WZAQW v Minister for Immigration
[2014] FCCA 692
•28 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAQW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 692 |
| Catchwords: MIGRATION – Judicial review – independent protection assessment review – whether proper, genuine and realistic consideration given to claims – whether denial of procedural fairness by denial of an opportunity to support an integer of claim – whether irrelevant matters taken into account – whether failure to take into account relevant matters – whether failure to afford procedural fairness because of inadequate interpretation of part of the evidence – whether review conclusions irrational or illogical – whether relevant law misapplied or misconstrued. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2), 46A, 91R, 420(1), 476, 477 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 Minister for Immigration & Multicultural Affairsv Haji Ibrahim (2000) 204 CLR 1; [2000] HCA 55 Minister for Immigration & Multicultural Affairs vYusuf (2001) 206 CLR 323; [2001] HCA 30 MZYLF v Minister for Immigration & Citizenship & Anor [2011] FMCA 621 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 SZOOR v Minister for Immigration & Citizenship & Anor (2012) 202 FCR 1; [2012] FCAFC 58 SZOZU v Minister for Immigration & Citizenship & Anor (2011) 123 ALD 61; [2011] FCA 1005 SZQLS v Minister for Immigration & Citizenship [2012] FCA 1274 SZRMQ v Minister for Immigration & Anor [2013] FCCA 12 |
| Applicant: | WZAQW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | PEG 56 of 2012 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 August 2013 |
| Date of Last Submission: | 3 September 2013 |
| Delivered at: | Perth |
| Delivered on: | 28 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Ekanayake |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the Respondents: | Mr R L Hooker |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration & Border Protection”
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 56 of 2012
| WZAQW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application, filed on 14 March 2012, seeks judicial review under s.476(1) of the Migration Act 1958 (Cth),[1] of a recommendation of the Independent Protection Assessment Reviewer[2] dated 9 January 2012,[3] to the then Minister for Immigration, Multicultural Affairs & Citizenship, now the Minister for Immigration & Border Protection,[4] that the applicant not be recognised as a person to whom Australia has protection obligations under the United Nations 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.[5]
[1] “Migration Act”.
[2] “IPA Reviewer”.
[3] CB 197-205 (“IPA Review Recommendation”).
[4] “Minister”.
[5] “Convention”.
Some applicable legal principles
The applicant is an “offshore entry person” as defined by s.5(1) of the Migration Act and is, therefore, an unlawful non-citizen and precluded (subject to a limited ‘public interest’ exception) from making a valid application for an Australian visa.[6]
[6] Migration Act, s.46A.
In order to assess whether offshore entry persons may have a claim to be owed protection obligations under the Convention, for the purpose of making a recommendation to the Minister pursuant to s.46A(7) of the Migration Act, a claims processing system for claimants was established by the Commonwealth Government. That process enables offshore entry persons to seek an independent review of determinations made as to whether they are owed protection obligations. The essential features of any such review are that it:
a)must be procedurally fair to the person;
b)must proceed by reference to correct legal principles, correctly applied; and
c)is not restricted by the refinements and attenuations of the various and many amendments to procedural fairness principles now enshrined in the Migration Act.[7]
[7] Plaintiff M61/2010E & Anor v The Commonwealth of Australia & Ors (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”); SZOZU v Minister for Immigration & Citizenship & Anor (2011) 123 ALD 61 at 62 per Rares J; [2011] FCA 1005 at para.3 per Rares J; MZYLF v Minister for Immigration & Citizenship & Anor [2011] FMCA 621 at paras.8-17 per Riethmuller FM.
Jurisdiction of this Court
The application, which seeks injunctive relief in this Court in relation to the still to be completed decision-making process by the Minister in relation to the determination of protection obligations, is within this Court’s jurisdiction for relief in relation to a migration decision.[8]
[8] Migration Act, s.476(1); Plaintiff M61 CLR at 334, 344-345 and 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8, 50-52 and 99-103 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Chronology
The basic relevant chronology, prior to the filing of this application for judicial review is as follows:
a)on 19 February 2011 the applicant, a national of Iran born on 16 September 1983, arrived on Christmas Island;[9]
b)on 20 February 2011 the applicant completed a pro forma biodata form which summarised his circumstances and personal particulars;[10]
c)on 23 February 2011, the applicant participated in an entry interview;[11]
d)on 29 April 2011, the applicant lodged a request for a Protection Obligations Determination which included a statutory declaration which set out why he was seeking a protection visa;[12]
e)on 2 May 2011, the applicant was interviewed by a Protection Obligations Evaluation officer;[13]
f)on 6 July 2011, the POE Officer concluded that he was not satisfied that the applicant met the criteria for refugee status and referred the applicant’s matter to the IPA Reviewer, setting out reasons for his conclusions;[14]
g)on 30 November 2011, the applicant was interviewed by the IPA Reviewer,[15] and on 9 January 2012, the IPA Review Recommendation recommended that the applicant not be recognised as a person to whom Australia owes protection obligations. The IPA Review Recommendation was supported by a Statement of Reasons;[16] and
h)the applicant was notified of the IPA Review Recommendation by letter dated 13 January 2012.[17]
[9] CB 1-3 and 129.
[10] CB 1-3 (“Biodata Form”).
[11] CB 24-47; (“Entry Interview”).
[12] CB 48-81, 82-84.
[13] “POE Interview” and “POE Officer” respectively.
[14] CB 128-141.
[15] CB 201 (“IPA Review Hearing”).
[16] CB 197-205.
[17] CB 206-207.
Applicant’s claims
The applicant submits that:
a)he sought protection as a refugee on the grounds that he feared that he would be persecuted in Iran for his religious beliefs and political opinions;
b)the basis of his claim concerning his fear of persecution for his religious beliefs was asserted to be that he had renounced Islam in about 2010.[18] The applicant claimed that he does not believe in religion and will be targeted for having no religion if he is returned to Iran;[19]
[18] CB 28, 43, 83, 147, 148, 199 at para.11, 203 at para.43; affidavit of Marie Anne-Lise Solene Yik Long, sworn 7 December 2012, annexure MASY1 at p.30 (“Yik Long Affidavit”).
[19] CB 148.
c)the basis of his claim concerning his fear of persecution for his political opinions was asserted to be[20] as follows:
[20] CB 33, 34, 82-83, 130, 147-150, 199-203; Yik Long Affidavit, annexure MASY1.
i)between the ages of 19 and 21 years, the applicant completed military service, attached to Sepah, the Iranian secret police;[21]
ii)the applicant subsequently became involved in the “Green Movement”, a reformist political party opposed to the incumbent regime in Iran;
iii)in particular, he alleges to have worked for the leader of the Green Movement, Mir-Hossein Mousavi,[22] during Mousavi’s presidential election campaign in 2009, distributing campaign publicity material;
iv)during the unrest that followed the election, the applicant participated in protests, as a result of which he was arrested, and detained;
v)while in detention, it was discovered by the authorities that he had worked for Sepah, and he was transferred to a prison for about eight weeks, where he was beaten every day and accused of being a traitor;
vi)following the applicant’s release from detention, his father, a mullah who worked in the Iranian Ministry of Defence, expressed disapproval of the applicant’s political activities, and threatened to report him to the authorities if he did not cease further participation in them; and
vii)the applicant refused to accede to his father’s requests, and suspected that his father had retaliated by informing the authorities of his involvement with the Green Movement,
and the applicant claimed that he cannot return to Iran because he will be harmed or killed by the Basij and Sepah for his political activity with the Green Movement. He claimed the Iranian Government have banned the Green Movement and persecute people who support them;[23] and
d)he will be harmed because he is a returnee and failed asylum seeker.[24]
[21] “Sepah”.
[22] “Mousavi”.
[23] CB 147.
[24] CB 150.
