WZAQU v Minister for Immigration

[2012] FMCA 925

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAQU v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 925

MIGRATION – Review of recommendation made by an Independent Protection Assessor – whether the applicant was denied procedural fairness – whether the Assessor failed to take into account an integer of the applicant’s claims – whether the Assessor failed to giver proper, genuine and realistic consideration to the applicant’s claims – whether the Assessor failed to take into account credible and relevant material – whether the Assessor’s findings were illogical and irrational – no jurisdictional error – application dismissed.

Constitution, s.75
Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 91R, 91S, 91T, 91U, 424A, 476, Pt.7

SZQXX v Minister for Immigration & Anor [2012] FMCA 415
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Kioa v West (1985) 159 CLR 550
Applicant VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Minister for Immigration v SZGUR (2011) 241 CLR 594
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

Applicant: WZAQU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: ANN CUNNINGHAM IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

File Number: PEG 53 of 2012

Judgment of: Emmett FM

Hearing date: 19 September 2012

Date of Last Submission: 19 September 2012

Delivered at: Sydney

Delivered on: 10 October 2012

REPRESENTATION

Counsel for the Applicant: Mr P Afshar

Solicitors for the Applicant: Allens Arthur Robinson

Counsel for the Respondents: Mr D Godwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 12 March 2012, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PEG 53 of 2012

WZAQU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

ANN CUNNINGHAM IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER

Second Respondent

REASONS FOR JUDGMENT

1. The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court of Australia has under paragraph 75(v) of the Constitution.

2. This is an application for judicial review of conduct leading to the recommendation by the second respondent, being an independent protection assessor (“the Assessor”), dated 28 February 2012 and handed down on 29 February 2012, that the applicant not be recognised as a person to whom Australia has protection obligations.

3. The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the Assessor. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the Assessor made an error of law.

4. The applicant claims to be a citizen of Iran, of Arab ethnicity and a Muslim Shi’a.

5. Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background; a summary of the legislative framework; a summary of the applicant’s claims for refugee status; and, the Assessor’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.

A.           Background

1. On 20 February 2011, the applicant arrived in Australia at Christmas Island as an unauthorised boat arrival and was consequently detained under s.189(3) of the Act.

2. On 2 March 2011, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship (“the Department”).

3. On 2 March 2011, the applicant made a request for a protection obligations determination.

4. On 11 July 2011, an officer of the Department found that the applicant did not satisfy the criteria for being a refugee and was therefore not a person to whom Australia has protection obligations. Consequently, the officer referred the matter for an independent protection assessment.

5. On 28 February 2012, the Assessor recommended that the applicant not be recognised as a person to whom Australia has protections obligations.

6. On 12 March 2012, the applicant filed an application in this Court seeking judicial review of the Assessor’s recommendation.

B.            Legislative framework

1. The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, in SZQXX v Minister for Immigration & Anor [2012] FMCA 415, as follows:

   “2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.

   3. Section 5 relevantly provides the following definitions:

   "offshore entry person" means a person who:

   (a) entered Australia at an excised offshore place after the excision time for that offshore place; and

   (b) became an unlawful non-citizen because of that entry.

   …

   "excised offshore place" means any of the following:

   (a) the Territory of Christmas Island; …

   …

   "excision time", for an excised offshore place, means:

   (a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …

   4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.

   [1] See s 14(1) of the Act.

   5. Section 46A relevantly provides:

   (1)     An application for a visa is not a valid application if it is made by an offshore entry person who:

   (a)  is in Australia; and

   (b)  is an unlawful non-citizen.

   (2)     If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

   (3) The power under subsection (2) may only be exercised by the Minister personally.

   …

   (7)     The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

   6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.

   [2] s.46A(1) of the Act

   7. Similarly, section 195A relevantly provides:

   Persons to whom section applies

   (1) This section applies to a person who is in detention under section 189.

   Minister may grant visa

   (2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

   (3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

   Minister not under duty to consider whether to exercise power

   (4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

   Minister to exercise power personally

   (5) The power under subsection (2) may only be exercised by the Minister personally.

   …

   8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.

   9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.

   [3]     Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.

   10. As part of this process, the Department developed an offshore refugee status assessment process.

   11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.

   12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.

   13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:

   13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);

   13.2 independent merits review for people receiving unfavourable refugee status assessments;

   13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and

   13.4 external scrutiny of the RSA process by the Immigration Ombudsman.

   14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.

   15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]

   16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]

   17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.

   18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]

   19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]

   Jurisdiction and relief

   20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]

   21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.

   22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”

   [4]     M61 (2010) 243 CLR 319 at [70].

   [5]     M61 (2010) 243 CLR 319 at [66].

   [6]     M61 (2010) 243 CLR 319 at [67].

   [7]     M61 (2010) 243 CLR 319 at [73].

   [8]     M61 (2010) 243 CLR 319 at [76].

   [9]     M61 (2010) 243 CLR 319 at [89].

   [10]    M61 (2010) 243 CLR 319 at [78].

   [11]    M61 (2010) 243 CLR 319 at [73].

   [12]    M61 (2010) 243 CLR 319 at [91].

   [13] s.476 of the Act.

   [14]    M61 (2010) 243 CLR 319 at [99]-[100]

   [15]    Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]

   [16]    M61 (2010) 243 CLR 319 at 360-361 [101]-[104].

C.           The applicant’s claims for protection

1. On 22 May 2011, the applicant provided a Statutory Declaration in support of his application for a protection visa. The applicant claimed that he feared persecution in Iran for reason of his ethnicity, his imputed political opinion and his involvement in certain activities in Australia.

2. The applicant claims that he is an Arab from Ahwaz with Iranian citizenship who has suffered discrimination due to his race.

3. The applicant claimed that his hometown “is a deprived city… this deprivation is an international policy of the Iranian government as the government is anti Arab”. The applicant further claimed that there are limited educational opportunities, where priorities are given to “people connected to the Basijis, Sepah, or if family members had been war victims”. The applicant claimed that he was unable to gain a place at a government university and “had to attend a private university which costs 80% more than a government university”.

4. The applicant claimed that around November/December 2005 a letter was issued by Iranian President Khatami. The letter stated that “all Arabs should be relocated to the Northern part of Iran, and that in Ahwaz there should be a ration of 3 Persian to each Arab… and [that] each Arab should be banned from being employed by oil companies”. The letter was marked highly confidential and was distributed all over Ahwaz (“the First Letter”). The applicant claimed that after the First Letter had been distributed, there were riots and protests all over Ahwaz. The applicant claimed that he received the First Letter while attending university, at which time, he too distributed the First Letter. The applicant claimed that the Basij office at the university attended by the applicant found out that the applicant had distributed the First Letter which resulted in the applicant’s arrest and detention.

5. The applicant claimed that he was detained for three days during which time he was interrogated and beaten. The applicant claimed that he was only released when they realised that he was not a political activist. He claimed that he was made to sign an undertaking that he would not participate in any political activities and demonstrations.

6. When the applicant returned to the university, he claimed that the Basij approached him and informed him that he was not to get involved in any political activities and told that he was under surveillance.

7. The applicant claimed that in December 2010, he received a letter from his neighbour which had been issued from the office of President Ahmedinejad in 2007 (“the Second Letter”). The applicant claimed that the Second Letter stated that after the incidents in Ahwaz in 2005, the gathering of more than five people of ethnicity, particularly Arab, was banned and that houses or land should not be allocated to any Arabs. The applicant claimed that the Second Letter also stated that Arabs were not to be employed at Zergan Power Plant, 40 minutes from Ahwaz.

8. The applicant claimed that he gave the Second Letter to a university friend and requested that he distribute the Second Letter on his behalf. The applicant claimed that he was informed by a mutual friend that two days after the distribution of the Second Letter, his university friend was arrested. The applicant then claimed that he bought an airline ticket to Indonesia and left on 30 January 2011.

