FEDERAL COURT OF AUSTRALIA

SZQFC v Minister for Immigration and Citizenship [2012] FCA 409

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 26 August 2011 in which the appellant unsuccessfully sought review of the second respondent’s recommendation that the appellant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees.

2    The appellant is a stateless Shia Muslim of Faili Kurd ethnicity. He was born in Baghdad in Iraq but, as a Faili Kurd, was expelled from that country in about 1980, at the age of six years. After being expelled from Iraq he lived in Iran until his arrival in Australia at Christmas Island on 5 January 2010 as an unauthorised boat arrival.

3    The appellant claims that, if forced to return to Iran, he faces a real chance of persecution due to his Faili Kurd ethnicity and statelessness. In this connection he relies upon his lack of rights to access employment and other basic rights as a Faili Kurd. He also cites a particular instance of physical harm and detention which occurred in 2002.

The basis for the appellant’s claims

4    The appellant was born in Baghdad in Iraq in 1974. After being expelled from Iraq in 1980, he settled in Iran with his parents and siblings, other than his eldest brother. Iran has been his country of habitual residence since that time.

5    The appellant is single. He says that he has never married and has no children. He says that when he was 24 or 25 he began a relationship with the daughter of one of the Arabic families in his neighbourhood. They had to keep their relationship hidden because her family would have killed him had they found out. They were together for seven or eight years until 2006 when her family pressured her into getting married to someone else.

6    The appellant says that his brothers and sisters are married to other Faili Kurds and have children but claims those marriages “are not legal marriages under Iranian law” and that their children do not have constant education because “the Government changes the rules”.

7    The appellant says that because he did not have permission to work and was a Faili Kurd he had great difficulty finding employment. Eventually he was able to find a full time job, but could not work “regular hours” because he “did not want to get caught by the authorities”. The appellant claims that officers from the Department of Employment conducted regular checks on shops for people working illegally. The events concerning one particular check form a central plank of his claimed fear of persecution.

8    In that connection the appellant says that in early 2002 three of four government officials (some believed to be from the Department of Employment and one believed to be a member of the Basij who was armed with a gun) arrived at his workplace to conduct a check. An argument broke out with the appellant’s employer and the appellant got into a fight with one of the officials. The appellant says that during that encounter he was punched and kicked. He also says that he was knocked over and hit his face on a piece of exhaust pipe. Later he was hit on his back with the butt of the gun. He says he was then taken to hospital to treat his injuries before being imprisoned in a police station for one month with no family contact. He says that upon being released he was made to sign a guarantee that he would not work again and would not tell anyone what had happened to him. He says that he was also told that if he was caught working again he would be deported. He says that following this incident he became depressed, anxious and frightened of leaving the house. Nevertheless, he says that in late 2002 he commenced to repair air conditioners, working from house to house “so that it would be harder for the police to catch me”. He continued working until 2007 “when the pressure became too much for me and I stopped doing air conditioning repairs”. He still did some labouring work “which was very irregular” and “far out of town”.

9    The appellant has also made a number of other claims which he has given as reasons for leaving Iran. He says that as a Faili Kurd he cannot move freely around Iran and even within his city it is necessary for him to bribe the police or be forced to “sit on the sidewalk, and wait for hours – even in the middle of winter”. He also says that Faili Kurds are forced to pay more for rent and other services such as healthcare, which others receive free or at a far cheaper price.

10    The appellant says that, finally, in 2009 “the pressure of living in Iran, the daily fear of being caught by the police, had become too much to bear”. He says that his family helped raise the sum of approximately USD9,500 to pay for him to leave Iran for Australia via Malaysia and Indonesia.

The recommendation of the independent merits reviewer

11    The independent merits review the subject of this appeal was the second of two reviews. The independent merits reviewer (IMR), who is the second respondent in this appeal, handed down his report on 15 March 2011, finding that the appellant did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) (the Act) and recommending that the appellant not be recognised as a person to whom Australia has protection obligations.