The IPA Review Recommendation
The IPA Reviewer:
a)accepted that the applicant was a citizen of Iran;[25]
[25] CB 203 at para.44.
b)accepted that the applicant’s knowledge of the candidates in the 2009 Iranian election was consistent with the applicant’s claim to have played a minor part in those elections;[26]
[26] CB 203 at para.45.
c)in relation to the applicant’s political opinion claim, did not accept that the applicant:
i)worked for the Sepah for three years; and
ii)was briefly detained while participating in a demonstration;[27]
[27] CB 203 at para.45.
d)found that there was conflict in the applicant’s evidence regarding his mistreatment in detention and the number and frequency of meetings the applicant attended subsequent to his detention;[28]
[28] CB 203 at paras.45-46.
e)did not find convincing the applicant’s description of his activities subsequent to this detention because the applicant did not know about, amongst other things, a big demonstration that had been planned but was subsequently called off;[29]
[29] CB 204 at para.47.
f)did not accept that:
i)the applicant’s father was going to denounce him to the Iranian authorities more than a year after he had resumed his political activities; and
ii)the security authorities came looking for the applicant causing him to escape from his apartment and from the country;[30]
g)in relation to the applicant’s religious beliefs claim, the IPA Reviewer noted that the applicant had lived in Iran for more than 20 years without having suffered any consequences for his religious beliefs or opinions or lack of them;[31]
h)in relation to the claim that the applicant was a member of a particular social group, namely a returnee or a failed asylum seeker, the IPA Reviewer:
i)did not accept that a person returning to Iran without a known opposition political profile would be of interest to the Iranian authorities beyond suffering the consequences of leaving the country lawfully; and
ii)found that such consequences arose from a law of general application and there was no information to indicate that it would be so severe as to constitute persecution;[32] and
i)did not accept that there was a real chance that the applicant would suffer persecution in Iran by reason of his political opinion, his religious beliefs or his membership of a particular social group or for any other Convention reason, should he return to Iran in the foreseeable future.[33]
[30] CB 204 at para.48.
[31] CB 204 at para.49.
[32] CB 204 at para.50.
[33] CB 204 at para.51.
The application to this Court
The original application filed on 14 March 2012 contained no grounds of review and merely sought the following declaration:
A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
On 2 April 2012, the Court made orders that the applicant file and serve an amended application giving particulars of the grounds of review and any affidavits upon which the applicant relied by 25 June 2012, and file and serve an outline of submissions 14 days before a hearing then listed for 17 October 2012. No amended application and no written submissions were filed or served by the applicant in accordance with the Court’s orders of 2 April 2012. The application was subsequently relisted to 15 November 2012 for hearing before then Federal Magistrate Riethmuller.
On 12 November 2012 the Minister’s outline of submissions was filed. By that time there was still no amended application or written submissions filed or served by the applicant in accordance with the Court’s orders of 2 April 2012.
The matter was further relisted to be heard on 14 November 2012, but on that date only further procedural orders were made by then Federal Magistrate Riethmuller, and the matter was adjourned to a date to be fixed.
The Yik Long Affidavit was filed on 7 December 2012 annexing a copy of the transcript of the IPA Review Hearing.[34]
[34] “IPA Review Hearing Transcript”.
On 5 February 2013 the applicant filed:
a)an amended application, annexing as a schedule five grounds of application alleging that the IPA Review Recommendation was not made according to law; and
b)an affidavit of Farzaneh Webber, an accredited Farsi (Persian) language interpreter.[35] This affidavit related to the identification of a document for the applicant in relation to his alleged military service with Sepah.
[35] “Webber Affidavit”.
On 6 March 2013 the applicant filed an outline of submissions.
On 4 April 2013 the Minister filed a supplementary outline of submissions.
The matter came back on for hearing on 19 August 2013, at which stage the applicant sought to further amend the application by adding a new ground 6.[36] By the conclusion of the hearing it was necessary to make further orders in relation to the filing and serving of a second further amended application, an amended response and supplementary written submissions by the applicant and the Minister:
[36] Transcript, 19 August 2013, page 2.
On 26 August 2013 a second further amended application, and further amended grounds of application, eight in all, were filed. The further amended grounds of application, which represent the final iteration of the applicant’s grounds of application are each set out separately in the Court’s consideration of the application below. The applicant also filed a supplementary outline of submissions on 26 August 2013.
On 3 September 2013 the Minister filed a further supplementary outline of submissions.
Consideration
Grounds 1, 2 and 3
Grounds 1, 2 and 3 can be taken together and are as follows:
1. The second respondent failed to give proper, genuine and realistic consideration to an integer of the applicant’s claim, namely his fear of persecution for his religious beliefs based on his renunciation of Islam in or about 2010.
2. Further, or alternatively, at his interview of the applicant on 30 November 2011, the second respondent failed to accord the applicant procedural fairness in not providing the applicant with an opportunity to:
(a) adduce evidence; or
(b) make submissions; or
(c) address potentially adverse considerations,
in support of an integer of the applicant’s claim, namely his fear of persecution for his religious beliefs based on renunciation of Islam in or about 2010.
3. Further or alternatively, in finding that the applicant’s fear of persecution for his religious beliefs was not well-founded, the second respondent took into account an irrelevant matter, namely that the applicant was not persecuted for his religious beliefs for a number of years prior to his renunciation of Islam.
Applicant’s submissions
The applicant submits that:
a)in the IPA Review Recommendation, the IPA Reviewer acknowledged that the applicant had asserted at his entry interview (in 2011) that he had renounced Islam “one year previously”;[37]
b)in the IPA Review Hearing, the IPA Reviewer ignored the religious beliefs ground, denying the applicant any opportunity to address it;
c)the IPA Reviewer rejected the religious beliefs ground on one basis alone, namely that the applicant “has lived in Iran for more than 20 years without having suffered any consequences for his religious beliefs or opinions or lack of them”.[38]It should be inferred from that finding that the IPA Reviewer misconstrued the claim that had actually been put to him on behalf of the applicant, namely whether the applicant held a well-founded fear of persecution in Iran by reason of his renunciation of Islam in 2010;
d)had the IPA Reviewer invited the applicant in the IPA Review Hearing to address the lack of consequences for his religious beliefs during the past twenty years, the applicant would have been given the opportunity to correct the IPA Reviewer’s apparent misapprehension as to the relevance of that matter by explaining that his renunciation of Islam had taken place less than two years previously; and
e)in misconstruing the claim, the IPA Reviewer took into account an irrelevant matter, namely an apparent lack of consequences for the applicant for his religious beliefs for a number of years prior to his renunciation of Islam.
[37] CB 28 and 199 at para 11.
[38] CB 204 at para.49.
Minister’s submissions
The Minister submits that:
a)the IPA Reviewer:
i)observed that he was having a fresh look at all the evidence, being that presented prior to the IPA Review Hearing, plus the record of the IPA Review Hearing;
ii)had regard to the records of the applicant’s initial interview, Entry Interview and POE Interview, together with the original application and the statement then submitted, as well as statements submitted by the applicant’s advisors;[39]
iii)made it clear that he sought a detailed explanation from the applicant in his own words as to why he left Iran and why he did not wish to return;[40] and
iv)was ultimately informed by the applicant’s representative after a break in the IPA Review Hearing that the applicant did not wish to add anything to the account that had already been given;[41]
b)the IPA Review Recommendation begins by referring to the different components of the materials before the IPA Reviewer, and then summarises them.[42] Critically, the applicant’s Entry Interview contained an answer by the applicant denying that he had told anyone that he no longer believed in Islam.[43] The applicant said that it was his private decision. This part of the applicant’s account may explain why he gave so much attention in the IPA Review Hearing to the detail of claims about his political activities and opinions;
c)grounds 1 and 2 may, in those circumstances, be considered together. Given the opportunity that was accorded the applicant, in light of all of the earlier material before the IPA Reviewer, the mere fact that the integer of the applicant’s claim concerning religious beliefs was dealt with shortly in the IPA Reviewer Recommendation,[44] is not indicative of jurisdictional error. Even if “failure to give proper, genuine and realistic consideration” to an integer of a claim can amount to jurisdictional error (which the Minister denies) there was no such failure in the present case. Moreover, the applicant was given every available opportunity to address his claimed fear of persecution for his religious beliefs based on renunciation of Islam in or about 2010. There was no want of procedural fairness. Accordingly, grounds 1 and 2 cannot be sustained; and
d)the absence of persecution on the basis of religion per se, noted by the IPA Reviewer[45] was plainly a material circumstance that the IPA Reviewer was entitled to have regard to.
[39] CB 198 at para.4.
[40] IPA Review Hearing Transcript, 2-3.
[41] IPA Review Hearing Transcript, 30.
[42] CB 199 at para.10.
[43] CB 43.