1. While in Indonesia, the applicant claimed that he contacted his family in Iran who informed him that the Etelat had come to his house looking for him because his university friend had given his name to the Etelat.

2. The applicant claimed that if returned to Iran he would be arrested by the Etelat and seriously harmed, imprisoned or executed by the Iranian authorities.

3. The applicant claimed that he is imputed with a political opinion hostile to the Iranian government because of his distribution of the First Letter, because he is an Arab and because he escaped Iran and sought protection in a Western country.

D.           Assessor’s conduct leading to recommendation

1. On 5 October 2011, an officer from the Independent Protection Assessment Office (“IPAO”) requested that the applicant submit any additional information, documentation or submissions that he would like the Assessor to consider.

2. On 17 October 2011, the applicant’s migration agent wrote to the IPAO attaching submissions for consideration.

3. On 7 November 2011, the applicant’s migration agent again wrote to the IPAO attaching an additional supporting document for consideration.

4. On 9 November 2011, the applicant was interviewed by the Assessor.

5. On 2 December 2011, the applicant’s migration agent wrote to the IPAO requesting further time to submit information requested from the applicant at the interview. The Assessor gave the applicant until 14 December 2011 to submit the further documents.

6. On 14 December 2011, the applicant’s migration agent wrote to the IPAO attaching further submissions for consideration.

7. The decision of the Assessor is accurately summarised by counsel for the First Respondent, Mr David Godwin, in his written submissions as follows:

   “3. The Independent Merits Reviewer (Reviewer) first considered the treatment of ethnically Arab Iranians in Iran. She concluded that although they were discriminated against this did not amount to persecution.[17]

   [17] CB 222 [78]

   4. The Reviewer accepted that the applicant  had distributed the first letter as he claimed.[18] The Reviewer was not satisfied that he had been detained and mistreated by the Basij on account of distributing this letter.[19] The Reviewer reasoned that his description of the arrest and his detention were insufficiently detailed to be convincing[20]. The Reviewer added that she did not accept his evidence that he was released because he was 17 years of age- principally because he was 18 at the time.

   [18] CB 223 [81]

   [19] CB 223 [82]

   [20] ibid

   5. The Reviewer accepted that the applicant was  interrogated by the Basij whilst he was at university concerning the distribution of the letter.[21]

   6. The Reviewer did not accept that there was a second letter obtained and distributed by the applicant while in Iran. The Reviewer reasoned that if it was available on the internet or its contents were known then there would have been the type of unrest in Iran which had followed the appearance of the first letter on the internet. If this had occurred then there would be some record of it and the Reviewer could find none[22]. The Reviewer also found the evidence concerning the giving of the letter to the friend to be unconvincing[23] and also found the applicant’s evidence that the friend had informed the authorities of his involvement to be speculative[24]. The Reviewer did not accept that the applicant’s house had been subsequently searched by the Etelat and his computer with a copy of the letter on it taken.  This was because he did not have a profile which would cause the Etelat to conduct such a search.[25]

7. The Reviewer then considered the issue of whether the applicant’s past activity would lead to a future chance of persecution. In respect of the 2005 letter the Reviewer reasoned that this was now 6 years earlier and the applicant had not engaged in any further political activity. Although he had been interrogated about this incident nothing further had occurred because of it.[26] Nor was the Reviewer satisfied that the applicant would again engage in political activity.[27]

8. The Reviewer found that the material on the applicant’s computer would not lead to him being imputed with a political opinion such as to give rise to a well founded fear of persecution even if it had been seized by the Etelat. [28]

9. The Reviewer found on the basis of independent country information that the applicant did not have the profile which would lead to a chance that he would be persecuted as a returned asylum seeker. In making this finding the Reviewer took into account the applicant’s claims that he had been a member of the Ahwazian community in Australia.[29]”

E.          The proceeding before this Court

[21] CB 223[83] and CB 224[87], [89] and CB 225 [92] [93]. the reference to arrest in [92] was clearly a mistake

[22] CB 224[88]

[23] CB 223[84]

[24] CB 223[86] and CB 225[92]

[25] CB 224[87]

[26] CB 113 [90]-[92]

[27] CB 225 [92]-[93]

[28] CB 225[93]

[29] CB 226 [97]

1. The applicant was represented before this Court by Mr Pouyan Afshar, of counsel.

2. On 12 March 2012, the applicant initiated his application for judicial review in Perth and the matter was allocated to the docket of Lucev FM. On or around late June 2012, the applicant moved from Perth to Sydney. Consequently, the applicant requested that his proceeding be transferred to the Court’s Sydney Registry. Federal Magistrate Lucev ordered that the transfer of the matter be effected on 2 July 2012.

3. On 9 July 2012, the Sydney Registry allocated the matter to my docket and the matter was given a return date of 3 August 2012.

4. On 3 August 2012, Mr Afshar appeared for the applicant. The application filed on 12 March 2012 contained no grounds for judicial review. Mr Afshar stated that the applicant wished to continue with the application. Consequently, leave was granted to the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the interview, as well as submissions in support.

5. At the commencement of the hearing, Mr Afshar confirmed that the applicant relied on an amended application filed on 27 August 2012, headed “Application”. Mr Afshar read two affidavits of Benjamin William Crawford Buckingham, both sworn 27 August 2012; and the affidavit of Nabil Michael Chachaty, sworn 27 August 2012. One of Mr Buckingham’s affidavits annexed a transcript of the interview with the Assessor and various references were made to the transcript during the course of the hearing. No further reference was made to either of the other affidavits and, accordingly, I have had no further regard to either of them.

6. Mr Afshar confirmed that the applicant relied on the grounds contained in the document entitled “Application”, filed on 27 August 2012, which are as follows:

   “Ground 1

   1. The Independent Protection Assessment Reviewer (Reviewer) failed to make a recommendation in accordance with the law by failing to accord procedural fairness to the applicant.

   Particulars

   a. The Reviewer rejected the applicant’s claims that the Basij had released him from custody on account of his age, on the basis that the voting age in Iran is 15 (Voting Age Information).

   i. The Voting Age Information was on of the reasons, based on which the Reviewer rejected applicant’s claims in relation to his arrest by the Basij and subsequent release in 2005.

   ii. The Voting Age Information was material to the Reviewer’s determination.

   iii. The Reviewer considered the Voting Age Information to be credible, reliable and weighty in determining the applicant’s claims.

   iv. In all the circumstances, the Reviewer had an obligation to put the Voting Age Information to the applicant for his consideration and comment.

   v. In the premises, the Reviewer breached the obligation referred to in (iv) above an, in doing so, failed to accord the applicant procedural fairness.

   b. The Reviewer found that the Basij had not arrested the applicant in 2005 on the basis, amongst others, that the applicant provided no evidence of other persons being arrested for distributing the first letter (Arrest Information).

   i. The absence of the Arrest Information was one of the bases, upon which the Reviewer rejected the applicant’s claim that he was arrested by the Basij in 2005.

   ii. The absence of the Arrest Information was material to the Reviewer’s determination.

   iii. The Reviewer considered the absence of the Arrest Information to be a credible, reliable and weighty reason for rejecting the applicant’s claims.

   iv. In all the circumstances, the Reviewer had an obligation to put the fact of the absence of the Arrest Information to the applicant for his consideration and comment.

   v. In the premises, the Reviewer breached the obligation referred to in (iv) above an, in doing so, failed to accord the applicant procedural fairness.

   c. The Reviewer rejected that the applicant had distributed the second letter in 2011 on the basis that she had been unable to find any references to the publication or distribution of the second letter or any indication of any government policies or actions taken in accordance with the contents of the second letter (Second Letter Information).

   i. The Reviewer’s inability to find the Second Letter Information was the basis upon which the Reviewer rejected the applicant’s claim that he had distributed the second letter in 2011.

   ii. The Reviewer’s inability to find the Second Letter Information was material to the Reviewer’s determination.

   iii. The Reviewer considered the fact that she was unable to find the Second Letter Information to be a credible, reliable and weighty reason for rejecting the applicant’s claims.

   iv. In all the circumstances, the Reviewer had an obligation to put to the applicant the fact that she was unable to find the Second Letter Information for the applicant’s consideration and comment.

   v. In the premises, the Reviewer breached the obligation referred to in (iv) above and, in doing so, failed to accord the applicant procedural fairness.

