DZACT v Minister for Immigration and Citizenship

THE FEDERAL MAGISTRATE'S REASONS 9 There were four particularised Grounds for review before the Federal Magistrates Court, although Grounds 1 - 3 are related to each other. The particularised Grounds are as follows: 1. The [reviewer] failed to have regard to relevant material and/or failed to make findings on material questions of fact in a manner that affected the exercise of its jurisdiction and/or denied the applicant procedural fairness Particulars (a) The [reviewer] accepted that the applicant had encountered and greeted prominent "author, journalist and activist" Emadeddin Baghi on 24 July 2010. (b) Central to the applicant's claims were: (i) the authorities had photographed the applicant with Mr Baghi; and (ii) the applicant's father had been told about the photograph by his friend. (c) The [reviewer] made a finding that it did not accept that the applicant was of interest to the authorities as a result of his encounter with Mr Baghi. (d) However, the [reviewer] failed to make findings on the specific claims advanced by the applicant. (e) The failure of the [reviewer] to consider and/or make findings on relevant, critical matters was sufficiently fundamental to amount to jurisdictional error. 2. The [reviewer] failed to properly consider the applicant's claim that he was at risk of persecution by reason of his imputed political opinion Particulars (a) The applicant claimed that by reason of his encounter with Mr Baghi he would be imputed with a political opinion. (b) The [reviewer] did not accept that there was a real chance in the reasonably foreseeable future that the applicant would suffer harm amounting to persecution for reasons of political opinion (real or imputed). (c) The [reviewer] made this finding without considering the claim advanced by the applicant. 3. The [reviewer's] finding that the applicant's encounter with Mr Baghi would not cause the authorities to target the applicant was unreasonable and/or made without evidence Particulars (a) The [reviewer] referred to country information that suggested that family and friends of activists were sometimes targeted by the authorities to put pressure on the activists. (b) The [reviewer] found that there was "no indication that greeting a person in the street would cause that person to subsequently become of interest to the authorities." (c) The [reviewer's] finding was based on a failure of the country information to refer to the specific and individual claims of the applicant. (d) In all the circumstances, the finding was unreasonable and/or made without evidence. 4. The second respondent denied the applicant procedural fairness by failing to direct the applicant to the live issues under review Particulars (a) The [reviewer] referred to the applicant's previous claims of having been beaten by the Basij on two occasions. (b) The [reviewer] made a finding that, in the absence of any evidence of these events, she was not satisfied that they occurred or alternatively, that they were Convention related. (c) The applicant had not abandoned the claims that he had previously made. (d) The [reviewer] proceeded to make positive findings on this issue without raising it with the applicant. (e) In the circumstances of this case, the [reviewer] denied the applicant procedural fairness. 10 The appellant's contention in Grounds 1-3 concentrates on what the appellant describes as the failure of the independent reviewer to make a finding about, or to rely upon, the appellant's evidence as to the photograph taken as the basis of the appellant's fear of persecution by reason of an imputed political opinion. 11 The Federal Magistrate did not accept that the independent reviewer had failed to consider the photograph. At [20]-[23] he stated: [20] Despite the applicant's contentions to the contrary, the only fair reading of the Reviewer's report is that she was not satisfied that the applicant faced a real chance of persecution because the Iranian authorities had a photo of him greeting Mr Baghi. Although she did not expressly state that there was no such photo, it is clearly implicit from the findings made that either there was no photo or, if there was, it was not a matter of significance. [21] The Reviewer's discussion of the matter commences with her noting the applicant's principal proposition: "The claimant fears persecution for reason of political opinion on the basis that the authorities were in possession of a photograph of him talking in the street with Emadeddin Bahgi". However she was: not able to accept this evidence as there were a number of inconsistencies such that the claimant's accounts as a whole was unreliable and the claimant appeared to tailor his evidence during the interview, for example: … I do not accept that the conversation took place as the claimant has described. I do not accept that they spoke for 10 minutes and concluded that the claimant's evidence about the length of the time they spoke was exaggerated or constructed to make it more feasible that he could have been photographed during that time and imputed with a