12    The IMR recounted the relevant law, the claims and evidence before him, various aspects of his interview with the appellant and certain extracts of independent country information, before expressing his findings and reasons. In particular the IMR noted that he provided the appellant with some potentially adverse country information for comment. This information was a report from the Australian Department of Foreign Affairs and Trade (the DFAT report), which stated:

Post is not aware of Faili Kurds being targeted because of their ethnicity, but those without documents risk deportation. Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans. Racially-motivated violence against any group in Iran is rare.

13    The report also stated:

The treatment of Faili Kurds after the Iranian election has not changed. Those that are politically active with the opposition risk targeting, but this is not because of their ethnicity. Nonetheless, those detected without proper documents risk deportation.

14    The IMR’s findings and conclusions based in part on these statements formed the basis of one the appellant’s grounds of review before the Federal Magistrates Court.

15    The IMR did not consider the appellant’s claims in respect of Iraq because the appellant did not have Iraqi citizenship and had not lived there since he was six years old.

16    The IMR accepted that the Iranian government is authoritarian and repressive with a record of human rights breaches. He also accepted that many minority groups in Iran experience discrimination and that political activists are dealt with severely. Nonetheless, he found that, in the appellant’s case, “there are no particular and individual factors that distinguish him from the general Kurdish population … that would support his claim for protection”.

17    In this regard the IMR noted that the appellant had lived in Iran for 30 years and was able to live undisturbed at the same home address for 10 years prior to his departure. Although the IMR accepted that the incident in 2002 as related by the appellant did happen, he said that this had to be considered in the context of the remainder of the appellant’s working life. The IMR noted that the appellant had worked almost continuously for over 15 years and that his brother and the husbands of all five of his sisters, all Faili Kurds, also worked. Indeed they were able to raise a significant sum of money to fund his departure from Iran. The IMR also noted that the appellant continued to work until 2007, even after the incident five years earlier in 2002.

18    The IMR noted that the appellant was registered as a refugee and had held a green card and then a white card, which the appellant had cancelled voluntarily in order to leave Iran.

19    The IMR found that the appellant had given some inconsistent evidence. He found that the appellant had claimed that he was unable to marry but that the evidence showed that his siblings were all married and that, in fact, the appellant had chosen not to marry for financial reasons.

20    The IMR found that there was no credible evidence to support the appellant’s claim that he would be persecuted for a Convention reason because he had left the country illegally and was stateless. In this regard the IMR noted that being stateless and subject to deportation is not of itself persecution under the Convention. He further found that if the appellant attracted the adverse attention of the authorities for departing Iran illegally this would be pursuant to the application of the general law and not necessarily for a Convention reason.

21    Finally, the IMR accepted that some, possibly most, Faili Kurds and other minority groups experience discrimination and many forms of hardship in Iran but accepted the advice of the DFAT report that I have quoted above.

22    In respect of the appellant, the IMR noted that it had been almost 10 years since the appellant suffered a single, albeit serious, incident of physical harm and that, since that time, the appellant had been able to work, save money and live undisturbed at home with his family. The IMR found that a likely crackdown or enforcement of a work ban against Faili Kurds, as suggested by the appellant’s agent, was speculative and that there was no evidence to support a conclusion that there would be one.

23    The IMR found that the appellant’s circumstances did not amount to serious harm for the purposes of the law.

The decision of the Federal Magistrates Court

24    The grounds of the amended application for judicial review relied upon in the Federal Magistrates Court were:

1.    The second respondent (the IMR) failed to consider claims made by the [appellant] and so committed jurisdictional error.

2.    The IMR failed to consider issues raised in submissions made on behalf of the [appellant] and on the material before the IMR.