[44] CB 204 at para.49.
[45] CB 204 at para.49.
Consideration – grounds 1, 2 and 3
The IPA Reviewer:
a)had regard to a broad range of information, being various interviews of the applicant on arrival and with an officer of the Department prior to the IPA Review Hearing, as well as country information in the applicant’s adviser’s submissions and independent country information.[46] The IPA Reviewer listened to the tapes of the earlier interviews. The IPA Reviewer noted that:
[46] CB 199 at para.10.
i)when asked about his religious beliefs the applicant at the Entry Interview said “that, as of 1 year previously, he did not follow Islam any more”;[47]
[47] CB 199 at para.11.
ii)the applicant’s father was a Sheik who worked in the Ministry of Defence;[48] and
[48] CB 199 at para.11.
iii)the applicant left Iran because he worked for Mousavi during the election campaign;[49]
[49] CB 199 at para.13.
b)at the IPA Review Hearing the applicant:
i)was asked by the IPA Reviewer for a “detailed” explanation as to why the applicant left Iran;[50]
ii)mentioned, as one of the reasons he left Iran that “he had no religion and did not like Islam”;[51]
iii)said his father was a Mullah, and worked at the Ministry of Defence;[52] and
iv)after a break in the IPA Review Hearing the applicant’s representative, in response to a question from the IPA Reviewer, told the IPA Reviewer that the applicant did not want to add anything further, and concluded by saying that the applicant had a “genuine fear” because of “his religion”;[53]
c)made findings adverse to the applicant’s credibility,[54] which findings were a matter exclusively for the IPA Reviewer;[55] and
d)concluded that:
As to the claim that he does not like Islam, I note that he has lived in Iran for more than 20 years without having suffered any consequences for his religious beliefs or opinions or lack of them. I do not accept that there is a real chance of his suffering any harm now as a result of his religious views, if he were to return to Iran.[56]
and did “not accept” that there was a real chance that the applicant would be persecuted in Iran by reason of “his religion”.[57]
[50] IPA Review Hearing Transcript, 3.
[51] CB 201 at para.30.
[52] CB 201 at para.33.
[53] CB 203 at para.43.
[54] CB 203-204 at paras.46-48.
[55] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J, and see, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
[56] CB 204 at para.49.
[57] CB 204 at para.51.
It is convenient to commence consideration of these grounds with ground 2 – the alleged denial of procedural fairness.
The relevant principles in relation to procedural fairness are to the following effect:
a)procedural fairness requires a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed;[58]
b)in SZBEL v Minister for Immigration & Multicultural Affairs & Indigenous Affairs & Anor[59] the High Court approved of what was said in the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone,[60] that:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[61]
[58] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
[59] (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
[60] (1994) 49 FCR 576 (“Alphaone”).
[61] Alphaone at 591-592 per Northrop, Miles & French JJ, cited at SZBEL CLR at 162 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.32 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In Plaintiff M61 the High Court held that in an independent merits review a reviewer is bound to afford procedural fairness to the person whose claim is being reviewed.[62]
[62] Plaintiff M61 CLR at 334 and 353-354 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.8 and 78-79 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The IPA Reviewer:
a)considered prior materials available to him;[63]
b)asked detailed questions about the applicant’s claims,[64] and advised the applicant that what was sought was a detailed explanation of why he left Iran and did not wish to return;[65]
c)was given and had information before him in relation to the claim of religious belief by the applicant (and apart from reference to country information this was the only factual information relevant to the claim) as follows:
i)“Religion – ATHIEST”;[66]
ii)Entry Interview – “Doesn’t follow Islam any more (1 year ago)”[67] and “private decision” not to follow Islam anymore;[68] and
iii)applicant’s written IPA Review Hearing submissions “he does not believe in Islam”,[69] “fear of persecution is based on his … religion”,[70] and his “religious beliefs are well known and … he will be targeted because of having no religion”;[71]
d)asked the applicant’s representative whether there were any further matters that the applicant wished to put, and was told that there was nothing further;[72] and
e)clearly understood, and set out in the IPA Review Recommendation, that there was a claim being made in relation to a well-founded fear of persecution on the basis of the applicant’s religious beliefs.[73]
[63] CB 198 at para.4; CB 199 at paras.11-16 (Entry Interview); CB 199-201 at paras.17-27 (POE Interview).
[64] CB 201-203 at paras.30-41 generally.
[65] CB 201 at paras.29-30; IPA Review Hearing Transcript, 3.
[66] CB 2.
[67] CB 24.
[68] CB 43.
[69] CB 146.
[70] CB 147.
[71] CB 148.
[72] IPA Review Hearing Transcript, 30; CB 203 at para.43.
[73] CB 199 at para.11; 201 at para.30; 203 at para.43; 204 at paras.49 and 51.
In the above circumstances the applicant was not denied an opportunity to put his claim as to his religious beliefs. There was, therefore, no denial of procedural fairness, and ground 2 must fail.
Turning to ground 1, was the IPA Reviewer required to give proper, genuine and realistic consideration to the applicant’s religious beliefs claim? In Minister for Immigration & Citizenship v SZJSS & Ors[74] the High Court accepted that the weighing of various pieces of evidence was entirely a matter for the administrative decision-maker, in this case the IPA Reviewer.[75] The High Court did not adopt the proper, genuine and realistic consideration criteria, and impliedly criticised it as a slide into merits review, or an expression of mere disagreement, albeit emphatic, by the Full Federal Court with the assessment of factual matters by the administrative decision-maker.[76]
[74] (2010) 243 CLR 164; [2010] HCA 48 (“SZJSS”).
[75] SZJSS CLR at 176 per per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.33 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[76] SZJSS CLR at 175-177 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.30 and 34 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
There is no doubt that the IPA Reviewer might have expressed his conclusion concerning the applicant’s religious beliefs and opinions, set out above,[77] more expansively, but nevertheless it is apparent that the IPA Reviewer:
a)provided a proper opportunity to the applicant to put his case;
b)had regard to the relevant facts and law; and
c)had regard to both country information provided by the applicant and independent country information,
before the IPA Reviewer arrived at the conclusion that there was not a real chance that the applicant would suffer persecution in Iran by reason of his religion. The IPA Reviewer arrived at that conclusion having considered and weighed the evidence.[78] Although the final finding is narrowly framed, the ultimate conclusion is not, and in circumstances where regard was had to the above matters, it is evident that they formed part of the IPA Reviewer’s evaluative consideration of the issues.
[77] See para.22(d) above.
[78] SZJSS CLR at 177-178 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.35-36 and 39 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The narrow finding does in fact deal with the issue of the religious beliefs and opinions of the applicant, and concluded that he has not suffered, in the last 20 years living in Iran, “for his religious beliefs or opinions or lack of them”.[79] Consistent with the High Court judgment in Minister for Immigration & Ethnic Affairs v Guo & Anor,[80] the IPA Reviewer has looked to the past, and to the long period where the applicant held religious beliefs, and to the lesser period of one year since the applicant had renounced Islam (a claim of which the IPA Reviewer was manifestly aware),[81] to conclude that the applicant has not suffered in Iran whatever his religious beliefs have been over the last 20 years, and would not do so in the future. In regard to the latter finding the IPA Reviewer had regard to country information from the applicant and independent country information.[82]
[79] CB 204 at para.49.
[80] (1997) 191 CLR 559 (“Guo”).
[81] CB 199 at para.11, and see para.20(a) above.
[82] CB 199 at para.10.
In all of the above circumstance it cannot be said that the IPA Reviewer did not properly, genuinely and realistically consider and weigh the evidence, and consider the applicant’s claim of a well-founded fear of persecution based on the applicant’s religious beliefs or opinion, or lack of them since renouncing Islam. Ground 1 is therefore not made out.
It follows from the above consideration of the matter, that it was not an irrelevant consideration for the IPA Reviewer to take into account the fact that the applicant was not persecuted for his religious beliefs in the years prior to renouncing Islam. That was part of the history of the matter which might be utilised to make a finding. It was so utilised to make a finding in this case, such that no matter what the applicant’s religious beliefs or lack of them, there was no basis for a finding that there was a real chance that the applicant would suffer persecution in Iran on the basis of his religious beliefs. Ground 3 is therefore not made out.
