FEDERAL COURT OF AUSTRALIA

DZACE v Minister for Immigration and Citizenship [2012] FCA 945

THE COURT ORDERS THAT:

1.    The time within which the applicant may appeal from the decision of the Federal Magistrates Court given on 8 May 2012 is extended to 31 August 2012.

2.    The appeal of the applicant be taken to have been instituted by, and in terms of, the draft Notice of Appeal exhibited to the affidavit of William Francis Piper affirmed 1 June 2012, and to the extent necessary compliance with the Federal Court Rules 2011 to otherwise regularise the appeal be dispensed with.

3.    The appeal be dismissed.

4.    The applicant pay to the first respondent costs of the application and of the appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    On 8 May 2012 a Federal Magistrate dismissed an application by the applicant to declare that a decision of an Independent Merits Reviewer (IMR) of 9 September 2011 was tainted by jurisdictional error: DZACE v Minister for Immigration and Citizenship [2012] FMCA 378.

2    The IMR had recommended that the applicant does not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) (the Act), so that the applicant not be recognised as a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1976, 606 UNTS 267 (the Refugees Convention).

3    The applicant first seeks an extension of time within which to appeal from the decision of the Federal Magistrate. That is because the solicitor acting for the applicant did not appreciate that the limitation period was 21 days, rather than 28 days. Given that explanation, and that the delay is only a couple of days, and that the Minister has suffered no prejudice, the Minister has properly taken the position that an extension of time to appeal should be granted provided there is some merit in the proposed grounds of appeal: see SZQHK v Minister for Immigration and Citizenship [2012] FCA 178 at [20]-[26].

4    For the reasons which follow, I have reached the view that an extension of time within which to appeal should be granted, but that the appeal should be dismissed.

5    As is apparent, and as was developed in the course of submissions, there is some overlap between the grounds of appeal. Counsel for the applicant chose to argue the fifth ground of appeal first, as it to a degree encapsulated some of the points which were otherwise separately addressed.

BACKGROUND AND CLAIMS

6    The applicant is an ethnic Turk-Iranian who lived in Tehran until 2010. He arrived at Christmas Island on 18 August 2010. He promptly indicated that he wished to be recognised as a refugee under the Refugees Convention. An internal refugee status assessment was completed on 1 November 2010, and on 20 April 2011 his application was rejected. That was followed by the IMR assessment.

7    The applicant claimed to be a person to whom Australia owed protection obligations under the Refugees Convention by reason of actual or imputed political opinion. In essence, he said that he and a friend were supporters of the Opposition Leader Moussabi in the 2009 elections, and on 12 June 2009 some weeks after the election, he and that friend attended a demonstration at which the applicant assaulted a security officer. He and his friend had helped to move some barricades to block off a street, and had joined in the chanting of “death to the dictator” and “death to Khamenei”. In the course of that, some security officers had attacked the protesters and tried to force the applicant’s friend into a van. The applicant claimed he had assaulted a security officer to drag him off his friend, and had seriously injured that officer. He and his friend were then forced into the van and blindfolded. He said they were taken to a remote location, about an hour and a half drive away. He was there detained for a week during which he was interrogated twice a day and bashed with batons. He claimed that, as a result of one of the guards at that location recognising his name as the son of the officer’s friend, the opportunity arose for his family to pay a bribe and for him to be released. He was collected by his brother, and taken to a remote country location where he stayed for some time until he left Iran.

8    His brother had arranged for him to travel out of Iran, on a lawfully issued passport in the name of another person who, apparently, looked sufficiently like him for that purpose. He travelled to Bangkok where he destroyed that passport. After working for a time in Bangkok he then procured a Turkish passport to enable him to leave Bangkok and travel eventually to Christmas Island. He claimed that, because the security officer he had assaulted had been badly injured, the authorities were still interested in him despite his release on payment of a bribe. He claimed to fear that if he were to return to Iran, he might be recognised, re-arrested and returned to custody. His friend, he said, had not been seen or heard of since the day he was taken off in the van. In the course of his interview by the IMR, he also said the officer who had secured his release by payment of a bribe had also disappeared.