3.    The IMR made a finding of fact in the complete absence of evidence.

25    In respect of the first ground, each claim particularised and said not to have been considered by the IMR, related to matters raised in (amongst other places) a statutory declaration made by the appellant on 22 April 2010. Specifically these were:

(a)    That the [appellant] was working in Iran without permission to do so.

(b)    That after about the year 2000 the [appellant] had had to take precautions against being caught for fear of the “authorities”.

(c)    That the treatment that [the appellant] received upon arrest and in custody was not just of physical harm … but involved a severe deprivation of liberty.

(d)    That [the appellant] was only released upon signing a “guarantee” that he would not work.

(e)    That [the appellant’s] siblings did not have permanent jobs, and that they worked irregularly at whatever work was available.

(f)    That the [appellant] was subject to extortion at the hands of the police.

The appellant characterised each of these matters as a separate claim. He submitted that his fear of extortion, in particular, was “an entirely separate reason for his fear of persecution”.

26    The presiding Federal Magistrate reasoned that the allegation that the IMR had failed to consider claims made by the appellant must be considered in light of the way in which the IMR expressed his reasons and by reference to what amounts to an integer of a claim. His Honour noted that the IMR had summarised the appellant’s concerns and had addressed the treatment which the appellant had received in Iran and which, he said, he would be likely to receive were he to return. His Honour considered that the matters which the appellant had particularised as having been overlooked by the IMR were “little more than particular details of the [appellant’s] claims which the [IMR] did in fact consider, albeit in a broad and comparatively undetailed fashion”.

27    His Honour reasoned that the appellant’s submissions confused instances of persecution, which he claimed to fear, with the reasons for that persecution. In this connection his Honour noted that the integers of a claim are the different bases for the persecution alleged, not the individual, and potentially disparate, manifestations of such persecution: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]. His Honour found that the appellant’s fear of extortion (and I would infer each of the other matters particularised) was not an integer of the appellant’s claim but an example of the persecution the appellant claimed to fear by reason of his ethnicity. Hence his Honour found that the matters particularised by the appellant which depended on his Faili Kurd ethnicity and statelessness had been dealt with by the IMR when considering whether those characteristics provided a basis for the appellant to fear persecution in Iran.

28    In respect of the second ground of review the appellant alleged that the IMR had failed to take into account the following submissions:

(a)    That the cumulative effect of the treatment and deprivations to which the [appellant] had been subject amounted to persecution.

(b)    That the denial of a legal right to work was in itself persecution.

29    In respect of submission (a) the Federal Magistrate found that although the IMR did not expressly say that he had considered the appellant’s claims in a cumulative sense, the IMR’s statement of reasons under the heading “Assessment of claims” indicated that that is “exactly what he did”.

30    In respect of submission (b) his Honour found that, although the IMR did not in terms address the appellant’s submission that the inability to work legally amounted to persecution, he implicitly did so when he found, by reference to his finding that Faili Kurds were not targeted in Iran because of their ethnicity, that the appellant had been able to work, save money and live undisturbed since the 2002 incident; that the possibility of a crackdown or enforcement of a work ban on Faili Kurds was speculative and lacked evidentiary support; and that the appellant’s circumstances did not amount to serious harm for the purposes of the Act. His Honour found that it was apparent that the IMR was of the view that the appellant had sufficient work rights such that any limitations on those rights which he suffered did not amount to persecution.

31    The third ground of review relied upon by the appellant concerned the adverse country information from the DFAT report and the IMR’s finding that the effect of that information was that Faili Kurds are not targeted in Iran because of their ethnicity. The appellant submitted that this finding by the IMR was based on a misunderstanding of the DFAT advice.

32    In this connection his Honour noted that the IMR (at [19] and [23]) had correctly quoted the DFAT report as stating the Embassy was “not aware” of Faili Kurds being targeted because of their ethnicity. His Honour found that the IMR plainly knew what the DFAT report had said and had paraphrased the relevant parts of the report in his reasons. His Honour found that it was open to the IMR to conclude that what the report was actually saying was that Faili Kurds were not targeted because of their ethnicity, particularly in the full context of the statements in question. He further found that “even if the [IMR] drew too long a bow on this point, it was not a factual conclusion for which there was no evidence”, but simply a conclusion which could be argued to be incorrect.