political opinion as a result. (emphasis added by Federal Magistrate) [22] Then at [88] she said: The claimant's evidence is that there was a photograph of him and that Ettela'at were planning to arrest him … I have concluded that he was not of interest to the authorities as a result of his conversation with Mr Baghi and as a result I do not accept the security forces were looking for him at any time, including after he left Iran. (emphasis added by Federal Magistrate) [23] On this issue she concluded "that the claimant does not have a well-founded fear of persecution. I find that the claimant left Iran for reasons that are not related to his refugee claims". Properly understood, this is a finding that the applicant did not actually have a fear of persecution because he believed the Iranian security forces had a photograph taken whilst he was talking to Mr Baghi. This finding was fatal to his claim. The Reviewer clearly rejected the substance of the story as a fabrication, notwithstanding she was prepared to concede there may have been a brief greeting. 12 The Federal Magistrate made the following findings in rejecting the first ground of review at [24]-[27] of his reasons:: [24] In my view, the Reviewer adopted a generous attitude to the applicant's core claim that he had a chance encounter with the celebrated human rights activist and journalist, Emadeddin Baghi, when the applicant was erecting lights in the street, and Mr Baghi happened to be passing. [25] The Reviewer appears to have been influenced by the fact that the applicant had maintained that claim consistently. It was a surprising claim, if, for no other reason than that the applicant claimed that Mr Baghi was a regular visitor to his parents' home, and yet he feared no harm from the authorities by reason of that apparently close association, although he asserted fear of harm by reason of the single chance encounter that he recounted. [26] I reject the contention in ground 1. In my view, it was not necessarily material to the Reviewer's consideration whether a photograph of the applicant and Mr Baghi existed or not. The central consideration addressed by the Reviewer in her reasons was that this was a chance encounter of short duration, which had been exaggerated by the applicant in order to make it appear more significant. By logical extension, whether a photograph existed or did not exist of the applicant with Mr Baghi on the occasion of this chance encounter was unlikely to alter the view that the authorities held about that encounter. [27] It may well be, as is contended by counsel for the Minister, that it is implicit in the Reviewer's reasons that she rejected the claim that a photograph existed. It probably would have been preferable if the Reviewer had dealt with that issue expressly. However, it was also open, in my view, to the Reviewer to have concluded that even if a photograph existed, it would not have altered her conclusions on the lack of any objective basis for the fear asserted by the applicant. 13 Accordingly, the Federal Magistrate rejected Ground 1. 14 The Federal Magistrate also rejected Ground 2, on the basis that the independent reviewer either did not accept that the authorities had the photograph mentioned, or did not consider that the existence of the photograph changed anything, and that the encounter itself would not cause the appellant to become of interest to the authorities. 15 The Federal Magistrate also rejected Ground 3, a challenge based on unreasonableness. The Federal Magistrate held that the independent reviewer's non-acceptance of the appellant's claim was principally reached on credibility grounds, not solely because of an absence of corroborative country information, and that the independent reviewer's non-acceptance of the appellant's claim in this regard was not unreasonable, irrational or illogical and did not demonstrate any legal or jurisdictional error; referring to Minister for Immigration v SZMDS (2010) 266 ALR 367. 16 The fourth ground of appeal concerned the independent reviewer's findings in respect of the appellant's claim to have been beaten by the Basij on two occasions in the past. The Federal Magistrate accepted that that was not a clearly articulated claim of a well-founded fear of persecution for that reason that required consideration, and that it was strongly arguable that if such a claim was made, the failure by the appellant or his advisors to make any mention of it except in his early statement supported an inference that the claim had been abandoned. There was no reliance on these matters before, and no evidence was given to, the independent reviewer about the claims. Further, the Federal Magistrate considered that the independent reviewer was justified in considering the claim abandoned, holding that the appellant had 'killed it off by making no mention of it whatsoever after the early interview;' applying the reasoning of Cameron FM in SZQFR v Minister for Immigration and Citizenship [2011] FMCA 785 at [38]-[48] and Burchardt FM in MZYQZ v Minister for Immigration and Citizenship [2012] FMCA 265 at [18]-[28].