   Ground 2

   2. The Reviewer failed to consider an integer of the applicant’s claim, and failed to take into account an aspect of the applicant’s claim, which was that he was a member of a particular social group, being ‘young university-educated Arab-Iranians perceived to be opponents of the regime’.

   Particulars

   The Reviewer considered only the applicant’s ethnicity, imputed political opinion and his status as failed refugee, and did not consider his heightened risk of Convention-based persecution arising out of his membership of a particular social group of young university-educated Arab-Iranians perceived to be opponents of the regime.

   3. The Reviewer failed to consider an integer of the applicant’s claim, and failed to take into account an aspect of the applicant’s claim, which was that he was a member of a particular social group, being a ‘member of an overseas civil society organisation that is highly critical of the Iranian Government and its policies’.

   Particulars

   a. The applicant is a current member of the Ahwazian Community in Australia.

   b. The Ahwazian Community in Australia is an Australian-based civil society organisation that is highly critical of the Iranian Government and its policies.

   c. The Reviewer did not consider the applicant’s heightened risk of Convention-based persecution arising out of his membership of a particular social group, that is of being a member of an overseas civil society organisation that is highly critical of the Iranian Government and its policies.

   Ground 3

   4. The Reviewer failed to take into account material that is credible, relevant, and up to date when considering the applicant’s claims that he would suffer persecution if he returned to Iran.

   Particulars

   a. The applicant’s representative provided to the Reviewer material showing that the applicant was a member of the Ahwazian Community in Australia.

   b. The Ahwazian Community in Australia is an Australia-based civil society organisation that is highly critical of the Iranian Government and its policies and publishes materials which are highly critical of the Iranian Government on its publicly accessible Facebook page: These materials include an interview on the topic of persecution of Arabs in Iran, a song inciting a revolution and a new report of persecution of minority groups in Iran.

   c. The Reviewer failed to take into account the fact of the applicant’s interaction with the Ahwazian Community in Australia and evidence thereof when considering the applicant’s claims that he would suffer persecution if he returned to Iran.

   d. The applicant and his representative provided to the Reviewer material showing that the second letter and the materials on the applicant’s computer were not freely available to Iranians users of the internet.

   e. The Reviewer failed to take into account the materials at (d).

   f. The materials referred to at (a) and (d) above were material to the Reviewer’s consideration of whether the applicant would suffer persecution were he to be returned to Iran.

   Ground 4

   5. The Reviewer failed to make a recommendation in accordance with the law by making findings that are irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.

   Particulars

   a. The Reviewer found that the claimant’s fear of persecution based on a suspicion that his friend Bashir had informed the authorities that the applicant had handed Bashir the 2007 letter was ‘far fetched, remote and unfounded’.

   i. The Reviewer’s finding was not based upon the evidence before the Reviewer.

   ii. The Reviewer’s finding was not based upon reasonable inferences from the evidence before the Reviewer.

   iii. The Reviewer’s finding bore no rational or logical connection with the evidence before the Reviewer.

   b. The Reviewer found that the applicant had little reason to fear arrest by the Basij and the Etela’at, because the second letter was freely available on the internet.

   i. The Reviewer’s finding was not based upon any evidence before the Reviewer.

   ii. The Reviewer’s finding was not based upon reasonable inferences from the evidence before the Reviewer.

   iii. The Reviewer’s findings bore no rational or logical connection with the evidence before the Reviewer.

   c. The Reviewer found that the applicant did not have a fear of persecution as a result of the seizure of his computer by the Etela’at, because the material on his computer is freely available on the internet in Iran.

   i. The Reviewer’s finding was not based upon any evidence before the Reviewer.

   ii. The Reviewer’s finding was not based upon reasonable inferences from the evidence before the Reviewer.

   iii. The Reviewer’s finding bore no rational or logical connection with the evidence before the Reviewer.

   d. The Reviewer found that his fear of persecution at the hands of the Basij and the Etela’at was not the sole reason for leaving Iran and found the applicant left Iran also because ‘he had been dissatisfied with the conditions there and had been unable to find a job’.

   i. The Reviewer’s finding regarding additional bases for the applicant leaving Iran was not based upon any evidence before the Reviewer.

   ii. The Reviewer’s finding was not based upon reasonable inferences from the evidence before the Reviewer.

   iii. The Reviewer’s finding bore no rational or logical connection with the evidence before the Reviewer.

   Ground 5

   6. The Reviewer failed to take give proper, genuine and realistic consideration of the merits of the applicant’s claims.

   Particulars

   a. The Reviewer failed to give proper, genuine and realistic consideration to the applicant’s claims that he would face persecution if he were returned to Iran, because of his membership of the Ahwazian Community in Australia.

   b. The Reviewer failed to give proper, genuine and realistic consideration to the applicant’s claims that he would face persecution as a result of disseminating the second letter.

   c. The Reviewer failed to give proper, genuine and realistic consideration to the applicant’s claims that he would face persecution based on the materials on his computer, which was seized by the Etela’at. These included the first and second letter as well as evidence of other political activity including video clips of the torture of detainees in prison, Arab poetry and the Ahwaz flag.

   d. The Reviewer failed to give proper, genuine and realistic consideration to the applicant’s stated reasons for leaving Iran.”

7. In both his oral and written submissions, Mr Afshar addressed the grounds of this application in the order that appears below.

Ground 2 – “Failure to take into account integers of the applicant’s claims”

1. In support of ground 2, Mr Afshar submitted that the Assessor had failed to consider the applicant’s claim that, if returned to Iran, he feared persecution as a member of the Ahwazian Community in Australia Incorporated.

2. It is clear from the transcript that the Assessor explored the applicant’s claims to fear harm in Iran because of his membership of the Ahwazian Community in Australia Incorporated.

3. The Assessor referred specifically to a letter provided by the applicant from the Ahwazian Community in Australia Incorporated, dated 10 September 2011. The letter was from the President and stated as follows:

   “I Mousa Shannun the president of the Ahwazian community in Australia, Acknowledges that [the applicant]is one of the Ahwazian which was persecuted by Iranian government as a result of the cultural acts that he had in the time he was in Ahwaz. [The applicant] was forced to leave Iran to protect himself. Therefore he came to Australia as refugee, and I demand that to look after his case again to see if he would be capable for subsist in Australia.”

   [Errors in the original]

4. The Assessor also referred to further information provided by the applicant’s migration agent post-hearing, at the request of the Assessor, about the Ahwazian Community in Australia Incorporated stating that it was founded in 2009 and based in South Australia. The Assessor noted that the migration agent’s submission also attached a reference to a submission made by the Ahwazian Community in Australia Incorporated to the United Nations High Commissioner for Human Rights (“UNHCHR”) Ahwaz representative regarding Arab-Iranian asylum seekers in Australia. The Assessor stated as follows:

   “41. Following the interview I received further submissions from the claimant’s agent together with English translations of the two letters under discussion. The written submissions contained some information regarding the organisation known as the Ahwazian Community in Australia Inc which was founded in 2009 and is based in South Australia. A reference to a submission made by the organisation to Ahwaz representative to Louise Arbour, United Nations High Commissioner for Human Rights regarding Arab-Iranian asylum seekers in Australia was included. ( The letter included the following statement in the penultimate paragraph:

   ‘I attach the names and Australian identification numbers of the Ahwazi Arabs for your information, but ask that they are treated with the utmost confidentiality out of concern for the men’s safety. If you require further information, please don’t hesitate to contact me. I will be happy to provide you with whatever case details you may require.’”

