CB 167-169 at [75]-[82]).
In relation to the applicant’s submission that he could suffer persecution as a result of being a member of a particular social group being, for example:
· people who do not comply with fundamentalists religious norms imposed by the Iranian regime;
· people who transgress religious moral codes / policies / laws imposed by the Iranian regime; and
· supporters of Mousavi / the Green Party.
(CB 169 at [83])
The Assessor found that it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution – the persecution must be for reasons of the person’s membership of the particular social group. In respect of the applicant’s claim that he had been stopped by the authorities on three occasions, each in relation to a possible offence against a law of general application, the Assessor stated that there was no evidence that the applicant had ever been stopped due to his membership of any particular social group (CB 169 at [86]).
In relation to the applicant’s political actions, the Assessor found that until after the 2009 election the applicant had never taken part in any political advocacy, agitation or action of any kind and he stated that neither he nor his family had ever been involved with any political party or movement (CB 171 at [92]).
The Assessor also did not accept that there was a real chance that the applicant would suffer serious harm because he would be a returned asylum seeker or because as a returned asylum seeker he would be imputed to have a political opinion opposed to the regime (CB 171-175 at [93]-[113])
The Assessor concluded by stating that he did not accept that the applicant had ever come to the attention of the authorities in a way that would suggest political or religious activism. The Assessor did not accept that there was a real chance that the authorities would show any interest in the applicant on his return to Iran and, therefore, he did not meet the criteria for a Protection visa (CB 175 at [114]).
Proceedings before the Federal Circuit Court
On 2 March 2012 the applicant applied to this Court for judicial review of the Assessor’s recommendation. Pursuant to leave granted on 16 October 2012 the applicant filed an amended application on 20 November 2012.
The orders sought in the Amended Application are as follows:
1. A declaration that the recommendation of the Independent Protection Assessor was not made in accordance with the law, by reason of the ground/s of this application
2. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessor.
3. Costs.
4. Any other order deemed appropriate by the Court.
The grounds of the Amended Application are:
The Independent Protection Assessor (“the Assessor”) failed to make a recommendation according to law in that he asked himself the wrong question.
Particulars
a. The Applicant claimed to have a well-founded fear of persecution if he returned to Iran on the basis he would be a member of a particular social group, being failed asylum seekers returning to Iran.
b. The Second Respondent accepted the Applicant would come to the attention of the authorities on his return to Iran.
c. The Second Respondent found that persons involved in anti-government activities returning to Iran face serious harm upon their return.
d. The Second Respondent found the Applicant had not previously come to the attention of the authorities in a way that would suggest political or religious activism.
e. For this reason, the Second Respondent found the authorities would not show any interest in the Applicant upon his return to Iran
f. In making these findings, the Second Respondent focused on the likely outcome of any investigation, rather than on the process of investigation to which the Applicant would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not engaged in anti-government activities.
2. In the alternative to ground 1, the Assessor failed to make a recommendation according to law in that he failed to consider an integer of the Applicant’s claims.
Particulars
a. The Applicant claimed to have a well-founded fear of persecution if he returned to Iran on the basis he would be a member of a particular social group, being failed asylum seekers returning to Iran.
b. The Second Respondent accepted the Applicant would come to the attention of the authorities on his return to Iran.
c. The Second Respondent found that persons involved in anti-government activities returning to Iran face serious harm upon their return.
d. The Second Respondent found the Applicant had not previously come to the attention of the authorities in a way that would suggest political or religious activism.
e. For this reason, the Second Respondent found the authorities would not show any interest in the Applicant upon his return to Iran.
f. In making these findings, Second Respondent failed to consider whether the process of investigation to which the Applicant would be subjected, and the risk that he might suffer serious harm before being able to convince the authorities that he was not engaged in anti-government activities, could amount to persecution.
3. The Assessor failed to make a recommendation according to law by failing to accord procedural fairness to the Applicant.
Particulars
a. The Applicant claimed to have a well-founded fear of persecution if he returned to Iran on the basis he would be a member of a particular social group, being returned asylum seekers.
b. There was information available to the Assessor that, had it been accepted, supported the Applicant’s claim in this regard.
c. The Assessor found a person in the Applicant’s position would not be persecuted on the basis of being a returned asylum seeker alone.
d. The Assessor found that the Applicant had not previously come to the attention of the Iranian authorities in a way that would suggest political or religious activism.
e. The Assessor implicitly found that the Applicant did not have a profile of the kind that would lead to persecution by the Iranian authorities.
f. In coming to that conclusion, the Assessor relied on the following information:
(i) CIS16569: Return of Rejected Asylum Seekers from Iran: Request by Belgium, Intergovernmental Consultation on Migration, Asylum and Refugees, 12 September 2008;
(ii) An article from the Toronto Globe and Mail, 2 April 2005: Deportations to Iran rising dispute torture concerns…;
(iii) Immigration and Refugee Board of Canada 2005: IRN100758.E: The repatriation of failed refugee claimants to Iran…;
(iv) 2004 Country Reports on Human Rights Practices, US Department of State, Bureau of Democracy, Human Rights and Labor, 28 february 2005; and/or
(v) RRT Research Advice IRN38814, 27 May 2011.
g. The Assessor had an obligation to put to the Applicant the substance of each one of, some combination of, or all of the information listed in particular (f).
h. The Assessor failed to comply with this obligation and, in doing do, failed to accord procedural fairness to the Applicant.
Grounds 1 and 2 – failure to address claim or asking wrong question
Applicant’s Submissions
The applicant’s representatives submit that Grounds 1 and 2 are alternative characterisations of the same error and, accordingly, should be considered together.
Ms Tronson argues that, in essence, the Assessor fell into error in the manner identified in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 (the “SZQPA (Federal Court Proceedings)”). There, his Honour Gilmour J held (at [44]-[45]):
44. The conclusion of the Federal Magistrate at [29] of his reasons which concerned the reasons of the Reviewer in his SOR at [59] was that he:
focus[ed] on the likely outcome of the possible detention and interrogation of the [first respondent] on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role.
45. I agree with those conclusions. I also agree with the conclusion of the Federal Magistrate at [34] that in effect the Reviewer asked himself the wrong question, namely, whether the first respondent would be at risk of serious harm from State authorities assuming he was not an active member of the LTTE. The question he should have asked in light of the claims made by the first respondent and the country information which he had was whether he was at risk of serious harm from State authorities by reason of his imputed political opinion if he was “suspected” of having links or an association with the LTTE.
Ms Tronson argues, in other words, the Assessor “needed to consider what might happen prior to” the point at which the authorities determined he was not a person in whom they were interested: SZQPA (Federal Court Proceedings) at [60], referring to SZQPA v Minister for Immigration and Citizenship [2012] FMCA 123 (the “SZQPA (FMC Proceedings)”) at [33] per Driver FM (as he was then).
