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[2012] FCA 1229
Federal Court of Australia
2012-11-09
Robertson J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This appeal is from the judgment of the Federal Magistrates Court given on 8 June 2012. That Court ordered that the proceeding commenced by way of application filed on 21 December 2011 be dismissed and the applicant pay the costs of the first respondent. The second respondent is the Independent Merits Reviewer (the reviewer). The reviewer had found that the claimant, to whom I shall refer as the appellant, did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth). Accordingly, she recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. 2 The Amended Notice of Appeal to this Court, filed in Court by leave on 6 November 2012 at the commencement of the appeal, identifies the following grounds: 1. The Court erred in failing to find that the Second Respondent's failure to put adverse conclusions central to her decision and failure to give the Appellant an opportunity to comment on the issue of his parents' birthplace was a breach of procedural fairness. Particulars • The Second Respondent found that the Appellant's parents were born in Iran, not Iraq, as the Appellant claimed. • This conclusion was central to the Second Respondent's decision because it necessitated a finding that the Appellant was an Iranian citizen, rather than a stateless Faili Kurd, as the Appellant had contended. • It was a requirement of procedural fairness that the Appellant be put on notice that the birthplace of his parents and the Iranian citizenship of the Appellant and his parents was in issue. • The Second Respondent did not put the Appellant on notice that the birthplace of his parents and the Iranian citizenship of the Appellant and his parents was in issue. 2. The Court erred in failing to find that the Second Respondent's failure to put adverse country information was a breach of procedural fairness. In the alternative, the Court erred in failing to find that the Second Respondent made a finding without evidence. Particulars • The Second Respondent found that there was not a real chance that the Appellant would be subjected to serious harm on the basis of being a failed asylum seeker. • At paragraphs [66]-[75] of her reasons, the Second Respondent set out country information that was not put to the Appellant. • That country information was credible, relevant and significant. • Whether information is credible, relevant and significant is to be determined prior to the decision being made. It cannot be inferred from the Second Respondent's reasons that the information was not credible, relevant and significant. • It was a requirement of procedural fairness that the Appellant be put on notice of information that was credible, relevant and significant. • The Court erred in concluding that the country information referred to at paragraphs [66]-[75] of the Second Respondent's reasons was not materially different from the country information given by the Appellant. • In the alternative, if the information at paragraphs [66]-[75] of her reasons was not credible relevant [sic] and significant, the Second Respondent made a finding without evidence. 3. The Court erred in failing to find that the Second Respondent erred in concluding that the Appellant would not suffer serious harm for a Convention reason. Particulars • The Second Respondent concluded that the harms the Appellant submitted he would suffer did not amount to persecution for a Convention reason. • The Second Respondent misapplied the test of whether harm rises to the level of 'persecution' for a 'Convention reason'. • The Second Respondent erred in law by failing to consider the harms cumulatively. 3 On 21 April 2011 a delegate of the Minister was not satisfied that the appellant had a real chance of being subject to harm amounting to persecution, on account of his race, or imputed political opinion or membership in the particular social group of 'stateless Faili Kurds', in the reasonably foreseeable future if he were to return to Iran. The delegate considered that the appellant's fear of persecution was not well-founded. The delegate also found that the appellant did not have a well-founded fear of harm and there was not a real chance of persecution occurring. The delegate therefore found that the appellant's fear of persecution, as defined under the Refugees Convention, was not well-founded. Earlier, the delegate had said that for the purposes of the assessment, she accepted that the present appellant was a stateless Faili Kurd and that his country of former habitual residence was Iran. The delegate also later said that given the country information already cited and the present appellant's personal circumstances, the delegate was not satisfied that the appellant had ever been unregistered or undocumented in Iran. 4 The appellant, by his registered migration agent, made an application for Independent Merits Review dated 10 May 2011. The appellant was represented by an adviser or migration agent at the interview before the reviewer. 5 The findings and reasons of the reviewer were, relevantly, as follows: 82. … I consider that the claimant's evidence on a number of issues central to his claim which was variously, inconsistent with independent country information, implausible and unsupported to be of a different order. It raises serious doubts about the claimant's credibility and cannot be disregarded in assessing his claims. 