9    The applicant acknowledged that, despite his personal views, he had not been politically active in demonstrations prior to that occasion, and was not the member of any particular identified political group.

10    The IMR interviewed the applicant on 8 July 2011, in the presence of his migration agent, and with the assistance of an interpreter. In the course of that interview, it emerged that the applicant had been to a shop where the owner distributed leaflets and green fabric in support of the Opposition Leader Moussabi, but he reiterated that he was not himself politically active at all prior to the particular demonstration. It is also clear that, during the interview, he was asked in detail about the circumstances in which he came to attend the demonstration and what happened there.

THE IMR DECISION

11    The IMR, after reciting the evidence and independent country information, under the heading “Findings and Reasons” expressed his conclusions. He observed that, consistently with the applicant’s evidence, his attendance at the 20 June 2009 protest was somewhat out of character. However, he also regarded there to be “implausible elements, inconsistencies and other deficiencies in his evidence about attending the protest” especially in the light of his previous apolitical public persona. The IMR in particular noted the failure to previously refer to the involvement with the production of campaign material for Moussabi, and the apparent inconsistencies in the circumstances in which the applicant and his friend came to attend the demonstration, including the time at which they arrived at that demonstration and his uncertainty as to when it was due to start. He also noted the lack of any persuasive explanation as to why the applicant attended the demonstration at all. He referred to the perceived inconsistent evidence about who he confronted, whether police, Sepah officers, or Basij members. He considered that the applicant’s evidence that he did not know where he was detained (although he was collected by his brother) or why he did not try to find out to be “highly unconvincing”. He also considered his evidence about one of his captors procuring his release for a bribe due to some family knowledge to be “far-fetched and fanciful”. He noted a continued adornment of that part of the applicant’s evidence by new claims about his cousin being in a position to report that the officer concerned had disappeared.

12    Consequently, the IMR did not accept that the applicant attended any political rallies in Iran before or after the 2009 general elections. Nor did he accept that the applicant was arrested either for participating in a demonstration or for assaulting an officer. It followed that he did not accept that the applicant was detained, interrogated or tortured. Nor did he accept that he needed to, or was able to, escape by an irregular release involving bribery. He also found that the applicant, if he was still in Iran, would not be inclined to demonstrate either in public or in secret against the government, simply because he is not interested in doing so and is not “a political person”.

13    He also rejected the applicant’s claim to have departed Iran on a “fake passport, as once described, or on the genuine passport of another passport who resembled him”. The IMR regarded that version as far-fetched.

14    Because the IMR found that the applicant had no political profile in Iran before leaving that country, and had not engaged in the conduct which he alleged gave him an imputed political profile, so the applicant would not be at risk of persecution for any perceived political opinion even if he were to return to Iran, notwithstanding his application for a protection visa.

THE FEDERAL MAGISTRATE’S DECISION

15    The grounds upon which jurisdictional error was asserted in relation to the IMR decision before the Federal Magistrate are substantially similar to those now before the Court. There were three grounds of review, whereas there are now five – but three of the present grounds of appeal overlap.

16    After carefully considering the transcript of the hearing before the IMR, and the submissions on behalf of the applicant, the Federal Magistrate rejected the claim of apprehended bias on the part of the IMR. His Honour concluded at [22]:

Whilst there are areas of concern there are also strong indications such as the one referred to above [giving the applicant and his adviser the opportunity to make further submissions either during the interview or subsequently] that a properly informed lay observer would understand as indicating that whilst the Reviewer may have begun to form certain views about the credibility of the applicant’s evidence he was still open to persuasion. I do not believe that the conduct of this Reviewer can be construed within the proper definition of apprehended bias and this ground of application is rejected.

17    The Federal Magistrate also rejected the grounds of review concerning the asserted failure to give or recognise an appropriate direction as to the nature and extent of caution required in assessing credibility. His Honour also rejected the third ground of review as to the standard of satisfaction as to the falsity of statements made by the applicant, having regard to the gravity of the consequences of making such findings. In the light of the decisions to which the Federal Magistrate referred, namely Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 (QAAH); Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 (Durairajasingham); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, [2004] HCA 32 (SGLB) and SAAK v Minister for Immigration (2002) 121 FCR 185 (SAAK), the Federal Magistrate concluded that the IMR had not misapplied the law relevant to the nature of the satisfaction required in a way which warranted setting aside or declaring invalid the IMR decision.