In SZQPA (Federal Court Proceedings) and SZQPA (FMC Proceedings), both Driver FM at first instance and Gilmour J on appeal characterised this error as the Reviewer (in that case) asking themself the wrong question. Ms Tronson contends that this is the characterisation relevant to Ground 1 of the Amended Application before this Court. Federal Magistrate Driver noted “[i]t would be arguably possible to characterise the error as a failure to address part of the applicant’s claims”, although his Honour considered this to be a “pointer to the real problem”: SZQPA (FMC Proceedings) at [29]. Ms Tronson submits this alternative characterisation is the basis for Ground 2.
In these proceedings the applicant claimed to fear persecution on the basis that he was a member of a particular social group, being failed asylum seekers returning to Iran (see CB 71 at [14]). Ms Tronson argues that this was raised squarely before the Assessor and that the applicant accepts the Assessor considered some parts of this claim (CB 171-175 at [93]-[115]).
Ms Tronson argues that the Assessor accepted some parts of the applicant’s claims. Importantly, the Assessor:
a)accepted it was “likely” “that the authorities would become aware that (the applicant) had sought asylum” (CB 171 at [95]);
b)“accepted that as a failed asylum seeker (the applicant) will come to the attention of the Iranian authorities” (CB 175 at [112]);
c)held “it is not at issue that some returnees have suffered varying degrees of ill treatment”(CB 174 at [106]);
d)quoted with apparent approval the evidence from the 2005 Canadian Immigration Review Board report and the US Department of State, Bureau of Democracy, Human Rights and Labor, 2004 Country Reports on Human Rights and Practices, 28 February 2005 in stating: “[c]itizens returning from abroad sometimes were subjected to searches and extensive questioning by government authorities for evidence of anti-government activities abroad” (CB 175 at [112]); and
e)found “the rationale by which the authorities decide how to deal with returnees is whether they have been involved in anti-government activities rather than whether they have sought asylum” (CB 175 at [112]).
However, the Assessor considered the fact the applicant had not “ever come to the attention of the authorities in a way that would suggest political or religious activism”, meaning there was not “a real chance that the authorities would show any interest in him on return to Iran” (CB 175 at [113]).
In light of the Assessor’s acceptance that the applicant would not come to the attention of the Iranian authorities as a failed asylum seeker, the phrase “show any interest in” the applicant must refer to what would occur after the applicant had come to the authorities’ attention in Iran.
Ms Tronson, in her written submissions, submits that this constitutes the same error described in SZQPA (Federal Court Proceedings). That is, having accepted the applicant “will come to the attention of the Iranian authorities” upon his return to Iran, the Assessor then “focus[ed] on the likely outcome” of that attention, “rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution in anti-government activities”: SZQPA (Federal Court Proceedings) at [44], see also [45], [59]-[60]; SZQPA (FMC Proceedings) at [29], [30]-[33].
It is argued that it is particularly important that this conclusion can be reached based on the Assessor’s own findings: SZQPA (Federal Court Proceedings) at [59]. Ms Tronson argues that in focusing on the outcome rather than the process, the Assessor asked himself the wrong question or, alternatively, failed to consider an integer of the applicant’s claims, being that the process to which he would be subjected upon his return to Iran constituted serious harm amounting to persecution, whatever the outcome of that process.
Respondent’s Submissions
The Minister, represented by Mr Reilly, argues that SZQPA (Federal Court Proceedings) does not purport to establish any general principle of law that in every refugee case, no matter what the facts, a fear of harm in a “process of investigation” of an applicant on return to their country of citizenship must be considered. It is argued, rather, that SZQPA (Federal Court Proceedings) is simply a case where on the facts the Court held that the Assessor had failed to deal with a clearly articulated claim (see SZQPA (Federal Court Proceedings) at [43]), being that the applicant may suffer harm in the process of investigation of him as a failed asylum seeker if he were returned to Sri Lanka. It is argued that the same conclusion does not necessarily follow in cases involving different facts.
Mr Reilly argues that the relevant legal principle is that the Assessor had to address the applicant’s claims: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90]. This means claims that are clearly articulated or clearly arise on the material before the Assessor in accordance with the principles discussed in NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1. In the current case the applicant claimed to fear harm in Iran as a failed asylum seeker (CB 144-149). The claim the subject of these proceedings was addressed by the Assessor (CB 171-175 at [93]-[115]). The Assessor accepted that it was likely that the Iranian authorities would become aware that the applicant was a failed asylum seeker (CB 171 at [95]). However, having regard to independent country information, the Assessor concluded that as the Applicant did not have an anti-government profile there was not a real chance that the authorities would “show any interest” in him if he returned to Iran (CB 175 at [113]). Mr Reilly submits, on a natural reading that is a rejection of the claim that any harm will befall the applicant as a failed asylum seeker. It is of sufficient generality to encompass the possibility, although never suggested by the applicant, that he may be harmed in the process of some investigation: Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at [47]. Mr Reilly argues it is irrelevant that a different conclusion may have been reached on different facts in SZQPA (Federal Court Proceedings).
Ground 3: failure to accord procedural fairness
Applicant’s Submissions
Ground 3 of the Amended Application relates to an aspect of the procedural fairness obligations under which the Assessor operated. A decision-maker in the place of the Assessor is “required… to put before the (applicant) the substance of matters that the (Assessor) knew of and considered may bear upon whether to accept the (applicant’s) claims”: Plaintiff M61/2010E v Commonwealth (supra) at [91].
Ms Tronson argues that an alternative way of stating the obligation is that “the decision maker is to put to an applicant information that is adverse to his interest and is credible, relevant and significant to the decision to be made”: SZPAC v Minister for Immigration and Citizenship & Anor [2011] FMCA 517 at [14], referring to Kioa v West (1985) 159 CLR 550; 628-629 per Brennan J and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 225 CLR 88 at [16] and [17].
Where information is “utilised by (a decision maker) in his (or her) findings and reasons for the purposes of determining that the applicant’s claim… (can)not be upheld”: SZPAC (supra) that information is adverse to the applicant’s interest and is plainly held by the decision maker to be credible, relevant and significant.
Where information is authoritative or at least considered by a decision maker to be so, the obligation to put the information to a person in the applicant’s position is increased: SZQEK v Minister for Immigration and Citizenship & Anor [2011] FMCA 628 at [46]; SZRFG v Minister for Immigration and Citizenship & Anor [2012] FMCA 509 at [37].
