FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay to the respondent costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1    This appeal from the decision of a Federal Magistrate: SZRMA v Minister for Immigration and Citizenship [2012] FMCA 949 raises two questions, one of which is of general significance. The other involves the application of well-accepted principles to the particular facts.

2    The Federal Magistrate declared that the Report and Recommendation of an Independent Merits Review (IMR) reviewer (the Reviewer) of 30 January 2012 (the Recommendation) concerning the respondent’s claim to be eligible for a protection visa under the Migration Act 1958 (Cth) (the Act) was not made in accordance with law, and restrained the Minister from relying upon the Recommendation.

3    The question of general significance is whether the Reviewer in providing the Recommendation was required to consider a document titled “Country Guidance Note Iran 2011” dated 11 July 2011 (the Guidance Note), which had been prepared by officers within the Department of Immigration and Citizenship (the Department). The Guidance Note had been prepared during the period of the review by the Reviewer, but it was not provided to the Reviewer by the Department. The Federal Magistrate at [79] said that it contains information which may have affected the views formed by the Reviewer, and concluded that the Reviewer fell into error by not having regard to it. The appellant says the Federal Magistrate was in error in reaching that conclusion.

4    The second issue is whether the Federal Magistrate was in error in finding that the Reviewer should have considered a claim by the respondent, namely that he feared persecution as a member of a particular social group described as Faili Kurds who no longer have a White Card and who could not obtain another White Card. The Reviewer did not address that specific claim.

5    For the reasons set out below, in our view the Reviewer:

(1)    was required to consider the Guidance Note before providing the Recommendation, and consequently the Federal Magistrate did not err in his conclusion on that aspect; but

(2)    the respondent did not make the claim that he was vulnerable to persecution by reason of his membership of that particular social group in terms which obliged the Reviewer to have addressed it.

As it was necessary for the appellant to succeed on both issues to succeed on the appeal, we consider that the appeal should be dismissed, so the orders of the Federal Magistrate stand.

6    If we are wrong about that conclusion, we would make the following observation. As explained below, it is apparent that the Guidance Note may well have put a different complexion on the claim of the respondent to have a well-founded fear of persecution on the basis of being a failed asylum seeker returning to Iran. That was the view of the Federal Magistrate. The appellant on this appeal did not seek to go behind that view. As the Guidance Note came into existence only after the Refugee Status Assessment (RSA) officer of the Department had considered the respondent’s claim, and the Guidance Note was not brought to the attention of the Reviewer by the Department, the appellant may be disposed to make a determination in terms of s 46A(2) of the Act, at least in relation to that ground of the respondent’s claim. That would be a matter for the appellant.

Background

7    The background is uncontentious.

8    The respondent is a male of Faili Kurdish ethnicity who resided in Iran before his arrival in Australia. He arrived in Australia without a visa, and therefore was an off-shore entry person for the purposes of the Act. As a result, he was precluded by s 46A(1) of the Act from making an application for any visa, including a protection visa, unless the Minister exercised his power under s 46A(2) permitting him to do so.

9    On 18 December 2010, the respondent made a request for an RSA and was interviewed on 21 December 2010. On 24 February 2011, the RSA officer found that the respondent was not a person to whom Australia owed protection obligations. As he was entitled to, on 17 March 2011, the respondent applied to have that finding reviewed through the IMR mechanism. He was again interviewed on 31 October 2011.

10    It is clear that, subject to the second issue referred to in [4] above, the respondent claimed that he had a well-founded fear that, should he be required to return to Iran, he would suffer persecution for three Convention reasons: first, his ethnicity as a Faili Kurd; second, his status as a stateless person; and third, his status as a returned (failed) asylum seeker.

11    Each of the respondent’s claims was rejected by the Reviewer. The Reviewer acknowledged that, owing to his ethnicity and status as a stateless person, the respondent might be affected in part by incidents of some discrimination and hardship, but concluded that such discrimination and hardship did not give rise separately or cumulatively to a well-founded fear of persecution. The Reviewer also rejected the respondent’s claim that he was at risk of persecution owing to his status as a returned asylum seeker. Accordingly, the Reviewer found that the respondent was not a person to whom Australia owes protection obligations under the Refugees Convention, and made the Recommendation to that effect. The Reviewer’s Recommendation, and his reasons, were provided to the respondent on 31 January 2012.