5. The Assessor found that the applicant’s name could not have been included on the list of names and identification numbers because the submission was dated 7 November 2004. That date was many years before the applicant claimed to have become a member of the Ahwazian Community in Australia Incorporated.

6. The Assessor also noted that there was an internet reference for the Ahwazian Community in Australia Incorporated Facebook page and noted that the applicant had claimed to have interacted with this group using Facebook.

7. A fair reading of the Assessor’s decision record makes clear that it understood the applicant’s claim of a fear of persecution in Iran because of his membership of the Ahwazian Community in Australia Incorporated was due to the fact that the organisation had provided names and Australian identification numbers of Ahwazi Arabs to the UNHCHR.

1. The Assessor rejected the applicant’s claim to fear persecution because of his membership of the Ahwazian Community in Australia Incorporated. The applicant’s evidence in support of that claim was the letter from the Ahwazian Community in Australia Incorporated dated 10 September 2011, as well as the submission from the UNHCHR dated 7 November 2004.  

2. However, the Assessor found that the letter from the President of the Ahwazian Community in Australia Incorporated simply stated what that organisation had been told by the applicant. The Assessor found that “it was not evidence of, or an independent verification of his claims”.

3. In relation to the UNHCHR submission, dated 7 November 2004, as stated above, the Assessor noted that that the claimant’s name could not have been included on the list given that the date of that submission was 7 November 2004.

4. In the circumstances, a fair reading of the Assessor’s decision record makes clear that the Assessor understood and considered the applicant’s claim to fear persecution in Iran by reason of his membership of the Ahwazian Community in Australia Incorporated. Accordingly, Mr Afshar’s submission that the Assessor failed to consider that claim is rejected.

5. Mr Afshar also submitted that the Assessor failed to consider the applicant’s claim of a fear of persecution because of his interaction with the Ahwazian Community in Australia Incorporated through Facebook. However, no such separate claim was clearly articulated. The assertion that the applicant interacted on Facebook with the Ahwazian Community in Australia Incorporated was merely given by the applicant’s migration agent following the request by the Assessor at hearing for more information about the Ahwazian Community in Australia Incorporated.

6. There was no evidence before this Court of the nature of the “interaction” on Facebook.

7. In any event, any such claim is subsumed in the Assessor’s finding that the applicant does not face a real chance of persecution because he had become a member of the Ahwazian Community in Australia Incorporated whilst in Australia. A fair reading of the Assessor’s decision record suggests that the “interaction” was no more than interaction in the ordinary sense of being a member of that organisation.

8. Those findings were open on the material and evidence and for the reasons given.

9. Accordingly, that part of ground 2 is not made out.

10. Ground 2 also contended that the Assessor failed to consider the applicant’s claim to fear persecution as a member of a group of young, university educated Arab-Iranians perceived to be opponents of the regime.

11. A particular social group is identified by a characteristic common to all members of the group and that the characteristic common to all members of the group was not a shared fear of persecution (see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ).

12. Mr Afshar submitted that the claim arose from an analysis of various country information before the Assessor, as well as the evidence that at the time of his arrest in 2005, the applicant was studying at university and had been involved in the distribution of the First Letter, as a result of which he had experienced harassment and intimidation. Mr Afshar also referred to the applicant’s claimed involvement in the Second Letter.

13. It is well established that a decision-maker, such as the Assessor, is required to consider all claims that reasonably arise on the material and information before the Assessor. Whilst this may cover a claim open on the facts but not expressly advanced by the applicant, a finding that the decision-maker has failed to consider a claim not expressly advanced is not to be made lightly. It is well established that the claim must emerge “clearly from the materials before the Tribunal” (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at [18] and [22] per the Court).

14. The Assessor did not accept the applicant’s evidence in relation to the Second Letter. In relation to the First Letter, the Assessor found that the incidents surrounding that letter took place in 2005 and that it was the applicant’s own evidence that he had not been involved in any other political activity or come to the adverse attention of the Basij or authorities since that incident.

15. The Assessor found that the applicant would not be an opponent of the regime. In the light of that finding, the applicant could not succeed on a claim to fear persecution as a member of a group of young university educated Arab-Iranians perceived to be opponents of the regime. Moreover, in the light of its finding, there was no further obligation on the Assessor to consider further the applicant’s claim to be a member of a particular social group opposed to the regime. That finding was open to the Assessor on the evidence and material before her and for the reasons given.

16. Moreover, the claim contended for was not squarely raised by the applicant, nor does it arise from the material and evidence before the Assessor in a manner that created an obligation on the Assessor to consider whether the applicant was at risk of persecution in Iran by reason of membership of the social group identified above.

17. In any event, if such a claim did arise, it is subsumed in the Assessor’s finding that the applicant is not perceived as an opponent of the regime (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (“Applicant WAEE”) at [46]-[47] per the Court).

18. Accordingly, this complaint in ground 2 is not made out.

Ground 3 – “Failure to take into account credible and relevant material”

1. Ground 3 alleges that the Assessor failed to take into account various material. The particulars of the substance of that material are bolded below.

2. In support of ground 3, Mr Afshar contended that the Assessor failed to consider material before her that the applicant would suffer persecution if returned to Iran by reason of his membership and interaction with the Ahwazian Community in Australia Incorporated.

3. For the reasons referred to in ground 2 above, the Assessor did not fail to take into account that material.

4. Further, a fair reading of the Assessor’s decision record makes clear that the Assessor considered the material requested by it about the Ahwazian Community in Australia Incorporated. The Assessor was not satisfied that the applicant’s involvement in that organisation would come to the adverse attention of the Iranian authorities for the reasons referred to in ground 2 above.

5. Those findings were open to the Assessor on the material and evidence before her and for the reasons given.

6. In support of ground 3, Mr Afshar also contended that the Assessor failed to take into account material supplied by the applicant which showed that the Second Letter and the material on the applicant’s computer were not freely available to Iranian users of the internet.

7. Counsel for the applicant submitted that when the Assessor found that the letters and materials on the applicant’s computer are freely available on the internet, the Assessor was referring to the availability of these materials by an internet user based in Iran. Mr Afshar submitted that there was no evidence before the Assessor that these materials are freely available to internet users in Iran.

8. Mr Afshar also referred to parts of the transcript that he submits supports that contention. In particular Mr Afshar referred to the following exchange:

   “[Assessor] …But what I’m… it’s suggesting to me that there was already an uprising about this letter so it was quite widely known.

   [Applicant] Yes, the content of the letter was known by people through their opposition… the political leaders, their political leaders which mainly lived outside Iran and through internet or satellite TVs were told, these people were told by these political leaders that such a letter exists and this is what it says but the details exactly and the letter probably not many people had access to.

   [Assessor] You’re suggesting that the people who were demonstrating didn’t know that was in the letter.

   [Applicant] I don’t think so they had access to all content of the letters. They only knew what they had heard from people who had heard what in the letter, what was in the letter.

   [Assessor] Mmm. Well, I mean if your friend was able to access the internet and download it why couldn’t other people generally do that?

   [Applicant] My friend had software that could break into filters and hack…

   [Assessor] Mmm.

   [Applicant] …the sites. I don’t think everybody could do that.

   [Assessor] Mmm-uh.

   [Applicant] And 80% of people in Ahwaz do not have access to the free internet. They only have access to internet which is filtered by government and what government allows to…”

9. Mr Afshar submitted that the Assessor also failed to consider other materials which the applicant said were on his computer, including evidence of his involvement and political activities and “clips which showed the torture of detainees, Arab detainees in prison and some Arab nationalists, national poems, the flag of Ahwaz.”

10. Mr Afshar also submitted that the Assessor did not consider if the applicant could have a well-founded fear of the consequences of being identified as a person who collates such sensitive and clearly
    anti-government materials on his personal computer.