33    In the end result, his Honour dismissed each ground of review relied upon.

The appeal

34    The grounds of appeal relied on by the appellant effectively restate the grounds of review relied on in the Federal Magistrates Court, coupled with the averment that, in each case, the Federal Magistrates Court erred in making a finding contrary to that asserted by the appellant.

The first ground of appeal – alleged failure to consider claims

35    The substance of this ground is that the Federal Magistrates Court erred in not finding that the IMR had failed to consider each of the matters identified in [25] above.

36    The appellant relied on the administrative law principle that the failure of a decision-maker to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]-[25]. He submitted that, in accordance with Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319, the IMR’s recommendation was for the purpose of determining whether or not the powers under ss 46A and 195A of the Act should be exercised, and was thus conditioned on the requirement that the IMR was bound to act according to law and to observe the rules of natural justice, in particular to accord procedural fairness.

37    The appellant also endeavoured to draw support from cases dealing with a failure to consider all the claims of a claimant for refugee status, such as to constitute a constructive failure to exercise jurisdiction: see Htun at [42]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63].

38    In my view this ground of appeal is not made out. I am not persuaded that the presiding Federal Magistrate erred in concluding that the matters identified in the particulars were in fact considered by the IMR in making his recommendation.

39    In this connection the reasons of the IMR record that he had before him, amongst other things, “written statements” made by the appellant setting out his claims. One written statement, specifically identified, was the appellant’s statutory declaration made on 22 April 2010. In his reasons the IMR set out in summary form the appellant’s work history both before and after the 2002 incident when the appellant was arrested, beaten and detained for one month. It is apparent, both from the summary that is given, and from the IMR’s explicit reference to the declaration, that the IMR was doing no more than providing a mere summary, sufficient for the purposes of his reasons, of the matters more fully set out in that declaration. Indeed, the IMR quotes from the declaration. Similarly, when dealing with the appellant’s personal relationships, particularly his relationship with the daughter of one of the Arabic families in the appellant’s neighbourhood, the IMR referred to and quoted from the declaration.

40    A reading of the declaration shows that it deals with a number of details including, but certainly not limited to, each of the six matters particularised in relation to this ground of appeal. Each of those matters was integral to the narrative of the declaration dealing with the appellant’s working life in Iran, as he had related it.

41    The fact that the appellant was working without permission (the first of the particularised matters); the fact that the appellant had to take precautions against being caught for fear of the “authorities” (the second of the particularised matters); and the fact that the appellant’s siblings did not have permanent jobs and worked irregularly doing whatever work was available (the fifth of the particularised matters) provided part of the context in which the 2002 incident, as narrated in his declaration, took place. On reading the IMR’s reasons, and comparing those reasons with the narrative of the declaration, I am unable to accept that, because these particularised matters were not explicitly recorded, they were ignored or somehow missed or overlooked by the IMR. As I have said, they were facts integral with the narrative of, and provided the setting for, the 2002 incident, as the appellant sought to relate it in his declaration. The circumstances of the appellant’s work history were simply described at a higher level of generality, and in a more compendious way, by the IMR.

42    The fact that the treatment received by the appellant upon his arrest in 2002 involved not just physical harm but also the deprivation of his liberty (the third of the particularised matters) was explicitly recorded by the IMR as part of his summary.

43    The fact that the appellant had, upon his release from detention, signed a “guarantee” that he would not work (the fourth of the particularised matters) provided, once again, part of the context given in the appellant’s narrative for undertaking work fixing air conditioners in late 2002 on the basis that he would work “at different houses all the time so that it would be harder for the police to catch me”.