Grounds 4 and 5
Grounds 4 and 5 can be taken together and are as follows:
4. Further, or alternatively, in finding that the applicant’s fear of persecution for his political beliefs was not well-founded, the second respondent failed to consider the degree of probability that the applicant:
(a) worked for Sepah;
(b) was detained while participating in a demonstration.
5. Further, or alternatively, in finding that the applicant’s fear of persecution for his political beliefs was not well-founded, the second respondent failed to consider the following relevant matters:
(a) a copy of the applicant’s Military End of Service card adduced in support of the applicant’s claim;
(b) the applicant’s oral evidence at his interview with the second respondent that he worked in the offices of Dr Mir-Hossein Mousavi while he was running for political office;
(c) the possibility that the applicant would resume political activities in Iran, if he were to be returned; and
(d) the possibility that, as a mullah employed by the Iranian Ministry of Defence, the applicant’s father may in future consider reporting the applicant to the authorities in Iran for holding a political opinion inconsistent with that which prevails within the Iranian government, and the religious establishment in Iran.
Applicant’s submissions
The applicant submits that:
a)in relation to the political opinions ground, the IPA Reviewer found:
[It] may be true that [the applicant] worked for Sepah at one time and it may be true that he was briefly detained while participating in a demonstration, but I do not accept the truth of both these claims.[83]
b)the IPA Reviewer, however, failed to consider whether, even if not both true, the occurrence of either one of those situations was sufficiently probable to provide a foundation for the applicant’s fear of persecution;
c)the material provided by the applicant which was available to the IPA Reviewer relevantly included a copy of the applicant’s military service card[84] which identified him as being attached to Sepah.[85] It should be inferred from the fact that the document was not referred to in connection with the IPA Reviewer’s finding relating to the applicant’s allegation that he had worked for Sepah that it was ignored by the IPA Reviewer, when it ought to have been taken into account as being relevant to circumstances on which the political opinions ground was based (namely, the applicant having been imprisoned, beaten and accused of being a traitor);
d)having acknowledged the possibility that the applicant had previously participated in a demonstration and been detained, the IPA Reviewer failed to consider the relevant possibility that, if returned to Iran, the applicant would participate in further demonstrations, or that his father, a mullah, might in such instance discover he had done so, and inform the authorities; and
e)the IPA Reviewer acknowledged the applicant’s evidence of having worked for Mousavi,[86] but failed to consider the degree of probability that he in fact did so, or what the consequences of his having done so might be if he were to be returned to Iran, each of which questions were relevant to the applicant’s claim.
[83] CB 203 at para.45.
[84] “Military Service Card”.
[85] CB 15-16; Webber Affidavit, paras.2-6 and annexure B.
[86] CB 202 at para.35.
Minister’s submissions
The Minister submits that:
a)the IPA Reviewer gave detailed consideration to the integer of the applicant’s claim concerning fear of persecution for political beliefs. The applicant’s account had been the subject of considerable discussion at the IPA Review Hearing before the IPA Reviewer, and was then analysed.[87] The credibility and veracity of the applicant’s account was rejected. Integrated within all of that assessment was a consideration of the applicant having, for a time, worked for Sepah and having been detained while participating in a demonstration;
b)certain critical inconsistencies in the applicant’s evidence and aspects of the applicant’s account did not make sense to the IPA Reviewer, and were ultimately fatal to a favourable credibility finding. As the Full Court of the Federal Court said in Chen v Minister for Immigration & Citizenship,[88] in a very similar judicial review setting, an assessment of this kind was within the province of the IPA Reviewer as a fact-finder par excellence;[89]
c)ground 4, in taking issue with asserted “degrees of probability”, invokes issues of merit not legality;
d)ground 5 is an attempt to engage this Court in merits review. The conclusion was fairly open to the IPA Reviewer that the applicant’s fear of persecution for his political beliefs was not one which was well-founded. A ground of the character that the IPA Reviewer nonetheless “failed to consider” certain specified “relevant matters” is not capable of amounting to jurisdictional error in the manner conceptualised in Minister for Immigration & Multicultural Affairs v Yusuf;[90] and
e)in any event, even if the IPA Reviewer committed a factual error in the way in which the matters particularised at ground 5(a)-(d) were dealt with (which the Minister denies), such a factual error is to be distinguished from a legal error, and, a fortiori, a jurisdictional error.
[87] As set out at IPA Review Transcript, 44-48; CB 203-204.
[88] [2011] FCAFC 56 (“Chen”).
[89] Chen at para.40 per Bennett, Nicholas and Yates JJ.
[90] (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
Consideration – Grounds 4 and 5
In considering ground 4 it is relevant to note that an administrative decision-maker when making a determination about the prospect or chance of a future occurrence, must often, as an integral part of the process, make factual conclusions about past events.[91] In Yusuf the High Court said:
If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law … or a failure to take account of relevant consideration (whether acts of persecution have occurred in the past).[92]
[91] Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
[92] Yusuf CLR at 348-349 per McHugh, Gummow and Hayne JJ; HCA at para 75 per McHugh, Gummow and Hayne JJ.
The failure to take account of relevant considerations includes ignoring relevant material or relying on irrelevant material in a way which affects the exercise of the power, and to do so, may be a jurisdictional error.[93]
[93] Yusuf CLR at 351 and 352 per McHugh, Gummow and Hayne JJ; HCA at paras.82 and 84 per McHugh, Gummow and Hayne JJ.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[94] the Full Court of the Federal Court said that:
… a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the [Migration] Act and thereby a jurisdictional error.[95]
[94] (2004) 144 FCR 1; [2004] FCAFC 263 (“NABE (No. 2)”).
[95] NABE(No. 2) FCR at 20 per Black CJ, French and Selway JJ; FCAFC at para.63 per Black CJ, French and Selway JJ.
In NABE (No. 2) the Full Court of the Federal Court referred, approvingly, to the nature of the review function as described in Htun v Minister for Immigration and Multicultural Affairs,[96] and to the necessity for distinguishing between a failure to consider all the claims made and errant fact finding.[97] The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs,[98] namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.[99]
[96] (2001) 194 ALR 244; [2001] FCA 1802 (“Htun”).
[97] NABE(No. 2) FCR at 18 per Black CJ, French and Selway JJ; FCAFC at para.57 per Black CJ, French and Selway JJ citing Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
[98] (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”).
[99] WAEE ALD at 641 per French, Sackville and Hely JJ; FCAFC at para.47 per French, Sackville and Hely JJ.
In Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs[100] the Full Court of the Federal Court drew attention to the necessity not to confuse “taking into account relevant considerations with taking into account particular pieces of evidence.”[101] The distinction highlighted by Li Shi Ping was referred to in Xie v The Minister for Immigration and Ethnic Affairs[102] where the Federal Court identified the primary relevant considerations as being “those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.”[103] A failure to take into account a particular piece of evidence does not of itself give rise to jurisdictional error.[104]
[100] (1994) 35 ALD 225 (“Li Shi Ping”).
[101] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed). See also Nguyen & Ors v Minister for Immigration, Local Government & Ethnic Affairs & Anor (No. 2) (1996) 68 FLR 463 at 472-473 per Merkel J (“Nguyen (No. 2)”); Minister for Immigration & Citizenship v Pemberton [2010] FCA 430 at para.35 per Besanko J. (“Pemberton”).
[102] (Unreported, Federal Court of Australia, WAG 125 of 1994, 9 August 1995) (“Xie”).
[103] Xie at page 16 per French J.
[104] WZAND v Minister for Immigration & Anor [2009] FMCA 26 at para.57 per Lucev FM.
In considering whether the applicant’s fear of persecution was well-founded the IPA Reviewer did not fail to consider whether the applicant:
a)worked for Sepah; or
b)was detained while participating in an anti-government demonstration.