Ms Tronson argues that, in Particular (f) of Ground 3, five pieces of country information are specified:
a)CIS16569: Return of Rejected Asylum Seekers from Iran: Request by Belgium, Intergovernmental Consultation on Migration, Asylum and Refugees, 12 September 2008 (Request by Belgium);
b)An article from the Toronto Globe and Mail, 2 April 2005: Deportations to Iran rising despite torture concerns (Globe and Mail article);
c)Immigration and Refugee Board of Canada 2005, IRN100758.E: The repatriation of failed refugee claimants to Iran… (Canada Report);
d)2004 Country reports on Human Rights Practices, US Department of State, Bureau of Democracy, Human Rights and Labor, 28 February 2005 (USDOS Report); and/or
e)RRT Research Advice IRN38814, 27 May 2011 (RRT Research Advice).
These documents were not put to the applicant, either in terms or in substance.
Each of these documents was “utilised by (the Assessor) in his findings and reasons for the purposes of determining that the applicant’s claim… could not be upheld”: SZPAC (supra) at [15].
In order to uphold the application and make the orders sought, it will be sufficient for the Court to find that the applicant has made out his case in relation to any one of, or any combination of, the documents described in Particular (f) of Ground 3 of the Amended Application.
Use of information by Assessor
The information referred to in Particular (f) of Ground 3 of the Amended Application was used by the Assessor in the following ways. In relation to the Request by Belgium (Affidavit of Natalie Wong affirmed 20 November 2012 Annexure “A”, pp.3-10), the Assessor made the following comment (CB 175 at [111]):
…[E]ight Western countries (Canada, Germany, Ireland, the Netherlands, New Zealand, Spain, Sweden and Switzerland) indicated that they had no information “on problems of persecution for returned failed asylum seekers”…
(italics in original, reference omitted)
The Assessor’s implied finding, reading his reasons as a whole, was that the Request by Belgium suggested that returned failed asylum seekers faced no “problems of persecution”. The Request by Belgium was, accordingly, “information that (was) adverse to (the applicant’s) interests and (was) credible, relevant and significant to the decision to be made”: SZPAC (FMC Proceedings) at [14].
Ms Tronson argues that in relation to the Globe and Mail article (Affidavit of N. Wong affirmed 20 November 2012, Annexure “B” pp.11-12), the Assessor made two references. The first appears as follows (CB 174 at [107]):
…the reports concerning a returnee from Canada being physically harmed and another dying appear to refer to a report in a Toronto newspaper on 2 April 2005. The report is now more than six years old, and the fact that it continues to be relied upon by advocates, apparently in preference to any more reports, suggests that events like the ones it describes are not common.
(reference omitted)
Ms Tronson contends that the relevant finding is the inference drawn by the Assessor as to the rarity of the “events like the ones (the Globe and Mail article) describes”. It is argued the Globe and Mail article is information adverse to the applicant’s interests and is credible, relevant and significant.
The second reference also tied the Globe and Mail article to other country information (CB 175 at [112]). Ms Tronson argues this is not directly relevant to the question of whether the Assessor should have put the Globe and Mail article to the applicant.
In relation to the Canada Report (CB 174 at [108]) (affidavit of Natalie Wong affirmed 20 November 2012, Annexure “C”, pp. 13-16), the Assessor made the following comments and findings:
The report states that there were two cases where Iranian deportees from Canada had been subjected to mistreatment when they returned to Iran. In one case a “female student activist” was detained for 26 hours and “was struck in the face and head twice while in prison when she refused to sign a document denouncing Canada” while in the other case the returnee “died after receiving 100 lashes in prison”. The first person is referred to as “as student activist” which strongly suggests that she was mistreated for not being an asylum seeker but for being a student activist, or at least for a combination of reasons, which included being a student activist. The article also stated that the returnee who died after being lashed in prison had been allowing two of his young sisters to “have boyfriends”. Certainly the information available does not strongly suggest that either of these examples of ill-treatment are attributable alone either to the person applying for asylum or to political beliefs imputed by authorities due to asylum claims while made while abroad.
(CB 174 at [108]) (italics in original, references omitted)
The Assessor appears to have used the Canada Report as positively supporting finding that a failed asylum seeker returning to Iran will not be ill-treated for reason alone of being a member of that group. Ms Tronson argues that for these reasons, the Canada Report is also information adverse to the applicant’s interest and is credible, relevant and significant. Ms Tronson contends that there is an inference that the Canada Report is also the report referred to as “the 2005 Canadian Immigration Review Board report”, which the Assessor cites as referring to the USDOS Report (CB 175 at [112])(affidavit of Natalie Wong affirmed 20 November 2012, Annexure “E” pp.25-45). In respect of both of those reports, the Assessor said:
(The USDOS Report) states that “(c)itizens returning from abroad sometimes were subjected to searches and extensive questioning by government authorities for evidence of anti-government activities abroad”. This strongly supports the conclusions that the rationale by which the authorities decide how to deal with returnees is whether they have been involved in anti-government activities rather than whether they have sought asylum.
(italics in original, reference omitted)
Ms Tronson contends that the Assessor has used the Canada Report and the USDOS Report as positively supporting a finding that a failed asylum seeker returning to Iran will not be ill-treated for the reason alone of being a member of that group. Again Ms Tronson argues the Canada Report and the USDOS Report each constitute credible, relevant and significant information which was adverse to the applicant’s interest.
Ms Tronson contends that in relation to the RRT Research Advice (affidavit of Natalie Wong affirmed 20 November 2012, Annexure “C” pp.7-24), the Assessor relevantly said the following:
RRT Research Advice IRN38814 dated 27 May 2011 deals with the issue of the government’s attitude towards demonstrators:
“Little information was located regarding the current view of government authorities towards low level protestors who took part in demonstrators following the 2009 and 2010 demonstrations. …it appears that the majority of people arrested and targeted following these demonstrations were opposition leaders, high-profile protest organisers and reformist political figures. While it is unlikely that a low-profile individual who had participated in one of those demonstrations would be sought out by authorities indefinitely into the future, it is worth noting that photographs of some protestors were published by police and pro-government media in an attempt to identify them…
(CB 163-164 at [57])
In the course of his reasons, the Assessor made several findings about the effect of a political profile, or lack thereof:
a)…Persecution has not been directed at the supporters of Mousavi or the Green Movement, but rather at those thought to be political activists, agitators and organisers…(CB 171 at [92]);
b)…Other information, as well as common sense, strongly suggests that within this group (of asylum seekers) those who have a political profile are more likely to suffer maltreatment than those who do not… (CB 172 at [99]);
c)…[P]ersons who are thought to have an anti-Government political profile will be singled out for special attention, and in some cases this may result in ill treatment (CB 174 at [106]);
d)(A certain) RRT decision (on which the applicant had relief) cites no evidence which necessarily supports a conclusion that a person who has no political profile and who has not previously come to the attention of the authorities would be likely to suffer serious harm on return to Iran as a result of being an asylum seeker… (CB 174 at [109]);
e)([A]n article on which the applicant had relied) deals only with those who are publicly known to have criticised the regime, and makes no mention of those who have merely sought asylum overseas. (CB 175 at [110]); and
f)…There is a clear body of evidence suggesting that if (the applicant) had already come to the attention of the authorities for any reason would could strongly suggest to the opinions and beliefs of the regime he would face serious harm (CB 175 at [112]).