12    The question of general significance and the ground of appeal referred to in [3] above relates to the respondent’s claim to fear persecution as a member of a particular social group, namely as a failed asylum seeker returning to Iran from a Western country. The Reviewer in rejecting that claim had regard to the Country Advice for Iran of the Refugee Review Tribunal (the Tribunal) of 19 August 2010, the UK Home Office “Country of Origin Report” of June 2011, and a Tribunal decision of 22 October 2010.

13    The absence of any reference to the Guidance Note indicates that the Reviewer did not consider it. The appellant did not contest the fact that the Reviewer did not consider it. This was almost certainly because the Reviewer was unaware of it up to the time of the Recommendation. It was acknowledged by counsel for the parties that it is likely that the Reviewer also had access to the material on which the RSA officer made the initial assessment, and which is listed in the RSA record of decision and reasons. Clearly the Reviewer secured some further country information, because he referred to certain country information which is dated after the Review was commenced, namely the UK Home Office Report.

14    As noted, between the commencement of the IMR, and the interview by the Reviewer on 31 October 2011, the Guidance Note came into existence.

15    The reason why the Guidance Note was not given to the Reviewer is not a sinister one. It appears from material in the Appeal Book that the Guidance Note (and perhaps other material) prompted the Department to check the correctness of RSA officers’ decisions in relation to the respondent’s and others’ claims. The respondent was notified of that by letter of 16 September 2011, and then by letter of 7 October 2011 he was informed that the check would not change the original RSA officer’s decision, and that his claims would continue to be assessed by the Reviewer. That letter referred, inter alia, to “more recent country information” but did not refer in terms to the Guidance Note. The appellant through the Department did not directly participate in the review by the Reviewer. For the purposes of this appeal, given the significance the Federal Magistrate attributed to the Guidance Note, it therefore appears that the Department either in error or through oversight did not provide it to the Reviewer because it did not appreciate its potential significance to the Reviewer’s consideration.

The Federal Magistrate’s decision

16    The respondent then applied in the Federal Magistrates Court for judicial review of the Recommendation. He asserted six grounds of jurisdictional error on the part of the Reviewer. He was successful in respect of two of those grounds only. They are the two issues which are now the subject of this appeal.

17    It is necessary to note only those parts of the Federal Magistrate’s reasons, and the Reviewer’s reasons, which relate to those two grounds.

18    As to the issue of principle, the respondent asserted that, in determining whether the respondent would suffer persecution in Iran as a failed asylum seeker, the Reviewer failed to consider the Guidance Note created by the Department.

19    The relevant section of the Guidance Note was recorded by the Federal Magistrate at [77]-[78] of his reasons.

20    Generally speaking, a person such as the Reviewer may, but has no duty to, conduct inquiries at the Reviewer’s own initiative: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [1]. However, the Federal Magistrate said at [76] that the Guidance Note was in a “special category” as it was prepared by the Department, and that the Reviewer “should have checked whether a more recent country advice for Iran was available” from the Department or the Tribunal before relying on the Tribunal’s Country Advice for Iran of 19 August 2010. In fact it appears that the Reviewer did so, having referred to the UK Home Office “Country of Origin Report” of June 2011.

21    The Federal Magistrate then commented that it could not be safely concluded that reference to the up-to-date Guidance Note would not have affected the outcome, especially as the information considered by the Reviewer was unequivocal and inconsistent with that note. Having found that the Reviewer was obliged to have regard to the Guidance Note, in the circumstances that was found to be jurisdictional error.