The IPA Reviewer instead concluded that the applicant did one, but not both of these things.[105] Furthermore, the IPA Reviewer explained the basis for that conclusion: if the applicant had worked for Sepah and had been detained for participating in an anti-government demonstration his treatment in detention would have been much worse than the applicant said his treatment in detention actually was.[106] The IPA Reviewer did therefore make a factual finding on these issues, but did so in such a way as to make them mutually exclusive. There was therefore a factual finding, and even if it were to be considered by the Court to be wrong, it did nevertheless arise from a consideration of the relevant evidence before the IPA Reviewer. The IPA Reviewer exercised his proper function: he weighed the evidence relevant to these issues, and reached a conclusion on the facts.[107] Furthermore, the manner in which ground 4 was framed, and argued, effectively admitted that it was an argument about the “degree of probability” of the applicant having worked for Sepah, or participated in anti-government demonstrations, and therefore it was not an argument about a relevant consideration, but rather about the relevant degree of fact finding. Moreover, it was for the IPA Reviewer to consider the alternatives “even if not both true”,[108] and in so doing to make a finding of fact that one or the other, but not both of the matters in issue, may be true. In any event, the IPA Reviewer’s finding on the applicant’s working for Sepah and participation in anti-government demonstrations was subsumed by the subsequent findings on fact and credit.[109] As a consequence of those findings the IPA Reviewer was led to conclude that the applicant:
a)did not participate in political meetings subsequent to his detention;[110]
b)was not denounced by his father;[111]
c)was not sought out by the security authorities, causing him to escape and leave Iran;[112] and
d)was not of any interest to the security authorities if he were to return to Iran in the foreseeable future.[113]
[105] CB 203 at para.45.
[106] CB 203 at para.45.
[107] SZJSS CLR at l76 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.33 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[108] CB 203 at para.45.
[109] CB 203-204 at para.46-48.
[110] CB 204 at para.47.
[111] CB 204 at para.48.
[112] CB 204 at para.48.
[113] CB 204 at para.48.
It is fair to observe in relation to ground 4 that:
a)even if the IPA Reviewer had considered the two issues on a degree of probability bases, it was unlikely to have affected the ultimate outcome; and
b)this ground seeks to attack factual findings only, and not on the basis of a complete failure to consider the relevant issues, but rather a failure to consider degrees of probability in fact finding, and is therefore directed to factual, and not legal or jurisdictional, error.
In the above circumstances, ground 4 does not give rise to any jurisdictional or legal error founding relief available in this Court.
Each of the matters adverted to in ground 5 are factual matters said to be relevant and not considered by the IPA Reviewer. As such they are not within the scope of jurisdictional error defined in Yusuf.[114] Furthermore, in relation to each of the particulars it is evident that the alleged failure to consider did not affect the proper consideration of any relevant outcome.
[114] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
In relation to particular (a) the IPA Reviewer did consider whether the applicant had worked for Sepah, and therefore a copy of the applicant’s Military Service Card was simply a piece of evidence in relation to that issue, and a failure to deal with that evidence is not a failure to have regard to a relevant consideration.[115] In any event, if it had been considered, it might not have altered the ultimate conclusion that the applicant either worked for Sepah or participated in anti-government demonstrations, but not both. If it did reinforce the conclusion that the applicant worked for Sepah, and the IPA Reviewer had so decided, it follows that the IPA Reviewer would not have found that the applicant might have participated in anti-government demonstrations. That would have undermined the applicant’s claim for judicial review which was based in part on his detention following his participation in anti-government demonstrations. Thus consideration of the Military Service Card would:
a)on the rationale adopted by the IPA Reviewer, have made no difference to the present conclusion that the applicant either worked for Sepah or participated in demonstrations and was detained, but not both; or
b)in reinforcing the applicant having working for Sepah, would have weakened his case as to being detained while participating in a demonstration.
[115] Li Shi Ping at 235 per Carr J (with whom Sheppard and Gummow JJ agreed); Nguyen (No. 2) at 472-473 per Merkel J; Pemberton at para.35 per Besanko J.
In relation to particular (b) it is apparent that the IPA Reviewer was aware of the assertion that the applicant was a Mousavi supporter, and assisted the Mousavi political campaign, and that the applicant alleged that he worked in the Mousavi offices.[116] The IPA Reviewer, contrary to what is said in particular (b), sets out the fact that the applicant claimed to have worked full-time in Mousavi’s office before the elections, and also for a period after the elections.[117] The IPA Reviewer did consider the applicant’s role, which he described as “a minor part” in the 2009 elections.[118] The IPA Reviewer was not however convinced of the applicant’s participation in political activity subsequent to any detention. The IPA Reviewer concluded that the applicant “participated in none of this activity”, being a reference to “occasional public manifestations of dissention and protest” prior to early 2010,[119] and that he did not subsequently, as he claimed, attend regular political meetings.[120]
[116] CB 200 and 202 at paras.22, 24 and 35.
[117] CB 202 at paras.34-35.
[118] CB 203 at para.45.
[119] CB 204 at para.47.
[120] CB 204 at para.47.
In relation to particular (c) the particular proceeds upon a wrong premise as to the resumption of the applicant’s political activities, in circumstances where the IPA Reviewer was of the view that the applicant had not, for some time, participated in any public manifestation of dissent or protest, or participated in any regular meetings, or been denounced by his father, and he did not have a known opposition political profile.[121] The IPA Reviewer did not need to consider this issue in circumstances where the IPA Reviewer had found that the applicant was not engaging in political activities and had no political profile and would not suffer by reason of his political opinion if he returned to Iran in the foreseeable future. Particular 5(d) fails for similar reasons in relation to the applicant’s political activities and profile, and the failure of his father to denounce him, as found by the IPA Reviewer.
[121] CB 204 at paras.47-50.
In relation to ground 5, the applicant’s complaint is, again, no more than a complaint about the fact finding task undertaken by the IPA Reviewer, and is not a matter for judicial review by this Court.
The Court notes that the IPA Review Recommendation should not be analysed minutely with a view to perceiving error.[122] In the context of a judicial review application it is misconceived for the applicant to alight, as he does in grounds 4 and 5, upon singular factual matters so as to suggest that they constitute the taking into account of an irrelevant consideration. To do so confuses the notion of relevant and irrelevant considerations with particular pieces of evidence, which it is important not to confuse.[123] Moreover, in this case, some of the matters said to have been failed to be considered were in fact considered, as set out above.
[122] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[123] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed): Nguyen (No. 2) at 472-473 per Merkel J; Pemberton at para.35 per Besanko J.
The reasoning in the IPA Review Recommendation may not be long and detailed, but in the context of administrative migration decision-making which is required to be informal, economic and efficient as well as just and fair,[124] it is adequate, cogent and sufficiently well explained. The findings and reasons are ones that were reasonably open to the IPA Reviewer having regard to the IPA Reviewer’s overall factual and credit findings.
[124] Migration Act, s.420(1).
In the circumstances, grounds 4 and 5 have not been made out.
Ground 6
Ground 6 is as follows:
6. The Independent Protection Assessment Review failed to accord procedural fairness to the Applicant.
Particulars
(a) The IPA interview was conducted using an interpreter who did not, or was not able to, correctly translate the Applicant’s evidence regarding his involvement with Sepah. The inadequacy of the interpreting prevented the Applicant, from providing information regarding the evidence he had of his involvement with Sepah.
Applicant’s submissions
The applicant submits that:
a)during the IPA Review Hearing discussion concerning the applicant’s membership of Sepah, the applicant said that he had documents which supported what he said. That part of the discussion was not interpreted for, or otherwise put to, the IPA Reviewer;
b)the applicant relies upon the affidavit of Hootan Dehbonei, an accredited interpreter in the Farsi (Persian) language who listened to a CD recording of the IPA Review Hearing, who says that the applicant, after having said that he worked as a soldier for Sepah, goes on to say “I have a document for that”, but that this latter phrase was not interpreted by the interpreter to the IPA Reviewer as the interpreter was interrupted by the IPA Reviewer asking the next question;[125]
c)if the statement omitted had been put to the IPA Reviewer the IPA Reviewer may have completely changed the dialogue in relation to the question, because there may have been merit in exploring the document, and how it could support the applicant’s claim;
d)further, the document might go to the credibility of the applicant as it supported his oral evidence with respect to his membership of Sepah;
e)because there was an inadequate interpretation on this point, the Court should allow the applicant a new hearing, unless it can be shown that the failure to interpret would not affect the IPA Reviewer Recommendation at all;
f)an accurate interpretation may have led to a different path in relation to the applicant being question about his membership of Sepah, and could have led to different findings concerning his credibility, and could have led to a finding that he was previously a member of Sepah; and
g)the interpreter’s evidence must be read in conjunction with the Webber Affidavit, in which Ms Webber, also an accredited interpreter in the Farsi (Persian) language, gives evidence that she inspected the Military Service Card, signed by an officer in charge of Sepah, which mentions the fact that the applicant was a soldier, and that the card is to be used to acknowledge the end of the applicant’s military service and not for any other purpose.[126]
[125] Affidavit of Hootan Dehbonei, affirmed 31 July 2013.