83. For reasons set out below I did not find that the claimant has been truthful about his experiences in Iran. I do not accept that he is, as he claims, a stateless and undocumented Faili Kurd, whose family were deported from Iraq around 1980; that he suffered discrimination amounting to persecution in the past or that he has a well founded fear of persecution for a Convention reason on return to Iran. … 85. Central to his claims was that he became undocumented after his green card was confiscated when his father tried to renew it around 2002 or 2003, having done so successfully in 1992. When invited to comment on country information that green cards were effectively residence cards, were not time limited and did not require renewal, while white cards had to be renewed every year, the claimant did not address the inconsistency but insisted that green cards had to be renewed every ten years and that he never had any white card. … 88. While the claimant was identified as speaking the Faili Kurdish dialect, he was quite vague as to who the Faili Kurds were. He distinguished Faili Kurds from other Iranian Kurds by their lack of identity documents and their expulsion from Iraq, while claiming that those who had property, land and citizenship in Iran were not Faili Kurds, even if they spoke the Faili Kurdish dialect, were Shi'a Muslims and came from the Iran-Iraq border region. However, when I put to him that according to independent country information Shi'a Kurds originating from the area on both the Iraqi and Iranian sides of the Zagros mountains, including those Iranian Shi'a Kurds who live in Ilam province, like the owner of the bee farm, were also ethnically Faili, the claimant said he was not sure. 89. In view of the above, I am not satisfied that the claimant has been truthful about his identity, status or experiences in Iran. Given that the language the claimant spoke at interview was identified by the interpreter as "Faili Kurdish" and claimed that his family had roots from around Ilam province, where most Iranian Faili Kurds live, I am prepared to accept that he is ethnically a Faili Kurd from Ilam province. However, in light of the claimant's lack of awareness about green and white identity cards issued to Iraqi refugees in Iran and the inconsistency of his evidence about these issues with country information, I am not satisfied that the claimant ever had a green card which was confiscated around 2002-2003, as claimed. Nor do I accept that his family was deported from Iraq or that he is stateless and undocumented. I consider the claimant to be from among the many Faili Kurds who have lived in Ilam province for generations as Iranian citizens, like the Shi'a Kurd bee farmer who employed him. 90. In light of my finding that the claimant is an Iranian citizen, I do not accept that he was subjected to various social persecutions and restrictions in Iran … as a result of being stateless and undocumented or because of his Faili Kurdish ethnicity. Even if he experienced difficulties in accessing education, employment, medical insurance or other restrictions, which I do not accept, I do not find that such circumstances amount to serious harm. While the claimant may genuinely feel that he has had a miserable time in Iran, been disadvantaged and discriminated against, I do not accept that this has been because of his Faili Kurdish ethnicity or his lack of identity and citizenship. Even if he has experienced employment, education or other social restrictions, which I do not accept, I find that these were not due to a Convention reason, but as a result of general economic conditions. Further, I do not accept that the claimant was stopped at checkpoints, harassed or beaten by the Basij for these reasons or that he will be targeted for these reasons in the future. 91. The claimant alleged that he left Iran through Imam Khomeini airport without difficulty on a false passport in someone else's name but with his photograph. In light of my findings above, I do not accept his claims that this passport was false and arranged through a smuggler. I find that the claimant left Iran legally on own [sic] genuine passport and will not, therefore, come to the adverse attention of authorities for illegal departure, nor be regarded as a spy as claimed. 92. Finally, I do not accept that there is a real chance that the claimant will face serious harm as a failed asylum seeker returning to Iran. Notably, the claimant himself did not mention this fear, even when asked if there were any other issues. Rather, the claim was raised in a generic submission by the claimant's adviser which I received after the interview. I have had regard to the submission and examined the RRT country advice in it regarding the treatment of returnees and failed asylum seekers upon return to Iran. I note that this advice variously states that it remains uncertain as to "whether the act of seeking asylum is interpreted by Iranian authorities … as an expression of serious dissatisfaction with the regime or an act of political dissent"; that "if it does constitute dissent, the question remains as to whether it would subject asylum seekers to ill-treatment upon return"; and that "it is unclear as to whether any of [the] examples of ill-treatment [cited] are attributable to political beliefs imputed by authorities due to asylum claims made while abroad." 93. While the cited advice indicates that political activists and those "who have publicly expressed dissatisfaction with events in Iran, may face increased risks should they return to Iran", by his own word, the claimant has never been politically involved. Given that he has spent his time in Australia in detention, he would not have come to the attention of the Iranian authorities or their informants here. I am, therefore, not satisfied that there is a real chance that he will be subjected to serious harm, as claimed, for being a failed asylum seeker. 94. The claimant's adviser also submitted that the claimant fears persecution for membership of an unspecified "particular social group". However, for the reasons outlined in this recommendation, I am not satisfied that the claimant has a well founded fear of persecution for this reason, including as a Faili Kurd, an undocumented Faili Kurd, an undocumented Faili Kurd from Ilam province, as a returnee, a failed asylum seeker returnee or any other combination. 95. On the evidence before me, and having considered the matters raised both separately and cumulatively, I find that the claimant does not have a well-founded fear of persecution in Iran for a Convention reason now or in the reasonably foreseeable future and that he does not satisfy the definition of a refugee.