CONSIDERATION

18    The grounds of appeal are as follows:

1.    The hglearned Federal Magistrate erred in law in finding the conduct of the second respondent did not constitute a proper basis for concluding his decision was unlawful on the ground of reasonable apprehension of bias.

2.    The learned Federal Magistrate erred in law in concluding there was no jurisdictional error founded by the second respondent’s failure to adequately caution himself as to considerations relevant to findings of credibility, or that he did adequately direct himself as to credibility.

3.    The learned Federal Magistrate erred in law in concluding there was no jurisdictional error founded on the second respondent’s failure to proceed with adequate caution in making findings on credibility.

4.    The learned Federal Magistrate erred in law in deciding that concerns as regards past trauma would be relevant only if past trauma had been found.

5.    The learned Federal Magistrate erred in law in deciding that the second respondent did not need to be positively satisfied, in the Briginshaw sense, before effectively finding that the appellant had fabricated his claims.

19    The enquiry by the IMR is an inquisitorial process in respect of which there is no formal onus of proof: QAAH at [40]. In Abebe v Commonwealth (1999) 197 CLR 510 at [28] the Court pointed out that, in a practical sense, responsibility lies upon a visa applicant to satisfy a reviewer as to matters necessary to be eligible for a protection visa under the Act. Nevertheless, the IMR has the role and responsibility of making findings of fact on contentious issues, and as counsel for the applicant pointed out, findings of fact which potentially have very significant adverse consequences to the applicant. It is necessary to make such findings to lead to the level of satisfaction required to recommend the eligibility for a protection visa.

20    In Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 362 Dixon J said that a reasonable satisfaction is one which may vary depending on the consequences of the findings to be made. He said that:

… reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answered question whether the issue has been proved to the reasonable satisfaction of the Tribunal …

21    Counsel for the applicant, whilst relying on that well known passage, was conscious of not importing an onus of proof into the decision-making process. Nevertheless, he argued, a rigorous consideration of the circumstances warranting rejection of claims by an asylum seeker is appropriate where the consequences are so potentially serious for the person affected: see eg per Kirby J in QAAH at [140]. That proposition is also reflected in the UNHCR “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees”, and in particular the exhortation at [196] to the effect that if a particular applicant’s account appears credible, he or she should be given the benefit of the doubt unless there are good reasons to the contrary. That text at [199] also points out that untrue statements by themselves are not a reason for refusal of refugee status and that untrue statements should be measured in the light of all of the circumstances of the case.

22    In this matter, the IMR was required to assess the facts, including questions of credibility and the genuineness of the application made by the applicant. It is the function of the primary decision-maker to do so: see per Kirby J in SGLB at [73] and per McHugh J in Durairajasingham at [67]. In doing so, it is plain enough that the reviewer should be alert to the significance of the decision which is being made, to the fact that the circumstances in which the events took place which may give rise to a claim for refugee status often take place under considerable pressure and in most disconcerting environments, and that, sometimes, those seeking the security of a protection visa may overstate their claims somewhat in an endeavour to obtain safety from the consequences which they genuinely fear. In that sense, the considerations referred to by Dixon J in Briginshaw operate in a parallel way to the sort of considerations relevant to the assessment to be made by a decision-maker on facts under the Act. I am not persuaded that there is any legal requirement beyond an awareness of those matters which must be acquitted by a decision-maker under the Act to avoid jurisdictional error. Indeed, that responsibility may be recognised without necessarily being expressly stated.

23    In this matter, the IMR recognised that he should not readily make adverse factual findings. He said in his reasons at [99]:

I have taken into account that undue weight should not be placed on some degree of confusion and omission to conclude that a person is not telling the truth, especially in the context of claimants who have been residing in detention and of interviews somewhat constrained by time and reliant on interpretation, where a claimant may be slow to realise what is relevant and what degree of detail is required. However, this does not mean that inconsistent evidence or the late introduction of significant new claims are unimportant or should not reflect on credibility.