[126] Webber Affidavit, paras.3-6.
Minister’s submissions
The Minister submits that:
a)the IPA Reviewer’s analysis of the facts proceeded on an assumption favourable to the applicant, that he had worked for Sepah;
b)the Military Service Card only goes to prove that the applicant did work for Sepah, and is within the factual spectrum of the extent to which he worked for Sepah. The fact that one piece of evidence going toward the applicant working for Sepah was not considered, is at worst a shortcoming in the evidence, not a legal error. So, even if the full factual position had been before the IPA Reviewer, it would not have mattered because there would still inevitably have been a rejection of the real chance of persecution for the reasons otherwise set out at paragraphs 46 to 48 of the IPA Review Recommendation.
Consideration – ground 6
In Perera v Minister for Immigration & Multicultural Affairs,[127] the Federal Court made the following findings in relation to a decision of the Refugee Review Tribunal:[128]
[127] (1999) 92 FCR 6; [1999] FCA 507 (“Perera”).
[128] “Tribunal”.
a)a failure by the Tribunal to provide a competent interpreter to assist a non-English speaking applicant for refugee status may constitute a ground of review within s.476 of the Migration Act;
b)a failure by the Tribunal to provide an interpreter to a non-English speaking applicant means that the Tribunal does not have the jurisdiction to conduct the hearing;[129]
c)the role of an interpreter is to “place the non-English speaker as nearly as possible in the same position as an English speaker…to remove any barriers which prevent or impede understanding or communication”;[130]
d)“[i]nterpreting reliably involves technical skill and expert judgment”;[131]
e)the standard of interpreting required is subject to criteria of “continuity, precision, impartiality, competency and contemporaneousness” and a summary of what is said or omitting passages of what is said is not acceptable;[132]
f)the interpreter must “express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language”;[133]
g)the relevant question is whether the interpretation was so incompetent as to have effectively prevented an applicant from giving evidence;[134]
h)the departure from the standard of interpretation “must relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”, and it must relate to the proceedings and not be merely administrative or collateral in nature;[135] and
i)a relevant departure from the required standard of interpretation is sufficient to establish prejudice caused to the applicant, however further prejudice can also be shown where findings concerning an applicant’s lack of credit are also material to the Tribunal’s decision. The incompetent interpretation can thus form the context for negative credibility findings upon which a Tribunal decides to reject an applicant’s claims.[136] “A witness whose answers appear to be unresponsive, incoherent or inconsistent may well appear to lack candour, even though the unresponsiveness, incoherence or inconsistencies are due to incompetent interpretation. In the present case, the incompetence of interpretation cannot have assisted the Tribunal in making a reliable finding about Mr Perera’s credit. It may well be that, by resting its findings as to credit on answers that were poorly interpreted, the Tribunal failed to take advantage of its opportunity to see and hear the witness”.[137]
[129] Perera FCR at 17 per Kenny J; FCA at para 21 per Kenny J.
[130] Perera FCR at 18 per Kenny J; FCA at para.24 per Kenny J.
[131] Perera FCR at 18 per Kenny J; FCA at para.25 per Kenny J.
[132] Perera FCR at 18-19 per Kenny J; FCA at para.28 per Kenny J.
[133] Perera FCR at 19 per Kenny J; FCA at para.29 per Kenny J.
[134] Perera FCR at 22 per Kenny J; FCA at para.38 per Kenny J.
[135] Perera FCR at 23-24 per Kenny J; FCA at para.45 per Kenny J.
[136] Perera FCR at 23-25 per Kenny J; FCA at paras.45, 47 and 49 per Kenny J.
[137] Perera FCR at 25 per Kenny J; FCA at para.49 per Kenny J.
The Full Court of the Federal Court in WALN v Minister for Immigration & Multicultural & Indigenous Affairs[138] found that the appellant must establish that “errors had in occurred in translation which were so material as to cause the decision making process to miscarry”.[139]
[138] [2006] FCAFC 131 (“WALN”).
[139] WALN at para.29 per Ryan J.
The Perera principles set out above, while discussed in the context of hearings before the Tribunal, are also applicable to independent merits review hearings.[140]
[140] See, for example, WZAPM v Minister for Immigration & Anor [2013] FCCA 266; SZRMQ v Minister for Immigration & Anor [2013] FCCA 12 at para.29-30 per Judge Lloyd-Jones; SZQLS v Minister for Immigration & Citizenship [2012] FCA 1274 at paras.30-38 per Logan J.
The issue is whether the evidence as to the failure to interpret the applicant’s statement that he had a document related to his Sepah membership, in circumstances where the document existed, effectively prevented the applicant from giving evidence in relation to a matter of material significance to the applicant’s claim thereby causing the decision-making process to miscarry.
In the Court’s view the decision-making process did not miscarry by reason of the failure to inform the IPA Reviewer of the existence of the Military Service Card. This was because the IPA Reviewer, on one view of the evidence, accepts that the applicant was a member of Sepah. The evidence of the Military Service Card would doubtless have reinforced that view. Reinforcement of that view would have diminished, if not extinguished, the alternative view that the applicant had participated in anti-government demonstrations and been detained as a consequence. If the applicant had been a member of Sepah, the IPA Reviewer was clearly of the view that if it was true that he had been involved in anti-government demonstrations and detained, then his treatment would have been significantly worse than he claimed it to be. Because the claimed mistreatment was not significantly worse, it can be inferred that the IPA Reviewer would, therefore, not have accepted that the applicant was involved in anti-government political demonstrations, or been in detention as a consequence.[141] Additional evidence as to the applicant’s membership of Sepah would therefore have strengthened the above inference; reinforcing the IPA Reviewer’s findings. In the above circumstances, the failure to interpret the applicant’s evidence concerning his having a document concerning his Sepah membership was not a matter which caused the IPA Reviewer’s decision-making process to miscarry. Even if that evidence had been interpreted and made known to the IPA Reviewer, it would not, on the reasoning adopted by the IPA Reviewer, have made any difference to the ultimate outcome. In fact, the evidence of Sepah membership, would have also reinforced the critical reasoning at paragraphs 46 to 48 of the IPA Review Recommendation which resulted in the IPA Reviewer finding that the applicant did not have a well-founded fear of persecution.
[141] CB 203 at para.45.
In the circumstances, ground 6 is not made out.
Ground 7
Ground 7 is as follows:
7. Further or in the alternative to review ground 4 above, the Second Respondent fell into jurisdictional error in concluding that:
a. the Applicant had not been subjected to serious harm and persecution in Iran due to his political opinion; and
b. the Applicant did not have a well-founded fear of persecution if he was to return to Iran due to his political opinion.
The Second Respondents’ conclusions with regard to the above were irrational or illogical, and not based on findings or inferences of facts supported by logical grounds.
Applicant’s submissions
The applicant submits that:
a)in the present case, if Counsel for the Minister’s interpretation of paragraph 45 of the IPA Review Recommendation is correct,[142] the IPA Reviewer has made factual findings that:
[142] CB 203 at para.45.
i)the applicant was formerly a member of Sepah;
ii)the applicant is now actively involved in political activity and demonstrations against the government;
iii)the applicant has previously been detained by the government or military as a result of his political activity; and
iv)the applicant was tortured and beaten while detained;
b)on the basis of the above findings, the applicant submits that it was irrational or illogical for the IPA Reviewer to reach the conclusion that the applicant would not face persecution should he return to Iran. The finding was illogical or irrational notwithstanding any other credibility findings the IPA Reviewer may have made; and
c)based on the factors outlined above, the applicant submits it was not open to any reasonable decision-maker in the position of the IPA Reviewer to have reached conclusions that:
i)the applicant had not suffered serious harm constituting persecution in the past;
ii)there was not a real chance the applicant would suffer persecution for his political opinions in the future; and
iii)the applicant did not have a well-founded fear of persecution for his political opinion if he were to return to Iran.