22    As to the second issue, the Federal Magistrate correctly said that the Reviewer was required to consider all the claims made by the respondent that emerged clearly from the materials before the Reviewer: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 per Black CJ, French and Selway JJ at [58] and [68] (NABE). The Federal Magistrate noted that the particular claim was not made expressly, or in the submissions filed on his behalf. However, he found that in the course of his interview by the Reviewer, the respondent asserted that he had become an undocumented Faili Kurd and that he would be exposed to a greater risk of harm in Iran because he no longer had a Green Card identity document and his White Card had expired and he could not obtain another one. The Federal Magistrate at [35] said that facts supportive of that claim had been raised by the respondent, so it “did squarely arise on the material before the Reviewer”. The failure to consider it amounted to jurisdictional error.

23    The Federal Magistrate distinguished that claim from the claim of fearing persecution as a stateless Faili Kurd without papers. The latter claim was dealt with by the Reviewer.

CONSIDERATION

24    As noted, there is no challenge on this appeal to the finding that, had the Reviewer considered the Guidance Note, the Recommendation may have been in different terms.

25    The issue is whether, in the circumstances, the Reviewer was obliged to have had regard to the Guidance Note.

26    Counsel for the respondent acknowledged that it is not appropriate to characterise the error asserted, and found by the Federal Magistrate, as a breach of procedural fairness. The characterisation given in the submissions (with which the appellant has joined issue) was that the Reviewer erred by failing to consider the most current information available at the time of the decision.

27    That characterisation is based upon the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 (Peko-Wallsend) where his Honour (with whom Gibbs CJ and Dawson J agreed) said:

Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. … It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense, this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

Then at 45-46 Mason J added:

Although it was not argued in the present case that the failure to consider the respondents’ submissions amounted to a denial of natural justice, the foregoing reasoning conforms to the principles of natural justice, on the assumption that they are applicable. No doubt those principles would also require a Minister who has received additional submissions from one party, before acting on them, to afford other interested parties an opportunity to answer them. But this does not negate the proposition that the Minister is bound to consider submissions put to him by parties who may be adversely affected by a decision.

28    That decision has been cited with approval in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ (with whom Brennan CJ, Dawson and Toohey JJ agreed); and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [42]-[43] per Kirby J. It has also been applied by this Court in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 463 at [28] per Rares J (SZJTQ) and Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [45] per Rares and Jagot JJ.

29    Counsel for the respondent focussed attention on the work to be given to the word “available” in the passage from Peko-Wallsend quoted above, and argued that the Guidance Note was available to the Reviewer because he had constructive knowledge of it, and in turn argued that that constructive knowledge arose because of the provenance of the Guidance Note and the “limited” obligation to consider the most recent country information “available”.

30    In SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 (SZOIN), Bennett and McKerracher JJ held that the obligation of the Secretary of the Department under s 418(3) of the Act to provide certain information to the Tribunal was a continuing one, including as new information relevant to the current considerations of the Tribunal came to hand. Rares J reached a different conclusion on that issue. However, the failure of the Secretary to satisfy that statutory obligation did not mean that the decision of the Tribunal made without it was thereby tainted: see per Bennett and McKerracher JJ at [59]-[66] and per Rares J at [93]. Clearly that decision, at least in the view of the majority, turned upon the relevant statutory context. The majority said that the Secretary’s failure to provide to the Tribunal relevant material (whatever the source of the obligation) did not mean that the Tribunal’s decision was itself tainted by jurisdictional error, in the light of there being a “prescriptive regime as to rights and obligations” (at [71]). See also WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413.

31    Rares J in SZOIN, having decided s 418(3) did not apply to the Secretary in respect of the particular information under debate, approached the issue more in a way which supports the appellant’s contention on this appeal, although the focus of the visa applicant’s contention in that case appears to have been that the failure of the Tribunal to receive and consider the later material available to the Department amounted to procedural unfairness (see per Rares J at [87]). His Honour at [93] said that, because the Tribunal’s processes were inquisitorial, it was not obliged under the Act to locate or ascertain the existence of further relevant material that the Department received after the original decision of the delegate.

