CONSIDERATION
17 Grounds 1, 2 and 3 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 4 has not been appealed against.
18 The first contention is that the Federal Magistrate erred in not finding that the Reviewer had asked the wrong question which affects the exercise of power: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. The Federal Magistrate identified that the Reviewer did not explicitly state that the appellant had suffered serious harm within s 91R(1) and (2) but that that was implicit in the findings. The appellant submits that the matters identified by the Reviewer might be described as effects that may have flowed from being an undocumented Faili Kurd, but they were not necessarily an accurate measure of whether a person is an undocumented Faili Kurd, and that other factors were mentioned in the country information that might equally have been used, such as the question of whether one could own land, or have access to heath insurance.
19 The appellant also contested the Reviewer's finding with respect to the appellant's work history, submitting that that is not a useful measure of whether the appellant is an undocumented Faili Kurd. That is because illegal work may be tolerated in Iran enabling stateless, undocumented Faili Kurds to work in spite of their status.
20 The respondent submitted that the Reviewer responded to the appellant's claim as put. The appellant's claim of past and future discrimination and persecution were underpinned by his claim to be a stateless and undocumented Faili Kurd. In support of that claim, the appellant submitted numerous examples of prior hardship in support of the submission that the same sort of persecution and hardship on this account would remain if he were to return to Iran. The Reviewer's assessment of the claimed hardship, the respondent says, was part of his assessment of the appellant's claim to be stateless and undocumented, and that those seven points stood at odds with those claims. Further, as the Federal Magistrate noted, the Reviewer relied upon matters in addition to those claims to find that the appellant was not a stateless Faili Kurd.
21 It may be accepted that asking the wrong question in a way that affects the exercise of power is an error going to jurisdiction. The attack upon the Reviewer's decision is that the Reviewer, instead of asking whether upon the whole of the material, the appellant is an undocumented stateless Faili Kurd, decided that question by setting up and measuring seven criteria to determine the appellant's status when that was an inappropriate course to adopt.
22 The Reviewer, in my view, did not fall into that error. He recognised that the appellant, at a general level, may have been within the extensive group of Faili Kurds expelled from Iraq in 1980 and deprived of Iraqi citizenship who now live as stateless and undocumented Faili Kurds in Iran. The existence of such a group was confirmed by independent country information.
23 It was then appropriate for the Reviewer to consider the material explicitly relating to the appellant to see if he fell within that group. The appellant claimed to be undocumented because his parents had fled Iraq, and his father had not been able to secure documentation or citizenship. The Reviewer then referred to the seven topics which persuaded the Reviewer that the appellant had not suffered the constant and cumulative discrimination and persecution as a result of statelessness and lack of documentation that he claimed. Those topics concerned:
(1) the appellant's education level - the Reviewer considered the appellant had had more schooling than he claimed, assessed by his literacy level, and that his starting work at a young age was typical for many in the Ilam province and so not indicative of him being deprived of schooling due to his claimed status;
(2) the appellant's work opportunities - the Reviewer considered that the fact that the appellant (and his father) had a reasonable annual income and the appellant had worked continuously from age 12 to when he left Iran as a shepherd, farmer and labourer did not show he was prevented from working or earning a livelihood;
(3) the appellant's accommodation - the Reviewer thought the appellant had given inconsistent information about whether he had lived in his village his whole life, or in a tent until 2006 and then in the village, and found the appellant had lived in a rented house in the village with a phone for many years without apparent difficulties, so that he concluded the family is well settled and do not live there as undocumented non-citizens;
(4) the appellant's family - the Reviewer noted there was no suggestion that they had suffered significant disadvantages or detriments suggestive of being undocumented non-citizens;
(5) the appellant's finances - the Reviewer considered that his ability with his father to save 5.5 million toman (plus 2 million toman borrowed from his village) showed he and his family were not prevented from working;
(6) the appellant's travel to Ilam city - the Reviewer noted the appellant had given inconsistent evidence about the frequency of his travel to Ilam city, and so he had "serious concerns" about the appellant's credibility, and he also found the appellant had attended Ilam city a number of times (to organise his passport photo) without attracting adverse attention; and
(7) the appellant's treatment - the Reviewer considered that the fact that the appellant had not reported instances of actual harassment or harm from the authorities strongly suggested he was not a stateless Faili Kurd.