In light of these findings, it is apparent that the existence or otherwise of a political profile operated significantly on the Assessor’s mind. Specifically, it is apparent the Assessor considered the applicant’s lack of a political profile to count against him in relation to his claims. It is argued that while no explicit reliance was placed on the RRT Research Advice, its presence in the statement of reasons and the general nature of the findings above (particularly of the source of that information) indicated significant reliance on the information in the RRT Research Advice.
Ms Tronson submits the RRT Research Advice constitutes information adverse to the applicant’s interests which was credible, relevant and significant. As it is dated 27 May 2011, it was also deemed to be recent information at the time the Assessor made his recommendation.
Obligation to put information to the applicant
Ms Tronson contends that for the reasons outlined above, each of the Request by Belgium, the Globe and Mail article, the Canada Report, the USDOS Report and the RRT Research Advice is respectively a “specific piece of evidence…used to justify adverse views” and so “fairness…require[d] that [the] applicant be provided with an opportunity to respond”: SZPAC (supra) at [24].
Ms Tronson contends, as the High Court has explained, the Assessor had an obligation to put to the applicant “the substance of matters that the (Assessor) knew of and considered may bear upon the (applicant’s) claim”: Plaintiff M61/2010E (supra) at [91]. In particular, the Assessor failed to:
a)Put to the applicant or his adviser at the hearing (or, indeed, at any time) the substance of any one or more of the Request by Belgium, the Globe and Mail article, the Canada Report, the USDOS Report and the RRT Research Advice articles; or
b)Put to the applicant or his adviser at the hearing (or, indeed, at any time) any country information or other information which indicated that a person without a significant profile would not be likely to be subjected to persecution by the authorities.
Ms Tronson contends that the particularly authoritative nature of most of the enumerated pieces of country information (with the exception of the Globe and Mail article) is also relevant: SZQEK v Minister for Immigration and Citizenship [2011] FMCA 628 at [46]; SZRFG v Minister of Immigration and Citizenship (supra) at [37]. The Assessor plainly placed significant reliance on the information, particularly when taken all together. It is argued that at the very least, the Assessor was under an obligation to put the substance of each of the five pieces of information the subject in Particular (f) of Ground 3 of the Amended Application. He did not do so.
The applicant was not aware of the substance of the information
Ms Tronson submits that the applicant and his adviser were not aware of the information the subject of Particular (f) of Ground 3 of the Amended Application, let alone its substance. It is argues that the information was not referred to in the information, or its substance, to the applicant. Further, the Assessor did not put the information, or its substance, to the applicant.
Ms Tronson contends that during the interview on 8 December 2011, the Assessor twice mentioned country information available to him. On the first occasion, he said “Now I have before me quite a lot of documentation about the situation in Iran…” (Affidavit of Sue Archer Affirmed 12 November 2012, Exhibit SA1, p.7). On the second occasion the Assessor said: “…I think what the country information tells us is that the authorities have been working through the demonstrators for up to a year after the demonstrations but that it’s pretty much stopped now” (Affidavit of Sue Archer Affirmed 12 November 2012, Exhibit “SA1”, p.23). Neither of these references to country information is sufficient to put the applicant (or his adviser) on notice as to the specific country information on which the Assessor ultimately relied or as to the substance of it or its potential effect on the applicant’s claims.
In the Protection Obligations Determination there was a brief mention of the effect of a person’s profile on the likelihood that they would be persecuted (CB 120). However, this referred to a very specific piece of country information: Iran remains world’s worst jailer of journalists, Committee to Protect Journalists (CPJ), New York, 6 May 2010. Ms Tronson contends that neither set of submissions provided by the applicant’s adviser set out in Particular (f) of Ground 3 of the Amended Application indicate any familiarity with them. Further, those submissions do not suggest the applicant’s adviser was aware that the issue of the applicant’s political profile (or lack thereof) would play such a significant role in the Assessor’s findings. This reinforces the existence of the Assessor’s obligation to put the information to the applicant.
Breach of procedural fairness obligation
In all the circumstances, as a matter of procedural fairness, the Assessor had an obligation to put to the applicant or his adviser each of the five pieces of information the subject of Particular (f) of Ground 3 of the Amended Application. He failed to do so. Ms Tronson contends that in doing so the Assessor failed to make his recommendation according to law.
Respondent’s Submissions
Mr Reilly submits that Ground 3 claims the Assessor denied the applicant procedural fairness in not disclosing certain items of country information. The relevant legal principles are set out in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [25]-[30] per Rares and Jagot JJ. As stated in SZQHH (supra) at [27], the substance of information which is credible, relevant, significant and apparently adverse should be disclosed by the Assessor. However, there is no obligation to disclose every piece of country or other information the Assessor is considering: SZQHH (supra) at [30], or to disclose non-adverse country information: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [141] per McHugh J.
Mr Reilly submits that the first item of country information references appears at CB 175 at [111] and states that certain countries had “no information” on problems of persecution for failed asylum seekers in Iran since 2006. This is, in substance, neutral, not adverse information. Moreover, it was not ultimately significant to the Assessor’s decision, which was based on the applicant’s lack of political profile, rather than denying any problems occurred for failed asylum seekers in Iran. It therefore did not have to be disclosed.
Mr Reilly argues that the second item of country information that is referred to at CB 174 at [107] and CB 175 at [112] and is patently favourable, rather than adverse, so it did not have to be disclosed. The fact that the Assessor inferred from its age and continued reference to it that events it describes are not common is not itself the country information, but the reasoning of the Assessor that was not so surprising as to need specific disclosure within the common law principles discussed in Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 at [9]. In any case, the information was again not ultimately significant to the Assessor’s reasoning, which was based on the applicant’s lack of political profile rather than denying any problems for any failed asylum seekers in Iran.
Mr Reilly contends that the third item of country information is referred to at CB 174 at [108]. Again, it is patently not adverse and the Assessor was not required to disclose his thought processes or reasoning about it. There was nothing so surprising in the Assessor’s finding that this and other country information before him did not suggest that ill treatment of returnees in Iran was solely attributable to being a failed asylum seeker or having made asylum claims abroad, especially given the similar finding made by the delegate at CB 121 at [4] as to require this conclusion to be notified to the applicant for his comment.