32    Those observations are arguably capable of applying to the present appeal. The fact that the Reviewer and the RSA officer were each providing reports to the Minister, compared to the role of the Tribunal standing in the shoes of the Minister to make a decision on a protection visa applicant, is not at first glance an obvious point of distinction. Nor does the fact that the Secretary in that case had prescribed statutory obligations necessarily provide a point of difference, because the reasoning of Rares J, (having decided that those obligations were not breached) then concerned whether the Tribunal nevertheless was obliged to inquire about and consider the later material. His Honour’s answer to that question did not turn upon the extent of the Secretary’s statutory obligation. He did not say the extent of the Tribunal’s obligation to obtain and consider the later material was confined to, and corresponded with, the Secretary’s obligation to provide it.

33    However, the respondent sought to draw a distinction between the role of the Reviewer and of the Tribunal on the basis that the Reviewer was not, by statute, independent of the Minister exercising the role provided for by s 46A(2) of the Act, but was performing the advising role for the Minister in deciding whether to exercise the power under s 46A(2) to permit an offshore entry person (such as the respondent) to apply for a protection visa.

34    In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61/2010E) the High Court considered the processes set up by the Minister for the purpose of obtaining advice on whether the discretion under s 46A(2) should be exercised. It found that, although both the RSA and the IMR processes in one sense involve the exercise of non-statutory executive power, both the processes have a statutory foundation and that, on that foundation, they should be both procedurally fair and must proceed by reference to correct legal principles. In that case the Court found that the person conducting the IMR erred by failing to apply the law of Australia, by failing to address a claim made by the putative visa applicant, and by failing to accord the putative visa applicant procedural fairness.

35    The title of IMR is somewhat misleading. The Reviewer, properly understood, is not independent of the Minister. He or she is carrying out a review under administrative arrangements put in place by the Minister for the assistance of the Minister in connection with the Minister’s statutory power. Their function includes reporting their assessment and recommendation to the Minister for his consideration. The Minister is not obliged to take a reviewer’s assessment or recommendation into account by virtue of s 46A(7). It may well be, in this case, that the IMR was employed by an “independent” contractor as was the case in Plaintiff M61/2010E: [50]. It is an open question whether such an independent contractor is or is not “an officer of the Commonwealth” as found in the Constitution s 75(v).

36    For the purpose of considering the present appeal, it should also be noted that, apart from the unsuccessful challenge to the validity of s 46A(7), no question arose in that case about the validity of the other provisions of s 46A: see at [60].

37    The Court then said at [61]:

This being so, the question – what power was exercised when Refugee Status Assessments and Independent Merits Reviews were conducted with respect to each plaintiff? – becomes was it, as the Commonwealth submitted, no more than a non-statutory executive power to inquire? Was it, as Plaintiff M61 submitted (and Plaintiff M69 adopted as an alternative argument), an exercise of power under s 46A or s 195A?

38    The answer to that question, on the basis that the appellant had decided to consider whether to exercise the powers in ss 46A or 195A of the Act in respect of any offshore entry person who claims that Australia owes him or her protection obligations, was as noted above.

39    The next step is to consider the legal principles applying to the RSA and the IMR. Peko-Wallsend concerned a recommendation to the Minister by the Aboriginal Land Commissioner under s 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) that a grant of certain land be made to the persons he identified as the traditional owners of that land. The recommendation, as required by s 50(3)(b), commented on the detriment to certain mining interests by the recommended grant, because of their interest in mining large uranium deposits within the area. The Commissioner was not aware that in fact the area recommended for grant covered the whole of the known uranium deposits. The mining companies directly informed the Minister of that position. A subsequent Minister then pursuant to s 11(1)(b) of that Act recommended to the Governor-General the grant of the area to the traditional owners. He did so without reference to the further information provided to the Minister’s predecessor about the extent to which that would affect potential mining activities. Because the recommendation was made without taking into account the information provided by the mining companies, the Court declared the recommendation was void.

40    The Minister was personally unaware of the material provided by the mining interests, and the departmental briefing on which he made his decision did not refer to it. It was described by Gibbs CJ at 31 as information which showed that the comments of the Commissioner on detriment in his report to the Minister were based on an erroneous view of the facts, and the correcting factual information was material.