24    Sometimes such expressions are used in a template or boilerplate context, and other material shows that they have been given little practical weight. That is not generally the case. Decision-makers in matters such as this are generally conscious of the heavy responsibility resting upon them. I do not see in the reasons of the IMR any failure to carefully consider the material before reaching the findings of fact which the IMR made. I do not see that the IMR applied an inappropriate low standard to assessing the material before making findings of fact and in particular before rejecting the applicant’s primary claims. It is not appropriate in a matter such as this to determine whether the Court might have reached a different view on the factual material available. That is not the role of the Court. It is to determine whether, in reaching the concluded views, the IMR has fallen into jurisdictional error. More accurately for immediate purposes, it is to determine whether the Federal Magistrate erred in concluding that the IMR had not done so.

25    In my view, the applicant made significant claims, the IMR understood the test to be applied in considering those claims, and the caution to be exercised in deciding whether, notwithstanding some inconsistencies, the claims should nevertheless be accepted. Ultimately, the factual decision was made without error in the application of any onus of proof or any understanding of the onus of proof on the part of the IMR.

26    The first ground of appeal concerns the Federal Magistrate’s conclusion that there is no proper basis to discern that the IMR’s decision was tainted by a reasonable apprehension of bias.

27    The relevant principles are not in issue. They are quoted by the Federal Magistrate at [7] by reference to the observations of Kenny J in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [25]. See also the discussion in the joint judgment of Rares and Jagot JJ in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [37]-[42]. It must be remembered that in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [72], Gleeson CJ and Gummow J said:

The state of mind described as bias in the form of pre-judgment is one so committed to a conclusion already formed as to being capable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any pre-disposition or inclination for or against an argument or conclusion.

28    In my judgment, upon the material, a fair-minded observer could not have had a reasonable apprehension that the IMR did not bring an impartial mind to the interview, or to the task of determining the applicant’s entitlement or otherwise to a protection visa.

29    I have carefully considered each of the matters raised in contentions on behalf of the applicant from the interview conducted by the IMR. They are set out in the applicant’s written submissions before the Federal Magistrate, under the heading “Not a political person”, “Demonstration”, “Passport”, “Who arrested the applicant?”, “Detention” and then addressing the circumstances of departure. Those matters should not be considered in isolation but taken as a whole. The Federal Magistrate carefully considered the same matters. His Honour concluded at [22] that there was no proper basis for concluding ostensible or apprehended bias on the part of the IMR. I agree with that conclusion.

30    In my view, the transcript from its inception does not demonstrate an initial scepticism on the part of the IMR during the interview, although it is fair to say that, with the passage of time, the IMR became more focused and perhaps shorter in dealing with responses of the applicant to certain questions of the IMR. There are one or two points at which, on my own view, the questions of the IMR were not of much moment (eg the day of the week of the demonstration when the applicant was on his evidence as accepted an unemployed person) but generally speaking the questions were directed to ascertaining details of the applicant’s evidence in a way which was not unfair and in a way which was sensible with a view to testing the reliability of his claims. Sometimes, the questions interrupted an extensive answer by the applicant to get him to address a particular feature of the topic he was then addressing. That does not demonstrate any lack of an open mind, but simply the need and an appropriate attempt to get him to state clearly what it was that he saw or did or when certain events occurred. In the course of the interview, there was a pause in part to enable the applicant to discuss the progress of the interview with his adviser, who was present. At a certain point, the IMR pointed out that he had some difficulty with the consistency and credibility of the claims and identified those problems. He then indicated that there would be a further break whilst the applicant consulted with his adviser and determined whether he wanted to make further response in relation to those issues or to make further and subsequent submissions. After the break, his adviser made oral submissions on those matters. That was followed by some further questions by the IMR. At the completion of the hearing, the IMR indicated that he would allow a further two weeks for further submissions to be made on behalf of the applicant before the completion of the hearing and the determination to be made.