Mr Reilly submits that the fourth item of country information is that quoted at CB 175 at [112]. Again, this is in its terms patently not adverse and the Assessor’s conclusions from it and the other information did not have to be disclosed in advance.
Mr Reilly argues that the fifth item of country information is that which is cited at CB 164 at [57]. Again, this is not adverse and not substantially different to the country information submitted by the applicant at CB 141-142. It was not significant to the Assessor’s conclusion that the applicant did not have a political profile and was not known to or wanted by the authorities for attending a demonstration (CB 168 at [81]). For both reasons it did not need to be disclosed. Again, the real complaint appears to be that the Assessor’s reasoning was not disclosed in advance, but the Assessor’s conclusion that the applicant did not have a political profile and would therefore not be of adverse interest to the Iranian authorities was obviously open to it, especially as this was also the conclusion of the delegate at CB 122 at [6]. Therefore, the possibility that the Assessor may also make such finding did not need to be disclosed in advance so as to comply with procedural fairness: SZGUR (supra) at [9].
Consideration
In Grounds 1 and 2 of the Amended Application the applicant claimed to fear persecution on the basis that he was a member of a particular social group, namely being a failed asylum seeker returning to Iran. This is stated in the applicant’s statutory declaration made 20 April 2011, attached to the “Request for Protection Obligations Determination” where it states, under the sub-heading “Why I think that might happen to me if I return”:
14. If I was to return to Iran, the authorities there will know I must have been unlawful in Australia and suspect I applied for refugee status and failed, they will know I spoke badly about Iran and that I am against the regime, I will be accused of being a spy and Sharia law will apply, they will arrest me and do with me whatever they want as they did many others.
(CB 71)
Ms Tronson acknowledges that this issue was raised in the general submissions dated 23 April 2011 that had been prepared by the applicant’s migration adviser. In the decision record, under the heading “Findings and Reasons” these claims are clearly stated at [93]-[115] (CB 171-175). The Assessor accepted some of these claims and these are summarised at [25] above.
However, the error in the Assessor’s reasoning identified by Ms Tronson is located in [113] of the Assessment which states:
As I do not accept that he has ever come to the attention of the authorities in a way that would suggest political or religious activism, I do not accept that there is a real chance that the authorities would show any interest in him on return to Iran. I do not accept that there is a real chance that he would suffer serious harm either because he would be a returned asylum seeker of because as a returned asylum seeker he would be imputed to have a political opinion opposed to the regime.
(CB 175) (emphasis added)
The argument being advanced on behalf of the applicant is that the Assessor asked himself the wrong question and relies on the authority of the decision of his Honour Driver FM in SZQPA (FMC Proceedings) which was subsequently upheld by his Honour Gilmour J in SZQPA (Federal Court Proceedings).
The significant finding in these two decisions was that, although the claim was squarely raised with the Assessor and, subsequently, the Reviewer, only part of the claim was addressed. The element of the claim that the Reviewer accepted and clearly acknowledged was that the applicant would come to the attention of the authorities on his return and focused on the likely outcome of that attention. The claimed error in this approach is the failure to address the process of interrogation on arrival that may result in the applicant suffering serious harm amounting to persecution during that process. The thrust of the argument is that the Reviewer focused on the outcome, rather than the process, in that the applicant may suffer persecution at the hands of the authorities in their assessment process prior to any final decision being made. Ultimately, the outcome may be that the applicant is of no interest to the authorities in Iran, however, he may suffer persecution during the assessment period.
This approach was addressed in SZQPA (FMC Proceedings) per Driver FM at [29] where his Honour stated:
29. In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.
Then at [34] of Driver FM’s reasons the nature of the error was more precisely articulated as:
In short, by focussing upon outcome rather than process the Reviewer asked himself the wrong question and thereby fell into error: Plaintiff M70/2011 v Minister for Immigration ; Plaintiff M106 of 2011 v Minister for Immigration (2011) 280 ALR 18, [2011] HCA 32
(footnotes omitted)
The approach of Driver FM was accepted by his Honour Gilmour J in SZQPA (Federal Court Proceedings) at [44]-[45] where it states:
44. The conclusion of the Federal Magistrate at [29] of his reasons which concerned the reasons of the Reviewer in his SOR at [59] was that he:
focus[ed] on the likely outcome of the possible detention and interrogation of the [first respondent] on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role.
45. I agree with those conclusions. I also agree with the conclusion of the Federal Magistrate at [34] that in effect the Reviewer asked himself the wrong question, namely, whether the first respondent would be at risk of serious harm from State authorities assuming he was not an active member of the LTTE. The question he should have asked in light of the claims made by the first respondent and the country information which he had was whether he was at risk of serious harm from State authorities by reason of his imputed political opinion if he was “suspected” of having links or an association with the LTTE.
As part of this analysis of the possible treatment of the applicant upon his return to Iran, I note the submissions made by Mr Reilly, representing the Minister. He argues that the decision in SZQPA (FMC Proceedings) does not establish any principle of law that in every refugee case, no matter what the facts, the fear of harm in the process of investigation of an applicant on return must be considered. I agree with the submission that SZQPA (FMC Proceedings) is a case where, on the facts, the Court held that the Reviewer had failed to deal with a clearly articulated claim.
The specific nature of the applicant’s claim in SZQPA (FMC Proceedings) is set out at [23] in the judgment of his Honour Driver FM where he refers to the “Findings and Reasons” of the Independent Merits Reviewer at [50] of the decision record that was under review in those proceedings, where it states:
23. In his findings and reasons at [50] the Reviewer stated:
The claimant fears that, should he return to Sri Lanka, he will be harmed by the Sri Lankan authorities or a paramilitary group acting under the protection of the Sri Lankan authorities, because he will be imputed with a pro-LTTE political attitude on account of the following claims:
· His four brothers were associated with the LTTE, two of whom were killed, and two of whom are missing and presumed killed, by the Sri Lankan authorities or the Indian Peacekeeping Force.
· He spent a considerable period of his life in LTTE areas of Sri Lanka during which time he was forced by the LTTE to work for it, and that as a boat owner, he was forced to assist in transporting LTTE goods from ships to the shore
· His son has been briefly detained by the Sri Lankan authorities who have inquired after the whereabouts of the claimant
· Upon return to Sri Lanka the authorities will seriously harm the claimant for reason of his Tamil ethnicity and an imputed political opinion of being pro-LTTE on account of his family association to his brother, his having assisted the LTTE his having fled the country and presumably claimed asylum abroad, and because they believe he has knowledge of the location of the LTTE hidden caches of materials.