24 Each of those seven matters was capable of being supported by information, including independent country information, before the Reviewer. In my view, although the weight to be given to those factors is a matter on which different minds may disagree, that reasoning on the part of the Reviewer does not demonstrate error of the type alleged. The Reviewer has not specified the necessary criteria to demonstrate statelessness or the fact that the appellant was undocumented, but has identified a number of topics from the material which are capable of informing the answer to that issue.
25 Moreover, the Reviewer's further reasoning confirms that he made no such error. The Reviewer then referred in more detail to the appellant's evidence about his family background, and expressed the view that that background - particularly of both his paternal and maternal grandfathers - tended to suggest they were Iranian nationals whose status could have been proved to the Iranian authorities so that his father should have been able to establish his entitlement to Iranian nationality to the Iranian authorities. That picture was completed, in the Reviewer's mind, by the ease with which the appellant left Iran, indicating his passport was his legal Iranian passport.
26 The Reviewer is not shown to have erred in the manner asserted. The Reviewer considered all the material, and reached a conclusion of fact that the appellant is not an undocumented stateless Faili Kurd living in Iran, but is entitled to enter and reside there. No one piece of evidence was treated as conclusive one way or the other on that question. It was the assessment of all the material, including the weight to be attributed to some of it in the light of the Reviewer's assessment of the reliability of the appellant's evidence, that led to the conclusion. This appeal does not entitle the Court simply to re-assess that process of reasoning and to substitute the Court's view on the conclusion; it is confined to identifying jurisdictional error.
27 For the reasons given, I am not persuaded that the error asserted by the first ground of appeal is made out.
28 The second ground of appeal concerns whether the Reviewer erred in concluding that the appellant could obtain Iranian citizenship, as distinct from deciding that he was eligible to do so by his lineage.
29 The Reviewer accepted that the appellant is a Faili Kurd and was in receipt of country information, demonstrating that it would be extremely hard to demonstrate ancestry without official documents, consistent with the appellant's evidence. The appellant submits that the Federal Magistrate's finding that that issue was redundant "in light of positively finding the appellant was an Iranian national" was to "put the cart before the horse." The appellant submits that it was not open to the Federal Magistrate to make that finding, without considering the relevant material, namely articles 976 and 983 of the Civil Code of Iran.
30 The Federal Magistrate considered that there might be "some strength in an argument that the Reviewer had failed to take into account the very relevant material" but for the finding made by the Reviewer that the appellant had travelled to Indonesia on his own passport.
31 The difficult, the appellant says, with that line of reasoning is that the Reviewer's findings that the appellant had a passport was contingent on the finding that he was an Iranian national. The Reviewer states at [130]:
While not determinative of the issue, his evidence that his passport was made for the purpose of getting through the airport and did get him through the airport checks without any difficulty at all, suggests the ease of his passage was because the passport was in fact his own, legal Iranian passport.
32 The appellant submits that this was not a conclusive statement on that point. At [136] the Reviewer later states, in discussing whether the appellant would have a reasonable fear of returning to Iran:
Intertwined with his stated fear to return to Iran is the claimed manner of his departure using an Iranian passport to which he was not entitled, and how his travel to Australia would be viewed by the Iranian authorities if he does return there. However, in light of the foregoing I find he is an Iranian national and so I do not accept he had any need to organise a false passport to depart Iran. It follows I conclude the passport he used to depart Iran was in fact his own legal Iranian passport issued in Ilam.
33 The respondent submits that the Federal Magistrate was correct to find that it was unnecessary for the Reviewer to separately consider the process by which the appellant and/or his father could apply for Iranian citizenship, given that the Reviewer had already found that the appellant was not undocumented and/or stateless. The Reviewer had already made that finding, on the basis of the matters discussed above at [23].
34 In the Reviewer's reasons, having addressed the issue as to the appellant's claim to be a stateless undocumented Faili Kurd, the Reviewer then addressed the claim that in any event the appellant was at risk by reason of being a Faili Kurd returning from "the West". Immediately before addressing that claim, the Reviewer at [131] to [132] said:
I conclude he did not reside in Iran as a non-citizen: he was not undocumented and/or stateless. It follows that I find he has a right to enter and reside in Iran, and would not risk deportation after he re-enters. I accept that the claimant and his family never held Amayesh cards, but conclude this is because they were not non-citizens/stateless/refugees/undocumented in Iran and they had no need to hold Amayesh cards. I conclude the claimant never sought an Amayesh card not because he thought he would not be issued one, but because he had no need to. I do not accept the claimant or any of his family have been unable to access appropriate public services and benefits in Iran.