41    Gibbs CJ generally agreed with the judgment of Mason J. However, there is a difference between their views which may be of significance to the present appeal. Gibbs CJ said at 30-31 that, if the Minister relied upon a departmental summary which failed to bring to his attention a material fact the Minister was bound to consider, he will have failed to take that material fact into account and will not have formed his view in accordance with law. Mason J at 37-39 made some observations about an issue sought to be raised only before the High Court, that the Minister had delegated to the departmental staff the role of deciding the weight of relevant material, so that the failure of the departmental summary to refer to the later information provided by the mining interests reflected the outcome of the delegated exercise of taking it into account, so the Minister was entitled to form his view on the departmental summary. Mason J said there had been no such delegation in fact in that matter.

42    The reason for noting that point of difference is that it requires the role of the RSA and IMR processes established by the appellant and of the appellant under s 46A to be carefully considered for the purpose of deciding the present appeal.

43    It was clear from the submissions of both the appellant and the respondent that the RSA and IMR regime established by the appellant (as determined by Plaintiff M61/2010E) effectively gave the RSA officer and IMR Reviewer the responsibility for considering relevant material and assessing its weight in relation to the question whether an offshore entry person who is a putative applicant for a protection visa met the criteria for a protection visa, so that the appellant could be properly informed before making a decision under s 46A(2) of the Act to permit that person to make such an application. If, for example, the RSA officer considering the appropriate material made a recommendation to the appellant after considering and discounting the significance of the Guidance Note, neither the appellant nor the respondent would argue that the appellant himself had to be informed of and consider the contents of the Guidance Note.

44    As was pointed out in Plaintiff M61/2010E the regime of assessments and reviews did not constitute a delegation of Ministerial power. Rather they were administrative steps taken in consequence of a ministerial decision. The decision by the Minister to consider exercising the power under s 46A(2) to lift the bar or grant a visa was an exercise of power under s 46A(2) by the Minister. The only function of the IMR was to make a recommendation about whether protection obligations were owed to the respondent. Any decision under s 46A(2) to permit the making of an application for a visa or to grant a visa would be made by the Minister: Plaintiff M61/2010E at [50]. And that power, by virtue of s 46A(3) may only be exercised by the Minister. Their Honours at [70] described the position as follows:

Having decided that he should consider the exercise of power under s 46A or s 195A with respect to every offshore entry person who thereafter claimed that Australia owed that person protection obligations, the Minister required his Department to undertake the inquiries necessary to make an assessment and, if needs be, review the conclusion reached.

45    Because the RSA and IMR assessments were to be made upon those statutory foundations, the well-established principles governing the way in which such assessments are made also applied: see at [73]. As noted, the IMR there under consideration failed to apply three of those requirements.

46    It is also apparent from the remarks of Mason J in Peko-Wallsend set out at [27] above that an RSA officer of the Department would have failed to perform the function according to law if the RSA officer had not considered the most current material available to that officer. Had the RSA extended beyond June 2011, that material would have included the Guidance Note. Indeed, as noted at [15], the Department did check its decided but “current” RSA decisions after the Guidance Note was developed and adopted.

47    Why should the IMR process produce any different result? Its inquiry was also made after a decision by the appellant to consider exercising relevant powers and for the purposes of informing the appellant of matters that were relevant to the decision whether to exercise one of those powers in favour of a clamant: see Plaintiff M61/2010E at [73]. The IMR was established by the Department, not by the legislature. The analogy that the appellant draws between the position of the IMR qua the Department, and the position of the Tribunal qua the Secretary under the Act, is not an apt one. There is no material relied on by the appellant on this appeal which suggests that the Reviewer did not have, or should not routinely have had, access to the relevant primary materials held by the Department. It appears that, due to the timing of the commencement of the IMR prior to the adoption of the Guidance Note by the Department and then to the assessment of an officer of the Department about its significance to the respondent’s claim (an assessment which, for the purposes of this appeal, is to be treated as erroneous because of the assessment of the Federal Magistrate on that topic), the Guidance Note did not come to the attention of the Reviewer. But the Guidance Note was clearly available to him, being a document of the Department at whose request and under whose structure the Reviewer performed his role.