31    In my view, the material does not demonstrate that a properly informed observer would understand that the IMR was not bringing an open mind to consideration of the claims of the applicant. Not surprisingly, as the interview progressed, and questions were answered in a certain way, the IMR became apparently a little more insistent upon certain questions being answered, and perhaps a little more focused on the precise question being asked and being answered. That is a not unnatural evolution of an interview process, particularly where (as here) the IMR was apparently anxious to give to the applicant the opportunity to address the particular concerns of the IMR. In my view, the material does not indicate that the IMR did not, either at the commencement of the interview or during its progress, have an open mind, that is a mind open to persuasion in the light of the whole of the evidence. I do not consider that the Federal Magistrate erred in rejecting that ground of review.

32    The remaining grounds of review, and grounds upon which it is said that the Federal Magistrate erred, can be dealt with together. I have referred above to the comment of the IMR at [99] of his reasons. The applicant complains that the “point was so lightly made and made so late in the process as to confirm a failure in process that otherwise appears on the face of the record of interview”. He also contends, through counsel, that that passage refers only to three matters: that the applicant was a detainee; that the interview was somewhat time constrained; and that the interview was “reliant on interpretation”. It is argued that it was necessary also to have regard to the facts that the interview was taking place by video link; there was a considerable effluxion of time between the relevant events and the interview; and the fact that the applicant may have suffered trauma.

33    In SGLB, Kirby J at [73] observed:

There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with government officials; and a belief that the interests of the applicants or their children may be advances by saying what they believe officials want to hear.

There are a number of similar comments in other judgments. The Full Court (North, Goldberg and Healey JJ) in SAAK at [21]-[36] emphasised the need for a decision-maker to exercise care in relying upon inconsistencies between interviews as the foundation for an adverse credit finding in the context of occupations such as the present. In that case, the Tribunal had not stated that it had taken a cautious approach to the assessment of the credibility of the claims made by the visa applicant. Although the Court at [34] recognised that it is desirable for a fact finder to refer to the approach intended to be taken to the assessment of evidence in a matter such as the present, that does not necessarily have to be positively expressed in every instance. In that case, as appears at [36] the process or evaluation actually undertaken by the Tribunal demonstrated that it had approached the assessment of credit in a cautious way by taking into account the circumstances in which the two interviews were held.

34    With one possible qualification, in my judgment, that applies to the present circumstances. The IMR considered the earlier material, including in particular the two earlier interviews and referred to potentially contradictory or inconsistent material in the course of doing so. In the course of the interview, those matters were brought to the attention of the applicant and his comment upon them invited. In addition, in this matter, many of the unsatisfactory features of his version of events, as they were identified by the IMR, arose in the course of the interview itself. The one reservation arises from a question raised by the IMR in the course of the interview suggesting that the applicant had referred inconsistently to being taken away from the demonstration by security police as distinct from Basiji. The applicant said that he did not talk about police. In his written statutory declaration, prepared apparently by his migration lawyers, there is reference to “security agent’s police”. If that were apparently a significant element of the assessment of the applicant’s credit, in my view it may have been cause for concern. Even then, by virtue of the opportunity to make further submissions, the solicitors who obviously prepared that statement on instructions from the applicant may readily have addressed it. They did not choose to do so. However, more importantly in the overall context, I do not think that is of telling significance. There were a number of matters to which the IMR referred in the course of his reasons for rejecting the claim of the applicant. In my view, they were available to the IMR to be considered in that way. The IMR overall is not shown to have failed to approach his findings with appropriate caution. To go beyond that would be to consider merely whether the Court should form its own view of the facts on the whole of the material, and if did form a different view to substitute that view. That is not, of course, the role of the Court.

35    It follows that, in my judgment, the Federal Magistrate is not shown to have erred in the conclusions which he reached. Nor has the applicant demonstrated jurisdictional error on the part of the IMR. The application should therefore be dismissed. It is agreed that costs should follow the event. I order that the applicant pay to the first respondent costs of the appeal to be taxed. However, for the reasons given, I will grant the extension of time within which to appeal. I order that the appeal proceed (as it did) on the basis of the draft notice of appeal being exhibited to the affidavit of William Francis Piper affirmed on 1 June 2012.

Associate:

Dated:    31 August 2012