THE APPEAL 17 Grounds 1, 2 and 4 were reargued on appeal, and in respect of each of them counsel for the appellant argued that the Federal Magistrate had erred in his approach to those three matters. The Federal Magistrate's finding in respect of Ground 3 (that the independent reviewer's findings that the appellant's encounter with Mr Baghi would not cause the authorities to target the appellant was unreasonable and/or made without evidence) has not been appealed against.

CONSIDERATION 18 The appellant argued for three grounds of error on the part of the Federal Magistrate, although as is commonly the case the arguments really amounted to arguing that the Federal Magistrate erred in not finding "jurisdictional error" on the part of the independent reviewer in relation to matters argued before the Federal Magistrate. 19 The three contentions were: (a) error in failing to have regard to relevant material and/or failing to make findings on material questions of fact in a manner that affected the exercise of its jurisdiction and/or denied the applicant procedural fairness; (b) error in failing to properly consider the appellant's claim that he was at risk of persecution by reason of his imputed political opinion; and (c) error in denying the appellant procedural fairness by failing to direct the appellant to the live issues under review. 20 It is convenient to deal with the first two contentions together. The starting point is to determine whether, as the appellant asserts, the independent reviewer made a finding about his claim that he had been photographed with Mr Baghi, and that the photograph was held by Iranian authorities. 21 In essence, the argument centred upon and depended upon the appellant persuading the Court that the Federal Magistrate had erred in not identifying that the appellant had raised a claim that was not considered by the independent reviewer. The appellant says that the claim that the appellant had been photographed with Mr Baghi was central to his claim and that the independent reviewer failed to make an express finding on this, thereby supporting the inference that the Reviewer failed to deal with this issue. The appellant relies upon the reasoning of the Full Court in Appellant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184. 22 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. 23 The Federal Magistrate concluded that the independent reviewer had regard to the photograph and that the issue of the photograph was "subsumed in findings of greater generality" surrounding the chance meeting, and in particular the inconsistencies in the appellant's claim. 24 There is no express finding by the independent reviewer on that topic. The Federal Magistrate did not consider it necessary to make any particular conclusion on that topic because it was "not necessarily material". As his Honour's reasons set out above indicate, he thought the central claim was that a chance encounter with Mr Baghi would stir the interest of the authorities, and concluded that the independent reviewer could properly have decided that it would not. The existence or otherwise of the photograph was unlikely to have altered the view of the authorities. The Federal Magistrate at [27] of his reasons, in the passage quoted above, therefore treated the topic as one on which a finding was not critical. 25 In dealing with the separate issue, namely whether the appellant might be imputed with a political opinion because of there being such a photograph, he ascribed to the independent reviewer the positive findings as follows at [29] of his reasons: The applicant alleged that he would be imputed with a political opinion because the authorities had a photograph of him speaking to Mr Baghi. No other basis was put for the authorities to consider that he had a relationship with Mr Baghi (other than presumably the photographer witnessed the encounter when the photograph was supposedly taken). 26 The independent reviewer accepted that the appellant spoke to Mr Baghi on 24 or 25 July 2010. I do not understand why the fact that Mr Baghi was alone is of itself a reason to doubt that, but if that is the case, then it is implied in the reviewer's reasons that it is more likely that Mr Baghi was under some form of observation. The reviewer then did not accept that their contact "would have resulted in his becoming of interest to the authorities" because of a number of "inconsistencies" in his account. I do not really understand the nature of those inconsistencies; however, the nature of this appeal does not require me to form a view about that part of the reviewer's reasons, with one qualification - namely whether the appellant was photographed as he claims. 27 As to that, the reviewer did not accept the claim that the conversation was as prolonged as the appellant asserted "to make it more feasible that he could have been photographed" during that meeting. There is at [86] of the reviewer's reasons the comment: While I accept that the authorities can be inconsistent and irrational, I do not accept that the claimant and Mr Baghi had a relationship or any encounter that would cause the authorities to target the claimant. It is hard to understand that observation: the non-acceptance of there being any relevant relationship between the appellant and Mr Baghi is predicated on a rational and consistent assessment of the nature of the meeting. 