48    The RSA relied on the then current available country information concerning the potential harm to asylum seekers who return to Iran after seeking asylum in a Western country. The Reviewer was likewise, when considering that claim by the respondent, going to consider the then available country information relating to that claim. The Guidance Note is accepted as the more current material available within the Department relating to that claim.

49    There does not appear to be any reason why the appellant should be immune from the consequences of a failure to have had the most current material available to the Reviewer.

50    The Reviewer is not a “decision-maker” in the Peko-Wallsend sense. That role belongs to the Minister. As we mentioned, it was the Minister’s decision that the IMR be conducted. Accordingly, the IMR process was a step taken under and for the purposes of the Act: Plaintiff M61/2010E at [9(a)].

51    Moreover, that decision, once made, invoked the requirement that the IMR must be not only procedurally fair but “must address the relevant legal question or questions”: Plaintiff M61/2010E at [77]. This would include addressing the question whether the most current material available to the decision-maker was to hand: Peko-Wallsend at 44-45. Plainly in this case it was not, in as much as the recommendation from the Reviewer to the appellant was made in the absence of the Guidance Note. The prospect was that when the appellant made a decision based on the negative recommendation of the Reviewer it would be based on less than current available information: see Plaintiff M61/2010E at [90]. It was the appellant who was enjoined by the Federal Magistrate from acting on this recommendation.

52    These conclusions are not confronted by the decisions to which the appellant referred in the course of submissions.

53    SZJTQ at [29] and [40] recognised that the Tribunal is required to consider the most current material before it, and in that case the Tribunal’s conclusion contrary to such material was set aside in part because it had not done so: at [50]. In that case, there was no issue about that material being “available” to the Tribunal. It was before the Tribunal and referred to in its reasons in a different context.

54    VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 addressed, inter alia, a claim that the Tribunal’s decision relied on outdated country information. That assertion of fact was simply not made out: see at [25]. The Full Court (Sundberg, Marshall and Weinberg JJ) at the end of [25] said that, in any event, there was no obligation on the Tribunal to seek out or act upon more recent information. Treating that observation as a considered one, it does not support the appellant’s submissions on this appeal. It was not suggested there that more recent information was “available” to the Tribunal, and the primary judge had noted that counsel for the appellant did not “point out any obligation on the Tribunal” to seek it out: see at [11] of the Full Court’s reasons. In addition, the difference in the legislative structure establishing the Tribunal from the administrative structure establishing the IMR and its legislative foundations is not an unimportant one.

55    In submissions in reply, the appellant referred also to Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, concerning the lawfulness of a decision of the appellant cancelling a visa under s 501(2) of the Act. Attention was drawn to the observations of Kiefel and Bennett JJ first at [71]-[76] addressing whether the remarks of a sentencing judge are relevant considerations for the exercise of the appellant’s discretion, and secondly at [77]-[82] addressing whether the appellant, because he had considered the sentencing judge’s remarks, was also obliged to take account of the remarks of the Court of Criminal Appeal when ruling on an appeal that the non-parole period fixed was too severe. It is not necessary to comment on the first topic. As to the second, their Honours said at [80] that the remarks of the Court of Criminal Appeal were not “available” to the Minister because it was not shown that they were on the departmental file, and that they were not considerations which the appellant was obliged to take into account in any event. Here, it is not disputed that the risks to the respondent as a failed asylum seeker returning to Iran was a matter which the IMR had to address, and the Guidance Note was on the departmental file.

56    It is necessary, finally, to consider the reasons of the majority (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441. That case concerned an unsuccessful protection visa application by an Afghan woman on behalf of herself and her children. Her application failed because the Tribunal was not satisfied that she was an Afghani national and so did not have a well-founded fear of persecution in Afghanistan. She did not know the whereabouts of her husband. In fact he was also in Australia and had been granted a temporary protection visa, and then he had applied for a permanent protection visa naming his wife and children as his dependants. His position was recorded in two documents in the departmental file relating to the woman’s claim, which had been provided to the Tribunal.