44    The statement made by the appellant in his declaration with respect to signing the “guarantee” was raised by him when dealing with his detention:

No one came to question me, until one day they finally decided to let me go. On that day, they asked me lots of questions. They made me sign a guarantee that I would not work again, and that I would not tell anyone what had happened to me. They told me that if they caught me working again they would deport me.

45    The appellant later said that in 2007 “the pressure became too much for me and I stopped doing air conditioning repairs”. This statement was quoted by the IMR in his reasons. The IMR also referred to “the context of the remainder of [the appellant’s] working life” and “[t]he evidence that he has worked almost continuously for over 15 years”.

46    These references show that the IMR was giving consideration to the period 1992 (when the appellant’s employment in the radiator repair shop commenced) up to 2007, when the appellant stopped undertaking air conditioning repairs on a house by house basis, as recounted in the declaration.

47    It is also clear from the reasons that, when the IMR interviewed the appellant on 17 January 2011, he did so with knowledge of the account given by the appellant in his declaration. For example, after quoting the passage in the declaration that, in 2007, “the pressure became too much …”, the IMR recorded that he followed up the appellant on this matter by asking him why he had stopped doing that work. The IMR recorded the appellant’s response as: “It was seasonal, going to houses I was scared my way of speech would be noticed and what happened previously would re-occur”.

48    In my view no error has been demonstrated in the presiding Federal Magistrate’s finding (at [17]), at least in relation to the first to fifth particularised matters, that:

The matters which the applicant particularised as having been overlooked by the Reviewer were little more than particular details of the applicant’s claims which the Reviewer did in fact consider, albeit in a broad and comparatively undetailed fashion.

49    In making this finding the presiding Federal Magistrate was also seeking to deal with the sixth particularised matter, namely that the appellant was subject to “extortion” at the hands of the police. The statement made in that regard by the appellant in his declaration was as follows:

As a Faili Kurd, I had many problems just walking around the city. If I ran into the police, I would have to bribe them. You could not argue with them or they would beat you. After I had been taken by the police, I was too frightened to ever try and argue with [sic]. If I did not have enough money, they would make me sit on the sidewalk, and wait for hours – even in the middle of winter.

50    The matter of paying bribes to the police was also referred to by the appellant in his entry interview.

51    It is clear from the above quote, and from the appellant’s entry interview, that the appellant’s reference to paying bribes was not a matter advanced as something peculiar to him as an individual but rather as treatment he had suffered as part of the general treatment of Faili Kurds in Iran, a group to which he belonged.

52    The appellant submitted that the Federal Magistrates Court erred by failing to distinguish between the appellant’s work difficulties and the problem of being a Faili Kurd “just walking around the city”. The appellant submitted that the last mentioned matter was a separate integer of his claim of persecution which had not been taken into account by the IMR and that the Federal Magistrates Court had erred in not treating it as such: see Htun at [42].

53    In this connection the Full Court in WAEE, when dealing with a decision of the Refugee Review Tribunal, said at [45]:

… The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of form of the tribunal’s published reasons for decision.

54    The first respondent relied on the following passages in WAEE (at [46]-[47]):

It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

55    The first respondent submitted that the same considerations apply to a recommendation made as a result of an independent merits review, and to the reasons given for such a recommendation.

56    In oral argument counsel for the appellant put the appellant’s submission in the following way:

Now, possibly I can put this a way which is slightly different to the way I put it before. He put his claim of being – he personally put his claims of fear of persecution for reason of his ethnicity or his race in two ways: firstly, they wouldn’t let him work, or they wouldn’t let him work legally, and secondly, he was seen by the police as a suitable target for extortion. Now, in my submission, those are facets of his fear of persecution which are analogous to Mr Htun’s fear of persecution for reason of political opinion and the appellant in WAEEs persecution for reason of religion.