11. The findings about which the applicant complains are as follows:

    “80. A translated copy of the letter [the First Letter] was forwarded to me following to the interview which indicates that the claimant had correctly detailed its contents. As these details are widely available on the internet, this fact does not confirm the claimant’s evidence regarding his distribution of the letter.

    …

    86. … Later in his evidence the claimant said that he was concerned for his family’s safety if he was arrested. At that stage however I find that he had little reason to fear arrest. The letter [the Second Letter] he claims to have given his friend was allegedly written in 2007 and was available on the internet. Whilst he claims that he heard that [his friend] had been arrested, it was claimed that this was a risk they both accepted and the claimant had no knowledge that his friend had provided his name to authorities. The claimant had not been approached by the authorities prior to his departure.

    87. The claimant maintains that since his departure the Etelat have visited his parents’ home demanding to know his whereabouts. He claims that he could not return to Iran because they have seized his computer which contains copies of the two letters and videos of torture. I reject these claims as such material is freely available on the internet. The claimant had not mentioned the seizure of his computer during previous interviews because he claims it only recently occurred. I do not accept that the claimant had a political profile that would cause the Etelat to visit his home on a number of occasions and seize his property. His only interaction with the authorities was connected with his distribution of a number of copies of a letter amongst Farsi speaking student friends in around October/November 2005 which was already publicly known and the subject of well publicised demonstrations in Ahwaz in April 2005. The claimant said that he was not the only person to distribute the letter that day.

    88. The claimant’s evidence as to the contents of the second letter [the Second Letter] largely accords with the translated copy of the letter apart from his statement that authority was given to shoot those suspected of demonstrating. If as the claimant claims, this letter was accessible on the internet, I do not consider the claimant’s knowledge of its contents to be of consequence. The translated copy of the letter is stated to follow recommendations by the Intelligence Ministry about ethnic and security issues prevention in Khuzestan province dated 06.08.2007. Unlike the details of the first letter, whilst disputed by the government authorities, its publication and the unrest that followed were widely reported. I have however been unable to find any references to the publication or distribution of the claimed second letter despite its date of August 2007. Nor are there any reports of any government policies or actions taken regarding these issues, for instance restricting gatherings of people of the same ethnicity, particularly Arabs, to five persons. These stated policies appear to be specifically directed towards the Arabs people and one would have expected significant unrest and protests as occurred in April 2005 if the letter was available on the internet and/or such policies had been enacted.

    …

    92. Whilst I accept that the claimant was arrested and interrogated by the Basij on account of distributing the letter amongst fellow university students, I do not find that there is a real chance that he will suffer persecution on return to Iran for this reason. This incident took place in 2005 and it was the claimant’s evidence that he has not been involved in any other political activity or come to the adverse attention of the Basij or the authorities since this incident. I do not consider that the claimant would engage in any political activity on his return to Iran, I find that the claimant’s fear of persecution based on a suspicion that his friend Bashir had informed the authorities that the claimant had handed him the 2007 letter is far fetched, remote and unfounded. I consider that it is most unlikely that the claimant would be identified as having passed this letter on for distribution. In any event I have serious doubts as to the authenticity of this letter and whether it was distributed as claimed. On the claimant’s own evidence his reasons for leaving Iran were multiple and not solely based on his fear of persecution at the hands of the Basij or Etelat.

    93. For the reasons stated earlier, I do not accept that there is a real chance of persecution on the basis of material found on the claimant’s computer. I am very doubtful that the claimant’s computer was seized by the Etelat and even if I did accept this evidence, I do not find that such material, together with his past activity of distributing the letter in 2005, over five years ago, would impute the claimant with a political opinion such as to give rise to a real chance of persecution. Although I accept that the claimant was questioned on several occasions by the Basij regarding various incidents which had taken place at the university, he was not arrested or subjected to further serious harm. There is no evidence of, nor is there any basis for finding that such persecution would be systematic and discriminatory.”

12. Fairly read, these findings indicate that the main reason why the Assessor did not accept the applicant’s evidence in relation to the Second Letter was because there was no record of the Second Letter or of any civil disturbance arising from its publication. The Assessor found that there were no reports of the type of unrest that followed the First Letter. The Assessor also noted that there were no reports of any government policies or actions taken regarding the matters referred to in the Second Letter, such as restricting gatherings of Arabs to five. The Assessor found that, given that the policies referred to in the Second Letter appeared to be specifically directed towards Arabs, one would have expected the Second Letter to be available on the internet and/or the policies which it advocated to have been enacted.

13. The Assessor made these findings based on her understanding of the applicant’s claims that this letter was accessible on the internet and therefore the applicant’s knowledge of its contents was not of any consequence.

14. It may be that the Assessor misunderstood the availability of this material on the internet. However, an error in fact finding is a matter within the Tribunal’s jurisdiction and does not demonstrate jurisdictional error (see Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at [138] per Gummow J; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at [92] per McHugh, Gummow and Hayne JJ).

15. Alternatively, it may be that the Assessor was not persuaded by the evidence given by the applicant that one needed software to break into filters to hack into the Iranian internet and that only 80% of people in Ahwaz have access to free internet. The Assessor expressed a concern about the applicant’s evidence that, if the applicant’s friend was able to access the internet and download it, why other people could not generally do that. It was open to the Assessor not to accept that evidence.

16. Fairly read, the applicant’s evidence suggests the Second Letter was not freely available on the internet in Iran, but that his evidence was not readily accepted by the Assessor. Moreover, the Assessor clearly had doubt as to whether or not the Second Letter existed and, if it did not exist, then it would not have been on the applicant’s computer.

17. A fair reading of the Assessor’s decision record suggests that the Assessor went on to assume, for the purposes of argument, that the Second Letter was available as claimed by the applicant. In that context, the Assessor found that the applicant would have known of the content of the Second Letter because of its availability on the internet. In the circumstances, the Assessor gave the applicant’s knowledge of the Second Letter little weight in support of the applicant’s claim to fear persecution by reason of an imputed political opinion because of his involvement in the Second Letter.

18. Mr Afshar also submitted that the Assessor overlooked the applicant’s evidence on his computer showing “the torture of detainees, Arab detainees in prison and some Arab nationalists, nationalist poems [and] the flag of Ahwaz”, as well as the applicant’s involvement in political activities.

19. The Assessor stated that the applicant claimed that he “could not return to Iran because they have seized his computer which contains copies of the two letters and videos of torture”.

20. The two letters referred to are the First Letter and the Second Letter which the applicant asserted founded his claim for persecution and evidence of his involvement in political activities. A fair reading of the Assessor’s decision record makes clear that the Assessor considered the applicant’s claims in respect of each of those letters and, for the reasons referred to above, was not persuaded by them.

21. In relation to the reference by the Assessor of the “videos of torture”, that is a reasonable summation by the Assessor of what the applicant said was on his computer. The applicant’s evidence was that “there are some clips which show the torture of the detainees, Arab detainees in prison and some Arab nationalists, nationalist poems, the flag of Ahwaz.” That was the extent of the applicant’s evidence. It was reasonable for the Assessor to find that the most significant material claimed by the applicant to be on his computer were videos of torture. Further, it was reasonable for the Assessor to summarise those materials by reference to the most significant materials, being “videos of torture”.

22. Moreover, it is well established that it is not necessary that a decision maker refer to every piece of evidence referred to by an applicant (Applicant WAEE at [46] per the Court).

23. In support of ground 3, Mr Afshar also submitted that the Assessor never considered whether the applicant could have a well-founded fear of the consequences of being identified as a person who collates such “sensitive, and clearly anti-government, materials on his personal computer”.

24. However, a fair reading of the applicant’s claims before the Assessor does not suggest that there was any further identification by the applicant of what “sensitive, and clearly anti-government, materials on his personal computer” were, apart from those referred to immediately above.

1. In the circumstances, the Assessor took into account the credible and relevant material and the findings made by the Assessor were open for the reasons given.