Submissions 6 In relation to Ground 1, the appellant submitted that the reviewer denied the appellant procedural fairness by failing to put to him adverse conclusions central to the reviewer's decision: the Reviewer never put to the appellant that he was an Iranian citizen, whose family had lived in Ilam province for generations as Iranian citizens. It was submitted that the finding that the appellant's family had lived in Iran for generations as Iranian citizens, simply because the appellant was not aware of the intricacies of the issuance of identity cards to Iraqi refugees in Iran, was not a conclusion which was obviously open on the material which was before the reviewer. Further or alternatively, by failing to give the appellant an opportunity to comment on the issue of whether he and his family members were Iranian citizens, the reviewer failed to raise with the appellant the critical issues upon which his application depended. Reference was made to the well known statement in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592. 7 In oral submissions it was put that the birthplace of the appellant's parents was one critical issue of which the appellant should have been put on notice and, consequentially and independently, he should also have been put on notice of the critical issues that he and his parents were Iranian citizens. The appellant relied on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 (SZBEL) as demonstrating the degree of specificity of the issues which was required. It was also put that there was a legal distinction between rejecting evidence on the one hand and making a positive finding as to the existence of a state of affairs on the other, the positive finding in the present case being that the appellant was an Iranian citizen. In this respect the appellant relied on WAGU v Minister for Immigration and Indigenous and Multicultural Affairs [2003] FCA 912 (WAGU). 8 In relation to Ground 2, the appellant submitted that the failure of the reviewer to provide to the appellant a DFAT advice dated December 2010 on the subject of failed asylum seekers returning to Iran constituted a denial of procedural fairness. It was submitted that the country information identified by the reviewer reached conclusions which directly contradicted the country information provided by the appellant (the RRT country advice) and that the DFAT advice contained country information that was credible, relevant and significant to the resolution of the appellant's claims. In oral submissions the issue was identified as whether Iranian authorities would know whether a person had applied for protection in a Western state. This was put on the basis that the RRT country advice referred to a likelihood that the names and details of Iranian citizens who applied for protection in Western states were brought to the attention of Iranian embassies and Iranian authorities while the DFAT advice stated that Iranian authorities occasionally are aware of the activities of Iranians abroad, especially in Turkey. 9 No separate argument was addressed to Ground 3, on the basis that, if the Court upheld Ground 1, the reviewer's determination that the appellant would not suffer serious harm must also fail since, it was submitted, there was no separate or independent basis upon which the reviewer's determination could be sustained. However the first respondent submitted that what the reviewer said at [90] provided a discretionary reason why relief should not follow if the appellant succeeded on Ground 1. The first respondent submitted that the reasoning was truly independent of the reviewer's findings in relation to Ground 1. The appellant submitted that the reasoning was not independent or it would be unsafe to conclude that the reasoning stood on a sufficiently independent basis in light of the uncertainties of interpretation to which that paragraph gave rise.