35 It is clear that the second ground of appeal is premised on the basis that the Reviewer had not already determined that the appellant was a person who had Iranian nationality, but up to that point had decided only that he could possibly be eligible for such nationality. It is only in that context that the question could arise about whether in fact he could obtain such citizenship.
36 In my view, the premise is not made out. The passages of the Reviewer's reasons to which I have referred indicate that the appellant had been found to be one of the majority of Faili Kurds in Iran who are Iranian nationals. The analysis of the relevant country information by the Reviewer at [81]-[83] of his reasons indicates that there are about 3 million Faili Kurds in Iran, the vast majority of whom are Iranian nationals. There are a significant number who are registered Faili Kurd refugees (refugee registration cards are called Amayesh cards) and some 4000 or so who are unregistered and undocumented and stateless. In that context, the passage from the Reviewer's reasons quoted at [34] above clearly shows the Reviewer found the appellant was neither a registered refugee nor an undocumented, stateless Faili Kurd in Iran. The remaining option is that the appellant is an Iranian national. It is for that reason the Reviewer did not need to consider if he was an Iraqi national, and why the Reviewer then proceeded to consider whether merely as a Faili Kurd returning to Iran, despite his Iranian nationality, he might be persecuted.
37 The appellant told the Reviewer that, soon after the appellant was born, the appellant's father had unsuccessfully tried to get Iranian certification, but had failed. The appellant himself had never made any efforts to do so. The absence of a birth certificate may make it difficult to prove Iranian ancestry, even though in fact there may have been lengthy Iranian ancestry (as is the case with the appellant's paternal grandfather).
38 However, the Reviewer did not overlook that material. The Reviewer nevertheless concluded, on the whole of the material, that the appellant was an Iranian national. The Reviewer took into account that the appellant had travelled to Ilam city a number of times, including to get a passport photo, without adverse consequences. I do not think there is any ambiguity about the finding that the appellant had a lawful passport. The Reviewer at [136] made that finding. It is correct to say that the issues about whether he had Iranian nationality, and whether he had a valid Iranian passport, were interwoven. But the Reviewer's reasoning is not flawed in the way asserted because of that. His initial focus was on the claim to be an undocumented stateless person. Whether he had a valid passport was an incidental finding, that is, a finding (as with other findings) towards a conclusion about that initial and more general question. Having answered that question, on the whole of the evidence, the finding about the passport had been made and was maintained.
39 The final ground for appeal concerned the failure of the Reviewer to put to the appellant that his education and literacy issues were dispositive issues. The appellant submits that the Federal Magistrate's reasoning that "any correction to the denial of procedural fairness would not have affected the Reviewer's ultimate finding that the appellant was not a stateless Faili Kurd" was not in keeping with the philosophical principles of procedural fairness. In SZQGA, Barker J stated, discussing the natural justice requirement, at [157]:
There may be a tendency to encapsulate the principles I have just recounted as meaning that, if there is "no practical injustice", then a remedy should be refused even if the ground of relief contended for is made out. I consider one needs to be cautious in summarising the relevant principles under this catchphrase, as it may lead a court into making an impermissible inquiry into the merits of a decision made and being inclined to substitute its view of what an appropriate outcome would have been instead of allowing an original decision-maker to make the decision entrusted to them.
40 The appellant submits that the Federal Magistrate's findings were based on three erroneous assumptions. The first is that the Federal Magistrate states that "it was the appellant's own evidence that his cessation of education was in order to work." It is not clear what the evidentiary basis is for that assertion. In the appellant's interview with the IMR he stated that "in Iran I never have any chance to hold any card or to be able to study" and that the appellant did not have an opportunity to explain the circumstances surrounding his cessation of education.