This is again summarised by Gilmour J in SZQPA (Federal Court Proceedings) at [39]-[41] where his Honour states:
39. It is plain enough in context that the first respondent was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.
40. Additionally, he claimed to fear serious harm for a Convention reason which would expose him to torture or other serious harm concerning suspicion that he may have knowledge of the location of LTTE weapons and other supplies.
41. As the appellant puts it, this was the first respondent’s only articulated claim of fear of torture during interrogation.
By comparison, the claims made by the applicant in these proceedings are set out in the Independent Protection Assessment in the Statement of Reasons under the subheading “Claims and Evidence” initially and in respect of the entry interview are summarised at [16]-[18]:
16. The record of the interview shows that Mr [WZAQR] said that he had left Iran because he “did not like to live there”. He said “there is no freedom to do what I like”. He said that, for instance, it was very hard to get a girlfriend.
17. Mr [WZAQR] said that he had “passed through” a demonstration and that he was concerned that his photo may have been taken. He said he did not know if photos had been taken but that they “may have been taken”. Later in the interview he said that he had attended “a few demonstrations” and that he had been “sloganing” against the government. He said that people who were photographed at the demonstrations had been taken away. He said that if he goes back to Iran he may be sent to prison or killed because of his “involvement with the protests” and also because he came to Australia illegally.
18. Mr [WZAQR] said that in Iran he had been arrested three times: once for being with some girls. Once for having alcohol in his car and once for talking and holding hands with his girlfriend.
(CB 156)
The applicant applied for a Protection Obligations Determination and the Assessor records the following at [21]-[22]:
21. Mr [WZAQR] also provided a statutory declaration dated 20 April 2011 in support of his application for a Protection Obligation Determination. In his declaration Mr [WZAQR] said that he left Iran because the regime in Iran in “an oppressive and stifling one” and that people “are unable to have a satellite dish, unable to walk in a park or streets with a girl”. He said that after the elections, in about July or August 2009 he “joined in a demonstration”. He said that from that point he had lived in fear that he would be “identified and arrested through photographs taken at random by the Basij.” Eventually he decided to leave Iran. He said that if he returns to Iran he “will be arrested at the airport and probably killed.”
22. In his declaration Mr [WZAQR] said:
“If I was to return to Iran, the authorities there will know I must have been unlawful in Australia and suspect that I applied for refugee status and failed, they will know I spoke badly about Iran and that I am against the regime, I will be accused of been [sic] a spy and Sharia law will apply, they will arrest me and so with me what ever they want as they did many others.”
(CB 156-157)
Under the subheading “Further information available to the Reviewer” the following is recorded:
28. Mr [WZAQR]’s migration advisor provided a submission dated 15 November 2011. The submission asserted that Mr [WZAQR]’s fear of persecution rests on his religious beliefs, that being less conservative than the religious beliefs of the regime, his imputed political opinion, that being less conservative than the political opinion of the regime, and his membership of particular social groups, those groups being:
· people who do not comply with fundamentalist religious norms imposed by the Iranian regime
· people who transgress religious moral codes/policies/laws imposed by the Iranian regime and
· supports of Mousavi/ the Green Party
29. The submission also states that Mr [WZAQR] fears that if he is returned to Iran he will be persecuted due to his being a failed asylum seeker. The submission also provides a considerable amount of general material concerning the human rights situation in Iran.
(CB 157-158)
In the “Findings and Reasons” the Assessor states at [62]-[63]:
62. In relation to his evidence I accept the following:
· That Mr [WZAQR] was caught up in a demonstration following the 2009 elections
63. For the reasons described below I do not accept that following:
· That Mr [WZAQR]burnt a Basiji motorcycle
· That the Basij have visited Mr [WZAQR]’s home looking for him
· That the authorities in Iran have any interest in Mr [WZAQR]
(CB 165)
The Assessor then proceeded to review the material before him to support that finding.
A significant part of the applicant’s claim related to his arrest in Iran which the Assessor addressed at [67]-[68]:
67. Mr [WZAQR] said that he had been stopped by the authorities on three occasions in relation to social behaviour: on two occasions he was thought to be with girls to whom he was not related and on the third he was thought to have alcohol. Mr [WZAQR] did not leave Iran as a result of these events and he did not claim that he holds any fears on these events. The only evidence that Mr [WZAQR] has provided on which he could base his fears are the following assertions:
· that he set a Basij motorcycle alight and helped an injured demonstrator; and
· that the Basij have taken his photograph; and
· that the Basij visited his father’s house and told his father that Mr [WZAQR] participated in a demonstration and for that reason they want him.
68. For the reasons indicated below I do not accept that any of these events actually took place.
(CB 166)
The Assessor then proceeds to review the various country information reports in respect of failed asylum seekers returning to Iran and the manner in which they may be treated. This is summarised by the Assessor at [99]:
99. The advice from DFAT covers all asylum seekers, both those who have a political profile and those who do not. It states that it is possible that any given person in this broad group will be maltreated. Other information, as well as common sense, strongly suggest that within this group those who have a political profile are more likely to suffer maltreatment than those who do not. Thus the chances of Mr [WZAQR] being maltreated are at the lower end of the range covered by the word “possible”. Indeed, given that DFAT does not know of any specific instance, and only acknowledges that it is “possible” in “isolated” cases one might think that the possibility is no more than theoretical.
(CB 172)
The Assessor then examines a Refugee Review Tribunal decision of 22 October 2010 (RRT Case number 1001288 [2010] RRTA 912) that was relied upon by [WZAQR]’s adviser (Beatriz Stotz MARN 0212699 of Vrachnas Lawyers, dated 15 November 2011) in her submissions. The conclusion reached by the Assessor at [109] is stated as follows:
109. The RRT decision cites no evidence which necessarily supports a conclusion that a person who has no political profile and who has not previously come to the attention of the authorities would likely to suffer serious harm on return to Iran as a result of being an asylum seeker. As I have found Mr [WZAQR] has not come to the attention of the authorities, except in relation to relatively trivial and ordinary matters concerning social behaviour, the task is to determine whether simply because he is an asylum seeker he would face serious harm. That he would is not supported by the evidence cited in the RRT decision.
(CB 174)
The circumstances in these proceedings can be distinguished from the decisions in SZQPA (FMC Proceedings) and SZQPA (Federal Court Proceedings). In the SZQPA proceedings the Sri Lankan applicant had a clearly articulated claim on which protection was sought. Although the applicant may have ultimately been able to establish his innocence to the Sri Lankan authorities, the major risk existed from the time of his arrival until the ultimate decision was established. However, the matter before this Court on the material available formally supports the view that the applicant was highly unlikely to attract the attention of the authorities on his immediate return to Iran because he did not possess a profile that would attract such attention. In other words, the factual situation in this matter can be distinguished from that identified in SZQPA (Federal Court Proceedings). In the circumstances, I am satisfied that this ground cannot be sustained.