Ground 1 10 At the beginning of her interview with the appellant on 25 July 2011 for the purpose of making her recommendation the reviewer said: And my role is to take a fresh look at all your claims for protection as set out in Article 1 A of the Refugees Convention and to make a new recommendation to the Minister as to whether or not you meet the definition of refugee. 11 The reviewer stated in the course of the interview that the appellant's identity was a key issue in her assessment. The reviewer said: I mean you will appreciate that you have arrived here without documentation, you do not have a passport, you do not have a green card so in trying to establish the issues in your case, I have only got your word to go on about who you … that you are who you say you are and therefore I have to look at other information and put it all together and make a decision on how the story fits together. Because clearly your identity is a key issue in my assessment. I need to be satisfied that you really are who you say you are. I would not take a narrow view of what the word "identity" or the expression "you really are who you say you are" encompasses. 12 A little later the reviewer said: As I said to you … one of the key issues for me is obviously the issue of your identity and whether you are who you claim to be. 13 It follows in my view that, contrary to the appellant's written outline of submissions at [10], this case is not equivalent to the example given in SZBEL at [37] where part of the hypothesis was there had been no warning. In so saying I should not be taken to be accepting that the statutory framework, which formed an important part of the High Court's reasoning in that case, is the same in the appeal before me. 14 In addition, there was discussion at the interview not only of identity cards but also of who Faili Kurds were. The appellant had a particular understanding of the term Faili and it appeared to be limited to those Kurds who were expelled from Iraq. The reviewer was not obliged to accept this view and asked whether the appellant considered the people who stay in Iran on the border and eventually got Iranian citizenship were not Faili Kurds. 15 It was the appellant's identity and who he was which was the central conclusion, not where the appellant's parents were born in Iran not Iraq, as the appellant claimed or whether the appellant and his family were Iranian citizens. 16 The reviewer's conclusion was not directly founded on the matter of the appellant's parents' country of birth or citizenship: that was, instead, a concomitant consequence of the reviewer's approach to the identity of the appellant and who he was. In my view the identity of the appellant and who he was covered his claim to be a stateless and undocumented Faili Kurd and thus the question of his citizenship of Iran. That was the issue: the matter of his parents' country of birth or citizenship was not in itself an issue or a separate issue. 17 On the facts of this case, the possibility that the appellant was a citizen of some country other than Iran, if he was found not to be stateless, was not a real possibility. Thus I do not accept the appellant's submission that, because there was no country information that supported the reviewer's conclusion, the conclusion on Iranian citizenship was not obviously open on the known material and therefore was required to be specifically drawn to the appellant's attention in order to satisfy the requirements identified by the Full Court in Alphaone at 592. 18 I also do not accept that on the facts of this case SZBEL requires greater specificity of the issues than was provided by the reviewer in order to afford procedural fairness. In that case, as the High Court said at [42], the appellant's complaint was, on analysis, that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review. In light of the proceedings before the reviewer in the present case, the appellant has not established that he was not on notice that his identity, who he was, and the constituent facts of that identity were in issue. 19 In relation to the submission based on WAGU, I do not accept that that decision establishes that in each case there is a legal distinction between rejecting evidence and making a positive finding as to the existence of a state of affairs. That decision concerned the rejection of corroborative evidence on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party. In such a case, French J said, there may be a failure of procedural fairness. Such a failure may have very practical effects as it means that corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility. The relevant proposition in that case essentially involved a finding that the appellant had been involved in some kind of conspiracy to fabricate information. Those facts are quite different to those in the present appeal where the positive findings by the reviewer, of which the appellant complains on the ground of denial of procedural fairness, were the consequence of her rejection of the appellant's claim. 20 In effect the submission on this Ground on behalf of the appellant involves deconstructing the reviewer's reasons to identify a necessary consequence or consequences of a finding and, having identified one or more of those consequences, asserting a denial of procedural fairness in the reviewer failing to raise that consequence or those consequences with the appellant. I reject that submission on the facts of this case. 21 Although my reasons differ in some respects from her Honour's, I agree with the conclusion of the Federal Magistrate. 22 Ground 1 is not made out.
Ground 2 23 The passages on which this ground depends must be taken in context. The fuller extract of the DFAT December 2010 advice is as follows: Post is not able to advise whether Iranian authorities would know whether a person had applied for protection in a Western state. Iranian authorities occasionally are aware of the activities of Iranians abroad, especially in Turkey. It appears authorities monitor the activities of high profile figures and members of civil society more closely. No further context is available in the material before me: although parts of this DFAT advice were reproduced by the delegate in the delegate's written decision, those parts, about which no procedural fairness complaint was or could be made by the appellant, state that generally only persons with a previous political profile would attract attention and harm on return to Iran. 24 The extracts from the RRT country advice, in fuller context, read as follows: It remains uncertain as to whether either the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad. What is certain is that at least some returnees from Australia and elsewhere have been subjected to varying degrees of ill-treatment by authorities upon return, ranging from monitoring, interrogation, and