28 As to the photograph itself, I agree with the Federal Magistrate's first assessment at [26]-[27] of his reasons, that there was no finding about its existence. The independent reviewer concluded at [88] of his reasons: The claimant's evidence is that there was a photograph of him and that Ettela'at were planning to arrest him (statutory declaration dated 13 November 2010). Further, after he arrived at Christmas Island he was told by his father that the Basij had been to their house two times looking for him and made enquiries in the neighbourhood. I note he was questioned at some length about what had occurred and whether there was a warrant or some other document. I have concluded that he was not of interest to the authorities as a result of his conversation with Mr Baghi and as a result, I do not accept that the security forces were looking for him at any time, including after he left Iran. I do not accept that he has been subject to any harm for reason of his imputed political opinion. That was the occasion when the finding about the existence of the photograph, or its non-existence, would have been made. No finding was made. As the Federal Magistrate said, that was apparently on the basis that the independent reviewer had concluded that the meeting of itself was not enough to excite the interest of the authorities, or at least not enough rationally to excite their interest. There is, therefore, also no express finding about whether the appellant's father had been approached by the Basij looking for him. 29 In my view, however, that does demonstrate that the independent reviewer failed to consider the appellant's claim, based upon the existence of the photograph. The appellant did not say - and did not claim to know - whether the photograph was taken by authorities observing Mr Baghi or by an observer who provided it to the authorities. But his claim clearly extended to saying that the existence of the photograph, and the subsequent approach to his father, was of itself evidence of the authorities' interest in him - whether rational or not. He did not claim that his meeting with Mr Baghi was an occasion upon which a political opinion should, or could rationally, have been imputed to him. He maintained that he was in fact apolitical. 30 However, because there was no finding by the independent reviewer about whether the photograph existed, I do not consider that the appellant's claim to have been photographed with Mr Bagdi, and that the photograph together with the approach to his father demonstrated that the authorities had an interest in him, was separately considered by the independent reviewer. He was entitled to have that claim considered by the independent reviewer. The failure to do so is a reviewable error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, [2003] HCA 26; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. 31 The other issue raised on behalf of the appellant can be shortly addressed. It is based on his assertion in his entry interview that he had been assaulted twice by the Basij, as a young man, and had a well-founded fear of similar assaults in the future if he returned to Iran. 32 The independent reviewer had addressed that claim, even though it had not been expressly mentioned by the appellant or his adviser - material specifically submitted to the independent reviewer or in the hearing before the independent reviewer. 33 The independent reviewer did not accept the claim by taking the view that there was an absence of evidence that the assaults had not occurred, and that in any event any such assaults had not been for a Convention reason. 34 The appellant's complaint is that he was not accorded procedural fairness by the independent reviewer, because he was not warned that the claim might not be accepted so that he had an opportunity to respond. 35 In my view, that contention is not made out. I am not persuaded that the Federal Magistrate erred in his analysis of the material or in the conclusion he reached on the issue. In the circumstances, the appellant was not deprived of any opportunity to adduce evidence or other material in support of the claim. He was not constrained from doing so in the hearing before the independent reviewer, or by submission of material through his adviser. He apparently chose to make nothing of that claim before the independent reviewer. The hearing made it clear that he could not assume that his claims generally would simply be accepted at face value. 36 Indeed, in the circumstances, I also agree with the Federal Magistrate that the claim was not one which was clearly articulated and required consideration by the independent reviewer: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1 at [68]. The independent reviewer would not have been in error in not addressing the claim at all. For the reasons given, I do not consider there was any reviewable failure on the part of the independent reviewer in the manner in which that claim was addressed. 37 I have concluded that the Federal Magistrate erred in the manner I have identified above, and in turn that the independent reviewer also erred in a reviewable manner by failing to address one particular claim made by the appellant including by making the necessary findings in relation to it. I will therefore allow the appeal, and set aside the orders of the Federal Magistrate, including as to costs. I will also order that the first respondent pay to the appellant his costs of the application to the Federal Magistrate and of this appeal. 38 I will also give leave to the appellant to seek such further orders as are necessary and appropriate in the light of my findings, such leave to be exercised within 28 days by a written submission including any proposed draft orders. The first respondent will then have 21 days to respond to that material. It may, however, be unnecessary to make any further orders, as the effect of my decision in practical terms is that the appellant should be entitled to a fresh Independent Merit Review of his claim and the first respondent may be prepared to facilitate that occurring. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.