Minister’s submissions
The Minister submits that:
a)the IPA Reviewer’s findings that:
i)the applicant’s knowledge of the candidates in the 2009 Iranian election is consistent with his claim to have played a minor part in those elections;
ii)if the applicant, as he claims, participated in one of the demonstrations that followed the elections, it is possible that he was detained;
iii)if, however, as the applicant claims, he had worked for three years for Sepah and those who were detaining him knew this, as he claimed at the IPA Review Hearing,[143] he would have been treated much more severely than he was and detained for longer; and
iv)it may be true that the applicant claimed to have worked for Sepah at one time and it may be true that the applicant claimed he was briefly detained while participating in a demonstration, but both those claims were not true;[144]
b)the applicant’s submissions proceed quite differently and overstate the nature and significance of the IPA Reviewer’s findings in two particularly important ways:
i)first, the IPA Reviewer did not find, either at CB 203 at paragraph 45, or at all, that the applicant is now actively involved in political activity and demonstrations against the government. The analysis in the following paragraphs of the IPA Review Recommendation points precisely to the contrary;[145] and
ii)second, although the IPA Reviewer implicitly acknowledged that the applicant may have been treated severely if he were detained while participating in a demonstration,[146] it was not found that the applicant “was tortured and beaten while detained”;
c)it is in the above context that the four distinct findings adverse to the applicant’s credibility were then made,[147] and each of those findings was open to the IPA Reviewer, and the Minister does not understand the applicant to contend otherwise; and
d)it necessarily follows that the conclusion reached by the IPA Reviewer as to the absence of a real chance that the claimant would suffer persecution in Iran for a Convention based reason[148] was one fairly open to the IPA Reviewer on all of the material before him. The process of reasoning adopted in support of the fact-finding and ultimate conclusions was, therefore, not illogical or irrational, nor was it of a kind that meets the very high standard set by the High Court in Minister for Immigration & Citizenship v SZMDS & Anor.[149]
[143] CB 202 at para.36; 203-204 at para.46.
[144] CB 203 at para.45.
[145] CB 203-204 at paras.46-50.
[146] CB 203-204 at paras.45-46.
[147] CB 203-204 at paras.46-48.
[148] CB 204 at para.51.
[149] (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”).
Consideration – ground 7
In the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[150] it was said that:
… the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.[151]
[150] (2004) 78 ALJR 992; [2004] HCA 32.
[151] SGLB ALJR at 998 per Gummow and Hayne JJ; HCA at para.38 per Gummow and Hayne JJ.
In the High Court in SZMDS the plurality majority Justices accepted a submission that:
…not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error, … if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the [Migration] Act) then this is a jurisdictional fact and a jurisdictional error is established.[152]
[152] SZMDS CLR at 643 per Crennan and Bell JJ; HCA at para.119 per Crennan and Bell JJ.
Those plurality majority Justices went on to say that:
…illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.[153]
[153] SZMDS CLR at 647-648 per Crennan and Bell JJ; HCA at para.130 per Crennan and Bell JJ.
Importantly, the above observations were caveated by the following observation of the same plurality majority Justices:
…a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[154]
[154] SZMDS CLR at 649-650 per Crennan and Bell JJ; HCA at para.135 per Crennan and Bell JJ.
The High Court’s decision in SZMDS establishes that illogicality or irrationality in the reasoning of an administrative decision-maker may constitute a basis for judicial review, however, this ground may only succeed in a limited range of cases.
In SZOOR v Minister for Immigration & Citizenship & Anor[155] it was observed that:
The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside. It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.[156]
and further that:
… Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision….[157]
[155] (2012) 202 FCR 1; [2012] FCAFC 58 (“SZOOR”).
[156] SZOOR FCR at 7 per Rares J; FCAFC at para.15 per Rares J.
[157] SZOOR FCR at 23 per McKerracher J; FCAFC at para.85 per McKerracher J (Reeves J agreeing with McKerracher J).
In this case the factual findings complained of under ground 7 and said to have been made by the IPA Reviewer were challenged as to their accuracy by the Minister. It is fair to observe that the IPA Reviewer did not make factual findings that:
a)the applicant is now actively involved in political activity and demonstrations against the government;
b)the applicant has previously been detained by the government or military as a result of his political activity; and
c)the applicant was tortured and beaten while detained,
as asserted in the applicant’s submissions.[158] Furthermore, for reasons set out above, the finding that the applicant may have been a member of Sepah was a finding made in the alternative to a finding that he participated in anti-government demonstrations and was detained. That finding was, for reasons also set out above, a finding of fact, albeit in the alternative, which was open to be made by the IPA Reviewer. The other alleged findings of fact complained about in the applicant’s submissions, and set out above, were not findings of fact made by the IPA Reviewer at all, save that the finding that the applicant had been previously detained as a result of political activity, was made as an alternative finding, mutually exclusive from the finding that the applicant was a member of Sepah, but at an earlier time. Insofar as the applicant asserts that the IPA Reviewer found that the applicant was “now actively involved in political activity and demonstrations against the government” and has been detained as a result of that political activity, that was not a factual finding made by the IPA Reviewer, and there was no finding made that the applicant was tortured and beaten while detained, either recently, or, if one of the two mutually exclusive findings was true as to his detention, previously.
[158] See para.63(a) above.
For reasons otherwise set out above the findings made by the IPA Reviewer might have been put more expansively, but notwithstanding that they do have a logic and rationale discernible from and on the factual material referred to by the IPA Reviewer. The IPA Reviewer’s factual conclusions were within the reasonable range of factual conclusions open to an administrative decision-maker on those facts. Other administrative decision-makers might have:
a)made findings on any or all of the materials which differed from those of the IPA Reviewer, and may have expressed themselves differently or more loquaciously; or
b)made the same recommendation as the IPA Reviewer, but arrived at that recommendation adopting different findings and a different rationale,
but those differences would only be the result of reasonable minds differing in their interpretation of the factual material, or the weight to be attributed to various aspects of the factual material. In the above circumstances, there is no illogicality or irrationality discernible in the IPA Reviewer’s findings and reasons.
It was therefore at all times open to the IPA Reviewer on the factual material to come to a finding that the applicant had not been subjected to serious harm and persecution in Iran due to his political opinion, and that he did not have a well-founded fear of persecution if he was to return to Iran due to his political opinion. For the reasons set out above, ground 7 has therefore not been made out.
Ground 8
Ground 8 is as follows:
8. Further or in the alternative to review grounds 4 and 7 above, the Second Respondent fell into jurisdictional error in misdirecting himself as to the applicable law. The Second Respondent misapplied or misconstrued the relevant law when considering whether:
a. the Applicant had suffered serious harm amounting to persecution for a Convention reason;
b. there was a real chance the Applicant would suffer persecution for a Convention reason in the future if he were to return to Iran; and
c. the Applicant held a well-founded fear of persecution for a Convention reason if he were to return to Iran.
Applicant’s submissions
The applicant submits that:
a)although it is not explicitly expressed, it appears from the IPA Review Recommendation that the IPA Reviewer concluded one or more of the following:
i)the applicant had not suffered serious harm in the past amounting to persecution;
ii)there was not a real chance that the applicant would suffer persecution in the future if he was to return to Iran; and
iii)the applicant did not have a well-founded fear of persecution if he were to return to Iran;
b)at no point in the IPA Review Recommendation does the IPA Reviewer identify the tests for either:
i)the degree of harm which amounts to persecution; or
ii)what is required to establish a well-founded fear of persecution;
c)the applicant accepts that it is not essential for the IPA Reviewer to specifically articulate these tests, however, they must be applied;
d)section 91R(2) of the Migration Act provides a non-exhaustive list of factors which may constitute “serious harm”. These include:
i)a threat to the person’s life or liberty;
ii)significant physical harassment of the person;
iii)significant economic hardship that threatens the person’s capacity to subsist; and
iv)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist; and
e)as set out in Minister for Immigration & Multicultural Affairsv Haji Ibrahim:[159]
Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purposes of the Convention.[160]
[159] (2000) 204 CLR 1 at 18-19 per McHugh J; [2000] HCA 55 at para.55 per McHugh J (“Ibrahim”).
[160] Ibrahim CLR at 18-19 per McHugh J; HCA at para.55 per McHugh J.