57    I am of the view that, properly characterised, there were two separate integers to the appellant’s claim; one relating to his specific employment difficulties as a Faili Kurd, and the other relating more generally to his position as a Faili Kurd unrelated to specific work difficulties. In [17] of his reasons the presiding Federal Magistrate treated the two as essentially one and the same integer of the appellant’s claim based on his race or ethnicity. To this extent his Honour erred. However, the matter does not end there. His Honour went on to find (at [18]) as follows:

To the extent that the matters particularised by the applicant were not encompassed by the Reviewer’s findings [relating to employment] they were dealt with when the Reviewer addressed the integers of the applicant’s claims, in the sense that those particulars of this allegation which depend on the applicant’s Faili Kurd ethnicity and statelessness were dealt with when the Reviewer considered whether those characteristics provided a basis for the applicant to fear persecution in Iran.

58    On a consideration of the IMR’s reasons as a whole, this finding was not only open to the presiding Federal Magistrate, but is, in my view, correct. In this connection I am not persuaded that just because the issue of paying bribes was not explicitly mentioned in the IMR’s reasons, it was ignored or somehow missed or overlooked. Once again, it was integral to the appellant’s narrative in the declaration which was before the IMR and which he summarised in a compendious way.

59    The matter was correctly put by the presiding Federal Magistrate when his Honour (at [19]) said:

In this case, the Reviewer concluded that there were no particular and individual factors which distinguished the applicant from the general Kurdish populations and which would support his claim for protection; that although Faili Kurds experienced discrimination and hardship in many forms in Iran, this was not by reason of their ethnicity; that there was no credible evidence to support the claim that he would be persecuted for a Convention reason because he had left Iran illegally and is stateless; and that being stateless and subject to deportation did not amount to persecution under the Convention. By doing so the Reviewer considered the integers of the applicant’s claim to fear persecution, namely his Faili Kurdish background and his statelessness.

The second ground of appeal – alleged failure to consider submissions

60    The substance of this ground of appeal is that the Federal Magistrates Court erred in not finding that the IMR had failed to consider the appellant’s submissions (a) that the cumulative effect of “the treatment and deprivations to which [the appellant] had been subject” should be considered when assessing his claims of persecution; and (b) that the denial of a legal right to work was itself persecution.

61    In my view this ground cannot be sustained. Although not identifying in explicit terms each submission, a fair reading of the IMR’s reasons shows that, in each case, he considered the appellant’s claims in terms of the submission advanced.

62    As to the first of these matters, the appellant’s agent, in written submissions, drew attention to the fact that serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm. The agent submitted:

As an unlawful and undocumented Faili Kurd, if [the appellant] were returned to Iran, he would face a denial of a number of fundamental human rights and restrictions which impact every aspect of his life and that would result in circumstances of a substantially prejudicial nature. This would include a denial of a right to earn a living and the denial of access to basic services that would threaten [the appellant’s] capacity to subsist. [The appellant] would also face a denial of a right to a passport and thereby restrictions on the ability to travel freely outside of the country.

63    In his reasons, when dealing with his assessment of the appellant’s claims, the IMR (at [22]) gave an overview of the appellant’s position in somewhat similar terms:

It is submitted on behalf of [the appellant] that he is at risk of harm from the Iranian government authorities. He is said to be of adverse interest to them because of his Faili Kurdish ethnicity and because he would be a returnee from a Western country who departed illegally and because he has no identification papers and is stateless. He is said to have suffered and will continue to suffer discrimination and mistreatment and will be unable to work.

64    In succeeding paragraphs, the IMR went on to deal with the appellant’s claims in more detail. The IMR (at [28]) concluded:

I have carefully considered the claims, evidence and independent country information. In all the circumstances, I find that there is not a real chance of harm to the claimant for a Convention related reason.