In respect of Ground 3, the applicant claimed a failure to accord him procedural fairness. The basis of this claim is that the Assessor did not disclose certain items of country information to the applicant. After considering the written submissions of both parties I have decided, as a starting point, to adopt the approach outlined by Mr Reilly who referred the Court to the relevant legal principles stated in Minster for Immigration and Citizenship v SZQHH (supra), specifically, the joint judgment of their Honours Rares and Jagot JJ at [25]-[30]. Their Honours’ reasons at [27] are of particular relevance to the proceedings before this Court and state:
27. An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source: 225 CLR at 95-96 [15], 100 [29].
This obligation is qualified and is addressed at [30] of SZQHH (supra):
30. However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
There is no obligation on the decision-maker (in these proceedings the Assessor) to disclose non-adverse country information to an applicant: Re Minister for Immigration and Multicultural Affairs Ex parte Miah (supra) per McHugh J at [141], where his Honour states:
141. Section 56 is not a mandatory power, but a permissive power. It says nothing as to what must be done with the information that the Minister obtains under s 56(1). Nothing in the section states, expressly or by necessary implication, that once the delegate chooses to exercise the power, natural justice does not condition its exercise. In some cases, exercises of the power, although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.
Assistance is found in the interpretation of what is credible, relevant, significant and apparently adverse in the High Court decision in Applicant VEAL of 2002 (supra) at [16]-[18]:
"Credible, relevant and significant"?
16. What is meant by "adverse information that is credible, relevant and significant to the decision to be made"? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about "information that is credible, relevant and significant" takes its meaning from the point his Honour had made only a few sentences earlier: that "[a]dministrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made". Moreover, what is meant by "credible, relevant and significant" must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, "are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise". Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.
17. It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
18. It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness.
(footnotes omitted)
A convenient example of the application of this principal appears in the decision of SZQOX v Minister for Immigration and Another [2012] FMCA 566 per her Honour Barnes FM (as she was then) at [59]-[60]:
59. Further, while no specific reference was made to this advice in the IMR’s findings and reasons, in considering the applicant’s claims to be a stateless Faili Kurd in Iran the reviewer accepted that the applicant’s claim to be of Iraqi origin displaced in Iraq was “consistent with country information which shows that displaced Faili Kurds from Iraq reside in Iran”. Such a finding was consistent with the applicant’s claims. Insofar as the information in question provided support for such a finding, it was not adverse material that had to be put to the applicant so that he could deal with potentially adverse consequences of the use of such information.
60. Beyond this, it is important to bear in mind that what procedural fairness requires is to be determined in the particular case. The reviewer is not obliged to put every item of information to the applicant. What is essential is that the applicant is afforded the opportunity to address the substance of information that may potentially be used adversely to his interests, that is information that is credible, relevant and significant to the decision to be made (Kioa v West at 628).
A further example of the analysis to be applied in determining the information that needs to be provided to an applicant by a decision- maker concerning the identification of material that is adverse to the applicant’s position is found in the decision of SZQFY v Minister for Immigration & Anor [2011] FMCA 996 per Cameron FM (as he was then) at [46]-[47] :
Adverse information / information relied on adversely
46. The applicant submitted that the criterion for putting him on notice of information was whether it was relied on by the Reviewer to reach a decision adverse to his claims, not whether the information itself was adverse to his claims. Putting aside the difficulty in conceiving of information which is used adversely to an applicant’s case which is not information “adverse to his interests”: Kioa v West at 628 per Brennan J, this argument conflates two issues which are seen most clearly in the reasons in Alphaone. The first is the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. The decision-maker should disclose such material even if it is not taken into account in reaching the decision: Kioa v West at 628-629 per Brennan J. The second issue is the decision-maker’s obligation to advise of any adverse conclusion which has been arrived at, but which would not obviously be open on the known material.
47. In the first case, the obligation is to disclose information unknown to the applicant; in the second it is to disclose a conclusion which would be unexpected. As to the first case, a failure to disclose information will amount to a denial of procedural fairness vitiating the review unless the failure did not result in practical injustice or could have had no bearing on the review’s outcome. As to the second case, the fact that the Reviewer might reach a conclusion adverse to the applicant on known information which is not itself adverse, assuming that that process does not itself render the information adverse, does not require the information to be identified to the applicant for evidence or comment. A disclosure obligation will only arise in such circumstances if the adverse conclusion would not obviously be open on the known material.
The five items of country information which are the subject of this Ground are identified in Particular (f) of Ground 3 and effectively summarised by Ms Tronson in her written submissions at [36] above. For convenience I adopt those headings.
The material identified as Request by Belgium was addressed in the “Findings and Reasons” at [111] which stated:
In August 2008, in response to a question posed by the Belgian government on the treatment of returned failed asylum seekers to Iran, eight Western countries (Canada, Germany, Ireland, the Netherlands, New Zealand, Spain, Sweden and Switzerland) indicated that they had no information “on problems of persecution for returned failed asylum seekers in Iran since 2006.”
(CB 175)
(emphasis added)(footnote omitted)
I have formed the viewed that in the circumstances of this matter that the non-existence of information from a number of sources is not adverse to the applicant. The absence of material neither enhances nor detracts from the applicant’s position. This, in effect, is neutral and is not adverse to the applicant’s position. I am satisfied that this sub-ground cannot be sustained.
The second item of country information identified as Globe and Mail article consists of two parts, the first being the Assessor’s comments recorded in the Decision Record at [107] (reproduced at [41] above). The comments recorded in that passage concerning the age and the continued reference by advocates to those events are not the content of the article, rather, comments being made by the assessor as to why that country information was not considered relevant to the application being considered. In effect, those comments contained in [107] do not fall within the accepted parameters of “information”. The approach to this analysis is contained in the High Court decision of Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 per French CJ and Kiefel J (with whom Heydon, Gummow and Crennan JJ agreed) at [9], which states:
9. Despite the language of the Tribunal's letter, the existence of "inconsistencies" and "contradictions" in an applicant's testimony and written submissions to the Tribunal is not "information" of the kind to which s 424A is directed. As was explained by the plurality in SZBYR v Minister for Immigration and Citizenship[4], the term "information" in s 424A does not extend to the Tribunal's "subjective appraisals, thought processes or determinations"[5]. Their Honours said:
"However broadly 'information' be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence."
The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law. Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision[6]. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. Indeed it may be that such an invitation, once issued, amounts to a binding indication by the Tribunal that the review process will not be concluded until the applicant has had an opportunity to respond[7]. But an invitation to comment on perceived inconsistencies and contradictions is not an invitation under s 424A. The Tribunal's letter of 11 April 2008, despite its phrasing, was not sent pursuant to the obligation imposed by that section. Part of the reasoning in the Federal Court depended upon the incorrect view that it was such an invitation.