detention. There are reliable reports that some returnees from Canada have been physically harmed and there is at least one report of a returnee dying following physical harm upon return. However, it is unclear as to whether any of these examples of ill-treatment are attributable to political beliefs imputed by authorities due to asylum claims made while abroad. It is likely that the names and details of Iranian citizens who apply for protection in western states are brought to the attention of Iranian embassies by informants and subsequently passed onto Iranian authorities. It is also likely that these details will be known to Iranian Immigration security officials at Imam Khomeini International Airport in Teheran, the main international gateway into Iran. … In 2009 the conservative Iranian President Mahmud Ahmadinejad was re-elected in highly controversial circumstances. Mass protests and the reporting of these events resulted in a repressive crackdown on dissenters, perceived critics, and the media. According to Amnesty International, this crackdown does have implications for Iranian citizens abroad; on the first anniversary of the disputed June 2009 presidential elections, Amnesty International stated that they believe that the events of the previous twelve months in Iran "means that some Iranians who left Iran to study or work or for other non-political reasons, but who have publicly expressed dissatisfaction with events in Iran, may face increased risks should they return to Iran. Some may have become refugees sur place and would qualify for refugee or subsidiary protection status if they seek asylum." The question, however, remains as to whether the act of seeking asylum is interpreted by Iranian authorities as an expression of serious dissatisfaction with the regime or an act of political dissent. In 2009 the Danish Immigration Service quoted an unnamed "western embassy" in Iran as informing them that Iranian refugees and Iranian asylum seekers "are kept under strict surveillance by any Iranian embassy and its network of informers." The embassy told the Danish Immigration Service that "the Iranian Embassy in their home country has at its disposal a very strong network of informants, who keep an eye on Iranians living in that country." On this basis it seems likely that an Iranian seeking protection in Australia would come to the attention of the Iranian Embassy in Canberra via members of the diaspora. Consequently, Iranian authorities could eventually become aware of an Iranian national's unsuccessful attempt to gain asylum in Australia. Once again, the question remains as to whether such an act would constitute dissent in the eyes of the authorities. Furthermore, if it does constitute dissent, the question remains as to whether it would subject asylum seekers to ill-treatment upon return. 25 In my view the distinction between whether the Iranian authorities are likely to have the names and details of those who apply for protection brought to their attention or are occasionally aware of the activities of Iranians abroad is of no significance separate from the matter relied on by the reviewer on the basis of the RRT country information, which in turn was relied on by the appellant, having been forwarded to the reviewer by the appellant's migration agent as part of the migration agent's submission to which I have referred above. 26 I am not satisfied that there were differences of substance on the point identified on behalf of the appellant, but if there were differences I am not persuaded that they were relevant or significant. 27 The matters referred to in the RRT and DFAT advices, on which the appellant now relies, did not affect the issue of the type or class of returned failed asylum seekers who may face increased risks. 28 It will be recalled that the reasoning of the reviewer on this point was that the RRT country advice, reproduced by the reviewer at [93] from the material provided on behalf of the appellant, said that political activists and those "who have publicly expressed dissatisfaction with events in Iran, may face increased risks should they return to Iran", but the appellant had never been politically involved. 29 I accept that the test is not whether the material formed part of the reasons of the decision-maker and the focus is on what a decision maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96. However the mere reference to the state of knowledge of the Iranian authorities in the context of the actual or imputed profile of the returned failed refugee does not establish that the material was relevant and significant. Put differently, in my view the decision-maker could dismiss the information now sought to be relied on by the appellant from further consideration on the basis that, considered in context, it was of little or no significance to the decision to be made. For the same reason it was not relevant information. 30 For these reasons, this Ground is not made out. 31 No separate argument was addressed to that part of, or the particular under, Ground 2 that the reviewer made a finding without evidence. I take that aspect of the Ground to have been abandoned. In any event, in my view, it is unsustainable as there was such evidence and the assessment of it was a matter of the merits of that material, that assessment being committed to the reviewer. Further, it is not clear whether this particular was argued before the Federal Magistrate although her Honour did say at [56] that these findings were open to the reviewer on the evidence before her (from the appellant).
Ground 3 32 The question does not therefore arise as to the exercise of the Court's discretion if Ground 1 succeeded. I add that in my view if Ground 1, which went to the basis of the appellant's claimed identity and in that sense to his credit, had been made out then I would have allowed the appeal. I would not have been satisfied that the reviewer's conclusions attacked in Ground 3 were unaffected by the questions of the appellant's identity and therefore credit attacked under Ground 1. The reasoning in relation to the matter raised by Ground 3 is too compressed to allow me to be satisfied that it was in truth independent of Ground 1. 33 No separate argument was addressed to the particular under Ground 3 that the reviewer erred in law by failing to consider the harms cumulatively and I shall take that particular of the Ground to have been abandoned. In any event, in my view, it is unsustainable in light of the reviewer's findings and her statements that she had so considered the harms. I see no error in the conclusions of the Federal Magistrate on this point.
Conclusion and orders 34 I order that the appeal be dismissed, the appellant to pay the first respondent's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
SZQZK
Minister for Immigration and Citizenship