2. Accordingly ground 3 is not made out.

Ground 1 – “Denial of procedural fairness”

1. In support of ground 1, Mr Afshar contended that there was various information that should have been put to the applicant and that the failure by the Assessor to do so denied the applicant procedural fairness. The particulars of that information are bolded below.

2. Mr Afshar submitted that the Assessor failed to put to the applicant information that the voting age in Iran is 15.  

3. Mr Afshar submitted that the Assessor used that information to reject the applicant’s evidence that he was released on account of his age. For the reasons below, I reject that submission.

4. The Assessor’s findings in relation to the applicant’s arrest and release is as follows:

   “82. However I am not satisfied that he was subsequently arrested by the Basij and detained in the matter described. His description of the arrest and detention was lacking in detail and unconvincing. He maintained that he was arrested at his home some 2-3 days after distributing the letter but not old the reason for his arrest. His explanation as to why he was suspected of distributing the letter was that probably one of his trusted friends had informed the authorities, but he did not give any other detail. I would have presumed that the claimant would have subsequently become aware of the arrests of the other students in relation to the letter’s distribution if this had been the case. He provided no other evidence as to this.

   83. The claimant claims that he was released when his captors realized that hew as only 17 years of age. In October/November 2005, the claimant was in fact 18 years of age. It is also notable that the voting age in Iran in 15. I accordingly do not accept his evidence that he was released on account of his age. Even if I am wrong with respect to these findings concerning the claimant’s arrest, on his own evidence he was released on the signing of an undertaking not to participate in any further political activity. Apart from a number of occasions when he was interrogated by the Basij at the university, the claimant did not suffer any other ill-treatment and said that out of fear he did not engage in any other political activity.

   84. I find that his evidence that in 2011 he passed on another letter [the Second Letter] to a fellow student… unconvincing. He claims that despite the risk, [his friend] was prepared to distribute the letter because he that, like the claimant, he would be released after a few days. This was despite the claimant stating that he had informed his friend of his experiences. As he had stated earlier, that included torture, being tied to a chair and beaten, and denied food for one whole day. The claimant said that [his friend] had taken the letter and that he assumes he made copies of the letter which he then distributed, but he did not really know.”

5. The applicant gave evidence that one of the reasons he was released from detention in 2005 was because the Basij realised that he was 17 years of age. The Assessor rejected the applicant’s explanation that he was released because he was 17 years of age because she found that on the evidence before her, that in October/November 2005, the applicant was in fact 18 years of age.

6. It is well established that an opportunity should be given to an applicant to deal with adverse information that is credible, relevant and significant to the decision to be made (Kioa v West (1985) 159 CLR 550 at 629 per Brennan J). However, information that is evidently not credible, relevant or is of little or of no significance to the decision being made can be dismissed from further consideration (see Applicant VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [17] per the Court).

7. What was relevant to the Assessor’s rejection of the applicant’s explanation that he was released because he was 17 years of age, was that he was in fact 18 years of age at the time of his release. The fact that the voting age in Iran is 15 is not by itself adverse information and was of little or no significance to the decision.

8. In any event, it was not information that was material to the finding that the applicant was not arrested by the Basij. Further, the applicant said that he undertook not to participate in any further political activity following his release and did not suffer any further ill treatment.

9. To read the Assessor’s statement that it was notable that the voting age in Iran is 15 as amounting to a jurisdictional error on the part of the Assessor, is to read the Assessor’s reasons “finely either with an eye keenly focused on the perception of error, or with an eye keenly attuned to perception of error” (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at 634 per Heydon J).

10. Accordingly, there is no denial of procedural fairness on the part of the Assessor in failing to put to the applicant that the voting age in Iran is 15.

11. Ground 1 also alleges that the Assessor did not put to the applicant her concerns about the absence of evidence of the arrest of other students for also distributing the First Letter.

12. It is well established that the absence of evidence, inconsistencies or doubts are more in the nature of subjective appraisals, thought process or determinations and do not constitute “information” for the purpose of s.424A of the Migration Act 1958 Cth (“the Act”) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). In Minister for Immigration v SZGUR (2011) 241 CLR 594 at [8]-[9] French CJ and Kiefel J stated that the exclusion of this class of information from the obligations imposed in s.424A of the Act is consistent with the limits on the procedural fairness hearing rule at common law. A decision maker is only required to put to an applicant an adverse conclusion which would not obviously be known on the material or to identify for an applicant any critical issue not apparent from the nature of the decision or the terms of the statutory power.

13. Mr Afshar referred to the Assessor’s finding that she “would have presumed that the claimant would have subsequently become aware of the arrests of the other students in relation to the letter’s distribution if this had been the case. He provided no other evidence as to this.” Mr Asfhar submitted that the Assessor should have put this presumption to the applicant.

14. However, it was the applicant’s lack of detail and the unconvincing nature of his evidence that caused the Assessor not to be satisfied about his claimed arrest in 2005. The Assessor’s statement above is no more than a reflection of her thought process. It is clear from the transcript that the applicant had every opportunity to say to the Assessor whatever he wished in support of his claims. Further, the applicant’s migration agent put both pre-hearing submissions and post-hearing submissions to the Assessor, all of which were considered by the Assessor.

15. Accordingly, there is no denial of procedural fairness on the part of the Assessor for not putting to the applicant the absence of evidence about his awareness of the arrest of other students in relation to the distribution of the First Letter.

16. In support of ground 1, Mr Afshar further submitted that, in accordance with procedural fairness, the Assessor was required to put to the applicant the searches done by the Assessor in respect of any publications or distribution of the Second Letter.

17. The findings of the Assessor in relation to this complaint are as follows:

    “88. The claimant’s evidence as to the contents of the second letter largely accords with the translated copy of the letter apart from his statement that authority was given to shoot those suspected of demonstrating. If as the claimant claims, this letter was accessible on the internet, I do not consider the claimant’s knowledge of its contents to be of consequence. The translated copy of the letter is stated to follow recommendations by the Intelligence Ministry about ethnic and security issues prevention in Khuzestan province dated 06.08.2007. Unlike the details of the first letter, whilst disputed by the government authorities, its publication and the unrest that followed were widely reported. I have however been unable to find any references to the publication or distribution of the claimed second letter despite its date of August 2007. Nor are there any reports of any government policies or actions taken regarding these issues, for instance restricting gatherings of people of the same ethnicity, particularly Arabs, to five persons. These stated policies appear to be specifically directed towards the Arabs people and one would have expected significant unrest and protests as occurred in April 2005 if the letter was available on the internet and/or such policies had been enacted.”

18. The Assessor found the applicant’s claim of a fear of persecution based on a suspicion that his friend had informed authorities that the applicant had given him the Second Letter in 2007 was “far fetched remote and unfounded”. The Assessor found it most unlikely that the applicant would be identified as having passed on the Second Letter for distribution and noted that the Assessor had “serious doubts as to the authenticity” of the Second Letter and whether it was distributed.

19. The Assessor noted that, on the applicant’s own evidence, his reasons for leaving Iran were multiple and were not solely based on his fear of persecution at the hands of the Basij or the Etelat. The Assessor had particular regard to the fact that the events surrounding the First Letter took place in 2005 and that the applicant had not been involved in any other political activity or had come to the adverse attention of the Basij or authorities since that incident.

20. However, the applicant’s claims to fear persecution in Iran were initiated because of his involvement in the distribution of the First Letter and the ensuing riots. On the evidence before it, the Assessor accepted that there was well publicised unrest following the distribution of the First Letter. For whatever reason, the applicant chose not to provide any such evidence to the Assessor in support of his claim in relation to the Second Letter. It must have been obvious to the applicant on the known material that an issue he had put front and centre in relation to the First Letter, namely its known publication and ensuing unrest, would remain an issue in respect of his claims relating to the Second Letter.