[4] [2007] HCA 26; (2007) 81 ALJR 1190 at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; [2007] HCA 26; 235 ALR 609 at 616; [2007] HCA 26.
[5] Citing with approval VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477 per Finn and Stone JJ.
[6] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591-592; and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 161-162 [29]- [32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; [2006] HCA 63; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 219[22] per Gleeson CJ, Gummow and Heydon JJ; [2003] HCA 56 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte MIAH (2001) 206 CLR 57 at 117-118 [194] per Kirby J; [2001] HCA 22.
[7] Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 11-12 [30]- [34] per McHugh, Gummow, Callinan and Heydon JJ; [2004] HCA 62.
As this item of country information was not considered by the Assessor for the reasons stated above, the contents of the article were not adverse to the applicant.
The second reference to the Globe and Mail article appears in [112], which is limited to the following reference:
…In this regard I note that the 2005 Canadian Immigration Review Board report which quoted the cases described by the Toronto Globe and Mail…
(CB 175)
I am satisfied that any issue that arises in respect of the disclosure to the applicant of this article is satisfactorily addressed in the first limb of this reference. Ms Tronson acknowledges this in her written submissions and, in effect, does not press this point. I am satisfied that the claim contained in this sub-ground cannot be sustained.
The third document is identified as the Canadian Report which addressed two specific instances where Iranian deportees from Canada had been subjected to mistreatment when they returned to Iran. One instance concerned a student activist and the other was a returnee who died as a result of receiving one hundred lashes in prison. The Assessor distinguishes these two individuals from the broader characterisation of failed asylum seekers. Both had offended the domestic law of Iran and the mistreatment of these individuals appears to be directly linked to that issue. In essence, these offences took them outside of the category of failed asylum seekers returning to Iran. The Assessor makes no reference to that broader category and does not consider that report further in relation to the applicant’ claims.
I am satisfied that this material was not required to be disclosed to the applicant and that this sub-ground cannot be sustained.
The fourth item was the USDOS Report which is referred to in the decision record’s “Findings and Reasons” at [112] where it states:
…quotes the US Department of State Human Right Report in which it states that “[c]itizens returning from abroad sometimes were subjected to searches and extensive questioning by government authorities for evidence of anti-government activities abroad”…
(CB 175)
(emphasis added)(footnote omitted)
The argument being advanced on behalf of the applicant is that the USDOS Report positively supports a finding that a failed asylum seeker returning to Iran will not be ill-treated solely on the basis that he is a member of the particular social group, being failed asylum seekers, and that this position is adverse to the applicant’s claim. One manner of approaching this is to accept that any material that may diminish the overall thrust of the applicant’s argument is adverse material. Alternatively, this approach could be characterised as an inconvenience as all citizens returning from overseas will be subjected to searches and extensive questioning, but not to the extent that the nature of these activities fall within the parameters of definition of persecution. I am satisfied that the claim contained in this sub-ground cannot be sustained
The last item of country information is identified as RRT Research advice – a summary of the contents of that document is located in the Decision Record at [57] and states:
57. RRT Research Advice IRN38814 dated 27 May 2011 deals with the issue of the government’s attitude towards demonstrators:
“Little information was located regarding the current view of government authorities towards low level protestors who took part in demonstrations following the 2009 and 2010 demonstrations. … [I]t appears that the majority of people arrested and targeted following these demonstrations were opposition leaders, high-profile protest organisers and reformist political figures. While it is unlikely that a low-profile individual who had participated in one of those demonstrations would be sought out by authorities indefinitely into the future, it is worth noting that photographs of some protestors were published by police and pro-government media in an attempt to identify them.
The bulk of Iranian government activity seeking retribution against demonstrates generally appeared to occur in the days and weeks immediately following the events in question. According to Human Rights Watch, in the two months immediately following the 2009 presidential election, the government carried out a “major campaign of repression that included mass detentions of protestors, political reform figures, and rights activists, culminating in public trials.” Further attacks against protestors occurred in November and December 2009 as large demonstrations commemorated significant Iranian and Shi’a events. In addition to massive detentions of ordinary protestors and peaceful activists, authorities rounded up scores of well-known writers and political figures affiliated with the reform movement.
Iran tried scores of opposition figures and activists on charges of fomenting the mass protests following the country’s disputed 2009 presidential elections. More than 80 people were sentenced to prison terms ranging from six months to 15 years. In the week after the protests, the Iranian government continued to harass and intimidate activists, journalists and human rights defenders. Many were detained, some were subjected to trials that did not adhere to international standards, and others were convicted solely for exercising their right to peaceful dissent.”
(CB 163-164)(footnotes omitted)
The RRT Research Advice is substantially the same as the material provided on behalf of the applicant by Ms Beatriz Stotz of Vrachnas Lawyers on 15 November 2011 in response to the Department’s letter of 4 November 2011 titled “Notice that your negative Protection Obligation Determination will be checked for currency”. The RRT Research Advice identified the people who were arrested as “opposition leaders, high-profile protest organisers and reformists political figures” with the clear statement that low-profile individuals who had participated in those demonstrations were unlikely to be pursued.
The Assessor addressed the applicant’s political profile at [81] of the Decision Record under the sub-heading of “Findings and Reasons” where he stated:
81. For these reasons I do not accept that Mr [WZAQR] set a Basij motorcycle on fire during a demonstration, that the Basij have his photograph or that the Basij came to his home looking or him. While I accept that Mr [WZAQR] attended a demonstration (by accident rather than by design) I do not accept that he has ever been politically active or that he is known or wanted by the authorities.
(CB 168)
I agree with the submissions advanced by Mr Reilly that the applicant did not have a political profile and would, therefore, not be of adverse interest to the Iranian authorities. I rely on the passage from the decision of Cameron FM (as he was then) in SZQFY (reproduced above at [88]). The thrust of the argument being advanced on behalf of the applicant is that the Assessor’s reasoning should have been disclosed in advance. Contrary to that view the Assessor discharged his obligations pursuant to s.425 of the Migration Act by inviting the applicant to a hearing and that is the opportunity for and, indeed, the obligation on the Assessor to discuss the issues in the review. The argued disclosure in advance would require some form of notification in writing but there is no such obligation. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court held the obligation on the decision-maker (in those proceedings, the Refugee Review Tribunal) to raise and expose issues with an applicant in order to discharge its procedural fairness obligations pursuant to s.425 of the Migration Act should occur during the hearing. I am satisfied that the claim contained in this ground cannot be sustained.
Conclusion
In the circumstances I am satisfied that the application (subsequently amended) should be dismissed with costs awarded to the respondents.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Date: 7 June 2013
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