57    When she learned of her husband’s location and status, the woman applied to the present appellant to substitute a decision in her favour under s 417 of the Act but the appellant declined to exercise that power. The appellant’s refusal to do so, and the decision of the Tribunal were then both challenged in the High Court.

58    Relevantly, the visa applicant contended that the Tribunal had constructively failed to exercise its jurisdiction by failing to consider a material fact, namely that her husband had been granted a temporary protection visa, and had not given her procedural fairness by failing to disclose the location and status of her husband, and also that the Tribunal had failed to take into account a relevant consideration, namely the location and status of her husband.

59    The majority noted that the visa applicant’s claim was not as a family member of the husband but was on the basis of her personal fear of persecution for a Convention reason. That was the claim addressed by the Tribunal. It was not required to address other possible criteria for her being eligible for a protection visa which she did not raise: at [32]. As the Tribunal was not in fact aware of the husband’s location and status, although it was in the departmental file forwarded to the Tribunal, it could not have disclosed that information to her, and it did not rely on that information in assessing her claim: at [33]. The majority asked rhetorically at [34] why the Tribunal should be fixed with detailed knowledge of all that was in the departmental file, as there was no statutory requirement for that to be the case. The majority also rejected the third way in which the argument was put, because the relevant consideration was the satisfaction of the Tribunal about the criteria for the grant of a temporary protection visa: at [40].

60    The reasons of the majority in that case do not advance the appellant’s position on this appeal for the reasons already given. It is not a matter of the IMR as an independent statutory entity being ascribed constructive knowledge of the detailed contents of a departmental file provided to it. The IMR was part of the departmental administrative structure established to provide recommendations to the appellant in aid of the appellant’s consideration whether to exercise power under ss 46A or 195A of the Act, and the Reviewer’s task was to be performed in accordance with accepted legal principles because of the underlying statutory foundations. As a departmental construct, it had available to it the Guidance Note.

61    For those reasons, we do not consider that the Federal Magistrate’s conclusion on this issue is shown to have been erroneous.

62    The second issue referred to in [4] above requires only the application of settled principle to the particular circumstances. Its outcome depends on whether the respondent sufficiently raised the claim that he feared persecution by reason of his membership of a social group, being a Faili Kurd who no longer had a White Card and could not obtain another White Card.

63    The respondent did not make that claim expressly in his application or in the submissions made on his behalf. That does not mean the claim was not made, as the failure to label the concerns of a person such as the respondent in correct terms for the purposes of the Refugees Convention is not decisive: see NABE at [60].

64    The respondent says he clearly raised the claim by the following materials before the Reviewer:

(1)    in his initial entry interview, the respondent is recorded as stating that he would be required to show his White Card everywhere he went and this caused a lot of problems; that police and security forces would give him a hard time and harass him when they saw his White Card; and that obtaining identification required a lot of money and the “government won’t extended” (sic);

(2)    in a statement provided to the RSA officer the respondent said: “I fear returning to Iran because I have no documents and no right to return”; and that the “only document I ever had was a ‘white card’ for foreign migrants” and that card enabled him to live in one town only;

(3)    in the respondent’s submission to the Reviewer, it is noted that he no longer holds a White Card, and the submission continues: “Undocumented Iraqis, including Faili Kurds, have no legal rights in Iran and are subject to deportation. [The Claimant’s] white card was not renewed before its last expiry date. As a result [the Claimant’s] chance to apply for a new white card had irretrievably ceased forcing him to remain undocumented in Iran”;

(4)    in a statement provided to the Reviewer with the submission, the respondent said that his White Card had not been renewed, and he said the reasons for this were the limited benefits conferred upon holders of the White Card and the cost and difficulty associated with renewal; and

(5)    during his interview with the Reviewer, whilst the evidence focused on the social and economic benefits afforded to White Card holders, the respondent also said that the Government and the Basij (a pro-government paramilitary) put pressure on Faili Kurds without identity; that the White Card was issued to identify the holder, that his mother had lost her White Card a few years before and could not pay the “fine” to get a replacement, and that his White Card had either been allowed to lapse or could not or would not be renewed.