21. In those circumstances, even if the failure of the Assessor to find any reference to the publication or distribution of the claimed Second Letter was information that could have been put to the applicant, I am not satisfied that it is an adverse conclusion that would not have been obvious on the known material, in the light of the applicant’s evidence in relation to the unrest and aftermath of the publication of the First Letter.

22. Evidence of the distribution of the Second Letter in Iran, and the reaction by the Iranian regime, were matters which were obviously in issue, given the nature of the applicant’s claims. In the circumstances, there was no obligation to put to the applicant the Assessor’s concerns about the absence of information about the Second Letter, even though it was the absence of that information that lead the Assessor to doubt the authenticity of the Second Letter.

23. In the circumstances, the Assessor did not deny the applicant procedural fairness.

24. Accordingly, ground 1 is not made out.

Ground 4 – “Irrationality and Illogicality”

1. Ground 4 contends that certain findings made by the Assessor are irrational and illogical. The particulars of those findings are bolded below.

2. Mr Afshar submitted that the Assessor’s characterisation of the applicant’s fear that his friend had informed on him in respect of the Second Letter, as “far fetched remote and unfounded”, was illogical, irrational and not based on the evidence before the Assessor.

3. The only evidence before the Assessor of the applicant’s claim in respect of the Second Letter is as follows:

   “[Applicant] …I showed him the letter and I didn’t have the intention of asking him to distribute the letter, but he suggested that he was going to distribute the letter.

   [Assessor] Did you tell him what had happened to you after you distributed the letter beforehand?

   [Applicant] Yes he said… yes I know and worse can happen to me, it just the same thing happen to you and I’m going to be released after a few days…

   [Assessor] Mmm.

   [Applicant] … if I’m arrested.

   [Assessor] And what happened?

   [Applicant] He took the letter and I don’t exactly know what happened, but I assume he made some copies and distributed at the university amongst other students. And to a mutual friend, I learned that he was arrested and not only him but two other students who was… who were helping him… by helping were also arrested.”

4. In the light of the vague nature of that evidence and the Assessor’s doubts about the authenticity of the Second Letter, the Assessor’s conclusion that the applicant’s fear that his friend had informed on him was “far fetched, remote and unfounded” was open to the Assessor on the evidence and material before her and for the reasons given.

5. The second finding that Mr Afshar submitted to be illogical was the Assessor’s finding that the applicant had little reason to fear arrest by the Basij and Etelat because the Second Letter was freely available on the internet.

6. Mr Afshar also submitted that the Assessor’s finding that the information was freely available on the internet was contrary to the overwhelming weight of that material and was therefore illogical and irrational.

7. Mr Afshar referred to the following findings by the Assessor:

   “87. The claimant maintains that since his departure the Etelat have visited his parents’ home demanding to know his whereabouts. He claims that he could not return to Iran because they have seized his computer which contains copies of the two letters and videos of torture. I reject these claims as such material is freely available on the internet. The claimant had not mentioned the seizure of his computer during previous interviews because he claims it only recently occurred. I do not accept that the claimant had a political profile that would cause the Etelat to visit his home on a number of occasions and seize his property. His only interaction with the authorities was connected with his distribution of a number of copies of a letter amongst Farsi speaking student friends in around October/November 2005 which was already publicly known and the subject of well publicised demonstrations in Ahwaz in April 2005. The claimant said that he was not the only person to distribute the letter that day.

   88. The claimant’s evidence as to the contents of the second letter [the Second Letter] largely accords with the translated copy of the letter apart from his statement that authority was given to shoot those suspected of demonstrating. If as the claimant claims, this letter was accessible on the internet, I do not consider the claimant’s knowledge of its contents to be of consequence. The translated copy of the letter is stated to follow recommendations by the Intelligence Ministry about ethnic and security issues prevention in Khuzestan province dated 06.08.2007. Unlike the details of the first letter, whilst disputed by the government authorities, its publication and the unrest that followed were widely reported. I have however been unable to find any references to the publication or distribution of the claimed second letter despite its date of August 2007. Nor are there any reports of any government policies or actions taken regarding these issues, for instance restricting gatherings of people of the same ethnicity, particularly Arabs, to five persons. These stated policies appear to be specifically directed towards the Arabs people and one would have expected significant unrest and protests as occurred in April 2005 if the letter was available on the internet and/or such policies had been enacted.”

8. This complaint was misconceived in circumstances where the Assessor was not satisfied about the applicant’s claims in respect of the Second Letter. The Assessor found that the applicant’s computer was not seized by the Etalat. However, the Assessor found that even if the applicant’s computer had been seized by the Etalat as claimed, that its contents would not have given rise to a real chance of persecution. Those findings were made in the context of the Assessor’s finding that although the applicant was questioned over his distribution of the First Letter, he was not arrested or subjected to serious harm as a result.  

9. To the extent that this complaint suggests that the Assessor’s finding that the Second Letter was freely available on the internet was illogical, irrational and not based on evidence before the Assessor, Mr Afshar referred to the exchanges between the applicant and the Assessor quoted at paragraph 70 above.

10. As stated above, the Assessor was not bound to accept the evidence by the applicant that 80% of people in Ahwaz do not have access to free internet and that his friend could filter and hack into the internet.

11. If it be the fact that the Assessor misunderstood the nature of the applicant’s evidence, that is an error of fact finding which does not by itself demonstrate jurisdictional error on the part of the Assessor. Further, it was not a finding that no reasonable decision maker could have found on the evidence and material before it (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; SZMDS at [130]-[131] and [135] per Crennan and Bell JJ).

12. The Assessor’s finding that it was not satisfied that the applicant’s claim that he could not return to Iran because his computer, which contained particular sensitive information, had been seized because such information is freely available on the internet was not illogical or irrational. That finding was open to the Assessor on the evidence and material before her.

13. The third matter submitted by Mr Afshar to be illogical was the Assessor’s finding that, because what was found on the applicant’s computer was freely available on the internet, the seizure of the computer would not lead to the applicant being of interest.

14. In support, Mr Afshar submitted that the findings ignored that the applicant feared the consequences of being accused of possessing anti-government materials. Mr Afshar submitted that because they were freely available did not suggest that the applicant was not at risk of harm where they were downloaded onto his computer and his computer seized.

15. However, the Assessor did not accept that the applicant’s computer had been seized as claimed and noted the applicant’s claim of the seizure of his computer was made only recently and was not mentioned in previous interviews.

16. The Assessor stated that, even if she accepted that the applicant’s computer was seized and had the material on it as alleged by the applicant, the Assessor was not satisfied that such material would impute the applicant with a political opinion such as to give rise to a real chance of persecution. In particular, the Assessor accepted that the applicant was questioned on several occasions by the Basij regarding various incidents which had taken place at the university, however, noted that he was not arrested or subjected to further serious harm.

17. In the circumstances, it was open to the Assessor to find that the contents of the applicant’s computer would not lead to the applicant being of adverse interest to the authorities in Iran.

18. The fourth matter submitted by Mr Afshar to be illogical was the finding that the applicant’s fear of persecution was not the sole reason for him leaving Iran and that he left Iran also because “he had been dissatisfied with the conditions there and had been unable to find a job”.

1. In support, Mr Afshar referred to the Assessor’s finding that, “on the claimant’s own evidence his own reasons for leaving Iran were multiple and were not solely based on his fear of persecution at the hands of the Basij or the Etelat”.

2. That statement made by the Assessor was made in the course of the Assessor summarising the applicant’s evidence given at interview and is contained under the heading “Claims and Evidence” in the decision record. The Assessor’s summary of the applicant’s evidence is as follows:

   “23. At the interview the claimant confirmed the above information regarding his place of birth, family members, education and employment. He explained that his work for the oil company was to compile lists of explosives that failed to detonate and remove them. He had been disappointed in this position which his uncle had helped him obtain. He said that as a university graduate he had expected more fulfilling employment and had resigned two months prior to leaving Iran on 30 January 2011. He was paid only every 7 months and the company always owed money to its employees. It was the claimant’s evidence that he had left Iran because he had been dissatisfied with the conditions there and had been unable to find another job.”