Minister’s submissions
The Minister submits that:
a)the assertion of jurisdictional error by a misdirection as to the applicable law requires an inference to be drawn for the submission to be made good. Nothing is relied on as expressly indicative of an error of law of that kind. As in Abebe v The Commonwealth of Australia,[161] this was a case where the finder of fact wholly rejected the credibility of the protection visa applicant;[162]
[161] (1999) 197 CLR 510; [1999] HCA 14 (“Abebe”).
[162] Abebe CLR at 543-545 per Gleeson CJ and McHugh J; HCA at paras.81-83 per Gleeson CJ and McHugh J.
b)the applicant’s characterisation of the IPA Reviewer’s findings at CB 203 at paragraph 45 is inaccurate. Thus it is not possible to infer that those findings, and how they are expressed, reflect any inaccuracy in the test that was applied, let alone compel such a conclusion;
c)in any event, on no view did the findings at CB 203 at paragraph 45 preclude the IPA Reviewer from assessing the applicant’s credibility as he did. The adverse view of the applicant’s credibility that the IPA Reviewer took led to the critical conclusions which followed at CB 204 at paragraph 48. The IPA Reviewer did not accept that:
i)the applicant’s father suddenly denounced him to the Iranian authorities;
ii)the security authorities then came looking for the applicant, causing him to escape from his apartment and then from the country; and
iii)the security authorities were or are looking for the applicant or that they would have any interest in him if he were to return to Iran in the foreseeable future;
d)the point at which the applicant’s submissions in support of ground 8 manifest error flows from the proposition from the High Court’s decision in Guo, that a finding of past persecution is relevant to the question of further persecution, it is then an error of principle to assert that, merely on the basis of such a finding in a given case, “it is difficult to identify how” a given applicant would not have a well-founded fear of persecution;
e)the IPA Reviewer’s analysis at CB 203-204 at paragraphs 46-51 is directed to analytical support for the IPA Reviewer’s conclusion rejecting the proposition that there was any material likelihood that the applicant would continue political activity of any significance, or at all, if he were returned to Iran; and
f)it is by no means the case, contrary to the applicant’s conclusion in support of ground 8, that “the only logical conclusion” is that the IPA Reviewer failed to apply the correct test about what constitutes a well-founded fear of persecution. To the contrary, the IPA Reviewer expressly identified matters indicative of an understanding of the correct test in the IPA Review Recommendation when summarising the relevant law.[163] The very nature of the IPA Reviewer’s analysis of the perceived significant inconsistencies in the applicant’s account reinforced that the IPA Reviewer was mindful, from start to finish, of the appropriate question to ask and answer.
[163] CB 198-199 at paras.6-9.
Consideration – ground 8
The IPA Reviewer was cognisant of the provisions of s.91R of the Migration Act. That is apparent because they are referred to under the heading “Relevant Law” in the IPA Review Recommendation.[164] The IPA Reviewer understood that the applicant had to establish that he was a refugee owing to a well-founded fear of being persecuted for a relevant reason and who, owing to the fear of persecution, was unwilling to return to his country of nationality or former habitual residence.[165] The IPA Reviewer understood that for the purposes of the recommendation it was necessary to determine whether or not the applicant met the criteria for a protection visa set out in s.36(2) of the Migration Act, as to whether Australia had protection obligations toward the applicant under the Convention, and that that question was to be understood by reference to other provisions of the Migration Act, including s.91R.[166]
[164] CB 198 at paras.8-9.
[165] CB 198 at paras.5-6.
[166] CB 198 at paras.8-9.
Whether or not there was a real chance that the applicant would suffer serious harm in the foreseeable future if returned to Iran, was a question of fact to be found, and exclusively within the fact finding province of, the IPA Reviewer. Relevantly, whether there was a threat to the applicant’s life or liberty, whether he was to be subject to significant physical harassment, or denied an opportunity to earn a livelihood or to subsist, were matters to be determined by the IPA Reviewer. The difficulty for the applicant in this case is that the IPA Reviewer’s findings make it apparent that in relation to his political opinion the IPA Reviewer was unconvinced of the applicant’s ongoing participation in regular political meetings, and did not accept that he had been denounced by his father, and therefore did not accept that the authorities in Iran were looking for him or that they would have any interest in him if he were to return to Iran in the foreseeable future.[167] It follows from that conclusion that the question of harm, or serious harm, for a Convention reason, being political opinion, does not arise because the applicant, being a person “without a known opposition political profile”,[168] and a person not being sought by the authorities, and in whom the authorities had no interest (on the facts found by the IPA Reviewer) would not be exposed to a threat to life or liberty or significant physical harassment, or other forms of serious harm, for the Convention reason of political opinion. In relation to the other two bases for alleged Convention-related persecution, namely the applicant’s religious beliefs or opinions and his being a member of a particular social group, the IPA Reviewer found:
a)in relation to religious beliefs or opinions, that he did “not accept that there is a real chance of his suffering any harm now as a result of his religious views, if he were to return to Iran.”[169] That view was reached on the basis of a consideration, as set out above,[170] of the applicant’s religious beliefs or opinions, or lack of them, over the previous 20 years, and the fact that he had not suffered “any consequences” by reason of his religious beliefs or opinions in the past;[171]
b)in relation to his membership of a particular social group being a returnee or a failed asylum seeker, the IPA Reviewer found that there was “no information before me that such consequences [those arising from the application of a law of general application in Iran] are so severe as to constitute persecution.”[172] That was within the context of factual findings that a person without a known opposition political profile was not someone that the IPA Reviewer accepted would be of interest to the Iranian authorities beyond, possibly, suffering the consequence of having left the country unlawfully; and
c)in relation to religious beliefs or opinions and being a returnee or failed asylum seeker, and the fear of persecution, the IPA Reviewer expressly considered and referred to the question of harm, on the one hand in relation to religious beliefs or opinions, and the consequences not being so severe as to constitute persecution, on the other hand, in relation to being a returnee or failed asylum seeker. In those circumstances, it cannot be said that the IPA Reviewer failed to consider the issue of whether or not the applicant would suffer persecution if he returned to Iran, or that he had well-founded fear of persecution, if he were to return to Iran. Furthermore, in relation to the political opinion ground, it is apparent that the IPA Reviewer did not consider that there was any likelihood of a well-founded fear of persecution on that basis if the applicant were to return to Iran, essentially because he did not appear to accept the fundamental premise that the applicant held a political opinion which gave him any profile with the Iranian authorities. Thus, even if he had suffered serious harm in the past (a matter in respect of which the IPA Reviewer did not make a positive finding), the IPA Reviewer looking at the past history, and having regard to what was likely to happen in the future, was entitled to conclude that the applicant would not suffer any form of harm amounting to persecution for a Convention reason, and therefore did not meet the criterion for a protection visa.[173]
[167] CB 204 at paras.47-48.
[168] CB 204 at para.50.
[169] CB 204 at para.49.
[170] See para.7(g) above.
[171] CB 204 at para.49.
[172] CB 204 at para.50.
[173] Guo CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
There is no evidence, and the IPA Reviewer did not make a finding that the applicant had suffered torture or beatings. Insofar as he might have been detained (on one view of the facts) the detention was brief, and in those circumstances, having regard to the facts in relation to what had occurred with respect to the applicant since 2009, a brief period of detention (if it occurred) had to be weighed in the mix of factual material for the purposes of determining whether there was a well-founded fear of future persecution if the applicant returned to Iran. On the basis of the post-2009 activities of the applicant the IPA Reviewer came to the conclusion, as he was entitled to do, that he was not convinced that the applicant’s political activities, or denunciation by his father, had actually occurred. In those circumstances, the IPA Reviewer was entitled to find, as he did, that the applicant’s political opinions were of no interest to the Iranian authorities, and he would not suffer persecution by reason of them if returned to Iran in the foreseeable future. The passage quoted from Ibrahim,[174] does not therefore assist the applicant, in the circumstances of this case.
[174] See para.75(e) above.
In all of the above circumstances, it is the Court’s view that the applicant has failed to establish that the IPA Reviewer either misapplied or misconstrued the relevant law, and therefore ground 8 is not made out.
Conclusions and orders
The Court has concluded that none of the grounds of the application for judicial review have been made out. It follows that there will be an order dismissing the application. There will also be an order amending the name of the Minister to “Minister for Immigration & Border Protection”.
The Court will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 May 2014
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