65    Reference was also made to an occasion when the respondent said he was arrested when out late at night to see if his White Card was a forgery, and was released after two days and told not to go out at night. That section of the transcript does not support the respondent claiming that his treatment then was because he did not have a White Card.

66    The transcript of the interview particularly relied upon warrants the Reviewer’s comment that the respondent’s evidence was “confused”. The evidence is difficult to follow. It is apparent, however, that the respondent said the White Card was only to identify the holder, and did not give any other entitlements (such as travel rights or access to public hospitals or medical insurance). The Reviewer at that point observed that, on the country information available to him, that was not correct. The respondent said he still had his White Card, but it was no longer valid as it was not renewed; that was somehow a consequence of his mother losing her card and being unable to afford a replacement. At the end of that section of the interview, the Reviewer asked if there was anything more the respondent wished to say about “the white card and the fact that you don’t have a valid white card”.

67    The respondent replied:

This white card issue to us is only to identify the person. There is no benefit, there is no taking advantage of the facilities of the Government, no usage on banking. Anything that an Iranian has we are deprived of. We don’t have entitlement of usage of public hospitals and my sister is ill now, she needs to go for physio treatment.

68    In our view, that material did not raise for the consideration of the Reviewer the claim that the respondent had a claim as a member of a particular social group namely as a Faili Kurd who no longer had a White Card and who would not obtain another White Card.

69    In the Recommendation, the Reviewer at [36] described one claim of the respondent that he feared harm as “a stateless person in Iran … with no identity or residency papers in Iran”. In addressing that claim, the Reviewer adverted to the respondent having no form of identity documents, although previously holding a White Card. That claim was assessed at [36]-[60] of the Recommendation and it was rejected. It is not argued on this appeal that the Reviewer, in addressing this claim, fell into reviewable error.

70    In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, Gummow and Callinan JJ at [24] (with whom Hayne J agreed at [95]) said that the Tribunal is obliged to address “a substantial, clearly articulated argument relying upon established facts”. In NABE, the Court at [58] said:

The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

And Allsop J (as he then was) said in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]:

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

71    The material relied upon by the respondent does not meet that threshold. He did not make a claim by the material referred to that, quite apart from his claim to fear harm as a stateless Faili Kurd with no identity papers in Iran, he also feared harm as a Faili Kurd who no longer had a White Card and could not obtain one. The respondent’s material, viewed overall and carefully, did not extend that far. Indeed his response to the Reviewer quoted above at [67] indicates to the contrary, and that he feared harm as a stateless Faili Kurd in Iran without papers. The respondent does not attribute to the loss of a valid White Card the loss of access to facilities which would have been secured by the White Card. He does not attribute the loss of a valid White Card to his arrest and detention. He does not claim that the absence of a valid White Card, as distinct from the fact that he has no identity or residency papers, has particular consequences. That is consistent with the Reviewer taking into account his evidence at interview about the White Card as part of the material relevant to the claim identified by the Reviewer.

72    In our view, the Federal Magistrate erred by treating an incident of the respondent’s evidence at interview as giving rise to a discrete claim when the applicant did not in fact make such a claim, but was describing the consequences of his status as a stateless Faili Kurd in Iran without identity and residency papers. That claim was recognised and addressed by the Reviewer. It does not emerge from the material relied on that he was clearly asserting that a particular social group existed, namely Faili Kurds in Iran who no longer had a White Card and could not obtain one, or that that particular social group was in that capacity vulnerable to persecution as distinct from the separate claim of stateless Faili Kurds without identity or residency papers.

CONCLUSION

73    For those reasons, the appellant has failed on one of the two grounds of appeal. It was necessary for both grounds of appeal to be successful before the orders of the Federal Magistrate should be set aside.

74    The appeal should be dismissed. The appellant should pay to the respondent the costs of the appeal.

Associate:

Dated:    20 December 2013