3. Under the heading “Findings and Reasons” of its decision record, the Assessor found that the applicant had provided a number of explanations for departing Iran. The Assessor stated as follows:

   “86. The claimant provided a number of explanations for departing Iran. He said at first that after resigning his job and being unsuccessful in his attempts to secure further employment, he left Iran because he was dissatisfied with the current conditions. He then referred to the contents of the first letter he said he distributed whilst at university. However, it is apparent from his evidence that this was not his reason for leaving Iran. Copies of this letter were allegedly distributed in October/November 2005, which was over 5 years before his departure. Later in his evidence the claimant said that he was concerned for his family’s safety if he was arrested. At that stage however, I find that he had little reason to fear arrest. The letter he claims to have given his friend was allegedly written in 2007 and was available on the internet. Whilst he claims that he heard that [his friend] had been arrested, it was claimed that this was a risk they both accepted and the claimant had no knowledge that his friend had provided his name to the authorities. The claimant had not been approached by the authorities prior to his departure.”

4. Particularly, the complaint by the applicant is that the conditions with which the applicant was dissatisfied were his work conditions, rather than the conditions in Iran. Having reviewed the transcript, I am not satisfied that the Assessor’s summary of the evidence is inaccurate. That extract is as follows:

   “[Assessor] … So, what was your, what was your job?

   [Applicant] I was a storekeeper and fire extinguisher… or a fire person

   …

   [Assessor] … and were you there until you left Iran?

   [Applicant] About two months before I left Iran, I resigned from my job and cut myself, sort of, redundancy.

   [Assessor] Why did you leave your job?

   [Applicant] I was expecting, because of my education to be able to work in the… somewhere like a city organisation or somewhere similar. But because I am from Arab background they wouldn’t hire me in those sort of places. So, with the help of my uncle, I got into this job. And this company was a private company and they paid us every seven month. And the company always owed us salary. Even after seven month, they would, they would only pay us for one month pay.

   [Assessor] Mmm-hmm. And, so you left the job because you were dissatisfied with the conditions?

   [Applicant] That’s correct.”

5. However, even if the Assessor misunderstood the applicant’s evidence, and that the applicant was intending to refer only to conditions in his workplace, rather than generally in Iran, that is an error of fact that does not demonstrate jurisdictional error on the part of the Assessor (see Eshetu at [138] per Gummow J; Yusuf at [92] per McHugh, Gummow and Hayne JJ).

6. In any event, the particular complaint contained in ground 4 relates purely to the summary by the Assessor of the applicant’s evidence. As such, it does not demonstrate a finding that was illogical or irrational on the part of the Assessor that demonstrates jurisdictional error.

7. Accordingly, ground 4 is not made out.

Ground 5 – “Failure to give proper, genuine and realistic consideration”

1. Ground 5 contends that the Assessor failed to give proper, genuine and realistic consideration to certain evidence given by the applicant. The particulars of that evidence are bolded below.

2. Mr Afshar submitted that the Assessor failed to give any consideration to the applicant’s claims that he would face persecution as a member of the Ahwazian Community in Australian Incorporated.

3. I refer to the reasons in ground 2 above in rejecting that submission.

4. Secondly, Mr Afshar submitted that the Assessor failed to give proper and genuine consideration to the applicant’s claims that he would face persecution as a result of distributing the Second Letter.

5. Again, the Assessor’s findings in relation to the applicant’s claim of distribution of the Second Letter are referred to above and were open on the evidence and material before the Assessor and for the reasons given. There was no failure by the Assessor to give proper genuine and realistic consideration to that claim.

6. Mr Afshar further submitted that the Assessor failed to give proper, genuine and realistic consideration to the applicant’s claims that he would face persecution for the materials on his computer which was seized by the Etelat, including the First Letter and the Second Letter, as well as other evidence of other political activities.

7. However, it is clear from the reasons referred to above, that the Assessor gave careful consideration to the applicant’s claim that he would face persecution for those reasons. Ultimately, the Assessor did not accept the applicant’s evidence about those claims, in particular, the seizure of his computer, the existence of the Second Letter, the availability of the content of the First Letter on the internet, the lack of involvement by the applicant in any other political activity, and the failure of the applicant to come to the adverse attention of the Basij or the authorities since the incident in 2005.

8. The Assessor’s findings were open on the evidence and material before the Assessor and for the reasons given. As the reasons above make clear, the Assessor did give proper, genuine and realistic consideration to those claims.

9. Mr Afshar also submitted that the Assessor failed to give proper, genuine and realistic consideration to the applicant’s stated reasons for leaving Iran.

10. As is clear is from the reasons above, the Assessor summarised the applicant’s evidence in relation to his reasons for leaving Iran. In the “Findings and Reasons” section of the decision record, the Assessor noted that it was the applicant’s evidence that he left Iran because he had been dissatisfied with the conditions there and had been unable to find another job. The Assessor noted that the applicant also said that he left Iran because he believed that, if he was arrested again, his family would suffer and he would be imprisoned.

11. The Assessor found that the applicant had provided a number of explanations for departing Iran. The Assessor noted the applicant’s evidence that, after resigning from his job and being unsuccessful in securing further employment, the applicant left Iran because he was dissatisfied with the current conditions. The Assessor noted that the applicant then referred to the contents of the First Letter which he said he had distributed whilst at university.

12. However, the Assessor found that, “it is apparent from his evidence that this was not his reason for leaving Iran. Copies of this letter were allegedly distributed in October/November 2005, which was over five years before his departure. Later in his evidence, the claimant stated he was concerned for his family’s safety if arrested. At that stage however I find that he had little reason to fear arrest. The letter he claims to have given his friend was allegedly written in 2007 and was available on the net”.

13. The Assessor noted that the applicant conceded that he did not know that his friend, whom he claimed was arrested, had given his name to authorities. The Assessor noted that the applicant himself had not been approached by the authorities prior to his departure.

14. It is clear from the reasons referred to above that the Assessor gave the applicant’s stated reason for leaving Iran proper, genuine and realistic consideration. The Assessor’s findings were open on the evidence and material before the Assessor and for the reasons given.

15. In any event, I accept the written submissions of counsel for the first respondent that failure to give proper, genuine and realistic consideration does not create a special category of jurisdictional error (see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]-[40] per the Court). To do otherwise invites merits review. Of course, evidence given at a statutory hearing by an applicant should be given proper, genuine and realistic consideration (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [37] per Gummow J and [171] per Callinan and Heydon JJ).

16. In the case before this Court, a fair reading of the Assessor’s decision record does not suggest that the applicant’s evidence was not given proper, genuine and realistic consideration, including: the applicant’s claims that he would face persecution as a member of the Ahwazian community; that he would face persecution as a result of disseminating the Second Letter; that he would face persecution based on materials on his computer which were sized by the Etelat; and, the applicant’s stated reasons for leaving Iran.

17. Accordingly, ground 5 is not made out.

F.       Conclusion

1. A fair reading of the Assessor’s decision record makes clear that the Assessor understood the claims being made by the applicant; explored those claims with the applicant at an interview; and, had regard to all material provided in support including pre and post hearing submissions by the applicant’s migration agent. The Assessor put to the applicant matters of concern she had about his evidence and noted the applicant’s responses. The Assessor also put to the applicant independent country information before her and invited the applicant to comment upon it. The Assessor also identified independent country information to which she had regard. The Assessor then made findings based on the evidence and material before her. Those findings of fact were open to the Assessor on the evidence and material before her and for the reasons she gave. A fair reading of the Assessor’s decision record makes clear that the Assessor reached conclusions based on the findings made by her and to which she applied the correct law.

2. In the circumstances, the Assessor’s conduct in recommending that the applicant not be accepted as a refugee was made according to law.

3. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  5 October 2012