41 The second is the reference to the fact that the denial of access to education was one of the seven issues referred to in [5] above. The appellant submits that it is not clear from the decision what weight the decision maker put on each of those seven issues, and that even if the issue of education only played a limited role, it is no reason to deny relief. In SZQGA, Barker J stated at [149]:
It also seems generally to be accepted that it is no answer, where a denial of procedural fairness is demonstrated, to resist relief on the basis that the error involved is "trivial".
42 The third is that the Reviewer made an independent finding that the appellant was able to leave Iran without difficulty; and that he did not have to organise a false passport to depart Iran.
43 The respondent submits that in order to establish jurisdictional error the appellant is required to show that the Reviewer's decision may have been different had the error not occurred: SZQGA. The respondent submits that the Federal Magistrate properly weighed the fact that there were discrepancies in the evidence given by the appellant; that the Reviewer had identified another six points on which basis the respondent rejected that the appellant was stateless and undocumented, and that he had his own legal Iranian passport.
44 It is apparent, as the Federal Magistrate noted, that the Reviewer did not put to the appellant the country information upon which the conclusion in 23 above was based. It was used to refute the appellant's claim that he had been denied access to education. As noted above at [15], the failure to give the opportunity to comment on that material was a failure to give the opportunity to comment on that material was a failure to accord the appellant procedural fairness.
45 The issue on this appeal is whether the Federal Magistrate erred in concluding that, if procedural fairness had been accorded to the appellant, that would not have affected the Reviewer's finding that the appellant was not a stateless Faili Kurd. There were three reasons given for that conclusion set out in the reasons of the Federal Magistrate and quoted in full at [15] above.
46 I respectfully disagree with that conclusion of the Federal Magistrate in the circumstances. The Reviewer's "dot points" were all directed to showing that the appellant did not suffer the disadvantaged life he claimed, including in relation to his education. It was the package of that material which enabled the Reviewer to reach that conclusion. That conclusion, together with other information about the family background and the circumstances of his departure from Iran, which in sum supported the finding that the appellant did not live in Iran as an undocumented stateless Faili Kurd. The Reviewer said at [131]: "Yet when I consider his claims concerning his life there [in Iran], and the circumstances of his immediate and extended family …" that conclusion was reached. I do not think the reference to "in light of the foregoing" in [136] of the Reviewer's reasons, referred to by the Federal Magistrate, diminishes that observation. As I read it, that reference is to the Reviewer's conclusion in [131] as a reason to reject the separate claim then being considered that the appellant faced the risk of persecution as a Faili Kurd returning from the West, namely that he had been found to be an Iranian national.
47 That finding may be interfered with, on the limited basis of concluding it was made in breach of the rules of procedural fairness. The Court may, and should, interfere with such a finding if it was reached in breach of those rules, provided the breach may have affected the decision. That does not involve the Court reassessing the correctness of the factual findings.
48 It is necessary, then, to consider the other two reasons for the Federal Magistrate's decision. In my view, those reasons do not go far enough to show that if there had been no denial of procedural fairness, the decisions of the Reviewer may not have been the same: see per Barker J in SZQGA at [157]. It may fairly be said, as the Federal Magistrate did, that the other six matters considered also firmly pointed towards the conclusion the Reviewer reached so that it is "unlikely" that the Reviewer on any event would have come to a different conclusion. But I do not consider that unlikelihood is a proper application of the appropriate test as discussed by Barker J for the reasons given in the review of the relevant authorities in SZQGA. It may be said that the unlikelihood becomes stronger because of the review of the appellant's family background, and how he left Iran (although that topic was said by the Reviewer at [130] not to be determinative of the issue). As to the appellant's own evidence, he clearly said in his evidence to the Reviewer and in his earlier statutory declaration that he had been deprived of educational opportunities. If the Reviewer had put to the appellant the relevant country information, his response may have given a perspective which would not have enabled the Reviewer simply to put the appellant into the category of those who chose to, or were forced to, cease education to work - whether Iranian nationals or not - as a result of the economic conditions in the Ilam province.
49 In my view, the reasons of the Federal Magistrate do not warrant the conclusion that the decision would not have been different if the failure to accord procedural fairness had not occurred, and the reasons of the Federal Magistrate at [24] also suggest that that element of the factors put into the scales (concerning the appellant's educational opportunities) was independent of the conclusion that the appellant was an Iranian national when I think a proper reading of the Reviewer's reasons indicates to the contrary.