65    The appellant submitted that the IMR’s reference to “in all the circumstances” was “simply a form of words” and that the IMR did not consider the cumulative effect of the appellant’s circumstances. I do not accept that submission. It is clear from reading the reasons that, as a matter of substance, the IMR did consider the cumulative effect of the appellant’s circumstances. The presiding Federal Magistrate did not err in finding to that effect.

66    As to the second matter, it is clear that the IMR did give consideration to the agent’s submission that the denial of a right to work itself constituted persecution. The IMR plainly dealt with the appellant’s individual work situation as well as the broader position of the employment of Faili Kurds in Iran. The appellant’s agent had made a number of separate submissions about those matters, including a submission that, contrary to information contained in the DFAT report, rising unemployment levels in Iran, particularly amongst the youth, would pressure the Iranian government into adopting a stricter approach to the laws regarding the work rights of Faili Kurds. The IMR (at [27]) said:

I have considered the agent’s submissions about the employment situation of Faili Kurds in Iran. In my view the argument about a likely crackdown or enforcement of a work ban against Faili Kurds is speculative and there is no evidentiary basis upon which to draw that conclusion. I accept the DFAT evidence on this question of employment and I draw support for this finding from [the appellant’s] own employment history and that of his extended family. I find that his circumstances do not amount to serious harm for the purposes of the law.

67    The Federal Magistrates Court was not in error in concluding that, implicitly, the IMR had considered the appellant’s submission that the inability to work legally amounted to persecution.

The third ground – finding made with no evidence

68    The substance of this ground of appeal is that the Federal Magistrates Court erred in not finding that the IMR had erred in finding that Faili Kurds are not targeted in Iran because of their ethnicity.

69    In at least two places in his reasons the IMR recorded that Australian Embassy staff “are not aware of Faili Kurds being targeted because of their ethnicity”. As I have previously noted, this information was sourced from the DFAT report.

70    In his reasons the IMR (at [27]) said:

… I accept the Department of Foreign Affairs and Trade advice that they [Faili Kurds] are not targeted because of their ethnicity and that racially motivated violence against any group in Iran is rare …

71    The appellant submitted that this was a positive finding by the IMR that Faili Kurds are not targeted because of their ethnicity. He submitted that this finding is quite different from the remarks in the DFAT report which essentially expressed a statement of non-awareness of that fact. He submitted, therefore, that the finding was made in the absence of evidence.

72    It may be accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-365; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481. There is, however, no error of law in merely making a wrong finding of fact: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77.

73    In the present case the IMR summarised the relevant content of the report as follows:

It states that Embassy staff in Iran are not aware of Faili Kurds being targeted because of their ethnicity, that Iraqi refugees, including Faili Kurds, tend to be treated well in comparison with Afghans, that racially-motivated violence against any group in Iran is rare, that the treatment of Faili Kurds after the Iranian election has not changed, that in practice they are able to work and that those that are politically active with the opposition risk targeting, but this is not because of their ethnicity.

74    In my view that is an accurate summary of what that part of the report says.

75    Later the IMR quoted other aspects of the report dealing with the treatment of Iraqi refugees as green and white card holders. Those passages include the following:

Those without valid cards risk deportation, although in practice Iranian authorities show considerable tolerance towards Iraqi refugees.

76    In my view the IMR was entitled to draw from the report a statement of advice that Faili Kurds are not targeted because of their ethnicity based on the state of knowledge of the Embassy itself in Iran. The meaning to be drawn from the language used in the report was entirely a factual matter for the IMR. The Federal Magistrates Court was not in error in concluding that, in stating his finding, the IMR had simply paraphrased the report to convey the sense which he drew from it. It could not be said that this finding was a factual conclusion for which there was no evidence.

77    It follows, in my view, that this ground of appeal fails.

Disposition

78    No error has been demonstrated in the Federal Magistrates Court’s findings and conclusions that would warrant appellate interference. It follows that the appeal must be dismissed. The appellant should pay the first respondent’s costs.

Associate:

Dated:    23 April 2012